In Disappointing Ruling, Court Validates Immunity of State Officials Accused of Human Rights Violations: Why it May Have Erred.

The international law principle of sovereign equality recognizes that one State may not exercise judgment over another. This is known as the sovereign immunity doctrine. This immunity has been extended to include exercising jurisdiction over Heads of State, given that it is understood that said exercise of jurisdiction would interfere with their official duties and, hence, interfere with State sovereignty.

Immunity for State officials has always proven to be a controversial issue, since on many occasions the claims put forth involve allegations of human rights violations. This particular issue has been decided differently among States and international courts. Two recent judgments have demonstrated these inconsistent approaches.

In the case of Samantar v. Yousuf, on 13 January 2014 the United States Supreme Court rejected the appeal of former Somali Prime minister, Mohamed Ali Samantar, to be granted common law immunity for claims under the Torture Victim Protection Act of 1991. A lower court had held Samantar liable for human rights abuses–including torture, rape and killings–committed during the 1980s. As such, the seven victims who presented the lawsuit were awarded $21 million (USD) in 2012. Samantar claimed immunity for acting on behalf of a foreign State. This is known as functional immunity. This claim was denied in 2010, as the U.S. Supreme Court found that the U.S. Foreign Sovereign Immunities Act of 1976 does not extend to civil law suits. In its most recent decision, the Court denied an appeal to review if Samantar enjoyed common law immunity.

On the other hand, on 14 January 2014, the European Court of Human Rights (ECtHR) upheld a United Kingdom House of Lords’ decision to grant immunity in the case of Jones v UK. This case originated with several British nationals claiming compensation for the alleged torture they were submitted to by Saudi Arabia officials. At the domestic level, the House of Lords found that immunity for Heads of States could not be surpassed by suing the “servants,” meaning officials under the control of the Head of State. The claimants submitted a petition before the ECtHR, which argued that this decision violated the victim’s right of access to court under the European Convention of Human Rights (Art. 6). The ECtHR found, however, that the application of immunity for these officials reflected recognized international public law principles and thus did not violate the Convention.

These decisions reflect the lack of consistent application of the sovereign immunity doctrine. Before these decisions, the current applicable law recognized immunity for officials but also recognized exceptions of human rights law violations. The most prominent example of the application of the latter is the Pinochet case. These exceptions reasoned that a State may never violate its international human rights’ obligations, and therefore, that a State official may never commit said violation in representation of the State. The judgment of the International Court of Justice (ICJ) in the Arrest Warrant case recognized an international law immunity for these officials for their official acts, and in dictum even appeared to widen the extent of the functional immunity. On the other hand, the International Criminal Court (ICC) completely denies this immunity; to the extent that it can even be denied to officials not party to the ICC in situations referred to the Prosecutor by the United Nations Security Council. The Rome Statute, which created the ICC, has an article expressly denying immunity due to official capacity.[1] Furthermore, if a situation is referred by the Security Council–under Chapter VII powers[2]–the ICC obtains jurisdiction over those accused by the Prosecutor, regardless of whether the State is a party or not to the Rome Statute. This, consequently, has permitted accusations of officials from a State not party to the ICC. An example of this is the ICC case The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman. 

With these developments regarding the application of this immunity in mind, it appears that the ECtHR’s decision in Jones v. U.K. amplifies the immunity to the same extent of that of a State. However, the truth is that the immunity doctrine for States and for its official have developed in different ways. The ICJ’s Jurisdictional Immunities judgment recognized complete immunity for a State for official acts. Nevertheless, there is debate as to whether this complete immunity has been previously granted to State officials. Moreover, immunity varies depending on whether it is a civil or criminal proceeding, as well as the nature of the violations in question. International law recognizes, as Prof. Frulli points out in a recent article, that immunity will not be applicable, neither in State nor international courts, in cases of international crimes. The ECtHR’s judgment in Jones v. U.K. runs contrary to this, as it appears to create a clear cut immunity for civil cases, which permits officials to hide behind their States in the exercise of “official acts.” Ironically, the judgment allowing for this procedural bar was issued by a human rights body, whose duty is to protect individuals from State’s human rights violations.

For further analysis on the Jones v. UK decision click here.

Additional research by:  Mayra C. Artiles Fonseca

[1] Rome Statute, 17 July 1998 (entered into force 1 July 2002), Art. 27, 2187 UNTS 90.

[2] Id, at 13.



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