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-Adsani. In 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. Pursuant to its well-developed jurisprudence on Article 6(1), including in cases involving other types of immunity, this required assurance that the essence of the right of access to a court was not undermined, thus rendering the right illusory, impracticable or ineffective. A key consideration in this regard was whether alternative means existed to resolve the complaint. (See Mizushima Tomonori, ‘Denying Foreign State Immunity on the Grounds of the Unavailability of Alternative Means’ 71 Modern Law Review (2008)) While disagreeing on the result the Court should have reached, commentators appeared united that the Court could not have it both ways.
Unfortunately, the Court in Jones may have brought us certainty but no further clarity. It simply reaffirmed the mix of the two (incompatible) options in Al-Adsani. Despite the Court’s own statement that in principle it ‘must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired’ (para 186), it did nothing to guard against this possibility. It recorded the applicants’ argument that the Grand Chamber in Al-Adsani ‘had failed to conduct a substantive proportionality assessment, including an assessment of the circumstances and merits of the individual case, and in particular to consider whether alternative means of redress existed.’ (para 193). However, like in Al-Adsani, it did not go on to examine whether alternatives were available. Rather, it upheld both the legitimacy and the proportionality of the restriction on access to a court based on the requirements of international law to provide immunity and ended its analysis there.
The judgment appears, therefore, to suggest that a different Article 6(1) test applies to cases involving state immunity as a restriction to accessing a court than in other Article 6(1) cases. Equally, the apparent particularities of this test may be broadening in scope as the Court appeared to take a similar approach in the recent decision on international organization immunity in Mothers of Srebrenica in contrast to previous international organization immunity cases in which it placed significant emphasis on the existence of alternative means of dispute resolution. This approach damages the integrity of Article 6(1) and fails to take into account the challenges faced by alleged victims of human rights violations seeking to secure access to a court where no other remedy exists.
Overreaching of State Immunity to Cover Individual Responsibility
The reasoning of the Court on subject-matter immunity is again surprising. As has already been noted by Philippa Webb in her EJIL Talk! post, the Court reasoned that its decision in Jones was a simple reconfirmation of Al-Adsani. Yet, Al-Adsani did not deal with the immunity of officials and the issue raises a number of complicated issues which have not yet been fully worked out before any court. For example, in the majority, if not all, of the cases prior to and including Jones at the national level, challenges to subject-matter immunity had focused on whether or not the underlying alleged act was an official act. As I and others (see in particular Dapo Akande and Sangeeta Shah in EJIL) have argued, the definition of torture under the Convention against Torture requires that it is treated as an official act. It is not, therefore, possible to argue that torture is an unofficial act in order to avoid the application of subject-matter immunity.
The better way of looking at the issue is to ask whether subject-matter immunity applies in cases – such as torture – in which the underlying allegations if proven would attract the dual responsibility of the state and the individual. In criminal proceedings, two possible ways in which to find that immunity does not apply have been identified (both lines were used in Pinochet). First, that immunity cannot co-exist with the requirement to exercise universal jurisdiction (see Dapo Akande and Sangeeta Shah in EJIL). This theory works well in the criminal sphere but opinion is more divided on its cross-over to the civil sphere. The second theory focuses on the significance of the recognition of individual responsibility under international law (for a detailed discussion of this argument, see William Dodge’s post on Opinio Juris). On this theory, subject-matter immunity cannot overextend to cover the individual’s responsibility. Subject-matter immunity shields the individual from suit where it has acted as the human face of the state. It is not motivated by a desire to protect individuals but is rather aimed at preventing the circumvention of the state’s immunity by targeting its officials. In cases of dual responsibility, however, the argument that subject-matter immunity does not apply is directed at the individual’s responsibility separate from that of the state. While individual responsibility has mainly been expressed through criminal responsibility, there appears to be no principled reason why it could also not manifest itself in civil form. If this is possible, it becomes harder to maintain a distinction in the availability of immunity in relation to alleged acts, such as torture, which attract dual responsibility on the basis of the nature of the proceedings (I develop this argument further in my JICJ article).
What is disappointing is that the Court recognizes the question of dual attribution; that the law is in a ‘state of flux’; and the possibility of evolution of the law in this area [para 213]. However, it then fails to assess in any way how one might address this new question which courts have not yet tackled. In my view, this is an overextension of Al-Adsani to a particular aspect of immunity which requires careful, separate analysis. As a new question, this part of the decision would have been better suited to determination by the Grand Chamber, especially given the risk that courts in the future may simply follow the approach in Jones without conducting independent assessments of whether grounds exist for the denial of immunity in cases involving dual attribution.