Philippa Webb is Lecturer in Public International Law at King’s College London. She is the co-author, with Lady Hazel Fox QC, of the third edition of The Law of State Immunity (OUP 2013).
As regards the immunity of the State, the 6-1 decision in Jones and Others v the United Kingdom to uphold the immunity of Saudi Arabia was to be expected: in the Jurisdictional Immunities Judgment, the principal judicial organ of the UN clearly stated that that there was no exception to State immunity for jus cogens violations. The Fourth Section of the ECtHR felt no need to examine national developments in detail as the ICJ Judgment must be considered as ‘authoritative as regards the content of customary international law’ (para 198).
The razor-thin majority of the Grand Chamber in Al-Adsani 13 years ago has now been buttressed by both the ICJ and the Fourth Section of the ECtHR.
But the decision in Jones to uphold the immunity of the State officials even in the face of allegations of torture is more surprising. It stretches the meaning of the ICJ Jurisdictional Immunities Judgment and goes against two emerging trends: (1) accountability of non-high ranking State officials for serious human rights violations; (2) the diversification of various forms of immunity. Let me take these issues in turn.
Accountability of State officials for torture
As the ECtHR Chamber acknowledges (para 92), the ICJ emphasised in the Jurisdictional Immunities Judgment that it was addressing ‘only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether and to what extent immunity might apply in criminal proceedings against an official of the State is not in issue in the present case’ (para 91 of the ICJ Judgment). Yet, the ECtHR followed the ICJ’s Judgment with respect to the immunity of State officials as well as that of the State. In its 2012 Judgment, the ICJ had been silent as to immunity of a State official from civil proceedings, but it was clear that the Judgment was focused on the State itself and arguably even limited to ‘acts committed on the territory of the forum State by the armed forces of a foreign State … in the course of conducting an armed conflict’ (para 65). Read the rest of this entry…