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Lord Justice Mance : |
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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. HQ020 X01805) 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 16th March to 21st 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 15th 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.
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| 2. | The second claim (No. HQ04 X00431) 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:
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At all material times the First Defendant was a captain in the Saudi Arabian police force. He is now a Major.
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At all material times the Second Defendant was a lieutenant in the Saudi Arabian police force.
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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.
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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.”
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| 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:
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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.
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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.
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| 4. | Attempts to serve Mr Jones's claim (No. HQ020 X01805) on The Kingdom and on the second defendant, Lieutenant Colonel Aziz, led to acknowledgement by The Kingdom's then solicitors, Messrs Pinsent, on 29th 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:
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“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.”
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| 5. | On 12th 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 1978Acts 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.
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| 6. | In a letter dated 26th 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 14th 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.
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| 7. | The Kingdom's and Mr Jones's applications came before Master Whitaker on 30th 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:
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“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”.
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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.
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| 8. | The three claimants in claim No. HQ04 X00431 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 18th 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:
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“…. 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”.
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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.
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| 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.
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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:
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"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."
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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 & Oil Co v Hammer [[1988] AC 888, 932E-F] per
Lord Wilberforce and Kuwait Airways Corpn v Iraqi Airways Co (Nos. 3 & 4)[ [2002] UKHL
19(Bailii); [2002] 2 AC 883(Bailii), 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]).
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| 11. | Part I of the State Immunity Act 1978Acts defines, for most purposes, the current English position regarding state immunity in civil proceedings. By s.1:
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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.
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A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.”
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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.
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| 12. | Under the heading “Supplementary Provisions”, s.14 of the 1978 Act provides:
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| “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-
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the sovereign or other head of that State in his public capacity;
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the government of that State;
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any department of that government,
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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.
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A separate entity is immune from the jurisdiction of the courts of the United Kingdom if, and only if-
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the proceedings relate to anything done by it in the exercise of sovereign authority; and
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the circumstances are such that a State …. would have been so immune.”
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| 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:
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“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)
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and that, in consequence
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“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).
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| 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(Bailii)] 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
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“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”.
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They pointed out that
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“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).
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They concluded by saying that
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“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).
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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.
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| 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.
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| 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.
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| 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.
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| 18. | Reliance was also placed by Mr Crystal on article 14(1) of the Torture Convention, which provides:
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| “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.
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Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.”
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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.
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| 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:
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| “4.1 |
Each State Party shall ensure that all acts of torture are offences under its criminal law. ….
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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:
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When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
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When the alleged offender is a national of that State;
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When the victim is a national of that State if that State considers it appropriate.
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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.
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This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.”
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| 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.
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| 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.
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| 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 & 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.
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| 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, 6th 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”:
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“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 1978Acts, enacting customary international law and the Vienna Convention on Diplomatic Relations (1961)”
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See Pinochet (No. 3)[ per Lord Millett at p. 268]; and see also per Lord Phillips at p.280.
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| 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.
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| 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.
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| 26. | Mr Crystal also submits, if necessary, that we should declare s.1(1) of the State Immunity Act 1978Acts 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.
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| 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.
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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”.
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| 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 CPR 6.20(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.
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| 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, 6th 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 29th 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.
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Propend Finance Pty Ltd v Sing |
| 31. | The starting point in English law is Part I of the State Immunity Act 1978Acts. 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:
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“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.”
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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.
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| 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
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“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”.
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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.
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| 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
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“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”.
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| 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”.
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| 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
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“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”.
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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:
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“….. 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.”
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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.
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| 36. | Prior to the State Immunity Act 1978Acts 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.
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| 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).
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| 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).
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| 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.
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| 40. | A further New Zealand authority not cited in Propend is of interest. In Controller & 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:
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“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”.
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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
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“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.”
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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:
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“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 ”
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| 41. | Henry J considered that there was “merit in the line of reasoning adopted” in Richardson J's judgment, but that it was debatable
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“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.”
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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.
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| 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.
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| 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.
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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:
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| “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.”
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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 1988Acts, whereby:
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“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.”
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| 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 1978Acts
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(Bailii)]. 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.
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| 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 11th 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(Bailii)] as well as
Pinochet (No. 3)[ [2000] 1 AC 147].
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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)):
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“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.
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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."
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The 1954 International Law Commission's draft code of offences against the peace and security of mankind provided in Article III:
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"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."
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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
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“The idea that individuals who commit international crimes are internationally accountable for them has now become an accepted part of international law”.
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| 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:
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“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.”
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Lord Steyn identified the critical question as one of classification in an international law sense. He doubted whether
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“what was allegedly done in secret in the torture chambers of Santiago on the orders of General Pinochet [should] be regarded as official acts”
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but added that
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“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”.
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| 49. | In Pinochet (No. 3) Lords Browne-Wilkinson and Hutton expressed similar views. Lord Browne-Wilkinson said at pp.205-6:
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“How can it be for international law purposes an official function to do something which international law itself prohibits and criminalizes?”
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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):
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“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.”
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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
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“a function of the head of state of Chile under international law”.
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| 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:
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“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.”
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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:
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“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. |
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This led him to sum the matter up in this way at p. 81D-G:
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“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.”
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| 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.
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| 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).
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| 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:
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“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.”
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At p.290 he continued:
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“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.”
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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.
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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:
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“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 ….
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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)
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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.
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| 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:
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“Senator Pinochet could also claim immunity if sued in civil proceedings for damages under the principle in Jaffe v Miller …”
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Lord Millett at p.273 said in passing, in relation to the Torture Convention that:
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“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.”
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In a later passage at p. 278, Lord Millett observed:
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“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.”
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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.
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| 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:
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“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.”
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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:
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“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.”
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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”:
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| “(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.
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This rule applies even if the conduct amounts to a crime against international law. …..”
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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.
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| 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).
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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 & 5)[ [2002] UKHL 19(Bailii); [2002] 2 AC 883(Bailii)]. But the Tribunal's statement does not address the prior question of immunity, and its assumption that jurisdiction existed does not carry matters far.
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| 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:
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| “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 & the Commissioner of Police for the Metropolis, 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].)” |
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| 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:
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“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.”
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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.
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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 18th 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. ]
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| 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:
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“torture is now prohibited by the law of nations” (p. 884) ….
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“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) ….
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“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).
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Kaufman J also noted at p.884 the observation made by the United States to a Joint Congressional Committee that:
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“…. 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.”
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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:
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“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).
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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:
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“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).” |
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The source of the state's immunity from suit in ex p. Young was the 11th 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.
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| 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 1978Acts, that:
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“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)
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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:
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“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].”
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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:
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“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.”
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| 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.
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| 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:
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“[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”
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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.
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| 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 proscrip |