The Weakest Link of the Troika? The Immunity of Heads of Government in Customary International Law

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There have been a flurry of cases in the English courts concerning foreign leaders in recent months. Permission has been granted to serve the President of Mozambique in a case involving claims challenging state guarantees of the financing for projects in Mozambique. The Fifth President of Ukraine (2014-2019) Petro Poroshenko has been found to be immune from claims arising out of Ukraine’s nationalisation of PrivatBank. And on 6 October, a number of judgments were made public in the proceedings relating to the welfare of the two children of His Highness Sheikh Mohammed Bin Rashid Al Maktoum (“AM”), the Ruler of the Emirate of Dubai and Prime Minister of the United Arab Emirates, and Her Royal Highness Princess Haya Bint Al Hussein (“Princess Haya”).

In this post I comment on the newly-released judgments on immunities. But I note that there is much of interest in all of the judgments, including the finding in one strand of these complex proceedings that AM used NSO Pegasus to hack the mobile phones of Princess Haya and her solicitors. The High Court undertook an attribution analysis (paras. 152-171) noting that AM did not have to “prove anything” and had “chosen not to attempt to do so”; the Court therefore did not have “any evidence to put in the balance against a finding that the originator [of the hacking] was the UAE on his authority” (para. 162). The “evidential canvas” included a conversation with a NSO senior manager that referred to a “big state” and a “little state” (para. 166). The Court also noted that NSO had “adopted the extreme remedy” of terminating services to an unnamed customer state following an internal investigation into the hacking of the phones of Princess Haya and her solicitors (paras. 103-105, 110). This judgment is another interesting instalment in creative judicial approaches to attribution.

As regards immunities, in May 2019, AM had commenced proceedings in the English High Court seeking the return of the two children to Dubai. Princess Haya sought to prevent the children from being removed from the jurisdiction. AM asserted immunity as Head of Government in relation to applications by Princess Haya regarding financial support. Two questions arose: (1) Are heads of government immune from civil proceedings relating to personal and private matters? (2) Was AM precluded from invoking immunity due to his initiation of proceedings and earlier express waivers of immunity in relation to other applications?

Immunity of Heads of Government

The immunity of a Head of State in English courts is provided for in ss 1, 14 and 20 of the State Immunity Act, including by reference to an analogy with the immunity of a head of mission under the Vienna Convention on Diplomatic Relations. But the immunity of a Head of Government is not codified in statute nor in an international treaty. The High Court had to wade into the murky waters of customary international law (“CIL”).

The International Court of Justice’s 2002 Arrest Warrant Judgment took center stage in the analysis. That case involved the immunity of the Congolese Foreign Minister from an arrest warrant issued by a Belgian judge. The parties and High Court zoomed in on paragraph 51 of the Judgment, which states

“…it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal. For the purposes of the present case, it is only the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs that fall for the Court to consider”.     

Counsel for AM argued that this showed that there was no relevant distinction between the members of the troika and thus a serving Head of Government enjoyed immunities from jurisdiction, both civil and criminal. Counsel for Princess Haya focused on the last sentence of paragraph 51 and said the decision “tells us nothing about the scope of the immunity from civil jurisdiction”. It was an “oblique reference” to which no weight should be attached.

The High Court observed that the ICJ did not need or purport to resolve the scope of immunity from civil jurisdiction (para. 47). If anything the ICJ’s reasoning “seems to us to tell against the father’s case” because it held that immunities accorded to Foreign Ministers are granted “to ensure the effective performance of their functions on behalf of these respective States”, which explains why immunity from criminal jurisdiction and inviolability from arrest are required so as not to deter the official from travelling to carry out the State’s business (para. 49). The Court of Appeal later refused AM’s permission to appeal, finding that the ICJ was making an “introductory remark” and did not say that there was immunity from civil jurisdiction for private acts of the Head of Government (para. 20). Reliance on this “oblique reference” is “not a way to develop principles of public international law and customary international law in national courts” (para. 21).

The High Court also observed that there was a marked lack of consensus on the scope of the immunities of heads of government in the work of the ILC, the Institut de Droit International, and scholarly writing (para. 52). The state practice of seven states in support of AM’s position was also insufficient to establish a rule of CIL (paras. 53-54). The Court of Appeal agreed (para. 25).

While unpersuaded by the “oblique reference” in Arrest Warrant, the High Court and Court of Appeal were more impressed by a obiter dictum by Lord Millett in Pinochet (at 268-9):

“Immunity  ratione  personae  is  a  status  immunity.  An  individual  who enjoys its protection  does so  because  of  his official  status. It enures for  his benefit  only so long as he holds office. While he does so he enjoys absolute immunity  from  the civil  and criminal  jurisdiction  of  the national  courts  of foreign  states.  But  it  is  only  narrowly  available.  It  is  confined  to  serving heads   of   state   and   heads   of   diplomatic   missions,   their   families   and servants.  It  is  not  available  to  serving  heads  of  government  who  are  not also   heads   of  state,   military   commanders   and   those   in  charge  of   the security   forces,  or   their  subordinates.   It  would   have  been  available  to Hitler  but  not  to  Mussolini   or  Tojo.”

The Court of Appeal noted that “there is no exact equivalence between a Head of Government and Head of State, no matter how logical a development that might be” (para. 23).

Preclusion or Waiver

The High Court found that if AM had immunity from jurisdiction, he would not have been precluded from invoking immunity because he has initiated the proceedings himself and he had expressly waived immunity with respect to Princess Haya’s claims for financial support for herself and for the children as adults. The Court took a strict approach and found that there was not a sufficient connection between the applications by AM and Princess Haya to preclude the invocation of immunity (para. 75). Further, the wording of the waivers given by AM could not be stretched to encompass the financial claims (para. 86).

Reflections: Disassembling the Troika

It is accepted that under international law, certain holders of high-ranking office in a state enjoy immunity ratione personae from jurisdiction of foreign courts, which covers their private acts as well as their official acts. Who are these officials?

One view is that the circle is limited to the ‘troika’ of the Head of State, Head of Government and Minister for Foreign Affairs. Another view is that the circle encompasses other high officials, especially those whose office and functions require frequent travel abroad, such as a Minister for International Trade or Minister of Defence. The High Court and Court of Appeal in Re Al M (Immunities) have broken apart the troika as a unit of analysis. Although all three officials are plenipotentiary representatives who speak for the State (eg, Vienna Convention on the Law of Treaties, Article 7), they do not have identical immunities. According to the English courts, the Head of Government only enjoys functional immunity from civil jurisdiction; the Head of State enjoys more extensive immunities and the Minister for Foreign Affairs may as well, but the courts did not have to define those specific immunities in this case. What can be taken from the judgments is that the Head of Government is currently the weakest link of the troika in English courts.

In rejecting the assimilation of the Head of Government with the Head of State for the purposes of immunity, the High Court and Court of Appeal take a different approach to that of the ICJ in Arrest Warrant (for immunity from criminal proceedings) and the Institut de Droit International in their 2001 Resolution. Embedded in that rejection is the presumption about where the real power lies. But as Joanne Foakes has noted, a Head of State may ‘may often fulfil only a formal, constitutional role while the real power is exercised by other organs of the State’ (p. 36). One need only look at the variations in power vested in the monarch across the kingdoms of Europe.

The High Court and Court of Appeal have also doubled down on the distinction between criminal and civil jurisdiction that was made in Pinochet and Jones. Immunity from criminal jurisdiction and associated inviolability from arrest remain the ‘core immunities’ while interference from civil litigation appears more tolerable, especially for private acts.

Finally, the judgments in Re Al M (Immunities) do not assist with the drawing the dividing line between official and private acts. Due to the nature of the proceedings – the welfare of children – it was clearly a private matter and the parties were addressed in their capacity as the ‘father’ and ‘mother’. But in a future case involving a Head of Government, a court may need to distinguish between acts that are official (immune) and those that are private (non-immune). Further questions arise including the characterisation of acts of a mixed official/private nature and acts performed ultra vires, the relevance of the law of the home state and forum state in defining what is ‘official’, and whether the notion of what is properly seen as ‘official’ should evolve over time.  

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John R Morss says

October 27, 2021

Thankyou Philippa for this extremely helpful analysis.
As you indicate, there are some important distinctions to be made in this tangled area. One important distinction to be made is between immunities (extraordinary exemptions from judicial process) and inviolabilities (protection from physical interference or restraint as in search of or arrest of the person, constraint on the person’s freedom to travel and so on) – eg as wisely observed by Roger O’Keefe in his recent EJIL book review of Ruys and Angelet’s Cambridge Handbook of Immunities and International Law.
In effect immunities are concerned with judicial action where inviolability is concerned with executive action.
At least in principle, a denial of immunity would in no sense compromise the inviolabilities and the dignity that appertains thereto. If only to this extent, civil suit such as tort should generally speaking face a much lower threshold to municipal jurisdiction, than might be appropriate for criminal prosecution.
The general observation in Arrest Warrant is to inviolability (rather than immunity) of the troika (the clue is in the name of the case), with a functional rationale being provided in the case of Foreign Ministers. (It should be noted that the functional rationale – the risk of impediment on the proper, day-to-day activities of the Foreign Minister – although closely connected with statehood, represents a ‘secularisation’ of the more traditional charismatic ground of statehood per se.)
Distinctions among the troika may be (on the facts) just as important. In effect membership of the protected troika needs to be ‘earned’ (shown on the facts) ie on the basis of an official duty. Again, the humdrum tasks of a Foreign Minister, tirelessly jet-setting around the world in pursuit of the legitimate, public interests of her state, provide the paradigm. For a foreign official to make administrative decisions that cause harm to nationals of a forum state would prima facie fail that test by a long way.