As Marko reported in an earlier post, an Italian Court has convicted 23 American agents (including the former head of the CIA in Milan) and 2 Italian intelligence agents for their part in the abduction and rendition of a muslim cleric Abu Omar. Abu Omar was taken from the streets of Milan to Egypt where he claimed to have been tortured. It was alleged that this act of “extraordinary rendition” was carried out by a team of CIA agents with the collaboration of Italian intelligence agency (for media report, see here, here, here and here). This case is of interest because it appears to be the first conviction of government agents alleged to be involved in the extraordinary rendition programme. It is also of interest because what we have is a conviction by the courts of one country of persons who are officials or agents of another government. The case therefore raises issues as to the immunity which State officials are entitled to, under international law, from the criminal jurisdiction of foreign States. Why is it that in this case Italy was able to exercise criminal jurisdiction over US agents? Or has the Italian court acted contrary to international law in proceeding with the case and not according immunity to the US officials agents. There are at least three types of immunity at issue here. First of all, the case raises issue as to the scope of diplomatic immunity. Secondly, the case raises issues as to the scope of consular immunity and highlights how this type of immunity differs from diplomatic immunity. The third type of immunity at issue is the immunity ratione materiae which all those who act on behalf of a foreign government are entitled to. This doctrine provides immunity from foreign criminal jurisdiction to a person where the act they have performed is essentially the act of a foreign government. Here the immunity attaches to the act itself and not so much to the official with the effect that this immunity is also available to former officials.
Issues relating to the first two types of immunity arise because some of the American defendants were US diplomatic and consular agents in Italy. It has been reported that three Americans were acquitted on grounds of diplomatic immunity. Presumably, those granted diplomatic immunity by the Italian court were members of the diplomatic staff of the US mission to Italy, which simply means they are members of staff with diplomatic rank (Art. 1 (d) of the Vienna Convention on Diplomatic Relations 1961). It would not be unusual for intelligence agents to be granted such status and the head of the CIA in Italy was one of those granted immunity in the case. However, it is also reported that the Italian Court convicted at least one person (Sabrina de Sousa) who was a US consular officer at the time of the rendition. I do not know whether the US claimed diplomatic immunity in case of those for whom immunity was granted. However, the US government did not claim consular immunity in the case of Sabrina de Sousa who then sued the US State Department in an attempt to force the US government to make such a claim (see the report in the New York Times and here for her court claim). Although this might appear to be contradictory, there are differences in the relevant provisions of the two Vienna Conventions on Diplomatic and Consular Immunity which might justify the difference. Both conventions provide for immunity for diplomatic agents and consular officers. Art. 43(1) of the Consular Convention provides for immunity from the jurisdiction of the receiving State “in respect of acts performed in the exercise of consular functions.” Art. 39(2) of the Diplomatic Convention provides that former diplomatic agents will continue to be immune even after they leave office, “with respect to acts performed by such a person in the exercise of his functions as a member of the mission.” It is much easier to argue that acts (even acts which may be illegal) come within the exercise of a person’s function as a member of a mission than it is to argue that acts come within the exercise of consular functions. Art. 3 of the Diplomatic Convention provides a broad definition of the functions of a diplomatic mission. These functions include: representing the interests of the sending state within the receiving state and negotiating with the government of the receiving State. Since the purpose of immunity is preclude a court from making a determination whether an act is lawful or not, it cannot be a limitation to the immunity with respect to these functions to say that they cannot extend to unlawful conduct. However, Art. 5 of the Consular Convention provides a much more specific and narrow definition of consular functions. It is difficult to argue that arranging for the abduction of a person would be an exercise of consular functions. The question here is not that such acts are unlawful but rather that they just don’t fall within the ordinary understanding of the scope of consular functions as defined in Article 5.
Since it is alleged that the Americans charged were acting as officials or agents of the US government, there is at least a prima facie argument that these persons ought to have been accorded immunity ratione materiae respect to those acts. The written judgment is not yet available and it is not clear if the Italian Court explicitly considered this issue. It would not be surprising if they explicitly denied immunity. Not because this would be the right approach to take under international law but because Italian courts have taken a very narrow view of the scope of immunity of States in cases where the acts in question are alleged to be in violation of international law. The approach of the Italian courts and the case brought in the International Court of Justice against Italy on a related issue by Germany has been discussed here on this blog.
I do not know if the US government raised the immunity ratione materiae argument in relation to the convicted individuals. It is possible that they did not given that this might amount to an admission that these persons were actually engaged in these activities. There have been a number of cases where foreign officials have been convicted of spying in domestic courts. In these cases the home government usually does not claim immunity as it does not accept either that the person is an agent or that the person was engaged in acts of espionage. There was an incident in the 1980s when the Nigerian government attempted to abduct Umaru Dikko (a Nigerian politician) from London. Some persons connnected with that incident were convicted in the UK. Although they were acting as agents of the Nigerian government, that government did not admit this and did not claim immunity.
However, if immunity was claimed or if the Italian Court ought to have considered immunity, how should it have dealt with this issue. There are some arguments that may be made in support of the idea that there ought to be no immunity ratione materiae in the case of persons who have committed acts which amount to a violation of international law. However, some of these arguments, though persistently made, are not particularly strong.
No immunity for jus cogens violation?
The first argument that may be made is that the conduct in this case was a precursor to torture and involved a jus cogens norms. It may then be argued that there is no immunity under international law in relation to violations of just cogens. There are two problems with this argument. The first is that the actual crimes alleged in this case were abduction and kidnapping and not torture or complicity in torture. So there was no allegation of a violation of a jus cogens norm. In fact, it is hard to allege that, outside the context of war crimes and crimes against humanity, abduction is a crime under international law. It is a violation of human rights law which would engage state responsibility but there is no individual criminal responsibility for it under international law (unless it amounts to a war crime or crime against humanity). The second problem with this argument is that (as I explained in a previous post (here) and my comment to it), it is incorrect to say that there is no immunity under international law simply because the proceedings allege a violation of a jus cogens norm.
Acts in question are not official acts?
The second argument that may be made is that immunity ratione materiae is only available where a person performs an official act and that where, as here, the act is unlawful it ought not be considered an official act. Although this argument found favour in House of Lords in the Pinochet case, it is a ridiculous argument. This argument would mean that immunity from foreign jurisdiction is only available where the acts in question are lawful in which case one wonders why immunity is necessary. Also, the argument requires a court to decide on legality of the conduct in order to be able to make a decision on whether it is competent to decide on legality!
No immunity for acts of foreign officials committed within the forum?
-The third argument that may be made here is that there is no immunity raione materiae in this case because the acts in question occurred within the territory of the forum (i.e in Italy). According to this argument, States are not entitled to immunity from the jurisdiction of foreign States when they commit torts within the territory of that latter State. This principle is embodied in the national immunity legislation of a number of countries as well as in Art. 12 of the UN Convention on Jurisdictional Immunity.
However, there is question as to whether this limitation from immunity has entered into customary international law. In McElhinney v. Williams and Her Majesty’s Secretary of State for Northern Ireland, (1995) 104 ILR 691, the Irish Supreme Court held that customary international law did not establish an exception for immunity in cases where personal injury was done to a person by a foreign State on the territory of the forum State. The court held that even though a number of Statutes like the UK State Immunity Act provided for such an exception this did not evidence customary international law. In that case immunity was granted to the UK in respect of an attempt by a UK soldier to fire a gun at the claimant within the Republic of Ireland. The soldier had been on guard on the Northern Ireland/Republic border and had been involuntarily taken within the Republic. It was held that he solder was performing governmental activities and that the act was immune from Irish jurisdiction.
It can be argued that since a State does not have sovereign rights in foreign territory, where it acts within the territory of another State it cannot be said to be acting in the exercise of sovereign authority. But the European Court of Human Rights held in McElhinney v. Ireland(Nov. 2001) that
“it cannot be said that Ireland is alone in holding that immunity attaches to suits in respect of such torts committed by acta jure imperii or that, in affording this immunity, Ireland falls outside any currently accepted international standards.” para 38
It could be that all that the ECHR is saying is that a State does not act in violation of international law by according immunity in such cases but that this does not necessarily mean that the State is bound to accord the immunity. However, the ECHR was also of the view that this exception to immunity, to the extent that it exists, does not relate to all acts within the forum and does not apply to matters “relating to the core area of State sovereignty”. (para. 38)
Immunity of the State and the Immunity of State Officials
The cases and the developments in national legislation discussed in the previous section deal with the immunity of the State itself and not that of officials of the State. As I have pointed out in an earlier post (see here) the immunity of State officials is wider than those of States and simply derivative from State immunity. Immunity ratione materiae of State officials serves two purposes. One of these purposes is procedural and aims to prevent the circumvention of the immunity of the State by the device of suing of prosecuting the individual. The second purpose of immunity ratione materiae of State officials is to accord a substantive defence to the official. Here the aim is to say that the official is not to be considered responsible for acts which are really that of the State (see the Mccleod case arising out of the famous Caroline incident). So this immunity is a means of giving effect to the act of State defence. It is this second purpose of immunity of State officials that leads to the conclusion that it is broader than that of the State. So, even if there is an exception to State immunity for acts committed within the forum this does not lead to the conclusion that such an exception applies to the immunity of State officials.
In cases where the act of the official in question is a crime under international law, and where international law, permits the exercise of jurisdiction by other States then both purposes of immunity do not exist and immunity ought not to be accorded. This leads back to the question whether abduction is a crime under international law. If the answer to that question is no, then the Italian courts have acted contrary to the immunity of the US state officials. But this again assumes that the US is prepared to stand behind the officials and to assert that the acts in question are acts of the US State.
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