18 September 2009
by Ronald Grant JONES
against the United Kingdom
lodged on 26 July 2006
by Alexander Hutton Johnston MITCHELL and Others
against the United Kingdom
lodged on 22 September 2006
STATEMENT OF FACTS
1. This case concerns two applications. In the first, the applicant, Mr Ronald Grant Jones, is a British national who was born in 1953. He is represented before the Court by Mr G. Cukier, a lawyer practising in London with Kingsley Napley LLP. In the second, the applicants are Mr Alexander Hutton Johnston Mitchell, Mr William James Sampson and Mr Leslie Walker. They are also British nationals who were born in 1955, 1959 and 1946 respectively. Mr Sampson also has Canadian nationality. They are represented before the Court by Ms T. Allen, a lawyer practising in London with Bindmans LLP.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Proceedings brought by Mr Jones
3. On 15 March 2001, while he was living and working in the Kingdom of Saudi Arabia (“the Kingdom”), Mr Jones was slightly injured when a bomb exploded outside a bookshop in Riyadh. He alleges that the following day he was taken from hospital by agents of the Kingdom and unlawfully detained for 67 days. During that time he was tortured by a Lieutenant-Colonel Abdul-Aziz. In particular, he alleges he was beaten with a cane on his palms, feet, arms and legs; slapped and punched in the face; suspended for prolonged periods by his arms; shackled at his ankles; subjected to sleep deprivation and given mind-altering drugs.
Mr Jones returned to the United Kingdom where a medical examination found he had injuries consistent with his account and where he was diagnosed with severe post-traumatic stress disorder.
On 27 May 2002, Mr Jones commenced proceedings in the High Court against the Kingdom, the Ministry of Interior of the Kingdom and Lieutenant-Colonel Abdul-Aziz claiming damages inter alia for torture. In the particulars of claim he referred to Lieutenant-Colonel Abdul-Aziz as a servant or agent of the Kingdom. A Master of the High Court subsequently gave permission to serve the claim form out of the jurisdiction on the Kingdom and Lieutenant-Colonel Abdul-Aziz.
On 12 February 2003, the Kingdom applied to have the claim struck out. In his judgment of 30 July 2003, the Master held that the Kingdom was entitled to immunity under section 1(1) of the State Immunity Act 1978 (“the 1978 Act”: see relevant domestic law and practice at paragraph 20 below). He also held that Lieutenant-Colonel Abdul-Aziz was similarly entitled to immunity under that Act. Mr Jones appealed to the Court of Appeal (see paragraph 5 below).
2. Proceedings brought by Mr Mitchell, Mr Sampson and Mr Walker
4. Mr Mitchell and Mr Sampson were arrested in Riyadh in December 2000; Mr Walker was arrested there in February 2001. All three applicants allege that, while in custody, they were subjected to sustained and systematic torture, including beatings about the feet, arms, legs and head, and sleep deprivation. Mr Sampson alleges he was anally raped. The applicants were released and returned to the United Kingdom on 8 August 2003. Each obtained medical reports which concluded that their injuries were consistent with their accounts.
The applicants decided to commence proceedings in the High Court against the four individuals they considered to be responsible: two policemen, the deputy governor of the prison where they were held, and the Minister of the Interior who was alleged to have sanctioned the torture. They therefore applied for permission to serve their claim on the four individuals out of the jurisdiction. On 18 February 2004, this was refused by the same Master who had heard Mr Jones’s claim, on the basis of his previous ruling in respect of Mr Jones. The applicants appealed to the Court of Appeal with the leave of the Master.
3. The Court of Appeal judgment in the applicants’ conjoined appeals
5. On 28 October 2004 the Court of Appeal unanimously dismissed Mr Jones’s appeal from the decision of the Master to refuse permission to serve the Kingdom outside the jurisdiction. However, it allowed his appeal, and that of the other applicants, in respect of the refusal of permission to serve the individual defendants.
6. In respect of the immunity of the Kingdom, Lord Justice Mance, with whom Lord Phillips and Lord Justice Neuberger agreed, refused to depart from this Court’s ruling in Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001 XI. In addition, Article 14(1) of the United Nations Convention Against Torture (“the Torture Convention”: see paragraph 24 below), which obliges a Contracting State to ensure in its legal system that a victim of an act of torture obtains redress, could not be interpreted as imposing an obligation on a State to provide redress for acts of torture when those acts were committed by another State in that other State.
7. In respect of the immunity of the individual defendants, a distinction had to be drawn between, on the one hand, immunity for the State itself, its serving head of State and diplomats and, on the other, immunity in respect of its ordinary officials, former heads of State and former diplomats. The former enjoyed immunity ratione personae, the latter only immunity ratione materiae. Therefore, Lord Justice Mance considered the case-law of the domestic courts and courts of other jurisdictions, which recognised State immunity in respect of acts of agents of the State. This case-law included the Court of Appeal’s judgment in Propend Finance Pty Ltd v. Sing  ILR 611, where it was held that the effect of section 14(1) of the 1978 Act was to give State officials the same protection as that given to the State itself. However, neither Propend nor any of the other relevant cases was concerned with conduct which was to be regarded as outside the scope of any proper exercise of sovereign authority or with international crime, let alone with systematic torture. He did not accept that the definition of torture by the UN Torture Convention as an act by (or with the consent or acquiescence of) a public official or other person acting in an official capacity was fatal to the applicants’ claims:
“It seems doubtful that the phrase ‘acting in an official capacity’ qualifies the reference to ‘public official’. The types of purpose for which any pain or suffering must be inflicted ... would appear to represent a sufficient limitation in the case of a public official. Be that as it may, the requirement that the pain or suffering be inflicted by a public official does no more in my view than identify the author and the public context in which the author must be acting. It does not lend to the acts of torture themselves any official or governmental character or nature, or mean that it can in any way be regarded as an official function to inflict, or that an official can be regarded as representing the state in inflicting, such pain or suffering. Still less does it suggest that the official inflicting such pain or suffering can be afforded the cloak of state immunity...The whole tenor of the Torture Convention is to underline the individual responsibility of state officials for acts of torture...”
8. Lord Justice Mance did not consider it significant that Lieutenant-Colonel Abdul-Aziz had been described as the “servant or agent” of the Kingdom. Nor did he accept that general differences between criminal and civil law justified a distinction in relation to immunity. The House of Lords in Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3)  1 AC 147 (“Pinochet (no. 3)”) had found there would be no immunity from criminal prosecution in respect of an individual officer committing torture in an official context: it was not easy to see why civil proceedings against an alleged torturer involved a greater interference in the internal affairs of a foreign State than criminal proceedings against the same person. It was also incongruous that if an alleged torturer was within the jurisdiction he or she would be prosecuted pursuant to Article 5 of the Torture Convention, and no immunity could be claimed, but the victim of the alleged torture would be unable to pursue any civil claim. There was also no basis for assuming that, in such civil proceedings, a State could be made liable to indemnify or otherwise support one of its officials proved to have committed systematic torture. Claims against individual officials did not raise problems regarding execution against State property, as foreseen in the concurring opinion of Judges Pellonpää and Bratza in Al-Adsani, cited above.
9. The issue of whether any claim in the English courts against individuals could proceed was better determined not by reference to immunity, but by considering whether it was appropriate for the English courts to exercise jurisdiction. A number of factors ought be considered in the decision as to whether to exercise jurisdiction, including the sensitivity of the issues involved and the general power of the English courts to decline jurisdiction on the grounds that it was an inappropriate forum for the litigation. He added: “I do not see the difficult jurisdictional issues which such claims raise as a justification for possession by the foreign State of a blanket claim to immunity in respect of such an official or agent in a case of alleged systematic torture.”
10. In considering the impact of Article 6, Lord Justice Mance found important distinctions between a State’s claim to immunity ratione personae, at issue in Al-Adsani, and a State’s claim to immunity ratione materiae in respect of a claim against one of its officials. This included his finding (paragraph 7 above) that the settled international practice only related to the immunity of the State itself or to the immunity of individual officials for alleged misconduct that bore no relationship in nature or gravity to the international crime of systematic torture. It also included the further finding that civil proceedings against individual officials did not necessarily implead indirectly the State in question (see paragraph 8 above). Where, under Article 14 of the Torture Convention, a State had created a domestic remedy for torture in the State where that torture was committed, other national courts could be expected to refuse to exercise jurisdiction. But, where there was no adequate remedy in the State where the systematic torture occurred, it might be regarded as disproportionate to maintain a blanket refusal of recourse to the civil courts of another jurisdiction. Lord Justice Mance continued:
“I recognise, without expressing any concluded view, that it might, in some cases, be relevant to weigh the absence of any effective domestic remedy in the state of the alleged torture against the unlikelihood of the defendant playing any part in any proceedings in the state of suit, or being amenable to any type of enforcement there or elsewhere. But, if a state can be shown to have failed to provide an effective domestic remedy for alleged torture, this must on any view weaken its position in insisting on a claim to state immunity in respect of such a claim against one of its officials elsewhere.”
11. A final distinction was that while the courts of one State were not to adjudicate lightly upon the internal affairs of another State, there were many circumstances, particularly in the context of human rights, where national courts did have to consider and form a view on the position in or conduct of foreign States. Additionally, the act of state doctrine would cause courts to refrain from adjudication when there were no manageable standards for adjudication but allegations of systematic torture would be unlikely to raise such considerations.
12. Therefore, in allowing the applicants’ appeals in respect of the individual defendants and remitting them for further argument, Lord Justice Mance concluded:
“[I]t seems to me that any absolute view of immunity must at the very least yield in the face of assertions of systematic torture to a more nuanced or proportionate approach. As it is, having regard to the [European Convention on Human Rights], it is sufficient to decide this appeal that, whether issues of state immunity are or are not treated as theoretically separate from issues of jurisdiction in English law, the permissibility, appropriateness and proportionality of exercising jurisdiction ought to be determined at one and the same time. Such a conclusion reflects the importance attaching in today’s world and in current international thinking and jurisprudence to the recognition and effective enforcement of individual human rights. It fits harmoniously with the position already achieved in relation to criminal proceedings. It caters for our obligation under article 6 of the [European Convention on Human Rights] not to deny access to our courts, in circumstances where it would otherwise be appropriate to exercise jurisdiction applying domestic jurisdictional principles, unless to do so would be in pursuit of a legitimate aim and proportionate.
I do not envisage that as a result of this judgment that England will become a forum of choice for the bringing of claims for torture committed throughout the world. First, it is always necessary in any English suit to establish some basis within ordinary domestic rules upon which it is technically possible for the English courts to exercise jurisdiction. Second, where such a basis exists, the appropriateness and proportionality of exercising such jurisdiction can arise as matters of discretion. I have in this judgment mentioned certain factors that could be relevant. They include considering whether there is a more suitable alternative forum as well as the general undesirability of adjudicating upon issues in this country, in circumstances under which a defendant is unlikely to appear here and in which any civil judgment is unlikely to be enforceable but which would involve sensitive investigation of activities of officials alleged to have taken place within a foreign state (cf paragraphs 80-81 and 86 above). Third, even where proceedings can be served here without obtaining leave to serve out of the jurisdiction, that will usually mean the defendant is here. If the defendant is only served while here transiently, then, as I have recognised in paragraph 81 above, the courts would need to consider competing considerations and possibly competing principles. Fourth, however powerful the desire to establish the fact of alleged torture, there are likely in practice to be limits to the extent to which claims for torture are brought in jurisdictions which have no connection with the alleged torture or the alleged individual torturer where no practical recourse is likely to follow.”
13. In his concurring judgment Lord Phillips concluded that: “whereas Saudi Arabia can invoke State immunity ratione personae in relation to civil proceedings for torture, it cannot aver that claims against individual officials for torture are cloaked with the State’s immunity ratione materiae.” On the approach of this Court, he commented:
“The distinction that I have drawn between immunity ratione personae and immunity ratione materiae was emphasised by the majority of the Grand Chamber when reaching their decision in Al-Adsani... Had the Grand Chamber been considering a claim for state immunity in relation to claims brought against individuals, I do not believe that there would have been a majority in favour of the view that this represented a legitimate limitation on the right to access to a court under Article 6(1). Had the Court shared the conclusions that we have reached on this appeal, it would have held that there was no recognised rule of public international law that conferred such immunity. Had it concluded that there was such a rule, I consider that it would have been likely to have held that it would not be proportionate to apply the rule so as to preclude civil remedies sought against individuals.”
4. The House of Lords’ judgment
14. The Kingdom appealed to the House of Lords against the decision of the Court of Appeal in respect of the individual defendants and Jones appealed against the decision of the Court of Appeal in respect of his claim against the Kingdom itself. On 14 June 2006, the House of Lords unanimously allowed the Kingdom’s appeal and dismissed Jones’s appeal.
15. Lord Bingham found there was a “wealth of authority” to show that a State was entitled to claim immunity for its servants or agents and the State’s right to immunity could not be circumvented by suing them instead. In some borderline cases there could be doubt whether the conduct of an individual, although a servant or agent, had a sufficient connection with a State to entitle it to claim immunity for his conduct. But, in his view, these were not borderline cases. Lieutenant-Colonel Abdul-Aziz was sued as a servant or agent of the Kingdom and there was no suggestion that his conduct was not in discharge or purported discharge of his duties. The four defendants in the second case were public officials and the alleged conduct took place in public premises during a process of interrogation. Referring to the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (see paragraph 27 below) Lord Bingham found “international law does not require, as a condition of a State’s entitlement to claim immunity for the conduct of its servant or agent, that latter should have been acting in accordance with his instructions or authority.” The fact that conduct was unlawful or objectionable was not, of itself, a ground for refusing immunity. Lord Bingham could not accept that torture could not be a governmental or official act since, under Article 1 of the Torture Convention, torture had to be inflicted by or with the connivance of a public official or other person acting in an official capacity. There was a substantial body of authority showing that the courts of the United States would not recognise acts performed by individual officials as being carried out in an official capacity for the purposes of immunity if those acts were contrary to a jus cogens prohibition, such as the prohibition on torture. Lord Bingham found it unnecessary to examine those authorities since, as Judges Higgins, Kooijmans and Buergenthal had stated in their concurring opinion in Democratic Republic of the Congo v Belgium (Case concerning Arrest Warrant of 11 April 2000)  ICJ Rep 3 (see paragraph 28 below), this approach had not attracted the “approbation of States generally”.
Support for the view that States no longer enjoyed immunity in civil proceedings in respect of acts contrary to jus cogens could be found in the recommendation of the United Nations Committee Against Torture of 7 July 2005 in respect of Canada, the judgment of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v. Furundzija (1998) 38 ILM 317 and that of the Italian Court of Cassation in Ferrini v. Germany (2004) Cass sez un 5044/04 (see, respectively, paragraphs 25, 29 and 31 below). For Lord Bingham, the first was of slight legal authority, the second was an obiter dictum, the third was not an accurate statement of international law.
16. Instead, for Lord Bingham, it was clear that a jus cogens prohibition did not automatically override all other rules of international law and breach of a jus cogens norm did not suffice to confer jurisdiction on another State’s courts: where State immunity was applicable, the national court had no jurisdiction to exercise. Article 14 of the Torture Convention did not confer universal civil jurisdiction, nor did the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property (see paragraph 26 below) provide any exception from immunity for civil claims based on acts of torture. There was, finally, no evidence that States had recognised an international law obligation to exercise jurisdiction over claims arising from alleged breaches of peremptory norms of international law.
17. For these reasons, Lord Bingham agreed with the Court of Appeal that Jones’s claim against the Kingdom should have been dismissed. In respect of the individual defendants, the Court of Appeal had incorrectly departed from the ruling in Propend. He found:
“[T]here was no principled reason for this departure. A state can only act through servants and agents; their official acts are the acts of the state; and the state’s immunity in respect of them is fundamental to the principle of state immunity. This error had the effect that while the Kingdom was held to be immune, and the Ministry of Interior, as a department of the government, was held to be immune, the Minister of Interior (the fourth defendant in the second action) was not, a very striking anomaly.
This first error led the court into a second: its conclusion [paragraph reference omitted] that a civil claim against an individual torturer did not indirectly implead the state in any more objectionable respect than a criminal prosecution. A state is not criminally responsible in international or English law, and therefore cannot be directly impleaded in criminal proceedings. The prosecution of a servant or agent for an act of torture within article 1 of the Torture Convention is founded on an express exception from the general rule of immunity. It is, however, clear that a civil action against individual torturers based on acts of official torture does indirectly implead the state since their acts are attributable to it. Were these claims against the individual defendants to proceed and be upheld, the interests of the Kingdom would be obviously affected, even though it is not a named party.”
In Lord Bingham’s view these errors came from a misreading of Pinochet (no. 3), in which the distinction between criminal proceedings (which were the subject of universal jurisdiction) and civil proceedings (which were not) was “fundamental” and not one that could be “wished away”. Finally, the Court of Appeal had found that jurisdiction should be governed by “appropriate use or development of discretionary principles”. This was to mistake the nature of State immunity. Where applicable, State immunity was an absolute preliminary bar and a State was either immune from the jurisdiction of a foreign court or it was not, so there was no scope for the exercise of discretion.
18. Lord Hoffmann, concurring in judgment, found there was no automatic conflict between the jus cogens prohibition on torture and the law of State immunity. State immunity was a procedural rule; the Kingdom, in claiming immunity, was not justifying torture but merely objecting to the jurisdiction of the English courts to decide whether it had used torture or not. He quoted with approval the observation of Hazel Fox QC (The Law of State Immunity (2004), p 525) that State immunity did not “contradict a prohibition contained in a jus cogens norm but merely divert[ed] any breach of it to a different method of settlement.” For Lord Hoffmann, a conflict could only arise if the prohibition on torture had generated an ancillary procedural rule which, by way of exception to State immunity, entitled a State to assume civil jurisdiction over other States. There was no support in international law for such a rule.
19. For the individual defendants, Lord Hoffmann found it clear that a State would incur responsibility in international law if one of its officials “under the colour of his authority” tortured a national of another State, even though the acts were unlawful and unauthorised. He found that:
“To hold that for the purposes of state immunity [the official] was not acting in an official capacity would produce an asymmetry between the rules of liability and immunity. Furthermore, in the case of torture, there would be an even more striking asymmetry between the Torture Convention and the rules of immunity if it were to be held that the same act was official for the purposes of the definition of torture but not for the purposes of immunity.”
In respect of Lord Mance’s finding (summarised at paragraph 7 above) that the Torture Convention’s definition of torture did not lend acts of torture any official character, Lord Hoffmann found this to be unsatisfactory:
“The acts of torture are either official acts or they are not. The Torture Convention does not “lend” them an official character; they must be official to come within the Convention in the first place. And if they are official enough to come within the Convention, I cannot see why they are not official enough to attract immunity.”
Lord Hoffmann also rejected the view that it was inappropriate to consider questions of jurisdiction. Immunity was not a self-imposed restriction but was “imposed by international law without any discrimination between one State and another.” He concluded that it would be “invidious in the extreme for the judicial branch of government to have the power to decide that it will allow the investigation of allegations of torture against the officials of one foreign State but not against those of another.”
B. Relevant domestic law
1. The State Immunity Act 1978
“1(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of the Act.
(2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.”
21. The remainder of this Part of the Act, Part I, identifies exceptions from immunity including: submission to the jurisdiction (section 2), commercial transactions and contracts to be performed in the United Kingdom (section 3), contracts of employment (section 4), personal injuries and damage to property (section 5), ownership, possession and use of property (section 6), patents, trade-marks, etc. (section 7), membership of bodies corporate (section 8), arbitrations (section 9), ships used for commercial purposes (section 10) and VAT, customs duties, etc (section 11). The exception in section 5 is confined to proceedings in respect of personal injuries and damage to property “caused by an act or omission in the United Kingdom”.
22. Section 14 provides:
“14 (1) The immunities and privileges conferred by this Part of this Act apply to any foreign or commonwealth State other than the United Kingdom; and references to a State include references to-
(a) the sovereign or other head of that State in his public capacity;
(b) the government of that State;
(c) any department of that government,
but not to any entity (hereinafter referred to as a “separate entity”) which is distinct from the executive organs of the government of the State and capable of suing or being sued.
(2) A separate entity is immune from the jurisdiction of the courts of the United Kingdom if, and only if-
(a) the proceedings relate to anything done by it in the exercise of sovereign authority; and
(b) the circumstances are such that a State ... would have been so immune.”
2. The Civil Procedure Rules
23. Part 6 of the Civil Procedure Rules for England and Wales regulate service of claims outside the jurisdiction. At the material time, under Rules 6.20 and 6.21, to obtain permission to serve out of the jurisdiction a claimant was required to demonstrate that there was a reasonable prospect of success in the claim, to satisfy the court that it was an appropriate case in which discretion should be exercised to permit service and to demonstrate that England and Wales was the appropriate jurisdiction in which to bring the claim. Those criteria are now found in Rule 6.37.
Subject to Rule 6.37, the current Rule 6.36 permits service out of the jurisdiction with the permission of the court where if any of the grounds set out in paragraph 3.1 of Practice Direction B supplementing Part 6 apply. By paragraph 3.1(9)(a) this includes a tort claim where damage was sustained within the jurisdiction.
C. Relevant international texts
1. The United Nations Convention Against Torture
“1. For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.”
Article 2(1) of the Convention requires States to take “effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” Article 4 obliges States to criminalise torture. Article 5 provides:
“1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State considers it appropriate.
2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article.
3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.”
Article 14 provides:
“1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.
2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.”
25. In its conclusions and recommendations of 7 July 2005 in respect of periodic reports submitted by Canada, the Committee against Torture considered it to be a subject of concern that in Canada there was an absence of effective measures to provide civil compensation to victims of torture in all cases. The Committee recommended that Canada “review its position under article 14 of the Convention to ensure the provision of compensation through its civil jurisdiction to all victims of torture”.
2. The 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (“the Convention on Jurisdiction Immunities”)
26. The above Convention has been signed by twenty-eight States and ratified by six. It has not yet come into force since it requires thirty ratifications to do so. The United Kingdom has signed but not ratified and the Kingdom of Saudi Arabia has neither signed nor ratified.
Article 5 provides as a general principle that a State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State. Article 6(1) provides that a State shall give effect to State immunity by refraining from exercising jurisdiction in a proceeding before its courts against another State. By Article 6(2) a proceeding before a court of a State shall be considered to have been instituted against another State if that other State is named as a party to that proceeding or is not named as a party but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.
Part III of the Convention sets out proceedings in which State immunity cannot be invoked. They include commercial transactions; contracts of employment; personal injuries and damage to property; ownership, possession and use of property; intellectual and industrial property; participation in companies or other collective bodies; ships owned or operated by a State; and arbitration agreements.
Article 2(1)(b)(iv) defines “State” as including representatives of the State acting in that capacity.
3. Draft Articles on the Responsibility of States for Internationally Wrongful Acts
Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal law of the State.
Excess of authority or contravention of instructions
The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.”
D. Relevant decisions of international courts
28. The International Court of Justice, in Democratic Republic of the Congo v. Belgium (Case concerning Arrest Warrant of 11 April 2000)  ICJ Rep 3, considered an arrest warrant issued by Belgium in respect of the incumbent minister for foreign affairs of the DRC for grave breaches of the Geneva Conventions and crimes against humanity. It found that the issue and international circulation of the warrant failed to respect the immunity from criminal jurisdiction and the inviolability which the foreign minister enjoyed under international law. The ICJ observed that, in the case, it was concerned only with immunity from criminal jurisdiction and inviolability of an incumbent minister for foreign affairs. The immunity accorded to such an individual protected him or her from any act of authority of another State which would hinder him or her in the performance of his or her duties. No distinction could be drawn between acts performed by a minister for foreign affairs in an “official” capacity, and those claimed to have been performed in a “private capacity” (paragraph 55 of the judgment). The court also noted that:
“rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction. Thus, although various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition, thereby requiring them to extend their criminal jurisdiction, such extension of jurisdiction in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs.”
In their joint separate opinion Judges Higgins, Kooijmans and Buergenthal agreed that an incumbent foreign minister enjoyed immunity. However, they prefaced their finding with the observation that immunity and jurisdiction were two distinct norms of international law but were “inextricably linked”. On jurisdiction, they observed:
“In civil matters we already see the beginnings of a very broad form of extraterritorial jurisdiction. Under the Alien Tort Claims Act, the United States, basing itself on a law of 1789, has asserted a jurisdiction both over human rights violations and over major violations of international law, perpetrated by non-nationals overseas. Such jurisdiction, with the possibility of ordering payment of damages, has been exercised with respect to torture committed in a variety of countries (Paraguay, Chile, Argentina, Guatemala), and with respect to other major human rights violations in yet other countries. While this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally.”
On immunity, they discerned a trend towards the rejection of impunity for serious international crimes, a wider assertion of jurisdiction and the availability of immunity as shield becoming more limited. They added:
“It is now increasingly claimed in the literature (see for example, Andrea Bianchi, ‘Denying State Immunity to Violators of Human Rights’, 46 Austrian Journal of Public and International Law (1994),pp. 227-228) that serious international crimes cannot be regarded as official acts because they are neither normal State functions nor functions that a State alone (in contrast to an individual) can perform (Goff, J. (as he then was) and Lord Wilberforce articulated this test in the case of 1º Congreso del Partido (1978) QB 500 at 528 and (1983) AC 244 at 268, respectively). This view is underscored by the increasing realization that State-related motives are not the proper test for determining what constitutes public state acts. The same view is gradually also finding expression in State practice, as evidenced in judicial decisions and opinions.”
29. The observations of the International Criminal Tribunal for the Former Yugoslavia, in Prosecutor v. Furundzija (1998) 38 ILM 317, on the jus cogens nature of the prohibition on torture are set out in Al-Adsani, cited above, § 30. In respect of individuals, the Tribunal added:
“The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law. If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition. Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful; or the victim could bring a civil suit for damage in a foreign court, which would therefore be asked inter alia to disregard the legal value of the national authorising act. What is even more important is that perpetrators of torture acting upon or benefiting from those national measures may nevertheless be held criminally responsible for torture, whether in a foreign State, or in their own State under a subsequent regime. In short, in spite of possible national authorisation by legislative or judicial bodies to violate the principle banning torture, individuals remain bound to comply with that principle. As the International Military Tribunal at Nuremberg put it: ‘individuals have international duties which transcend the national obligations of obedience imposed by the individual State’.” (footnotes omitted)
E. Relevant decisions of national courts
30. In Bouzari v Islamic Republic of Iran (2004) 71 OR (3d) 675, a claim brought against Iran for damages in respect of torture, the Court of Appeal for Ontario upheld the lower court’s finding that the claim was barred by the Canadian State Immunity Act 1985. Though it declined to reach any conclusion on whether it was appropriate for Ontario to assume jurisdiction for the claim, the Court of Appeal found Iran, as the perpetrator had eliminated itself as a possible forum for the claim and that if Ontario did not take jurisdiction, the claimant would be left without a place to sue. However, on the immunity question the court found that Article 14 of the Torture Convention did not extend to providing the right to a civil remedy against a foreign State for torture committed abroad. The same was true of customary international law: despite the jus cogens nature of the prohibition on torture, no exception to the principle of State immunity existed in respect of torture.
31. By contrast, in Ferrini v. Federal Republic of Germany (2004) Cass sez un 5044/04, the Italian Court of Cassation allowed a civil claim brought against Germany in respect of war crimes committed in 1944-45 and rejected immunity as a bar to the claim. The court found that principles of State immunity had to be interpreted in accordance with the universal values embodied in international crimes and jus cogens norms. Al-Adsani was distinguished on the basis that in Ferrini the crimes were alleged to have taken place on Italian territory (paragraph 10 of the judgment). On 23 December 2008 Germany instituted proceedings before the International Court of Justice alleging that the Ferrini judgment, subsequent decisions upholding it and various enforcement measures against German property in Italy failed to respect Germany’s jurisdictional immunity under international law. The case is still pending.
32. The United States Alien Tort Statute of 1789 established federal jurisdiction over all cases where an alien “sues for a tort only committed in violation of the law of nations or a treaty of the United States”. In a line of cases beginning with Filartiga v. Pena-Irala (1980) 630 F 2d 876 the United States courts have found that this allows federal courts to exercise jurisdiction in respect of claims against foreign individuals such as police officers for torture. Section 2(a)(1) of the Torture Victim Protection Act of 1991 provides that “an individual who, under actual or apparent authority, or color of law, of any foreign nation ... subjects an individual to torture shall, in a civil action, be liable for damages to that individual.” In Kadic v. Karadzic (1996) 70 F 3d 232 it was held that the decision on whether it was appropriate for courts to adjudicate on claims brought under the Act was to be approached on a case-by-case basis and, notwithstanding the foreign policy implications of assuming jurisdiction, such claims were justiciable in United States courts. The United States Federal Courts have refused to accord immunity to State officials in Xuncax v. Gramajo (1995) 886 F Supp 162 (a claim against a Guatemalan senior army officer and minister of defence) and Cabiri v. Assasie-Gyimah (1996) 921 F. Supp. 1189 (S.D.N.Y.) (a Ghanaian security adviser).
In Sosa v. Alvarez-Machain 542 U.S. 692 (2004) the United States Supreme Court, in considering a claim brought inter alia against a Mexican official for abduction, considered that the Alien Tort Statute was a jurisdictional statute which created no new causes of action. It was enacted “on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time”. However, the court endorsed the Filartiga ruling and found that, in the present day, the Statute could apply to “any claim based... on a norm of international character accepted by the civilized world”. That norm had to be defined with a specificity comparable to the violations of international law originally contemplated by the Statute.
The applicants in the present case rely on the concurring opinion of Justice Breyer who considered whether the exercise of jurisdiction under the Statute was consistent with the principle of international comity (see their complaints summarised below). He observed as follows:
“Today international law will sometimes similarly reflect not only substantive agreement as to certain universally condemned behavior but also procedural agreement that universal jurisdiction exists to prosecute a subset of that behavior ... That subset includes torture, genocide, crimes against humanity, and war crimes.
The fact that this procedural consensus exists suggests that recognition of universal jurisdiction in respect to a limited set of norms is consistent with principles of international comity. That is, allowing every nation’s courts to adjudicate foreign conduct involving foreign parties in such cases will not significantly threaten the practical harmony that comity principles seek to protect. That consensus concerns criminal jurisdiction, but consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. ... That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. ... Thus, universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well.” (references omitted)
33. Mr Jones complains that granting immunity to the Kingdom of Saudi Arabia and the individual defendants in his case was a disproportionate violation of his right of access to court as guaranteed by Article 6 of the Convention.
In respect of the Kingdom, he contends that it is now appropriate for the Court to reconsider its ruling in Al-Adsani. The majority in that case erred in interpreting Article 6 § 1 in light of the relevant rules of international law and so to have limited the effect of Article 6 § 1 because of the scope of the international law of immunity. The purpose of such an approach to interpretation of treaties was to clarify the content of a particular provision not to limit its effect, except where the relevant rules possess a higher hierarchical status in international law. The correct approach would have been to determine first, whether international law contained a general rule concerning the scope and effect of State immunity in the context of torture and, second, if such a rule did exist, to determine whether its status in the hierarchy of legal rules is capable of prevailing over or qualifying Article 6 § 1. For the first, he submits that international law no longer recognises sovereign immunity in cases of torture. The House of Lords ruling in Pinochet (no. 3) established that the offence of torture in the Torture Convention was inconsistent with State immunity; though it could only be committed by State officials, torture could not be a sovereign act of the type which could attract immunity. For the second, the prohibition on torture is a peremptory norm of international law and overrides any lesser rules of immunity. Hence, it was not necessary for the majority in Al-Adsani, once it had found torture to be such as norm, then to consider that there was no firm basis for concluding that, as a matter of international law, a State no longer enjoyed immunity from civil suit in the courts of another State where acts of torture were alleged. The jus cogens nature of the prohibition meant that no further justification for allowing it to take effect was required.
In his submission, there are three further reasons why the majority view was flawed. First, the report of the International Law Commission, relied on at paragraphs 62 and 63 of the judgment, left open the question whether international law would tolerate a plea of immunity in respect of a civil action arising out of torture. Second, the judgment erroneously relied on domestic decisions as evidence of international law when in reality national courts applied national legislation on immunity. Third, the majority view in Al-Adsani, failed to take into account the hierarchy of norms in international law. Thus it failed to give priority to the prohibition on torture and the corresponding duty to ensure legal accountability for torture. Finally, contrary to the concurring opinion of Judges Pellonpää and Bratza, the doctrine of forum non conveniens would be able to prevent a large number of cases being brought against foreign States.
For the individual defendant in his case, he adopts the submissions of Mr Mitchell and the other applicants below.
34. Mr Mitchell and the other applicants complain only that the granting of immunity to the individual defendants in their case was a disproportionate violation of their right of access to court. Mr Jones adopts their submissions on this point.
They complain that this arose from the blanket and automatic application of the doctrine of State immunity to their claim. However, they submit that the immunity of individuals accused of torture in civil proceedings is not an immunity recognised as a rule of law and therefore did not pursue a legitimate aim. Even if there were such a rule, it is disproportionate for it to apply in every case. Several distinctions have to be drawn between their case and Al-Adsani. In Al-Adsani the Court was concerned with the immunity of the State ratione personae whereas in the present case the immunity being asserted is an immunity ratione materiae. The former was available only to States themselves, serving heads of State, serving diplomats and diplomatic missions. This immunity has such an important rationale that it is capable of acting as a bar to criminal proceedings in foreign States even where the subject matter is torture or other crimes against humanity. By contrast, immunity ratione materiae exists to prevent governmental acts being called into question in proceedings before a foreign court. It only incidentally covers individuals and is not blanket immunity but extends only to acts deemed to be official or governmental. Domestic courts have always had to determine whether or not a specific act is official or private before assessing whether immunity should be granted. There is no recognised principle of international law granting immunity to individuals accused of torture. The applicants accept that the Convention on Jurisidictional Immunities does provide for immunity in respect of individuals for whom the State is responsible. Nevertheless, the Convention was drafted precisely because of a lack of uniformity among States in the application of State immunity. The lack of State support for the Convention, demonstrated by the ratification of it by so few States, means the Convention provides no support for the view that immunity extends to acts of torture.
The general principle that States are responsible for the acts and omission of its officials cannot be translated into a principle of international law that provides immunity to those officials from civil proceedings in respect of acts of torture. State practice, particularly from the United States and its modern application of the Alien Tort Statute, supports the contrary view. The applicants also rely on the concurring opinion of Justice Breyer in Sosa v. Alvarez-Machain (see paragraph 32 above) where he stated that there was an international consensus that universal criminal jurisdiction exists to allow the prosecution of certain crimes, including torture, and that universal tort jurisdiction was “no more threatening” to international comity because the criminal courts in many countries combined criminal and civil proceedings and allowed the recovery of damages in criminal proceedings by the victim. The applicants consider this to be of particular significance in the present case since at least thirteen High Contracting States to the European Convention on Human Rights allow for this possibility in their national legal systems. Judges Higgins, Kooijmans and Buergenthal in the Arrest Warrant case had noted that the United States practice had not attracted the approbation of States generally. However, it was more important and relevant that in the same opinion they had noted increasing support for the view that serious international crimes could not be regarded as official acts.
The applicants also rely on the Torture Convention. While there is some debate as to whether Article 14 provides for universal civil jurisdiction, it is not necessary to show that it does or that it mandates a State to provide remedies in respect of torture by third countries because Article 14(2) makes it clear that there nothing in the Convention that precludes States from permitting such claims.
Even if, contrary to their submissions, there were a principle of international law that recognised the granting of immunity to individuals in civil proceedings, the blanket application of that immunity would be a disproportionate interference with Article 6 § 1. Immunity ratione materiae has far less status than the immunity ratione personae at issue in Al-Adsani; claims against individuals did not conflict with the principle of immunity from execution (the concern of Judges Pellonpää and Bratza in that case); and sufficient control mechanisms were available to the domestic courts for the regulation of such claims. They rely on the factors and limits of jurisdiction set out by Lord Mance in his judgment. When it was possible to proceed on the basis of the nuanced approach to jurisdiction that he had taken, alternative approaches that adopted an absolute and blanket prohibition were inherently disproportionate. This was especially so when there was no other realistic prospect for them to obtain redress.
QUESTIONS TO THE PARTIES
2. Did granting immunity to the individual defendants in each case amount to a disproportionate interference with the applicants’ right of access to court under Article 6 of the Convention? The parties are invited to provided evidence of the practice of other Contracting States and whether they allow civil proceedings to be brought against officials of another State and/or for compensation to be awarded to victims in criminal proceedings brought against those officials (see, for example, Association SOS Attentats and de Boery v. France [GC], (dec.), § 9, no. 76642/01, ECHR 2006 ...)