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IMMUNITY V. ACCOUNTABILITY IMMUNITYIMMUNITY v. ACCOUNTABILITY: ConsideringConsidering the Relationship between StateState Immunity and Accountability forfor Torture and other Serious InternationalInternational Crimes DecemberDecember 20052005 THETHE REDRESSREDRESS TRUSTTRUST 3rd Floor, 87 Vauxhall Walk, London SE11 5HJ Tel: +44 (0)20 7793 1777 Fax: +44 (0)20 7793 1719 Registered Charity Number 1015787, A Limited Company in England Number 2274071 info@[email protected]@redress.orgress.org (general correspondence) URL: www.redress.orgwww.redress.org Published by THE REDRESS TRUST in December 2005 3rd Floor, 87 Vauxhall Walk, London SE11 5HJ United Kingdom Copyright © THE REDRESS TRUST ISBN-10: 0-9551981-0-0 ISBN-13: 978-0-9551981-0-6 ”State immunity is the number one barrier in any international case that involves torture. State immunity is a way where torturers hide behind a veil called “immunity”.” Sulaiman Al-Adsani (Torture Survivor) 17 November 2005 “Foreign states have always denied our (mine and others) rights to reparation under international law. Hiding behind the barrier of state immunity, they have never had to dispute the alleged heinous crimes. Nor have they ever had to admit to a blatant breach of international treaties outlawing torture. State immunity incites travesties of justice. Even worse – almost – foreign states have ‘paid millions’ to their lawyers to fight their cause on the technicality – state immunity – to avoid a full trial. Instead, they could have used these substantial funds to recompense the victim.” Keith Carmichael (Torture Survivor, Founder and Honorary President of REDRESS) 19 November 2005 ACKNOWLEDGEMENTS This Project was made possible by the Nuffield Foundation which generously supported this initiative. We are also grateful for the support of the European Initiative for Democracy and Human Rights which also contributed funding to this initiative. This Report was researched and written by Lorna McGregor with input and editorial support from Carla Ferstman, Gabriela Echeverria, and Lutz Oette at REDRESS. We wish to thank Keith Carmichael and The Baroness D’Souza of Wychwood in the County of Oxfordshire for their support as well as the Advisory Committee to the Project composed of Professor Mads Andenas (Leicester Law School); Lord Archer of Sandwell QC; Mr. Dapo Akande (Oxford University, New College); Mr. Jonathon Cooper (Doughty Street Chambers); Lady Fox QC; Lord Lester of Herne Hill QC; Baroness Sarah Ludford MEP; Mr. Roger Smith (JUSTICE); and Professor Colin Warbrick (Durham Law School) who have provided invaluable guidance and commentary throughout the Project. We wish to thank the externs, Mike Amman, Marc Faux, Iain Frame, Christopher McCorkindale; Anna Nowakowska; Catherine Schell and Tatiana Shlykova to the Project for their country and thematic research. We also wish to acknowledge and thank the following people for all their assistance in making this Report possible: Susie Alegre (OSCE); Professor Roger Alford (Pepperdine University School of Law, USA); Tamsin Allen (Bindman & Partners, UK); Professor Dr. Kai Ambos (Universität Göttingen, Germany); Dr. Jörg Arnold (Max Planck Institut, Freiburg, Germany); Mark Arnold (Gardiner Miller Arnold, Canada); Dr. Ilias Bantekas (Westminster Law School, UK); Dr. Roland Bank (UNHCR, Germany); Michael Battista (Watson Jordan Battista, Canada); Peter Beaton (European Commission); Luis Benavides (Subsecretaría para Asuntos Multilaterales y Derechos Humanos, Mexico); Rafael Benitez (Council of Europe); Raju Bhatt (Bhatt Murphy, UK); Professor Andrea Bianchi (Institut universitaire de hautes études internationales, Switzerland); Caterina Bolognese (Council of Europe); Dr. Susan Breau (British Institute of International and Comparative Law); Dr. Sherman Carroll MBE (Medical Foundation for the Victims of Torture); Peter Carter QC (Bar Human Rights Committee); Gail Davidson (Lawyers Against the War); Professor Eric David (University libre de Bruxelles); Netta Amar (Diakonia Regional Office in Jerusalem); Donald Donovan (Debevoise & Plimpton, US); Catriona Drew (The School of Oriental and African Studies, the University of London); Helen Duffy (INTERIGHTS); Fanny Fontaine (Conseiller Adjoint, Direction Générale de la Législation, Belgique); Dr. Maria Gavouneli (Faculty of Law, University of Athens, Greece); Professor Alessandra Gianelli (University of Teramo); Mr. Eric Gillet (CMS DeBacker, Belgium); Christopher Keith Hall (Amnesty International); Hannes Honecker (Republican Lawyers Association, Germany); Professor Scott Horton (Columbia University School of Law); Dr. Florian Jessberger (Humboldt Universität, Berlin); Wolfgang Kaleck (President, Republican Lawyers Association, Germany); Dr. Joachim Lau (Rechtsanwalt-Avvocato, Italy); Dr. Paul Lemmens (Institute for Human Rights, Katholieke Universiteit Leuven); Manuel Lezertua (Council of Europe); Iain McLeod (Foreign & Commonwealth Office, UK); Professor Antonio Marchesi (University of Teramo); Eric Metcalfe (JUSTICE); Haldia Mokkedem (Council of Europe); Caroline Morgan (European Commission); Alex Neve (Amnesty International, Canada); Michael Ratner (Centre for Constitutional Rights, USA); Professor Naomi Roht-Arriaza (University of California, Hastings College of Law); Anthea Roberts (Debevoise & Plimpton, UK); Professor Stephen Parmentier (Katholieke Universiteit Leuven); Jorg Polakiewicz (Council of Europe); Sérgio Saba (consultant to Council of Europe); Dr. Annalisa Savaresi, (Research Student, Law Department, University of Durham), Petra Schlagenhauf (Republican Lawyers Association); Juergen Schneider (Lawyer, Germany); Wolfgang Schulz (Lawyer, Germany); Keir Starmer QC (Doughty Street Chambers); Jayne Stoyles (World Federalist Movement); Jeanne Sulzer (FIDH, Paris); Bojana Urumova (Council of Europe); Peter van der Auweraert (Avocats San Frontiers); Professor Beth van Schaack (Santa Clara University School of Law); Mr. Michael Verhaeghe (Advocat, Brussels); Emmanuel Voyiakis (Brunel Law School, UK); Mr. Luc Walleyn (Advocat, Brussels); Peter Weiss (Centre for Constitutional Rights, USA); Chanaka Wickremasinghe (Foreign & Commonwealth Office, UK); Emily Willmott (Foreign & Commonwealth Office, UK); Elizabeth Wilmshurst (Chatham House, UK) The views and positions advanced in this report do not necessarily correlate to the members of the Advisory Committee or any of the other persons mentioned above outside of REDRESS. Any errors or omissions remain those of REDRESS. INDEX EXECUTIVE SUMMARY………………………………………………………………......…….i I. INTRODUCTION ................................................................................................ 1 II. ACCOUNTABILITY OF THE STATE AS A SYSTEM AND RIGHT TO REPARATION ............................................................................................... 4 1. State Responsibility under International Law .................................................................. 4 2. Available Forums in which States May Be Held Responsible ............................................. 6 III. THE DEVELOPMENT OF STATE IMMUNITY .................................................... 9 1. What is State Immunity? Terminology .......................................................................... 9 2. The Historical Emergence and Character of State Immunity ...........................................10 a) State Immunity Emerged out of the Immunity Granted to the Sovereign Ruler ........11 b) State Immunity as a Right of the Foreign State under International Law .................11 c) State Immunity as an Exception to the Jurisdiction of the Forum State ...................12 3. Is there a Rule of State Immunity under International Law? ...........................................15 a) A Customary International Law Rule? ..................................................................15 b) Agreements at the International Level .................................................................17 IV. ATTEMPTS TO ADDRESS THE RELATIONSHIP BETWEEN STATE IMMUNITY AND SERIOUS INTERNATIONAL CRIMES ................................................. 21 1. Immunity for Commercial Acts .....................................................................................21 2. Immunity for Torts .....................................................................................................22 a) Commission of the Tort in the Territory of the Forum State ...................................23 b) “Public” and “Private” Torts.................................................................................24 3. Jus Cogens Norms ......................................................................................................28 a) Cases Finding that Immunity is not Available for Jus Cogens Norms .......................29 b) Why the Approach of the Courts of Dualist States Must Be Assessed for Its Compatibility with International Law ....................................................................34 c) Attempts to Distinguish Between the Availability of Immunity on the Basis of the Type of Proceeding, Civil or Criminal ....................................................................38 4. Immunity and Access to Justice ...................................................................................39 V. CONCLUSION: IS STATE IMMUNITY A LEGITIMATE BAR IN EXTRATERRITORIAL CIVIL CLAIMS FOR TORTURE AND OTHER SERIOUS INTERNATIONAL CRIMES? ....................................................... 42 1. State Immunity May Result in Impunity for Torture .......................................................44
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