Guest Post: Keitner–Jones v. United Kingdom and the Individual Responsibility of State Officials

[Chimène Keitner is Harry & Lillian Hastings Research Chair and Professor of Law at the University of California Hastings College of the Law, and an Adviser on Sovereign Immunity for the American Law Institute’s Fourth Restatement of the Foreign Relations Law of the United States.]

The judgment issued by the Fourth Section of the European Court of Human Rights represents the latest installment in an ongoing conversation about the immunity ratione materiae of individuals accused of abusing their authority to commit serious violations of international law. As Philippa Webb has noted over at EJIL Talk!, the Chamber found the U.K. House of Lords’s analysis of the relationship between State immunity and foreign official immunity sufficiently persuasive to conclude that, despite patchy precedents and evolving trends, “[t]he findings of the House of Lords [in Jones v. Saudi Arabia] were neither manifestly erroneous nor arbitrary” (para. 214). My colleague William Dodge has blogged here about flaws in the Chamber’s reading of national case law, which repeats errors made by the House of Lords that I have discussed here and here. These critiques amplify those enumerated by Judge Kalaydjieva in her dissenting opinion.

Although Philippa’s point about the Chamber’s “re-integration” of State and official immunity certainly holds true in the context of civil proceedings (based on the Chamber’s acceptance of the argument that any civil suit against an individual for acts committed with state authority indirectly—and impermissibly—“implead” the State), the Chamber seems to have accepted Lord Bingham’s assertion (cited in Jones para. 32) that because “[a] State is not criminally responsible in international or English law, [it] therefore cannot be directly impleaded in criminal proceedings.” This excessively formalistic (and in some legal systems untenable) distinction led the Chamber to accept the proposition that, absent civil immunity for foreign officials, “State immunity could always be circumvented by suing named officials” (para. 202). Yet domestic legal systems have long found ways of dealing with this problem, for example by identifying whether the relief would run against the individual personally or against the state as the “real party in interest” (as the U.S. Supreme Court noted in Samantar).

As Lord Phillips of Worth Matravers, who participated in the House of Lords’s decision in Pinochet (No. 3) and in the Court of Appeal’s decision in Jones v. Saudi Arabia, wrote in his concurrence in the Court of Appeal (at para. 128): “the argument [that the state is indirectly impleaded by criminal proceedings, which was rejected in Pinochet] does not run in relation to civil proceedings either. If civil proceedings are brought against individuals for acts of torture in circumstances where the state is immune from suit ratione personae, there can be no suggestion that the state is vicariously liable. It is the personal responsibility of the individuals, not that of the state, which is in issue. The state is not indirectly impleaded by the proceedings.” The Chamber found that it was not “manifestly erroneous” for the House of Lords to reach a different conclusion, but it did not explain why this is the preferable or more sound approach. To the contrary, the Chamber took pains to indicate (as Philippa notes) that “State practice on the question is in a state of flux” (para. 213) and that the question “needs to be kept under review by Contracting States” (para. 215).

If the Nuremberg IMT cemented the proposition that “individuals have international duties which transcend the national obligations of obedience imposed by the individual State” (cited in Jones para. 82), the ECHR’s decision could help cement a preference for criminal, rather than civil, proceedings to enforce these duties. Accordingly, I see this opinion as dealing less of a blow to international criminal law than David Luban over at JustSecurity, although I agree that the sharp distinction between criminal and civil proceedings seems unjustified, since (as the Chamber acknowledges at para. 207) “[t]here is no doubt that individuals may in certain circumstances also be personally liable for wrongful acts which engage the State’s responsibility.”

Unless a Grand Chamber revisits the Jones opinion, it appears likely that, conceptually incoherent as it might be, the law of foreign official immunity will develop for the time being along two tracks: the non-recognition of immunity ratione materiae for international crimes that is a logical corollary of the Rome Statute’s complementarity regime and that also flows from the exclusion of criminal proceedings from the scope of most domestic state immunity acts, and the recognition of such immunity in the context of civil proceedings in many states, particularly those with applicable statutes. This bifurcation contradicts the approach of the Institute of International Law in its 2009 Naples resolution, although it is consistent with the work plan of the International Law Commission, which is currently examining the immunity of state officials from foreign criminal—but not yet civil—jurisdiction. The U.S. Supreme Court recently declined to examine the scope of common law immunity in the ongoing Samantar litigation (see John Bellinger’s account of recent developments here), but there is still a pending appeal at the Circuit level in that case. The Jones opinion thus represents the latest, but by no means the last, word on individuals’ claims to immunity from civil proceedings for serious violations of international law.