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Public International Law

Immunity from National Jurisdiction and Diplomatic Protection

Greece Intervening (Germany vs Italy)


FACTS
shortened
Italian civilians brought a number of civil claims in various Italian courts against the German
government for the atrocities committed in the latter stages of World War II, including the
imprisonment, forced labor, and murder of civilians. The Italian courts ruled in favor of the Italian
civilians. Germany (plaintiff) filed an application with the International Court of Justice, seeking to
have the judgments set aside on account of the German government’s jurisdictional immunity.
Italy (defendant) argued that the jus cogens rules against the imprisonment, forced labor, and
murder of civilians conflicted with the customary international law of immunity. As a result,
Italy argued that the jus cogens status of the prohibitions must override the law of immunity.

On 23 December 2008, the Federal Republic of Germany instituted proceedings against the Italian
Republic, requesting the Court to declare that Italy had failed to respect the jurisdictional
immunity which Germany enjoys under international law by allowing civil claims to be brought
against it in the Italian courts seeking reparation for injuries caused by violations of international
humanitarian law committed by the Third Reich during the Second World War. In addition,
Germany asked the Court to find that Italy had also violated Germany’s immunity by taking
measures of constraint against Villa Vigoni, German State property situated in Italian territory.
Finally, Germany requested the Court to declare that Italy had breached Germany’s jurisdictional
immunity by declaring enforceable in Italy decisions of Greek civil courts rendered against
Germany on the basis of acts similar to those which had given rise to the claims brought before
Italian courts. Germany referred in particular to the judgment rendered against it in respect of the
massacre committed by German armed forces during their withdrawal in 1944, in the Greek village
of in the Distomo case.

As basis for the Court’s jurisdiction, Germany invoked Article 1 of the European Convention for
the Peaceful Settlement of Disputes of 29 April 1957, ratified by Italy on 29 January 1960 and by
Germany on 18 April 1961.

The Memorial of Germany and the Counter-Memorial of Italy were filed within the time-limits
fixed by the Order of the Court of 29 April 2009. In its Counter-Memorial, Italy, referring to Article
80 of the Rules of Court, made a counter-claim “with respect to the question of the reparation
owed to Italian victims of grave violations of international humanitarian law committed by forces
of the German Reich”. Italy based the Court’s jurisdiction to entertain that counter-claim on Article
1 of the European Convention, taken together with Article 36, paragraph 1, of the Statute of the
Court. Italy further asserted that there was “a direct connection between the facts and law upon
which [it] relies in rebutting Germany’s claim and the facts and law upon which [it] relies to support
its counter-claim”. The Court found that the counter-claim presented by Italy was inadmissible,
because the dispute that Italy intended to bring before the Court by way of its counter-claim
related to facts and situations existing prior to the entry into force as between the parties of the
European Convention for the Peaceful Settlement of Disputes of 29 April 1957, which formed the
basis of the Court’s jurisdiction in the case (Order of 6 July 2010).

After the filing of the aforementioned Memorial and Counter-Memorial, the Court authorized the
submission of a Reply by Germany and a Rejoinder by Italy.

On 13 January 2011, Greece filed an Application requesting permission to intervene in the case.
In its Application, Greece stated that it wished to intervene in the aspect of the procedure relating
to judgments rendered by its own courts on the Distomo massacre and enforced (exequatur) by
the Italian courts. The Court, in an Order of 4 July 2011, considered that it might find it necessary
to consider the decisions of Greek courts in the Distomo case, in light of the principle of State
immunity, for the purposes of making findings with regard to Germany’s submission that Italy had
breached its jurisdictional immunity by declaring enforceable in Italy decisions of Greek courts
founded on violations of international humanitarian law committed by the German Reich during
the Second World War. This permitted the conclusion that Greece had an interest of a legal nature
which might have been affected by the judgment in the case and, consequently, that Greece could
be permitted to intervene as a non-party “in so far as this intervention is limited to the decisions
of Greek courts [in the Distomo case]”.

In its Judgment rendered on 3 February 2012, the Court first examined the question whether Italy
had violated Germany’s jurisdictional immunity by allowing civil claims to be brought against that
State in the Italian courts. The Court noted in this respect that the question which it was called
upon to decide was not whether the acts committed by the Third Reich during the Second World
War were illegal, but whether, in civil proceedings against Germany relating to those acts, the
Italian courts were obliged to accord Germany immunity. The Court held that the action of the
Italian courts in denying Germany immunity constituted a breach of Italy’s international
obligations. It stated in this connection that, under customary international law as it presently
stood, a State was not deprived of immunity by reason of the fact that it was accused of serious
violations of international human rights law or the international law of armed conflict. The Court
further observed that, assuming that the rules of the law of armed conflict which prohibited
murder, deportation and slave labour were rules of jus cogens, there was no conflict between those
rules and the rules on State immunity. The two sets of rules addressed different matters. The rules
of State immunity were confined to determining whether or not the courts of one State could
exercise jurisdiction in respect of another State. They did not bear upon the question whether or
not the conduct in respect of which the proceedings were brought was lawful or unlawful. Finally,
the Court examined Italy’s argument that the Italian courts were justified in denying Germany
immunity, because all other attempts to secure compensation for the various groups of victims
involved in the Italian proceedings had failed. The Court found no basis in the relevant domestic
or international practice that international law made the entitlement of a State to immunity
dependent upon the existence of effective alternative means of securing redress.

The Court then addressed the question whether a measure of constraint taken against property
belonging to Germany located on Italian territory constituted a breach by Italy of Germany’s
immunity. Italy had registered a legal charge on the property in question following a decision by
the Italian courts declaring that the judgments of the Greek courts were enforceable in Italy and
awarding pecuniary damages against Germany. The Court noted that Villa Vigoni was being used
for governmental purposes that were entirely non-commercial ; that Germany had in no way
consented to the registration of the legal charge in question, nor allocated Villa Vigoni for the
satisfaction of the judicial claims against it. Since the conditions permitting a measure of constraint
to be taken against property belonging to a foreign State had not been met in this case, the Court
concluded that Italy had violated its obligation to respect Germany’s immunity from enforcement.

Finally, the Court examined the question whether Italy had violated Germany’s immunity by
declaring enforceable in Italy civil judgments rendered by Greek courts against Germany in
proceedings arising out of the massacre committed in the Greek village of Distomo by the armed
forces of the Third Reich in 1944. It considered that the relevant question was whether the Italian
courts had respected Germany’s immunity in allowing the application for exequatur, and not
whether the Greek court having rendered the judgment of which exequatur was sought had
respected Germany’s jurisdictional immunity. It observed that a court seised of an application
for exequatur of a foreign judgment rendered against a third State had to ask itself whether, in
the event that it had itself been seised of the merits of a dispute identical to that which was the
subject of the foreign judgment, it would have been obliged under international law to accord
immunity to the respondent State. It found that the decisions of the Italian courts declaring
enforceable in Italy the civil judgments rendered against Germany by Greek courts in proceedings
arising out of the massacre committed in Greece in 1944 constituted a violation by Italy of its
obligation to respect the jurisdictional immunity of Germany.
Accordingly, the Court declared that Italy must, by enacting appropriate legislation, or by resorting
to other methods of its choosing, ensure that the decisions of its courts and those of other judicial
authorities infringing the immunity which Germany enjoyed under international law cease to have
effect.

It should be noted that, on 14 January 2013, the Italian Parliament adopted a draft law concerning
the accession of Italy to the United Nations Convention on Jurisdictional Immunities of States and
Their Property, and provisions adapting national law. This law was published in the Official Journal
of the Italian Republic on 29 January 2013. Article 3 thereof, entitled “Compliance with the
judgments of the International Court of Justice” states that the International Court of Justice
having excluded the possibility of certain acts of another State being submitted to the Italian civil
jurisdiction, the court hearing the dispute relating to those acts shall find on its own motion that
it lacks jurisdiction, even when a preliminary judgment establishing its jurisdiction has already
become res judicata, and whatever the state or phase of the proceedings. It adds that any ruling
having the effect of res judicata which is not consonant with a judgment of the International Court
of Justice, even where that judgment is rendered subsequently, may also be subject to revision
for lack of civil jurisdiction.

The subject-matter of the dispute and the jurisdiction of the Court


Germany
1. Germany requests the Court, in substance, to find that Italy has failed to respect the
jurisdictional immunity which Germany enjoys under international law by allowing civil
claims to be brought against it in the Italian courts
2. Italy has also violated Germany’s immunity by taking measures of constraint against
Villa Vigoni, German State property situated in Italian territory
3. And that it has further breached Germany’s jurisdictional immunity by declaring
enforceable in Italy decisions of Greek civil courts rendered against Germany
Italy
4. seeking reparation for injuries caused by violations of international humanitarian law
committed by the German Reich during the Second World War

Ruling
1. While the Court finds that there can be no doubt that this conduct was a serious violation
of the international law of armed conflict applicable in 1943-1945, it considers that it is
not called upon to decide whether these acts were illegal, a point which is not contested,
but whether, in proceedings regarding claims for compensation arising out of those acts,
the Italian courts were obliged to accord Germany immunity.
2. Although both agree that States are generally entitled to immunity in respect of acta jure
imperii, they disagree as to whether immunity is applicable to acts committed by the
armed forces of a State

1st argument of Italy: Territorial Tort Principle


3. Article 11 of the European Convention sets out the territorial tort principle in broad terms:
“A Contracting State cannot claim immunity from the jurisdiction of a court of another
Contracting State in proceedings which relate to redress for injury to the person or damage
to tangible property, if the facts which occasioned the injury or damage occurred in the
territory of the State of the forum, and if the author of the injury or damage was present
in that territory at the time when those facts occurred.”

The Court notes that that provision must, however, be read in the light of Article 31, which
provides: “Nothing in this Convention shall affect any immunities or privileges enjoyed by
a Contracting State in respect of anything done or omitted to be done by, or in relation
to, its armed forces when on the territory of another Contracting State.”

4. The Court finds that Article 31 excludes from the scope of the Convention all
proceedings relating to acts of foreign armed forces, irrespective of whether those
forces are present in the territory of the forum with the consent of the forum State and
whether their acts take place in peacetime or in conditions of armed conflict. It considers
that Article 31 takes effect as a “saving clause”, with the result that the immunity of a State
for the acts of its armed forces falls entirely outside the Convention and has to be
determined by reference to customary international law.
2nd argument: denial of immunity was justified on
account of the particular nature of the acts forming the subject-matter of the claims
5. serious violations of the principles of international law
6. Secondly, Italy maintains that the rules of international law thus contravened were
peremptory norms (jus cogens)
7. Thirdly, Italy argues that the claimants having been denied all other forms of redress, the
exercise of jurisdiction by the Italian courts was necessary as a matter of last resort.
Decision:
After examining State and international practice, the Court concludes that, under customary
international law as it presently stands, a State is not deprived of immunity by reason of the fact
that it is accused of serious violations of international human rights law or the international law
of armed conflict.

The Court is of the opinion that there is no conflict between a rule, or rules, of jus cogens, and the
rule of customary law which requires one State to accord immunity to another. Assuming for this
purpose that the rules of the law of armed conflict which prohibit the murder of civilians in
occupied territory, the deportation of civilian inhabitants to slave labour and the deportation of
prisoners of war to slave labour are rules of jus cogens, the Court takes the view that there is no
conflict between those rules and the rules on State immunity. The two sets of rules address
different matters. The rules of State immunity are procedural in character and are confined to
determining whether or not the courts of one State may exercise jurisdiction in respect of another
State. They do not bear upon the question whether or not the conduct in respect of which the
proceedings are brought was lawful or unlawful.

Empire of Iran
Facts:
The firm of ... in Cologne filed a suit with the Cologne District Court in November 1961 against
the Iranian Empire. The firm asked for payment of 292.76 DM plus interest for repair work done
on the heating installation of the Iranian Embassy building in Köln-M... by order of the
Ambassador.
The Cologne District Court declined in a ruling of 19 January 1962 to set a date for oral
proceedings and to serve the bill of complaint, because the Iranian Empire as a sovereign State
was by a general rule of public international law exempt from German jurisdiction. The plaintiff
firm lodged a complaint against this ruling.

Principles

The criterion for distinguishing between sovereign and non-sovereign State activity is the nature
of the State's action.

Classification as sovereign or non-sovereign State activity is in principle to be done according to


national law.

In view of this objective position, it cannot be deduced from the practice of States that the
granting of unrestricted immunity can still today be regarded as a usage practised by far the larger
number of States today in awareness of their legal obligations.

The fact that it is hard to distinguish sovereign from non-sovereign acts of State is no reason to
abandon the distinction. International law is familiar with similar difficulties elsewhere too. And
for the question whether a particular act of State abroad is permissible without the consent of the
State concerned, it is relevant whether this action is of a sovereign or a non-sovereign nature

The distinction between sovereign and non-sovereign acts of State cannot be drawn according to
the purpose of the State's action, nor whether the action is recognizably connected with sovereign
functions of the State. For ultimately the State's activity will if not entirely then at least in by far
the greater part serve sovereign purposes and functions and be in some still recognizable
connection with them. Nor can it depend on whether the State has acted commercially.
Commercial activity of States does not differ in essence from other non-sovereign activity of
States.

The criterion for distinguishing between acts iure imperii and iure gestionis can instead only be
the nature of the State's action or the legal relationship that has arisen, but not the motive or
purpose of the State's act. It therefore depends on whether the foreign State has acted in exercise
of the sovereign power inherent in it, that is in public law, or as a private person, that in private
law.

The qualification of State action as sovereign or non-sovereign will in principle have to be


effected according to national law, since international law does not, at any rate as a rule,
contain criteria for this demarcation
Abusive shaping of law by the national legislator could, moreover, be opposed through
the legal principle, recognized in international law, of loyalty and good faith.

Oleynikov vs Russia

Facts
• The applicant was born in 1946 and lives in Khabarovsk
• On 19 May 1997 the applicant lent the Khabarovsk Office of the Trade Counsellor of the
Embassy of the Democratic People’s Republic of Korea (“the DPRK Trade Counsellor”)
1,500 United States dollars (USD). The money was to be repaid by 29 May 1997. A receipt
of 19 May 1997 on the letterhead of the DPRK Trade Counsellor signed by Mr Chkhe Gym
Cher reads as follows:
o “[This] receipt is given to the President of the private company Lord BV Oleynikov to the
effect that the Khabarovsk Office of the Trade Counsellor of the DPRK Embassy has
borrowed 1,500 (one thousand five hundred) US dollars converted into roubles.
o We undertake to repay the debt not later than 29 May [and] we pledge the Toyota Camry
car, registration plate no. KhBB 1799 (ХББ 1799), engine no. 0073653, chassis no. 0062459,
[together] with a complete set of documents for the car. In case of a failure to repay [the
debt] within the indicated term, we shall pay 1% for each day of the delay.”
• After the DPRK Trade Counsellor failed to repay the debt, in 1999-2000 the applicant sent
several letters of claim which went unanswered. The applicant’s counsel also sent a letter
of claim to the DPRK Trade Counsellor on 13 April 2001 and to the DPRK Embassy on 27
April 2001, which also went unanswered.
• On an unspecified date the applicant lodged a claim with the Supreme Court of Russia. On
21 February 2003 the Supreme Court returned the claim without examination on the
grounds that it should have been lodged before a district court.
• On 9 February 2004 the applicant lodged a claim against the DPRK with the Khabarovsk
Industrialniy District Court. He sought repayment of the debt with interest. He claimed,
furthermore, that Russia was responsible for the actions of foreign diplomats within its
territory.
• On 12 February 2004 the District Court returned the claim without consideration on the
grounds that under Article 401 of the 2002 Code of Civil Procedure a claim against a
foreign State could only be brought upon the consent of its competent authorities. The
applicant appealed. 14. On 16 March 2004 the Khabarovsk Regional Court upheld the
decision on appeal. The court held:

RELEVANT DOMESTIC LAW AND PRACTICE

“[F]iling a suit against a foreign State, securing of a suit or levying execution upon the property of a foreign
State situated in the USSR may only be allowed upon the
consent of the competent agencies of the respective State.”

RELEVANT INTERNATIONAL LAW AND PRACTICE

42. In December 2004 the United Nations General Assembly adopted the Convention on Jurisdictional
Immunities of States and their Property. It was opened for signature on 17 January 2005.
The final versions of Article 2 § 1(c) and 2 and Article 10, as set out in the Convention, read as follows:

Article 2 – Use of Terms “1. ... (c) “commercial transaction” means:


(i) any commercial contract or transaction for the sale of goods or supply of services;
(ii) (ii) any contract for a loan or other transaction of a financial nature, including any obligation of
guarantee or of indemnity in respect of any such loan or transaction;
(iii) (iii) any other contract or transaction of a commercial, industrial, trading or professional nature,
but not including a contract of employment of persons.

2. In determining whether a contract or transaction is a “commercial transaction” under paragraph


1 (c), reference should be made primarily to the nature of the contract or transaction, but its purpose
should also be taken into account if the parties to the contract or transaction have so agreed, or if, in the
practice of the State of the forum, that purpose is relevant to determining the non-commercial character
of the contract or transaction.”

Article 10 – Commercial transactions “1. If a State engages in a commercial transaction with a foreign
natural or juridical person and, by virtue of the applicable rules of private international law, differences
relating to the commercial transaction fall within the jurisdiction of a court of another State, the State
cannot invoke immunity from that jurisdiction in a proceeding arising out of that commercial transaction.

2. Paragraph 1 does not apply:


(a) in the case of a commercial transaction between States; or
(b) if the parties to the commercial transaction have expressly agreed otherwise.
3. Where a State enterprise or other entity established by a State which has an independent legal
personality and is capable of:
(a) suing or being sued; and
(b) acquiring, owning or possessing and disposing of property, including property which that State has
authorized it to operate or manage, is involved in a proceeding which relates to a commercial transaction
in which that entity is engaged, the immunity from jurisdiction enjoyed by that State
shall not be affected.” 43. Russia signed the Convention on 1 December 2006.

However, it has not ratified it yet.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 4


4. The applicant complained that the Russian courts’ refusal to examine his claim and the DPRK’s failure
to give its consent to the examination of the claim by the Russian courts had constituted a violation of his
rights guaranteed by Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

45. Article 6 of the Convention provides, in so far as relevant:


“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... b
y [a] ... tribunal ...”

The Government expressed their doubts as to whether the


application concerned a “genuine and serious” dispute.
They pointed out, firstly, that in so far as the dispute had concerned a loan secured by a pledge,
it was not clear why the applicant had never attempted to sell the pledged car so as to recover the debt
and had not even mentioned it in his letter of claim.
Secondly, in the receipt of 19 May 1997 it was not specified whether the money had been
borrowed for the needs of the DPRK Embassy or for the personal needs of the Trade Counsellor. The
Government observed that it was very rare for a foreign State to borrow money from a private party.
Thirdly, the interest for failure to repay the loan in due time was extremely high

As regards the substance of the complaint, the Government submitted that the decisions of the
domestic courts had reflected the generally recognised norms and principles of international law. Whilst
the principle of restrictive immunity had been adopted by numerous States, its adoption was not universal
and, therefore, the application of absolute immunity fell within the State’s margin of appreciation

The Court’s assessment

(a) In so far as the complaint is lodged against the Democratic People’s Republic of Korea

49. The Court reiterates that it can only examine applications directed against the States Parties
to the Convention. Since the DPRK is not a party to the Convention, this part of the application is
incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3
and must be rejected in accordance with Article 35 § 4.
(b) In so far as the complaint is lodged against the Russian Federation

The Court reiterates that according to its well-established case-law the applicability of the civil
limb of Article 6 § 1 requires the existence of “a genuine and serious dispute” over a “civil right” which
can be said, at least on arguable grounds, to be recognised under domestic law. Thus, a claim submitted
to a tribunal for determination must be presumed to be genuine and serious unless there are clear
indications to the contrary which might warrant the conclusion that the claim is frivolous or vexatious or
otherwise lacking in foundation

Turning to the facts of the present case, the Court accepts that the claim made by the applicant
was of a civil nature, since it concerned repayment of a debt arising under a loan agreement, which
constituted a civil transaction. The Court further notes that the validity of the loan agreement was never
examined by the domestic courts, which returned the applicant’s claim for recovery of the debt without
examining it, having 14 OLEYNIKOV v. RUSSIA JUDGMENT applied the principle of State immunity. In these
circumstances, the Court may not substitute its findings for those of the domestic courts and, in the
absence of such findings, cannot but presume that the dispute was “genuine and serious”, as required by
Article 6 § 1.

MERITS

The Court reiterates that the right to a fair hearing, as guaranteed by Article 6 § 1 of the
Convention, must be construed in the light of the principle of the rule of law, which requires that all
litigants should have an effective judicial remedy enabling them to assert their civil rights

However, the right of access to court secured by Article 6 § 1 is not absolute, but may be subject
to limitations: these are permitted by implication, since the right of access by its very nature calls for
regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation,
although the final decision as to the observance of the Convention’s requirements rests with the Court.

It follows that measures taken by a High Contracting Party 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. As the right of
access to court is an inherent part of the fair trial guarantee in that Article, 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 rule of State immunity

Therefore, in cases where the application of the rule of State immunity from jurisdiction restricts
the exercise of the right of access to court, the Court must ascertain whether the circumstances of the
case justified such a restriction.
The Court further reiterates that such a limitation must pursue a legitimate aim and that State
immunity was developed in international law out of the principle par in parem non habet imperium, by
virtue of which one State could not be subject to the jurisdiction of another

APPLICATIONS

The Court observes that in the present case the applicant brought a claim against the DPRK before
the Russian courts of general jurisdiction, seeking repayment of a debt with interest on the basis of a
receipt of 19 May 1997 signed by the DPRK Trade Counsellor to the effect that the Khabarovsk Office of
the Trade Counsellor of the DPRK Embassy had borrowed a certain amount from the applicant.

By a final decision of 16 March 2004 the Khabarovsk Regional Court left the applicant’s claim
without examination, having applied Article 401 of the 2002 Code of Civil Procedure which provides for
the absolute immunity of a foreign State before the Russian courts.

The Court must first examine whether the limitation pursued a legitimate aim. Having regard to
paragraph 60 above, the Court considers that the grant of immunity to a State in the present case pursued
the legitimate aim of complying with international law in order to promote comity and good relations
between States through the respect of another State’s sovereignty

Moreover, even prior to Russia’s signing the convention, it appears that it accepted restrictive
immunity as a principle of customary international law. In particular, the President of Russia on two
occasions, in the Opinion of 13 May 1998 and the Letter of 23 June 1999, clearly stated that restrictive
immunity constituted a customary norm of international law, whereas the principle of absolute immunity
was obsolete.

The domestic courts did not undertake any analysis of the nature of the transaction underlying
the claim. They thus made no effort to establish whether the claim related to acts of the DPRK performed
in the exercise of its sovereign authority or as a party to a transaction of a private law nature.

Thus, the domestic courts refused to examine the applicant’s claim, having applied absolute
State immunity from jurisdiction without any analysis of the underlying transaction, the applicable
provisions of the Annex to the Treaty on Trade and Navigation between the USSR and the DPRK of 22
June 1960 and the applicable principles of customary international law, which under Article 15 (4) of
the Constitution form an integral part of the Russian legal system.

The Court therefore concludes that by rejecting the applicant’s claim without examination of
the essence of the dispute and without giving relevant and sufficient reasons, and notwithstanding the
applicable provisions of international law, the Russian courts failed to preserve a reasonable
relationship of proportionality. They thus impaired the very essence of the applicant’s right of access to
court.
FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint under Article 6 against the Russian Federation admissible and the
remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 of the Convention;
3. Dismisses the applicant’s claim for just satisfaction.

Holland vs Lampen Wolfe


Facts
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its
staff to staff families. The claimant a teacher employed at the base alleged that a report on her was
defamatory. The defendant relied on state immunity.

Held:
A claim in libel was defeated by a claim of sovereign immunity. Such provision was part of its Acts as
a state, and attracted sovereign immunity. A report which was defamatory of the plaintiff as to her
teaching skills and which report was prepared as part of the provision of such services was something
done by the armed forces of the US: ‘the performance of her teaching obligations under the contract
between the University and the American Government involved the public function of the state in the
provision of instruction to the American forces and their families. The supervisory functions required
of the respondent were correspondingly involved in that same enterprise.


Lord Millett : ‘state immunity is not a ‘self-imposed restriction on the jurisdiction of its courts which the
United Kingdom has chosen to adopt’ and which it can, as a matter of discretion, relax or abandon. It
is imposed by international law without any discrimination between one state and another. It would be
invidious in the extreme for the judicial branch of government to have the power to decide that it will
allow the investigation of allegations of torture against the officials of one foreign state but not against
those of another. ‘

The Doctrine of State Immunity

It is an established rule of customary international law that one state cannot be sued in the
courts of another for acts performed iure imperii. The immunity does not derive from the
authority or dignity of sovereign states or the need to protect the integrity of their
governmental functions. It derives from the sovereign nature of the exercise of the state's
adjudicative powers and the basic principle of international law that all states are equal. The
rule is "par in parem non habet imperium"

Where the immunity applies, it covers an official of the state in respect of acts performed by
him in an official capacity. In the present case, it is common ground that at all material times
the respondent acted in his capacity as an official of the United States Department of Defense,
being the department responsible for the armed forces of the United States present in the
United Kingdom. The United States has asserted immunity on behalf of the respondent. Dr.
Holland has not challenged the proposition that, if the United States is entitled to the immunity
it claims, that immunity bars the present proceedings.
State Immunity and the European Convention

Article 6 of the Convention affords to everyone the right to a fair trial for the
determination of his civil rights and obligations. This reflects the principle of English law to
which Sir Thomas Bingham M.R. gave utterance in his celebrated and much quoted
observation that the policy which has first claim on the loyalty of the law is that wrongs
should be remedied: see X v. Bedfordshire County Council [1995] 2 A.C. 633 at p. 663.

At first sight this may appear to be inconsistent with a doctrine of comprehensive and
unqualified state immunity in those cases where it is applicable. But in fact there is no
inconsistency. This is not because the right guaranteed by article 6 is not absolute but
subject to limitations, nor is it because the doctrine of state immunity serves a legitimate
aim. It is because article 6 forbids a contracting state from denying individuals the benefit of
its powers of adjudication; it does not extend the scope of those powers.

Article 6 requires contracting states to maintain fair and public judicial processes and
forbids them to deny individuals access to those processes for the determination of their
civil rights. It presupposes that the contracting states have the powers of adjudication
necessary to resolve the issues in dispute. But it does not confer on contracting states
adjudicative powers which they do not possess. State immunity, as I have explained, is a
creature of customary international law and derives from the equality of sovereign states. It
is not a self-imposed restriction on the jurisdiction of its courts which the United Kingdom
has chosen to adopt. It is a limitation imposed from without upon the sovereignty of the
United Kingdom itself.

OPINION
In my opinion, section 3(1)(a) is not satisfied because, although the contract between the
University and the United States Government is a contract for the supply of services and
therefore a commercial contract within the meaning of the section by virtue of section
3(3)(a), the present proceedings do not relate to that contract. They are not about the
contract, but about the memorandum. The fact that the memorandum complains of the
quality of the services supplied under the contract means that the memorandum relates to
the contract (which is why section 16(2) is satisfied.) But it does not follow that the
proceedings relate to the contract, which is what section 3(1)(a) requires. In my opinion the
words "proceedings relating to" a transaction refer to claims arising out of the transaction,
usually contractual claims, and not tortious claims arising independently of the transaction
but in the course of its performance.

For the same reason I doubt that the writing and publication of the memorandum
constituted an "activity" of an official character in which the United States engaged through
the medium of the respondent, so as to bring the proceedings within section 3(3)(c). The
context strongly suggests a commercial relationship akin to but falling short of contract
(perhaps because gratuitous) rather than a unilateral tortious act. But even if the
respondent's acts of writing and publishing the memorandum can be brought within the
opening words section 3(3)(c), they are excluded by the concluding words of the subsection
since, for the reasons I have given, they were performed in the exercise of sovereign
authority.
Verlinden BV v Central Bank of Nigeria

Facts of the case


Verlindin B.V., a Dutch Corporation, sued Central Bank of Nigeria in U.S. District Court for the Southern
District of New York for breaching a letter of credit. Verlindin alleged that the court had jurisdiction
under the Foreign Sovereign Immunities Act (FSIA). The FSIA grants jurisdiction for actions against
foreign parties who are not entitled to immunity. Central Bank moved to dismiss the case due to lack of
subject matter jurisdiction. The district court dismissed the case, holding that Central bank had
sovereign immunity. The U.S. Court of Appeals for the Second Circuit affirmed, but held that the entire
FSIA exceeded the scope of Article III of the U.S. Constitution.

Question
Does Article III of the Constitution preclude Congress from granting jurisdiction to United States District
Courts over a suit against a foreign sovereign by a foreign corporation, asserting claims having a
substantial connection with the United States?

No. Chief Justice Warren E. Burger, writing for a unanimous court,


reversed and remanded. The Supreme Court held that the FSIA does
not violate Article III. The FSIA was a valid exercise of Congress’ power
to regulate foreign commerce. On remand, the court of appeals should
consider whether Central Bank is entitled to sovereign immunity.
FACTS

- Dutch company entered into a contract with Nigeria for cement; the Nigerian government
established, through the Central Bank of Nigeria, a letter of credit through a bank in NYC; Central Bank
then failed to pay
- Dutch company brought suit in US court for breach of contract under the FISA
- (note: It is moot whether the US has prescriptive jurisdiction here because the US was not
bringing the suit)
- Issue 1: Can foreign plaintiffs sue foreign states under the FSIA?

• This case says yes.


• Why might this be a question?
o If anyone, anywhere can bring a suit in US courts against a foreign state, there is a
concern that the US will become a sort of universal claims court
o However, the FISA has a way of preventing the US from becoming a universal claims
court: each exception requires some kind of nexus to the United States (except the waiver exception)
▪ The nexus to the US here is the credit that the US bank extended to Nigeria
- Issue 2: Must a federal court apply the FSIA in a suit against a foreign state, even if the foreign
state doesn’t raise the issue of immunity?
• According to this case, yes…
• Footnote, Even if the foreign state doesn’t plead immunity under the FSIA, the court must
make a determination whether one of the exception to immunity applies in order to have jurisdiction
over the foreign state (a state can’t waive immunity by not pleading it)
- In the instant case, the court found that the entity being sued was indeed a state: the Bank was an
instrumentality of Nigeria

Jones vs Ministry of Interior of Saudi Arabia

Ratio: The claimants said that they had been tortured by Saudi police when arrested on false charges.
They sought damages, and appealed against an order denying jurisdiction over the defendants. They
said that the allegation of torture allowed an exception to state immunity.

Held: The Kingdom’s appeal succeeded. The protection of state immunity was essentially a procedural
one. It was not a matter where the court had a choice, and the Court of Appeal had been wrong to
take to itself any discretion. Torture cannot be justified by any rule of domestic or international law, but
the question at issue was whether such a norm conflicts with a rule which accords state immunity:
‘The jus cogens is the prohibition on torture. But the United Kingdom, in according state immunity to
the Kingdom, is not proposing to torture anyone. Nor is the Kingdom, in claiming immunity, justifying
the use of torture. It is objecting in limine to the jurisdiction of the English court to decide whether it
used torture or not.’
Part I of the 1978 Act was not disproportionate as inconsistent with a peremptory norm or ius cogens
of international law and its application did not infringe the claimants’ rights under article 6 of the ECHR.

Lord Bingham said: ‘. . the claimants must show that the restriction is not directed to a legitimate
objective and is disproportionate. They seek to do so by submitting that the grant of immunity to the
Kingdom on behalf of itself or its servants would be inconsistent with a peremptory norm of
international law, a jus cogens applicable erga omnes and superior in effect to other rules of
international law, which requires that the practice of torture should be suppressed and the victims of
torture compensated . . there is no evidence that states have recognised or given effect to an
international law obligation to exercise universal jurisdiction over claims arising from alleged breaches
of peremptory norms of international law, nor is there any consensus of judicial and learned opinion
that they should. This is significant, since these are sources of international law. But this lack of
evidence is not neutral: since the rule on immunity is well-understood and established, and no relevant
exception is generally accepted, the rule prevails.’

Lord Hoffmann said: ‘But the same approach cannot be adopted in international law, which is based
upon the common consent of nations. It is not for a national court to ‘develop’ international law by
unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of
values it may be, is simply not accepted by other states.’

SUMMARY

The Jones case is one of the most significant recent developments in the field of state immunity,
although there is news of new cases coming through judicial systems in the near future – such as the
proposed case against former US Defence Secretary Rumsfeld in German courts, and ongoing actions
against senior Chinese officials in New Zealand courts.
The significant issue at hand in Jones was whether State immunity could be relied upon in civil
proceedings against a State and its officials in respect of torture outside the UK.

The issues turned on the relationship between two principles of international law:
• The principle that a sovereign State will not, save in certain specified instances, assert its
judicial authority over another State;
• The principle which condemns and criminalizes the official practice of torture and requires
States to suppress this practice and punish those guilty of it.

Jones was an appeal against the controversial Court of Appeal decision which dismissed the claim
against the Kingdom of Saudi Arabia on grounds of State immunity but allowing claims to proceed
against various Saudi State officials.

A few months before the Jones appeal, the Lords had ruled in a case involving the issue of torture (A
v Secretary of State for Home Department) in which Lord Bingham had affirmed the importance of
prohibition of torture in international law. A few years previously the Lords had dismissed the claim of
immunity in criminal proceedings of a former head of State in respect of acts of torture outside the UK,
in the ground-breaking Pinochet case

The broader context of Jones has been a growing reassessment of the relative weight attached to the
principles of State sovereignty and the protection of fundamental human rights. In parallel with legal
and academic reassessment, there appears to be growing public hostility to immunities generally.

However, this positive perception tends to break down when viewing the rules on State immunity,
which are seen as an ‘old- world’ perk enjoyed by States and officials at the expense of citizens.
It was therefore not surprising that the hearing was preceded by negative publicity around the UK
Government intervention, seen as supporting the defendants and being inconsistent with UK
commitments against torture.

BRIEF SUMMARY
The case concerns an action in damages brought by Jones and three other applicants, all UK citizens,
falsely accused of involvement in bombings in Riyadh in 2001 and 2002. The four allege that they
were repeatedly tortured while in prison in Saudi Arabia and that they suffered severe psychological
and physical harm as a result. Seeking aggravated and exemplary damages from Saudi Arabia's
Ministry of the Interior and the Saudi officials allegedly responsible, the applicants filed claims of,
inter alia, torture, assault and battery, trespass to the person, and unlawful imprisonment. In the
proceedings before the Court of Appeal, Saudi Arabia claimed immunity on its own behalf and on
that of its officials. The Court of Appeal agreed with the former but denied the latter; all the involved
parties appealed the decision. The House of Lords agreed with Saudi Arabia by upholding state
immunity in civil proceedings brought against a state and its officials in a different country for alleged
torture.
Argentine Republic vs Amerada Hess

A Liberian corporation named United Carriers Inc (P) chartered a vessel known as the Hercules,
to Amerada Hess Shipping Corporation (P), which was another Liberian corporation.
Transportation of fuel was the rationale behind the charter of the ship. During the 1983 Falkland
Islands Wars, the vessel was irreparably damaged while it was off the South American coast and
it had to be scuttled
.
Suit was brought against Argentina (D) in the U.S. district court by United (P) and Amerada (P).
Standing on the ground of absent jurisdiction, the suit was dismissed by the court. But while
resting on the jurisdiction which existed under the Alien tort Statute of 1789, the Second Circuit
reversed the judgment and the U.S. Supreme Court granted review.

ISSUES
Is jurisdiction over foreign states conferred under the Alien Tort Statute?

RULING
No. Jurisdiction over foreign states is not conferred under the Alien Tort Statute. What the statute
confers is jurisdiction in district courts over suits brought by aliens’ n tort for contravening the
international law or U.S. treaties. The law does not categorically state its applicability to suits
against foreign states

However, the Foreign Service Immunities Act (FSIA) was enacted by Congress in 1976 which
dealt extensively on the issue of jurisdiction over foreign states, and part of the provision of this
“new”� law was that except as provided in the Act, foreign states shall be immune from U.S.
courts’ jurisdiction. Hence, the FSIA can only be the source of jurisdiction over a foreign state
since it doesn’t repeal the Allen Tort Statute to the extent that it may confer jurisdiction over a
foreign state.

FACTS
A crude oil tanker owned by respondent United Carriers, Inc., a Liberian corporation, and chartered to
respondent Amerada Hess Corp., also a Liberian corporation, was severely damaged when it was attacked
in international waters by Argentine military aircraft during the war between Great Britain and petitioner
Argentine Republic over the Falkland Islands (Malvinas) off the Argentine coast. Respondents brought
separate actions against petitioner in Federal District Court for the damage they sustained in the attack.
They invoked the District Court's jurisdiction under the Alien Tort Statute (ATS), which confers original
jurisdiction on district courts over civil actions by an alien for a tort committed in violation of the law of
nations or a treaty of the United States. Amerada Hess also brought suit under the general admiralty and
maritime jurisdiction of federal courts, 28 U.S.C. 1333, and "the principle of universal jurisdiction,
recognized in customary international law." The District Court dismissed respondents' complaints for lack
of subject-matter jurisdiction, ruling that their actions were barred by the Foreign Sovereign Immunities
Act of 1976 (FSIA). The FSIA provides in 28 U.S.C. 1604 that "[s]ubject to existing international agreements
to which the United States [was] a party at the time of the enactment of this Act[,] a foreign state shall be
immune from the jurisdiction" of United States courts except as provided in 28 U.S.C. 1605-1607, and
further provides in 28 U.S.C. 1330(a) that "[t]he district courts shall have original jurisdiction without
regard to amount in controversy of any nonjury civil action against a foreign state . . . as to any claim for
relief in personam with respect to which the foreign state is not entitled to immunity" under 1605-1607 or
any applicable international agreement. The Court of Appeals reversed, holding that the District Court had
jurisdiction over respondents' consolidated action under the ATS.
Held:

The FSIA provides the sole basis for obtaining jurisdiction over a foreign state in United States courts, and
the District Court correctly dismissed the action because the FSIA did not authorize jurisdiction over
petitioner under the facts of this case.

a. The FSIA's text and structure demonstrate Congress' intention that the FSIA be the sole basis for
obtaining jurisdiction over a foreign [488 U.S. 428, 429] state in United States courts. Sections 1604 and
1330(a) work in tandem: 1604 bars United States courts from exercising jurisdiction when a foreign state
is entitled to immunity, and 1330(a) confers jurisdiction on district courts to hear suits brought by both
United States citizens and aliens when a foreign state is not entitled to immunity.

b.

The Geneva Convention on the High Seas and the Pan American Maritime Neutrality Convention entered
into by petitioner and the United States do not create an exception to the FSIA. A foreign state cannot
waive its immunity under 1605(a)(1) by signing an international agreement that does not mention a
waiver of immunity to suit in United States courts or even the availability of a cause of action in the
United States. Nor does the Treaty of Friendship, Commerce and Navigation between the United States
and Liberia carve out an exception to the FSIA. That Treaty provides that United States and Liberian
nationals shall have access to the courts of each country "on conforming to the local laws," and the FSIA is
clearly one of the "local laws" to which respondents must conform before bringing suit in United States
courts.

Saudi Arabia vs Nelson


FACTS
Nelson (P), a monitoring system engineer at a hospital in Riyadh, Saudi Arabia, was recruited in
the United States for employment. Upon discovery of safety defects in the hospital’s oxygen and
nitrous oxide lines, Nelson (P) disclosed this to the hospital officials as well as the Saudi
government (D) commission. Several months after Nelson (P) was told by the hospital officers to
ignore the problems, he was called into the hospital’s security office and arrested.
He was summarily transported to a jail cell where he was chained, beaten, tortured and kept
without food for four days. Nelson (P) was released after he had spent thirty-nine days in prison
and was allowed to leave the country. Upon his arrival in the United States, the Nelson’s (P) filed
suit against Saudi Arabia (D) seeking damages for personal injury. The Nelsons’ (P) also claimed
a basis of recovery in Saudi Arabia (D) for its failure to inform him about the hidden dangers
associated with his employment. This judgment was however appealed by Saudi Arabia (D).

Unless the action is based upon a commercial activity in the manner of a private player within the
market, are foreign states entitled to immunity from the jurisdiction of courts in the United States?

Holding and decision: (Souter, J) Yes. Unless the action is based upon a commercial activity in
the manner of a private player within the market, foreign states are entitled to immunity from the
jurisdiction of courts in the United States. Hence, the torture allegation which was levied against
Saudi Arabia (D) does not fall under the purview of the definition of “commercial activity”� as
contained in the Foreign Sovereign Immunities Act of 1976.
On the part of Nelson (P), his claim about not being warned of the peril attached to his job does
not have any merit because sovereign nations have no duty to warn of their propensity for tortuous
conducts. Since the action of the plaintiff is not in consonance with commercial activity as defined
in the Act, it is therefore outside the subject-matter jurisdiction of the federal courts. The prayer of
Saudi Arabia (D) dismissal was thereby granted. Reversed.

Concurrence. (White, J.) the hospital’s employment practices and its disciplinary procedures
have no clear connection to the country. The Act does not grant the Nelsons (P) access to the
U.S. courts because of the absent nexus to the United States.

Discussion. When comparing “restrictive”� to “absolute”� theory of foreign sovereign immunity,


a state is immune from the jurisdiction of foreign courts as to its sovereign or public acts but not
as to those that are private or commercial in character. Where a state exercises only those powers
that can also be exercised by private citizens, as distinct from those powers peculiar to
sovereigns, such state is said to be engaging in commercial activity under the restrictive theory.
The Act unmistakable commands to observe the distinction between the purpose of a conduct
and its nature is recognized by the Court.

FACTS
The government of Saudi Arabia (defendant) owned and operated a specialist
hospital in Riyadh, Saudi Arabia, which it staffed through the services of The
Hospital Corporation of America (HCA), an American corporation located in the
United States. HCA performed all recruiting for the Riyadh hospital. In September
1983, Scott Nelson (plaintiff), a U.S. citizen, responded to a recruitment
advertisement for a monitoring systems engineer at the hospital. He was offered
and accepted the job, and began work in Saudi Arabia. A few months after
beginning work, Nelson noticed safety defects in the hospital’s oxygen and nitrous
oxide lines. He repeatedly informed hospital superiors, but was told to ignore the
safety issues. On September 27, 1984, Nelson was summoned to the hospital’s
security office where he was arrested and taken to prison. There, he was tortured
and beaten. He was made to sign a statement in Arabic that he could not
understand. Nelson’s wife, Vivian Nelson (plaintiff), received a phone call from a
Saudi official saying she could arrange for her husband’s release by providing
sexual favors. The Nelsons brought suit against Saudi Arabia in federal district
court. The district court held it lacked subject matter jurisdiction under the Foreign
Sovereign Immunities Act (FSIA). The court of appeals reversed, holding that
Nelson’s recruitment and hiring were commercial activities of Saudi Arabia which
were carried on in the United States. The court of appeals held that Nelson’s
beating and torture were sufficiently related to these commercial activities to
support his claim. The United States Supreme Court granted certiorari.

Held: The Nelsons' action is not "based upon a commercial activity"


within the meaning of the first clause of § 1605(a)(2), and the Act
therefore confers no jurisdiction over their suit. Pp. 355-363.
(a) This action is not "based upon" a commercial activity. Although
the Act does not define "based upon," the phrase is most naturally
read to mean those elements of a claim that, if proven, would entitle
a plaintiff to relief under his theory of the case, and the statutory
context confirms that the phrase requires something more than a
mere connection with, or relation to, commercial activity. Even
taking the Nelsons' allegations about respondent husband's
recruitment and employment as true, those facts alone entitle the
Nelsons to nothing under their theory of the case. While these
arguably commercial activities may have led to the commission of
the torts that allegedly injured the Nelsons, it is only those torts
upon which their action is "based" for purposes of the Act. Pp. 355-
358.

(b) Petitioners' tortious conduct fails to qualify as "commercial


activity" within the meaning of the Act. This Court has ruled that the
Act largely codifies the so-called "restrictive" theory of foreign
sovereign immunity, Republic of Argentina v. Weltover, Inc.,504 U.
S. 607, 612, and that a state engages in commercial activity under
that theory where

ARREST WARRANT

FACTS
On 11 April 2000, a Belgian Magistrate issued an international arrest warrant against
Mr. Yerodia. At the time, Yerodia was the Foreign Minister of the Congo. The Court
issued the warrant based on universal jurisdiction. It accused Yerodia of inciting racial
hatred. These speeches, allegedly, incited the population to attack Tutsi residents in
Rwanda, which resulted in many deaths. The warrant alleged that Yerodia committed
grave breaches of the Geneva Conventions of 1949 and its Additional Protocols and
crimes against humanity. Belgium sent the arrest warrant to Interpol and circulated it
to all States, including to the Congo. The warrant asked States to arrest, detain, and
extradite Yerodia to Belgium. After Belgium issued the warrant, in November 2000,
Yerodia became the Education Minister. At the time of the ICJ’s judgement, he did not
hold a Ministerial post in Congo.

Questions before the Court:

Did Belgium violate principles of customary international law concerning the absolute
inviolability and immunity from criminal process of an incumbent Foreign Minister,
when it issued and internationally circulated the arrest warrant? If yes, did it violate
the principle of sovereign equality amongst States; does this alleged unlawfulness
preclude States who received the warrant from exercising it; should the Court order
reparations; and should Belgium recall and cancel its arrest warrant?

[NB: The Congo placed two separate legal questions before the Court at the time of its
application to the ICJ. It contested Belgium‘s basis of jurisdiction – universal jurisdiction
– stating that it violated the principle of sovereign equality (see para 17 of
the judgement). Both the Congo and the Court did not discuss this in its final
submissions and judgement (see paras 41 – 43, 45, 46). Several judges in their separate
opinions discussed the issue (see below).]

Belgium‘s Objections:

Belgium raised four objections to the jurisdiction of the Court. One argument was that
there was no longer a legal dispute because Yerodia was no longer the Foreign
Minister. The Court rejected all four objections (see paras 23 – 40, 44).

The Court’s Decision:

The issuance and circulation of the arrest warrant violated Belgium’s international
obligations towards the Congo. Belgium failed to respect, and infringed, Yerodia’s
immunity and the inviolability enjoyed by him under international law.

Relevant Findings of the Court:

1. It is an established principle of international law that Heads of States and


Governments, Foreign Ministers and Diplomatic and Consular agents enjoys
immunities from civil and criminal jurisdictions of other States.
2. In the absence of treaty law, customary international law determines the
immunities of Ministers of Foreign Affairs. These immunities “…are not given for their
personal benefit; but to ensure the effective performance of their functions of behalf
of their…States”. The functions of the Foreign Minister require frequent travel to other
countries. International law recognizes him as a representative of the State solely by
virtue of his office. The functions of a Foreign Minister are such that – during his tenure
– he enjoys absolute immunity from criminal jurisdiction and inviolability when he is
abroad.

3. As the incumbent Foreign Minister, Yerodia enjoys immunity (during his tenure) for
acts performed, both, in an official capacity and in a private capacity. The immunity
applies regardless of whether the Minister is on foreign territory in an official or
private visit. This immunity extends not only to his actions during his tenure; but, also
to his actions before he became Foreign Minister.

“Thus, if a Minister for Foreign Affairs is arrested in another State on a criminal charge,
he or she is thereby prevented from exercising the functions of his or her office. The
consequences of such impediment to the exercise of those official functions are
equally serious…. Furthermore, even the mere risk that, by travelling to or transiting
another State a Minister for Foreign Affairs might be exposing himself or herself to
legal proceedings could deter the Minister from travelling internationally when
required to do so for the purposes of the performance of his or her official functions.”

4. The Court rejected Belgium’s argument that the Minister does not enjoy immunity
because he is accused of having committed war crimes or crimes against humanity.
(Belgium relied on the Pinochet Case (decided by the House of Lords, UK), the Qaddafi
Case (decided by the French Court of Cassation) and Statutes of International Criminal
Court and Tribunals.) The Court held that there was no exception in customary
international law to the absolute immunity of an incumbent Foreign Minister.

” It (the Court) has been unable to deduce from this practice that there exists under
customary international law any form of exception to the rule according immunity
from criminal jurisdiction and inviolability to incumbent Ministers of Foreign Affairs,
when they are suspected of having committed war crimes or crimes against
humanity…The Court has also examined the rules concerning the immunity or criminal
responsibility of persons having an official capacity contained in the legal instruments
creating international criminal tribunals, and which are specifically applicable … It finds
that these rules likewise do not enable it to conclude that any such an exception exists
in customary international law in regard to national courts.”
5. International Conventions give jurisdiction to national Courts over various crimes
and, at times, requires them to exercise this jurisdiction [for example, the Torture
Convention]. This requirement does not affect the immunities given to Foreign
Ministers under international law. Despite international conventions establishing
domestic jurisdiction, Foreign Ministers are immune before foreign courts.

6. Immunity does not mean impunity. The person continues to be individually


responsible for the crime he committed.

“While jurisdictional immunity is procedural in nature, criminal responsibility is a


question of substantive law. Jurisdictional immunity may well bar prosecution for a
certain period or for certain offences; it cannot exonerate the person to whom it
applies from all criminal responsibility….”

7. The Court set out four situations where an incumbent or former Foreign Minister
could be prosecuted:

a. Prosecution in his own country according to the domestic law (the international law
of immunity is not recognized before a person’s national courts);

b. If his country waives his immunity, then prosecution before a foreign court;

c. Once he ceases to be the Foreign Minister, he no longer enjoys immunity before


foreign courts for private acts committed during his tenure as Foreign Minister; and
for all acts committed before or after his tenure in office; and

d. Prosecution before an international criminal body, with the necessary jurisdiction


(for example the ICC).

8. The ICJ concluded that the issuance and circulation of the arrest warrant violated
Belgium’s obligations towards Congo, “in that it failed to respect the immunity of that
Minister and, more particularly infringed the immunity from criminal jurisdiction and
the inviolability enjoyed by him under international law.” It did not matter that Yerodia
was never arrested.

“Since Mr. Yerodia was called upon in that capacity to undertake travel in the
performance of his duties, the mere international circulation of the warrant… could
have resulted, in particular, in his arrest while abroad. The Court observes… Mr.
Yerodia, “on applying for a visa to go to two countries, [apparently] learned that he
ran the risk of being arrested as a result of the arrest warrant issued against him by
Belgium”… the arrest warrant ‘sometimes forced Minister Yerodia to travel by
roundabout routes”‘.

9. Congo asked the Court to rule that the unlawfulness of the arrest warrant precludes
States who received the warrant from exercising it. The Court refused to indicate what
the judgment’s implications might be for third States. Its determination is limited to
Congo and Belgium. [NB: the Statute of the ICJ requires that its rulings should not
create binding obligations on States who are not parties to the dispute.]

Certain Questions of Mutual Assistance in Criminal Matters


(Djibouti v. France)

On 9 January 2006, the Republic of Djibouti filed an Application against the French
Republic in respect of a dispute :

“concern[ing] the refusal by the French governmental and judicial authorities to


execute an international letter rogatory regarding the transmission to the judicial
authorities in Djibouti of the record relating to the investigation in the Case against
X for the murder of Bernard Borrel, in violation of the Convention on Mutual
Assistance in Criminal Matters between the [Djiboutian] Government and the
[French] Government, of 27 September 1986, and in breach of other international
obligations borne by [France] to . . . Djibouti”.

In its Application, Djibouti also alleged that these acts constituted a violation of the
Treaty of Friendship and Co-operation concluded between France and Djibouti on
27 June 1977. Djibouti indicated that it sought to found the jurisdiction of the Court
on Article 38, paragraph 5, of the Rules of Court. This provision applies when a
State submits a dispute to the Court, proposing to found the Court’s jurisdiction upon
a consent yet to be given or manifested by the State against which the Application is
made. This was the second occasion that the Court had been called upon to
pronounce on a dispute brought before it by an Application based on Article 38,
paragraph 5, of its Rules (forum prorogatum). France consented to the jurisdiction
of the Court by a letter, dated 25 July 2006 in which it specified that this consent
was “valid only for the purposes of the case, within the meaning of Article 38,
paragraph 5, i.e., in respect of the dispute forming the subject of the Application and
strictly within the limits of the claims formulated therein” by Djibouti. However, the
Parties disagreed as to the exact extent of the consent given by France.

In a Judgment rendered on 4 June 2008, the Court, having read Djibouti’s


Application together with France’s letter in order to determine the extent of the
mutual consent of the Parties, concluded that (a) it had jurisdiction to adjudicate
upon the dispute concerning the execution of the letter rogatory addressed by the
Republic of Djibouti to the French Republic on 3 November 2004 ; (b) it had
jurisdiction to adjudicate upon the dispute concerning the summons addressed to the
President of the Republic of Djibouti on 17 May 2005 and the summonses addressed
to two senior Djiboutian officials on 3 and 4 November 2004 and 17 June 2005
; (c) it had jurisdiction to adjudicate upon the dispute concerning the summons
addressed to the President of the Republic of Djibouti on 14 February 2007 ;
and (d) it had no jurisdiction to adjudicate upon the dispute concerning the arrest
warrants issued against two senior Djiboutian officials on 27 September 2006.

Having established the precise scope of its jurisdiction in the case, the Court turned
first to the alleged violation by France of the Treaty of Friendship and Co-operation
between France and Djibouti of 27 June 1977. While pointing out that the provisions
of the said Treaty constituted relevant rules of international law having “a certain
bearing” on relations between the Parties, the Court concluded that “the fields of co-
operation envisaged in th[at] Treaty do not include co-operation in the judicial field”
and thus that the above-mentioned relevant rules imposed no concrete obligations in
this case.

The Court then turned to the allegation that France had violated its obligations under
the 1986 Convention on Mutual Assistance in Criminal Matters. Under that
Convention, judicial co-operation is envisaged, including the requesting and
granting of “letters rogatory” (usually the passing, for judicial purposes, of
information held by a party). The Convention also provides for exceptions to this
envisaged co-operation. Since the French judicial authorities refused to transmit the
requested case file, a key question in the case was whether that refusal fell within
the permitted exceptions. Also at issue was whether France had complied with the
provisions of the 1986 Convention in other respects. The Court held that the reasons
given by the French investigating judge for refusing the request for mutual assistance
fell within the scope of Article 2 (c) of the Convention, which entitles the requested
State to refuse to execute a letter rogatory if it considers that that execution is likely
to prejudice its sovereignty, its security, its ordre public or other of its essential
interests. The Court did however conclude that, as no reasons were given in the letter
dated 6 June 2005, whereby France informed Djibouti of its refusal to execute the
letter rogatory presented by the latter on 3 November 2004, France had failed to
comply with its international obligations under Article 17 of the 1986 Convention.

The ICJ has found that France failed to meet its obligations by not giving the reasons for its refusal to transmit a
judicial file to Djibouti. The Court did not uphold any of the other final submissions presented by Djibouti.

On 4 June 2008, the International Court of Justice (ICJ) rendered its judgement in the case Certain Questions of Mutual
Assistance in Criminal Matters, initiated by Djibouti against France in 2006. Djibouti asked the Court to declare that France
violated its international obligation of mutual assistance in criminal matters by not executing a letter rogatory and by issuing
summonses to Djiboutian officials, including the Head of State.

In its Judgment, the Court unanimously found that France failed to meet its international obligations by not giving the
reasons for its refusal to execute a letter rogatory issued by Djibouti in 2004. The Court also determined that its finding of
this violation constitutes appropriate satisfaction. The Court did not uphold any of the other final submissions presented by
Djibouti.

Facts

A. Filed in the International Court of Justice. B. On October 15th 1995 the half burned body of French
judge Berand Borrel, who was serving as Technical Adviser to the Djiboutian Minister of Justice, was
discovered 80 km from the city of Djibouti by a patrol of the French military police stationed in the city.
Initial indications in the investigation pointed to suicide by burning. In February of 1996, Mrs. Borrel,
widow of the deceased, placed a request with the State Prosecutor in Toulouse, to open an investigation
into the cause of death. Consequently an autopsy was performed on the body, whose report noted the
absence of suspicious lesions, and stated the limits of the diagnosis given the advanced decomposition of
the body. At Mrs. Borrel’s request, a private forensic examination was carried out; whose results cast
doubt on the theory of suicide. Upon receipt of this information Mrs. Borrel began to make repeated
accusations in the press directly against various participants in the investigation and sought the transfer
of the case to the Paris court. An investigation was opened “against X for the murder of Bernard Borrel.”
In March of 1999 the investigative team went to Djibouti, pursuant to an international letter rogatory to
investigate the complaint against X for murder. The resulting report concluded that there was no motive
or serious evidence supporting the theory of homicide. Soon after this, Al Houmekani, a former officer in
the Djiboutian presidential guard, who was awaiting to be granted refugee status in Belgium, stated to
the French press that Judge Borrel had not committed suicide but had indeed been murdered. His
statement implicated several top Djiboutian government officials including Head of Intelligence and the
Chief of Staff of the National Police Force. In March of 2000 a second international letter rogatory was
executed in Djibouti, once again met with consent and acceptance by all national authorities concerned.
After Judge Morachhini’s removal from the case, a third group led by Judge Parlos arrived in Djibouti in
February of 2002. At this time Judge Borrel’s body was exhumed for the purpose of carrying out further
examinations. The investigation led to the publication of medical and toxicology reports which could not
positively exclude the possibility of a third party’s involvement in the death. In December of 2003 the
Minister of Foreign Affairs of Djibouti wrote to his French counterpart requesting “the removal of all
obstacles delaying the judicial conclusion of this case, which has dragged on too long, including the
‘defense secret’ claim latterly asserted by the civil party.” Relying on French Government representatives’
assurances that they wanted to put an end to this judicial entanglement, the Government of the Republic
of Djibouti presented an Theobald 2 international letter rogatory on November 3rd 2004, requesting the
transmission by the French side of their record of the investigation in the Borrel case. This was pursuant
to the Convention of Mutual Assistance in Criminal Matters between the Government of the Republic of
Djibouti and the Government of the French Republic. In response to this request the French Minister of
Justice, assured the Djiboutian Government that the record would be handed over, in compliance with
the obligations set out in the Convention, before the end of February 2005. This transmission never
occurred, as it came to light later on that the investigative judge refused to transmit the Borrel file to
Djiboutian judicial authorities claiming that “the transmission of this record is contrary to France’s
fundamental interests.” Citing undisclosed reasons and material, the handing over of such record would
entail directly delivering French intelligence service documents to a foreign political authority. At the same
time French judicial authorities summoned the Djiboutian Head of State, Head of National Security and
State Prosecutor to give statements as legally represented witnesses in connection with the criminal
complaint for the subornation of perjury. On June 6th of 2005 the Djiboutian Minister of Foreign Affairs
received notice from the Ambassador of France stating that the French state were not in a position to
execute the international letter rogatory. C. The Plaintiff, the Government of the Republic of Djibouti filed
a lawsuit against the Republic of France for violation of the general obligation of co-operation set out in
the Treaty of Friendship and for breach of that obligation. D. The defendant is the Republic of France. The
Defendants claim that the transmission of this record would severely impact France’s fundamental
interests and should therefore not occur despite having signed a treaty saying they would assist.

Questions

a. When does a state’s fundamental interest supersede international agreements made by two individual
states? What is proper conduct should such an exception occur?
b. Is the investigative judge alone in a position to assess whether the fundamental interests of a State
could be damaged my execution of an international letter rogatory?

Decision

The court found the French republic to be, by not giving the Republic of Djibouti the reasons for its refusal
to execute the letter rogatory and to comply with its international obligations, in violation of Article 17 of
the Convention of Mutual Assistance in Criminal Matters

The court’s ruling was grounded in the contents of the Treaty of Friendship and Cooperation concluded
between France and Djibouti on June 27th 1977. In the treaty both states

agreed that the two parties shall found their co-operative relation on equality and mutual respect. When
assisting one another in matters of social, economic, or other interest it was agreed upon that both parties
would act equally. France’s consequent refusal to execute such a letter rogatory to a joint criminal
investigation seemed to violated\ this agreement. The court heard and agreed with France’s contention
in regards to their fundamental state interests. However, the court stated that according to Article 2 and
26 of the 1969 Vienna Convention, the exercise of a state’s discretion to uphold their end of a treaty is
subject to good faith. The court stated that there is a legal obligation to notify reasons for refusing to
execute a letter rogatory, which was not fulfilled on France’s half. The requesting state (Djibouti) only
learned of the relevant documents in the course of litigation.

Principles

The key international law point in this case was failure to comply with obligations set forth by a jointly
signed treaty.

This case reaffirms the principle that states must comply and adhere to the behaviors set forth in a treaty
they have previously signed. There are however exceptions to the rule, for which amendments and articles
clearly outline the expected conduct of states if they feel unable to comply with the agreed upon actions.

This case uses the Convention of Mutual Assistance in Criminal Matters but also reverts back to the Vienna
Convention for exceptions.

CONCLUSION

This case is very important in highlighting the importance of proper, honest, and forthright
communication between two states. Perhaps if France had communicated their reasons for refusing to
fulfill their letter rogatory then this case would have been less complicated. Consequently because of
France’s behavior towards the case, and the criminal investigation in Djibouti, one can only expect there
to be strained relations between the two countries in the future. This case lays the groundwork for legally
acceptable reasons for not fulfilling part of a treaty, and reiterates the Court’s tendency to revert back to
the Vienna Convention when questions of proper conduct between states arises.

PINOCHET CASE

1. The Extradition Proceedings in the United Kingdom


1 During a private visit for medical treatment to the United Kingdom (‘UK’) on
17 October 1998 General Augusto Pinochet Ugarte, former Head of State and
dictator of Chile (see also Heads of State), was arrested by the London
Metropolitan Police on an international warrant issued by the Spanish
examining magistrate Judge Baltasar Garzon (see also European Arrest
Warrant). The arrest warrant alleged the murder of Spanish citizens in Chile
during the military regime established after the coup of 11 September 1973
and charged Pinochet with the crimes of genocide and terrorism. The Crown
Prosecution Service, acting on behalf of the Kingdom of Spain, applied for
General Pinochet’s extradition to Spain.

The basis for extradition was the European Convention on Extradition, which
was given effect in the UK by the Extradition Act 1989 (UK). Being made aware
of the difficulties that his first arrest warrant would encounter in UK extradition
proceedings, on 22 October Judge Garzon issued a more detailed second
arrest warrant, charging Pinochet with torture and conspiracy to torture (see
also Torture, Prohibition of), hostage-taking and conspiracy to hostage-taking
(see also Hostages), murder and conspiracy to murder. On 28 October 1998 a
panel of three judges headed by Lord Chief Justice Bingham of Cornhill of the
Divisional Court of England and Wales upheld Pinochet’s claim to State
immunity (Re Augusto Pinochet Ugarte). In the meantime arrest warrants had
also been issued by Belgian, French, and Swiss magistrates.

2 On the Crown’s appeal to the House of Lords, a panel formed by five Law
Lords decided on 25 November 1998 (R v Bow Street Metropolitan Stipendiary
Magistrate, ex p Pinochet Ugarte (No 1); ‘Pinochet No 1’), by a majority of three
(Lord Nicholls of Birkenhead, Lord Steyn, and Lord Hoffmann concurring, Lord
Slynn of Hadley and Lord Lloyd of Berwick dissenting) that the immunity ratione
materiae of a former Head of State was confined to acts performed in the
legitimate exercise of his official functions, and that these did not include
torturing political opponents. However, the decision was set aside by a House
of Lords Committee on 17 December 1998

3 On 24 March 1999 a new panel composed of the seven most senior Law
Lords again rejected Pinochet’s claim to immunity in respect of charges of
torture by a majority of six to one

However, a majority of five Law Lords found that English courts had no
jurisdiction over torture offences committed by foreigners abroad before the
enactment of Sec. 134 Criminal Justice Act 1988

By a majority of five to two (Lords Millet and Phillips dissenting), the Law Lords
found that Pinochet was entitled to immunity in respect of the charges of murder
and conspiracy to murder, partly because they were not extradition crimes and
partly because it had not been proved that States had agreed to remove
immunity for those charges. In view of the substantial reduction of the
extradition crimes, all the Law Lords made a plea to the Home Secretary to
reconsider the exercise of his discretion in allowing extradition proceedings to
continue. Nevertheless on 14 April 1999 the Home Secretary granted authority
for the extradition to proceed.

. The Proceedings in Chile


5 By the time of his return, dozens of cases had been lodged against
Pinochet in Chilean courts. In February 1991 the Chilean National
Commission for Truth and Reconciliation established by President Aylwin had
released a report (‘Rettig Report’), in which it was stated that 2279 of the circa
3000 persons who had disappeared during the regime had been killed by the
police or the military

B. Legal Appraisal
8 The Pinochet extradition proceedings in the UK have been welcomed as a
major step for international human rights and international criminal law. Their
legacy is that for the first time the impunity of a former dictator was
successfully challenged on grounds of international law before the supreme
court of a foreign State committed to the rule of law. However, on a closer
look the case might be less significant than it first appears, and not only for
the fact that in the end Pinochet was not extradited and did not stand a
criminal trial in Spain or elsewhere. In fact the answers finally given by the
House of Lords to the three main issues, namely double criminality as a
condition for extradition, exercise of extraterritorial jurisdiction, and personal
immunity of former Heads of State, are on the whole quite prudent and mainly
based on the CAT.

9 With regard to the first aspect of double criminality, contrary to what the
Divisional Court had held in Re Augusto Pinochet Ugarte (at 41), and the
opinion of Lord Lloyd of Berwick, who had been the only one to consider this
issue in Pinochet No 1 (para. 88), the Law Lords in Pinochet No 3 unanimously
held that for an act to qualify as an ‘extradition crime’ within the meaning of Sec.
2 (1) (b) Extradition Act 1989 (UK) it is necessary that it constituted a crime
under UK law at the time it was committed, and not merely at the time of the
extradition request (Pinochet No 3 para. 195). The majority (with only Lord
Millett taking a different view, Pinochet No 3 para. 276) subsequently concluded
that prior to the implementation of the CAT through the CJA, torture committed
outside UK territory was not a crime punishable under UK law, in the absence
of statutory rules conferring jurisdiction on English criminal courts.

10 This leads to the second and correlated aspect of the jurisdictional basis of
the criminal proceedings. The issue of the admissibility of universal jurisdiction
is far from being settled in international law (cf the resolution of the Institut de
Droit International Universal criminal jurisdiction with regard to the crime of
genocide, crimes against humanity and war crimes; see also Crimes against
Humanity ; War Crimes). Furthermore, it has been noted in legal literature that
it is not unusual for domestic courts, pursuant to the legality principle, to abstain
from exercising universal jurisdiction over crimes against international law
without national legislation to that effect. Therefore, Lord Millet’s opinion, based
on the incorporation of customary international law in domestic common law, is
not unobjectionable. The fact that torture is now prohibited in international law
by a ius cogens norm does not necessarily imply that a criminal or civil action
shall always be possible before a domestic court, contrary to a dictum of
the International Criminal Tribunal for the Former Yugoslavia

11 With regard to the third aspect, immunity of former heads of State, in order
to understand better some of the key passages in the judgments of the Law
Lords, it must be recalled that the issue of the immunities of a head of State in
international law is to some extent still unsettled. If it is true that historically in
international law the immunity of the State and that of the Head of State were
considered indistinguishable and both absolute, subsequent developments in
the 20th century led to the theory of restrictive immunity for the State and to the
recognition of a form of diplomatic immunity ratione personae for the Head of
State (Immunity, Diplomatic), in addition to that one ratione materiae applying
to all public officials (see also Heads of Governments and Other Senior
Officials).

In conclusion, if it is still to some extent difficult to assess fully the impact that
the complex dimensions of the Pinochet extradition case have had and still may
have on the development of customary international (criminal) law, its
concededly modest but firm contribution seems to reside in the denial of
immunity from criminal prosecutions of former Heads of State and other former
senior officials for egregious violations of the prohibition of torture at least by
States Parties to the CAT.

Legally relevant facts

On 11 September 1973, General Augusto Pinochet Ugarte assumed power in Chile after a military coup.
He was appointed president of the governing military junta on the same day.On 22 September 1973, the
new regime was recognised by the British government. By a decree of 11 December 1974, General
Pinochet assumed the title of President of the Republic. Following democratic elections in December 1989,
General Pinochet handed over power to President Aylwin on 11 March 1990 (p. 24).
Core legal questions
• Is the Respondent entitled to immunity either by virtue of State immunity or Head of State immunity?

Specific legal rules and provisions


• Articles 4 and 6 of the Convention on the Prevention and Punishment of the Crime of Genocide.
• Articles 28, 29 and 31 of the Vienna Convention on Diplomatic Relations.
• International Convention against the Taking of Hostages.
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
• Section 134(1) of the 1988 UK Criminal Justice Act.
• Sections 2(1)(b) and 8(1)(b) of the 1989 UK Extradition Act.
• Sections 1, 14, 16(4), 20(1) and (5) of the UK State Immunity Act.
• UK Diplomatic Privileges Act.
• Uk Taking Hostages Act.

Court's holding and analysis


It is necessary to distinguish between three different principles. First, State immunity, as codified in Part I
of 1978 State Immunity Act. Second, personal immunity of Heads of State, codified in Part II of the same
Act. Third, the act of State doctrine, which remains a common law matter (p. 43).

Although State immunity under Part I extends to Heads of State, it does not apply in respect of criminal
proceedings (p. 44).

The act of State doctrine is inapplicable in the present instance as Parliament has shown that the conduct
with which the Respondent is charged is a justiciable matter before the English courts by enacting section
134(1) of the 1988 Criminal Justice Act defining torture and section 1(1) of the 1982 Taking Hostages Act
(p. 45).

With respect to personal immunity, section 20 of the 1978 State Immunity Act confers immunity from
criminal proceedings upon Heads of State. Following an interpretation of Article 39(2) of 1961 Vienna
Convention on Diplomatic Relations, incorporated by reference, this immunity extends to former Heads of
State in respect of official acts (p. 46). Official acts are those recognised by international law as functions
of a Head of State, irrespective of the terms of individual’s domestic constitution. Accordingly, acts of
torture and hostage taking are not functions of a Head of State and therefore no immunity can attach to
them in respect of criminal proceedings (p. 47).

By a majority of 3:2 (Lords Hoffman, Nicholls and Steyn), their Lordships allowed the appeal and held that
the Respondent was not entitled to immunity (pp. 49, 56).

AL-ADSANI VS UK

CASE OF AL-ADSANI v. THE UNITED KINGDOM

(Application no. 35763/97) JUDGMENT STRASBOURG 21 November 2001 In the case of Al-Adsani v. the
United Kingdom, The European Court of Human Rights,
Delivers the following judgment, which was adopted on the last-mentioned date: THE FACTS

1. THE CIRCUMSTANCES OF THE CASE


2. A. The alleged ill-treatment
3. The applicant made the following allegations concerning the events underlying the dispute he submitted
to the English courts. The Government stated that they were not in a position to comment on the accuracy
of these claims.
4. The applicant, who is a trained pilot, went to Kuwait in 1991 to assist in its defence against Iraq. During
the Gulf War he served as a member of the Kuwaiti Air Force and, after the Iraqi invasion, he remained
behind as a member of the resistance movement. During that period he came into possession of sex
videotapes involving Sheikh Jaber Al- Sabah Al-Saud Al-Sabah (“the Sheikh”), who is related to the Emir
of Kuwait and is said to have an influential position in Kuwait. By some means these tapes entered
general circulation, for which the applicant was held responsible by the Sheikh.
5. After the Iraqi armed forces were expelled from Kuwait, on or about 2 May 1991, the Sheikh and two
others gained entry to the applicant’s house, beat him and took him at gunpoint in a government jeep to
the Kuwaiti State Security Prison. The applicant was falsely imprisoned there for several days during
which he was repeatedly beaten by security guards. He was released on 5 May 1991, having been forced
to sign a false confession.
6. On or about 7 May 1991 the Sheikh took the applicant at gunpoint in a government car to the palace of
the Emir of Kuwait’s brother. At first the applicant’s head was repeatedly held underwater in a swimming-
pool containing corpses, and he was then dragged into a small room where the Sheikh set fire to
mattresses soaked in petrol, as a result of which the applicant was seriously burnt.
7. Initially the applicant was treated in a Kuwaiti hospital, and on 17 May 1991 he returned to England where
he spent six weeks in hospital being treated for burns covering 25% of his total body surface area. He
also suffered psychological damage and has been diagnosed as suffering from a severe form of post-
traumatic stress disorder, aggravated by the fact that, once in England, he received threats warning him
not to take action or give publicity to his plight.
8. B. The civil proceedings
9. On 29 August 1992 the applicant instituted civil proceedings in England for compensation against the
Sheikh and the State of Kuwait in respect of injury to his physical and mental health caused by torture in
Kuwait in May 1991 and threats against his life and well-being made after his return to the United
Kingdom on 17 May 1991. On 15 December 1992 he obtained a default judgment against the Sheikh.
10. The proceedings were re-issued after an amendment to include two named individuals as defendants.
On 8 July 1993 a deputy High Court judge ex parte gave the applicant leave to serve the proceedings
on the individual defendants. This decision was confirmed in chambers on 2 August 1993. He was not,
however, granted leave to serve the writ on the State of Kuwait.
11. The applicant submitted a renewed application to the Court of Appeal, which was
heard ex parte on 21 January 1994. Judgment was delivered the same day. The court held, on the basis
of the applicant’s allegations, that there were three elements pointing towards State responsibility for the
events in Kuwait: firstly, the applicant had been taken to a State prison; secondly, government transport
had been used on 2 and 7 May 1991; and, thirdly, in the prison he had been mistreated by public officials.
It found that the applicant had established a good arguable case, based on principles of international law,
that Kuwait should not be afforded immunity under section 1(1) of the State Immunity Act 1978 (“the 1978
Act”: see paragraph 21 below) in respect of acts of torture. In addition, there was medical evidence
indicating that the applicant had suffered damage (post- traumatic stress) while in the United Kingdom. It
followed that the conditions in Order 11 rule 1(f) of the Rules of the Supreme Court had been satisfied (see
paragraph 20 below) and that leave should be granted to serve the writ on the State of Kuwait.

1. The Kuwaiti government, after receiving the writ, sought an order striking out the proceedings. The
application was examined inter partes by the High Court on 15 March
2. In a judgment delivered the same day the court held that it was for the applicant to show on the balance
of probabilities that the State of Kuwait was not entitled to immunity under the 1978 Act. It was prepared
provisionally to accept that the Government were vicariously responsible for conduct that would qualify
as torture under international law. However, international law could be used only to assist in interpreting
lacunae or ambiguities in a statute, and when the terms of a statute were clear, the statute had to prevail
over international law. The clear language of the 1978 Act bestowed immunity upon sovereign States for
acts committed outside the jurisdiction and, by making express provision for exceptions, it excluded as
a matter of construction implied exceptions. As a result, there was no room for an implied exception for
acts of torture in section 1(1) of the 1978 Act. Moreover, the court was not satisfied on the balance of
probabilities that the State of Kuwait was responsible for the threats made to the applicant after 17 May
1991. As a result, the exception provided for by section 5 of the 1978 Act could not apply. It followed that
the action against the State should be struck out.
3. The applicant appealed and the Court of Appeal examined the case on 12 March
4. The court held that the applicant had not established on the balance of probabilities that the State of
Kuwait was responsible for the threats made in the United Kingdom. The important question was,
therefore, whether State immunity applied in respect of the alleged events in Kuwait. Lord Justice Stuart-
Smith finding against the applicant, observed:
“Jurisdiction of the English court in respect of foreign States is governed by the State Immunity Act 1978.
Section 1(1) provides:

‘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 this Act. …’

… The only relevant exception is section 5, which provides:

‘A State is not immune as respects proceedings in respect of

(a) death or personal injury … caused by an act or omission in the United Kingdom.’

It is plain that the events in Kuwait do not fall within the exception in section 5, and the

express words of section 1 provide immunity to the First Defendant. Despite this, in what

[counsel] for the Plaintiff acknowledges is a bold submission, he contends that that

section must be read subject to the implication that the State is only granted immunity if

it is acting within the Law of Nations. So that the section reads: ‘A State acting within the

Law of Nations is immune from jurisdiction except as provided …’

… The argument is … that international law against torture is so fundamental that it is a

jus cogens, or compelling law, which overrides all other principles of international law,

including the well-established principles of sovereign immunity. No authority is cited for

this proposition. … At common law, a sovereign State could not be sued at all against its will in the courts
of this country. The 1978 Act, by the exceptions therein set out, marks substantial inroads into this principle.
It is inconceivable, it seems to me, that the draughtsman, who must have been well aware of the various
international agreements about torture, intended section 1 to be subject to an overriding qualification.
Moreover, authority in the United States at the highest level is completely contrary to [counsel for the
applicant’s] submission. [Lord Justice Stuart-Smith referred to the judgments of the United States courts,
Argentine Republic v. Amerada Hess Shipping Corporation and Siderman de Blake v. Republic of
Argentina, cited in paragraph 23 below, in both of which the court rejected the argument that there was an
implied exception to the rule of State immunity where the State acted contrary to the Law of Nations.] …
[Counsel] submits that we should not follow the highly persuasive judgments of the American courts. I
cannot agree.

… A moment’s reflection is enough to show that the practical consequences of the Plaintiff’s submission
would be dire. The courts in the United Kingdom are open to all who seek their help, whether they are
British citizens or not. A vast number of people come to this country each year seeking refuge and asylum,
and many of these allege that they have been tortured in the country whence they came. Some of these
claims are no doubt justified, others are more doubtful. Those who are presently charged with the
responsibility for deciding whether applicants are genuine refugees have a difficult enough task, but at least
they know much of the background and surrounding circumstances against which the claim is made. The
court would be in no such position. The foreign States would be unlikely to submit to the jurisdiction of the
United Kingdom court, and in its absence the court would have no means of testing the claim or making a
just determination. …”

The other two members of the Court of Appeal, Lord Justice Ward and Mr Justice Buckley, also rejected
the applicant’s claim. Lord Justice Ward commented that “there may be no international forum (other than
the forum of the locus delicti to whom a victim of torture will be understandably reluctant to turn) where this
terrible, if established, wrong can receive civil redress”.

1. On 27 November 1996 the applicant was refused leave to appeal by the House of Lords. His attempts
to obtain compensation from the Kuwaiti authorities via diplomatic channels have proved unsuccessful.
II. RELEVANT LEGAL MATERIALS

1. A. Jurisdiction of English courts in civil matters


2. There is no rule under English law requiring a plaintiff to be resident in the United Kingdom or to be a
British national before the English courts can assert jurisdiction over civil wrongs committed abroad.
Under the rules in force at the time the applicant issued proceedings, the writ could be served outside
the territorial jurisdiction with the leave of the court when the claim fell within one or more of the categories
set out in order 11, Rule 1 of the Rules of the Supreme Court. For present purposes only Rule 1 (f) is
relevant:
“… service of a writ out of the jurisdiction is permissible with the leave of the court if, in the action begun by
the writ,

(f) the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within
the jurisdiction … “

1. B. The State Immunity Act 1978


2. The relevant parts of the State Immunity Act 1978 provide:
“1. (1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the
following provisions of this Part of this Act.

5. A State is not immune as regards proceedings in respect of- (a) death or personal injury;

caused by an act or omission in the United Kingdom …”

1. C. The Basle Convention


2. The above provision (section 5 of the 1978 Act) was enacted to implement the 1972 European
Convention on State Immunity (“the Basle Convention”), a Council of Europe instrument, which entered
into force on 11 June 1976 after its ratification by three States. It has now been ratified by eight States
(Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United
Kingdom) and signed by one other State (Portugal). Article 11 of the Convention provides:
“A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State in
proceedings which relate to redress for injury to the person or damage to tangible property, if the facts
which occasioned the injury or damage occurred in the territory of the State of forum, and if the author of
the injury or damage was present in that territory at the time when those facts occurred.” Article 15 of the
Basle Convention provides that a Contracting State shall be entitled to immunity if the proceedings do not
fall within the stated exceptions.

1. D. State immunity in respect of civil proceedings for torture


2. In its Report on Jurisdictional Immunities of States and their Property (1999), the working group of the
International Law Commission (ILC) found that over the preceding decade a number of civil claims had
been brought in municipal courts, particularly in the United States and United Kingdom, against foreign
governments, arising out of acts of torture committed not in the territory of the forum State but in the
territory of the defendant and other States. The working group of the ILC found that national courts had
in some cases shown sympathy for the argument that States are not entitled to plead immunity where
there has been a violation of human rights norms with the character of jus cogens, although in most
cases the plea of sovereign immunity had succeeded.
3. The working group of the ILC did, however, note two recent developments which it considered gave
support to the argument that a State could not plead immunity in respect of gross human rights violations.
One of these was the House of Lords’ judgment in ex parte Pinochet (No. 3) (see paragraph 34 below).
The other was the amendment by the United States of its Foreign Sovereign Immunities Act (FSIA) to
include a new exception to immunity. This exception, introduced by section 221 of the Anti-Terrorism
and Effective Death Penalty Act of 1996, applies in respect of a claim for damages for personal injury or
death caused by an act of torture, extra-judicial killing, aircraft sabotage or hostage-taking, against a
State designated by the Secretary of State as a sponsor of terrorism, where the claimant or victim was
a national of the United States at the time the act occurred.
4. E. The prohibition of torture in Kuwait and under international law
5. The Kuwaiti Constitution provides in Article 31 that “No person shall be put to torture”.
6. Article 5 of the Universal Declaration of Human Rights 1948 states:
“No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.”

1. Article 7 of the International Covenant on Civil and Political Rights 1966 states as relevant:
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

1. The United Nations 1975 Declaration on the Protection of All Persons from Being
Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment provides in Article
3 that: “No State may permit or tolerate torture and other cruel inhuman or degrading treatment or
punishment.”

1. In the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment
or Punishment, adopted on 10 December 1984 (“the UN Convention”), torture is defined. . . The UN
Convention requires by Article 2 that each State Party is to take effective legislative, administrative,
judicial or other measures to prevent torture in any territory under its jurisdiction, and by Article 4 that all
acts of torture be made offences under each State’s criminal law.
2. In its judgment in Prosecutor v. Furundzija (10 December 1998, case no. IT-95-17/I- T, (1999) 38
International Legal Materials 317), the International Criminal Tribunal for the Former Yugoslavia
observed as follows:
“144. It should be noted that the prohibition of torture laid down in human rights treaties enshrines an
absolute right, which can never be derogated from, not even in time of emergency … This is linked to the
fact, discussed below, that the prohibition on torture is a peremptory norm or jus cogens. … This prohibition
is so extensive that States are even barred by international law from expelling, returning or extraditing a
person to another State where there are substantial grounds for believing that the person would be in
danger of being subjected to torture.

1. These treaty provisions impose upon States the obligation to prohibit and punish torture, as well as to
refrain from engaging in torture through their officials. In international human rights law, which deals with
State responsibility rather than individual criminal responsibility, torture is prohibited as a criminal offence
to be punished under national law; in addition, all States parties to the relevant treaties have been
granted, and are obliged to exercise, jurisdiction to investigate, prosecute and punish offenders. …
2. The existence of this corpus of general and treaty rules proscribing torture shows that the international
community, aware of the importance of outlawing this heinous phenomenon, has decided to suppress
any manifestation of torture by operating both at the interstate level and at the level of individuals. No
legal loopholes have been left.
154. Clearly the jus cogens nature of the prohibition against torture articulates the notion that the prohibition
has now become one of the most fundamental standards of the international community. …”

F. Criminal jurisdiction of the United Kingdom over acts of torture

1. The United Kingdom ratified the UN Convention with effect from 8 December 1988.
2. Section 134 of the Criminal Justice Act 1988, which entered into force on 29 September 1988, made
torture, wherever committed, a criminal offence under United Kingdom law triable in the United Kingdom.
THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

1. It is true that, taken together, Articles 1 and 3 place a number of positive obligations on the High
Contracting Parties, designed to prevent and provide redress for torture and other forms of ill-treatment.
However, in each case the State’s obligation applies only in relation to ill-treatment allegedly committed
within its jurisdiction.
2. In Soering . . the Court recognised that Article 3 has some, limited, extraterritorial application, to the
extent that the decision by a Contracting State to expel an individual might engage the responsibility of
that State under the Convention, where substantial grounds had been shown for believing that the person
concerned, if expelled, faced a real risk of being subjected to torture or to inhuman or degrading treatment
or punishment in the receiving country. In the judgment it was emphasised, however, that in so far as
any liability under the Convention might be incurred in such circumstances, it would be incurred by the
expelling Contracting State by reason of its having taken action which had as a direct consequence the
exposure of an individual to proscribed ill- treatment (op. cit., pp. 35-36, § 91).
3. The applicant does not contend that the alleged torture took place within the jurisdiction of the United
Kingdom or that the United Kingdom authorities had any causal connection with its occurrence. In these
circumstances, it cannot be said that the High Contracting Party was under a duty to provide a civil
remedy to the applicant in respect of torture allegedly carried out by the Kuwaiti authorities.
4. It follows that there has been no violation of Article 3 of the Convention in the present case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

B. Compliance with Article 6 § 1

2. The Court’s assessment


1. In Golder v. the United Kingdom (judgment of 21 February 1975, Series A no. 18, pp. 13-18, §§ 28-36)
the Court held that the procedural guarantees laid down in Article 6 concerning fairness, publicity and
promptness would be meaningless in the absence of any protection for the pre-condition for the
enjoyment of those guarantees, namely, access to a court. It established this as an inherent aspect of
the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of
arbitrary power which underlie much of the Convention. Thus, Article 6 § 1 secures to everyone the right
to have any claim relating to his civil rights and obligations brought before a court.
2. The right of access to a court is not, however, absolute, but may be subject to limitations; these are
permitted by implication since the right of access by its very nature calls for regulation by the State. In
this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as
to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the
limitations applied do not restrict or reduce the access left to the individual in such a way or to such an
extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with
Article 6 § 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of
proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy
v. Germany [GC], no. 26083/94, § 59, ECHR 1999-I).
3. The Court must first examine whether the limitation pursued a legitimate aim. It notes in this connection
that sovereign immunity is a concept of international law, developed out of the principle par in parem non
habet imperium, by virtue of which one State shall not be subject to the jurisdiction of another State. The
Court considers that the grant of sovereign immunity to a State in civil proceedings pursues the legitimate
aim of complying with international law to promote comity and good relations between States through
the respect of another State’s sovereignty.
4. The Court must next assess whether the restriction was proportionate to the aim pursued. It reiterates
that the Convention has to be interpreted in the light of the rules set out in the Vienna Convention on the
Law of Treaties of 23 May 1969, and that Article 31 § 3 (c) of that treaty indicates that account is to be
taken of “any relevant rules of international law applicable in the relations between the parties”. The
Convention, including Article 6, cannot be interpreted in a vacuum. The Court must be mindful of the
Convention’s special character as a human rights treaty, and it must also take the relevant rules of
international law into account (see, mutatis mutandis, Loizidou v. Turkey (merits), judgment of 18
December 1996, Reports 1996-VI, p. 2231, § 43). The Convention should so far as possible be
interpreted in harmony with other rules of
international law of which it forms part, including those relating to the grant of State immunity.

1. It follows that measures taken by a High Contracting Party 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 a court as embodied in Article 6 § 1. Just as the right of access to a
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.
2. The Court notes that the 1978 Act, applied by the English courts so as to afford immunity to Kuwait,
complies with the relevant provisions of the 1972 Basle Convention, which, while placing a number of
limitations on the scope of State immunity as it was traditionally understood, preserves it in respect of
civil proceedings for damages for personal injury unless the injury was caused in the territory of the forum
State (see paragraph 22 above). Except insofar as it affects claims for damages for torture, the applicant
does not deny that the above provision reflects a generally accepted rule of international law. He asserts,
however, that his claim related to torture, and contends that the prohibition of torture has acquired the
status of a jus cogens norm in international law, taking precedence over treaty law and other rules of
international law.
3. Following the decision to uphold Kuwait’s claim to immunity, the domestic courts were never required to
examine evidence relating to the applicant’s allegations, which have, therefore, never been proved.
However, for the purposes of the present judgment, the Court accepts that the ill-treatment alleged by
the applicant against Kuwait in his pleadings in the domestic courts, namely, repeated beatings by prison
guards over a period of several days with the aim of extracting a confession (see paragraph 11 above),
can properly be categorised as torture within the meaning of Article 3 of the Convention (see Selmouni
v. France [GC], no. 25803/94, ECHR 1999-V, and Aksoy, cited above).
4. Within the Convention system it has long been recognised that the right under Article 3 not to be
subjected to torture or to inhuman or degrading treatment or punishment enshrines one of the
fundamental values of democratic society. It is an absolute right, permitting of no exception in any
circumstances (see, for example, Aksoy, cited above, p. 2278, § 62, and the cases cited therein). Of all
the categories of ill- treatment prohibited by Article 3, “torture” has a special stigma, attaching only to
deliberate inhuman treatment causing very serious and cruel suffering (ibid., pp. 227879, § 63, and see
also the cases referred to in paragraphs 38-39 above).
5. Other areas of public international law bear witness to a growing recognition of the overriding importance
of the prohibition of torture. Thus, torture is forbidden by Article 5 of the Universal Declaration of Human
Rights and Article 7 of the International Covenant on Civil and Political Rights. The United Nations
Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment requires,
by Article 2, that each State Party should take effective legislative, administrative, judicial or other
measures to prevent torture in any territory under its jurisdiction, and, by Article 4, that all acts of torture
should be made offences under the State Party’s criminal law (see paragraphs 25-29 above). In addition,
there have been a number of judicial statements to the effect that the prohibition of torture has attained
the status of a peremptory norm or jus cogens. For example, in its judgment of 10 December 1998 in
Furundzija (see paragraph 30 above), the International Criminal Tribunal for the Former Yugoslavia
referred, inter alia, to the foregoing body of treaty rules and held that “[b]ecause of the importance of the
values it protects, this principle [proscribing torture] has evolved into a peremptory norm or jus cogens,
that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’
customary rules”. Similar statements have been made in other cases before that tribunal and in national
courts, including the House of Lords in the case of ex parte Pinochet (No. 3) (see paragraph 34 above).
6. While the Court accepts, on the basis of these authorities, that the prohibition of torture has achieved the
status of a peremptory norm in international law, it observes that the present case concerns not, as in
Furundzija and Pinochet, the criminal liability of an individual for alleged acts of torture, but the immunity
of a State in a civil suit for damages in respect of acts of torture within the territory of that State.
Notwithstanding the special character of the prohibition of torture in international law, the Court is unable
to discern in the international instruments, judicial authorities or other materials before it 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 State where acts of torture are alleged. In particular, the Court observes that none
of the primary international instruments referred to (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 UN
Convention) relates to civil proceedings or to State immunity.
7. It is true that in its Report on Jurisdictional Immunities of States and their Property (see paragraphs 23-
24 above) the working group of the International Law Commission noted, as a recent development in
State practice and legislation on the subject of immunities of States, the argument increasingly put
forward that immunity should be denied in the case of death or personal injury resulting from acts of a
State in violation of human rights norms having the character of jus cogens, particularly the prohibition
on torture. However, as the working group itself acknowledged, while national courts had in some cases
shown some sympathy for the argument that States were not entitled to plead immunity where there had
been a violation of human rights norms with the character of jus cogens, in most cases (including those
cited by the applicant in the domestic proceedings and before the Court) the plea of sovereign immunity
had succeeded.
8. The ILC working group went on to note developments, since those decisions, in support of the argument
that a State may not plead immunity in respect of human rights violations: first, the exception to immunity
adopted by the United States in the amendment to the Foreign Sovereign Immunities Act (FSIA) which
had been applied by the United States courts in two cases; secondly, the ex parte Pinochet (No. 3)
judgment in which the House of Lords “emphasised the limits of immunity in respect of gross human
rights violations by State officials”. The Court does not, however, find that either of these developments
provides it with a firm basis on which to conclude that the immunity of States ratione personae is no
longer enjoyed in respect of civil liability for claims of acts of torture, let alone that it was not enjoyed in
1996 at the time of the Court of Appeal’s judgment in the present case.
9. As to the amendment to the FSIA, the very fact that the amendment was needed would seem to confirm
that the general rule of international law remained that immunity attached even in respect of claims of
acts of official torture. Moreover, the amendment is circumscribed in its scope: the offending State must
be designated as a State sponsor of acts of terrorism, and the claimant must be a national of the United
States. The effect of the FSIA is further limited in that after judgment has been obtained, the property of
a foreign State is immune from attachment or execution unless one of the statutory exceptions applies
(see paragraph 24 above).
10. As to the ex parte Pinochet (No. 3) judgment (see paragraph 34 above), the Court notes that the majority
of the House of Lords held that, after the UN Convention and even before, the international prohibition
against official torture had the character of jus cogens or a peremptory norm and that no immunity was
enjoyed by a torturer from one
Torture Convention State from the criminal jurisdiction of another. But, as the working group of the ILC itself
acknowledged, that case concerned the immunity ratione materiae from criminal jurisdiction of a former
head of State, who was at the material time physically within the United Kingdom. As the judgments in the
case made clear, the conclusion of the House of Lords did not in any way affect the immunity ratione
personae of foreign sovereign States from the civil jurisdiction in respect of such acts (see in particular, the
judgment of Lord Millett, mentioned in paragraph 34 above). In so holding, the House of Lords cited with
approval the judgments of the Court of Appeal in Al-Adsani itself.

1. 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 acceptance in international law of the proposition
that States are not entitled to immunity in respect of civil claims for damages for alleged torture committed
outside the forum State. The 1978 Act, which grants immunity to States in respect of personal injury
claims unless the damage was caused within the United Kingdom, is not inconsistent with those
limitations generally accepted by the community of nations as part of the doctrine of State immunity.
2. In these circumstances, the application by the English courts of the provisions of the 1978 Act to uphold
Kuwait’s claim to immunity cannot be said to have amounted to an unjustified restriction on the applicant’s
access to a court.
It follows that there has been no violation of Article 6 § 1 of the Convention in this case. FOR THESE
REASONS, THE COURT

1. Holds unanimously that there has been no violation of Article 3 of the Convention;
2. Holds by nine votes to eight that there has been no violation of Article 6 § 1 of the Convention.