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Home Articles posted by Micaela Frulli

Jones v UK: On analogies and inconsistencies in the application of immunity rules

Published on January 21, 2014        Author: 

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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. Read the rest of this entry…