STATE JURISDICTION AND IMMUNITIES
7.10 IMMUNITIES FROM CRIMINAL JURISDICTION
7.10.1 General conception of immunity in international law
As a general rule, a State enjoys absolute and complete authority over persons and property situated on its territory Indeed, without directly intervening in the internal affairs of another country it is difficult to see how a sovereign may assert authority over persons or property situated in a foreign land. Even before the establishment of the modern sovereign States, it was recognised that if State-like entities were effectively to interact in commercial, diplomatic and other fields, there was a need for a formula ensuring their official representatives freedom from arrest or suit in the receiving State. The granting of such privileges and immunities are, in fact, limitations on State sovereignty, whose reciprocal nature is, nonetheless, beneficial for the receiving State in the exercise of its foreign relations.
If it is agreed that a State enjoys absolute territorial competence, immunity from civil or criminal suit is possible only by the forum’s waiver of competence over certain persons or property located on its territory This State-centred concept can be discerned as early asSchooner Exchange v McFaddon,148where Marshall J explained that a foreign public vessel would not enter the ports of another State if it was not satisfied that it benefited from not being sued in the courts of the coastal State. This voluntary waiver of jurisdiction amounts to an ‘implied licence’ from the judicial, executive and enforcement claws of the receiving State. This is the primary legal basis for the concept of immunity. The fact that sovereign States are juridically equal under international law does not alone suffice as a basis for granting an ‘implied licence’, despite the maximpar in parent non habet imperium.149In an era where a significant number of humanitarian norms have attainedjus cogensanderga omnes character, equality has not prevented suits against States and their officials before municipal courts.150Similarly, although designed to enhance interstate relations and limit the reach of the receiving State’s judicial and executive machinery the concept of State immunity is not based on comity. State practice at the international level suggests that what was once an implied licence has now evolved to a legal obligation on the part of the receiving sovereign. A realist approach to immunity may elucidate some of the reasons associated with it, but not its basis in law.
The fact that adjudication of a case by a domestic court would raise issues of policy involving a foreign State151may explain why national judiciary has on many occasions been reluctant to exercise jurisdiction. It does not of itself evince waiver of jurisdiction. Notwithstanding this observation, the nature of some sovereign acts, under the rule of equality of States, cannot become the subject of municipal judicial
148 (1812) 7 Cranch I16.
149 One sovereign cannot exercise authority over another by means of its legal system.
150 Re Pinochet (No 3)(1999) 17 ILR 393;Prefecture of Voiotia and Others v Federal Republic of Germany,92 AJIL(1998), 765, where acts of atrocity committed by German troops during their occupation of Hellas in the Second World War were held to be violations ofjus cogensnorms, hence susceptible to the civil jurisdiction of Hellenic courts (subsequently upheld in cassation by the Hellenic Supreme Court in 2000). Reported in 95AJIL(2001), 375.
151 Rahimtoola v Nizam of Hyderabad[1958] 3 All ER 961.
proceedings. Thus, inBuck v AG,152the Court of Appeal refused to make a declaration on the validity, or not, of the Constitution of Sierra Leone. Other similar sovereign acts which would be excluded from the consideration of national courts have included governmental acts dealing with purely internal issues or issues pertinent to a State’s external affairs.153These issues have fallen under the umbrella of non- justiciable acts and have precluded national courts from asserting their jurisdiction.
Immunity, on the other hand, refers to those situations where, although the court would normally enjoy competence over a particular case, it is averted from doing so because one of the litigants is a sovereign State or a legitimate extension thereof.
It seems doubtful, however, that all traditional non-justiciable acts are beyond the ambit of national courts, since, if the prevention or punishment of specific conduct is classified as anerga omnesobligation, it necessarily follows that if a violation of such a norm were embodied in a parliamentary act, the courts of a third State would be under an obligation to declare that act unobservable in the forum. For example, if a case comes before the courts of State A, whereby an alien has acted in accordance with a law in State B allowing the practice of torture, the courts of State A may declare that law to be contrary to international law and invalidate any legal effects arising within the territory of State A. InOppenheim v Cattermole,for example, one issue that arose was whether a decree adopted in Nazi Germany in 1941 depriving Jews who had emigrated from Germany of their citizenship should be recognised by the English court. Lord Chelsea pointed out that the courts should be very reluctant to pass judgment on foreign sovereign acts, but because the Nazi law was not only discriminatory but deprived German Jews of their property and citizenship, ‘a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all’.154
Until very recently, States could not be sued at all before the courts of other States.
This rule of absolute immunity rested on the customary assimilation of the sovereign and its officials with the represented State, regardless of the function served in each particular case. The personal dignity of the monarch, thus, precluded impleading him or her before a foreign jurisdiction. Before the 1920s, this rule of absolute immunity suggested that every State act was immune from domestic litigation. With the rapid growth of interstate commerce, there was a need to procure guarantees to private enterprises that trading with State entities would be on an equal basis. Indeed, the erosion of absolute immunity rested on financial considerations. Sovereign immunity has since been premised only on the public nature of the act (actsjure imperil), thus excluding those acts serving private functions, such as commercial activities (actsjure gestionis). With the dissolution of the USSR and the communist system generally in Europe, only China and a few South American States continue to apply a doctrine of absolute immunity. Each State is free to develop its own criteria determining whether an act serves a public or private function, as is the case with
152 [1965] Ch 745; 42 ILR 11. The same has been held as regards the validity of treaties where the issue does not raise questions of national law.Ex p Molyneaux[1986] 1 WLR 331.
153 SeeKuwait Airways Corp v Iraqi Airways Co[1995] 1 WLR 1147.
154 Oppenheim v Cattermole[1976] AC 249, p 277; inThe Queen on the Application of Abbasi and Another v FCO Secretary of State and Others,Judgment (6 November 2002), the Court ofAppeal agreed with this position, but on the facts of the case, it had no power to compel the US to grant habeas corpus relief to the applicant, who was a British national held at Guantanamo Bay as a suspected Al-Qaeda member.
the UK State Immunity Act (SIA) 1978. However, since the distinction is not always clear cut, several theories have subsequently been adopted by national courts.
Examining the ‘purpose of the act’, that is, whether or not it was intended for a commercial or a public transaction, has not attracted favour from UK and US courts.155 It is, nonetheless, incorporated in a subsidiary role in Art 2 of the International Law Commission (ILC) Draft Articles on Jurisdictional Immunities, since its role as a complementary test in a number of jurisdictions cannot be overlooked.156Although the ‘nature of the act’ test has found some support,157it is unambiguous that certain commercial contracts can only be made by States and not by private parties, such as the supply of military material. The more common approach seemed to suggest that a list of detailed exceptions was preferred by municipal courts in order to avoid making personal determinations on the basis of either test.158This, to a large extent, is reflected in the UK SIA 1978. Section 3 of the Act provides for a catalogue of exceptions to State immunity as follows:
3(1) A State is not immune as respects proceedings relating to—
(a) commercial transactions entered into by the State; or
(b) an obligation of the State which by virtue of a contract (whether a commercial transaction or not),
falls to be performed wholly or partly in the United Kingdom.
(2) This section does not apply if the parties to the dispute are States or have otherwise agreed in writing; and sub-s (1)(b) above does not apply if the contract (not being a commercial transaction) was made in the territory of the State concerned and the obligation in question is governed by its administrative law.
(3) In this section ‘commercial transaction’ means—
(a) any contract for the supply of goods or services;
(b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and
(c) any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority, but neither paragraph of sub-s (1) above applies to a contract of employment between a State and an individual.
The 1978 Act represents a good example of restrictive immunity statutes since it is not only similar to the US Foreign Sovereign Immunities Act (FSIA) 1976, but it also implements the 1972 European Convention on State Immunity.159A foreign sovereign
155 Trendtex Trading Corp v Central Bank of Nigeria[1977] 1 All ER 881;I Congresso del Partido[1981] 2 All ER 1064;Victory Transport Inc v Comisaria General De Abastecimientos y Transpertos,35 ILR 110.
156 USA v The Public Service Alliance of Canada,32 ILM (1993), 1.
157 Trendtex[1977] 1 All ER 881.
158 In theVictory Transportcase, 35 ILR 110, the District Court of Appeals listed as actsjure imperil, internal administrative acts, such as the expulsion of aliens and the passing of national laws, acts concerning military and diplomatic affairs, and public loans.
159 ETS 74.
may waive its immunity privileges either expressly or by conduct. Such waiver need not necessarily extend to measures of execution.160US and UK courts require genuine submission to the competence of their judiciary and have rejected the invocation of
‘implied waivers’, even with respect to conduct constituting a violation ofjus cogens.161 Thus far, we have briefly examined the general conception of immunity in international law. These rules are useful in discerning whether or not a foreign State may be impleaded in civil suits before the courts of other nations. We will now proceed to examine the international law of immunity from criminal jurisdiction afforded specifically to natural persons.
7.10.2 Immunity from criminal jurisdiction
In general terms, immunity from jurisdiction means that a court cannot entertain a suit, not that the defendant is immune from criminal liability altogether.162In practical terms, this means that once the procedural bar is removed (ie, immunity from suit because the person is an incumbent office holder), the person is liable for criminal prosecution. In customary law, there are two reasons as to why foreign nationals have been granted immunity from municipal courts for alleged perpetration of criminal offences. The first reason relates to the status of certain persons. Thus, it is recognised that individuals who hold certain public office enjoy absolute criminal immunity. Its basis is not the nature of the action, but the official status of the person concerned. This type of immunity is known asratione personae,and is available to a limited number of individuals: serving Heads of State, heads of diplomatic missions, their families and servants.163It is not available to serving Heads of Government who are not also Heads of State, nor to military commanders and their subordinates.164 Immunityratione materiae,on the other hand, is subject matter immunity. It serves to protect governmental acts of one State from being adjudicated before the courts of another and, therefore, only incidentally confers immunity on the individual. It is immunity from the civil and criminal jurisdiction of foreign national courts, but only in respect of governmental or official acts. Subsequently, it is open to any person exercising official functions, from a former Head of State to the lowest public official.
The reason for granting this type of immunity is to protect the person of the foreign dignitary in order to carry out his or her state functions and to represent that country
160 Op cit,Brownlie, note 6, p 343; J Crawford, ‘Execution of Judgments and Foreign Sovereign Immunity’, 75AJIL(1981), 75, p 86.
161 Hirsch v State of Israel and State of Germany,113 ILR 543; inSmith v Socialist People’s Libyan Arab Jamahiriya(1997) 113 ILR 534, the Court ofAppeals stated further that FSIA, § 1605, did not contemplate a dynamic expansion whereby immunity could be removed by action of the UN Security Council;
Kahan v Pakistan Federation[1951] 2 KB 1003, rejecting a claim that a waiver had been established from a prior contract to submit to the jurisdiction of UK courts.
162 Dickinson v Del Solar[1930] 1 KB 376, p 380,perLord Hewart CJ; similarly,Belgian Arrest Warrant judgment (14 February 2002), paras 47–55.
163 SIA 1978, s 14(1) extends immunityratione personaeto: (a) the sovereign or other Head of that State in his public capacity; (b) the government of that State; and (c) any department of that government [but not every executive entity]. InPropend Finance Pty Ltd and Others v Sing and Others(1998) 111 ILR 611, the UK Court of Appeals held that the correct interpretation of the word ‘government’ in s 14(1) be in light of the concept of sovereign authority, thus, encompassing police functions.
164 See SIA 1978, s 20(1).
abroad without any hindrance. This means that once the person is removed from office and no longer represents State interests abroad, he or she may thereafter become subject to criminal prosecution for offences committed at any time in the past. The fact that such immunity may be abused while the holder is in office is regrettable, but does not alter that person’s protected status, as this remains a well established rule of international law. In theBelgian Arrest Warrantjudgment, the ICJ confirmed that no distinction could be drawn between acts undertaken by the Congolese Foreign Minister as falling within an official or private capacity, because his immunity was ratione materiae. It clearly noted that customary international law did not provide an exception to the granting of immunityratione materiae,even in cases of war crimes and crimes against humanity.165The case is obviously different where such immunity is removed by the State of the protected person’s nationality, or by treaty—including Security Council resolutions—as was the case with the prosecution of former President Milosevic before the ICTY, within the context of international criminal jurisdiction exercised by an international judicial body.
These immunity rules have emerged as a result of State practice in the form of domestic immunity statutes and case law. They are not relevant to a discussion on immunity with respect to the jurisdiction of international criminal tribunals, to whom separate mention will be made further below. We will now proceed to analyse the contemporary scope of subject matter and personal immunity.
7.10.3 Act of State doctrine
This has been developed mainly by common law courts, who have generally refused to pass judgment on the validity of acts of foreign governments performed within their national territory.166This doctrine is akin to the concept of ‘non-justiciability’, having been viewed as a function of the separation of powers with the aim of not hindering the executive’s conduct of foreign relations.167The difference between the doctrines of State immunity and ‘act of State’ is that the former being a procedural bar to the jurisdiction of a court can be waived, while the latter being a substantial bar cannot.
The classic expression of the doctrine was stated inUnderhill v Hernandez168and reaffirmed by US courts on several occasions. InBanco Nacional de Cuba v Sabbatino,169 the Court refused to examine the legality of the Cuban Government’s expropriation of US property in that country. The doctrine requires the defendant to establish that the performed activities were undertaken on behalf of the State and not in a private
165 Belgian Arrest Warrantjudgment (14 February 2002), paras 47–55.
166 For a discussion of a civil law approach, seeBorder Guards Prosecutioncase, 100 ILR 364, where the German Federal Supreme Court found the act of State doctrine to be a rule of domestic law concerning the extent to which the acts of foreign States were assumed to be effective. See also JC Barker, ‘State Immunity, Diplomatic Immunity and Act of State: A Triple Protection Against Legal Action?’, 47 ICLQ (1998), 950.
167 SeeKirkpatrick v Environmental Tectonics,493 US 403 (1990).
168 168 US 250 (1897), p 252; see also the earlier decisionof Hatch v Baez7 Hun 596 (1876), where the New York Supreme Court was prevented from reviewing acts of the former President of the Dominican Republic in his official capacity.
169 376 US 398 (1964).
capacity. While any personal commercial transactions would clearly not be attributable to the State,170the extent to which individuals may purport to be acting for their sovereign has been limited in recent years. What is relevant for the purposes of the present analysis is the refusal of courts to accept the sovereign character of criminal acts in furtherance of personal aims. InJimenez v Aristeguieta,171the accused had used his position as former President and dictator of Venezuela to commit financial crimes for his own benefit. He claimed that, criminal though these actions may have been, they were, nonetheless, acts that should be attributable to Venezuela.
The Fifth Circuit court rejected this claim stating that offences perpetrated for private financial benefit constitute ‘common crimes committed by the Chief of State in violation of his position and not in pursuance of it. They are as far from being an act of State as rape’.172
Similarly, inUSA v Noriega,173the District Court held that acts of drug-trafficking committed even by ade factoleader of a country do not constitute sovereign acts, on the same basis asJimenez. The District Court further correctly noted that, because the doctrine was designed to preclude the hindrance of foreign relations, if the executive, as in the case ofNoriega,had indicted the defendant no danger of conflict would exist, and could, therefore, decide the case. More recently, inDoe v Unocal,it was held that the act of State doctrine did not preclude US courts from considering claims based on legal principles on which the international community had reached unambiguous agreement, such as slavery.174It should be noted that, besides the prosecution of Noriega, all the aforementioned cases concerned actions in tort.