Guest Post: Dodge–Is Torture an “Official Act”? Reflections on Jones v. United Kingdom

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on a variety of immunities matters. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

In Jones v. United Kingdom, a chamber of the European Court of Human Rights (ECtHR) held that the United Kingdom did not violate Article 6 of the European Convention on Human Rights, which guarantees a right of access to court, by dismissing civil suits alleging torture on grounds of immunity. Jones and others sued the Kingdom of Saudi Arabia and some of its officials in UK courts alleging torture in violation of international law. In 2006, the House of Lords held that both Saudi Arabia and its officials were immune from suit under the UK’s State Immunity Act.

The ECtHR’s decision with respect to Saudi Arabia is not remarkable. In Al-Adsani v. United Kingdom, the Grand Chamber of the ECtHR held by a closely divided vote that international law did not recognize an exception to state immunity from claims of torture. Since Al-Adsani, the International Court of Justice has confirmed in Jurisdictional Immunities of the State (Germany v. Italy), that there is no exception to state immunity for human rights violations. What is remarkable is the decision in Jones to extend that immunity to foreign officials. In so doing, the ECtHR has effectively concluded that torture is an “official act” entitled to immunity from civil suit in the courts of other countries. That conclusion not only runs against current trends (as Philippa Webb has noted), it is also mistaken as a matter of existing customary international law.

Under customary international law, foreign official immunity takes various forms. Heads of state, heads of government, and foreign ministers (the so-called “troika”) enjoy status-based immunity (immunity ratione personae), which extends to all acts but lasts only during their time in office. Other officials—and all former officials—enjoy conduct-based immunity (immunity ratione materiae), which lasts forever but applies only to acts taken in an official capacity. (The immunities of diplomatic and consular personnel are governed by treaties: to oversimplify, diplomats have status-based immunity and consular officials have conduct-based immunity.) The foreign officials sued in Jones were not part of the troika, which means they were entitled to immunity under customary international law only if the conduct alleged was an “official act.”

It is important to bear in mind that customary international law permits States to grant foreign officials immunity from the jurisdiction of their courts that is greater than the immunity required by customary international law. In Jones v. United Kingdom, the UK House of Lords interpreted the State Immunity Act to extend the immunity of the State itself to foreign officials for any act attributable to the State. The question technically before the ECtHR was not whether customary international law required the UK to grant such immunity, but rather whether Article 6 of the European Convention on Human Rights prohibited it from doing so. It would have been possible for the ECtHR to conclude that the UK was within its rights to extend immunity to foreign officials alleged to have committed torture, even though such immunity is not required under customary international law. Instead, the court undertook to “examine whether there was a general rule under public international law requiring the domestic courts to uphold Saudi Arabia’s claim of State immunity in respect of the State officials” (¶ 201). In doing so, it got the analysis badly wrong.

The hinge of the ECtHR’s analysis in Jones is ¶¶ 202-204, in which it adopts what I have called the “attributability theory” of official act immunity—that any act attributable to the State for purposes of state responsibility is also an “official act” entitled to conduct-based immunity. The ECtHR invoked supposedly “extensive case-law at [the] national and international level which concludes that acts performed by State officials in the course of their service are to be attributed, for the purpose of State immunity, to the State on whose behalf they act” (¶ 203). But only one of the cases cited by the court even marginally supports its conclusion.

In Propend Finance Ltd v. Sing, Jaffe v. Miller, and Zhang v. Zemin, the English, Canadian, and Australian courts held that their countries’ state immunity acts included foreign officials within their statutory grants of immunity to foreign States. The question in each of these cases—as in Jones v. Saudi Arabia—was not whether customary international law requires that an act of torture be treated as an official act entitled to immunity but rather whether customary international law requires an exception to the immunity that a particular State has, by statute, chosen to extend. Whether to recognize an exception to an immunity that has already attached is a fundamentally different question from whether an immunity has attached in the first place. For this reason, decisions declining to find a jus cogens exception to state immunity, or status-based immunity, or the immunity that a State has chosen to extend under its domestic law, cannot be properly invoked to support the position that torture is an “official act.”

In Fang v. Jiang, the New Zealand court did hold that a foreign official was entitled to immunity for human rights violations, despite the absence of a statute granting such immunity. Fang constitutes state practice supporting the ECtHR’s decision. On the other hand, in Yousuf v. Samantar (also cited by the ECtHR and discussed further below), the U.S. Court of Appeals for the Fourth Circuit held that under international law foreign officials are not entitled to immunity for jus cogens violations, which constitutes state practice pointing in the other direction.

The ECtHR also invoked the decisions of two international tribunals in support of its attributability theory, the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Blaškić  and the International Court of Justice (ICJ) in Djibouti v. France. In each case, however, the question was not one of immunity for human rights violations but of immunity from requests for evidence. In Djibouti v. France, the ICJ did not even reach the claim of immunity, finding that Djibouti had not sufficiently asserted it (¶ 196). In Blaškić, the ICTY did conclude that a state official was immune from being subpoenaed (¶ 38), but it also stated expressly that officials responsible for war crimes, crimes against humanity, and genocide “cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity” (¶ 41). Neither of these decisions supports the ECtHR’s decision in Jones, and Blaškić directly contradicts it.

In a different section of its opinion (¶ 207), the ECtHR discusses the ILC Draft Articles on State Responsibility, on which the House of Lords also relied for its attributability theory. Draft Articles 4 and 7 say that a State is responsible under international law for acts taken by its officials, even if those acts exceed their authority. But Article 58 makes clear that “[t]hese articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.” And the commentary explains: “Nor may those officials hide behind the State in respect of their own responsibility for conduct of theirs which is contrary to rules of international law which are applicable to them.” In short, state responsibility and immunity are different questions, and the fact that a State is responsible under international law for human rights violations by its officials does not relieve those officials of their individual responsibility.

To its credit, the ECtHR at least mentions ILC Draft Article 58, unlike the House of Lords, which ignored it completely. But the ECtHR looks to the possibility of individual responsibility under criminal law to satisfy Article 58 (¶ 207). Indeed, throughout its decision, the ECtHR repeatedly distinguishes the substantial authority against treating human rights violations as official acts on the ground that those cases involved criminal proceedings. I find it hard to maintain a civil/criminal distinction with respect to immunity under customary international law, given the diversity of forms in which jurisdiction is exercised around the globe, with many nations allowing private parties to initiate criminal proceedings (subject to varying degrees of government control) and to seek damages in such suits. But even if one looks only at state practice in civil cases, there is clearly no general and consistent practice of States treating human rights violations as “official acts.” To my knowledge the only case to have so held is the New Zealand decision in Fang mentioned above.

Against this lone precedent one must weigh the extensive practice of U.S. courts in cases brought under the Alien Tort Statute and Torture Victim Protection Act. U.S. courts have consistently held that acts of torture and other gross violations of human rights are not official acts entitled to immunity. See, e.g., Hilao v. Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994) (concluding that “Marcos’ acts of torture, execution, and disappearance were clearly acts outside of his authority as President”); Enahoro v. Abubakar, 408 F.3d 877, 893 (7th Cir. 2005) (discussing prior cases and noting that “officials receive no immunity for acts that violate international jus cogens human rights norms (which by definition are not legally authorized acts)”). Some of these cases were decided under the Foreign Sovereign Immunities Act (FSIA) before the U.S. Supreme Court held in Samantar v. Yousuf, 130 S. Ct. 2278 (2010), that the immunity of foreign officials is governed by federal common law. But Samantar did not disapprove of the distinction drawn in these cases between acts committed in an official capacity and those committed beyond the scope of authority, remarking that this distinction “may well be correct as a matter of common-law principles.” Id. at 2291 n.17. Moreover, Samantar expressly rejected the attributability theory of foreign official immunity, “that a suit against an official must always be equivalent to a suit against the state because acts taken by a state official on behalf of the state are acts of the state.” Id. at 2290.

On remand, the Obama Administration filed a determination that Samantar was not immune from suit in U.S. court for torture and other human rights violations, despite the fact that Samantar’s acts would clearly be attributable to Somalia for purposes of state responsibility. The district court’s denial of immunity was affirmed on appeal by the Fourth Circuit, which held that “under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations.” Yousuf v. Samantar 699, F.3d 763, 777 (4th Cir. 2012). Samantar again petitioned for cert, but on Monday the U.S. Supreme Court denied the petition.

The ECtHR’s decision in Jones is a great disappointment. This is not because of the result—as suggested above, the ECtHR could have held for the United Kingdom on the ground that its decision to extend the immunity of the State to foreign officials in the State Immunity Act, though not required by customary international law, was not prohibited by Article 6. Jones is a disappointment because it badly muddles the key questions, confusing whether immunity attaches with whether an exception applies, and mixing up state responsibility with official immunity despite Draft Article 58’s clear warning not to do so. It is only through such muddled thinking that the ECtHR could have reached the conclusion that torture is an “official act” entitled to immunity.