STATE JURISDICTION AND IMMUNITIES
7.11 IMMUNITY UNDER DOMESTIC LAW AND JUS COGENS NORMS
It seems that with the erosion of an unfettered absolute discretion previously associated with Art 2(7) in the sphere of human rights, immunityratione materiaehas also suffered considerable limitation. The majority of the House of Lords in the Pinochet (No 3)case176admitted that while the immunity of a former Head of State
170 Alfred Dunhill of London Inc v Republic of Cuba,425 US 682 (1976).
171 311 F 2d 547 (1962).
172 Ibid,pp 557–58; similarly, inSharon v Time Inc,599 F Supp 538 (1984), it was held that the Israeli Defence Minister’s alleged support of a massacre could not constitute the policy of the Israeli Government and, therefore, an act of State.
173 99 ILR 143.
174 963 F Supp 880 (1997).
175 InLafontant v Aristide(1994) 103 ILR 581, the Eastern District Court of New York held that a recognised Head of State enjoys absolute immunity even in exile, unless such immunity has been explicitly waived.
176 [1999] 2 WLR 827, pp 880, 906.
persists with respect to official acts, the determination of what constitutes an official act is to be made in accordance with customary law. It held that international crimes, such as torture, cannot constitute official acts of a Head of State.177Indeed, since Art 1(1) of the 1984 Torture Convention defines torture as an act that can only be inflicted by a public official, the mere invocation of immunityratione materiaewould render the Torture Convention redundant. Article 1(1) has to be read, hence, as excluding such immunity. Similarly, an acting Head of State cannot invoke the gross violation of human rights as a public act in order to avoid prosecution. More recently, in February 2000, a court in Senegal indicted Hissene Habre, the Head of State in Chad from 1982–90, for acts of torture during his reign in that country, but on 20 March 2001 the Cour de Cassation of that country held that Habre could not be tried under torture charges in Senegal.178Whatever the precise scope of Head of State immunity, inUSA v Noriegait was held that illegitimate assumption of power does not carry immunity benefits.179This statement, welcomed as it may be, should be approached with caution, because the US Government has not hesitated in the past to afford full immunities and support to illegitimate dictatorial regimes. Interestingly, the ECHR, in theAl-Adsanicase, took the view that evenjus cogensnorms, such as the prohibition against torture, must be construed as existing in harmony with other recognised principles of international law, namely state immunity. The applicant was tortured by government agents in Kuwait and pursued civil claims before British courts for a period of 10 years, which rejected his claims on the basis of immunity afforded under the SIA 1978. Thereafter, he sought refuge before the ECHR, arguing that the SIA violated his right of access to judicial remedies. The Court rejected his claim, arguing that immunity is inherent in the operation of international law, and cannot be regarded as imposing a disproportionate restriction on the right of access to court.180 As already noted, until very recently, human rights abuses were perceived as issues exclusive to the domestic jurisdiction of the concerned State. US courts have attempted to detach human rights violations from the range of official acts which may lawfully be attributed to the State, but only where public officials acted independently, either in pursuance of personal interests as in the case of Noriega and Marcos, or beyond the level of abuse authorised by the State they represent. In Forti v SuarezMason,acts of torture and disappearances committed by an Argentine General, who was an official of the military regime, did not,ipso facto,assimilate his actions to the Argentine State.181
177 Ibid,p 899,perLord Hutton and p 903,perLord Saville; similarly held inRe Estate of Marcos,25 F 3d 1467 (1994). See G Garnett, ‘The Defence of State Immunity for Acts of Torture’, 18Australian YIL (1997), 97.
178 F Kirgis, ‘The Indictment in Senegal of the Former Chad Head of State’ (February 2000)ASIL Insight;
in theHonecker Prosecutioncase, 100 ILR 393, the issue of the criminal liability of a former Head of State for human rights violations authorised while in office was not considered because of the ill health of me accused.
179 99 ILR 143, pp 162–63.
180 Al-Adsani v UK,Judgment (21 November 2001) (2002) 34 EHRR 11, paras 55–66; for an excellent overview, see E Voyakis, ‘Access to Court v State Immunity’, 52ICLQ(2003), 279.
181 672 F Supp 1531 (1987). These cases have been brought under the Aliens Tort Claims Act 1789, 18 USC § 1350, and so the criminal elements involved are incidental to the principal character of such claims, which is tortious.
It has been widely advocated that States are obligated under international law to punish serious human rights breaches by a former regime.182As in the case of Chile, the promulgation of amnesty laws exonerating the offences of prior regimes is incompatible with the duty of States to investigate human rights infractions and provide appropriate remedies. This is true, at least, of amnesties granted after crimes have been perpetrated,183and those favouring State security forces (self-amnesties).184 In order for the judicial authorities of a State to waive immunity with respect to human rights abuses, they must first determine whether there is a national law in place regulating the relevant conduct and whether or not they may lawfully exercise judicial jurisdiction. The House of Lords in thePinochet (No 3)case upheld its subject matter jurisdiction over acts of torture committed after 1988 when the Torture Convention was enacted into British law.Another route would have been to recognise the prohibition of torture under customary law and avoid limiting the temporal scope of the charges. As regards jurisdiction, where the offence in question is subject to universal jurisdiction under international law, as in the case of piracyjure gentium and grave breaches, the prosecution of public officials by any State should not be a very difficult exercise. It would seem that where immunity is excluded from multilateral treaties, such as in Art IV of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) and in respect of offences that do not attract universal jurisdiction under treaty or customary law, any State is free to assert criminal jurisdiction as long as this does not conflict with the competence afforded to other States under the relevant treaty or custom.
Customary law favours adherence to the restrictive principle of former Head of State immunity.185 It seems fair to suggest that we are witnessing an emerging international rule whereby immunity from national criminal jurisdiction is excluded in all cases of serious human rights violations, regardless of the place where they have been committed.186This is also true of privileges and rights usually granted under international human rights instruments.187
182 D Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’, 100Yale LJ(1991), 2537; M Scharf, ‘Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?’, 31Texas ILJ(1996), 1; nonetheless, inAzanian Peoples Organisation v President of the Republic of South Africa,91AJIL(1997), 360, the RSA Constitutional Court held that international human rights law did not compel domestic criminal prosecution of human rights abuses.
183 UN Human Rights Committee, General Comment No 20, UN Doc CCPR/C/21/Rev 1/Add 3 (7 April 1992), para 15, regarding the interpretation of Art 7 of the ICCPR; see also N RohtAriaza and L Gibson, ‘The Developing Jurisprudence on Amnesty’, 20HRQ(1998), 843.
184 K Ambos, ‘Impunity and International Law’, 18HRLJ(1997), 1, pp 7–8.
185 A Watts, ‘The Legal Position in International Law of Heads of State’, 247RCADI(1994 III), 88.
186 This is further reinforced, although in the sphere of torts, with the passage by Congress of the Anti- Terrorism and Effective Death Penalty Act 1996, amending the FSIA 1976 by adding what is now 28 USC § 1605(a)(7). Under this section, foreign States that have been designated as State sponsors of terrorism are denied immunity from damage actions for personal injury or death resulting from certain specific offences. SeeRein v The Socialist People’s Libyan Arab Jamahiriya,38 ILM (1999), 447.
187 InRe Duvalier and Madame Duvalier,111 ILR 528, the French Conseil d’Etat held that a former Head of State could not claim refugee status where grave human rights violations occurred under his authority, in accordance with Art 1(F)(c) of the 1951 Convention Relating to the Status of Refugees, 189 UNTS 137.