It is undisputed that international law is based on reciprocity, and nowhere is this more apparently than in the area of diplomatic relations and immunities. Thus the principle of equality of sovereign states is enshrined in Art 1(2) of the Charter of the United Nations, and the notion of state immunities including those afforded to its sovereigns operates on this principle, specifically “par in parem non hebet imperium” where since both states are equal, one cannot be subject to the jurisdiction and the courts of another. Furthermore, it is now widely accepted the heads of states and foreign ministers in representing states are also afforded this immunity to allow them to carry out their functions properly. However, modern times which has seen a rise in a respect of human rights has found a new clash with the principle of sovereign immunity. As such, international jurisprudence is now developing and arguably struggling to try and achieve a balance between these two objectives, a matter which will be analysed in this essay.
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Ratione personae and Ratione Materiae
The two different types of immunities delegated to state representatives will be noted at the outset, namely ratione personae and ratione materiae. The former allows immunities to a particular person from the jurisdiction of a states’ courts by virtue of the office he holds, for any of his actions whether conducted in an official or private capacity. Since this type of immunity is only required for a practical basis to allow functioning, once the individual leaves office this type of immunity lapses.
The second type of immunity is that of ratione materiae, where it is the nature of the act which immunity is afforded to. Here, if an act was carried out in an official capacity it can not be the subject of a court action, based on the principle of the sovereign equality of state as noted above and non-intervention of one state into another state’s affairs. Since the nature of the act is the determining factor here, the immunity remains even if the official in question has left his post.
The distinction is pointed out at the outset since the Courts have dealt with the two different types of immunities differently. Ratione materia will be dealt with in the first instance.
The Pinochet Case – Ratione Materia
The issue of the potential conflict of immunities and human rights violations came to the forefront when the former President of Chile, Augusto Pinochet Ugarte, visited the United Kingdom in 1998 for medical reasons. While there, the Spanish government requested the UK government to extradite Pinochet to face charges of inter alia torture and conspiracy to torture in the Spanish Courts under legislation enacting the Convention Against Torture [CAT] (1984). The issue went to the UK House of Lords where it was held that Pinochet could not claim immunity for his acts as a former head of state against allegations of torture.
The immunity claimed in this case was that of ratione materia, since Pinochet was clearly not a current head of state and thus ratione personae immunity was not available to him. Although the House of Lords approved the judgement by a large majority – there was only one dissenting Lord – a variety of reasoning was employed.
Lord Browne-Wilkinson, Lord Hope and Lord Saville found that those who had signed the CAT had impliedly waivered state immunity for their sovereigns. It was noted that the definition of Torture provided for in Art 1 of CAT required for the acts complained of to have either been carried out by or with the involvement of a state official. As such, any allegation of torture would necessarily always be able to be met with a defence of state immunity which would render the CAT meaningless. Such an analysis is quite insightful, but may creates problems of distinction for claimants relying on the customary prohibition of torture rather than CAT.
Criminal and Civil Liability
Other judges adopted a more broad consideration of the issue, where it was held that due to the heinousness of the act of torture and the jus cogens nature of the prohibition of torture, immunity ratione materia could never be a valid defence. Their Lordships pointed out that the purpose of the immunity is to ensure that the national courts of one state do not adjudicate on the responsibly of another, but in this case they were dealing with an issue of individual criminal liability and to hold immunity existed in this case would go beyond the purposes intended for such immunities, namely stability of international relations.
Thus, a distinction can be seen between criminal liability cases and civil liability which would necessarily entail criminal responsibility. This distinction can be appreciated in a later case.
In Al-Adsani v UK, the applicant was a dual UK and Kuwaiti national who alleged that on a visit to Kuwait, he was subjected to torture in a Kuwaiti state prison as retaliation for his circulating sexual tapes showing the Emir of Kuwait’s brother, the Sheikh. He brought a claim in the UK for physical injuries and mental suffering caused from the treatment he suffered against inter alia the state of Kuwait. The UK Courts however held that Kuwait’s claim to the state immunity Act 1978 succeeded. The Court of Appeal referred the case to the European Court of Human Rights where the applicant alleged that in invoking state immunity and not allowing his case to be heard in the UK Courts, the UK violated Art 6, the right of a fair trial. This was a more contentious matter and the Court very narrowly held, with a nine to eight vote majority that the right of access was not violated by upholding the defence of state immunity.
Here the European Court pointed out that the nature of jurisdictional immunities acted as a procedural bar, and if waived by the host state a substantive case could be heard. The Court pointed out that sovereign immunity was an essential concept of international law, with a legitimate aim of promoting comity and good international relations. As such, a distinction had to be made with civil suits and criminal cases. A criminal case, as in the case of Pinochet, went to the question of individual criminal liability for acts. A case for civil damages however, would necessarily have to find state responsibility and the Court concluded in its analysis of the case law that an international norm excluding liability for civil damages had not emerged.
Such an approach of distinguishing criminal and civil liability was repeated by the UK Courts in Jones v Saudi Arabia, where it was held immunity could not be waived for a claim for civil damages as a result of torture.
Some commentators have suggested that the civil-criminal liability is distinguished due to the nature of the crimes in the case. However, the analysis of the Court seems to suggest a different ground of distinction in this case – Criminal responsibility is based on individuals, and thus does not involve any question of state liability or state sovereignty. The case of Re Pinochet did not entail any judgement at all in the actions of Chile as a state itself, and render it liable for any reparations for example. If however there was to be no state immunity allowed in Al-Adsani, it would be found that Kuwait entailed responsibility for the actions and liable for damages, thus entering into the realms of state sovereignty and non-intervention in other states’ affairs. The effect on international relations was therefore clearly a determining factor in this case. Where there was less of an effect on international status in criminal cases, more weight was given to human rights norms.
Normative Hierarchy Theory
Of course, the dissenting judges in Al-Adsani did not consider that the distinction between civil and criminal liability was important enough when pitted against a prohibition of torture. Many judges pointed out that since the Court accepted that torture was a jus cogens norm, they should also accept that it would always prevail over all other norms including those of state immunity. Thus the status of torture would invalidate immunity laws or its effect at least for that particular case. This has been described as a normative hierarchy theory – since torture is a jus cogens norm, it goes above the norm of state immunity.
Some of the judges in Re Pinochet also adopted this theory. The Pinochet case is considered by many around the world as revolutionary as it is principally the first case to consider that immunity did not exist for allegations of egregious human rights violations.
This approach is attractive from the human rights perspective and does accord well with the prohibition of torture in international law in stating that there can be no justification whatsoever for the use of torture. However, there are relatively few jus cogens norms in international law, and even the status of torture as jus cogens is disputed. Adopting such a theory in absence of other justifications would mean that other human rights violations cannot be pitted against the laws of state immunity.
No immunity for ratione personae
A further distinction that has been made by Courts is that for existing officials of state, who still hold immunity ratione personae.
This can be seen in the Arrest Warrants case held before the ICJ. Under a Belgian law of 1993 Belgian Courts had universal jurisdiction in respect of grave breaches of international humanitarian law and crimes against humanity, irrespective or not of whether the offender has acted in an official capacity. On this basis a Belgian investigating judge issued an arrest warrant in absentia for the then Minister for Foreign Affairs of the Congo. Congo responded by taking the matter to the ICJ, challenging that that the alleged arrest warrant violated the principle of sovereign equality among member states of the UN as enshrined in Art 2(1) of the UN Charter, as well as diplomatic immunity for ministers of foreign affairs for a sovereign state as laid out in Art 41(2) for the 1862 Vienna Convention on diplomatic relations.
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The majority of the ICJ, thirteen votes to three, held that the arrest warrant was indeed in violation of customary international law laying down rules of absolute inviolably and immunity from criminal proceedings of incumbent foreign ministers, therefore breaching principles of sovereign equality among states. However, no form of satisfaction was awarded other than the judgement which the Court held would make good the moral injury complained of by the Congo.
This case thus shows that the doctrine adopted in Pinochet is highly unlikely to extend to existing officials, illustrating that the main rationale behind immunities is to allow international relations to develop. Holding a Foreign Minister liable to prosecution in another country while he is still Foreign Minister would greatly impair this ability – as the Court noted in its majority judgement, Foreign Ministers are allowed this immunity to allow them to travel and communicate with other states and allowed effective representation of their State. The Court, like other decisions abovementioned, did emphatically state that immunity did not equate to impunity and the procedural bar of immunity once lifted could hold an individual responsible, such as before the courts of his own country, where the state has waived immunity, after the person in question has ceased to hold public office or perhaps in the future under the International Criminal Court. The Court can be said to show some leaning towards appreciation of human rights when it did not approve of damages further than the damage being claimed, recognising perhaps that to award damages to someone accused of such egregious human rights violations would exceed the doctrine of immunities and would not serve a beneficial purpose.
Judges Higgins, Koojimans and Burgenthal issued a separate opinion in the Arrest Warrants case, where they dissented with the Court requiring a cancellation of the Arrest Warrant issued by Belgium. They noted that the Court noted the provision of immunities to the Foreign Minister in this case was to allow his continue travelling and maintain communication and relations with other states in order to represent his state effectively. However, since he was no longer Foreign Minister at the time of the hearing at the international court there was no longer need for this expansive immunity and as such a cancellation of the arrest warrant would not be required. Such opinions are clearly based on the rationale behind immunity being that of functionality of international relations – once this is no longer at risk a whole immunity is no longer required.
Judge Van Den Wyngaert went even further and stated that the Court had taken immunities too far in creating a potential violation of international human rights.23 The dissenting judges in this case therefore clearly carried out balancing exercises between the two objectives of functionality of international relations and human rights with some reaching different conclusions to others.
It is particularly notable that following this case, under diplomatic pressure from other states Belgium amended its laws on 23 April 2003 and once again on 5th August of that year, holding persons granted immunity under international law will be excluded from the reach of that legislation. Many commentators have regretted that diplomatic pressure and international politics has ‘destroyed the revolutionary character of Belgium’s legislation’ in this case.
In conclusion therefore an analysis of international case-law shows that allowing immunity to provide for and facilitate international relations has been seen as a particularly important objective – Thus immunities have not been waived with regard to those still holding office. As Judge Van den Wyngaert pointed out in dissenting in the Arrest Warrants case, such an approach is likely to have stemmed from a consideration of avoiding chaos and abuse in international processes. Even where immunities have been waived with regard to those who have formerly held office, as in the Pinochet case for example, this has only been done with regard to individual criminal liability where Courts point out that they are not invoking the responsibility of states. Furthermore, the issue is only ever raised with regard to particularly egregious human rights norms such as those of torture and it seems hardly likely immunity would be waived for a norm perceived to be of lesser value such as an economic and social right of development.
Thus, while international law is clearly developing in the area of human rights, the fact that immunities is based on such an important precept of international law renders Courts very reluctant to waive immunity, and they have only done so on very limited occasions. Many commentators have criticised this – Caplan for example points out that a theory of collective state benefit should be employed and granting immunities to human rights violates does not benefit the collective international community.28 McGregor points out that the new UN Convention on Jurisdictional Immunities of States and their Properties does not include any reference to human rights and criticises the lack of a human rights protocol, as does Denza. It is the very nature of international law however that law can only be made when states reach a consensus, and until they reach a consensus to not raise claims of infringement of sovereignty by waiving immunity, it is anticipated that very slow progress will be made in this area.
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