England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Queens Bench Divison,
High Court of Justice (Master Whitaker)
Claim HQ 02X01805

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th October 2004

Lord Justice Mance:

INTRODUCTION

1. These appeals concern two claims with at their core allegations of systematic torture of the claimants while in official custody in Saudi Arabia. The first claim (No. HQ020X01805) is made by Mr Ronald Grant Jones against “The Ministry of the Interior Al-Mamlaka Al-Arabiya as Saudiya (The Kingdom of Saudi Arabia)” as first defendant and against Lieutenant Colonel Abdul Aziz, described as “a servant or agent” of The Kingdom, as second defendant. It is common ground that the first defendant is a department of and to be equated with The Kingdom of Saudi Arabia (which I will call “The Kingdom”). The claim against both defendants is for “damages including aggravated and exemplary damages for assault and battery, trespass to the person, torture and unlawful imprisonment”. But its central element for present purposes consists in allegations of systematic torture during a period of 67 days' imprisonment in solitary confinement between 16^th March to 21^st May 2001. This is said to have occurred after the claimant, Mr Jones, was mildly injured in a bomb blast outside a Riyadh book store on 15^th March 2001 and hospitalised for a day. Mr Jones alleges that, following his release and return to England, he has suffered damage in England, in the form of post traumatic stress disorder and depression necessitating treatment, and is unable to work.
2. The second claim (No. HQ04X00431) is made by three claimants, Sandy Mitchell and Leslie Walker (both Britons) and William Sampson (a Canadian citizen), against four Saudi Arabian individuals, Ibrahim Al-Dali and Khalid Al-Saleh, Colonel Mohamed al Said and Prince Naif. The claim is expressed to be for assault and also (in the case of the third and fourth named defendants) negligence. These defendants' official positions are described as follows in the draft particulars of claim:

“5. At all material times the First Defendant was a captain in the Saudi Arabian police force. He is now a Major.

6. At all material times the Second Defendant was a lieutenant in the Saudi Arabian police force.

7. At all material times the Third Defendant was a Colonel in the Ministry of Interior and Deputy Governor of the Al Ha'ir prison and accordingly was responsible for the acts and omissions of the First and Second Defendant in respect of the interrogation of detainees within the criminal justice system including the claimants.

8. At all material times the Fourth Defendant was head of the Ministry of the Interior with responsibility for the matters of domestic security and domestic and foreign intelligence including the police service and the prison service.”

3. All three claimants in this claim allege that they were the victims of broadly similar patterns of systematic torture in prison. They allege that the torture was inflicted by the first and second defendants to elicit confessions which were eventually made, but which were, it is said, entirely false (though they led, it appears, at one point to sentences of death being passed on Messrs. Mitchell and Sampson). The first and second claimants allege that, during this period, they had direct contact with the third defendant. The first claimant says that the third defendant said that there was “nothing he could do to stop” the torture, but that he would ensure that medical attention was given. The second claimant says that, following arguments on occasions when the third defendant visited him, he used within two days to be taken to an interrogation unit and beaten and kicked to punish him for the views he had expressed to the third defendant (the intended inference being, presumably, that this treatment took place on the third defendant's instructions). As regards the fourth defendant, all three claimants say simply:

“In so far as may be necessary to demonstrate the Fourth Defendant's knowledge of the matters set out above [i.e. the alleged systematic torture] the Claimants will rely upon similar fact evidence of the systematic use of torture by the bodies over which he had command and control.”

All three claimants allege that, following their release and return to England, they have suffered ongoing psychological damage in England as a result of being tortured.

4. Attempts to serve Mr Jones's claim (No. HQ020X01805) on The Kingdom and on the second defendant, Lieutenant Colonel Aziz, led to acknowledgement by The Kingdom's then solicitors, Messrs Pinsent, on 29^th January 2003 that service may have been effected on The Kingdom and (in any event) an acceptance of such service. But Messrs Pinsent made clear that they had no authority to accept service on behalf of the second defendant. They said:

“The position regarding the Second Defendant is, as we understand it, that the papers were returned as there was insufficient information to enable the Second Defendant to be identified.”

5. On 12^th February 2003 The Kingdom applied to set aside service of Mr Jones's claim on the grounds (a) that it, and its servants and agents, are entitled to immunity under s.1 of the State Immunity Act 1978 and/or (b) (without prejudice thereto) that the English court has no jurisdiction and/or should not exercise any which it has. The draft order which was attached invited the court to deal with ground (a) first.
6. In a letter dated 26^th March 2003 from Human Rights Watch, the Minister of the Interior, Prince Naif, is recorded as having told a member of a Human Rights Watch delegation visiting Saudi Arabia in January/February 2003 “that an investigator had exceeded his limits and may have been a little harsh in his treatment of Mr Jones”, while declining to provide the investigator's name or details of his punishment. In this situation, application was on 14^th May 2003 made on behalf of Mr Jones for an order permitting service on the second defendant by an alternative method, namely service on Prince Naif.
7. The Kingdom's and Mr Jones's applications came before Master Whitaker on 30^th July 2003, when he allowed The Kingdom's application and dismissed the claim against it and refused Mr Jones's application to serve the second defendant by an alternative method. The master considered that The Kingdom was entitled to immunity as a state in the light of the decision of the European Court of Human Rights in Al-Adsani v. United Kingdom (2002) 34 ECHR 11 at p.273. He also considered that:

“the immunity afforded to the first defendant under the 1978 Act clearly extends to the second defendant as part of the Saudi Arabian State under Section 14(1) of the 1978 Act”.

He cited in support Jaffe v. Miller (1993) 95 ILR 446 (Court of Appeal of Ontario) and Propend Finance Pty Ltd v. Sing [1997] 111 ILR 611 (CA). He considered that he was bound by s.1(2) of the 1978 Act to take note of such immunity of his own motion. He gave permission to appeal to this court.

8. The three claimants in claim No. HQ04X00431 also sought permission to serve the four defendants to that claim out of the jurisdiction in Saudi Arabia. The application came before Master Whitaker on 18^th February 2004, when he acknowledged that he had the benefit of much fuller argument than on the applications relating to Mr Jones's claim. He said that:

“…. had the matter come before me as a free-standing application, without my having decided the Jones case …., I might have been tempted to give permission to serve out of the jurisdiction on the basis that it seems to me that, having heard the arguments, that there is a case to be answered by these defendants as to whether there is jurisdiction in these courts over them”.

However, given that an appeal from his decision in relation to Mr Jones's claim was already fixed for hearing in the Court of Appeal in May 2004, Master Whitaker decided to refuse permission to serve out, taking the same view as he had before, namely that officers of The Kingdom were entitled to the same immunity as the state. Again, he gave permission to appeal.

9. The appeals now before us in relation to these two claims raise two central points. First, is The Kingdom entitled to immunity in respect of Mr Jones's claim, which it accepts has been served on it? Second, is The Kingdom entitled to claim immunity on behalf of its officials in respect of the claims made against those officials in both Mr Jones's and Messrs Mitchell's, Sampson's and Walker's claims? I put the second question in that form, because it is common ground that any claim to immunity in respect of the claims against the officials is a claim which belongs to The Kingdom and which The Kingdom would be entitled to waive, if it so wished. Since neither claim has as yet been served on any official, it might be argued that it was inappropriate or at least unnecessary for the master to address the question of immunity when he did. However, it is clear enough, from The Kingdom's application in respect of Mr Jones's claim and from its attitude through counsel before us, that The Kingdom firmly intends to assert any immunity that it can on behalf of its officials. The master to that extent based himself on a realistic assumption. The potential problem which I identify about his approach is a different one, and relates to the fact that he focussed solely on the issue of state immunity. I shall return to this aspect.

MR JONES'S CLAIM AGAINST THE KINGDOM

10. In Rahimtoola v. Nizam of Hyderabad [1958] AC 379 (overruling [1957] Ch 157) Lord Reid described the basis of state immunity in words often quoted subsequently:

"The principle of sovereign immunity is not founded on any technical rules of law: it is founded on broad considerations of public policy, international law and comity."

Two overlapping considerations feature in the authorities: that the courts of one state should not permit a claim that would implead a foreign sovereign state before them; and that they should respect, and not interfere in, a foreign sovereign state's conduct of its affairs, particularly within its territorial jurisdiction. It follows from the first consideration that claims to state immunity should be resolved at an early stage in proceedings. It should, however, be noted that the second consideration is also at the root of different principles, which generally operate at a later stage in proceedings, and fall under the headings of "act of state" and 'justiciability". One such principle requires recognition of a foreign state's dealings with private proprietary rights within its jurisdiction: Luther v. Sagor [1921] 3 KB 532; Princess Paley Olga v. Weisz [1929] 1 KB 718; Dicey & Morris (13th Ed.) Chap. 25. The other, associated principle is non-justiciability, which was considered in Buttes Gas and Oil Co. v. Hammer [1988] AC 888, 932E-F per Lord Wilberforce and Kuwait Airways Corpn v. Iraqi Airways Co. (Nos. 3 and 4) [2002] UKHL 19; [2002] 2 AC 883, paras. 24-26, 113 and 135-6 per Lords Nicholls, Steyn and Hope. But the first principle is subject to an exception where public policy so requires: cf both Oppenheimer v. Cattermole [1976] AC 249, where the House concluded that a Nazi law discriminating against Jews constituted so grave an infringement of human rights and of "clearly established rules of international law" that it should be denied recognition, and Kuwait Airways itself, where this exception was applied to refuse recognition to an Iraqi law which, in flagrant breach of international law, purported to legitimise the confiscation of the Kuwait Airways civil aviation fleet, by that stage forcibly removed to Iraq. The second principle, non-justiciability, is, in English law (United States jurisprudence may have different nuances), applicable where there are "no judicial or manageable standards by which to judge [the] issues" and "the court would be in a judicial no-man's land" (per Lord Wilberforce in Buttes Gas at p.938), and does not "mean that the judiciary must shut their eyes to a breach of an established principle of international law committed by one state against another when the breach is plain..." (cf per Lord Nicholls in Kuwait Airways at p.1081).

11. Part I of the State Immunity Act 1978 defines, for most purposes, the current English position regarding state immunity in civil proceedings. By s.1:

“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.”

The first part of the Act goes on to identify exceptions from immunity which fall under the heads of submission to the jurisdiction (s.2), commercial transactions and contracts to be performed in the United Kingdom (s.3), contracts of employment (s.4), personal injuries and damage to property (s.5), ownership, possession and use of property (s.6), patents, trade-marks, etc. (s.7), membership of bodies corporate (s.8), arbitrations (s.9), ships used for commercial purposes (s.10) and VAT, customs duties, etc (s.11). The exception in s.5 is confined to proceedings in respect of personal injuries and damage to property “caused by an act or omission in the United Kingdom” and is therefore of no assistance to Mr Jones or any of the claimants in the claims before us.

12. Under the heading “Supplementary Provisions”, s.14 of the 1978 Act 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.”

13. In Al-Adsani v. Government of Kuwait (No. 2) (1996) 107 ILR 536, the claimant alleged that he had suffered torture in a security prison in Kuwait, and obtained leave to serve out of the jurisdiction the Government of Kuwait (and three individuals, one of whom at least was served: see p.539) on the ground that he had in consequence suffered psychological damage after returning to and while in England. The Government of Kuwait applied to set aside the service on it, and for a declaration that it had immunity under s.1(1) of the 1978 Act. The Court of Appeal granted its application, holding that the Act was a comprehensive code, and that, although international law prohibited torture, no express or implied exception to immunity existed in cases of torture. Mr Al-Adsani took the issue to the European Court of Human Rights, claiming that such immunity infringed his right of access to the English courts under article 6 of the European Convention on Human Rights. The European Court held by 9 to 8 that there had been no such infringement. It is important to note that both the majority and the minority considered that article 6 was prima facie engaged as a result of “the procedural bar on the national courts' power to determine the right” claimed (paragraphs 46-49). So it was for the United Kingdom government to show that the restriction on access to its courts “pursued a legitimate aim and was proportionate” (paragraph 50). But the majority considered that:

“the grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another's sovereignty” (paragraph 54)

and that, in consequence

“measures taken …. which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6(1). Just as the right of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity.” (paragraph 56).

14. The majority did not regard the decisions in Prosecutor v. Furundzija (Case IT095017/1-T; 10 December 1998) and R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet Ugarte (No. 1) [2000] 1 AC 61 and (No. 3) [2000] 1 AC 147 on “the criminal liability of an individual for alleged acts of torture” or any other international instrument, judicial authority or material as providing

“any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another country where acts of torture are alleged”.

They pointed out that

“none of the primary international instruments referred to [viz Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights and Articles 2 and 4 of the United Nations Convention against Torture] relates to civil proceedings or to state immunity” (paragraph 61).

They concluded by saying that

“The Court, while noting the growing recognition of the overriding importance of the prohibition of torture, does not accordingly find it established that there is yet an acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for alleged torture committed outside the forum State” (paragraph 66).

The reasoning in Al-Adsani was applied by analogy in Bouzari v. Islamic Republic of Iran (Swinton J., 1 May 2002 and Court of Appeal for Ontario, 30 June 2004) to article 14(1) of the International Covenant on Civil and Political Rights which is in, for present purposes, similar terms to article 6(1) of European Convention on Human Rights.

15. Mr Crystal QC for Mr Jones (supported by The Redress Trust in its written submissions before us) submits that we should not follow the majority in Al-Adsani. He points out that we are under s.2 of the Human Rights Act bound to “take account” of judgments of the European Court of Human Rights, but not bound by them. However, the European Court of Human Rights was considering a judgment of the English Court of Appeal which is itself binding on us. The European Court concluded that this judgment was in conformity with international legal principles of immunity and as a result in accordance with the Convention. We would, if we were to accept Mr Crystal's submission, be departing without justification both from a previous decision of this court and from strongly expressed reasoning of a majority of the European Court of Human Rights regarding international legal principles of state immunity.
16. Mr Crystal submitted, and I accept, that international law is in the course of continuing development. He sought in this light to obtain some assistance from the dicta, cited later in this judgment, by Judges Higgins, Kooijmans and Buergenthal in The Congo v. Belgium (Case regarding the arrest warrant of 11 April 2000) (ICJ; 14 February 2002). These dicta are of considerable interest on the subject of a claim for immunity in respect of the acts or omissions of individual officials. But neither they nor any other authority which Mr Crystal was able to cite assist his case regarding a state's claim to its own immunity.
17. At the heart of Mr Crystal's submissions was the proposition (which was common ground before us) that the prohibition on systematic torture in international law constitutes jus cogens, a “peremptory norm”. The majority in the European Court in Al-Adsani referred to the House of Lords' decision in R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet (No. 3) [2000] 1 AC 147 as establishing the same proposition (paragraph 34), and themselves endorsed the proposition with reference to article 3 of the Human Rights Convention (paragraphs 59 and 61). Mr Crystal submitted that there can be no derogation from such a norm, and that immunity would constitute a derogation. The majority in Al-Adsani noted that “the argument was increasingly put forward” that there should be no civil immunity in respect of torture. But they concluded that the jus cogens nature of the prohibition on torture did not mean either necessarily or (as yet) in general practice that a State should no longer be treated as enjoying immunity from civil proceedings in the courts of another state to that in which the alleged torture occurred (paragraphs 61-62). This reasoning in my view remains valid. The recognition under general principles of international law of civil immunity on the part of a State from civil suit in a state other than that of the alleged torture does not sanction the torture or qualify the prohibition upon it. It qualifies the jurisdictions in which and means by which the peremptory norm may be enforced. There is a distinction between principles of substantive international law and other issues, such as jurisdiction and immunity in civil proceedings in any particular jurisdiction: see Hazel Fox QC on The Law of State Immunity (OUP, 2002) p.525.
18. Reliance was also placed by Mr Crystal on article 14(1) of the Torture Convention, which provides:

“14(1) Each state 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.”

Article 14(1) does not state from whom redress must be available, and has no explicit jurisdictional ambit. Its focus is on redress for the “victim” of an “act of torture”. That must at least mean redress from the offending “public official or other persons acting in an official capacity” (cf article 1(1)), who cannot invoke superior orders as a justification (cf article 2(3)). I am ready to assume that it also requires redress from the state whose public official or other person acting in an official capacity committed the act of torture. But the article does not state expressly whether there must be any or what connection between the state which must ensure such redress and either the act or the victim. On the other hand, is seems unlikely that it can have been intended that every state should ensure that its legal system provided redress for every act of torture by the public officials (or by other persons acting in an official capacity) of other states, wherever committed and whoever the victim. I note that when ratifying the Torture Convention the United States for its part expressed its understanding to be that article 14 only required a state to provide a private right of action for damages for acts of torture committed in terrritory under such state's jurisdiction. (Quaere, however, whether this formulation contemplated that state A would have to provide such redress for torture by state B's officials in state A, but not for torture by state A's officials in state B.) A full and helpful discussion of the proper interpretation of article 14 is contained in Andrew Byrnes's chapter, Civil Remedies for Torture committed Abroad: An Obligation under the Convention against Torture, in Torture as Tort (Hart Publishing, Oxford, 2001), where the most plausible interpretation is ultimately considered to be that a territorial limitation was omitted by inadvertence.

19. I, for my part, find it instructive to start by contrasting the absence of specific provision regarding civil jurisdiction under article 14 with the specific provisions regarding criminality and criminal jurisdiction in articles 4 and 5, which read:

“4.1 Each State Party shall ensure that all acts of torture are offences under its criminal law. ….

5.1 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 1 of that article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.”

20. One possible interpretation of article 14(1) is certainly that it is only concerned to ensure a right of redress in the state where an act of torture is committed. The civil redress required under article 14(1) would on that basis mirror the criminal jurisdiction required to be introduced under article 5(1). But, since torture is by definition an act inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in a public capacity, it would seem curious if each state were not required to ensure a civil right of redress in respect of torture committed abroad by one of its officers - paralleling the criminal jurisdiction required under article 5(1)(b) in each state in respect of an alleged offender who is a national of that state. Suppose (as would be likely) that the official committing the torture had returned home, one would expect it to be the duty of the state of which he was a national to ensure that civil redress could be obtained against him as well as, I would think, against the state itself. Neither of these approaches would however lead to the application of article 14(1) in relation to Mr Jones's claim for acts of torture committed in Saudi Arabia and by a Saudi Arabian official.
21. Under article 5(1)(c) a state is only required to establish criminal jurisdiction on the basis that a victim of torture is one of its nationals, if it “considers it appropriate”. This reinforces the improbability of a construction of article 14(1) which would require a state to establish civil jurisdiction in such a case. Moreover, article 14(2) in preserving any right to redress “which may exist under national law” clearly envisages that there may be existing national legal provisions for redress against torture which go wider than the right required to be available under article 14(1). Article 14(2) may well have been framed having in mind national legislation such as the Alien Tort Statute of 1789 and the United States jurisprudence, to which I come later in this judgment, which had (even prior to Torture Victim Protection Act of 1992 of the United States) shown the possibility of national courts adjudicating upon claims against foreign state officials for foreign torture. This is, I note, also the view of Byrnes at p.453. For the present, I need only say that all these considerations lead me to conclude that article 14(1) is dealing with (no more than) a right of redress in the legal system of the state (state A) by whose official (or other person acting in a public capacity) the alleged act of torture was committed (whether such act was committed at home in state A or abroad). State A is, in short, the responsible state, and it must ensure proper civil redress. Article 14(1) is not designed to require every other state (state B) to provide redress in its civil legal system for acts of torture committed in state A, although under article 14(2) it remains permissible for state B to provide redress in state B for acts of torture committed (either in state A or elsewhere) by officials, etc. of state A. This conclusion is consistent with that reached by the Canadian courts in Bouzari (paragraphs 44-54 and 72-81, although the tenor of Professor Greenwood's evidence accepted by both courts in that case appears to have been to concentrate upon article 14(1) and quite possibly to limit it to the first interpretation mentioned in paragraph 20 above.
22. Mr Crystal further submitted that a distinction should be drawn between (i) acts or omissions which could be said to be part of the functions of a state and (ii) other acts or omissions (of which systematic torture was, he suggested, an example) which could not possibly be said to be a state function. In his submission, the reasoning of a number of the members of the House of Lords in Pinochet Nos 1 and 3 leads to a conclusion that the latter type of acts or omission cannot give rise to any claim to immunity. In this connection he invoked a number of authorities which I shall have to examine closely when considering The Kingdom's submission that it can claim immunity on behalf of its officers. But the short answer to Mr Crystal's submission in the context of Mr Jones's claim against The Kingdom is that it is again inconsistent with the decision both of this court and of the European court in Al-Adsani.
23. There are important distinctions between the considerations governing (a) a claim to immunity by a state in respect of itself and its serving head of state and diplomats and (b) a state's claim for immunity in respect of its ordinary officials or agents generally (including former heads of state and former diplomats). At common law, the state itself and its serving Heads of State, Heads of Diplomatic Missions and their families and servants enjoyed, because of their “very special status”, personal immunity (immunity ratione personae) in respect of any acts, whatever their character: see e.g. Pinochet (No. 3) [2000]1 AC 147, per Lord Hope at p.247, per Lord Millett at pp.268-9 and per Lord Phillips at p.285; Brownlie, Principles of Public International Law, 6^th Ed. p.326 and the European Court of Human Rights in the majority's judgment in Al-Adsani at paragraph 63. It is that immunity which has, in the case of the state, been restricted first by common law developments: cf Trendtex Trading Corpn. v. Central Bank of Nigeria [1977] QB 529 (where Lord Denning was able to pursue thoughts which had been met coldly by other members of the House when first ventilated in his speech in Rahimtoola v. Nizam of Hyderabad [1958] AC 379, overruling [1957] Ch 157) and I Congreso del Partido, and now by statute in the form of the 1978 Act. Even in relation to immunity rationae personae, there has therefore been what Hazel Fox QC describes in a chapter in International Law (OUP, 2003, edited by Malcolm Evans) as “a change in focus ….. from status to function”. But personal immunity of this nature has at common law always been “narrowly available”:

“It is not available to serving heads of government who are not also heads of state, military commanders and those in charge of the security forces. It would have been available to Hitler but not to Mussolini or Tojo. It is reflected in English law by section 20(1) of the State Immunity Act 1978, enacting customary international law and the Vienna Convention on Diplomatic Relations (1961)”

See Pinochet (No. 3) per Lord Millett at p. 268; and see also per Lord Phillips at p.280.

24. Thus in the Pinochet case itself, Senator Pinochet as a former Head of State could claim no more than subject-matter immunity (immunity ratione materiae). Bearing in mind the difference between (a) the personal immunity available to a state and its serving head of state and diplomatic representation and (b) the subject-matter immunity which is otherwise available to a state to assert in respect of its officials, it does not in my view assist Mr Crystal to try to qualify a state's clear express immunity under s.1(1) of the 1978 Act by reference to principles that may restrict immunity in relation to officials who are not expressly mentioned in the 1978 Act at all.
25. Mr Crystal also submitted that the majority of the European Court of Human Rights in Al-Adsani misapplied the principles laid down in the Vienna Convention on the Law of Treaties of 23 May 1969, when interpreting article 6(1) of the Convention on Human Rights. Under article 31(3)(c), the third established principle of interpretation requires account to be taken of “any relevant rules of international law applicable in the relations between the parties”. Mr Crystal cites the commentary by Alexander Orakhelashvili in his article Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights EJIL (2003) Vol. 14, 529, 537, where the writer observes that the normal use of this principle is to clarify a provision, not to defer it to another, unless that other possesses “a higher hierarchical status”. That challenges the majority's view of the right of access conferred by article 6, in a way which would mean that article 6 was not merely engaged, but was effectively dominant. Article 6 is the means by which a claimant may assert a claim for breach of a peremptory rule of international law. It is not itself peremptory or unqualified. The contrary proposition comes close to suggesting that international law requires all states to provide civil remedies in their own jurisdiction for all acts of torture committed in and by other states. I have indicated why I find no support for that proposition in article 14 of the Torture Convention, and I do not accept it.
26. Mr Crystal also submits, if necessary, that we should declare s.1(1) of the State Immunity Act 1978 to be incompatible in its width with the Human Rights Convention. In the light of what I have said already, this submission is unsustainable. The European Court has recently held the opposite, and I am unable to detect any change in the international or national scene which could alter the compelling relevance of its decision.
27. It follows that I consider that Master Whitaker was right to allow The Kingdom's application in respect of Mr Jones's claim against The Kingdom and to dismiss that claim.

THE CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS

28. I turn to the claims against the individual officers. In the claim brought by Mr Jones, the individual defendant, Lieutenant Colonel Abdul Aziz, is described expressly as “a servant or agent” of the first defendant, The Kingdom of Saudi Arabia, and the claim is based on allegations of false imprisonment and systematic abuse and torture “by the First Defendant, its servants or agents and the Second Defendant”. The claims by Messrs. Mitchell, Walker and Sampson are directed at the individual Saudi Arabian defendants as described in paragraph 2 above, without any suggestion that they were acting as servants or agents. In view of the way in which the submissions were developed before us, I think it correct in the context of Mr Jones's claim against Lieutenant Colonel Aziz to ignore his denomination as a “servant or agent”.
29. All four claimants in both claims contend that the English courts have power to order service out of the jurisdiction under CPR 6.20(8), on the ground that their claims are made in tort, involving damage (in the form of psychological harm) within the jurisdiction within the meaning of that rule. In Al-Adsani v. Government of Kuwait (No. 1) 100 ILR 465 the claimant obtained permission to serve out under the predecessor to this rule (which the claimants will presumably submit was to materially similar effect to CPR6.20(8)), on the basis that it was sufficient to show a good arguable case that “some significant damage” had been suffered within the jurisdiction. Master Whitaker regarded state immunity as a conclusive objection to the grant of permission to serve the individual defendants out of the jurisdiction, and did not consider any other issues which might arise relating to jurisdiction. In the claim brought by Mr Jones, he was asked by The Kingdom to address the issue of state immunity as a prior objection (cf paragraph 5 above), and in the other claim the master took the same objection of his own motion pursuant to s.1(2) of the 1978 Act (cf paragraph 8 above). Before us neither Mr Crystal representing Mr Jones nor Mr Fitzgerald QC representing Messrs. Mitchell, Sampson and Walker raised any objection to the master proceeding in this way. In my view, however, there is a potential interplay between issues of state immunity and issues of jurisdiction generally which raises questions about the appropriateness of such a course.
30. At the stage of an application for permission to serve proceedings out of the jurisdiction, the issue is whether the claimants can show a good arguable case – that is to say (a) on the merits and (b) for regarding the claim as one which can and should appropriately be tried in this jurisdiction irrespective of any claim to state immunity, as well as (c) for saying that there is no state immunity. In Professor Brownlie QC's work, Principles of Public International Law, 6^th Ed. p.326, domestic jurisdictional issues appear first in the list to be addressed in cases of the present kind. To consider jurisdiction at the outset (or in conjunction with) issues of state immunity is not inconsistent with the statement in paragraph 63 of the International Court of Justice's Advisory Opinion of 29^th April 1999 relating to the immunity from legal process of a special rapporteur of the Commission of Human Rights (Dato Param Cumaraswamy) that “questions of immunity are …. preliminary issues which must be expeditiously decided in limine litis”. In a case in which it is sought to advance a limited theory of state immunity, a firm understanding of the extent or limits of English domestic jurisdiction may, it seems to me, be a useful starting point. Further, if (particularly in the light of article 6 of the European Convention on Human Rights) considerations of proportionality have any relevance to a state's ability to claim state immunity in respect of a claim against one of its state officials, then the nature and extent of any jurisdiction that may exist are likely to be directly relevant factors.

Propend Finance Pty Ltd v. Sing

31. The starting point in English law is Part I of the State Immunity Act 1978. I have concluded (above) that The Kingdom of Saudi Arabia is under s.1(1) immune in respect of Mr Jones's claim, since none of the exceptions to immunity provided in the Act applies. But the Act makes no express reference to the position of individual officials of the state. Under s.14(1) references to a state include references to the sovereign or other head of that state in his public capacity, the government of that state and any department. S.14(1) on its face reflects the personal immunity that those identified would, apart from it, enjoy under both international and common law. If, which I doubt, it goes in its express terms any further, then they must, on any view, be read subject to qualification to reflect the distinction between personal and subject-matter immunity. S.14(2) caters for any separate entity distinct from the executive organs of the government of the state and capable of suing or being sued, and it does introduce an express qualification, whereby immunity exists if and only if the proceedings relate to anything done in the exercise of public authority. This qualification is apt to cater for the limitations of subject-matter or functional immunity (cf paragraphs 23-24 above). In Propend the court held that the effect of article 14(1) was to give state officials protection “under the same cloak” as the state itself:

“The protection afforded by the Act of 1978 to States would be undermined if employees, officers (or, as one authority puts it, “functionaries”) could be sued as individuals for matters of State conduct in respect of which the State they were serving had immunity. Section 14(1) must be read as affording to individual employees or officers of a foreign State protection under the same cloak as protects the State itself.”

The court in Propend did not consider that article 14(2) could, in the light of its history and background, have any relevance to individual functionaries: see p. 670. Nor did the court distinguish, or have to, between the scope of personal and subject-matter immunity. The Kingdom submits that the principle in Propend covers the present case, but asks us, if necessary, to review the application of article 14(2) and to consider the common law position prior to and apart from the 1978 Act. The claimants' primary response is that neither the principle in Propend nor any other principle of state immunity can or should protect state officials in respect of allegations of systematic torture. It is common ground, as I have indicated, that systematic torture would, if established, constitute a high international crime contrary to jus cogens - or peremptory international law. Neither Propend nor any authority referred to in it was concerned with allegations of such fundamental wrongdoing.

32. In Propend the Court of Appeal cited three authorities in support of this conclusion: the Church of Scientology case (1978) 65 ILR 193 (German Supreme Court – “BGH”), Jaffe v. Miller (1993) ILR 446 and Herbage v. Meese (1990) 747 F Supp 60. In the Church of Scientology case, the German Supreme Court observed that the claim to immunity by the defendant (the “Head of New Scotland Yard”) was not “derived from his person”, but was based on the fact that the act on which the claimant sued was

“a sovereign act of State which can only be attributed to the British State and not to him or any other official acting on behalf of that State, because the State is always considered the actor when one of its functionaries performs acts which are incumbent on it”.

The reference to “acts which are incumbent on it” underlines the difference between the circumstances with which the BGH was concerned and the present case.

33. The BGH went on to recognise the now traditional distinction between sovereign acts (acts iure imperii) and other acts entirely unrelated to the official activities of the agency concerned or the task entrusted to it (cf pp. 197-198). Its actual decision was that the acts of the defendant, as the expressly appointed agent of the United Kingdom for the purpose of performance of a treaty between the United Kingdom and Germany, “cannot be attributed as private activities to the person authorised to perform them in any given case” and that

“any attempt to subject State conduct to German jurisdiction by targeting the foreign agent performing the act would undermine the absolute immunity of sovereign States in respect of sovereign activity”.

34. Herbage v. Meese is to similar effect to Propend under the provisions of the Foreign Sovereign Immunities Act of 1976 (“FSIA”) of the United States. Although the FSIA does not “discuss the liability or role of natural persons, whether governmental officials or private persons”, the sovereign immunity which it grants was held to extend to such persons: “This is a logical approach, for a government does not act but through its agents” (p.107). The court went on to state that “the standard for determining whether immunity is warranted does not depend on the identity of the person or entity so much as the nature of the act for which the person or entity is claiming immunity”. The claim was against British police officers and prosecuting counsel for knowingly and falsely stating, in the context of extradition proceedings against the claimant, that the United States had made a valid “provisional request” for his extradition. The Supreme Court stated that, since the activity complained of was governmental in nature and performed by officials of that government, the Court had no jurisdiction “over a foreign sovereign” and that the FSIA was “absolute in this regard, no matter how heinous the alleged illegalities”.
35. Jaffe v. Miller in the Ontario Court of Appeal followed Herbage v. Meese in holding that it is the character of the act, rather than its purpose, that determines a claim for immunity in respect of a state official, although the court observed (with reference to Lord Wilberforce's words in I Congreso del Partido [1983] 1 AC 244) that the purpose may throw some light on the nature of what is done and that a contextual approach is appropriate. The claim was against Florida state officials for alleged conspiracy maliciously to prosecute and to kidnap and detain the claimant, in order to blackmail him into giving up a civil suit. The Court of Appeal gave as the rationale of its decision that, if immunity was conferred on the government department of a foreign state but denied to “functionaries, who in the course of their duties performed the acts, [that] would render the State Immunity Act [which was in materially similar terms to the United Kingdom's 1978 Act] ineffective”, since the claimant would only have to sue the functionary and

“In the event that the plaintiff recovered judgment, the foreign state would have to respond to it by indemnifying its functionaries, thus through this indirect route, losing the immunity conferred on it by the Act. Counsel submitted that when functionaries are acting within the scope of their official duties, as in the present case, they come within the definition of “foreign state”.

However, the claimants submitted that, although the defendants were acting within the scope of their authority so as to make the State vicariously liable, their acts were so egregious that they could not shelter under the State's immunity. The Court said to this:

“….. the use of adjectives cannot deprive them of their status as functionaries of the foreign sovereign. The illegal and malicious nature of the acts alleged do not of themselves move the actions outside the scope of the official duties of the responding defendants. Further … the appellants' statement of claim contains no express allegation that any of the respondents were acting outside of their official capacities.”

There is in my view a possible difficulty in reconciling the Court's previously expressed rationale for immunity (particularly the consideration that “the foreign state would have to respond ….. by indemnifying its functionaries”) with the incongruity of postulating any requirement (legal, moral or practical) to indemnify state functionaries for “illegal or malicious” conduct. Nor was the Court addressing a context in which the alleged wrongful conduct consisted in systematic torture contrary to international law, against which no state could be required to provide an indemnity.

36. Prior to the State Immunity Act 1978 there was common law authority recognising immunity in respect of state officials or agents in the context of the general prohibition against impleading a foreign sovereign state. Mr Lloyd Jones QC for the Secretary of State for Constitutional Affairs (as intervener pursuant to permission of this court) cited Twycross v.Dreyfus (1877) 5 Ch D 605, Rahimtoola v. Nizam of Hyderabad (above) and Zoernsch v. Waldock [1964] 1 WLR 675. The first case may not be concerned with state immunity at all (on the basis that the only possible claim to the funds was against the state, which had not been joined, rather than against its agent who was sued). The second related to competing claims by the Nizam and the state of Pakistan to monies held in the name of the Pakistan High Commissioner in a National Westminster Bank account. The House of Lords considered that it would implead the state of Pakistan if the action were permitted to proceed against the state or its High Commissioner or the Bank. The bank account gave rise to a debt, the legal title to which was in the High Commissioner but the beneficial title to which was in issue. The House was content to assume that the High Commissioner was an agent, rather than an organ of the state (cf p.393 per Visc. Simonds, p.410 per Lord Reid, with whom Lord Somervell agreed at p.410, and p.406 per Lord Cohen). It treated the debt as if it were a chattel or gold bar (cf USA v. Dolfus Mieg et Cie SA [1952] AC 582), in which connection Lord Reid described the basis of state immunity in words quoted in paragraph 10 of this judgment.
37. In Zoernsch v. Waldock the claim was against a former president as well as the current secretary of the European Commission of Human Rights. The former president (Sir Humphrey Waldock) was (under the Council of Europe (Immunities and Privileges) Order 1960, SI 1960 No. 442) entitled to “the like immunity from legal process as is accorded to an envoy of a foreign sovereign power”. The court held, with reference to (inter alia) Rahimtoola, that, after leaving office, state immunity continued to protect such an envoy from suit in respect of “acts performed in his official capacity” (see p.684 per Willmer LJ and p.692 per Diplock LJ) or in respect of “acts done in the course of their official duties” (p.688 per Danckwerts LJ).
38. In Schmidt v. Home Secretary (1994) 103 ILR 322 the Irish High Court acknowledged the immunity applicable under Irish common law to English police officers who (allegedly in breach of the plaintiff's constitutional rights) were said to have deprived him of his right of free movement. In Holland v. Lampen-Wolfe, the House of Lords considered the position of a state official at common law, in circumstances falling outside the ambit of the 1978 Act. Reference was made to the basic distinction between governmental acts (jure imperii) and other acts, including commercial acts (jure gestionis) (cf per Lord Hope at p.1577). Lord Millett with whom a majority of other Law Lords expressly agreed, said that the doctrine of state immunity “operates to prevent the official and governmental acts of one state from being called into question in proceedings before the courts of another”, and that “Where the immunity applies, it covers an official of the state in respect of acts performed by him in an official capacity” (p.1583).
39. This examination of other common law authority, recognising state immunity in respect of acts of agents, shows that none of the relevant cases was concerned with conduct which should be regarded as outside the scope of any proper exercise of sovereign authority or with international crime, let alone with systematic torture. However, in Saudi Arabia v. Nelson (1993) 507 US 349, the United States Supreme Court was concerned with allegations of, inter alia, torture, apparently pleaded against all three defendants, namely The Kingdom itself, Hospital Corporation of the America (“HCA”), which had recruited Mr Nelson to work in a Saudi Arabian hospital, and Royspec, a Saudi corporation owned and controlled by The Kingdom, which acted as purchasing agent for the hospital. All three defendants were treated by the majority as qualifying as the state (including by definition an agency or instrumentality of the state) and as therefore entitled to immunity under the FSIA (which in this respect had similar exclusive effect to the United Kingdom's 1978 Act). But the only exception to immunity suggested was a statutory exception for an action “based upon a commercial activity carried on in the United States by the foreign state” (see p.550) Further, despite the apparent width of the pleading, the Supreme Court judgments spoke of the alleged torture as boiling down to “abuse of the power of its police by the Saudi Government” (see pp.553-4). There were further allegations of negligence in Mr Nelson's recruitment (presumably in the first instance by HCA) and of failure to warn him of the risks of such treatment. The case does not therefore address the issues with which we are concerned, or the line of previous United States authority to which I shall come regarding the liability of state officials for torture.
40. A further New Zealand authority not cited in Propend is of interest. In Controller and Auditor-General v. Sir Ronald Davison, the Auditor-General of New Zealand was public auditor for the Cook Islands, which (although another of Her Majesty's Dominions) were for the purposes of the decision an entirely separate state. He had delegated his functions to KPMG. An inquiry was set up in New Zealand to establish whether the New Zealand Inland Revenue Department and Serious Fraud Office had acted in a lawful, proper and competent manner in relation to transactions, which were shown by documents contained within a “winebox” which was passed to a New Zealand MP and put by him before the New Zealand Parliament and which suggested that the Cook Islands were being used as a tax haven to evade New Zealand tax. The Auditor-General and KPMG invoked state immunity as precluding them from producing documents to or answering questions put by the inquiry. Cooke P and Henry J rejected the claim to immunity on the basis that the winebox transactions were essentially commercial in nature, and Thomas J was content to hold accordingly, while preferring an alternative approach (see p.313, lines 45-47). Richardson J, with whose judgment McKay J agreed, considered that the transactions could not be categorised as commercial. But, after referring to the rationale of state immunity stated by Lord Reid in Rahimtoola, he identified the interplay of two fundamental principles of territoriality and state personality which, as I have said, lie at its root. Unusually, in the New Zealand case, the pull of these considerations was in opposite directions, a factor of importance in the court's decision. In particular, the winebox transactions were intimately connected with New Zealand, the further documents sought by the enquiry were in New Zealand and there was a special relationship between New Zealand and the Cook Islands, including automatic New Zealand citizenship for Cook Islanders based on agreement between their respective prime ministers that the Cook Islands would “uphold, in their laws and policies, a standard of values generally acceptable to New Zealanders”. In these circumstances, Richardson J drew attention to the general international recognition that there should be no immunity in respect of claims for torts causing personal or physical injury committed within the forum state. He cited as “an extreme case” Letelier v. Republic of Chile (1980) 488 F Supp 665, where the families of Chilean dissident leaders sued Chile in the United States for allegedly assassinating such leaders in Washington. Richardson J said that:

“There must be other cases where the alleged conduct of the foreign state is directed in a real sense against the forum state or so directly affects it and is so outrageous that the protection international law would otherwise give to the foreign state in matters properly within the jurisdiction of the foreign state should not be allowed”.

He identified the facts before him as falling within this category. McKay J agreed. Cooke P said that he had sympathy with much of what Richardson J had said, but also that

“In the present era of civilisation and international law I should think that a Court would be going too far if it were to allow a general exception of iniquity to the doctrine of sovereign immunity.”

He contrasted the decision in Kuwait Airways Corpn v. Iraqi Airways Co. (No. 1) [1995] 1 WLR 1147 (where the defendant's immunity was recognised in respect of its taking and removal of the Kuwaiti civil aviation fleet, when it was acting for Iraqi governmental purposes, despite the flagrant breach of international law involved in such purposes) with Letelier, and continued:

“One may speculate that the law may gradually but steadily develop, perhaps first excepting from sovereign immunity atrocities or the use of weapons of mass destruction, perhaps ultimately going on to except acts of war ”

41. Henry J considered that there was “merit in the line of reasoning adopted” in Richardson J's judgment, but that it was debatable

“whether or not this Court should now adopt a broad principle of iniquity as affecting and possibly overriding the traditional concept of sovereign immunity – which would be a development beyond that now accepted under the “restricted” theory.”

However, he considered that there were compelling particular reasons for excluding the doctrine of immunity, even if the restrictive theory did not apply. They consisted essentially in the close New Zealand connection and New Zealand public policy.

42. Thomas J in a powerful judgment detected a substantial measure of covert flexibility in a court's reaction to a claim of sovereign immunity, even under existing principle, and advocated “a more overtly flexible approach”, involving the application not of any single factor, but a balancing of all relevant factors, among them those referred to in Professor Brownlie QC at (now) pages 330-1 of the sixth edition of his work.
43. This case is of general interest, although not concerned with any international crime, because of the New Zealand court's openness towards some relaxation of the doctrine of state immunity and the preparedness of the majority to rest their decision on that basis. But at the heart of the New Zealand court's decision was the unusually close territorial connection which the case had with New Zealand. One pillar of state immunity, the restraint which national courts exhibit show in adjudicating upon the internal activities of a foreign state, was substantially weakened. That is not a factor which finds a direct parallel in the present case. Here, it is the special nature of torture, wherever occurring, and the suggested difficulty of obtaining satisfactory redress in the jurisdiction where it occurred, that are relied on to overcome the problem that the case is primarily concerned with events in Saudi Arabia.

Torture as an international crime

44. Before turning to such authority as there is bearing on official immunity in respect of the international crime of torture, it is appropriate to look more closely at the Torture Convention. The United Nations Convention against Torture is a convention to which The Kingdom of Saudi Arabia as well as the United Kingdom, together with a large number of other states, have been party at all material times. Article 1 provides:

“1.1. 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.”

The Convention has received very wide-spread international support. In domestic English law, the United Kingdom's adherence led to s.134(1) of the Criminal Justice Act 1988, whereby:

“A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.”

45. Under s.134(1) of the 1988 Act the acts or omissions of which the present claimants complain constitute crimes under English law. But s.5 of the State Immunity Act 1978 provides no relevant lifting of state immunity from civil suit under English law, since the alleged torture occurred outside the United Kingdom. Bearing in mind the limited express terms of s.14 of the 1978 Act and the limited issue in Propend, as to both of which see paragraph 31 above, I consider that it is however necessary to decide as a matter of first principle whether the cloak of state immunity should extend to acts or omissions of ordinary state officials amounting to systematic torture. This is so whether the decision involves (as Propend would suggest) interpretation of the proper scope of a further implied immunity conferred by s.14, beyond that appearing by its express terms, or an immunity which arises independently at common law. The existence of at least some limitations on the immunity in respect of officials is consistent with the approach adopted by courts in the Church of Scientology case, Jaffe v. Miller, Herbage v. Meese, Chuidian v. Philippine National Bank (1990) 912 F 2d 1095; 92 ILR 480 and Holland v. Lampen-Wolfe [2000] 1 WLR 1573. These cases all drew a general distinction between official and private acts, when identifying the extent of State immunity for acts or omissions of officials.
46. That distinction is itself not always clear-cut or easy to apply: cf per Lord Lloyd in Pinochet (No. 1) at p.94 and Lord Hutton in Pinochet (No. 3) at p.252 in a citation from Oppenheim's International Law Vol. I, pp. 545-6 para. 165. A pointer towards potential difficulties is also present in the dicta in Chuidian, and a positive example is provided by Holland v. Lampen-Wolfe. But difficulty in categorising cases according to their subject-matter also exists in parallel areas, e.g. in distinguishing between governmental and commercial acts: see e.g I Congreso del Partido [1983] 1 AC 244, where the Republic of Cuba's motive of breaking off and discontinuing all contact with Chile (after the assumption of power by “President of the Government Junta of Chile” Pinochet on 11^th September 1973) did not mean that its withdrawal of a vessel from its voyage charter to a Chilean charterer constituted an act jure imperii (since “everything done by the Republic of Cuba could have been, and, so far as the evidence goes, was done, as owners of the ship”: per Lord Wilberforce, p. 268). The claimants in the present case seek to develop this distinction by arguing that systematic torture cannot or should not be regarded as falling within the category of governmental or official acts, on the basis that it can be no part of a state official's functions to commit torture; alternatively, they argue that the law ought to recognise systematic torture as a further subject-matter in respect of which state officials cannot claim immunity. In relation to these submissions all parties referred us extensively to the speeches in Pinochet (No. 1) [2000] 1 AC 61 as well as Pinochet (No. 3) [2000] 1 AC 147.

Pinochet – criminal immunity

47. In Pinochet the courts were concerned with a former head of state's claim to immunity from criminal proceedings for systematic torture allegedly committed as an aspect of state oppression. The recognition that individuals may be held criminally responsible for offences against international law goes back at least to principles stated in the Charter of the International Military Tribunal of Nuremberg and affirmed by the General Assembly of the United Nations in 1946,when directing the International Law Commission to treat as a matter of primary importance plans for their formulation. The Commission in 1950 set out the following principle and commentary in its paragraph 103 (quoted by Lord Hutton at p.258 in Pinochet (No. 3)):

“The fact that a person who committed an act which constitutes a crime under international law acted as head of state or responsible Government official does not relieve him from responsibility under international law.

103. This principle is based on article 7 of the Charter of the Nurnberg Tribunal. According to the Charter and the judgment, the fact that an individual acted as head of state or responsible government official did not relieve him from international responsibility. 'The principle of international law which, under certain circumstances, protects the representatives of a state', said the Tribunal, 'cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment . . . .' The same idea was also expressed in the following passage of the findings: 'He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorising action moves outside its competence under international law."

The 1954 International Law Commission's draft code of offences against the peace and security of mankind provided in Article III:

 "The fact that a person acted as head of state or as responsible Government official does not relieve him of responsibility for committing any of the offences defined in the code."

By 1994 Sir Arthur Watts QC in his Hague Lectures, “The Legal Position in International Law of Heads of State, Heads of Government and Foreign Ministers” 1994-III) 247 Recueil des Cours, p. 82 could state that

“The idea that individuals who commit international crimes are internationally accountable for them has now become an accepted part of international law”.

48. Different members of the House gave different reasons for concluding that state immunity did not protect Senator Pinochet from the criminal proceedings for extradition brought against him. In Pinochet (No. 1) Lords Nicholls and Steyn considered that the protection of immunity could only apply to “official acts performed in the exercise of the functions of a head of state” by Senator Pinochet: see pp. 108-9 and 115. Lord Nicholls cited passages from the Nuremberg Tribunal's judgment (quoted in paragraph 103 of the International Law Commission's report of 1950), saying:

“International law does not require the grant of any wider immunity. And it hardly needs saying that torture of his own subjects, or of aliens, would not be regarded by international law as a function of a head of state.”

Lord Steyn identified the critical question as one of classification in an international law sense. He doubted whether

“what was allegedly done in secret in the torture chambers of Santiago on the orders of General Pinochet [should] be regarded as official acts”

but added that

“in any event, in none of these cases is the further essential requirement satisfied, viz. that in an international law sense these acts were part of the functions of a head of state”.

49. In Pinochet (No. 3) Lords Browne-Wilkinson and Hutton expressed similar views. Lord Browne-Wilkinson said at pp.205-6:

“How can it be for international law purposes an official function to do something which international law itself prohibits and criminalizes?”

Lord Hutton at p.251 pointed out that it was clear that Senator Pinochet's acts of alleged torture were not carried out by him in his private capacity for his private gratification. At p.254 he said (referring to Jaffe v. Miller):

“It has also been decided that where an action for damages in tort is brought against officials of a foreign state for actions carried out by them in ostensible exercise of their governmental functions, they can claim state immunity, notwithstanding that their actions were illegal. The state itself, if sued directly for damages in respect of their actions would be entitled to immunity and this immunity would be impaired if damages were awarded against the officials and then the state was obliged to indemnify them.”

But, after stating at p.260 that “…since the end of the second world war there has been a clear recognition by the international community that certain crimes are so grave and so inhuman that they constitute crimes against international law” and at p.261 that “acts of torture were clearly crimes against international law and that the prohibition of torture had acquired the status of jus cogens” by 29 September 1988, he concluded at pp. 261-3 that Senator Pinochet's commission of acts of torture after 29 September 1988 was not

“a function of the head of state of Chile under international law”.

50. Lord Hope at p.242 took a different route. He rejected the view that “it is not one of the functions of the head of state to commit acts which are criminal according to the laws and constitution of his own state or which customary international law regards as criminal”. He considered that:

“The principle of immunity ratione materiae protects all acts which the head of state has performed in the exercise of the functions of government. The purpose for which they were performed protects these acts from any further analysis.”

He recognised two exceptions under customary international law, the first relating to “criminal acts which the head of state did under the colour of his authority as head of state but which were in reality for his own pleasure or benefit”, the second relating to “acts the prohibition of which has acquired the status under international law of jus cogens”. However, he went on:

“But even in the field of such high crimes as have achieved the status of jus cogens under customary international law there is as yet no general agreement that they are outside the immunity to which former heads of state are entitled from the jurisdiction of foreign national courts. There is plenty of source material to show that war crimes and crimes against humanity have been separated out from the generality of conduct which customary international law has come to regard as criminal. These developments were described by Lord Slynn of Hadley [dissenting in Pinochet (No. 1), at pp. 80-81] and I respectfully agree with his analysis. As he said, at p. 81A-B, except in regard to crimes in particular situations where international tribunals have been set up to deal with them and it is part of the arrangement that heads of state should not have any immunity, there is no general recognition that there has been a loss of immunity from the jurisdiction of foreign national courts.

This led him to sum the matter up in this way at p. 81D-G:

“So it is necessary to consider what is needed, in the absence of a general international convention defining or cutting down head of state immunity, to define or limit the former head of state immunity in particular cases. In my opinion it is necessary to find provision in an international convention to which the state asserting, and the state being asked to refuse, the immunity of a former head of state for an official act is a party; the convention must clearly define a crime against international law and require or empower a state to prevent or prosecute the crime, whether or not committed in its jurisdiction and whether or not committed by one of its nationals; it must make it clear that a national court has jurisdiction to try a crime alleged against a former head of state, or that having been a head of state is no defence and that expressly or impliedly the immunity is not to apply so as to bar proceedings against him. The convention must be given the force of law in the national courts of the state; in a dualist country like the United Kingdom that means by legislation, so that with the necessary procedures and machinery the crime may be prosecuted there in accordance with the procedures to be found in the convention.”

51. Lord Hope's conclusion that Senator Pinochet lacked immunity in the criminal proceedings brought against him therefore rested on construction of the Convention against Torture, to which both the United Kingdom and Chile were party and which had or had been given domestic effect. However, he made clear that he did not consider that it was a necessary implication of the Torture Convention that it “removed the immunity ratione materiae from former heads of state in respect of every act of torture of any kind” (p.246A). It did so, in his view, only in respect of torture alleged “of such a kind or on such a scale as to amount to an international crime”, referring to Sir Arthur Watts's statement quoted in paragraph 47 above.
52. Lord Millett took a more general view. He would have held (under the principle recognised by the International Law Commission in 1954 and citing, inter alia, the Supreme Court of Israel's decision in A-G of Israel v. Eichmann 36 ILR 5) that no immunity survived in respect of international crimes committed by state officials which were both (a) contrary to jus cogens and also (b) so serious and on such a scale as to amount to an attack on the international legal order, including since at least 1973 the use of systematic torture (pp. 273-5).
53. Lord Millett also considered that the Convention on Torture with its wider definition of torture was “entirely inconsistent with the existence of a plea of immunity ratione materiae” (pp.277-8). Lords Saville and Phillips based themselves on the same conclusion (pp. 267 and 289). But Lord Phillips touched on the question whether more may be required for immunity than merely acting in an official capacity. He said (in the context of genocide) at p. 289:

“Would international law have required a court to grant immunity to a defendant upon his demonstrating that he was acting in an official capacity? In my view it plainly would not. I do not reach that conclusion on the ground that assisting in genocide can never be a function of a state official. I reach that conclusion on the simple basis that no established rule of international law requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime. International crimes and extra-territorial jurisdiction in relation to them are both new arrivals in the field of public international law. I do not believe that state immunity ratione materiae can co-exist with them. The exercise of extra-territorial jurisdiction overrides the principle that one state will not intervene in the internal affairs of another.”

At p.290 he continued:

“The Convention is thus incompatible with the applicability of immunity ratione materiae. There are only two possibilities. One is that states party to the Convention proceeded on the premise that no immunity could exist ratione materiae in respect of torture, a crime contrary to international law. The other is that parties to the Convention expressly agreed that immunity ratione materiae should not apply in the case of torture. I believe that the first of these alternatives is the correct one, but either must be fatal to the assertion by Chile and Senator Pinochet of immunity in respect of extradition proceedings based on torture.”

On the alternative which Lord Phillips believed to be correct, the view of those drafting the Convention must have been that, apart from the Convention, international law had already reached a point at which state immunity ratione materiae could no longer survive to preclude criminal prosecution for systematic torture contrary to international law.

Pinochet – civil liability

54. Up to this point, I have been focusing on the issue of immunity in respect of criminal proceedings which arose for decision in Pinochet. But the speeches contain statements bearing on the existence and scope of civil immunity. Lord Browne-Wilkinson referred briefly at p.205 to immunity ratione materiae:

“Immunity ratione materiae applies not only to ex-heads of state and ex-ambassadors but to all state officials who have been involved in carrying out the functions of the state. Such immunity is necessary in order to prevent state immunity being circumvented by prosecuting or suing the official who, for example, actually carried out the torture when a claim against a head of state would be precluded by the doctrine of immunity. If that applied to the present case, and if the implementation of the torture regime is to be treated as official business sufficient to found an immunity for the former head of state, it must also be official business sufficient to justify immunity for his inferiors who actually did the torturing. Under the Convention the international crime of torture can only be committed by an official or someone in an official capacity. They would all be entitled to immunity ….

For these reasons in my judgment if, as alleged, Senator Pinochet organised and authorised torture after 8 December 1988, he was not acting in any capacity which gives rise to immunity ratione materiae because such actions were contrary to international law.” (Italics added)

As I read the passage which I have italicised, Lord Browne-Wilkinson was suggesting that the immunity ratione personae of a serving head of state ordering torture could not be permitted to be undermined by either a prosecution or a civil claim against the official actually committing the torture. I need not comment on that suggestion. What matters is that Lord Browne-Wilkinson went on simply to deal with, and reject, the suggestion that there could be any immunity ratione materiae from prosecution for torture in respect of either a former head of state or any inferior official. However, he did not explicitly address the question of any civil liability on the part of either.

55. In contrast, Lord Hutton at p.264 considered that, not only could Chile claim immunity if sued for damages for such acts in a court in the United Kingdom, but that:

“Senator Pinochet could also claim immunity if sued in civil proceedings for damages under the principle in Jaffe v. Miller …”

Lord Millett at p.273 said in passing, in relation to the Torture Convention that:

“The very official or governmental character of the acts which is necessary to found a claim to immunity ratione materiae, and which still operates as a bar to the civil jurisdiction of national courts, was now to be the essential element which made the acts an international crime.”

In a later passage at p. 278, Lord Millett observed:

“In my opinion, acts which attract state immunity in civil proceedings because they are characterised as acts of sovereign power may, for the very same reason, attract individual criminal liability. The respondents relied on a number of cases which show that acts committed in the exercise of sovereign power do not engage the civil liability of the state even if they are contrary to international law. I do not find those decisions determinative of the present issue or even relevant. In England and the United States they depend on the terms of domestic legislation; though I do not doubt that they correctly represent the position in international law. I see nothing illogical or contrary to public policy in denying the victims of state sponsored torture the right to sue the offending state in a foreign court while at the same time permitting (and indeed requiring) other states to convict and punish the individuals responsible if the offending state declines to take action. This was the very object of the Torture Convention.”

In this passage, however, Lord Millett was comparing the civil immunity of the state with the criminal liability of the responsible individuals. He was not considering or in terms excluding any potential civil liability of individuals.

56. Lord Phillips observed at p.280 that the House was not concerned with a civil suit. But at p.281, he said, with clear reference to the possibility of a civil claim against Senator Pinochet personally, that:

“Were these civil proceedings in which damages were claimed in respect of acts committed by Senator Pinochet in the government of Chile, Chile could argue that it was itself indirectly impleaded. That argument does not run where the proceedings are criminal and where the issue is Senator Pinochet's personal responsibility, not that of Chile.”

He went on to cite Hatch v. Baez 7 Hun 596, where the New York court dismissed a civil claim against a former president of St. Domingo, on the ground that it was not competent to adjudicate upon the official acts of another government done within its own territory in the exercise of sovereignty. At pp.285-6 he gave two explanations for the immunity ratione materiae of a former head of state or state official:

“The first is that to sue an individual in respect of the conduct of the state's business is, indirectly, to sue the state. The state would be obliged to meet any award of damage made against the individual. This reasoning has no application to criminal proceedings. The second explanation for the immunity is the principle that it is contrary to international law for one state to adjudicate upon the internal affairs of another state. Where a state or a state official is impleaded, this principle applies as part of the explanation for immunity.”

He also said at p.287 that, “if one proceeds on the premise that Part I of the 1978 Act correctly reflects current international law”, then “two propositions are made out in relation to civil proceedings”:

“(1) One state will not entertain judicial proceedings against a former head of state or other state official of another state in relation to conduct performed in his official capacity. (2) This rule applies even if the conduct amounts to a crime against international law. …..”

The “vital issue” in Pinochet was, he said, the extent to which these two propositions applied to the exercise of criminal jurisdiction in relation to the conduct alleged against Senator Pinochet. He held, for reasons already examined, that Senator Pinochet could, in the light of the development of international law and the Torture Convenion, no longer enjoy any immunity ratione materiae in that respect.

57. With regard to civil liability of individuals, Pinochet (No. 3) therefore contains statements by three members of the House of Lords (Lords Hutton, Millett and Phillips) assuming or maintaining the continued existence of immunity ratione materiae in respect of a former head of state or other official in civil proceedings (even proceedings based on systematic torture).

Other national and international jurisprudence regarding civil immunity

58. I turn to consider what other national and international jurisprudence exists to throw light on the proper scope of the civil immunity which a state may assert in respect of officials alleged to have committed crimes against international law. In a brief dictum in Prosecutor v. Furundzija (Case IT095017/1-T; 10 December 1998) the International Tribunal for Former Yugoslavia contemplated at paragraph 155 that, if a national law purported to authorise torture, “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”. That a “national authorising act” of this nature should be disregarded is no doubt true under English law, on principles applied in Kuwait Airways Corpn v. Iraqi Airways Co. (Nos. 4 and 5) [2002] UKHL 19; [2002] 2 AC 883. But the Tribunal's statement does not address the prior question of immunity, and its assumption that jurisdiction existed does not carry matters far.
59. In The Congo v. Belgium (cf paragraph 16 above), the principal majority judgment dealt only with individual criminal liability, reciting the exceptions to immunity enjoyed by an incumbent or former Minister for Foreign Affairs under international law in relatively narrow terms in its paragraph 60. But the joint separate concurring opinion of Judges Higgins, Kooijmans and Buergenthal examined the availability of immunity in more general terms:

“85. Nonetheless, that immunity prevails only as long as the Minister is in office and continues to shield him or her after that time only for “official” acts. It is now increasingly claimed in the literature (see e.g., 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 1° 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. (For an early example, see the judgment of the Israel Supreme Court in the Eichmann case; Supreme Court, 29 May 1962, 36 International Law Reports, p. 312.) See also the speeches of Lords Hutton and Phillips of Worth Matravers in R v Bartle and the Commissioner of Police for the Metropolis and Others, ex parte Pinochet (“Pinochet III”); and of Lord Steyn and Nicholls of Birkenhead in “Pinochet I”, as well as the judgment of the Court of Appeal of Amsterdam in the Bouterse case (Gerechtshof Amsterdam, 20 November 2000, para. 4.2.)”

60. In his individual concurring judgment in Sosa v. Alvarez-Machain (U.S. Supreme Court; 29 June 2004), which I discuss below, Breyer J said with reference to the universal jurisdiction to prosecute torture and to the passage in Furundzija and the decision in Eichmann mentioned above:

“The fact that this procedural consensus exists [viz. a consensus that “universal jurisdiction exists to prosecute a subset” of certain universally condemned behaviour which includes torture] suggests that recognition of universal jurisdiction in respect of 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. Cf Restatement para. 404, Comment b. 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.”

Once one concludes that it is not the purpose of article 14 of the Torture Convention to establish universal tort jurisdiction (see paragraphs 18-21 above), this passage does not offer the present claimants direct assistance. The claimants have to present a (more qualified) case, viz. that, where domestic jurisdiction can properly be founded, then either no relevant or at least no absolute state immunity can survive in respect of the subset of behaviour to which Breyer J was referring. But, even if Breyer J's comments cannot be accepted in their full width, they offer some encouragement for the view that there is no international consensus to the contrary of such a case.

The United States jurisprudence

61. United States jurisprudence includes a number of cases close in subject-matter to the present, though decided within a different legal framework. The Alien Tort Statute of 1789 established federal jurisdiction over “all causes where an alien sues for a tort only committed in violation of the law of nations”. In Sosa v. Alvarez-Machain the United States Supreme court explained this as a jurisdictional statute, creating no new causes of action, but as “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”. The majority in Sosa identified those violations as having been violation of safe conducts, infringement of the rights of ambassadors and piracy (cf p.30). The Court as a whole rejected the submission that abduction fell within any similar category. But the majority were at pains to state their view that there could be violations of international norms “accepted by the civilised world and defined with a specificity comparable to the features of these 18^th century paradigms” (pp.30-31 and 38). In this connection they referred (at pp.37-38) to the important federal court decisions of Filartiga v. Pena-Irala (1980) 630 Fed Rep 2d 876 and In the Estate of Marcos Human Rights Litigation 25 Fed. 3d 1467.
62. In Filartiga the judgment of Kaufman J in the US Court of Appeals Second Circuit breathed life into the previously “rarely-invoked provisions” of the Alien Tort Act. Further, as the majority in Supreme Court in Sosa also observed, Congress not only expressed no disagreement with the view taken of the proper exercise of judicial authority in Filartiga and subsequent cases, but in March 1992 “has responded in the most notable instance by enacting legislation supplementing the judicial determination in some detail” – a reference to the Torture Victim Protection Act discussed in paragraph 66 below. Filartiga concerned a claim by a citizen of Paraguay against the former inspector general of police in Asuncion (served on a visit to the United States) for allegedly torturing the plaintiff's son to death in Paraguay in retaliation for his political activities and beliefs. In a powerful judgment Kaufman J said amongst other things that:

“torture is now prohibited by the law of nations” (p. 884) ….

“The treaties and accords cited above [viz. American Convention on Human Rights, Art. 5, International Covenant on Civil and Political Rights, and European Convention on Human Rights and Fundamental Freedoms, Art. 3], as well as the express foreign policy of our government, all make clear that international law confers fundamental rights upon all people vis-a-vis their own governments” (pp. 884-5) ….

“for purposes of civil liability, the torturer has become – like the pirate and slave trader before him – hostis generis, an enemy of all mankind” (p. 890).

Kaufman J also noted at p.884 the observation made by the United States to a Joint Congressional Committee that:

“…. it has been the United States's experience that no government has asserted a right to torture its own nationals. Where reports of torture elicit some credence, a state usually responds by denial or, less frequently, by asserting that the conduct was unauthorised or constituted rough treatment short of torture.”

I interpose that there is also no basis on which a state could assert a right to torture foreign nationals, particularly since the Torture Convention. The state of Saudi Arabia has not made any such assertion in the present case (cf paragraph 6 above). Kaufman J concluded by saying that:

“Our holding today, giving effect to a jurisdictional provision enacted by our First Congress, is a small but important step in the fulfilment of the ageless dream to free all people from brutal violence” (p. 890).

The issue was, as this passage states, limited to that of the jurisdiction conferred by the 1789 Act. The “critical question” of forum conveniens remained for hearing below. But the court observed that “the foreign relations implications of this and other issues underscored the wisdom of vesting jurisdiction in federal, rather than state courts”. No claim to immunity was raised, although the defendant sought on appeal to rely on the doctrine of act of state raising some allied considerations. The court rejected this argument as coming too late, but said also:

“We note in passing, however, that we doubt whether action by a state official in violation of the Constitution and laws of the Republic of Paraguay, and wholly unratified by that nation's government, could properly be characterized as an act of state. See Banco Nacionale de Cuba v. Sabbatino, supra, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d. 804; Underhill v. Hernandez, 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456 (1897). Paraguay's renunciation of torture as a legitimate instrument of state policy, however, does not strip the tort of its character as an international law violation, if it in fact occurred under color of government authority. See Declaration on the Protection of All Persons from Being Subjected to Torture, supra note 11; cf. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (state official subject to suit for constitutional violations despite immunity of state).”

The source of the state's immunity from suit in ex p. Young was the 11^th Amendment, which prohibited suit against one of the United States by citizens of another or by subjects of any foreign state or (as construed by the Supreme Court) by its own citizens. There was prior authority that in some circumstances (e.g. where suit was brought against a state official “not personally, but officially”) the suit would be considered as a suit against the state and so barred. But in ex p. Young the Supreme Court held that there was no prohibition on a claim to prevent a state official from enforcing a claim which was alleged to be unconstitutional. The inability to sue a state in respect of the state official's conduct did not preclude such a suit.

63. Nevertheless, in Chuidian, decided in 1990 shortly before Herbage v. Meese (paragraph 34 above), the Court of Appeals Ninth Circuit said, albeit in relation to the United States Foreign Sovereign Immunities Act 1976 which is in very different wording to the United Kingdom's State Immunity Act 1978, that:

“It is generally recognised that a suit against an individual acting in his official capacity is the practical equivalent of a suit against the sovereign directly.” (p.486)

The court drew the general distinction between acts committed as an official and individual acts, and observed that an improper motive did not of itself mean that an act was not done as an official act. But it also recognised a potentially significant exception to the general principle which it had stated:

“Sovereign immunity will not shield an official who acts beyond the scope of his authority. “[W]here the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do …..” Larson 337 U.S. at 689, 69 S.Ct. at 1461.”

Larson was a decision of the United States Supreme Court in the context of a claim against the United States which under United States law could only be pursued with the defendant's consent. The Supreme Court supported its statements regarding the effect of excess of authority in this context by reference to its own prior statements in Land v. Dollar (1947) 330 US 731, 739. It also identified as “a second type of case” that in which the statute or order conferring power upon the officer to take action in the sovereign's name was claimed to be unconstitutional (i.e. the type of case in issue in ex p. Young), explaining:

“Here too the conduct against which specific relief is sought is beyond the officer's powers and is therefore not the conduct of the sovereign. The only difference is that in this case the power has been conferred in form but the grant is lacking in substance because of its constitutional invalidity.”

64. The exceptions identified in ex p. Young, Larson and Land v. Dollar were identified in the context of United States law. But their existence and the reference to one of them in Chuidian encourage the thought that there may be conduct contrary to customary principles of international law which is of such a nature and seriousness that it must be regarded as outside the scope of any function that a state could properly claim that its officer was exercising, and so outside the scope of any immunity that the state might properly claim in respect of such an officer.
65. The reasoning in Chuidian was endorsed by the Court of Appeals Ninth Circuit in Trajano v. Imee Marcos (1992) 978 F 2d 493 (where Miss Marcos's default meant that she was treated as acting on her own behalf not on the authority of the Republic of the Phillipines) and in In re the Estate of Marcos Human Rights Litigation (where allegations of torture were to be taken as true for the purpose of the issue). The Court in the latter case distinguished Siderman de Blake v. Republic of Argentina (1992) 965 F 2d 699, where it had held “that Argentina's acts of torture, though clearly constituting jus cogens violations of international law were immunized under [the FSIA]”, as an action against the state, whereas Hilao's claim (in In re the Estate of Marcos) was in contrast “against the estate of an individual officer who is accused of engaging in activities outside the scope of his authority”. Thus the “FSIA thus does not apply to this case”. The court went on:

“[4-6] This interpretation is consistent with FSIA's codification of the “restrictive” principle of sovereign immunity in international law, which limits the immunity of a foreign state to its “inherently governmental or 'public' acts,” but does not extend to suits based on its commercial or private acts. Chuidian, 912 F.2d at 1099-1100. See also Siderman, 965 F.2d at 705-06 (reviewing history of foreign state immunity and the enactment of FSIA); McKeel, 722 F.2d at 587 n.6. Immunity is extended to an individual only when acting on behalf of the state because actions against those individuals are “the practical equivalent of a suit against the sovereign directly.” Chuidian, 912 F.2d at 1101. A lawsuit against a foreign official acting outside the scope of his authority does not implicate any of the foreign diplomatic concerns involved in bringing suit against another government in United States courts”

It is right to add that the court went on to say that this was “evidenced” by the Philippine government's agreement that the suit proceed. So there was on any view a waiver of immunity by the relevant state. But the central reasoning which I have just quoted is not limited to that situation.

66. In March 1992 the United States enacted the Torture Victim Protection Act, providing 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, a claim for official torture was made against the self-proclaimed head of an unrecognised Bosnian-Serb entity (“Srpska”). The court held that “The customary international law human rights, such as the proscription of torture, applies to states without distinction between recognised and unrecognised states” (p. 245), but that Mr Karadzic enjoyed no immunity as the head of an unrecognised entity. It went on to consider whether the issue was properly justiciable, and to refer to the United States doctrine of act of state. As to justiciability (cf in English law paragraph 10 above) the court recognised that cases of this nature “might pose special questions regarding the judiciary's proper role when adjudication might have implications in the conduct of this nation's foreign relations”, but considered that (rather than “reflexively” refusing to adjudicate) “a preferable approach is to weigh carefully the relevant considerations on a case-by-case basis” (p. 249). It concluded that its previous decision in Filartiga

“established that universally recognised norms of international law provide judically discoverable and manageable standards for adjudicating suits brought under the Alien Tort Act, which obviates any need to make initial policy decisions of the kind normally reserved for nonjudicial discretion”. (p. 249)

The court also recognised that the doctrine of act of state (which had not been asserted) might be implicated in some cases under the Alien Tort Act, but added:

“However, as in Filartiga, 630 F.2d at 889, we doubt that the acts of even a state official, taken in violation of a nation's fundamental law and wholly unratified by that nation's government, could properly be characterized as an act of state.”

Addressing the issue of forum conveniens, it observed that no-one had identified a more suitable forum, in the absence of any “either in Serbia or war-torn Bosnia”.

67. In Xuncax v. Gramajo (1995) 886 F Supp 162, the United States District Court for Massachusetts was concerned with claims against Mr Gramajo, who had been vice-chief of staff, director of army general staff and minister of defence under whose direct command the claimants had allegedly been tortured in Guatemala. The court applied the Torture Victim Protection Act retroactively on the basis that universal condemnation of torture was fully established prior to the acts complained of. The United Supreme Court has recently come to the same conclusion in a case involving alleged seizure by the Nazis or expropriation by the Austrian government of art works: Republic of Austria v. Altmann No. 013-13; decided 4 July 2004.) Citing the previous line of United States authority which I have examined, the District Court said in Xuncax:

“The First Circuit has not yet addressed the specific question whether, in the context of the FSIA, a “foreign state” should be defined to encompass an individual acting in his or her official capacity. Without deciding whether the scope of FSIA immunity should be thus extended, I conclude, as has the Ninth Circuit, that such immunity would in any event be unavailable in suits against an official arising from acts that were beyond the scope of the official's authority.”

It affirmed that liability under the Alien Tort Act arose, without more, from the violation of international law.

68. In Cabiri v. Assasie-Gyimah (1996) 921 F. Supp. 1189 (S.D.N.Y.), Mrs Cabiri, a former Ghanaian trade counsellor claimed that she had, while in Ghana, been tortured by a Ghanaian security adviser, who was in New York to testify in proceedings brought by the state of Ghana to obtain possession of premises from Mrs Cabiri. The court considered issues of jurisdiction, limitation, state immunity and forum non conveniens. In dismissing the assertion that the security adviser enjoyed immunity, the court referred to Fiiartiga, Chuidian and Trajan v. Imee Marcos. It said that “the alleged acts … , if presumed to be true, violated a fundamental principle of the law of nations: the human right to be free from torture”, and that the defendant

“… does not argue that such acts are not prohibited by the laws of Ghana; nor could he. In Filartiga, supra, the Second Circuit observed that no government asserts a right to torture its citizens; …... Therefore, he is not shielded from Cabiri's claims by the sovereign immunity provided in the FSIA.”

The majority's endorsement in Sosa (paragraph 61 above) gives the line of authority discussed in paragraphs 61 onwards added weight and significance.

The English position apart from the Human Rights Convention

69. The claimants' primary submission is that systematic torture by a state official (or other person acting in a public capacity) cannot be regarded as a function of such an official or person; and that, even though the state's responsibility may be engaged under article 14 of the Torture Convention, the state cannot claim state immunity in respect of an official or other agent committing such torture. They rely on the dicta of Lords Nicholls and Steyn in Pinochet (No. 1) and of Lords Browne-Wilkinson and Hutton in Pinochet (No. 3) (paragraphs 48-49 above) and upon the further jurisprudence, particularly from the United States, considered in paragraphs 58-68 above. They further submit that a state cannot be required to indemnify such an official or person and can have no legitimate interest in advancing a claim to immunity in respect of a claim relating to systematic torture by any such official or person. Alternatively, they submit that, even if state immunity may in principle be asserted in respect of a claim against an official for systematic torture, its assertion must be justified by examination of its particular implications in the particular case, and that it cannot be justified if it would deny the victim an effective remedy for the substantive wrong inflicted on him or her and would thus conflict with the right of access to a court protected by article 6 of the European Convention on Human Rights.
70. The Kingdom and the Secretary for State submit that the claimants face a dilemma. The claims are for acts done by officials in an official context. If those acts were to be categorised simply as wrongful assaults inflicted by the officers on prisoners in an official context, then immunity ratione materiae would exist under the principle in Propend. That such acts were contrary to the law of Saudi Arabia cannot assist the claimants. That is no more than a pre-condition to the existence of an actionable tort, and the principle in Propend embraces situations where an official acts contrary to local law. Otherwise there would be little scope for its application at all. In these circumstances, in order to avoid the application of the principle in Propend, the claimants characterise the acts as systematic torture, contrary to international law and the Torture Convention. But, to do this, they must affirm that they were (in the language of article 1 of the Convention and the United Kingdom Act) acts by (or with the consent or acquiescence of) “a public official or other person acting in an official capacity”. On this basis, it is submitted, the claimants bring themselves within statements (cited above) regarding the scope of state immunity in such cases as Zoernsch v. Waldock, Jaffe v. Miller and Holland v. Lampen-Wolfe as well as Propend.
71. I do not accept that the claimants face any such unanswerable dilemma. Article 1 of the Torture Convention sets out to define torture “for the purposes of the Convention” by reference to (a) the nature of the act, (b) the types of purpose for which it must be committed, (c) the author and (d) the context, together with (e) a limited qualification (lawful sanctions). Characteristics (a) and (b) are covered by the requirement that the pain or suffering be inflicted by, etc., “a public official or other person acting in an official capacity”. It seems doubtful that the phrase “acting in an official capacity” qualifies the reference to “a public official”. The types of purpose for which any pain or suffering must be inflicted (characteristic (b)) 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. To this extent, I would also disagree with, in particular, Lord Millett's dictum in Pinochet (No. 3) at p.273 to the effect that “the very official or governmental character of the acts …. still operates as a bar to the civil jurisdiction of national courts” (cf paragraph 55 above). The whole tenor of the Torture Convention is to underline the individual responsibility of state officials for acts of torture: see e.g. article 2.3 (whereby “An order from a superior officer or a public authority may not be invoked as a justification of torture”) as well as articles 4 and 5 (establishing criminal jurisdiction) and article 14 (regarding civil liability), and I do not consider that one can derive from its definition of torture “for the purposes of the Convention” any conclusion on the different question whether a state can assert state immunity in respect of a civil claim against its officials based on allegations of systematic torture.
72. The Kingdom and the Secretary of State further submit that, since the state is clearly responsible for torture, committed by any of its officials in an official context, any suit against such an official indirectly impleads The Kingdom. A successful suit against an officer would, at one and the same time, establish the relevant state's responsibility under article 14(1) of the Torture Convention to “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”; and this, it may be said, underlines the extent to which such a suit impleads the relevant state. They also submit that to permit any suit against an official or other state agent for systematic torture would be to interfere with, and adjudicate upon, the internal affairs of another state.
73. With regard to the decision and reasoning in Pinochet, Mr Pannick submits that the immunity established in Pinochet arises from provisions of the Convention and of national law relating to criminal responsibility and is confined to that context, and that such dicta as there are in Pinochet regarding the civil position recognise The Kingdom's claim to immunity for its officers. He supports this general distinction between criminal and civil responsibility, by observing that (i) the prosecution of crime lies in the hands of the state, whereas civil proceedings are pursued by individuals, and that (ii) criminal proceedings usually depend on physical presence of the wrongdoer and effective punishment, whereas civil proceedings raise difficult issues regarding extra-territorial jurisdiction and execution. In relation to the submissions based on article 6, The Kingdom relies on Al-Adsani and submits that article 6 applies no more to an assertion of state immunity in respect of a claim against a state official than it does to such an assertion in relation to the state itself.
74. In Pinochet, the House was not directly concerned with any issue of civil liability. Propend, Filartiga and Hilao were cited in argument, but not in speeches, which, in the present context, refer to Jaffe v. Miller and other authorities not concerned with systematic torture or any equivalent international crime. The statements in Pinochet (No. 3) referred to in paragraph 54-57 above were not, as I see it, necessary, even for the decision of the three members of the House making them. Moreover, Lord Hutton's conclusion, shared with Lord Browne-Wilkinson (and in Pinochet (No. 1) by Lords Nicholls and Steyn), that Senator Pinochet's alleged acts could not be regarded as a function of a head of state might be thought to be of potentially general application to both the civil and the criminal sphere, while Lord Millett's and Lord Phillips's view that international law would not recognise state immunity in respect of the criminal prosecution of an alleged torturer even apart from the Torture Convention likewise invites enquiry why the position should differ in respect of a civil suit against such a torturer. On the other hand, the narrower reasoning of Lords Hope and Saville, based on the effect of the Torture Convention, points towards the continuing existence of civil immunity in respect of individual officials alleged to have committed torture. But the issue of civil liability was not squarely before the courts in Pinochet, and once it has been firmly established (as it has been by Pinochet No.3) that a state can claim no immunity in respect of an individual officer committing systematic torture in an official context, the issue whether there is or should be civil immunity seems to me to acquire a different complexion, and to start from a different point, to that which applied when the argument was proceeding the other way around.
75. Mr Pannick suggests that the general differences between criminal and civil law justify a distinction in relation to state immunity. I do not consider that these are as significant in this respect as he submits. Taking the basic considerations which underlie state immunity, criminal proceedings against individual alleged torturers involve domestic courts in “interfering in” and adjudicating upon the internal affairs of a foreign sovereign state. It is also natural that a state should stand behind its officials or agents in relation to contested allegations of torture, unless and until such allegations are proven. To that extent, criminal proceedings against an alleged torturer may be said indirectly to implead the foreign state. It is not easy to see why civil proceedings against an alleged individual torturer should be regarded as involving any greater interference in or a more objectionable form of adjudication upon the internal affairs of a foreign state.
76. Nor is it easy to see why a civil claim against an individual torturer should be regarded as indirectly impleading the foreign state in any more objectionable respect than a criminal prosecution. As I have indicated in paragraph 35 above, I am not impressed, in the context of claims for systematic torture, by suggestions that the relevant state would have to indemnify its officers. A state may well feel obliged to investigate for itself any allegations of torture. But this it should in any event do pursuant to the Torture Convention. A state is of course also always free to fund the defence of any claim. It is implausible to suppose that it would do so on the basis that it had authorised or condoned systematic torture. And if torture by one of its officials was confirmed it would presumably disown the official's conduct. There is no basis on which the state could be made liable to indemnify one of its officials proved to have committed systematic torture.
77. Claims against individual officials do not raise problems regarding execution against state property, such as those mooted in the concurring opinion of Judges Pellonpaa and Bratza in Al-Adsani. They suggested that permitting the pursuit of civil proceedings for torture against a state, on the ground that the law against torture was jus cogens, might have to be followed by allowing execution against state assets. That problem does not arise in respect of individuals. There would be no incongruity in allowing execution against the individual assets of an individual torturer, if these could be located and made the subject of execution. And any claim to hold the state itself responsible would have to be brought in that state, or in an international forum, and proved quite separately from any claim against the individual officer. I would add that, even if I were, like Judges Pellonpaa and Bratza, addressing the position of a state, I doubt whether it is axiomatic that adjudication on the substance of an issue such a systematic torture would involve taking power to execute against state assets. The argument that Judges Pellonpaa and Judge Bratza were meeting was that jus cogens was, literally, over-riding, and in that context it was a good point. But immunity from execution has been described as “the last fortress …. the last bastion of State immunity” (Professor Sucharitkul, International Law Commission Special Rapporteur in (1991) YBIL, vol. II, part 2 p. 13, cited by Hazel Fox QC in International Law at pp. 371-6, where the present position is examined. It is, however, unnecessary to go further into that aspect here.
78. What is, in my view, very relevant, both in relation to criminal proceedings and in relation to any civil claims that may be contemplated, is the need for some limits on jurisdiction or the exercise of jurisdiction. The limits to the criminal jurisdiction which states are required by the Torture Convention to establish appear in article 5 of the Convention, set out in paragraph 19 above. International law therefore recognises certain connecting links as justifying criminal jurisdiction, specifically links to the state (a) where the offence was committed or (b) of which the offender was a national or (c) of which the victim is a national “if that State considers it appropriate”, although it “does not exclude any criminal jurisdiction exercised in accordance with internal law”.
79. The provisions of article 5 underline the need for caution in defining and exercising jurisdiction, even in respect of international crimes contrary to jus cogens. One case in which the State Immunity Act 1978 expressly excludes state immunity in respect of civil claims is that of death, personal injury or damage or loss of tangible property caused by an act or omission in the United Kingdom (s.5). That section is not limited or specifically directed to international crimes, but it does include them. More importantly, there is the obvious potential for anomalies, if the international criminal jurisdiction which exists under the Torture Convention is not matched by some wider parallel power to adjudicate over civil claims. The prosecution of crime and the pursuit of civil proceedings are in many jurisdictions (as Breyer J observed in Sosa) very closely associated. In other jurisdictions like the English, Mr Pannick's absolute distinction seems incongruous in a situation like that in Filartiga, if the alleged torturer was actually within and being prosecuted in the jurisdiction pursuant to one or other of the provisions of article 5 of the Torture Convention. Despite the criminal investigation and proceedings, in respect of which no immunity could be claimed, the victim(s) of the alleged torture would be unable to pursue any civil claim.
80. Mr Pannick seeks to draw fundamental distinctions between crime and civil law. The first is that the prosecution of crime lies in the hands of the state, while civil proceedings are brought by individuals. I would accept that the general position is that criminal proceedings are initiated by the state (or by a public prosecutor or prosecution service on its behalf), and that further, in an English context, s.135 of the Criminal Justice Act 1988 requires any criminal proceedings in relation to torture to be brought by or with the consent of the Attorney General. However, international thinking and jurisprudence have over the last half century moved beyond the narrow view that international law is solely concerned with or enforceable by states. The United Nations Charter of Fundamental Rights and Freedoms, the European Convention on Human Rights, the reasoning of United States courts from the landmark decision in Fiiartiga onwards and the Torture Convention demonstrate a shift of international attention towards the protection of individual human rights. In addition, even where criminal jurisdiction can be founded, states may have their own reasons for pursuing or not pursuing criminal proceedings. The higher onus and evidential difficulties in criminal proceedings are only some such reasons. Civil proceedings have established a positive role in a domestic context where criminal proceedings have never been brought, or have been brought and have for some reason failed. The importance of civil redress is acknowledged by article 14 of the Torture Convention, which focuses on their compensatory function. But there are cases, and torture is among them, where the value of civil redress may be suggested to lie as much in terms of the ability to establish the truth and so to assist rehabilitation or closure as in terms of the prospect of any financial recovery. That is not to express any positive view that the truth-finding function of civil proceedings would by itself be a sufficient basis on which the courts of one state would consider it appropriate to exercise civil jurisdiction. I merely identify it as a possible factor, which, if relevant at all, could have to be balanced with other factors, including (amongst others) the likelihood or otherwise of the court hearing from both sides and the undoubted sensitivity of any exercise of jurisdiction in respect of torture allegedly occurring abroad. The difficulty we face is that the limited basis on which the present cases were decided below means that there was no argument there or before us about either the basis on which or circumstances in which jurisdiction could or should be exercised if state immunity is not an absolute bar to the claims against individuals.
81. Mr Pannick's second distinction is that criminal proceedings usually depend on the physical presence of the wrongdoer and effective punishment, whereas civil proceedings raise difficult issues regarding extra-territorial jurisdiction and execution. Execution can, for reasons already examined, be excluded as a relevant objection. Difficulties in determining the appropriate extent of jurisdiction are not, to my mind, satisfactorily resolved by adopting a principle which simply excludes all jurisdiction. Rather they should be addressed by considering (as does the Torture Convention in a criminal context) what is the appropriate extent of jurisdiction, both in general terms and in the particular case. The rules which limit and govern the exercise of the English courts' civil jurisdiction have considerable flexibility. Above all, the court's permission to serve out of the jurisdiction is required in a case like the present and will not be granted unless the court is satisfied that England and Wales is “the proper place in which to bring the claim” (CPR 6.20 and 6.21(2A)). Quite apart from any separate principle of state immunity, the fact that a civil claim was being brought against an official or agent of a foreign state in respect of conduct in that state, and the sensitivity of any adjudication by the courts of another state upon such an issue, would rightly feature as important factors in any decision whether or not to exercise any such jurisdiction. Even in a case where service can be effected within the jurisdiction, the English court has a general power to decline or stay the exercise of its jurisdiction on grounds that it is an inappropriate forum. It is true that considerations of forum non conveniens arise conventionally where there is another jurisdiction in which justice may be done more suitably: Spiliada Maritime Corp. v. Cansulex Ltd. [1987] AC 460; Connelly v. R.T.Z. Corp. plc [1998] AC 854; Dicey & Morris, The Conflict of Laws (13^th Ed.) Chap. 12. There could in some circumstances even be a potential tension between that general basic principle and the undesirability of exercising jurisdiction over allegations, even allegations of torture, entirely unrelated to this country in, for example, a case where an alleged individual torturer while passing transiently through this country happened to be served by an alleged victim or a case where a defendant is unlikely to appear here and any civil judgment is unlikely to be enforceable (cf also paragraph 86 below). Existing principles governing forum conveniens might even need some adaptation (cf in an American context a thought in the same direction expressed in an article by Aric K. Short Is the Alien Tort Statute sacrosanct? Retaining Forum Conveniens in Human Rights Litigation, NY Journal of International Law and Politics 2000-1, Vol. 33 1001, at p.1004 and 1081 et seq.) Many of the reservations which I have about the pursuit of the present claims are indeed related to the (unargued and unresolved) jurisdictional issues which they present. But, 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. There would, as I have said, be considerable incongruity in a solution whereby an alleged torturer who was and remained within the jurisdiction could be prosecuted but not sued (cf paragraph 79 above). Further, as I have noted, the immunity of state officials is anyway qualified, in so far as they may always be sued, whether or not within the jurisdiction, in respect of any act or omission taking place here causing personal injury or damage to property (s.5 of the 1978 Act). Mr Pannick's second point is therefore a forceful argument for sensitive handling of issues of discretion or forum conveniens arising in the context of any attempt to invoke English jurisdiction in respect of torture committed abroad by a foreign state official: cf the Court's remarks in Filartiga cited above. But I do not see it as a satisfactory justification for an absolute distinction between criminal and civil immunity.

European Convention on Human Rights

82. It is relevant at this point to consider the potential impact of article 6 of the European Convention on Human Rights on the issue of civil immunity. The European Court of Human Rights in Al-Adsani was concerned with the immunity from civil proceedings of the State of Kuwait, which the majority correctly described as a form of immunity ratione personae (cf paragraph 63). In the light of the reasoning in Al-Adsani, there can be no doubt (contrary to dicta of Lord Millett in Holland v. Lampen-Wolfe at p.1588) that article 6(1) is also prima facie engaged in a case such as the present. If the claimants are to be denied access to the English courts, this must be shown to be in pursuit of a legitimate aim and to be proportionate.
83. Approaching the matter from this angle, when one compares (a) a state's claim to immunity ratione personae, which was the issue before the European Court in Al-Adsani, with (b) a state's claim to immunity ratione materiae in respect of a claim against one of its officials, I see important distinctions. Above all, I find it impossible to identify any settled international principle affording the state the right to claim immunity in respect of claims directed against such an official, rather than against the state itself or its head or diplomats. Article 14(2) of the Torture Convention highlights this point (cf paragraph 21 above). The legislation and case-law of the United States (paragraphs 61-68 above) militate strongly against any such settled principle, and support a contrary view. As counsel for the Secretary of State observes in a different context in his further written submissions, paragraph 6, evidence of state practice in the form of national decisions can be indicative of international law. The case-law to which he refers as settled practice relates either to the immunity of a state itself (e.g. Al-Adsani and Siderman de Blake), or to the immunity of individual officials for alleged misconduct bearing no relationship in nature or gravity to the international crime of systematic torture (Propend etc.) The dicta of Judges Higgins, Kooijmans and Buergenthal in Congo v. Belgium are further confirmation that there is no settled international practice in relation to serious international crimes of that nature.
84. Secondly, there are, as I have emphasised, important differences between claims against a state itself and claims against an official alleged to have committed systematic torture. Although torture by one of its officials is a matter for which a state may be made civilly responsible under article 14(1), any claim to enforce that responsibility must be pursued in the state in question (or in an international forum), otherwise state immunity will still bar it. But, if claims against officials committing torture in the official capacity can be pursued elsewhere, the state will not be impleaded in any direct sense, and will not be obliged to indemnify any official or agent found to have committed systematic torture. Insofar as there may be said that there is interference in a foreign state's domestic affairs or that a foreign state is being indirectly impleaded, this would occur in civil proceedings in respects no more far-reaching than those already permitted in criminal proceedings under the Torture Convention or (on one view) under more general international legal principles.
85. Thirdly, it seems to me easy, for reasons already explained, to conceive of situations in which it would on its face be disproportionate to insist on or recognise a principle whereby a state can make an automatic claim for immunity on behalf of state officials alleged to have committed systematic torture. Since there should under article 14 be a domestic remedy for torture in the state where or by whose officials the torture was committed, other national courts can be expected to refuse, and as a general rule should no doubt refuse, to exercise jurisdiction where an adequate remedy exists (as it should) in the state where the torture was allegedly committed and the alleged torturer remains. But, where there is no adequate remedy in the state where the systematic torture occurs, it might well in my view be regarded as disproportionate to maintain a blanket refusal of recourse to the civil courts of another European jurisdiction, the courts of which would under their ordinary domestic rules possess and (apart from immunity) be able to exercise jurisdiction. One can take the example of an alleged torturer who was being prosecuted criminally in the country of the victim's nationality (cf article 5.1(c) of the Torture Convention) or in a country where the alleged torturer was present in circumstances where there was no question of extradition to the country where the torture was committed or of which he was a national (cf article 5.2). I express no view as to the situation in a case like the present where the English connection consists in the alleged victim's nationality and habitual residence and the suffering of psychological damage here.
86. One relevant factor when considering proportionality must therefore be whether the state where any alleged torture has occurred provides an effective domestic remedy for alleged systematic torture by its officials. 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. In saying this, I make clear that whether or not The Kingdom does offer an effective domestic remedy in relation to torture is not before us. We were shown certain material on which the claimants would rely to show that there was no such remedy. However, this will only be relevant if and when the point falls to be argued before the master.
87. It is a fundamental principle that rights conferred by the European Convention on Human Rights should be interpreted so as to be practical and effective, as well as consistent with the ideals of a democratic society. The European Court of Human Rights put the matter as follows in Soering v. UK (No. 1/1989/161/217) (1989) 11 EHRR 439:

“87. In interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 90, § 239). Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, the Artico judgment of 13 May 1980, Series A no. 37, p. 16, § 33). In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with "the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society" (see the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 27, § 53)”.

88. In Soering the right in question was the right to be free of torture under article 3, and, in that context, not to be sent to the state of Virginia, where Soering was likely to be sentenced to death and exposed to the “death row phenomenon”. Soering therefore also illustrates the need, in appropriate cases under the European Convention, to consider the treatment which a person would receive outside the territory of any state which is party to such Convention.
89. A similar approach to the interpretation and application of the Convention is applies under article 6. The Court stated in Airey v. Ireland (1979) 2 EHRR 305, para. 24:

“The Convention is intended to guarantee rights that are practical and effective …. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial. ….”

90. Fourthly, while the courts of one state should not lightly adjudicate upon the internal affairs of another state, there are many circumstances, particularly in the context of human rights, when national courts do have to consider and form a view on the position in or conduct of foreign states. There are also further and different principles (the doctrine of act of state in particular) which require courts to refrain from adjudication in situations in which no manageable standards exist to enable to such adjudication (cf Buttes Gas and Oil Co. v. Hammer and Kuwait Airways Corpn v. Iraqi Airways Co.to which I have already referred). But allegations of systematic torture are by themselves unlikely to raise such considerations: cf the statements in Kadic v. Karadzic cited in paragraph 66 above.
91. We are required under s.3(1) of the Human Rights Act 1998 “so far as it is possible to do so, [to] read and give effect” to primary legislation such as the State Immunity Act 1978 “in a way which is compatible with the Convention rights”. There is nothing in the 1978 Act which expressly covers the civil liability of state officials against whom conduct is alleged constituting serious international crime. The gap cannot be filled by a simple assertion that the immunity possessed by a state should be mirrored by an immunity possessed by the official whose act or omission has given rise to the state's immunity. There is, first, the important difference between the origins of a state's own immunity ratione personae and the immunity available to it to claim in respect of its officials, which is ratione materiae only. But, secondly, civil claims against individual officers raise different considerations to claims against states, and this is particularly so in the context of conduct amounting to the international crime of systematic torture. Further, in so far as the present case is concerned with underlying or residual common law principles, these are themselves sufficiently open and flexible to respond to the inspiration of the European Convention.

CONCLUSIONS

92. (1) In the light of paragraphs 82-91, I would conclude that, whatever the position may be apart from article 6 of the European Convention, it can no longer be appropriate to give blanket effect to a foreign state's claim to state immunity ratione materiae in respect of a state official alleged to have committed acts of systematic torture. To do so could deprive the right of access to a court under article 6 of real meaning in a case where the victim of torture had no prospect of recourse in the state whose officials committed the torture. But a proportionate approach in pursuit of a legitimate aim is, by definition, not the same as an approach requiring all states either to assume universal civil jurisdiction or (in the case of countries like England) to forego all discretionary qualifications on the breadth of their technical jurisdictional rules. In order to determine whether a claim for systematic torture should be allowed to proceed in the English courts, it would thus, on any view, be necessary for the court to consider and balance all relevant factors, including any evidence before it as to the availability or otherwise of an effective remedy for the torture in the state responsible for it. This exercise would have to be undertaken at the same time as considering any other jurisdictional issues which arise (including thereby issues of discretion and forum non conveniens). Only on that basis could it be possible to arrive at an appropriate conclusion, balancing all potentially relevant factors. The considerations underlying state immunity would continue to be relevant as factors to be weighed, especially in cases which had on their face little to do with England. An approach along these lines could be regarded as consistent with that towards which the New Zealand Court of Appeal was moving in Controller and Auditor-General v. Davison. I recognise that it would mean that sensitive issues are likely to arise regarding the availability of a remedy in the overseas jurisdiction where the alleged systematic torture occurred - in addition to the sensitive substantive issues which would fall to be tried regarding the commission of the alleged torture, if the domestic court upholds its jurisdiction to try them. But sensitive issues involving judgments about the treatment or protection that would be received in other countries not infrequently arise in a human rights context, and have been no bar to the exercise of jurisdiction over foreign states in respect of systematic torture in the United States (paragraphs 61-68 above).
93. (2) The discussion in paragraphs 69 to 91 above leaves open which is correct of two possible analyses, when construing the State Immunity Act 1978 and when developing by analogy the principles which either under it or at common law govern state immunity in respect of civil claims against state officials or agents. One (theoretically more modest) possibility is to take as the starting point an all-embracing view of the immunity conferred on states under the Act (other than in the rare cases falling within s.5), but to recognise that (in the light of article 6 of the European Convention on Human Rights) this immunity can now only exist in any particular case if and so far as it is pursuant to a legitimate aim and proportionate. Since there is no general principle of international law affording such immunity in respect of the international crime of systematic torture, it would follow that in every case the English courts must consider both (a) whether they have and whether it is appropriate to exercise jurisdiction under ordinary domestic principles and, additionally, (b) whether it would be in pursuit of a legitimate aim and proportionate to recognise state immunity in respect of the particular claim.
94. The other (more radical) possibility, in the absence of any generally established principles of international law in this field and in view of the need to construe the Act and to develop English law in a way which is consistent with the Convention, is to conclude that, even apart from the Human Rights Convention, states have no right under the Act or at common law to claim state immunity in respect of civil claims against their officers arising from the alleged commission of an international crime such as systematic torture. On this basis the indirect interest and involvement of the relevant foreign state in such a claim is no more than a factor, albeit an important factor, to be borne in mind when considering whether the English courts should exercise jurisdiction in any particular case.
95. Under English law, the choice between these two possibilities will often be more theoretical than real. The discretion which English courts exercise in matters of jurisdiction will in many if not most situations enable weight to be given to the considerations underlying the doctrine of state immunity, so far as it is proportionate to continue to take them into account. Elsewhere, perhaps, the choice may, at least under existing jurisdictional rules, be more significant practically. The same discretion is not a feature of all other European legal systems. They tend to prefer rules of jurisdiction more definite and inflexible - albeit still in some instances “exorbitant”: cf e.g. Annex 1 to Council Regulation (EC) No. 44/2001 and the outline of the heads of jurisdiction in different European countries in Layton and Mercer's European Civil Practice (2^nd Ed.) (2004) vol. 2. An absolute refusal to recognise state immunity, or the principles underlying it, as having any relevance in relation to allegations of systematic torture might conceivably, under existing jurisdictional rules, oblige some courts in such countries to exercise even the exorbitant jurisdiction provided by their domestic procedural rules. We did not however hear submissions on this point, but it is clear that in any new and developing area of law like the present, it may be necessary for any country to adapt or develop existing rules and principles.
96. (3) I would however conclude in the light of paragraphs 69 to 81 above that, even apart from the Human Rights Convention, a foreign state cannot possess (either under international law or under English common law and the United Kingdom's 1978 Act) any absolute right to claim immunity in respect of civil claims against its officials for systematic torture, even committed outside the country of suit. Further, in a jurisdiction like the English I would consider that it should be possible to cater for any concerns about the exercise of jurisdiction in respect of such claims by appropriate use or development of discretionary principles relating to the exercise of jurisdiction. But, even if that were not so either here or elsewhere, it 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 Human Rights Convention, 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. It also caters for all legitimate considerations, arising from the special position of states and the delicacy of suits indirectly involving them and their affairs. It does so by allowing ample scope for the sensitive handling of claims such as the present which is unquestionably necessary. For these reasons, I regret that we have not been able to consider all relevant issues on these appeals, and I consider that both sets of proceedings must be remitted to the master for further argument.
97. 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. Since we have not heard argument on such points, I will however say no more.
98. (4) It follows that The Kingdom has not made good its blanket claim to state immunity in respect of the civil proceedings for torture brought against the individual defendants. This appeal should be allowed accordingly and the applications for permission to serve out of the jurisdiction remitted to the master for further determination in the light of all relevant factors. I can however see no answer to the submission that state immunity must bar the claims for negligence against the third and fourth defendants by Messrs Mitchell, Sampson and Walker. Such claims fall directly within the principle in Propend. A similar objection may also apply to aspects of Mr Jones's claim falling short of allegations of torture, i.e. the allegations of simple assault and battery, trespass and false imprisonment, and in my view we need to hear counsel on them. Further, Messrs Mitchell's, Sampson's and Walker's claim for torture against the fourth defendant is one which can only be maintained on the basis that the claim is, as a matter of construction, based on his personal knowledge and instigation, consent or acquiescence within the language of the Torture Convention. Whether there is a good arguable case to that effect is not before us, and will have, if necessary, to be considered separately by the Master, along with the other issues (formal jurisdiction, discretion and forum conveniens) which are outstanding.
99. (5) In the result, therefore:

(a) I would dismiss Mr Jones's appeal against the master's decision setting aside service and striking out his claim as against The Kingdom.

(b) I would allow the appeals by Mr Jones and by Messrs Mitchell, Sampson and Walker against the master's refusal to permit service out of the jurisdiction against the individual defendants to both claims; and remit the applications for such service to the master for further consideration.

(c) I see no basis, however, for permitting service out in respect of the allegations of negligence embraced by the claim made by Messrs Mitchell, Sampson and Walker. We need also to hear counsel on the scope of Mr Jones's claim as mentioned in the preceding paragraph.

Neuberger LJ:

100. I agree with the judgments of Mance LJ and the Master of the Rolls.

Lord Phillips, MR:

101. Mance LJ has conducted a thorough review of the relevant jurisprudence. I agree with the reasoning that he has based on this and with the conclusions that he has reached. As my agreement is in conflict with a view that I expressed in the Pinochet case, I shall explain why I have concluded that that view was not correct.

The first appeal

102. This Court is bound to follow its own decision in Al-Adsani v Government of Kuwait No 2 (1996) 107 ILR 536. That decision was approved by a bare majority of the Grand Chamber of the Strasbourg Court 34 EHRR 11. This is a further reason why it should be followed. In consequence the Kingdom's claim to state immunity is valid and Jones' claim against the Kingdom must be dismissed.
103. I turn to the claim by Jones against Abdul Aziz. The averment that he was the 'servant or agent' of the Kingdom is now irrelevant and, arguably embarrassing. The issue is whether a claim can proceed against Colonel Abdul Aziz personally. That issue arises equally in respect of the claims against the four defendants in the second appeal and turns on the same principles. The decision in Al-Adsani does not determine that issue, for that dealt with the entitlement of a State to immunity from itself being subjected to the jurisdiction of our courts. It did not deal with the entitlement of a State to claim immunity in respect of the conduct by its officials of its business. The distinction between the two is critical in this case, and requires a little further explanation.

The nature of State immunity

104. State immunity is a restriction on the jurisdiction of states founded on international comity. It would be an affront to the dignity and sovereignty of a state for that state, or for an individual personifying that state, to be impleaded before the courts of another state. Immunity against such suit is accorded by reason of the status of the defendant, ratione personae in the language of the public international law jurist.
105. The dignity of a state may also be affronted if those who are or were its officials are impleaded in relation to the conduct of its affairs before the courts of another state. In those circumstances the state can normally extend the cloak of its own immunity over those officials. It can be said that to implead those officials amounts, indirectly, to impleading the state. Where immunity is accorded in these circumstances it is on the grounds of the subject matter of the litigation or ratione materiae. As the Latin terms are used in some of the authorities that I shall be discussing I propose to adopt them in this judgment.
106. Where a state official infringes the law of the state in the course of carrying out the business of the state, the state is not thereby precluded from claiming immunity ratione materiae.
107. These general principles of public international law are reflected in the approach of this court in Propend Finance v Sing (1997) 107 ILR 536 to the interpretation of the State Immunity Act 1978. Mance LJ has summarised the relevant parts of that decision and the authorities upon which it was based. I need add only that in Propend the claim to immunity was raised in contempt proceedings. The conduct in issue was the act of faxing information to Australia in breach of an undertaking given to the High Court. This appeal raises the issue of whether the reasoning in Propend applies where the conduct alleged against a state official is not merely unlawful but amounts to torture?
108. The crime of torture has acquired a special status under international law. It is an international crime or a breach of 'jus cogens. That status is reflected by the International Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 ('the Torture Convention') to which there are 148 signatories, including the United Kingdom and Saudi Arabia.
109. Article 1 of the Torture Convention defines torture as:

“… 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.”

110. While torture is committed by or with the complicity of a person who purports to be conducting the business of the state, the terms of the Torture Convention make it plain that committing torture is not and cannot be an activity of the state. This is clear from the following Articles:

“Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.”

“Article 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.”

“Article 14

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.”

111. These appeals raise the question of whether Saudi Arabia can claim immunity on the ground that the allegations against the individual defendants indirectly implead Saudi Arabia. Put another way, can Saudi Arabia contend that the actions alleged against the individual defendants constituted the conduct of the state's business? A similar question arose in the proceedings in which Spain sought the extradition of Senator Pinochet. It arose, however, in the context of immunity from criminal prosecution.

PINOCHET

112. The Pinochet extradition proceedings raised the question of whether the State of Chile could assert immunity in relation to torture allegedly committed by or at the instigation of Senator Pinochet, when he was head of state. As he was no longer head of state, he could not assert immunity ratione personae. However Chile contended that the subject matter of the offences alleged against Pinochet consisted of official acts, so that Chile was entitled to assert immunity ratione materiae.
113. Although the result of the first hearing in the House of Lords was set aside, R v Bow Street Metropolitan Stipendiary Magistrate, Ex p. Pinochet Ugarte (No. 2) [2000] 1 AC 6, it is helpful to consider the reasoning of Lord Nicholls of Birkenhead and Lord Steyn, who favoured the result that was reached when the appeal returned to the House. Lord Nicholls first considered the position under the State Immunity Act 1978. Section 20 of that Act confers on a head of state the immunity from civil and criminal jurisdiction that is enjoyed by a diplomatic agent. Lord Nicholls held at page 107 that had Senator Pinochet still been head of the Chilean state he would have been entitled to immunity from criminal prosecution. He held at page 110 that this was also the position under customary international law. It was thus his view that immunity ratione personae applied even to a charge of torture.
114. Lord Nicholls went on to consider whether Senator Pinochet's immunity from prosecution persisted notwithstanding that he had ceased to be head of state. He concluded that the effect of the 1978 Act was that Senator Pinochet enjoyed immunity in respect of acts that he had performed “in the exercise of his functions as a head of state”, that is ratione materiae. Lord Nicholls then turned to what he described as the crucial question. Were the acts of torture charged against Senator Pinochet done in the exercise of his functions as head of state? He concluded that they were not (page 109). While international law recognised that the functions of a head of state could include activities that were wrongful, or even illegal, international law had made plain that torture was not acceptable conduct on the part of anyone. Accordingly Senator Pinochet was not protected by immunity under the 1978 Act.
115. Turning to customary international law, Lord Nicholls reached the same conclusion. “Acts of torture…, outlawed as they are by international law, cannot be attributed to the state to the exclusion of personal liability” (page 110).
116. Lord Steyn reached the same conclusions. He held (page 113) that if Senator Pinochet had been head of state of Chile he would have been immune from the extradition proceedings. As he was no longer head of state, the issue was whether he enjoyed immunity ratione materiae. Lord Steyn questioned whether acts of torture, inflicted on the instructions of Senator Pinochet could constitute 'official acts' but concluded that, in any event, they were not part of the functions of a head of state. “The normative principles of international law do not require that such high crimes should be classified as acts performed in the exercise of the functions of a head of state” (page 116).
117. When the matter returned to the House of Lords, R v Bow Street Magistrate, ex parte Pinochet (No.3) 2000 1 AC 147, the majority drew the same distinction between immunity ratione personae and immunity ratione materiae. Lord Browne-Wilkinson held that the head of state enjoyed the same immunity as the state itself against criminal and civil liability (page 201). As a former head of state, however, Senator Pinochet only enjoyed immunity ratione materiae. Immunity attached to acts done as part of his official functions when head of state (p. 203). Lord Browne-Wilkinson expressed doubt as to whether, before the introduction of the Torture Convention, “the existence of the international crime of torture as jus cogens was enough to justify the conclusion that the organisation of state torture could not rank for immunity purposes as the performance of an official function”. He held, however, that the Torture Convention was incompatible with treating torture as a state function that gave rise to immunity. The continued immunity for ex-heads of state was inconsistent with the Torture Convention (p. 205).
118. Lord Hope of Craighead expressed the view that immunity ratione personae survived the Torture Convention (p.244). He held, however, that by the time that Chile signed the Torture Convention systematic torture, such as that alleged against Senator Pinochet, had achieved the status of an international crime. In relation to such crimes “a head of state is still protected while in office by the immunity ratione personae, but the immunity ratione materiae on which he would have to rely on leaving office must be denied to him” (p. 248).
119. Lord Hutton observed that it was conceded that a serving head of state was entitled to immunity ratione personae in respect of acts of torture. The issue was whether Senator Pinochet as a former head of state could claim immunity ratione materiae on the ground that the acts of torture with which he was charged had been done by him in exercise of his functions as head of state. He could not, because the Torture Convention made it clear that no state was to tolerate torture by its public officials (page 261).
120. Lord Saville considered that the fact that Chile had agreed to the Torture Convention was of critical importance. That fact did not remove the immunity of their head of state ratione personae, which was unrelated to whether or not he was acting in an official capacity. It did, however preclude Chile from objecting to Senator Pinochet being prosecuted for his conduct, for this was precisely what they had agreed to under the Convention.
121. At the outset of his speech Lord Millett emphasised the distinction between immunity ratione personae and ratione materiae. He held that had Senator Pinochet been a serving head of state he could not have been extradited as it would have been an intolerable affront to the republic of Chile to arrest or detain him (page 269). Torture had, however, long before the Torture Convention become recognised as a crime against international law. There was universal jurisdiction in respect of such crimes provided that they were contrary to a peremptory norm of international law so as to infringe a jus cogens and so serious and on such a scale that they could justly be regarded as an attack on international legal order (page 275).
122. I concluded that the Torture Convention could not remove, implicitly, immunity ratione personae. It was, however, incompatible with the applicability of immunity ratione materiae (pages 289-90). I also held that, as a matter of statutory interpretation of the State Immunity Act 1978 the official functions of a head of state could not extend to actions that were prohibited as criminal under international law.
123. In summary, Lord Nicholls, Lord Steyn, Lord Browne-Wilkinson, Lord Hope and Lord Hutton concluded that the torture alleged against Senator Pinochet could not constitute official acts performed by him as head of state so as to attract state immunity ratione materiae. This was because such conduct constituted an international crime contrary to jus cogens. Lord Browne-Wilkinson, and possibly Lord Hutton, concluded that it only achieved this status as a result of the Torture Convention. Lord Saville and I held that to claim immunity ratione materiae in respect of torture was incompatible with Chile's agreement to the Torture Convention.
124. It thus emerges clearly from the majority that a state cannot assert immunity ratione materiae in relation to a criminal prosecution for torture in as much as torture is a breach of jus cogens under international law. This does not merely apply to those states who are party to the Torture Convention. The Torture Convention reflects the position under public international law.
125. In Pinochet Lord Browne-Wilkinson drew no distinction between immunity in the case of criminal and civil proceedings. Lord Nicholls, Lord Steyn and Lord Saville made no mention of civil proceedings. Lord Hutton, Lord Millett and I each expressed the view, however, that Chile would have been entitled to invoke state immunity had Senator Pinochet been sued in civil proceedings. For reasons which I shall now explain I consider that these views were wrong.
126. Lord Hutton stated that both Chile and Senator Pinochet could claim immunity if sued for damages in civil proceedings, citing Jaffe v Miller 13 O.R.(3d) 745. Mance LJ has considered that case at paragraph 35 above. It does not seem to me that the reasoning in that case can be applied to torture. Pinochet demonstrates that torture can no longer fall within the scope of the official duties of a state official. It would be absurd to suggest that a state is bound to indemnify its officials for conduct which states have outlawed, and in respect of which the signatories to the Torture Convention have agreed to prosecute offenders and to compensate victims.
127. Lord Millett commented (page 278):

“In my opinion, acts which attract state immunity in civil proceedings because they are characterised as acts of sovereign power may, for the very same reason, attract individual criminal liability. The respondents relied on a number of cases which show that acts committed in the exercise of sovereign power do not engage the civil liability of the state even if they are contrary to international law. I do not find those decisions determinative of the present issue or even relevant. In England and the United Sates they depend on the terms of domestic legislation; though I do not doubt that they correctly represent the position in international law. I see nothing illogical or contrary to public policy in denying the victims of state sponsored torture the right to sue the offending state in a foreign court while at the same time permitting (and indeed requiring) other states to convict and punish the individuals responsible if the offending state declines to take action.”

The first sentence of this passage infers that torture might attract state immunity in civil proceedings ratione materiae. Insofar as it does, I would dissent from it. Once the conclusion is reached that torture cannot be treated as the exercise of a state function so as to attract immunity ratione materiae in criminal proceedings against individuals, it seems to me that it cannot logically be so treated in civil proceedings against individuals.

128. I turn to my own comments in Pinochet. I said (page 281):

“Were these civil proceedings in which damages were claimed in respect of acts committed by Senator Pinochet in the government of Chile, Chile could argue that it was itself indirectly impleaded. That argument does not run where the proceedings are criminal and where the issue is Senator Pinochet's personal responsibility, not that of Chile”

On reflection I have concluded that the argument does not run in relation to civil proceedings either. If civil proceedings are brought against individuals for acts of torture in circumstances where the state is immune from suit ratione personae, there can be no suggestion that the state is vicariously liable. It is the personal responsibility of the individuals, not that of the state, which is in issue. The state is not indirectly impleaded by the proceedings.

129. I also cited Hatch v Baez 7 Hun 596. In that case the former President of St Domingo was held protected by state immunity from civil suit in respect of acts done when president. It was held that under international law the courts of one country were bound to abstain from sitting in judgment on the acts of another government done within its own territory. I would now comment that this principle loses its relevance once it is held that torture cannot constitute an act of government. I would add that, were torture to be treated as an act of government, the principle would, so far as torture is concerned, be abrogated by the Torture Convention.
130. I return to Propend. The reasoning in that case is encapsulated in the following sentence from the judgment:

“The protection afforded by the Act of 1978 to States would be undermined if employees, officers (or as one authority puts it, “functionaries”) could be sued as individuals for matters of State conduct in respect of which the State they were serving had immunity. Section 14(1) must be read as affording to individual employees or officers of a foreign State protection under the same cloak as protects the State itself.”

That principle has no application if (i) the State's immunity is not “in respect of conduct” but is ratione personae and (ii) the subject matter of the action does not rank as “matters of State conduct”. That is the position in the present case and, for that reason, Propend does not establish that state immunity attaches to the claims against the individual defendants.

131. For these reasons I have 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.

The approach of the Strasbourg Court

132. 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 v United Kingdom (2002) 34 EHRR 11.Thus, in commenting on the decision in Pinochet, they said (paragraph 34):

“The House of Lords made clear that their findings as to immunity ratione materiae from criminal jurisdiction did not affect the immunity ratione personae of foreign sovereign States from civil jurisdiction in respect of acts of torture.”

133. The Court commented (paragraphs 63 and 65) on the implications of two developments:

“”… first, the exception to immunity adopted by the United States in the amendment to the Foreign Sovereign Immunities Act (“FSIA”) which had been applied by the United States courts in two cases; secondly, the ex parte Pinochet (No.3) judgment in which the House of Lords “emphasised the limits of immunity in respect of gross human rights violations by State officials”. The Court does not, however, find that either of these developments provides it with a firm basis on which to conclude that the immunity of States ratione personae is no longer enjoyed in respect of civil liability for claims of acts of torture, let alone that it was not enjoyed in 1996 at the time of the Court of Appeal's judgment in the present case.”

“As to the ex parte Pinochet (No 3) judgment, the Court notes that the majority of the House of Lords held that, after the Torture Convention and even before, the international prohibition against official torture had the character of jus cogens or a peremptory norm and that no immunity was enjoyed by a torturer from one Torture Convention State from the criminal jurisdiction of another. But, as the working Group of the ILC itself acknowledged, that case concerned the immunity ratione materiae from criminal jurisdiction of a former head of State, who was at the material time physically within the United Kingdom. As the judgments in the case made clear, the conclusion of the House of Lords did not in any way affect the immunity ratione personae of foreign sovereign States from the civil jurisdiction in respect of such acts. In so holding, the House of Lords cited with approval the judgments of the Court of Appeal in the Al-Adsani case itself.”

134. 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.
135. These are my reasons for agreeing with the conclusions of Mance LJ. I would add that, like him, I consider it unsatisfactory that the issue of immunity should have been considered divorced from the question of jurisdiction. It does not follow from the fact that Saudi Arabia cannot invoke state immunity in relation to claims founded on the conduct of its officials in Saudi Arabia that it is appropriate for such claims to be brought in this jurisdiction. Nice questions as to the exercise of jurisdiction may well remain to be resolved.
136. For these reasons I concur in the order proposed by Mance LJ.

Order:

1. Mr Jones' appeal against the master's decision setting aside service and striking out his claim as against The Kingdom dismissed.

2. Appeals by Mr Jones and Messrs Mitchell, Sampson and Walker against the master's refusal to permit service out of the jurisdiction against the individual defendants to both claims; and remit the applications for such service to the master for further consideration allowed with costs of the appeal against the Kingdom.

3. Agreed between the parties that the position as to other matters to be dealt with in writing and to be reserved to be taken in conjunction with the Master of the Rolls.

4. The UK to be joined as a party to the case of Mitchell & Ors for the purposes of appealing to the House of Lords.

5. The Secretary of State to be joined to the case of Jones for the purposes of appealing to the House of Lords.

6. The Secretary of State to submit submissions as to costs and petition to the House of Lords within 7 days, reply to follow within 4 days thereafter.

7. Counsel to provide agreed Minute of Order.

(Order does not form part of approved judgment)