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).
The ICJ’s earlier Arrest Warrant Judgment had only addressed the immunity of high-ranking officials (immunity ratione personae) so the Jones v UK Judgment was an opportunity for an international court to consider the immunity ratione materiae of lower ranking officials in civil proceedings. The ECtHR rightly found that the State practice in this field was in a ‘state of flux’ (para 213), but what it took from that fact was that it was satisfied that the findings of the House of Lords ‘were neither manifestly erroneous nor arbitrary’ (para 214). It noted but did not engage with the debates about the understanding of the definition of torture, the relationship between attribution and immunity, and the territorial scope of the Torture Convention (paras 206-8).
The re-alignment of State immunity and the immunity of State officials
In the third edition of The Law of State Immunity, published a mere five months ago, Lady Hazel Fox QC and I observed that ‘the alignment between State immunity and the immunity of State officials appears to be shifting’ (Chapter 18). We suggested that the ICJ’s rejection in the Jurisdictional Immunities Judgment of an expansion of the restrictive doctrine of immunity to include acts in violation of jus cogens norms reverts, in respect of State immunity, to its absolute nature in respect of acts committed during armed conflict. But, we noted optimistically, the ICJ expressly confined its ruling to the State ‘leaving the law on the immunity of State officials in respect of the commission of the same acts to develop independently’. The ICJ introduced the possibility of an immunity of a different scope for State officials in respect of the commission of the same acts as a State – a situation that was already to be found in the varying scope of immunities of immunities enjoyed by international organizations, diplomats, consular officials, and visiting armed forces.
Jones v UK puts the brakes on the independent evolution of the immunity of State officials by re-integrating or re-aligning that immunity with that of the State.
The Judgment emphasises that an act cannot be carried out by a State itself but only by individuals acting on its behalf and that State immunity must not be circumvented by suing named officials. It endorses the ‘pragmatic understanding’ that the definition of ‘State’ includes its representatives (para 202).
But this symmetry between the State and its officials (and between State immunity and attribution of responsibility) has been breaking down. The Samantar v Yousuf decision of the US Supreme Court recognised that State officials did not fall within the statutory definition of ‘State’ in the FSIA (and the ECtHR’s treatment of this case at paras 122-4 is not entirely convincing). And, more broadly, as Dapo has written on this blog, there are circumstances in the immunity of the State official and the State are not aligned, such as when a State is held accountable for an act jure gestionis but any official involved will be immune if they acted in their official capacity. The applicant’s arguments in this regard are pretty compelling (para 171).
Conclusion: a strange situation
By upholding immunity for torture, the Jones v UK decision confirms that we are in a strange situation: immunity is regularly waived for commercial activities, personal injuries committed in the forum state, and employment disputes, but remains firmly in place when torture is committed. As Judge Kalaydjieva notes in her Dissenting Opinion, the ECtHR has had no problem with waiving State immunity in disputes concerning employment at embassies (Cudak v Lithuania, Sabeh El Leil v France). The distinctions being drawn in immunities cases – civil/criminal, procedural/substantive, employment/human rights – are hard to reconcile with broader movements for accountability at the international level.