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Home Articles posted by Lorna McGregor

Jones v. UK: A Disappointing End

Published on January 16, 2014        Author: 

Lorna McGregor is the Director of the Human Rights Centre and Reader in Law at the University of Essex.  She was previously the International Legal Adviser at REDRESS which acted as a third party intervener in the case.

In 2012, Professor Andrea Bianchi pronounced on EJIL Talk! that we finally had certainty on the relationship between state immunity and human rights with the issuance of the International Court of Justice’s decision in Germany v Italy (Greece Intervening)On the widest argument that jus cogens norms trump immunity, I agreed (‘State Immunity and Human Rights: Is there a Future after Germany v Italy’ 1 JICJ 2013).  The Italian and Greek courts had been the only national courts to entertain the proposition and no court was likely to do so again once the ICJ had resolutely rejected it.  However, I speculated that we did not have certainty yet on two issues:

1)      whether the provision of state immunity violates the right of access to a court where no alternative remedy exists; and

2)      whether foreign state officials enjoy subject-matter immunity in civil proceedings for alleged acts that attract individual responsibility under international law.

The European Court now appears to have firmly closed the door on these two points but in a way that is dissatisfying for the reasoning it employs to get there.

A Lack of Alternative Means to Resolve the Complaint

In Jones and Others v United Kingdom, my expectation was that the Court would resolve the confusion that started in Al-AdsaniIn that case, the Court rejected the Government’s argument that Article 6(1) did not apply to ‘matters outside the State’s jurisdiction’ and ‘as international law required an immunity in the present case, the facts fell outside the jurisdiction of the national courts and, consequently, Article 6’ (para 44).  However, in finding Article 6(1) to be engaged, it also failed to take up the Government’s submission that ‘[t]here were other, traditional means of redress for wrongs of this kind available to the applicant, namely diplomatic representations or an inter-State claim’ (para 50).

The decision was subsequently criticised by those who considered the international law on state immunity to preclude the engagement of Article 6(1).  It was also criticised by those who considered that if the Court was correct in its finding that Article 6(1) was engaged, then it had to analyse the impact of the restriction fully.  Read the rest of this entry…

 

Two New Decisions on Subject-Matter Immunity, Torture and Extrajudicial Killings

Published on March 7, 2011        Author: 

 Lorna McGregor, Senior Lecturer, School of Law, University of Essex. Her publications include: Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’, 18 European Journal of International Law 903 – 919 (2007) and ‘State Immunity and Jus Cogens’, 55(2) International and Comparative Law Quarterly 437 – 445 (2006)

 2011 is already proving to be an eventful year for those interested in the relationship between immunities and allegations of torture and extra-judicial killings.  Both the European Court of Human Rights (in Jones v. United Kingdom, Mitchell & Ors v. United Kingdom and Nait-Liman v. Switzerland) and the International Court of Justice (in Germany v. Italy - previous EJIL:Talk! posts here and here) have cases pending before them and two lower courts in Canada and the US have recently issued judgments on the subject-matter immunity of foreign officials.  Both Kazemi v. Iran and Ors (Canada) and the district court decision in Yousuf v. Samantar (US) involve allegations of torture and extra-judicial killings committed in Iran and Somalia respectively. Although the courts in both decisions found that foreign governmental officials sued in those cases do not possess subject matter immunity, they reached this conclusion by very different means. While the US Supreme Court in Samantar had denied that the US Foreign Sovereign Immunity Act did not apply to individual officials, the Canadian court in Kazemi held that the Canadian State Immunity Act does apply in principle to individual officials. The US District Court rejected immunity for the official by deferring to the views of the executive while the Canadian case reached the decision on the basis of judicial interpretation of the domestic tort exception to immunity.

Kazemi v. Iran

 At the end of January, the Canadian Superior Court of Quebec issued its decision in Kazemi v. Iran and Ors. Stephan Hashemi, the son of a Canadian photojournalist, Zahra Kazemi, who was allegedly tortured and killed in an Iranian prison in 2003, instituted civil proceedings in the Canadian courts against the Islamic Republic of Iran, its Head of State, Chief Public Prosecutor and Deputy Chief of Intelligence.  He brought the action on behalf of his mother’s estate and also claimed for the emotional and psychological injuries he allegedly suffered in Canada as a result of his mother’s detention and death and Iran’s subsequent refusal to repatriate her body to Canada. Read the rest of this entry…