The International Law of State Immunity: An Exception for Torture? by Parinaz Lak A thesis submitted in conformity with the requirements for the degree of Master of Laws Faculty of Law University of Toronto © Copyright by Parinaz Lak (2014) The International Law of State Immunity: An Exception for Torture? Parinaz Lak Master of Laws Faculty of Law University of Toronto 2014 Abstract The absence of an international provision, governing State immunity in civil cases based on the extra-territorial torture, has made the issue a disputed area in the law of State immunity. In recent years, national courts mostly ruled in favor of State immunity and denied to hear claims of torture victims. Although being compatible with States preference not to be prosecuted before foreign courts, this norm would accord the States the effective freedom to avoid accountability for torture. In the unlikely emergence of a new State practice, the only possible way to move the practice in a direction that is responsive to States’ obligation in international law would be to adopt an exception to the United Nations Convention on Jurisdictional Immunities of States and Their Property that expressly drops States immunity in cases of torture. ii Acknowledgments There are a number of people without whom this thesis might not have been written, and to whom I am greatly indebted. I would like to express my appreciation to my supervisor, Professor Mohammad Fadel, for his great help and support during my research. Undoubtedly, without his guidance and persistent help this thesis would not have been possible. I must acknowledge as well the many friends and colleagues who assisted, advised, and supported my research particularly my dear friends Dr. Alain Zysset and Arsha Contractor. iii Table of Contents 1 Introduction ......................................................................................................................1 2 Judicial Practice of States: State Immunity and Torture .....................................................5 2.1 US Case Law ......................................................................................................................................................................6 2.2 UK Case Law...................................................................................................................................................................11 2.2.1 Al-Adsani Case ........................................................................................................................................................... 12 2.2.2 Pinochet Case ............................................................................................................................................................. 14 2.2.3 Jones Case..................................................................................................................................................................... 17 2.3 Canada Case Law .........................................................................................................................................................28 2.3.1 Bouzari Case............................................................................................................................................................... 28 2.3.2 Kazemi Case................................................................................................................................................................ 32 3 International and Regional Courts: Victims of Extra-territorial Torture and the Right to Remedy.................................................................................................................................38 3.1 International Court of Justice: Jurisdictional Immunities of the State .................................................39 3.2 European Courts of Human Rights: Al-Adsani Case......................................................................................43 3.3 European Court of Human Rights: Jones Case ................................................................................................49 4 The United Nations Convention on Jurisdictional Immunities of States and Their Property: An Exception to Torture? ......................................................................................................54 5 Conclusion.......................................................................................................................61 Bibliography..........................................................................................................................66 iv 1 1 Introduction Judicial scrutiny in the decisions of national and international courts shows that, throughout the years, different approaches have been taken on whether victims of torture must be allowed to raise civil claims before national courts of States other than the perpetrator State to recover damages for their sufferings. The absence of an international provision, governing State immunity, when victims of torture sue the perpetrator State before courts of other States, has made the issue a disputed area in the law of State immunity. In recent years, however, national courts mostly ruled in favor of foreign State immunity and denied to hear claims of extra- territorial tortures. Nonetheless, Several political considerations, in my belief, have made it difficult for States to decide without prejudice. From the foreign policy perspective, prosecuting a State before national courts of another State may lead to the deterioration of diplomatic relations between the two States. States are worried that, by rejecting immunity in cases of torture, they would be treated similarly by the perpetrator State. Moreover, the forum State may have the perception that by allowing individuals to seek reparation before its courts, it would confront with floods of litigation from the torture victims around the world. Although a safe haven for all torture victims where they can be heard is ideal for human rights advocates, States won’t like their courts to become tribunals for human rights claims against the foreign States. The recent practice of States shows that courts, being influenced by the mentioned political concerns, have largely, and at times blindly, followed the previous rulings of national and international courts who upheld immunity in cases of extra-territorial torture. Specific attention, thus, should be given to the judicial reasoning of courts, based on which immunity was granted, to see whether decisions are also legally, and not merely politically, justified: are they compatible with the principles and concepts of contemporary international law including the responsibilities of States to condemn acts of torture, and their obligations under the Convention Against Torture1 as well as other human rights conventions to provide victims of torture with reparations. 1 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, 2 In Part II of this paper, the compatibility of national courts’ decisions with international law in several important cases, having been used as leading cases in the field, is evaluated. Given that examination of the judicial practice of all States is virtually impossible, the most influential decisions within US, UK and Canada case laws are examined. Under Part III, similar analysis is conducted on the decision of the International Court of Justice on Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) and two of the most controversial decisions of the European Court of Human Rights on the issue of State immunity and torture: Al-Adsani and Jones. The ICJ in Jurisdictional immunities of the State decided that Italy had violated its obligation to respect Germany’s immunity under international law, by allowing civil claims to be brought against Germany based on war crimes committed by its military forces during the Second World War. Similarly, the ECtHR, notwithstanding the significant dissent opinions, ruled in favor of the decisions of the British courts upholding immunity in both cases. While there is no formal hierarchy between international institutions, ICJ jurisprudence, in practice, is given considerable weight by other judicial bodies, 2 specifically when its decision is compatible with States political concerns such as their tendency to keep a friendly relationship with the perpetrator State. Accordingly, although rejection of civil claims raised by victims of extra- territorial torture on Sate immunity grounds is not in line with obligations of States under international law, after the ICJ decision, being affirmed by the ECtHR in its 2014 decision in Jones, it is unlikely that courts depart from this trend in future cases. In the Forth Part, I examine the provisions of the UN Convention on Jurisdictional Immunities of States and Their Properties 3 and its drafting history to examine whether any references have been made to acts of torture or other human rights violation of peremptory nature. The United Nations International Law Commission (ILC), being asked by the General 1465 UNTS 85 (entered into force 26 June 1987). [CAT] 2 Jonathan Charney, “The Impact on International Legal System of the Growth of International Courts and Tribunals” (1999) 31 NYU J Intl L & Pol 697 at 700. 3 United Nations Convention on Jurisdictional Immunities of States and Their Property, GA Res, UNGAOR, 59th Sess, UN Doc. A/RES/59/38 (2004), online: <http://www.refworld.org/docid/428 0737b4.html>. [UN Convention]