Jones v. United Kingdom was handed down by the European Court of Human Rights (ECtHR) on Tuesday. It has already elicited a considerable amount of adverse commentary (here and here), including on this blog, some of which I will consider below. Jones was in the pipeline for several years (the applications were lodged with the ECtHR in 2006) and, from a practitioner’s perspective – as a barrister I am frequently instructed to represent or advise States and individuals on immunity-related issues, on both sides of the court room – it has been a long-awaited judgment because

(a)    it provided the ECtHR with the opportunity to revisit the issue of whether a State’s immunity from civil suit (where the civil suit relied on alleged torture) violated the claimant’s right of access to a court and, therefore, Article 6(1), ECHR. That issue was considered by the Grand Chamber of the ECtHR more than a decade ago in Al-Adsani v UK. In Al-Adsani the applicant had commenced civil proceedings in England against the State of Kuwait, including for injury to his physical and mental health caused by torture in Kuwait. The English Courts refused to consider his claim, holding that the State of Kuwait was immune from suit, pursuant to the State Immunity Act 1978. The applicant therefore brought a claim before the ECtHR asserting that, as a result of this immunity, he had been denied access to a court in the determination of his claim against the State of Kuwait and that this constituted a violation of Article 6(1) which provides, in its first sentence, “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” By a narrow majority (9-8) the Grand Chamber decided that there had been no violation of the applicant’s Article 6(1) right, observing 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 acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum State. The 1978 Act, which grants immunity to States in respect of personal injury claims unless the damage was caused within the United Kingdom, is not inconsistent with those limitations generally accepted by the community of nations as part of the doctrine of State immunity.” (§66)

(b)    it provided the ECtHR with the opportunity to address the new issue of whether a State official’s immunity from civil suit (where the civil suit relied on alleged torture) violated the claimant’s right of access to a court and, therefore, Article 6(1).

In the light of those opportunities, the most immediately striking feature of the judgment is that it is given by a Chamber, the Fourth Section, rather than by the Grand Chamber. Under the ECtHR’s Rules of Procedure, where a case pending before a Chamber “raises a serious question affecting the interpretation of the Convention…the Chamber may relinquish jurisdiction in favour of the Grand Chamber” (Rule 72). Jones seems clearly to have satisfied this criteria given (a) the two significant issues raised by the case, as noted above; (b) the fact that the resolution of these issues engaged international law which (ostensibly at least) has continued to develop since Al-Adsani was decided (more than a decade ago) and (c) the fact that Al-Adsani had been decided by such a narrow majority. In this context, it is somewhat surprising that none of the parties proposed that the case should be relinquished to the Grand Chamber (§194; even though at least one applicant asserted that Al-Adsani was wrong: see §167) and that the Court itself did not consider it appropriate to relinquish it “[h]aving regard to the precedent established by Al-Adsani and the detailed examination in that judgment of the relevant legal issues by reference to this Court’s case-law and international law” (§195). The parties do still have the option of requesting (within three months) that the case be referred to the Grand Chamber (see Rule 73) but it remains surprising that this was not done earlier.

Leaving that feature aside, as for the judgment itself –

In relation to the question of whether Saudi Arabia’s immunity from civil suit violated Article 6(1):

It is not at all surprising that the ECtHR applied Al-Adsani and concluded that there was no Article 6(1) violation. Mr Jones, the only applicant who had sought to bring a claim directly against Saudi Arabia in England, does not appear to have argued that international law post-Al-Adsani had moved on. Instead he focussed on distinguishing his facts from those of Al-Adsani (§167). The ECtHR rejected this approach (§196), regarding the “sole question” as being whether accepted international standards regarding immunity had evolved post-Al-Adsani. Understandably, the ECtHR relied on the ICJ judgment in Germany v Italy to conclude that “no jus cogens exception to State immunity had yet crystallised” (§198).

In relation to the question of whether the officials’ immunity from civil suit violated Article 6(1), the ECtHR also concluded that there was no Article 6(1) violation:

The ECtHR considered, first, whether there was any general rule regarding the immunity of State officials. The parties argued about the correct characterisation of the threshold legal question (and, latterly, about what they said was the international law approach to that question). The applicants essentially invited the ECtHR to ask, “Is the official act covered by immunity?” (§172) whereas the UK Government submitted that the relevant question was, “Is the act an official act?” with, generally, a positive answer yielding automatic immunity (§175). Regrettably, since the correct characterisation of the legal question is an undeniably important issue, the ECtHR does not grapple at any length with the differences between the two formulations. Instead, it chooses the UK Government’s formulation, with the simple (albeit logical) explanation that, “[s]ince an act cannot be carried out by a State itself but only by individuals acting on the State’s behalf, where immunity can be invoked by the State then the starting point must be that immunity ratione materiae applies to the acts of State officials” (§202). The ECtHR goes on to conclude, as submitted by the UK, that the general rule is that an official act will automatically attract State immunity: §§203-205.

The ECtHR then considers whether there are any exceptions to this general rule and concludes, after a survey of authority, “while there is in the Court’s view some emerging support in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged against foreign State officials, the bulk of authority is… to the effect that the State’s right to immunity may not be circumvented by suing its servants or agents instead.” This is not a surprising conclusion. Moreover it is an understandable and justifiable one for the following reasons.

(1)   Although the legal developments in this area are many and varied, they are difficult to reconcile into one, consistently applied or formulated rule or practice. The scope and application of international law immunities is a difficult and technical area of the law. The case law comes from a wide range of jurisdictions; each jurisdiction applies its own domestic statutes, with a varying overlay or application of international law or regional laws (e.g., the European Convention), making the drawing of conclusions about state practice or legal development a painstaking and difficult task. The ECtHR should not be criticized for distinguishing between immunity in criminal and civil proceedings and nor for finding that there was no “special rule” in civil cases, a distinction and a conclusion that were plainly, fairly, open to it on the materials before it.

(2)   That does not mean that another conclusion would not, from a human rights perspective, have been far more desirable. But international lawyers, and international law practitioners in particular are hardly unfamiliar with concept that there is a difference between what international law actually is and what (according to human rights lawyers) international law should be.

(3)   Notwithstanding human rights advancements in fighting impunity for torture (long may they continue), there are many good and practical reasons why that difference still exists in relation to international law immunities. Many of those were set out in the concurring opinions of Judges Zupancic and Pellonpaa (joined by Judge Bratza) in Al-Adsani. Those practical considerations merit close scrutiny. Thus, it is important to consider: how are courts supposed to adjudicate on the facts of civil claims arising out of torture (bearing in mind that foreign States and their officials are highly unlikely to submit to the court’s jurisdiction or participate in the proceedings)? What would be the practical utility of any default judgments which might result? Would immunity from execution then have to be regarded as incompatible with Article 6 (with all the wide-ranging consequences that would flow from that, for the internationally located property of States)? As Judge Pellonpaa concluded:

“Although giving absolute priority to the prohibition of torture may at first sight seem very “progressive”, a more careful consideration tends to confirm that such a step would also run the risk of proving a sort of “Pyrrhic victory”. International cooperation, including cooperation with a view to eradicating the vice of torture, presupposes the continuing existence of certain elements of a basic framework for the conduct of international relations. Principles concerning State immunity belong to that regulatory framework, and I believe it is more conducive to orderly international cooperation to leave this framework intact than to follow another course.”

Seen in this light, it is unfair, to say the least, to characterize “judicial enthusiasm for immunity” as “the ugly face of counter-revolution.”