Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others
32. Both these errors, in my respectful opinion, sprang from what I think was a misreading of Pinochet (No 3). Despite the Master of the Rolls' change of mind in this case (para 128), the distinction between criminal proceedings (which were the subject of universal jurisdiction under the Torture Convention) and civil proceedings (which were not) was fundamental to that decision. This is not a distinction which can be wished away.
33. Fourthly, the court appears to have ruled that the exercise of jurisdiction should be governed by "appropriate use or development of discretionary principles" (para 96; and see also para 135). This is to mistake the nature of state immunity which, in this and most countries, is governed by the law, not by executive or judicial discretion (Hazel Fox QC, "In Defence of State Immunity: Why the UN Convention on State Immunity is Important" (2006) 55 ICLQ 399, 403-406). Where applicable, state immunity is an absolute preliminary bar, precluding any examination of the merits. A state is either immune from the jurisdiction of a foreign court or it is not. There is no half-way house and no scope for the exercise of discretion. There may be dispute whether acts, although committed by an official, were purely private in character, but that is not a question which arises here.
34. It is, I think, hard to resist the suggestion by Hazel Fox QC ("Where Does the Buck Stop? State Immunity from Civil Jurisdiction and Torture" (2005) 121 LQR 353, 359) that the Court of Appeal's decision represented a "unilateral assumption of jurisdiction by one national legal system". The court asserted what was in effect a universal tort jurisdiction in cases of official torture (see Yang, "Universal Tort Jurisdiction over Torture?" (2005) 64 CLJ 1, 3-4), for which there was no adequate foundation in any international convention, state practice or scholarly consensus, and apparently by reference to a consideration (the absence of a remedy in the foreign state: para 86 of the judgment) which is, I think, novel. Despite the sympathy that one must of course feel for the claimants if their complaints are true, international law, representing the law binding on other nations and not just our own, cannot be established in this way.
35. In admirably clear and succinct judgments given on 30 July 2003 and 18 February 2004 Master Whitaker gave his reasons for upholding the claims to state immunity made on behalf of the Kingdom and the individual defendants. In my opinion he reached the right decisions for essentially the right reasons. For these reasons, and those given by my noble and learned friend Lord Hoffmann, with which I agree, I would dismiss Mr Jones's appeal and allow the Kingdom's. Pursuant to undertakings given by the Kingdom to the Court of Appeal, there will be no order for costs.
36. The question is whether the claimants, who allege that they were tortured by members of the Saudi Arabian police, can sue the responsible officers and the Kingdom of Saudi Arabia itself. The Court of Appeal held that they could sue the officers but that the Kingdom was protected by state immunity. In my opinion both are so protected.
37. Mr Ronald Jones, who alleges that in 2001 he was held in solitary confinement and systematically tortured for 67 days, appeals against the decision of the Court of Appeal that the Kingdom is immune from suit. The language of section 1(1) of the State Immunity Act 1978 (hereafter "SIA") is unequivocal:
It is not suggested that this case falls within the terms of any other provision of the Act.
38. In Al-Adsani v Government of Kuwait (No 2) (1996) 107 ILR 536, on similar facts, the Court of Appeal held that the State was immune. Ward LJ said (at p 549) "the Act is as plain as plain can be." But Mr Crystal QC, who appeared for Mr Jones, submitted that section 1(1) should be read subject to an implied exception for claims which allege torture.
39. The argument in support of this submission involves three steps. First, article 6 of the European Convention on Human Rights (hereafter "the Convention") guarantees a right of access to a court for the determination of civil claims and that right is prima facie infringed by according immunity to the Kingdom. Secondly, although the right is not absolute and its infringement by state immunity is ordinarily justified by mandatory rules of international law, no immunity is required in cases of torture. That is because the prohibition of torture is a peremptory norm or jus cogens which takes precedence over other rules of international law, including the rules of state immunity. Thirdly, section 3 of the Human Rights Act 1998 (hereafter "HRA") requires a court, so far as it is possible to do so, to read legislation in a way which is compatible with the Convention rights. This can be done by introducing an implied exception. I do not accept any of these steps in the argument but will postpone consideration of the first and third until I have discussed the second.
40. The second and crucial step was rejected by the European Court of Human Rights in Al-Adsani v United Kingdom (2001) 34 EHRR 273. The majority opinion said (at paragraph 56) that measures taken by a member state which "reflect generally recognised rules of public international law" could not in principle be regarded as imposing a disproportionate restriction on access to a court. State immunity was such a rule. As for the alleged exception for torture, the court said (at para 61):
41. Mr Crystal submitted that the decision of the majority was wrong. The House should prefer the reasoning of the minority. But in my opinion the majority was right.
42. A peremptory norm or jus cogens is defined in article 53 of the Vienna Convention of the Law of Treaties of 23 May 1969 (which provides that a treaty is void if, at the time of its conclusion, it conflicts with such a norm) as:
43. As the majority accepted, there is no doubt that the prohibition on torture is such a norm: for its recognition as such in this country, see R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3)  1 AC 147. Torture cannot be justified by any rule of domestic or international law. But the question is whether such a norm conflicts with a rule which accords state immunity. The syllogistic reasoning of the minority in Al-Adsani 34 EHRR 273, 298 - 299 simply assumes that it does:
44. The jus cogens is the prohibition on torture. But the United Kingdom, in according state immunity to the Kingdom, is not proposing to torture anyone. Nor is the Kingdom, in claiming immunity, justifying the use of torture. It is objecting in limine to the jurisdiction of the English court to decide whether it used torture or not. As Hazel Fox has said (The Law of State Immunity (2002), 525):
45. To produce a conflict with state immunity, it is therefore necessary to show that the prohibition on torture has generated an ancillary procedural rule which, by way of exception to state immunity, entitles or perhaps requires states to assume civil jurisdiction over other states in cases in which torture is alleged. Such a rule may be desirable and, since international law changes, may have developed. But, contrary to the assertion of the minority in Al-Adsani, it is not entailed by the prohibition of torture. (See also Swinton J in Bouzari v Islamic Republic of Iran (2002) 124 ILR 427, 443 at para 62).
46. Whether such an exception is now recognised by international law must be ascertained in the normal way from treaties, judicial decisions and the writings of reputed publicists. Two treaties are relevant. First, the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (1990) (Cm 1775) (hereafter "the Torture Convention") which formed the basis of the decision in Pinochet (No 3)  1 AC 147 that the prohibition of torture was jus cogens. It deals with universal criminal jurisdiction over individuals who have been guilty of torture and, in article 5.2, applies the principle aut dedere aut prosequi to states in whose territory an alleged offender is present. Article 14 requires every state party to ensure that a victim of an act of torture obtains redress and has a right to a fair and adequate compensation. But this article is, as the Court of Appeal held, plainly concerned with acts of torture within the jurisdiction of the state concerned: see  QB 699,716-720; Swinton J in Bouzari v Islamic Republic of Iran 124 ILR 427, paras 44-54; Goudge JA in Bouzari v Islamic Republic of Iran (2004) 71 OR (3rd) 675 (Ontario Court of Appeal) at pp 691-693 and Andrew Byrnes, in Torture as Tort (2001), pp 537-550. There is nothing in the Torture Convention which creates an exception to state immunity in civil proceedings.
47. The other relevant treaty is the United Nations Convention on Jurisdictional Immunities of States and Their Property (2004) (hereafter "the State Immunity Convention") which has been signed but not yet ratified by the United Kingdom and a number of other states. It is the result of many years work by the International Law Commission and codifies the law of statute immunity. Article 5, in terms similar to section 1(1) of SIA, provides that:
There follows a number of exceptions but none for cases in which there is an allegation of torture.
48. The next source of international law is judicial decisions. I shall start with international tribunals. In Democratic Republic of the Congo v Belgium (Case concerning arrest warrant of 11 April 2000)  ICJ Rep 3 ("the Arrest Warrant Case.") the Congo complained of the issue by Belgium of a warrant for the arrest of its then serving Foreign Minister on charges of war crimes and crimes against humanity. The International Court of Justice accepted that the law prohibiting the commission of such crimes was jus cogens but held that this did not entail an exception to the rule of state immunity for a head of state and certain other high state officials including a foreign minister. In addition:
49. What this case shows is that the jus cogens nature of the rule alleged to have been infringed by the state or one of its officials does not provide an automatic answer to the question of whether another state has jurisdiction. It is necessary carefully to examine the sources of international law concerning the particular immunity claimed. Thus Pinochet (No 3) derived from the terms of the Torture Convention (and in particular, the definition of torture) the removal from torturers of an immunity from criminal prosecution which was based simply on the fact that they had acted or purported to act on behalf of the state. But the Arrest Warrant case confirms the opinion of the judges in the Pinochet case that General Pinochet would have enjoyed immunity, on a different basis, if he had still been Head of State.
50. In a separate concurring opinion, Judges Higgins, Kooijmans and Buergenthal speculated about possible future developments in international law. They said (at para 48) that in civil matters they saw "the beginnings of a very broad form of extraterritorial jurisdiction." Such a jurisdiction had been exercised in torture cases by Federal Courts in the United States under the terms of the Alien Tort Claims Act (hereafter "ATCA"). I shall discuss some of these cases later, but the comment of the judges in the Arrest Warrant case was chilly:
51. The judgment of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v Furundzija (1998) 38 ILM 317 contains an interesting discussion of the international law which prohibits torture. First (at p 348) the prohibition covers potential breaches. That does not concern us here. Secondly (pp 348-349), it imposes obligations erga omnes. That means that obligations are:
52. This presumably means that a state whose national has been tortured by the agents of another state may claim redress before a tribunal which has the necessary jurisdiction. But that says nothing about state immunity in domestic courts.
53. Thirdly (pp 349-350), the prohibition has acquired the status of jus cogens. As to this, the tribunal said:
54. The observations about the possibility of a civil suit for damages are not directed to the question of state immunity. They assume the existence of a "competent international or national judicial body" before which the claimant has locus standi and are concerned to emphasise that a national measure purporting to legitimate torture will be disregarded.
55. Next, there is the decision of the European Court of Human Rights in Al-Adsani 34 EHRR 273, which was followed by the same court in Kalegoropoulou v Greece and Germany (Application No 50021/00) (unreported) 12 December 2002. The latter case arose out of Greek proceedings, to which I shall shortly refer in my discussion of national decisions, by which some Greek nationals sued the German government for damages for war crimes committed in 1944. The Greek Court of Cassation in Prefecture of Voiotia v Federal Republic of Germany (Case No 11/2000) (unreported) 4 May 2000 held that a Greek court could assume jurisdiction on the ground that a country which committed war crimes must be deemed to have waived its sovereign immunity. The claimants accordingly obtained a judgment for damages. But the judgment could be enforced against German state property in Greece only with the consent of the Minister of Justice, which could not be obtained. Proceedings to enforce the judgment without consent on the ground that the claimants were being deprived of a remedy, contrary to article 6 of the Convention, were dismissed by the Greek Court of Cassation. In Kalegoropoulou a petition to the European Court of Human Rights was held, applying Al-Adsani, to be "manifestly ill-founded".
56. Finally, at the international level, there are some comments of the Committee against Torture, set up under the Torture Convention to monitor its workings, on the reports submitted by Canada in 2005. The committee has various functions, including (under article 19) to receive reports from state parties on the measures they have taken to give effect to their undertakings under the Convention and to "make such general comments as it may consider appropriate." During the course of discussion on the Canadian report, an American member, Ms Felice Gaer, raised the question of whether article 14 did not require Canada to provide a civil remedy for victims of torture in foreign states. The Canadian representatives said that their understanding of the effect of article 14 was that it did not. As I have said earlier, that is the general understanding of article 14 and the United States in particular accompanied its ratification of the Convention with a statement that:
57. No one has ever objected to that statement of understanding by the United States and similar views have been expressed in reports to the committee by New Zealand and Germany (see Andrew Byrnes in Torture as Tort (2001), p 544, n 18). Nevertheless, in its comments on the Canadian report, the committee expressed concern at "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": Conclusions and recommendations of the Committee against Torture: Canada 7 July 2005 (CAT/C/CR/34/CAN. Quite why Canada was singled out for this treatment is unclear, but as an interpretation of article 14 or a statement of international law, I regard it as having no value. The nearest approach to reasoning in support of the committee's opinion is a remark of Ms Gaer in the course of discussion (Committee Against Torture, 34th session, Summary of Record of 646th Meeting, 6 May 2005 (CAT/C/SR.646/Add1)), when she said (at para 63) that "given that there was an exception to State immunity in legislation for business deals, it seemed unclear why an exception could not be considered for torture." The short answer is that an exception for acts jure gestionis is recognised by international law and an exception for torture is neither recognised by international law nor required by article 14. Whether it should be is another matter. The committee has no legislative powers.
58. Ms Gaer's concerns may have been influenced by the existence of the United States Torture Victim Protection Act 1991, which establishes civil liability against an individual who "under actual or apparent authority, or color of law, of any foreign nation", subjects an individual to torture (section 2). This represents a unilateral extension of jurisdiction by the United States which is not required and perhaps not permitted by customary international law. It is not part of the law of Canada or any other state.
59. I turn next to the decisions of national courts. In Siderman v Republic of Argentina (1992) 965 F 2d 699 (9th Cir) the US Court of Appeals decided that Argentina was entitled to state immunity in an action alleging torture. The reasoning of the court (at p 718) left open the possibility that there might be such an exception in customary international law, derived from the jus cogens nature of the prohibition on torture ("the argument carries much force") but held that the court was bound by the unequivocal terms of the FSIA. While Siderman turned upon the terms of national legislation, the legislation itself is evidence against a state practice of having an exception to state immunity in torture cases.
60. In Bouzari v Islamic Republic of Iran 124 ILR 427 the question of whether customary international law recognised a torture exception to state immunity was specifically raised. In the Superior Court Swinton J examined the authorities, including the Arrest Warrant case  ICJ Rep 3and Al-Adsani 34 EHRR 273 and concluded (at para 73) that:
61. This conclusion was upheld by the Ontario Court of Appeal: Bouzari v Islamic Republic of Iran 71 OR (3rd) 675, 694-696.
62. The decision of the Greek Court of Cassation in Prefecture of Voiotia v Federal Republic of Germany, 4 May 2000, which I have already mentioned, went upon a theory of implied waiver which has received no support in other decisions. It was undermined by the court's own refusal to order enforcement of the judgment and held to be wrong by a judgment of a special Supreme Court (the Anotato Eidiko Dikasterio) convened to decide cases involving the interpretation of international law: Margellos v Federal Republic of Germany (unreported) 17 September 2002. The original judgment was coldly received by the German Supreme Court when the claimants attempted to enforce it directly in Germany: Greek Citizens v Federal Republic of Germany (The Distomo Massacre Case) (2003) 42 ILM 1030. The court said, at p 1033:
63. That leaves the Italian Ferrini case, Ferrini v Federal Republic of Germany, which exhibits the same bare syllogistic reasoning as the judgment of the minority in Al-Adsani. In a thoughtful comment on the case by Pasquale De Sena and Francesca De Vittor ("State Immunity and Human Rights: the Italian Supreme Court Decision on the Ferrini Case" (2005) 16 EJIL 89-112) the authors acknowledge these shortcomings and accept that a jus cogens prohibition of torture does not entail a corresponding exception to state immunity. But they say that the Ferrini case should be seen rather as giving priority to the values embodied in the prohibition of torture over the values and policies of the rules of state immunity. I think that this is a fair interpretation of what the court was doing and, if the case had been concerned with domestic law, might have been regarded by some as "activist" but would have been well within the judicial function. As Professor Dworkin demonstrated in Law's Empire (1986), the ordering of competing principles according to the importance of the values which they embody is a basic technique of adjudication. But the same approach cannot be adopted in international law, which is based upon the common consent of nations. It is not for a national court to "develop" international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states. (See Al-Adsani 34 EHRR 273, 297, para O-II9 in the concurring opinion of judges Pellonpää and Bratza).
64. In my opinion, therefore, Mr Crystal has failed to make good the second and essential step in his argument. I can deal relatively briefly with the first and third steps. On the question of whether article 6 is engaged at all, I am inclined to agree with the view of Lord Millett in Holland v Lampen-Wolfe  1 WLR 1573, 1588 that there is not even a prima facie breach of article 6 if a state fails to make available a jurisdiction which it does not possess. State immunity is not, as Lord Millett said, a "self-imposed restriction on the jurisdiction of [the] courts" but a "limitation imposed from without". However, as the European Court of Human Rights in Al-Adsani 34 EHRR 273 proceeded on the assumption that article 6 was engaged and the rules of state immunity needed to be justified and as it makes no difference to the outcome, I will not insist on the point. On the third step, I do not think that the implication of an exception into section 1(1) of SIA can be described as a possible interpretation of the section. If I had accepted the first two steps in the argument, it would have been necessary to make a declaration of incompatibility. But the point does not arise. I would dismiss Mr Jones's appeal.