Micaela Frulli is Associate Professor of Public International Law at the University of Florence, Italy.
As Philippa Webb and Lorna McGregor have already outlined in their EJIL Talk! Posts, the ECtHR in Jones and Others v the United Kingdom seems to have based its reasoning on the assumption that State immunity always shields State officials from civil proceedings before a foreign court and, as a consequence, it did not take into consideration the existence of different kinds of immunities accruing to the State and to its officials. The acknowledgment of a complete correspondence between State immunity and the immunity of State officials – and the reconfirmation of Al-Adsani which however only concerned State immunity – is unfortunate precisely because it does not take into account the possible existence or development of different and autonomous rules regulating the immunity of State officials and the immunity of the State itself, at the very least with reference to cases where international crimes were committed and which entail a dual responsibility, as Lorna has stressed. It is worth fleshing out a few considerations on analogies and inconsistencies in the application of immunity rules in this area.
It is generally agreed – albeit from very different theoretical perspectives – and supported by considerable case-law, that functional immunity cannot apply in cases where State officials have allegedly committed international crimes, neither before a domestic nor before an international criminal court. On the other hand, according to the prevailing opinion (upheld by the ICJ in the Jurisdictional Immunities Judgment), the State on whose behalf the accused official was acting enjoys immunity from the civil jurisdiction of foreign States for the very same crimes. There is an inherent contradiction in the current ‘state of the art’ concerning the application of immunity rules – as underlined by the Institut de Droit International in its Resolution adopted in September 2009. A State official may not invoke official capacity as a defence, justification or excuse in a criminal trial before a competent tribunal of a foreign State, whereas the State on which behalf he or she has acted – that could have tolerated, authorized or even organized the commission of the alleged crime – may call upon respect for its sovereignty not to be subject to civil proceedings before the courts of a foreign State. States always emphasize that domestic courts are not the appropriate forum for adjudicating State responsibility and that immunity from foreign jurisdiction does not absolve States from their responsibility. However, we have witnessed too many cases where no interstate forum was available nor there were alternative avenues for the victims.
The inconsistency in the application of immunity rules to cases involving international crimes is even more noticeable in common law countries where civil and criminal proceedings are entirely distinct and where the incoherence also concerns the application of functional immunity of State officials depending on whether it is invoked before a criminal or a civil court. The Jones case is the perfect example which serves the purpose of illustrating the negative consequences of this separation. The House of Lords held – and the ECtHR recognized the correctness of its decision – that both the State of Saudi Arabia and its organ Colonel Abdul-Aziz were immune from the civil jurisdiction of English courts, by virtue of the State Immunity Act. But what if Colonel Abdul-Aziz was to be prosecuted before a criminal tribunal? He would have been tried because the House of Lords previously held that official capacity may not be relied upon to be exempted from criminal jurisdiction for acts of torture. In Pinochet the House of Lords did not accept the plea of immunity of a former Head of State for alleged acts of torture and decided that it was possible to extradite him to Spain. Pushing this line of reasoning to its further consequences, there could be a situation where the very same State official is immune from a civil suit in a foreign country, but not from a criminal trial concerning the same set of facts: this would create an objectionable incongruity and it would undermine access to justice and compensation for the victims of the most serious international crimes. In addition, there would be an inevitable degree of inconsistency in a comparative perspective, since a similar situation could not occur in most civil law countries, where the adhesion procedure (constitution de partie civile) allows the victims to apply for compensation in conjunction with the criminal proceedings and the issue concerning immunity of State officials is decided by the criminal court. It is worth recalling that in 2004 some of the Lords, in the appeal decision in Jones (summarized by the ECtHR in paras. 14-23 of the judgment), drew attention to the contradiction of this complete separation of civil and criminal law in the case of torture. In a judgment later quashed by the House of Lords, the Court of appeal had rejected the immunity plea by Abdul-Aziz, pointing out the shortcomings of making a distinction, for the purposes of applying functional immunity, between criminal and civil courts (Court of Appeal (Civil Division), Jones v. The Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) et al., 28 October 2004,  Q.B. 699). Lord Mance stressed that: “[…] there is the obvious potential for anomalies, if the international criminal jurisdiction which exists under the Torture Convention is not matched by some wider parallel power to adjudicate over civil claims”. He also noted that: “the prosecution of crime and the pursuit of civil proceedings are in many jurisdictions (as Breyer J. observed in Sosa) very closely associated. (…) [an] absolute distinction seems incongruous in a situation like that in Filartiga, if the alleged torturer was actually within and being prosecuted in the jurisdiction pursuant to one or other of the provisions of Article 5 of the Torture Convention. Despite the criminal investigation and proceedings, in respect of which no immunity could be claimed, the victim(s) of the alleged torture would be unable to pursue any civil claim” (para 79).
It is also difficult to see why a civil suit against an individual State official for acts of torture should implead the State more than a criminal prosecution concerning the same alleged acts of torture. It is reasonably foreseeable that a state will stand by the side of its officials in relation to contested allegations of torture, at least until such allegations are proven. It is then obvious that, to a certain extent, such criminal proceedings against an alleged torturer indirectly implead the foreign State. One fails to see why civil proceedings against an alleged individual torturer should involve any greater interference in the internal affairs of a foreign State.
These inconsistencies bring us back to the presumed correspondence between the immunity of State officials and the immunity of States in civil proceedings recalled above and raise the question of what is the real issue behind the strenuous defence of immunities. It is quite evident that behind the different attitude in the application of functional immunity of State organs accused of international crimes in criminal and civil proceedings there is a precise will not to make an exception (not even to discuss one) to State immunity from a civil suit for acts of torture and other crimes. It is often said that State officials suspected of serious crimes may not hide behind their States, that they may not claim to have been just a small cog in the large wheel, but if one follows the House of Lords’ line of reasoning in Jones, ratified by the ECtHR, one reaches the conclusion that States may hide behind their organs, because only the latter, at the end of the day, may be prosecuted before a domestic or an international criminal tribunal.
It is strange, I agree with Philippa, it is even more than strange: I would say it is paradoxical that such an approach is supported by a human rights court since it sanctions the application of a procedural bar for the sake of protecting State officials and ultimately State sovereignty when what is at stake is the application of international rules which protect individuals from the abuses of power and of State sovereignty.