European Court of Human Rights
The European Court of Human Rights (ECtHR) issued a judgment last week upholding a British court’s grant of immunity to Saudi Arabia and Saudi officials who allegedly tortured British citizens. See ECtHR, Jones and Others v. United Kingdom, nos. 34356/06 and 40528/06, ECHR 2014, Judgment of 14 January 2014. The UK House of Lords had blocked the plaintiffs’ civil suits on the grounds that Saudi Arabia and its officials were entitled to immunity, a decision the European Court found did not contravene Article 6(1) of the European Convention on Human Rights, which protects the right to a fair trial. See id.; Jones v. Ministry of Interior for Kingdom of Saudi Arabia and Others  UKHL 26 (14 June 2006). The decision has been met with a fair amount of criticism. [Opinio Juris; EJIL: Talk!]
Four British nationals (Jones, Mitchell, Sampson, and Walker) allege that Saudi agents systematically tortured them during their imprisonment in connection with a criminal investigation. See Jones and Others v. United Kingdom, Judgment of 14 January 2014, paras. 1, 7, 8, 11. Jones alleges he was hospitalized for injuries when a bomb exploded in Riyadh, Saudi Arabia, and State officials took him from the hospital to prison. Id. at para. 7. Jones alleges that Lieutenant Colonel Abdul Aziz tortured him in prison, where he was unlawfully detained for 67 days. Id. Mitchell, Sampson, and Walker were arrested in Riyadh, and allege they were held in prison for over two and a half years, during which tie they falsely confessed to involvement with bombings in Riyadh. Id. at para. 11. [REDRESS]
Jones commenced a civil proceeding for damages in the High Court against the Ministry of Interior for the Kingdom of Saudi Arabia and Lieutenant Colonel Abdul Aziz. See Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and Lieutenant Colonel Abdul Aziz, High Court, Queen’s Bench Division (30 July 2003). Mitchell, Sampson, and Walker brought a civil claim for damages in the High Court against two policemen, the deputy governor of the prison, and the Minister of the Interior. See Jones and Others v. United Kingdom, Judgment of 14 January 2014, para. 12.
After the High Court found that Saudi Arabia and its officials enjoyed immunity, the two cases were joined before the Court of Appeal. See Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (The Kingdom of Saudi Arabia) and Lieutenant Colonel Abdul Aziz, High Court, Queen’s Bench Division (30 July 2003), para. 36. The Court of Appeal upheld the lower court’s finding regarding State immunity, but denied immunity to State officials. See Jones v. Al-Mamlaka Al-Arabiya AS Saudiya (The Kingdom of Saudi Arabia) Ministry of Interior and Anor  EWCA Civ 1394 (28 October 2004), paras. 99–101, 136.
On further appeal, the House of Lords held that neither the State nor its officials could be sued for damages, rejecting the applicants’ arguments that torture could not be considered an official act for which the State or its agents enjoyed immunity. See Jones v. Ministry of Interior for Kingdom of Saudi Arabia and Others, 14 June 2006, paras. 35, 102–105. Lord Bingham’s opinion concluded that immunity applied because: the International Court of Justice’s caselaw established that other rules of international law could override the prohibition on torture, the UN Convention Against Torture did not provide for universal civil jurisdiction, the UN Convention on Jurisdictional Immunities of States and Their Property did not provide an exemption from immunity for civil claims relating to torture, and there was no customary international norm requiring the exercise of universal jurisdiction over claims alleging violations of peremptory norms of international law. See id. at para 30.
Applicants’ Position before the ECtHR
Before the European Court of Human Rights, the applicants contended that granting immunity to Saudi Arabia and its officials violated their right to a fair trial under Article 6 of the European Convention on Human Rights. Article 6(1) provides that in determining “civil rights and obligations… everyone is entitled to a fair and public hearing.” The applicants argued that preventing them from seeking damages from Saudi Arabia and its officials in British courts denied their right to access justice. [REDRESS]
The applicants argued that the UK could only limit their right to a remedy through restrictions that served “a legitimate aim and [were] proportionate” to the State’s interest. See Jones and Others v. United Kingdom, Judgment of 14 January 2014, para. 166. The applicants claimed that the “importance of the right of access to court was heightened because the context was a civil claim for torture, the prohibition of which was jus cogens under international law.” Id. Jus cogens are fundamental norms from which derogation is never permitted, regardless of any conflict with other international norms. [IJRC]
The applicants asserted that granting immunity in this context was disproportionate to the State’s aim of preserving good relations with Saudi Arabia by respecting its sovereignty under international law, because granting immunity “completely [blocks] the judicial determination of a civil right without balancing the competing interests.” See Jones and Others v. United Kingdom, Judgment of 14 January 2014, para. 166, 168–69. Amnesty International, Redress Trust, INTERIGHTS, and JUSTICE intervened in the case, and contributed to the discussion of disproportionality with regard to immunity for the foreign officials.
ECtHR Chamber Judgment
The Court found no violation of Article 6 of the Convention. It explained that the right to access the court is not absolute, and may be limited if the restriction “pursues a legitimate aim and has a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.” See Jones and Others v. United Kingdom, Judgment of 14 January 2014, para. 186. The Court reasoned that if granting immunity to the State is “intended to comply with international law on State immunity,” the aim of that limitation on the access to court is legitimate. See id. at para. 200. The Court held that the House of Lords’ application of the State Immunity Act of 1978 pursued this legitimate aim. See id.
With regard to whether the British courts’ rejection of the applicants’ civil claims was proportionate to this legitimate aim, the Court framed its inquiry to determine whether the UK was acting in a manner consistent with “generally recognized rules of public international law on State immunity,” the application of which it has held “cannot in principle be regarded as… disproportionate” under Article 6.1. Id. at para. 189.
Considering Al-Adsani v. the United Kingdom [GC], no. 35763/97, Judgment of 21 November 2001, ECHR 2001‑XI, in which the Grand Chamber found that State immunity for acts of torture committed abroad did not contravene Article 6(1), the European Court noted:
The sole question for the Court is whether there had been, at the time of the decision of the House of Lords in 2006 in the applicants’ case, an evolution in the accepted international standards as regards the existence of a torture exception to the doctrine of State immunity since its earlier judgment in Al-Adsani such as to warrant the conclusion that the grant of immunity in this case did not reflect generally recognised rules of public international law on State immunity.
Id. at para.196.
The Court then determined there was no exception to the generally accepted rule of granting immunity to the State in cases of torture. See Jones and Others v. United Kingdom, Judgment of 14 January 2014, para. 191 Although the prohibition of torture is a jus cogens norm that overrides other sources of international law, the Court looked to an ICJ decision from 2012, which established that there is no jus cogens exception to State immunity. See Jones and Others v. United Kingdom, Judgment of 14 January 2014, para. 198 (citing Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, 3 February 2012, ICJ Reports 2012, p. 99). Consequently, the Court determined that at the time the House of Lords’s decision in this case, there was not a “torture exception” to State immunity. See Jones and Others v. United Kingdom, Judgment of 14 January 2014, para. 196.
The Court proceeded to examine whether State officials were also entitled to immunity. The Court answered this question in the affirmative, reasoning that “an act cannot be carried out by a State itself but only by individuals acting on the State’s behalf,” and therefore State immunity must apply to individual officials because “[i]f it were otherwise, State immunity could always be circumvented by suing named officials.” Id. at para. 202.
In finding that the UK’s grant of immunity ratione materiae to State official reflects generally recognized rules of public international law, the Court looked to the UN Convention on Jurisdictional Immunities of States and Their Property definition of “State” which includes representatives of the State acting in their official capacity; an International Law Commission Special Rapporteur’s Report finding immunity of State officials to be “fairly widely recognized” as “the norm”, absent a special exception; and domestic and international jurisprudence attributing officials’ acts to the State when performed in the course of their service. Id. at paras. 202-04.
The Court held that no special rule or exception applied to State officials’ immunity in cases of alleged torture, although it acknowledged that this area of law is evolving Id. at paras. 205-13. In response to the argument that Article 14 of the UN Convention Against Torture abrogated any international norm providing immunity for State officials accused of torture because the Committee Against Torture has interpreted it to require States to exercise universal civil jurisdiction over torture claims, the Court found that the applicants failed to cite any judicial decisions supporting this principle. Id. at para. 208.
The Court analyzed international and national caselaw, ultimately identifying “some emerging support in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged against foreign State officials,” but concluded that the bulk of authority supported granting immunity to State officials so that State immunity cannot be circumvented by suing individual agents. Id. at para. 213. The Court ruled that granting immunity to State officials in this context “reflected generally recognised rules of public international law.” Id. at para. 215.
As has been noted elsewhere, the Court did not address whether there were other, alternative avenues of redress available to the applicants in determining whether the State Immunity Act of 1978’s restrictions were proportional. [EJIL: Talk!] Although the applicants had urged it to examine this question, the Court seemed instead to adopt the International Court of Justice’s reasoning in Jurisdictional Immunities of the State, finding “no basis in State practice for the assertion that international law made the entitlement of a State to immunity dependent upon the existence of effective alternative means of securing redress.” See Jones and Others v. United Kingdom, Judgment of 14 January 2014, paras. 94, 194.
International Opinion on Jus Cogens Violations and Immunity
In arriving at its decision, the European Court cited cases suggesting changes in international opinion regarding immunity and jus cogens violations. See Jones and Others v. United Kingdom, Judgment of 14 January 2014, para. 209. In Prosecutor v. Furundzija (Case IT-95-17/1-T), ICTY, Trial Chamber, Judgment of 10 December 1998, § 155, the Tribunal stated that the prohibition on torture has acquired the status of a jus cogens norm and, when violated, there is a possibility that “the victim could bring a civil suit for damage in a foreign court.”
The Court cited the joint separate opinion from the ICJ’s “Arrest Warrant Case”, detailing how immunity shields State officials from “official” acts and identifying a trend against finding “serious international crimes” to be “official acts because they are neither normal State functions nor functions that a State alone (in contrast to an individual) can perform.” See Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, ICJ Reports, 14 February 2002, p. 63, § 85.
Additionally, the Special Court for Sierra Leone has discussed developments in international human rights law regarding impunity, reflecting “a growing recognition that human rights cannot be secure unless political and military leaders tempted to breach them can be deterred by the real prospect of trial and punishment.” See SCSL, Prosecutor v. Allieu Kondewa, (Case SCSL-2004-14-AR72(E)), Appeals Chamber Decision on Lack of Jurisdiction/Abuse of Process: Amnesty Provided by the Lomé Accord, 25 May 2004, para. 19. The SCSL added that this “growing resolve of the international community to end impunity is also reflected in the way international law has restricted and in some cases denied sovereign immunity for crimes against humanity.” See id.
Although these cases suggest that jus cogens violations may override immunity, this is apparently is not yet widely accepted as an established norm at the domestic or international levels. As the Human Rights Committee stated, the current jurisprudence “does not preclude a development in customary international law in the future” that would allow jus cogens to take precedence over sovereign immunity. See Human Rights Committee, Sechremelis et al. v. Greece, Communication No. 1507/2006, U.N. Doc. CCPR/C/100/D/1507/2006/Rev.1 (2011), para. 4.5.
In the final paragraph of the Jones and Others judgment, the European Court acknowledges the strength of these developments, writing:
In these circumstances, the Court is satisfied that the grant of immunity to the State officials in the present case reflected generally recognised rules of public international law. […] However, in light of the developments currently underway in this area of public international law, this is a matter which needs to be kept under review by Contracting States.
Jones and Others v. United Kingdom, Judgment of 14 January 2014, para. 215.
For more information on torture, immunity, and jus cogens, see IJRC’s Thematic Guide on Torture; Erika de Wet, The Prohibition of Torture as an International Norm of jus cogens and its Implications for National and Customary Law, 15 EJIL (2004); and REDRESS, Immunity v. Accountability: Considering the Relationship between State Immunity and Accountability for Torture and Other Serious International Crimes (2005).