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Judgments - Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others

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    13.  Pausing at this point in the analysis, I think that certain conclusions (taking the pleadings at face value) are inescapable: (1) that all the individual defendants were at the material times acting or purporting to act as servants or agents of the Kingdom; (2) that their acts were accordingly attributable to the Kingdom; (3) that no distinction is to be made between the claim against the Kingdom and the claim against the personal defendants; and (4) that none of these claims falls within any of the exceptions specified in the 1978 Act. Save in the special context of torture, I do not understand the claimants to challenge these conclusions, as evidenced by their acquiescence in the dismissal of their claims not based on torture. On a straightforward application of the 1978 Act, it would follow that the Kingdom's claim to immunity for itself and its servants or agents should succeed, since this is not one of those exceptional cases, specified in Part 1 of the 1978 Act, in which a state is not immune, and therefore the general rule of immunity prevails. It is not suggested that the Act is in any relevant respect ambiguous or obscure: it is, as Ward LJ observed in Al-Adsani v Government of Kuwait (No 2) (1996) 107 ILR 536, 549, "as plain as plain can be". In the ordinary way, the duty of the English court is therefore to apply the plain terms of the domestic statute. Inviting the House to do otherwise, the claimants contend, as they must, that to apply the 1978 Act according to its natural meaning and tenor by upholding the Kingdom's claim to immunity for itself and the individual defendants would be incompatible with the claimants' well-established right of access to a court implied into article 6 of the European Convention on Human Rights. To recognise the claimants' Convention right, the House is accordingly asked by the claimants to interpret the 1978 Act under section 3 of the Human Rights Act 1998 in a manner which would require or permit immunity to be refused to the Kingdom and the individual defendants in respect of the torture claims, or, if that is not possible, to make a declaration of incompatibility under section 4.

    14.  To succeed in their Convention argument (and the onus is clearly on them to show that the ordinary approach to application of a current domestic statute should not be followed) the claimants must establish three propositions. First, they must show that article 6 of the Convention is engaged by the grant of immunity to the Kingdom on behalf of itself and the individual defendants. In this task they derive great help from Al-Adsani v United Kingdom (2001) 34 EHRR 273 where, in a narrowly split decision of the Grand Chamber, all judges of the European Court of Human Rights held article 6 to be engaged. I must confess to some difficulty in accepting this. Based on the old principle par in parem non habet imperium, the rule of international law is not that a state should not exercise over another state a jurisdiction which it has but that (save in cases recognised by international law) a state has no jurisdiction over another state. I do not understand how a state can be said to deny access to its court if it has no access to give. This was the opinion expressed by Lord Millett in Holland v Lampen-Wolfe [2000] 1 WLR 1573, 1588, and it seems to me persuasive. I shall, however, assume hereafter that article 6 is engaged, as the European Court held. Secondly, the claimants must show that the grant of immunity to the Kingdom on behalf of itself and the individual defendants would deny them access to the English court. It plainly would. No further discussion of this proposition is called for. Thirdly, the claimants must show that the restriction is not directed to a legitimate objective and is disproportionate. They seek to do so by submitting that the grant of immunity to the Kingdom on behalf of itself or its servants would be inconsistent with a peremptory norm of international law, a jus cogens applicable erga omnes and superior in effect to other rules of international law, which requires that the practice of torture should be suppressed and the victims of torture compensated.

    15.  As the House recently explained at some length in A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2005] 3 WLR 1249, the extreme revulsion which the common law has long felt for the practice and fruits of torture has come in modern times to be the subject of express agreement by the nations of the world. This new and important consensus is expressed in the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (1990) (Cm 1775), which came into force in June 1987 and to which both the UK and the Kingdom (with the overwhelming majority of other states) are parties. It is common ground that the proscription of torture in the Torture Convention has, in international law, the special authority which the claimants ascribe to it. The facts pleaded by the claimants, taken at face value, like other accounts frequently published in the media, are sufficient reminder, if such be needed, of the evil which torture represents.

    16.  Four features of the Torture Convention call for consideration in the present context. First is the definition of torture in article 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 …."

Thus, for purposes of the Convention, torture is only torture if inflicted or connived at for one of the specified purposes by a person who, if not a public official, is acting in an official capacity. Secondly, the Convention requires all member states to assume and exercise criminal jurisdiction over alleged torturers, subject to certain conditions, a jurisdiction fairly described as universal. Thirdly, the Convention provides in article 14:

    "1.  Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

    2.  Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law."

Fourthly, the Convention provides in Part II for establishment of an expert Committee against Torture which has the function, under article 19, of receiving reports by states parties on their compliance with the Convention and of making such comments as it considers appropriate on such reports. The significance of these features is considered below.

    17.  The claimants' key submission is that the proscription of torture by international law, having the authority it does, precludes the grant of immunity to states or individuals sued for committing acts of torture, since such cannot be governmental acts or exercises of state authority entitled to the protection of state immunity ratione materiae. In support of this submission the claimants rely on a wide range of materials including: the reasoning of the minority of the Grand Chamber in Al-Adsani v United Kingdom (2001) 34 EHRR 273; observations by members of the House in R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 1) [2000] 1 AC 61 and (No 3) [2000] 1 AC 147 (hereinafter Pinochet (No 1) and Pinochet (No 3)); a body of United States authority; the decision of the International Criminal Tribunal for the former Yugoslavia in Prosecutor v Furundzija (1998) 38 ILM 317; the decision of the Italian Court of Cassation in Ferrini v Federal Republic of Germany (2004) Cass sez un 5044/04; 87 Rivista di diritto internazionale 539; and a recommendation made by the Committee against Torture to Canada on 7 July 2005. These are interesting and valuable materials, but on examination they give the claimants less support than at first appears.

    18.  The Grand Chamber's decision in Al-Adsani is very much in point, since it concerned the grant of immunity to Kuwait under the 1978 Act, which had the effect of defeating the applicant's claim in England for damages for torture allegedly inflicted upon him in Kuwait. The claimants are entitled to point out that a powerful minority of the court found a violation of the applicant's right of access to a court under article 6 of the European Convention. The majority, however, held that the grant of sovereign immunity to a state in civil proceedings pursued the legitimate aim of complying with international law to promote comity and good relations between states through the respect of another state's sovereignty (para 54); that the European Convention on Human Rights should so far as possible be interpreted in harmony with other rules of international law of which it formed part, including those relating to the grant of state immunity (para 55); and that some restrictions on the right of access to a court must be regarded as inherent, including those limitations generally accepted by the community of nations as part of the doctrine of state immunity (para 56). The majority were unable to discern in the international instruments, judicial authorities or other materials before the court any firm basis for concluding that, as a matter of international law, a state no longer enjoyed immunity from civil suit in the courts of another state where acts of torture were alleged (para 61). While noting the growing recognition of the overriding importance of the prohibition of torture, the majority did not find it established that there was yet acceptance in international law of the proposition that states were not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum state (para 66). It is of course true, as the claimants contend, that under section 2 of the 1998 Act this decision of the Strasbourg court is not binding on the English court. But it was affirmed in Kalogeropoulou v Greece and Germany (App No 50021/00) (unreported) 12 December 2002, when the applicant's complaint against Greece was held to be inadmissible, and the House would ordinarily follow such a decision unless it found the court's reasoning to be unclear or unsound, or the law had changed significantly since the date of the decision. None of these conditions, in my opinion, obtains here.

    19.  It is certainly true that in Pinochet (No 1) and Pinochet (No 3) certain members of the House held that acts of torture could not be functions of a head of state or governmental or official acts. I have some doubt about the value of the judgments in Pinochet (No 1) as precedent, save to the extent that they were adopted in Pinochet (No 3), since the earlier judgment was set aside, but references may readily be found in Pinochet (No 3): see, for example, p 205 (Lord Browne-Wilkinson, pp 261-262 (Lord Hutton). I would not question the correctness of the decision reached by the majority in Pinochet (No 3). But the case was categorically different from the present, since it concerned criminal proceedings falling squarely within the universal criminal jurisdiction mandated by the Torture Convention and did not fall within Part 1 of the 1978 Act. The essential ratio of the decision, as I understand it, was that international law could not without absurdity require criminal jurisdiction to be assumed and exercised where the Torture Convention conditions were satisfied and, at the same time, require immunity to be granted to those properly charged. The Torture Convention was the mainspring of the decision, and certain members of the House expressly accepted that the grant of immunity in civil proceedings was unaffected: see p 264 (Lord Hutton), p 278 (Lord Millett) and pp 280, 281, 287 (Lord Phillips of Worth Matravers). It is, I think, difficult to accept that torture cannot be a governmental or official act, since under article 1 of the Torture Convention torture must, to qualify as such, be inflicted by or with the connivance of a public official or other person acting in an official capacity. The claimants' argument encounters the difficulty that it is founded on the Torture Convention; but to bring themselves within the Torture Convention they must show that the torture was (to paraphrase the definition) official; yet they argue that the conduct was not official in order to defeat the claim to immunity.

    20.  The claimants rely on a substantial body of United States authority as showing that US courts will not entertain claims against states, irrespective of the subject matter, because of the terms of the Foreign Sovereign Immunities Act 1976; that US courts recognise that individual officials are able to enjoy the immunity afforded to their states where they are acting in an official capacity; but that US courts will not recognise acts performed by an individual official, contrary to a jus cogens prohibition, as being carried out in an official capacity for the purposes of immunity under the 1976 Act. The Kingdom replies that in the latter cases the states concerned did not claim immunity for their officials, and that appears to be so. But the claimants refer to and rely on the doubts expressed by Breyer J in Sosa v Alvarez-Machain 542 US 692 (2004), 762-763, about the need for a strict demarcation in the immunity context between criminal and civil cases. I do not, with respect, think it necessary to examine these US authorities in detail, for two reasons. First, the decisions are for present purposes important only to the extent that they express principles widely shared and observed among other nations. As yet, they do not. As Judges Higgins, Kooijmans and Buergenthal put it in their joint separate opinion in Democratic Republic of the Congo v Belgium (Case concerning Arrest Warrant of 11 April 2000) [2002] ICJ Rep 3, para 48:

    "In civil matters we already see the beginnings of a very broad form of extraterritorial jurisdiction. Under the Alien Tort Claims Act, the United States, basing itself on a law of 1789, has asserted a jurisdiction both over human rights violations and over major violations of international law, perpetrated by non-nationals overseas. Such jurisdiction, with the possibility of ordering payment of damages, has been exercised with respect to torture committed in a variety of countries (Paraguay, Chile, Argentina, Guatemala), and with respect to other major human rights violations in yet other countries. While this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally."

Secondly, when notifying its ratification of the Torture Convention in December 1984 the United States expressed its understanding

    "that article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party."

This understanding, which was not a reservation, provoked no dissent, but was expressly recognised by Germany as not touching upon the obligations of the United States as a party to the Convention. 20 years have passed, but there is no reason to think that the United States would now subscribe to a rule of international law conferring a universal tort jurisdiction which would entitle foreign states to entertain claims against US officials based on torture allegedly inflicted by the officials outside the state of the forum.

    21.  In the course of my opinion in A v Secretary of State for the Home Department (No 2), above, para 33, I quoted with approval a long passage from the judgment of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v Furundzija, above. The passage quoted included para 155 where the tribunal, discussing the possibility that a state might authorise torture by some legislative, administrative or judicial act, said:

    "If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition. Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful; or 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."

I do not understand the tribunal to have been addressing the issue of state immunity in civil proceedings; but if it was, its observations, being those of a criminal tribunal trying a criminal case in which no such issue arose, were, on that issue, plainly obiter, as was my citation of them.

    22.  In Ferrini v Federal Republic of Germany, above, the Italian Court of Cassation entertained a civil claim based on war crimes committed in 1944-1945, partly in Italy but mainly in Germany. In para 9 of its judgment the court found "no doubt that the principle of universal jurisdiction also applies to civil actions which trace their origins to such crimes". In reaching this decision the court distinguished Al-Adsani v United Kingdom, above, and Bouzari v Islamic Republic of Iran (2002) 124 ILR 427, and placed some reliance on a Greek decision which was later effectively overruled. It may be, despite the court's closing statement to the contrary, that the decision was influenced by the occurrence of some of the unlawful conduct within the forum state. The decision has been praised by some distinguished commentators (among them Andrea Bianchi in a case note in (2005) 99 Am Jo Int Law 242), but another (Andrea Gattini, "War Crimes and State Immunity in the Ferrini Decision" (2005) 3 Jo Int Crim J 224, 231) has accused the court of "deplorable superficiality"; see also Hazel Fox QC, "State Immunity and the International Crime of Torture" (2006) 2 EHRLR 142. The Ferrini decision cannot in my opinion be treated as an accurate statement of international law as generally understood; and one swallow does not make a rule of international law. The more closely-reasoned decisions in Bouzari v Islamic Republic of Iran (2002) 124 1LR 427, (2004) 71 OR (3d) 675 are to the contrary effect.

    23.  In commenting on periodic reports by Canada received in 2002 and 2004, the Committee against Torture established under article 17 of the Torture Convention noted as a subject of concern, on 7 July 2005, the absence of effective measures to provide civil compensation to victims of torture in all cases, and recommended that Canada should review its position under article 14 of the Convention to ensure the provision of compensation through its civil jurisdiction to all victims of torture. I would not wish to question the wisdom of this recommendation, and of course I share the Committee's concern that all victims of torture should be compensated. But the Committee is not an exclusively legal and not an adjudicative body; its power under article 19 is to make general comments; the Committee did not, in making this recommendation, advance any analysis or interpretation of article 14 of the Convention; and it was no more than a recommendation. Whatever its value in influencing the trend of international thinking, the legal authority of this recommendation is slight.

    24.  In countering the claimants' argument the Kingdom, supported by the Secretary of State, is able to advance four arguments which in my opinion are cumulatively irresistible. First, the claimants are obliged to accept, in the light of the Arrest Warrant decision of the International Court of Justice [2002] ICJ Rep 3 that state immunity ratione personae can be claimed for a serving foreign minister accused of crimes against humanity. Thus, even in such a context, the international law prohibition of such crimes, having the same standing as the prohibition of torture, does not prevail. It follows that such a prohibition does not automatically override all other rules of international law. The International Court of Justice has made plain that breach of a jus cogens norm of international law does not suffice to confer jurisdiction (Democratic Republic of the Congo v Rwanda (unreported) 3 February 2006, para 64). As Hazel Fox QC put it (The Law of State Immunity (2004), p 525),

    "State immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement. Arguably, then, there is no substantive content in the procedural plea of State immunity upon which a jus cogens mandate can bite."

Where state immunity is applicable, the national court has no jurisdiction to exercise.

    25.  Secondly, article 14 of the Torture Convention does not provide for universal civil jurisdiction. It appears that at one stage of the negotiating process the draft contained words, which mysteriously disappeared from the text, making this clear. But the natural reading of the article as it stands in my view conforms with the US understanding noted above, that it requires a private right of action for damages only for acts of torture committed in territory under the jurisdiction of the forum state. This is an interpretation shared by Canada, as its exchanges with the Torture Committee make clear. The correctness of this reading is confirmed when comparison is made between the spare terms of article 14 and the much more detailed provisions governing the assumption and exercise of criminal jurisdiction.

    26.  Thirdly, the UN Immunity Convention of 2004 provides no exception from immunity where civil claims are made based on acts of torture. The Working Group in its 1999 Report makes plain that such an exception was considered, but no such exception was agreed. Despite its embryonic status, this Convention is the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases, and the absence of a torture or jus cogens exception is wholly inimical to the claimants' contention. Some British commentators have welcomed the Convention and urged its ratification by the United Kingdom: see, for example, Eileen Denza, "The 2005 UN Convention on State Immunity in Perspective" (2006) 55 ICLQ 395, 397, 398; Hazel Fox, "In Defence of State Immunity: Why the UN Convention on State Immunity is Important" (2006) 55 ICLQ 399, 403; Richard Gardiner, "UN Convention on State Immunity: Form and Function" (2006) 55 ICLQ 407, 409. Other commentators have criticised the Convention, and opposed ratification, precisely because (in the absence of an additional protocol, which they favour) the Convention does not deny state immunity in cases where jus cogens norms of international are said to have been violated outside the forum state: see Christopher Keith Hall, "UN Convention on State Immunity: The Need for a Human Rights Protocol" (2006) 55 ICLQ 411-426; Lorna McGregor, "State Immunity and Jus Cogens" (2006) 55 ICLQ 437-445. But these commentators accept that this area of international law is "in a state of flux", and they do not suggest that there is an international consensus in favour of the exception they would seek. It may very well be that the claimants' contention will come to represent the law of nations, but it cannot be said to do so now.

    27.  Fourthly, there is no evidence that states have recognised or given effect to an international law obligation to exercise universal jurisdiction over claims arising from alleged breaches of peremptory norms of international law, nor is there any consensus of judicial and learned opinion that they should. This is significant, since these are sources of international law. But this lack of evidence is not neutral: since the rule on immunity is well-understood and established, and no relevant exception is generally accepted, the rule prevails.

    28.  It follows, in my opinion, that Part 1 of the 1978 Act is not shown to be disproportionate as inconsistent with a peremptory norm of international law, and its application does not infringe the claimants' Convention right under article 6 (assuming it to apply). It is unnecessary to consider any question of remedies.

The Court of Appeal decision

    29.  I would respectfully agree with the Court of Appeal that Mr Jones's claim against the Kingdom should be dismissed on the ground of state immunity for the reasons given by Mance LJ in paras 10-27 of his closely-reasoned leading judgment, with which Neuberger LJ and Lord Phillips of Worth Matravers MR agreed (paras 100, 102) [2004] EWCA Civ 1394; [2005] QB 699. I also agree that the non-torture claims against the individual defendants were rightly dismissed on the same ground: paras 98, 100, 101. But in my respectful opinion the Court of Appeal's conclusion on the torture claims against the individual defendants cannot be sustained.

    30.  First, the Court of Appeal departed from the principle laid down in Propend 111 ILR 611 and the other authorities cited in para 10 above, despite following it, correctly, in relation to the non-torture claims. Mance LJ thought it correct to ignore the description of Colonel Abdul Aziz as a "servant or agent" (para 28). The Master of the Rolls considered this description "irrelevant and, arguably, embarrassing" (para 103). But there was no principled reason for this departure. A state can only act through servants and agents; their official acts are the acts of the state; and the state's immunity in respect of them is fundamental to the principle of state immunity. This error had the effect that while the Kingdom was held to be immune, and the Ministry of Interior, as a department of the government, was held to be immune, the Minister of Interior (the fourth defendant in the second action) was not, a very striking anomaly.

    31.  This first error led the court into a second: its conclusion (para 76) that a civil claim against an individual torturer did not indirectly implead the state in any more objectionable respect than a criminal prosecution. A state is not criminally responsible in international or English law, and therefore cannot be directly impleaded in criminal proceedings. The prosecution of a servant or agent for an act of torture within article 1 of the Torture Convention is founded on an express exception from the general rule of immunity. It is, however, clear that a civil action against individual torturers based on acts of official torture does indirectly implead the state since their acts are attributable to it. Were these claims against the individual defendants to proceed and be upheld, the interests of the Kingdom would be obviously affected, even though it is not a named party.

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