Guest Post: The Evolving Law of Foreign Official Immunity–Mortazavi and Bakhshi, Prince Nasser, and “Samantar II”

by Chimene Keitner

[Chimène Keitner is Harry & Lillian Research Chair and Professor of Law at UC Hastings. She is on Twitter @KeitnerLaw.] 

I look forward to discussing developments in the international law of non-state actor immunity on a panel on “Responsibility and Immunity in a Time of Chaos” at International Law Weekend this Saturday morning with co-panelists Kristen Boon and August Reinisch, moderated by Larry Johnson. For those of you who can’t attend, we thought we’d offer a taste of our discussion here on Opinio Juris.

In recent years, my research has focused on questions relating to the personal responsibility and ratione materiae immunity of individuals who act on behalf of states. The International Court of Justice has thus far managed to avoid dealing with the subject of ratione materiae immunity. As I recounted on Opinio Juris earlier this year, a Chamber of the European Court of Human Rights found in Jones v. United Kingdom that the grant of ratione materiae immunity for torture to Saudi officials by the U.K. State Immunity Act (SIA) did not interfere disproportionately with the applicants’ right of access to court.

Jurisprudence in other Commonwealth countries with state immunity acts that resemble the United Kingdom’s has largely tracked the House of Lords’s 2006 judgment in Jones v. Saudi Arabia. In that case, the House of Lords found that the SIA conferred immunity on foreign officials from civil proceedings for torture, even though its 1999 judgment in Pinochet (No. 3) established a lack of such immunity from criminal proceedings. As a matter of statutory interpretation, the distinction between criminal and civil proceedings finds some support in the explicit exclusion of criminal proceedings or prosecutions from the scope of the U.K., Canadian, and Australian state immunity acts. (For more on these cases, see here.) The Canadian Supreme Court’s October 10 judgment in Kazemi and Hashemi v. Islamic Republic of Iran reinforced this bifurcated approach by interpreting the Canadian SIA to provide immunity from civil proceedings to two named officials (Mortazavi and Bakhshi) who allegedly ordered, oversaw, and actively participated in the torture to death of Canadian photojournalist Zahra Kazemi.

Given the exclusion of criminal proceedings from the scope of the SIA, claims to immunity ratione materiae from prosecution for torture in U.K. courts have followed the different path set out in Pinochet (No. 3). As Oliver Windridge related here at Opinio Juris, the way has been cleared for a criminal investigation into claims that Prince Nasser bin Hamad Al Khalifa, the son of the King of Bahrain, was directly involved in the torture of three individuals in a prison in Bahrain. Although some reports indicated that the prince had “lost” his immunity, it would be more accurate to state that the U.K.’s Director of Public Prosecutions ultimately determined that the prince did not benefit from, and never had benefited from, ratione materiae immunity from criminal proceedings for torture. Oliver’s post also notes that, in January 2013, a Nepalese army officer was charged in the U.K. with intentionally inflicting severe pain or suffering as a public official on two individuals during the 2005 civil war in Nepal.

In the United States, the only prosecution for torture to date remains that of Chuckie Taylor, who was sentenced in 2009 to 97 years in prison for torture committed in Liberia. The Torture Victim Protection Act, 28 U.S.C. § 1350 note, explicitly creates a civil cause of action for torture or extrajudicial killing committed under color of foreign law. Unlike the state immunity acts at issue in the civil cases described above, the U.S. Foreign Sovereign Immunities Act (FSIA) does not exclude criminal proceedings. The Supreme Court determined in Samantar v. Yousuf (2010) that the FSIA does not apply to suits against individual officials in their personal capacity that seek damages from the defendant’s “own pockets,” in which the state is not the “real party in interest.” In the absence of a statute, foreign official immunity in U.S. courts is governed by the common law. (For a guide to analyzing immunity claims post-Samantar, see here.)

Curt Bradley and Jack Goldsmith argued against taking a U.S.-style approach to personal capacity vs. official capacity suits in a short article published before Samantar was decided. Although I have taken issue with parts of their historical analysis here, their basic point that different policy considerations are in play in designing domestic immunity regimes and international immunity regimes remains sound. Curt has blogged about post-Samantar cases here, and John Bellinger has been chronicling these developments as well. On October 14, the Supreme Court asked for the Solicitor General’s views on whether to review the Fourth Circuit’s determination on remand that there is no ratione materiae immunity for torture because it is a jus cogens violation.

Much conceptual and historical analysis remains to be done as we await the Solicitor General’s brief and the Supreme Court’s decision about whether to tackle the issue of ratione materiae immunity under the “common law” in Samantar II or a future case. Just as the Court should not transplant domestic immunity doctrines wholesale into the foreign official immunity context, so too should it resist parroting decisions that interpret state immunity acts with fundamentally different structures and provisions. It is more important to resolve these issues properly than it is to resolve them quickly or all at once—especially since, in the U.S. context, the Court’s examination of common law immunity in civil cases could have potentially unintended consequences for criminal proceedings as well.

2 Responses

  1. Dear Chimène

    Thank you for your post (and for mentioning mine!)

    I think what we can take away from the recent Prince Nasser case is that the day-to-day criminal investigation decision makers in England and Wales – the CPS and police- are now recognising the lack of immunity for torture allegations. The fact it took them almost two years to do so in the Prince Nasser case is worrying.

    I hope the panel discussion at the International Law Weekend went/goes well.

  2. Readers here might note that there was another relevant panel session. To start the discussion, the following four questions were read by the Moderator:
    2014 Am. Branch, ILA Annual Meeting, Questions for the Panel on Chaos and Impunity: Core Crimes and Siting Heads of State (Friday, October 24, 2014):

    1. The Opinion and Judgment of the International Military Tribunal at Nuremberg famously affirmed that representatives of a state “cannot shelter themselves behind their official position” with respect to “acts which are condemned as criminal by international law” and used the ultra vires rational while affirming that “[h]e who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law.” The 1950 Principles of the Nuremberg Charter and Judgment adopted by the U.N. General Assembly affirmed that “[a]ny person who commits an act that constitutes a crime under international law is responsible therefor and liable to punishment” and stated more specifically that the fact that the person “acted as Head of State or responsible Government official does not relieve him from responsibility under international law.” Should these recognitions of nonimmunity for international crimes still prevail today? With respect to civil sanctions as well as criminal sanctions? Are they in jeopardy? What should be done to correct deviant practices globally and/or in the United States?

    2. The majority opinion in the ICJ’s Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) concluded that a sitting Minister of Foreign Affairs “when abroad enjoys full immunity from criminal jurisdiction and inviolability” in another State, which protect “against any act of authority of another State which would hinder him or her in the performance of his our her duties.” There was hardly any citation of any sort in the opinion, although there was a terse reference to alleged state practice.
    In sharp contrast, the dissenting opinion of Judge Van Den Wyngaert declared: “I see no evidence for the existence of such a norm, not in conventional or in customary international law.” She went on to criticize the lack of adequate attention to state practice and opinio juris and stated that the surprisingly short majority opinion “takes an extremely minimalist approach by adopting a very narrow interpretation of the ‘no immunity clauses’ in international instruments. Yet there are many codifications of this principle…, including the Nuremberg Principles and Article IV of the Genocide Convention…, several United Nations resolutions and reports…, a plethora of recent scholarly writings,” reports of various NGOs, and other court decisions.
    Who had the better claim? Is there any international criminal instrument that expressly provides any sort of immunity for any sort of official? Is nonimmunity for criminal sanctions necessarily set forth in the Genocide Convention? In Articles 1(1) and 4-5 of the Convention Against Torture? In the preamble to and Articles 2 and 5 of the International Convention for the Protection of All Persons from Enforced Disappearance? Is nonimmunity for civil sanctions for human rights violations guaranteed in Article 2(3) of the ICCPR, especially in view of the phrase: “notwithstanding that the violation has been committed by persons acting in an official capacity”? In Article 25(1) of the American Convention on Human Rights? Is it time to abandon the ICJ majority opinion’s preference for “full immunity” for sitting officials before foreign courts? If so, should the international community recognize that some acts of officials are necessarily ultra vires, beyond the lawful authority of any government? Should U.S. courts?

    3. The majority opinion Congo v. Belgium did note that “after a person ceases to hold office…, he or she will no longer enjoy all of the immunities.” Should there be any form of immunity for a former official who is reasonably accused of authorizing, perpetrating or facilitation an international crime over which there is universal jurisdiction? The preamble to the Rome Statute o the ICC expressly affirms the international community’s expectation “that the most serious crimes … must no go unpunished and that their effective prosecution must be ensured by taking measures at the national level,” adding “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” Does the majority opinion in Congo v. Belgium, which is clearly inconsistent, need to be revisited? Do U.S. efforts at prosecution, and the manifest lack thereof, stand in stark opposition? Is there a need for national redirection or transformation? What sort of options might exist?

    4. The majority opinion in Congo v. Belgium also affirmed the decidedly clear point that an official can be “subject to criminal proceedings before certain international criminal courts where they have jurisdiction.” In fact, there is no prior or present international criminal court that must provide immunity for a sitting or former official. In particular, the Rome Statute of the ICC expressly affirms the determination of its creators “to put an end to impunity for the perpetrators of” core crimes addressed in the instrument and, in Article 27, the Statute expressly denies immunity with respect to the Court’s exercising of its jurisdiction. Should all new global and regional international criminal tribunals follow suit? Should the United States take action to join international efforts to end impunity?

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