In a disappointing decision yesterday (Jones v. United Kingdom), the European Court of Human Rights upheld the immunity of states and state officials from civil suits for torture in foreign courts. In doing so, it may have written an obituary for one of the most heralded of all human rights cases: the U.K. House of Lords’ 1999 Pinochet decision, which stripped criminal immunity from Chile’s former head of state for some of the murders and tortures committed during his dictatorship. For a brief period after Pinochet – less than three years, actually – it appeared that a major legal roadblock to accountability for torture might be on its way out.
But in a string of decisions beginning in 2001, the ECHR and International Court of Justice have worked energetically and successfully to force the genie back into the bottle and uphold the immunities of states and state officials against inconvenient lawsuits and criminal investigations. As a result, international protections against state-inflicted torture are increasingly proving to be human rights without human remedies. (Divine remedies are presumably a different matter.) The ECHR did concede that the law may be changing, and an appeal to the Grand Chamber remains possible. For the moment, though, the ECHR’s message to torture victims is simple: get lost.
The ECHR’s Jones v. United Kingdom stems from torture lawsuits filed in British courts by four British men who had been arrested in Riyadh and (they alleged) tortured and raped by Saudi security forces. They sued Saudi Arabia and several Saudi officials, including the alleged torturers and some higher-ups; but in 2006 the British House of Lords found that the Saudi government enjoys immunity from the lawsuits, and – as the state’s agents – so do the individual official defendants. The appeal to the ECHR was based on the European Convention’s article 6, guaranteeing the right to a hearing.
That the British courts upheld the immunity of the Saudi state was hardly surprising, although I will argue that it was wrongheaded. But after Pinochet, the immunity of the individual defendants was puzzling. One of Pinochet’s significant arguments was that since the advent of the Convention Against Torture (to which Chile and Saudi Arabia are parties), it is no longer possible to regard torture as an official state act. In that case, the individual defendants’ tortures would not be covered by the state’s immunity.
Why think that state tortures are no longer official acts? The argument is straightforward. In the words of Lord Browne-Wilkinson (in Pinochet):
[CAT] required all member states to ban and outlaw torture: Article 2. How can it be for international law purposes an official function to do something which international law itself prohibits and criminalises? . . .
Finally, and to my mind decisively, if the implementation of a torture regime is a public function giving rise to immunity ratione materiae, this produces bizarre results. . . . [I]f the implementation of the torture regime is to be treated as official business sufficient to found an immunity for a 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. . . .
In that case “one of the main objectives of the Torture Convention – to provide a system under which there is no safe haven for torturers – will have been frustrated.”
Welcome to the Jones case. In the 2006 British decision that was the subject of yesterday’s ECHR judgment, Lord Bingham ignored Lord Browne-Wilkinson’s reasoning in Pinochet and wrote that “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” (¶30). Lord Hoffman, agreeing with the pro-immunity decision, further undermined Pinochet by observing that “the notion that acts contrary to jus cogens cannot be official acts has not been well received” (¶84). Trying to reconcile Jones with Pinochet, he added that Pinochet “was categorically different from the present, since it concerned criminal proceedings falling squarely within the universal criminal jurisdiction mandated by the Torture Convention” (¶19). In contrast, CAT obligates states parties to provide a civil remedy for torture only when it occurs within their own territory; thus, “the Torture Convention withdrew the immunity against criminal prosecution but did not affect the immunity for civil liability” (¶68). In short, without overruling Pinochet, the Law Lords rejected one of the key pieces of its reasoning.
In yesterday’s decision, the ECHR agreed with the Law Lords that there is no torture exception to sovereign immunity: par in parem non habet imperium, “equals have no dominion over equals”—meaning, in this context, that the acts of one sovereign state cannot be judged by another. In the Court’s view, CAT left the par in parem principle intact, and no “torture exception” has solidified in customary international law. (As mentioned above, though, the Court concedes in ¶213 that the law may be changing as the International Law Commission continues work on its Draft Rules of Immunity of State Officials from Foreign Criminal Jurisdiction). As for Lord Browne-Wilkinson’s argument that torture is not a state act, the Court concedes that it has “some support,” but basically dismisses it by noting that only two of the Pinochet judges relied on it. (Actually, one of the other judges, Lord Millett, approvingly cites older sources that share Lord Browne-Wilkinson’s view.)
It seems that there are just two possibilities: torture by state officials is, as Lord Browne-Wilkinson argues, not an official act of the state, or else it is a criminal act of the state. The ECHR apparently adopts the latter view. In that case, Saudi Arabia itself owns the acts, and we have exactly the perverse result that Lord Browne-Wilkinson foresaw: by owning the very acts that it has agreed are international crimes, a state party to CAT immunizes the perpetrators. Where CAT aimed to eliminate state torture, the law of immunity rewards it. And rather than seeing this result as an reductio ad absurdum of reading the law of immunity so broadly, the ECHR embraces the absurdity.
Perhaps for this reason, all the other judges in the Pinochet majority agree that if torture is indeed a state function, it is one that attracts no immunity. The evils of jus cogens crimes simply outweighs the importance of immunity. Jus cogens norms are, in the jargon of international law, “peremptory”: they are the fundamental “thou shalt nots” of international law. Indeed, the Vienna Convention on the Law of Treaties voids any agreement by states that violates a jus cogens norm. It seems entirely plausible that these exceptional limitations on sovereignty might override sovereign immunity.
Unfortunately, it is precisely the latter argument that other post-Pinochet decisions have rejected. In its 2001 Al Adsani decision, the ECHR explicitly considered the argument that the prohibition on torture outweighs the par in parem principle and rejected it (¶¶61, 66), and in yesterday’s Jones decision it declined to revisit Al Adsani. A year later, the ICJ’s Arrest Warrant decision immunized foreign ministers – and possibly other state officials – from criminal prosecution for core crimes. In its 2012 Germany v. Italy decision, the ICJ echoed Al Adsani in rejecting the argument that there is no civil immunity for jus cogens violations. Indeed, the ICJ argued that conditioning a state’s immunity on the seriousness of the alleged violation is logically impossible:
If immunity were to be dependent upon the State actually having committed a serious violation of international human rights law or the law of armed conflict, then it would become necessary for the national court to hold an enquiry into the merits in order to determine whether it had jurisdiction” (¶82)
— and that kind of merits inquiry is exactly what immunity forbids.
The ICJ’s argument is glib and question-begging: why suppose that the kind of merits inquiry needed to adjudicate immunity is the same kind that the immunity rules out? After all, in other areas of international law, courts and arbitral tribunals have jurisdiction to determine their own jurisdiction. But regardless of its dubious soundness, the ICJ’s argument shows how badly it wanted to hold the line on state immunity.
Both Al Adsani and Germany v. Italy attracted eloquent and impassioned dissents. The problem with state immunity for core crimes like torture is that it rests on a model that treats states as if they are the gods of Olympus, whose misdeeds are not for mere mortals to judge. (Hobbes very deliberately called the sovereign a “mortal god.”) The entire basis of international human rights law is the proposition that mere mortals are no less important than states, which should be thought of as servants, not masters, of the people they govern. And (as I’ve argued) the “mortal god” model of states is the very thing that modern international criminal law aims to undermine, by insisting that state acts of violence are not “beyond good and evil,” but rather ordinary human crime and thuggery, albeit sometimes on an extraordinary scale. Admittedly, these were revolutionary developments in international law; from that point of view, the judicial enthusiasm for immunity should be seen for what it is: the ugly face of counter-revolution.