- These appeals
concern two claims with at their core allegations of systematic torture of the
claimants while in official custody in Saudi Arabia. The first claim (No.
HQ020X01805) is made by Mr Ronald Grant Jones against "The Ministry of the
Interior Al-Mamlaka Al-Arabiya as Saudiya (The Kingdom of Saudi Arabia)" as
first defendant and against Lieutenant Colonel Abdul Aziz, described as "a
servant or agent" of The Kingdom, as second defendant. It is common ground
that the first defendant is a department of and to be equated with The Kingdom
of Saudi Arabia (which I will call "The Kingdom"). The claim against both
defendants is for "damages including aggravated and exemplary damages for
assault and battery, trespass to the person, torture and unlawful
imprisonment". But its central element for present purposes consists in
allegations of systematic torture during a period of 67 days’ imprisonment in
solitary confinement between 16th March to 21st May
2001. This is said to have occurred after the claimant, Mr Jones, was mildly
injured in a bomb blast outside a Riyadh book store on 15th March
2001 and hospitalised for a day. Mr Jones alleges that, following his release
and return to England, he has suffered damage in England, in the form of post
traumatic stress disorder and depression necessitating treatment, and is
unable to work.
- The second claim
(No. HQ04X00431) is made by three claimants, Sandy Mitchell and Leslie Walker
(both Britons) and William Sampson (a Canadian citizen), against four Saudi
Arabian individuals, Ibrahim Al-Dali and Khalid Al-Saleh, Colonel Mohamed al
Said and Prince Naif. The claim is expressed to be for assault and also (in
the case of the third and fourth named defendants) negligence. These
defendants’ official positions are described as follows in the draft
particulars of claim:
"5. At all material times the First Defendant was a captain in the
Saudi Arabian police force. He is now a Major.
6. At all material times the Second Defendant was a lieutenant in the
Saudi Arabian police force.
7. At all material times the Third Defendant was a Colonel in the
Ministry of Interior and Deputy Governor of the Al Ha’ir prison and
accordingly was responsible for the acts and omissions of the First and
Second Defendant in respect of the interrogation of detainees within the
criminal justice system including the claimants.
8. At all material times the Fourth Defendant was head of the
Ministry of the Interior with responsibility for the matters of domestic
security and domestic and foreign intelligence including the police service
and the prison service."
- All three
claimants in this claim allege that they were the victims of broadly similar
patterns of systematic torture in prison. They allege that the torture was
inflicted by the first and second defendants to elicit confessions which were
eventually made, but which were, it is said, entirely false (though they led,
it appears, at one point to sentences of death being passed on Messrs.
Mitchell and Sampson). The first and second claimants allege that, during this
period, they had direct contact with the third defendant. The first claimant
says that the third defendant said that there was "nothing he could do to
stop" the torture, but that he would ensure that medical attention was given.
The second claimant says that, following arguments on occasions when the third
defendant visited him, he used within two days to be taken to an interrogation
unit and beaten and kicked to punish him for the views he had expressed to the
third defendant (the intended inference being, presumably, that this treatment
took place on the third defendant’s instructions). As regards the fourth
defendant, all three claimants say simply:
"In so far as may be necessary to demonstrate the Fourth Defendant’s
knowledge of the matters set out above [i.e. the alleged systematic torture]
the Claimants will rely upon similar fact evidence of the systematic use of
torture by the bodies over which he had command and
control."
All
three claimants allege that, following their release and return to England,
they have suffered ongoing psychological damage in England as a result of
being tortured.
- Attempts to
serve Mr Jones’s claim (No. HQ020X01805) on The Kingdom and on the second
defendant, Lieutenant Colonel Aziz, led to acknowledgement by The Kingdom’s
then solicitors, Messrs Pinsent, on 29th January 2003 that service
may have been effected on The Kingdom and (in any event) an acceptance of such
service. But Messrs Pinsent made clear that they had no authority to accept
service on behalf of the second defendant. They said:
"The position regarding the Second Defendant is, as we understand it,
that the papers were returned as there was insufficient information to
enable the Second Defendant to be identified."
- On
12th February 2003 The Kingdom applied to set aside service of Mr
Jones’s claim on the grounds (a) that it, and its servants and agents, are
entitled to immunity under s.1 of the State Immunity Act 1978 and/or (b)
(without prejudice thereto) that the English court has no jurisdiction and/or
should not exercise any which it has. The draft order which was attached
invited the court to deal with ground (a) first.
- In a letter
dated 26th March 2003 from Human Rights Watch, the Minister of the
Interior, Prince Naif, is recorded as having told a member of a Human Rights
Watch delegation visiting Saudi Arabia in January/February 2003 "that an
investigator had exceeded his limits and may have been a little harsh in his
treatment of Mr Jones", while declining to provide the investigator’s name or
details of his punishment. In this situation, application was on
14th May 2003 made on behalf of Mr Jones for an order permitting
service on the second defendant by an alternative method, namely service on
Prince Naif.
- The Kingdom’s
and Mr Jones’s applications came before Master Whitaker on 30th
July 2003, when he allowed The Kingdom’s application and dismissed the claim
against it and refused Mr Jones’s application to serve the second defendant by
an alternative method. The master considered that The Kingdom was entitled to
immunity as a state in the light of the decision of the European Court of
Human Rights in Al-Adsani v. United Kingdom (2002) 34 ECHR 11 at p.273.
He also considered that:
"the immunity afforded to the first defendant under the 1978 Act
clearly extends to the second defendant as part of the Saudi Arabian State
under Section 14(1) of the 1978 Act".
He
cited in support Jaffe v. Miller (1993) 95 ILR 446 (Court of Appeal of
Ontario) and Propend Finance Pty Ltd v. Sing [1997] 111 ILR 611 (CA).
He considered that he was bound by s.1(2) of the 1978 Act to take note of such
immunity of his own motion. He gave permission to appeal to this
court.
- The three
claimants in claim No. HQ04X00431 also sought permission to serve the four
defendants to that claim out of the jurisdiction in Saudi Arabia. The
application came before Master Whitaker on 18th February 2004, when
he acknowledged that he had the benefit of much fuller argument than on the
applications relating to Mr Jones’s claim. He said that:
"…. had the matter come before me as a free-standing application,
without my having decided the Jones case …., I might have been
tempted to give permission to serve out of the jurisdiction on the basis
that it seems to me that, having heard the arguments, that there is a case
to be answered by these defendants as to whether there is jurisdiction in
these courts over them".
However, given that an appeal from his decision in relation to Mr
Jones’s claim was already fixed for hearing in the Court of Appeal in May
2004, Master Whitaker decided to refuse permission to serve out, taking the
same view as he had before, namely that officers of The Kingdom were entitled
to the same immunity as the state. Again, he gave permission to
appeal.
- The appeals now
before us in relation to these two claims raise two central points. First, is
The Kingdom entitled to immunity in respect of Mr Jones’s claim, which it
accepts has been served on it? Second, is The Kingdom entitled to claim
immunity on behalf of its officials in respect of the claims made against
those officials in both Mr Jones’s and Messrs Mitchell’s, Sampson’s and
Walker’s claims? I put the second question in that form, because it is common
ground that any claim to immunity in respect of the claims against the
officials is a claim which belongs to The Kingdom and which The Kingdom would
be entitled to waive, if it so wished. Since neither claim has as yet been
served on any official, it might be argued that it was inappropriate or at
least unnecessary for the master to address the question of immunity when he
did. However, it is clear enough, from The Kingdom’s application in respect of
Mr Jones’s claim and from its attitude through counsel before us, that The
Kingdom firmly intends to assert any immunity that it can on behalf of its
officials. The master to that extent based himself on a realistic assumption.
The potential problem which I identify about his approach is a different one,
and relates to the fact that he focussed solely on the issue of state
immunity. I shall return to this aspect.
MR
JONES’S CLAIM AGAINST THE KINGDOM
- In Rahimtoola
v. Nizam of Hyderabad [1958] AC 379 (overruling [1957] Ch 157) Lord
Reid described the basis of state immunity in words often quoted
subsequently:
"The principle of sovereign immunity is not founded on any technical
rules of law: it is founded on broad considerations of public policy,
international law and comity."
Two
overlapping considerations feature in the authorities: that the courts of one
state should not permit a claim that would implead a foreign sovereign state
before them; and that they should respect, and not interfere in, a foreign
sovereign state's conduct of its affairs, particularly within its territorial
jurisdiction. It follows from the first consideration that claims to state
immunity should be resolved at an early stage in proceedings. It should,
however, be noted that the second consideration is also at the root of
different principles, which generally operate at a later stage in proceedings,
and fall under the headings of "act of state" and 'justiciability". One such
principle requires recognition of a foreign state's dealings with private
proprietary rights within its jurisdiction: Luther v. Sagor
[1921] 3 KB 532; Princess Paley Olga v. Weisz [1929] 1 KB
718; Dicey & Morris (13th Ed.) Chap. 25. The other, associated principle
is non-justiciability, which was considered in Buttes Gas and Oil Co.
v. Hammer [1988] AC 888, 932E-F per Lord Wilberforce and Kuwait
Airways Corpn v. Iraqi Airways Co. (Nos. 3 and 4) [2002]
UKHL 19; [2002] 2 AC 883, paras. 24-26, 113 and 135-6 per Lords Nicholls,
Steyn and Hope. But the first principle is subject to an exception where
public policy so requires: cf both Oppenheimer v. Cattermole
[1976] AC 249, where the House concluded that a Nazi law discriminating
against Jews constituted so grave an infringement of human rights and of
"clearly established rules of international law" that it should be denied
recognition, and Kuwait Airways itself, where this exception was
applied to refuse recognition to an Iraqi law which, in flagrant breach of
international law, purported to legitimise the confiscation of the Kuwait
Airways civil aviation fleet, by that stage forcibly removed to Iraq. The
second principle, non-justiciability, is, in English law (United States
jurisprudence may have different nuances), applicable where there are "no
judicial or manageable standards by which to judge [the] issues" and "the
court would be in a judicial no-man's land" (per Lord Wilberforce in Buttes
Gas at p.938), and does not "mean that the judiciary must shut their eyes
to a breach of an established principle of international law committed by one
state against another when the breach is plain..." (cf per Lord Nicholls in
Kuwait Airways at p.1081).
- Part I of the
State Immunity Act 1978 defines, for most purposes, the current English
position regarding state immunity in civil proceedings. By s.1:
"1(1) A State is immune from the jurisdiction of the courts of the
United Kingdom except as provided in the following provisions of this Part
of the Act.
(2) A court shall give effect to the immunity conferred by this
section even though the State does not appear in the proceedings in
question."
The
first part of the Act goes on to identify exceptions from immunity which fall
under the heads of submission to the jurisdiction (s.2), commercial
transactions and contracts to be performed in the United Kingdom (s.3),
contracts of employment (s.4), personal injuries and damage to property (s.5),
ownership, possession and use of property (s.6), patents, trade-marks, etc.
(s.7), membership of bodies corporate (s.8), arbitrations (s.9), ships used
for commercial purposes (s.10) and VAT, customs duties, etc (s.11). The
exception in s.5 is confined to proceedings in respect of personal injuries
and damage to property "caused by an act or omission in the United Kingdom"
and is therefore of no assistance to Mr Jones or any of the claimants in the
claims before us.
- Under the
heading "Supplementary Provisions", s.14 of the 1978 Act provides:
"14(1) The immunities and privileges conferred by this Part of this
Act apply to any foreign or commonwealth State other than the United
Kingdom; and references to a State include references to-
(a) the sovereign or other head of that State in his public
capacity;
(b) the government of that State;
(c) any department of that government,
but not to any entity (hereinafter referred to as a "separate entity"
which is distinct from the executive organs of the government of the State
and capable of suing or being sued.
(2) A separate entity is immune from the jurisdiction of the courts
of the United Kingdom if, and only if-
(a) the proceedings relate to anything done by it in the exercise of
sovereign authority; and
(b) the circumstances are such that a State …. would have been so
immune."
- In Al-Adsani
v. Government of Kuwait (No. 2) (1996) 107 ILR 536, the claimant alleged
that he had suffered torture in a security prison in Kuwait, and obtained
leave to serve out of the jurisdiction the Government of Kuwait (and three
individuals, one of whom at least was served: see p.539) on the ground that he
had in consequence suffered psychological damage after returning to and while
in England. The Government of Kuwait applied to set aside the service on it,
and for a declaration that it had immunity under s.1(1) of the 1978 Act. The
Court of Appeal granted its application, holding that the Act was a
comprehensive code, and that, although international law prohibited torture,
no express or implied exception to immunity existed in cases of torture. Mr
Al-Adsani took the issue to the European Court of Human Rights, claiming that
such immunity infringed his right of access to the English courts under
article 6 of the European Convention on Human Rights. The European Court held
by 9 to 8 that there had been no such infringement. It is important to note
that both the majority and the minority considered that article 6 was prima
facie engaged as a result of "the procedural bar on the national courts’ power
to determine the right" claimed (paragraphs 46-49). So it was for the United
Kingdom government to show that the restriction on access to its courts
"pursued a legitimate aim and was proportionate" (paragraph 50). But the
majority considered that:
"the grant of sovereign immunity to a State in civil proceedings
pursues the legitimate aim of complying with international law to promote
comity and good relations between States through the respect of another’s
sovereignty" (paragraph 54)
and
that, in consequence
"measures taken …. which reflect generally recognised rules of public
international law on State immunity cannot in principle be regarded as
imposing a disproportionate restriction on the right of access to court as
embodied in Article 6(1). Just as the right of access to court is an
inherent part of the fair trial guarantee in that Article, so some
restrictions on access must likewise be regarded as inherent, an example
being those limitations generally accepted by the community of nations as
part of the doctrine of State immunity." (paragraph
56).
- The majority did
not regard the decisions in Prosecutor v. Furundzija (Case
IT095017/1-T; 10 December 1998) and R. v. Bow Street Metropolitan
Stipendiary Magistrate, ex p. Pinochet Ugarte (No. 1) [2000] 1 AC 61 and
(No. 3) [2000] 1 AC 147 on "the criminal liability of an individual for
alleged acts of torture" or any other international instrument, judicial
authority or material as providing
"any firm basis for concluding that, as a matter of international
law, a State no longer enjoys immunity from civil suit in the courts of
another country where acts of torture are alleged".
They pointed out that
"none of the primary international instruments referred to [viz
Article 5 of the Universal Declaration of Human Rights, Article 7 of the
International Covenant on Civil and Political Rights and Articles 2 and 4 of
the United Nations Convention against Torture] relates to civil proceedings
or to state immunity" (paragraph 61).
They concluded by saying that
"The Court, while noting the growing recognition of the overriding
importance of the prohibition of torture, does not accordingly find it
established that there is yet an acceptance in international law of the
proposition that States are not entitled to immunity in respect of civil
claims for alleged torture committed outside the forum State" (paragraph
66).
The
reasoning in Al-Adsani was applied by analogy in Bouzari v. Islamic
Republic of Iran (Swinton J., 1 May 2002 and Court of Appeal for Ontario,
30 June 2004) to article 14(1) of the International Covenant on Civil and
Political Rights which is in, for present purposes, similar terms to article
6(1) of European Convention on Human Rights.
- Mr Crystal QC
for Mr Jones (supported by The Redress Trust in its written submissions before
us) submits that we should not follow the majority in Al-Adsani. He
points out that we are under s.2 of the Human Rights Act bound to "take
account" of judgments of the European Court of Human Rights, but not bound by
them. However, the European Court of Human Rights was considering a judgment
of the English Court of Appeal which is itself binding on us. The European
Court concluded that this judgment was in conformity with international legal
principles of immunity and as a result in accordance with the Convention. We
would, if we were to accept Mr Crystal’s submission, be departing without
justification both from a previous decision of this court and from strongly
expressed reasoning of a majority of the European Court of Human Rights
regarding international legal principles of state immunity.
- Mr Crystal
submitted, and I accept, that international law is in the course of continuing
development. He sought in this light to obtain some assistance from the dicta,
cited later in this judgment, by Judges Higgins, Kooijmans and Buergenthal in
The Congo v. Belgium (Case regarding the arrest warrant of 11 April
2000) (ICJ; 14 February 2002). These dicta are of considerable interest on
the subject of a claim for immunity in respect of the acts or omissions of
individual officials. But neither they nor any other authority which Mr
Crystal was able to cite assist his case regarding a state’s claim to its own
immunity.
- At the heart of
Mr Crystal’s submissions was the proposition (which was common ground before
us) that the prohibition on systematic torture in international law
constitutes jus cogens, a "peremptory norm". The majority in the
European Court in Al-Adsani referred to the House of Lords’ decision in
R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet (No.
3) [2000] 1 AC 147 as establishing the same proposition (paragraph 34),
and themselves endorsed the proposition with reference to article 3 of the
Human Rights Convention (paragraphs 59 and 61). Mr Crystal submitted that
there can be no derogation from such a norm, and that immunity would
constitute a derogation. The majority in Al-Adsani noted that "the
argument was increasingly put forward" that there should be no civil immunity
in respect of torture. But they concluded that the jus cogens nature of
the prohibition on torture did not mean either necessarily or (as yet) in
general practice that a State should no longer be treated as enjoying immunity
from civil proceedings in the courts of another state to that in which the
alleged torture occurred (paragraphs 61-62). This reasoning in my view remains
valid. The recognition under general principles of international law of civil
immunity on the part of a State from civil suit in a state other than that of
the alleged torture does not sanction the torture or qualify the prohibition
upon it. It qualifies the jurisdictions in which and means by which the
peremptory norm may be enforced. There is a distinction between principles of
substantive international law and other issues, such as jurisdiction and
immunity in civil proceedings in any particular jurisdiction: see Hazel Fox QC
on The Law of State Immunity (OUP, 2002) p.525.
- Reliance was
also placed by Mr Crystal on article 14(1) of the Torture Convention, which
provides:
"14(1) Each state shall ensure in its legal system that the victim of
an act of torture obtains redress and has an enforceable right to fair and
adequate compensation, including the means for as full rehabilitation as
possible. In the event of the death of the victim as a result of an act of
torture, his dependants shall be entitled to compensation.
(2) Nothing in this article shall affect any right of the victim or
other persons to compensation which may exist under national
law."
Article 14(1) does not state from whom redress must be available, and
has no explicit jurisdictional ambit. Its focus is on redress for the "victim"
of an "act of torture". That must at least mean redress from the offending
"public official or other persons acting in an official capacity" (cf article
1(1)), who cannot invoke superior orders as a justification (cf article 2(3)).
I am ready to assume that it also requires redress from the state whose public
official or other person acting in an official capacity committed the act of
torture. But the article does not state expressly whether there must be any or
what connection between the state which must ensure such redress and either
the act or the victim. On the other hand, is seems unlikely that it can have
been intended that every state should ensure that its legal system provided
redress for every act of torture by the public officials (or by other persons
acting in an official capacity) of other states, wherever committed and
whoever the victim. I note that when ratifying the Torture Convention the
United States for its part expressed its understanding to be that article 14
only required a state to provide a private right of action for damages for
acts of torture committed in terrritory under such state’s jurisdiction.
(Quaere, however, whether this formulation contemplated that state A would
have to provide such redress for torture by state B’s officials in state A,
but not for torture by state A’s officials in state B.) A full and helpful
discussion of the proper interpretation of article 14 is contained in Andrew
Byrnes’s chapter, Civil Remedies for Torture committed Abroad: An
Obligation under the Convention against Torture, in Torture as Tort (Hart
Publishing, Oxford, 2001), where the most plausible interpretation is
ultimately considered to be that a territorial limitation was omitted by
inadvertence.
- I, for my part,
find it instructive to start by contrasting the absence of specific provision
regarding civil jurisdiction under article 14 with the specific provisions
regarding criminality and criminal jurisdiction in articles 4 and 5, which
read:
"4.1 Each State Party shall ensure that all acts of torture are
offences under its criminal law. ….
5.1 Each State Party shall take such measures as may be necessary to
establish its jurisdiction over the offences referred to in article 4 in the
following cases:
(a) When the offences are committed in any territory under its
jurisdiction or on board a ship or aircraft registered in that
State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State
considers it appropriate.
2. Each State Party shall likewise take such measures as may be
necessary to establish its jurisdiction over such offences in cases where
the alleged offender is present in any territory under its jurisdiction and
it does not extradite him pursuant to article 8 to any of the States
mentioned in paragraph 1 of that article.
3. This Convention does not exclude any criminal jurisdiction
exercised in accordance with internal law."
- One possible
interpretation of article 14(1) is certainly that it is only concerned to
ensure a right of redress in the state where an act of torture is committed.
The civil redress required under article 14(1) would on that basis mirror the
criminal jurisdiction required to be introduced under article 5(1). But, since
torture is by definition an act inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in a
public capacity, it would seem curious if each state were not required to
ensure a civil right of redress in respect of torture committed abroad by one
of its officers - paralleling the criminal jurisdiction required under article
5(1)(b) in each state in respect of an alleged offender who is a national of
that state. Suppose (as would be likely) that the official committing the
torture had returned home, one would expect it to be the duty of the state of
which he was a national to ensure that civil redress could be obtained against
him as well as, I would think, against the state itself. Neither of these
approaches would however lead to the application of article 14(1) in relation
to Mr Jones’s claim for acts of torture committed in Saudi Arabia and by a
Saudi Arabian official.
- Under article
5(1)(c) a state is only required to establish criminal jurisdiction on the
basis that a victim of torture is one of its nationals, if it "considers it
appropriate". This reinforces the improbability of a construction of article
14(1) which would require a state to establish civil jurisdiction in such a
case. Moreover, article 14(2) in preserving any right to redress "which may
exist under national law" clearly envisages that there may be existing
national legal provisions for redress against torture which go wider than the
right required to be available under article 14(1). Article 14(2) may well
have been framed having in mind national legislation such as the Alien Tort
Statute of 1789 and the United States jurisprudence, to which I come later in
this judgment, which had (even prior to Torture Victim Protection Act of 1992
of the United States) shown the possibility of national courts adjudicating
upon claims against foreign state officials for foreign torture. This is, I
note, also the view of Byrnes at p.453. For the present, I need only say that
all these considerations lead me to conclude that article 14(1) is dealing
with (no more than) a right of redress in the legal system of the state (state
A) by whose official (or other person acting in a public capacity) the alleged
act of torture was committed (whether such act was committed at home in state
A or abroad). State A is, in short, the responsible state, and it must ensure
proper civil redress. Article 14(1) is not designed to require every
other state (state B) to provide redress in its civil legal system for acts of
torture committed in state A, although under article 14(2) it remains
permissible for state B to provide redress in state B for acts of
torture committed (either in state A or elsewhere) by officials, etc. of state
A. This conclusion is consistent with that reached by the Canadian courts in
Bouzari (paragraphs 44-54 and 72-81, although the tenor of Professor
Greenwood’s evidence accepted by both courts in that case appears to have been
to concentrate upon article 14(1) and quite possibly to limit it to the first
interpretation mentioned in paragraph 20 above.
- Mr Crystal
further submitted that a distinction should be drawn between (i) acts or
omissions which could be said to be part of the functions of a state and (ii)
other acts or omissions (of which systematic torture was, he suggested, an
example) which could not possibly be said to be a state function. In his
submission, the reasoning of a number of the members of the House of Lords in
Pinochet Nos 1 and 3 leads to a conclusion that the latter type of acts
or omission cannot give rise to any claim to immunity. In this connection he
invoked a number of authorities which I shall have to examine closely when
considering The Kingdom’s submission that it can claim immunity on behalf of
its officers. But the short answer to Mr Crystal’s submission in the context
of Mr Jones’s claim against The Kingdom is that it is again inconsistent with
the decision both of this court and of the European court in
Al-Adsani.
- There are
important distinctions between the considerations governing (a) a claim to
immunity by a state in respect of itself and its serving head of state and
diplomats and (b) a state’s claim for immunity in respect of its ordinary
officials or agents generally (including former heads of state and former
diplomats). At common law, the state itself and its serving Heads of State,
Heads of Diplomatic Missions and their families and servants enjoyed, because
of their "very special status", personal immunity (immunity ratione
personae) in respect of any acts, whatever their character: see e.g.
Pinochet (No. 3) [2000]1 AC 147, per Lord Hope at p.247, per Lord Millett
at pp.268-9 and per Lord Phillips at p.285; Brownlie, Principles of Public
International Law, 6th Ed. p.326 and the European Court of Human
Rights in the majority’s judgment in Al-Adsani at paragraph 63. It is
that immunity which has, in the case of the state, been restricted first by
common law developments: cf Trendtex Trading Corpn. v. Central Bank of
Nigeria [1977] QB 529 (where Lord Denning was able to pursue thoughts
which had been met coldly by other members of the House when first ventilated
in his speech in Rahimtoola v. Nizam of Hyderabad [1958] AC 379,
overruling [1957] Ch 157) and I Congreso del Partido, and now by
statute in the form of the 1978 Act. Even in relation to immunity rationae
personae, there has therefore been what Hazel Fox QC describes in a chapter in
International Law (OUP, 2003, edited by Malcolm Evans) as "a change in focus
….. from status to function". But personal immunity of this nature has at
common law always been "narrowly available":
"It is not available to serving heads of government who are not also
heads of state, military commanders and those in charge of the security
forces. It would have been available to Hitler but not to Mussolini or Tojo.
It is reflected in English law by section 20(1) of the State Immunity Act
1978, enacting customary international law and the Vienna Convention on
Diplomatic Relations (1961)"
See
Pinochet (No. 3) per Lord Millett at p. 268; and see also per Lord
Phillips at p.280.
- Thus in the
Pinochet case itself, Senator Pinochet as a former Head of State could
claim no more than subject-matter immunity (immunity ratione materiae).
Bearing in mind the difference between (a) the personal immunity available to
a state and its serving head of state and diplomatic representation and (b)
the subject-matter immunity which is otherwise available to a state to assert
in respect of its officials, it does not in my view assist Mr Crystal to try
to qualify a state’s clear express immunity under s.1(1) of the 1978 Act by
reference to principles that may restrict immunity in relation to officials
who are not expressly mentioned in the 1978 Act at all.
- Mr Crystal also
submitted that the majority of the European Court of Human Rights in
Al-Adsani misapplied the principles laid down in the Vienna Convention
on the Law of Treaties of 23 May 1969, when interpreting article 6(1) of the
Convention on Human Rights. Under article 31(3)(c), the third established
principle of interpretation requires account to be taken of "any relevant
rules of international law applicable in the relations between the parties".
Mr Crystal cites the commentary by Alexander Orakhelashvili in his article
Restrictive Interpretation of Human Rights Treaties in the Recent
Jurisprudence of the European Court of Human Rights EJIL (2003) Vol. 14,
529, 537, where the writer observes that the normal use of this principle is
to clarify a provision, not to defer it to another, unless that other
possesses "a higher hierarchical status". That challenges the majority’s view
of the right of access conferred by article 6, in a way which would mean that
article 6 was not merely engaged, but was effectively dominant. Article 6 is
the means by which a claimant may assert a claim for breach of a peremptory
rule of international law. It is not itself peremptory or unqualified. The
contrary proposition comes close to suggesting that international law
requires all states to provide civil remedies in their own jurisdiction
for all acts of torture committed in and by other states. I have indicated why
I find no support for that proposition in article 14 of the Torture
Convention, and I do not accept it.
- Mr Crystal also
submits, if necessary, that we should declare s.1(1) of the State Immunity Act
1978 to be incompatible in its width with the Human Rights Convention. In the
light of what I have said already, this submission is unsustainable. The
European Court has recently held the opposite, and I am unable to detect any
change in the international or national scene which could alter the compelling
relevance of its decision.
- It follows that
I consider that Master Whitaker was right to allow The Kingdom’s application
in respect of Mr Jones’s claim against The Kingdom and to dismiss that claim.
THE
CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS
- I turn to the
claims against the individual officers. In the claim brought by Mr Jones, the
individual defendant, Lieutenant Colonel Abdul Aziz, is described expressly as
"a servant or agent" of the first defendant, The Kingdom of Saudi Arabia, and
the claim is based on allegations of false imprisonment and systematic abuse
and torture "by the First Defendant, its servants or agents and the Second
Defendant". The claims by Messrs. Mitchell, Walker and Sampson are directed at
the individual Saudi Arabian defendants as described in paragraph 2 above,
without any suggestion that they were acting as servants or agents. In view of
the way in which the submissions were developed before us, I think it correct
in the context of Mr Jones’s claim against Lieutenant Colonel Aziz to ignore
his denomination as a "servant or agent".
- All four
claimants in both claims contend that the English courts have power to order
service out of the jurisdiction under CPR 6.20(8), on the ground that their
claims are made in tort, involving damage (in the form of psychological harm)
within the jurisdiction within the meaning of that rule. In Al-Adsani v.
Government of Kuwait (No. 1) 100 ILR 465 the claimant obtained
permission to serve out under the predecessor to this rule (which the
claimants will presumably submit was to materially similar effect to
CPR6.20(8)), on the basis that it was sufficient to show a good arguable case
that "some significant damage" had been suffered within the jurisdiction.
Master Whitaker regarded state immunity as a conclusive objection to the grant
of permission to serve the individual defendants out of the jurisdiction, and
did not consider any other issues which might arise relating to jurisdiction.
In the claim brought by Mr Jones, he was asked by The Kingdom to address the
issue of state immunity as a prior objection (cf paragraph 5 above), and in
the other claim the master took the same objection of his own motion pursuant
to s.1(2) of the 1978 Act (cf paragraph 8 above). Before us neither Mr Crystal
representing Mr Jones nor Mr Fitzgerald QC representing Messrs. Mitchell,
Sampson and Walker raised any objection to the master proceeding in this way.
In my view, however, there is a potential interplay between issues of state
immunity and issues of jurisdiction generally which raises questions about the
appropriateness of such a course.
- At the stage of
an application for permission to serve proceedings out of the jurisdiction,
the issue is whether the claimants can show a good arguable case – that is to
say (a) on the merits and (b) for regarding the claim as one which can and
should appropriately be tried in this jurisdiction irrespective of any claim
to state immunity, as well as (c) for saying that there is no state immunity.
In Professor Brownlie QC’s work, Principles of Public International Law,
6th Ed. p.326, domestic jurisdictional issues appear first in the
list to be addressed in cases of the present kind. To consider jurisdiction at
the outset (or in conjunction with) issues of state immunity is not
inconsistent with the statement in paragraph 63 of the International Court of
Justice’s Advisory Opinion of 29th April 1999 relating to the
immunity from legal process of a special rapporteur of the Commission of Human
Rights (Dato Param Cumaraswamy) that "questions of immunity are …. preliminary
issues which must be expeditiously decided in limine litis". In a case
in which it is sought to advance a limited theory of state immunity, a firm
understanding of the extent or limits of English domestic jurisdiction may, it
seems to me, be a useful starting point. Further, if (particularly in the
light of article 6 of the European Convention on Human Rights) considerations
of proportionality have any relevance to a state’s ability to claim state
immunity in respect of a claim against one of its state officials, then the
nature and extent of any jurisdiction that may exist are likely to be directly
relevant factors.
Propend Finance Pty Ltd v. Sing
- The starting
point in English law is Part I of the State Immunity Act 1978. I have
concluded (above) that The Kingdom of Saudi Arabia is under s.1(1) immune in
respect of Mr Jones’s claim, since none of the exceptions to immunity provided
in the Act applies. But the Act makes no express reference to the position of
individual officials of the state. Under s.14(1) references to a state include
references to the sovereign or other head of that state in his public
capacity, the government of that state and any department. S.14(1) on its face
reflects the personal immunity that those identified would, apart from it,
enjoy under both international and common law. If, which I doubt, it goes in
its express terms any further, then they must, on any view, be read subject to
qualification to reflect the distinction between personal and subject-matter
immunity. S.14(2) caters for any separate entity distinct from the executive
organs of the government of the state and capable of suing or being sued, and
it does introduce an express qualification, whereby immunity exists if and
only if the proceedings relate to anything done in the exercise of public
authority. This qualification is apt to cater for the limitations of
subject-matter or functional immunity (cf paragraphs 23-24 above). In
Propend the court held that the effect of article 14(1) was to give
state officials protection "under the same cloak" as the state itself:
"The protection afforded by the Act of 1978 to States would be
undermined if employees, officers (or, as one authority puts it,
"functionaries") could be sued as individuals for matters of State conduct
in respect of which the State they were serving had immunity. Section 14(1)
must be read as affording to individual employees or officers of a foreign
State protection under the same cloak as protects the State
itself."
The
court in Propend did not consider that article 14(2) could, in the
light of its history and background, have any relevance to individual
functionaries: see p. 670. Nor did the court distinguish, or have to, between
the scope of personal and subject-matter immunity. The Kingdom submits that
the principle in Propend covers the present case, but asks us, if
necessary, to review the application of article 14(2) and to consider the
common law position prior to and apart from the 1978 Act. The claimants’
primary response is that neither the principle in Propend nor any other
principle of state immunity can or should protect state officials in respect
of allegations of systematic torture. It is common ground, as I have
indicated, that systematic torture would, if established, constitute a high
international crime contrary to jus cogens - or peremptory
international law. Neither Propend nor any authority referred to in it
was concerned with allegations of such fundamental wrongdoing.
- In
Propend the Court of Appeal cited three authorities in support of this
conclusion: the Church of Scientology case (1978) 65 ILR 193 (German
Supreme Court – "BGH"), Jaffe v. Miller (1993) ILR 446 and Herbage
v. Meese (1990) 747 F Supp 60. In the Church of Scientology case,
the German Supreme Court observed that the claim to immunity by the defendant
(the "Head of New Scotland Yard") was not "derived from his person", but was
based on the fact that the act on which the claimant sued was
"a sovereign act of State which can only be attributed to the British
State and not to him or any other official acting on behalf of that State,
because the State is always considered the actor when one of its
functionaries performs acts which are incumbent on
it".
The
reference to "acts which are incumbent on it" underlines the difference
between the circumstances with which the BGH was concerned and the present
case.
- The BGH went on
to recognise the now traditional distinction between sovereign acts (acts
iure imperii) and other acts entirely unrelated to the official
activities of the agency concerned or the task entrusted to it (cf pp.
197-198). Its actual decision was that the acts of the defendant, as the
expressly appointed agent of the United Kingdom for the purpose of performance
of a treaty between the United Kingdom and Germany, "cannot be attributed as
private activities to the person authorised to perform them in any given case"
and that
"any attempt to subject State conduct to German jurisdiction by
targeting the foreign agent performing the act would undermine the absolute
immunity of sovereign States in respect of sovereign activity".
- Herbage v.
Meese is to similar effect to Propend under the provisions of the
Foreign Sovereign Immunities Act of 1976 ("FSIA") of the United States.
Although the FSIA does not "discuss the liability or role of natural persons,
whether governmental officials or private persons", the sovereign immunity
which it grants was held to extend to such persons: "This is a logical
approach, for a government does not act but through its agents" (p.107). The
court went on to state that "the standard for determining whether immunity is
warranted does not depend on the identity of the person or entity so
much as the nature of the act for which the person or entity is
claiming immunity". The claim was against British police officers and
prosecuting counsel for knowingly and falsely stating, in the context of
extradition proceedings against the claimant, that the United States had made
a valid "provisional request" for his extradition. The Supreme Court stated
that, since the activity complained of was governmental in nature and
performed by officials of that government, the Court had no jurisdiction "over
a foreign sovereign" and that the FSIA was "absolute in this regard, no matter
how heinous the alleged illegalities".
- Jaffe v.
Miller in the Ontario Court of Appeal followed Herbage v. Meese in
holding that it is the character of the act, rather than its purpose, that
determines a claim for immunity in respect of a state official, although the
court observed (with reference to Lord Wilberforce’s words in I Congreso
del Partido [1983] 1 AC 244) that the purpose may throw some light on the
nature of what is done and that a contextual approach is appropriate. The
claim was against Florida state officials for alleged conspiracy maliciously
to prosecute and to kidnap and detain the claimant, in order to blackmail him
into giving up a civil suit. The Court of Appeal gave as the rationale of its
decision that, if immunity was conferred on the government department of a
foreign state but denied to "functionaries, who in the course of their duties
performed the acts, [that] would render the State Immunity Act [which
was in materially similar terms to the United Kingdom’s 1978 Act]
ineffective", since the claimant would only have to sue the functionary and
"In the event that the plaintiff recovered judgment, the foreign
state would have to respond to it by indemnifying its functionaries, thus
through this indirect route, losing the immunity conferred on it by the Act.
Counsel submitted that when functionaries are acting within the scope of
their official duties, as in the present case, they come within the
definition of "foreign state".
However, the claimants submitted that, although the defendants were
acting within the scope of their authority so as to make the State vicariously
liable, their acts were so egregious that they could not shelter under the
State’s immunity. The Court said to this:
"….. the use of adjectives cannot deprive them of their status as
functionaries of the foreign sovereign. The illegal and malicious nature of
the acts alleged do not of themselves move the actions outside the scope of
the official duties of the responding defendants. Further … the appellants’
statement of claim contains no express allegation that any of the
respondents were acting outside of their official
capacities."
There is in my view a possible difficulty in reconciling the Court’s
previously expressed rationale for immunity (particularly the consideration
that "the foreign state would have to respond ….. by indemnifying its
functionaries") with the incongruity of postulating any requirement (legal,
moral or practical) to indemnify state functionaries for "illegal or
malicious" conduct. Nor was the Court addressing a context in which the
alleged wrongful conduct consisted in systematic torture contrary to
international law, against which no state could be required to provide an
indemnity.
- Prior to the
State Immunity Act 1978 there was common law authority recognising immunity in
respect of state officials or agents in the context of the general prohibition
against impleading a foreign sovereign state. Mr Lloyd Jones QC for the
Secretary of State for Constitutional Affairs (as intervener pursuant to
permission of this court) cited Twycross v.Dreyfus (1877) 5 Ch D 605,
Rahimtoola v. Nizam of Hyderabad (above) and Zoernsch v. Waldock
[1964] 1 WLR 675. The first case may not be concerned with state immunity at
all (on the basis that the only possible claim to the funds was against the
state, which had not been joined, rather than against its agent who was sued).
The second related to competing claims by the Nizam and the state of Pakistan
to monies held in the name of the Pakistan High Commissioner in a National
Westminster Bank account. The House of Lords considered that it would implead
the state of Pakistan if the action were permitted to proceed against the
state or its High Commissioner or the Bank. The bank account gave rise to a
debt, the legal title to which was in the High Commissioner but the beneficial
title to which was in issue. The House was content to assume that the High
Commissioner was an agent, rather than an organ of the state (cf p.393 per
Visc. Simonds, p.410 per Lord Reid, with whom Lord Somervell agreed at p.410,
and p.406 per Lord Cohen). It treated the debt as if it were a chattel or gold
bar (cf USA v. Dolfus Mieg et Cie SA [1952] AC 582), in which
connection Lord Reid described the basis of state immunity in words quoted in
paragraph 10 of this judgment.
- In Zoernsch
v. Waldock the claim was against a former president as well as the current
secretary of the European Commission of Human Rights. The former president
(Sir Humphrey Waldock) was (under the Council of Europe (Immunities and
Privileges) Order 1960, SI 1960 No. 442) entitled to "the like immunity from
legal process as is accorded to an envoy of a foreign sovereign power". The
court held, with reference to (inter alia) Rahimtoola, that, after
leaving office, state immunity continued to protect such an envoy from suit in
respect of "acts performed in his official capacity" (see p.684 per Willmer LJ
and p.692 per Diplock LJ) or in respect of "acts done in the course of their
official duties" (p.688 per Danckwerts LJ).
- In Schmidt v.
Home Secretary (1994) 103 ILR 322 the Irish High Court acknowledged the
immunity applicable under Irish common law to English police officers who
(allegedly in breach of the plaintiff’s constitutional rights) were said to
have deprived him of his right of free movement. In Holland v.
Lampen-Wolfe, the House of Lords considered the position of a state
official at common law, in circumstances falling outside the ambit of the 1978
Act. Reference was made to the basic distinction between governmental acts
(jure imperii) and other acts, including commercial acts (jure
gestionis) (cf per Lord Hope at p.1577). Lord Millett with whom a majority
of other Law Lords expressly agreed, said that the doctrine of state immunity
"operates to prevent the official and governmental acts of one state from
being called into question in proceedings before the courts of another", and
that "Where the immunity applies, it covers an official of the state in
respect of acts performed by him in an official capacity" (p.1583).
- This examination
of other common law authority, recognising state immunity in respect of acts
of agents, shows that none of the relevant cases was concerned with conduct
which should be regarded as outside the scope of any proper exercise of
sovereign authority or with international crime, let alone with systematic
torture. However, in Saudi Arabia v. Nelson (1993) 507 US 349, the
United States Supreme Court was concerned with allegations of, inter alia,
torture, apparently pleaded against all three defendants, namely The Kingdom
itself, Hospital Corporation of the America ("HCA"), which had recruited Mr
Nelson to work in a Saudi Arabian hospital, and Royspec, a Saudi corporation
owned and controlled by The Kingdom, which acted as purchasing agent for the
hospital. All three defendants were treated by the majority as qualifying as
the state (including by definition an agency or instrumentality of the state)
and as therefore entitled to immunity under the FSIA (which in this respect
had similar exclusive effect to the United Kingdom’s 1978 Act). But the only
exception to immunity suggested was a statutory exception for an action "based
upon a commercial activity carried on in the United States by the foreign
state" (see p.550) Further, despite the apparent width of the pleading, the
Supreme Court judgments spoke of the alleged torture as boiling down to "abuse
of the power of its police by the Saudi Government" (see pp.553-4). There were
further allegations of negligence in Mr Nelson’s recruitment (presumably in
the first instance by HCA) and of failure to warn him of the risks of such
treatment. The case does not therefore address the issues with which we are
concerned, or the line of previous United States authority to which I shall
come regarding the liability of state officials for torture.
- A further New
Zealand authority not cited in Propend is of interest. In Controller
and Auditor-General v. Sir Ronald Davison, the Auditor-General of New
Zealand was public auditor for the Cook Islands, which (although another of
Her Majesty’s Dominions) were for the purposes of the decision an entirely
separate state. He had delegated his functions to KPMG. An inquiry was set up
in New Zealand to establish whether the New Zealand Inland Revenue Department
and Serious Fraud Office had acted in a lawful, proper and competent manner in
relation to transactions, which were shown by documents contained within a
"winebox" which was passed to a New Zealand MP and put by him before the New
Zealand Parliament and which suggested that the Cook Islands were being used
as a tax haven to evade New Zealand tax. The Auditor-General and KPMG invoked
state immunity as precluding them from producing documents to or answering
questions put by the inquiry. Cooke P and Henry J rejected the claim to
immunity on the basis that the winebox transactions were essentially
commercial in nature, and Thomas J was content to hold accordingly, while
preferring an alternative approach (see p.313, lines 45-47). Richardson J,
with whose judgment McKay J agreed, considered that the transactions could not
be categorised as commercial. But, after referring to the rationale of state
immunity stated by Lord Reid in Rahimtoola, he identified the interplay
of two fundamental principles of territoriality and state personality which,
as I have said, lie at its root. Unusually, in the New Zealand case, the pull
of these considerations was in opposite directions, a factor of importance in
the court’s decision. In particular, the winebox transactions were intimately
connected with New Zealand, the further documents sought by the enquiry were
in New Zealand and there was a special relationship between New Zealand and
the Cook Islands, including automatic New Zealand citizenship for Cook
Islanders based on agreement between their respective prime ministers that the
Cook Islands would "uphold, in their laws and policies, a standard of values
generally acceptable to New Zealanders". In these circumstances, Richardson J
drew attention to the general international recognition that there should be
no immunity in respect of claims for torts causing personal or physical injury
committed within the forum state. He cited as "an extreme case" Letelier v.
Republic of Chile (1980) 488 F Supp 665, where the families of Chilean
dissident leaders sued Chile in the United States for allegedly assassinating
such leaders in Washington. Richardson J said that:
"There must be other cases where the alleged conduct of the foreign
state is directed in a real sense against the forum state or so directly
affects it and is so outrageous that the protection international law would
otherwise give to the foreign state in matters properly within the
jurisdiction of the foreign state should not be allowed".
He identified the facts before him as falling within this category.
McKay J agreed. Cooke P said that he had sympathy with much of what
Richardson J had said, but also that
"In the present era of civilisation and international law I should
think that a Court would be going too far if it were to allow a general
exception of iniquity to the doctrine of sovereign
immunity."
He
contrasted the decision in Kuwait Airways Corpn v. Iraqi Airways Co. (No.
1) [1995] 1 WLR 1147 (where the defendant’s immunity was recognised in
respect of its taking and removal of the Kuwaiti civil aviation fleet, when it
was acting for Iraqi governmental purposes, despite the flagrant breach of
international law involved in such purposes) with Letelier, and
continued:
"One may speculate that the law may gradually but steadily develop,
perhaps first excepting from sovereign immunity atrocities or the use of
weapons of mass destruction, perhaps ultimately going on to except acts of
war "
- Henry J
considered that there was "merit in the line of reasoning adopted" in
Richardson J’s judgment, but that it was debatable
"whether or not this Court should now adopt a broad principle of
iniquity as affecting and possibly overriding the traditional concept of
sovereign immunity – which would be a development beyond that now accepted
under the "restricted" theory."
However, he considered that there were compelling particular reasons
for excluding the doctrine of immunity, even if the restrictive theory did not
apply. They consisted essentially in the close New Zealand connection and New
Zealand public policy.
- Thomas J in a
powerful judgment detected a substantial measure of covert flexibility in a
court’s reaction to a claim of sovereign immunity, even under existing
principle, and advocated "a more overtly flexible approach", involving the
application not of any single factor, but a balancing of all relevant factors,
among them those referred to in Professor Brownlie QC at (now) pages 330-1 of
the sixth edition of his work.
- This case is of
general interest, although not concerned with any international crime, because
of the New Zealand court’s openness towards some relaxation of the doctrine of
state immunity and the preparedness of the majority to rest their decision on
that basis. But at the heart of the New Zealand court's decision was the
unusually close territorial connection which the case had with New Zealand.
One pillar of state immunity, the restraint which national courts exhibit show
in adjudicating upon the internal activities of a foreign state, was
substantially weakened. That is not a factor which finds a direct parallel in
the present case. Here, it is the special nature of torture, wherever
occurring, and the suggested difficulty of obtaining satisfactory redress in
the jurisdiction where it occurred, that are relied on to overcome the problem
that the case is primarily concerned with events in Saudi Arabia.
Torture as an international crime
- Before turning
to such authority as there is bearing on official immunity in respect of the
international crime of torture, it is appropriate to look more closely at the
Torture Convention. The United Nations Convention against Torture is a
convention to which The Kingdom of Saudi Arabia as well as the United Kingdom,
together with a large number of other states, have been party at all material
times. Article 1 provides:
"1.1. For the purposes of this Convention, the term "torture" means
any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him
or a third person information or a confession, punishing him for an act he
or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or
at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include
pain or suffering arising only from, inherent in or incidental to lawful
sanctions."
The
Convention has received very wide-spread international support. In domestic
English law, the United Kingdom’s adherence led to s.134(1) of the Criminal
Justice Act 1988, whereby:
"A public official or person acting in an official capacity, whatever
his nationality, commits the offence of torture if in the United Kingdom or
elsewhere he intentionally inflicts severe pain or suffering on another in
the performance or purported performance of his official
duties."
- Under s.134(1)
of the 1988 Act the acts or omissions of which the present claimants complain
constitute crimes under English law. But s.5 of the State Immunity Act 1978
provides no relevant lifting of state immunity from civil suit under English
law, since the alleged torture occurred outside the United Kingdom. Bearing in
mind the limited express terms of s.14 of the 1978 Act and the limited issue
in Propend, as to both of which see paragraph 31 above, I consider that
it is however necessary to decide as a matter of first principle whether the
cloak of state immunity should extend to acts or omissions of ordinary state
officials amounting to systematic torture. This is so whether the decision
involves (as Propend would suggest) interpretation of the proper scope
of a further implied immunity conferred by s.14, beyond that appearing by its
express terms, or an immunity which arises independently at common law. The
existence of at least some limitations on the immunity in respect of officials
is consistent with the approach adopted by courts in the Church of
Scientology case, Jaffe v. Miller, Herbage v. Meese,
Chuidian v. Philippine National Bank (1990) 912 F 2d 1095; 92 ILR 480
and Holland v. Lampen-Wolfe [2000] 1 WLR 1573. These cases all drew a
general distinction between official and private acts, when identifying the
extent of State immunity for acts or omissions of officials.
- That distinction
is itself not always clear-cut or easy to apply: cf per Lord Lloyd in
Pinochet (No. 1) at p.94 and Lord Hutton in Pinochet (No. 3) at
p.252 in a citation from Oppenheim’s International Law Vol. I, pp. 545-6 para.
165. A pointer towards potential difficulties is also present in the dicta in
Chuidian, and a positive example is provided by Holland v.
Lampen-Wolfe. But difficulty in categorising cases according to their
subject-matter also exists in parallel areas, e.g. in distinguishing between
governmental and commercial acts: see e.g I Congreso del Partido [1983]
1 AC 244, where the Republic of Cuba’s motive of breaking off and
discontinuing all contact with Chile (after the assumption of power by
"President of the Government Junta of Chile" Pinochet on 11th
September 1973) did not mean that its withdrawal of a vessel from its voyage
charter to a Chilean charterer constituted an act jure imperii (since
"everything done by the Republic of Cuba could have been, and, so far as the
evidence goes, was done, as owners of the ship": per Lord Wilberforce, p.
268). The claimants in the present case seek to develop this distinction by
arguing that systematic torture cannot or should not be regarded as falling
within the category of governmental or official acts, on the basis that it can
be no part of a state official’s functions to commit torture; alternatively,
they argue that the law ought to recognise systematic torture as a further
subject-matter in respect of which state officials cannot claim immunity. In
relation to these submissions all parties referred us extensively to the
speeches in Pinochet (No. 1) [2000] 1 AC 61 as well as Pinochet (No.
3) [2000] 1 AC 147.
Pinochet – criminal immunity
- In
Pinochet the courts were concerned with a former head of state’s claim
to immunity from criminal proceedings for systematic torture allegedly
committed as an aspect of state oppression. The recognition that individuals
may be held criminally responsible for offences against international law goes
back at least to principles stated in the Charter of the International
Military Tribunal of Nuremberg and affirmed by the General Assembly of the
United Nations in 1946,when directing the International Law Commission to
treat as a matter of primary importance plans for their formulation. The
Commission in 1950 set out the following principle and commentary in its
paragraph 103 (quoted by Lord Hutton at p.258 in Pinochet (No.
3)):
"The fact that a person who committed an act which constitutes a
crime under international law acted as head of state or responsible
Government official does not relieve him from responsibility under
international law.
103. This principle is based on article 7 of the Charter of the
Nürnberg Tribunal. According to the Charter and the judgment, the fact that
an individual acted as head of state or responsible government official did
not relieve him from international responsibility. 'The principle of
international law which, under certain circumstances, protects the
representatives of a state', said the Tribunal, 'cannot be applied to acts
which are condemned as criminal by international law. The authors of these
acts cannot shelter themselves behind their official position in order to be
freed from punishment . . . .' The same idea was also expressed in the
following passage of the findings: 'He who violates the laws of war cannot
obtain immunity while acting in pursuance of the authority of the state if
the state in authorising action moves outside its competence under
international law."
The
1954 International Law Commission’s draft code of offences against the peace
and security of mankind provided in Article III:
"The fact that a person acted as head of state or as responsible
Government official does not relieve him of responsibility for committing any
of the offences defined in the code."
By
1994 Sir Arthur Watts QC in his Hague Lectures, "The Legal Position in
International Law of Heads of State, Heads of Government and Foreign
Ministers" 1994-III) 247 Recueil des Cours, p. 82 could state that
"The idea that individuals who commit international crimes are
internationally accountable for them has now become an accepted part
of international law".
- Different
members of the House gave different reasons for concluding that state immunity
did not protect Senator Pinochet from the criminal proceedings for extradition
brought against him. In Pinochet (No. 1) Lords Nicholls and Steyn
considered that the protection of immunity could only apply to "official acts
performed in the exercise of the functions of a head of state" by Senator
Pinochet: see pp. 108-9 and 115. Lord Nicholls cited passages from the
Nuremberg Tribunal’s judgment (quoted in paragraph 103 of the International
Law Commission’s report of 1950), saying:
"International law does not require the grant of any wider immunity.
And it hardly needs saying that torture of his own subjects, or of aliens,
would not be regarded by international law as a function of a head of
state."
Lord Steyn identified the critical question as one of classification
in an international law sense. He doubted whether
"what was allegedly done in secret in the torture chambers of
Santiago on the orders of General Pinochet [should] be regarded as official
acts"
but added that
"in any event, in none of these cases is the further essential
requirement satisfied, viz. that in an international law sense these acts
were part of the functions of a head of state".
- In Pinochet
(No. 3) Lords Browne-Wilkinson and Hutton expressed similar views. Lord
Browne-Wilkinson said at pp.205-6:
"How can it be for international law purposes an official function to
do something which international law itself prohibits and
criminalizes?"
Lord Hutton at p.251 pointed out that it was clear that Senator
Pinochet’s acts of alleged torture were not carried out by him in his private
capacity for his private gratification. At p.254 he said (referring to
Jaffe v. Miller):
"It has also been decided that where an action for damages in tort is
brought against officials of a foreign state for actions carried out by them
in ostensible exercise of their governmental functions, they can claim state
immunity, notwithstanding that their actions were illegal. The state itself,
if sued directly for damages in respect of their actions would be entitled
to immunity and this immunity would be impaired if damages were awarded
against the officials and then the state was obliged to indemnify
them."
But, after stating at p.260 that "…since the end of the second world
war there has been a clear recognition by the international community that
certain crimes are so grave and so inhuman that they constitute crimes against
international law" and at p.261 that "acts of torture were clearly crimes
against international law and that the prohibition of torture had acquired the
status of jus cogens" by 29 September 1988, he concluded at pp. 261-3 that
Senator Pinochet’s commission of acts of torture after 29 September
1988 was not
"a function of the head of state of Chile under international
law".
- Lord Hope at
p.242 took a different route. He rejected the view that "it is not one of the
functions of the head of state to commit acts which are criminal according to
the laws and constitution of his own state or which customary international
law regards as criminal". He considered that:
"The principle of immunity ratione materiae protects all acts which
the head of state has performed in the exercise of the functions of
government. The purpose for which they were performed protects these acts
from any further analysis."
He
recognised two exceptions under customary international law, the first
relating to "criminal acts which the head of state did under the colour of his
authority as head of state but which were in reality for his own pleasure or
benefit", the second relating to "acts the prohibition of which has acquired
the status under international law of jus cogens". However, he went
on:
"But even in the field of such high crimes as have achieved the
status of jus cogens under customary international law there is as yet no
general agreement that they are outside the immunity to which former heads
of state are entitled from the jurisdiction of foreign national courts.
There is plenty of source material to show that war crimes and crimes
against humanity have been separated out from the generality of conduct
which customary international law has come to regard as criminal. These
developments were described by Lord Slynn of Hadley [dissenting in
Pinochet (No. 1), at pp. 80-81] and I respectfully agree with his
analysis. As he said, at p. 81A-B, except in regard to crimes in particular
situations where international tribunals have been set up to deal with them
and it is part of the arrangement that heads of state should not have any
immunity, there is no general recognition that there has been a loss of
immunity from the jurisdiction of foreign national
courts.
This led him to sum the matter up in this way at p. 81D-G:
"So it is necessary to consider what is needed, in the absence of a
general international convention defining or cutting down head of state
immunity, to define or limit the former head of state immunity in particular
cases. In my opinion it is necessary to find provision in an international
convention to which the state asserting, and the state being asked to
refuse, the immunity of a former head of state for an official act is a
party; the convention must clearly define a crime against international law
and require or empower a state to prevent or prosecute the crime, whether or
not committed in its jurisdiction and whether or not committed by one of its
nationals; it must make it clear that a national court has jurisdiction to
try a crime alleged against a former head of state, or that having been a
head of state is no defence and that expressly or impliedly the immunity is
not to apply so as to bar proceedings against him. The convention must be
given the force of law in the national courts of the state; in a dualist
country like the United Kingdom that means by legislation, so that with the
necessary procedures and machinery the crime may be prosecuted there in
accordance with the procedures to be found in the convention.
"
- Lord Hope’s
conclusion that Senator Pinochet lacked immunity in the criminal proceedings
brought against him therefore rested on construction of the Convention against
Torture, to which both the United Kingdom and Chile were party and which had
or had been given domestic effect. However, he made clear that he did not
consider that it was a necessary implication of the Torture Convention that it
"removed the immunity ratione materiae from former heads of state in respect
of every act of torture of any kind" (p.246A). It did so, in his view, only in
respect of torture alleged "of such a kind or on such a scale as to amount to
an international crime", referring to Sir Arthur Watts’s statement quoted in
paragraph 47 above.
- Lord Millett
took a more general view. He would have held (under the principle recognised
by the International Law Commission in 1954 and citing, inter alia, the
Supreme Court of Israel’s decision in A-G of Israel v. Eichmann 36 ILR
5) that no immunity survived in respect of international crimes committed by
state officials which were both (a) contrary to jus cogens and also
(b) so serious and on such a scale as to amount to an attack on the
international legal order, including since at least 1973 the use of systematic
torture (pp. 273-5).
- Lord Millett
also considered that the Convention on Torture with its wider definition of
torture was "entirely inconsistent with the existence of a plea of immunity
ratione materiae" (pp.277-8). Lords Saville and Phillips based themselves on
the same conclusion (pp. 267 and 289). But Lord Phillips touched on the
question whether more may be required for immunity than merely acting in an
official capacity. He said (in the context of genocide) at p. 289:
"Would international law have required a court to grant immunity to a
defendant upon his demonstrating that he was acting in an official capacity?
In my view it plainly would not. I do not reach that conclusion on the
ground that assisting in genocide can never be a function of a state
official. I reach that conclusion on the simple basis that no established
rule of international law requires state immunity ratione materiae to be
accorded in respect of prosecution for an international crime. International
crimes and extra-territorial jurisdiction in relation to them are both new
arrivals in the field of public international law. I do not believe that
state immunity ratione materiae can co-exist with them. The exercise of
extra-territorial jurisdiction overrides the principle that one state will
not intervene in the internal affairs of another."
At
p.290 he continued:
"The Convention is thus incompatible with the applicability of
immunity ratione materiae. There are only two possibilities. One is that
states party to the Convention proceeded on the premise that no immunity
could exist ratione materiae in respect of torture, a crime contrary to
international law. The other is that parties to the Convention expressly
agreed that immunity ratione materiae should not apply in the case of
torture. I believe that the first of these alternatives is the correct one,
but either must be fatal to the assertion by Chile and Senator Pinochet of
immunity in respect of extradition proceedings based on
torture."
On
the alternative which Lord Phillips believed to be correct, the view of those
drafting the Convention must have been that, apart from the Convention,
international law had already reached a point at which state immunity
ratione materiae could no longer survive to preclude criminal prosecution for
systematic torture contrary to international law.
Pinochet – civil liability
- Up to this
point, I have been focusing on the issue of immunity in respect of criminal
proceedings which arose for decision in Pinochet. But the speeches
contain statements bearing on the existence and scope of civil immunity. Lord
Browne-Wilkinson referred briefly at p.205 to immunity ratione
materiae:
"Immunity ratione materiae applies not only to ex-heads of state and
ex-ambassadors but to all state officials who have been involved in carrying
out the functions of the state. Such immunity is necessary in order to
prevent state immunity being circumvented by prosecuting or suing the
official who, for example, actually carried out the torture when a claim
against a head of state would be precluded by the doctrine of immunity.
If that applied to the present case, and if the implementation of the
torture regime is to be treated as official business sufficient to found an
immunity for the former head of state, it must also be official business
sufficient to justify immunity for his inferiors who actually did the
torturing. Under the Convention the international crime of torture can only
be committed by an official or someone in an official capacity. They would
all be entitled to immunity ….
For these reasons in my judgment if, as alleged, Senator Pinochet
organised and authorised torture after 8 December 1988, he was not acting in
any capacity which gives rise to immunity ratione materiae because such
actions were contrary to international law." (Italics
added)
As
I read the passage which I have italicised, Lord Browne-Wilkinson was
suggesting that the immunity ratione personae of a serving head of
state ordering torture could not be permitted to be undermined by either a
prosecution or a civil claim against the official actually committing the
torture. I need not comment on that suggestion. What matters is that Lord
Browne-Wilkinson went on simply to deal with, and reject, the suggestion that
there could be any immunity ratione materiae from prosecution for torture in
respect of either a former head of state or any inferior official.
However, he did not explicitly address the question of any civil liability on
the part of either.
- In contrast,
Lord Hutton at p.264 considered that, not only could Chile claim immunity if
sued for damages for such acts in a court in the United Kingdom, but
that:
"Senator Pinochet could also claim immunity if sued in civil
proceedings for damages under the principle in Jaffe v. Miller
…"
Lord Millett at p.273 said in passing, in relation to the Torture
Convention that:
"The very official or governmental character of the acts which is
necessary to found a claim to immunity ratione materiae, and which still
operates as a bar to the civil jurisdiction of national courts, was now to
be the essential element which made the acts an international
crime."
In
a later passage at p. 278, Lord Millett observed:
"In my opinion, acts which attract state immunity in civil
proceedings because they are characterised as acts of sovereign power may,
for the very same reason, attract individual criminal liability. The
respondents relied on a number of cases which show that acts committed in
the exercise of sovereign power do not engage the civil liability of the
state even if they are contrary to international law. I do not find those
decisions determinative of the present issue or even relevant. In England
and the United States they depend on the terms of domestic legislation;
though I do not doubt that they correctly represent the position in
international law. I see nothing illogical or contrary to public policy in
denying the victims of state sponsored torture the right to sue the
offending state in a foreign court while at the same time permitting (and
indeed requiring) other states to convict and punish the individuals
responsible if the offending state declines to take action. This was the
very object of the Torture Convention. "
In
this passage, however, Lord Millett was comparing the civil immunity of the
state with the criminal liability of the responsible
individuals. He was not considering or in terms excluding any potential
civil liability of individuals.
- Lord Phillips
observed at p.280 that the House was not concerned with a civil suit. But at
p.281, he said, with clear reference to the possibility of a civil claim
against Senator Pinochet personally, that:
"Were these civil proceedings in which damages were claimed in
respect of acts committed by Senator Pinochet in the government of Chile,
Chile could argue that it was itself indirectly impleaded. That argument
does not run where the proceedings are criminal and where the issue is
Senator Pinochet's personal responsibility, not that of
Chile."
He
went on to cite Hatch v. Baez 7 Hun 596, where the New York court
dismissed a civil claim against a former president of St. Domingo, on the
ground that it was not competent to adjudicate upon the official acts of
another government done within its own territory in the exercise of
sovereignty. At pp.285-6 he gave two explanations for the immunity ratione
materiae of a former head of state or state official:
"The first is that to sue an individual in respect of the conduct of
the state's business is, indirectly, to sue the state. The state would be
obliged to meet any award of damage made against the individual. This
reasoning has no application to criminal proceedings. The second explanation
for the immunity is the principle that it is contrary to international law
for one state to adjudicate upon the internal affairs of another state.
Where a state or a state official is impleaded, this principle applies as
part of the explanation for immunity."
He
also said at p.287 that, "if one proceeds on the premise that Part I of the
1978 Act correctly reflects current international law", then "two propositions
are made out in relation to civil proceedings":
"(1) One state will not entertain judicial proceedings against a
former head of state or other state official of another state in relation to
conduct performed in his official capacity. (2) This rule applies even if
the conduct amounts to a crime against international law.
….."
The
"vital issue" in Pinochet was, he said, the extent to which
these two propositions applied to the exercise of criminal jurisdiction in
relation to the conduct alleged against Senator Pinochet. He held, for reasons
already examined, that Senator Pinochet could, in the light of the development
of international law and the Torture Convenion, no longer enjoy any immunity
ratione materiae in that respect.
- With regard to
civil liability of individuals, Pinochet (No. 3) therefore contains
statements by three members of the House of Lords (Lords Hutton, Millett and
Phillips) assuming or maintaining the continued existence of immunity ratione
materiae in respect of a former head of state or other official in civil
proceedings (even proceedings based on systematic torture).
Other national and international jurisprudence regarding civil
immunity
- I turn to
consider what other national and international jurisprudence exists to throw
light on the proper scope of the civil immunity which a state may assert in
respect of officials alleged to have committed crimes against international
law. In a brief dictum in Prosecutor v. Furundzija (Case IT095017/1-T;
10 December 1998) the International Tribunal for Former Yugoslavia
contemplated at paragraph 155 that, if a national law purported to authorise
torture, "the victim could bring a civil suit for damage in a foreign court,
which would therefore be asked inter alia to disregard the legal value
of the national authorising act". That a "national authorising act" of this
nature should be disregarded is no doubt true under English law, on principles
applied in Kuwait Airways Corpn v. Iraqi Airways Co. (Nos. 4 and 5)
[2002] UKHL 19; [2002] 2 AC 883. But the Tribunal’s statement does not address
the prior question of immunity, and its assumption that jurisdiction existed
does not carry matters far.
- In The Congo
v. Belgium (cf paragraph 16 above), the principal majority judgment dealt
only with individual criminal liability, reciting the exceptions to immunity
enjoyed by an incumbent or former Minister for Foreign Affairs under
international law in relatively narrow terms in its paragraph 60. But the
joint separate concurring opinion of Judges Higgins, Kooijmans and Buergenthal
examined the availability of immunity in more general terms:
"85. Nonetheless, that immunity prevails only as long as the Minister
is in office and continues to shield him or her after that time only for
"official" acts. It is now increasingly claimed in the literature (see e.g.,
Andrea Bianchi "Denying State Immunity to Violators of Human Rights", 46
Austrian Journal of Public and International Law (1994), pp. 227-228)
that serious international crimes cannot be regarded as official acts
because they are neither normal State functions nor functions that a State
alone (in contrast to an individual) can perform: (Goff, J. (as he then was)
and Lord Wilberforce articulated this test in the case of 1° Congreso del
Partido (1978) QB 500 at 528 and (1983) AC 244 at 268, respectively).
This view is underscored by the increasing realization that State-related
motives are not the proper test for determining what constitutes public
State acts. The same view is gradually also finding expression in State
practice, as evidenced in judicial decisions and opinions. (For an early
example, see the judgment of the Israel Supreme Court in the Eichmann
case; Supreme Court, 29 May 1962, 36 International Law Reports, p.
312.) See also the speeches of Lords Hutton and Phillips of Worth Matravers
in R v Bartle and the Commissioner of Police for the Metropolis and
Others, ex parte Pinochet ( "Pinochet III"); and of Lord Steyn and
Nicholls of Birkenhead in "Pinochet I", as well as the judgment of
the Court of Appeal of Amsterdam in the Bouterse case (Gerechtshof
Amsterdam, 20 November 2000, para. 4.2.)"
- In his
individual concurring judgment in Sosa v. Alvarez-Machain (U.S. Supreme
Court; 29 June 2004), which I discuss below, Breyer J said with reference to
the universal jurisdiction to prosecute torture and to the passage in
Furundzija and the decision in Eichmann mentioned above:
"The fact that this procedural consensus exists [viz. a consensus
that "universal jurisdiction exists to prosecute a subset" of certain
universally condemned behaviour which includes torture] suggests that
recognition of universal jurisdiction in respect of a limited set of norms
is consistent with principles of international comity. That is, allowing
every nation’s courts to adjudicate foreign conduct involving foreign
parties in such cases will not significantly threaten the practical harmony
that comity principles seek to protect. That consensus concerns criminal
jurisdiction, but consensus as to universal criminal jurisdiction itself
suggests that universal tort jurisdiction would be no more threatening. Cf
Restatement para. 404, Comment b. That is because the criminal courts of
many nations combine civil and criminal proceedings, allowing those injured
by criminal conduct to be represented and to recover damages, in the
criminal proceeding itself. "
Once one concludes that it is not the purpose of article 14 of the
Torture Convention to establish universal tort jurisdiction (see paragraphs
18-21 above), this passage does not offer the present claimants direct
assistance. The claimants have to present a (more qualified) case, viz. that,
where domestic jurisdiction can properly be founded, then either no relevant
or at least no absolute state immunity can survive in respect of the subset of
behaviour to which Breyer J was referring. But, even if Breyer J’s comments
cannot be accepted in their full width, they offer some encouragement for the
view that there is no international consensus to the contrary of such a
case.
The
United States jurisprudence
- United States
jurisprudence includes a number of cases close in subject-matter to the
present, though decided within a different legal framework. The Alien Tort
Statute of 1789 established federal jurisdiction over "all causes where an
alien sues for a tort only committed in violation of the law of nations". In
Sosa v. Alvarez-Machain the United States Supreme court explained this
as a jurisdictional statute, creating no new causes of action, but as "enacted
on the understanding that the common law would provide a cause of action for
the modest number of international law violations with a potential for
personal liability at the time". The majority in Sosa identified those
violations as having been violation of safe conducts, infringement of the
rights of ambassadors and piracy (cf p.30). The Court as a whole rejected the
submission that abduction fell within any similar category. But the majority
were at pains to state their view that there could be violations of
international norms "accepted by the civilised world and defined with a
specificity comparable to the features of these 18th century
paradigms" (pp.30-31 and 38). In this connection they referred (at pp.37-38)
to the important federal court decisions of Filartiga v. Pena-Irala
(1980) 630 Fed Rep 2d 876 and In the Estate of Marcos Human Rights
Litigation 25 Fed. 3d 1467.
- In
Filartiga the judgment of Kaufman J in the US Court of Appeals Second
Circuit breathed life into the previously "rarely-invoked provisions" of the
Alien Tort Act. Further, as the majority in Supreme Court in Sosa also
observed, Congress not only expressed no disagreement with the view taken of
the proper exercise of judicial authority in Filartiga and subsequent
cases, but in March 1992 "has responded in the most notable instance by
enacting legislation supplementing the judicial determination in some detail"
– a reference to the Torture Victim Protection Act discussed in paragraph 66
below. Filartiga concerned a claim by a citizen of Paraguay against the
former inspector general of police in Asuncion (served on a visit to the
United States) for allegedly torturing the plaintiff’s son to death in
Paraguay in retaliation for his political activities and beliefs. In a
powerful judgment Kaufman J said amongst other things that:
"torture is now prohibited by the law of nations" (p. 884)
….
"The treaties and accords cited above [viz. American Convention on
Human Rights, Art. 5, International Covenant on Civil and Political Rights,
and European Convention on Human Rights and Fundamental Freedoms, Art. 3], as
well as the express foreign policy of our government, all make clear that
international law confers fundamental rights upon all people vis-à-vis their
own governments" (pp. 884-5) ….
"for purposes of civil liability, the torturer has become – like the
pirate and slave trader before him – hostis generis, an enemy of all
mankind" (p. 890).
Kaufman J also noted at p.884 the observation made by the United
States to a Joint Congressional Committee that:
"…. it has been the United States’s experience that no government has
asserted a right to torture its own nationals. Where reports of torture
elicit some credence, a state usually responds by denial or, less
frequently, by asserting that the conduct was unauthorised or constituted
rough treatment short of torture."
I
interpose that there is also no basis on which a state could assert a right
to torture foreign nationals, particularly since the Torture Convention. The
state of Saudi Arabia has not made any such assertion in the present case
(cf paragraph 6 above). Kaufman J concluded by saying that:
"Our holding today, giving effect to a jurisdictional provision
enacted by our First Congress, is a small but important step in the
fulfilment of the ageless dream to free all people from brutal violence" (p.
890).
The issue was, as this passage states, limited to that of the
jurisdiction conferred by the 1789 Act. The "critical question" of forum
conveniens remained for hearing below. But the court observed that "the
foreign relations implications of this and other issues underscored the
wisdom of vesting jurisdiction in federal, rather than state courts". No
claim to immunity was raised, although the defendant sought on appeal to
rely on the doctrine of act of state raising some allied considerations. The
court rejected this argument as coming too late, but said also:
"We note in passing, however, that we doubt whether action by a state
official in violation of the Constitution and laws of the Republic of
Paraguay, and wholly unratified by that nation’s government, could properly
be characterized as an act of state. See Banco Nacionale de Cuba v.
Sabbatino, supra, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d. 804;
Underhill v. Hernandez, 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456
(1897). Paraguay’s renunciation of torture as a legitimate instrument of
state policy, however, does not strip the tort of its character as an
international law violation, if it in fact occurred under color of
government authority. See Declaration on the Protection of All Persons from
Being Subjected to Torture, supra note 11; cf. Ex parte Young,
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (state official subject to
suit for constitutional violations despite immunity of state).
"
The
source of the state’s immunity from suit in ex p. Young was the
11th Amendment, which prohibited suit against one of the United
States by citizens of another or by subjects of any foreign state or (as
construed by the Supreme Court) by its own citizens. There was prior authority
that in some circumstances (e.g. where suit was brought against a state
official "not personally, but officially") the suit would be considered as a
suit against the state and so barred. But in ex p. Young the Supreme
Court held that there was no prohibition on a claim to prevent a state
official from enforcing a claim which was alleged to be unconstitutional. The
inability to sue a state in respect of the state official’s conduct did not
preclude such a suit.
- Nevertheless, in
Chuidian, decided in 1990 shortly before Herbage v. Meese
(paragraph 34 above), the Court of Appeals Ninth Circuit said, albeit in
relation to the United States Foreign Sovereign Immunities Act 1976 which is
in very different wording to the United Kingdom’s State Immunity Act 1978,
that:
"It is generally recognised that a suit against an individual acting
in his official capacity is the practical equivalent of a suit against the
sovereign directly." (p.486)
The
court drew the general distinction between acts committed as an official and
individual acts, and observed that an improper motive did not of itself mean
that an act was not done as an official act. But it also recognised a
potentially significant exception to the general principle which it had
stated:
"Sovereign immunity will not shield an official who acts beyond the
scope of his authority. "[W]here the officer’s powers are limited by
statute, his actions beyond those limitations are considered individual and
not sovereign actions. The officer is not doing the business which the
sovereign has empowered him to do ….." Larson 337 U.S. at 689, 69
S.Ct. at 1461."
Larson was a decision of the United States Supreme Court in the
context of a claim against the United States which under United States law
could only be pursued with the defendant’s consent. The Supreme Court
supported its statements regarding the effect of excess of authority in this
context by reference to its own prior statements in Land v. Dollar
(1947) 330 US 731, 739. It also identified as "a second type of case" that in
which the statute or order conferring power upon the officer to take action in
the sovereign’s name was claimed to be unconstitutional (i.e. the type of case
in issue in ex p. Young), explaining:
"Here too the conduct against which specific relief is sought is
beyond the officer’s powers and is therefore not the conduct of the
sovereign. The only difference is that in this case the power has been
conferred in form but the grant is lacking in substance because of its
constitutional invalidity."
- The exceptions
identified in ex p. Young, Larson and Land v. Dollar were
identified in the context of United States law. But their existence and the
reference to one of them in Chuidian encourage the thought that there
may be conduct contrary to customary principles of international law which is
of such a nature and seriousness that it must be regarded as outside the scope
of any function that a state could properly claim that its officer was
exercising, and so outside the scope of any immunity that the state might
properly claim in respect of such an officer.