State immunity or State impunity in cases of violations of human rights recognised as jus cogens norms

ABSTRACT

State immunity is an inalienable concept in international law designed to prevent abuses of inter-State relations; on the other hand, state immunity removes the threat to the State of being forced to face justice for its sovereign acts as it relates to the most serious of human rights abuses. For these reasons, the granting of immunities to the State may lead to impunity from jurisdiction in cases in which certain human rights recognised as peremptory norm of general international law (jus cogens) have been violated.

This article analyses the tension between the violation of certain human rights and the preservation of State immunity by considering a landmark judgment by the International Court of Justice (Jurisdictional Immunities of the State – Germany v Italy). At the heart of this article lies a significant argument: State immunity (procedural rule) should not equate to State impunity when certain human rights recognised as jus cogens norms (substantive rule) are violated. It also highlights some exceptions to immunity ratione materiae against the backdrop of violations of jus cogens norms by applying State practices in order to support the criticism of the ICJ judgment and that the claim of immunity does not equal to impunity.

KEYWORDS:

• Jus cogens
• human rights
• immunity
• impunity
• procedural rule
• substantive rule
• immunity ratione materiae

ORCID

Selman Özdan http://orcid.org/0000-0002-1002-0625

Acknowledgment

This article is based on Asst. Prof. Dr. Selman Özdan’s PhD dissertation which was conducted under the supervision of Prof. Dr. Jean Allain at Queen’s University Belfast, School of Law.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Selman Özdan is an Asst. Prof. Dr. in Public International Law at Erciyes University School of Law (Turkey). He holds PhD (2016) in Law from Queen’s University Belfast School of Law (United Kingdom) and LLM with Honours (2011) from Case Western Reserve University School of Law (Cleveland OH USA). He is a member of the Society of Legal Scholars (SLS) and Case Western Reserve University Law Alumni Association.

Notes

1. See Hazel Fox, ‘International Law and Restraints on the Exercise of Jurisdiction by National Courts of States’, in International Law, ed. Malcolm Evans, 3rd ed. (Oxford: Oxford University Press, 2010), 340–79.

2. Eric Suy, ‘The Concept of Jus Cogens in Public International Law’, in Lagonissi Conference on International Law, Papers and Proceedings, vol. II (Geneva, 1967), 18.

3. See art. 53 of the Vienna Convention on the Law of Treaties:

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

See further art. 64 of the Vienna Convention on the Law of Treaties: ‘If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates’. See Vienna Convention on the Law of Treaties (adopted 23 May 1969 UNTS vol. 1155, entered into force 27 January 1980), articles 53–64.

4. The Restatement (Third) of the Foreign Relations Law of the United States, 1987, § 702.

5. UN Doc. A/CN.4/714 (2018), ILC Third Report on Peremptory Norms of General International Law (Jus Cogens) by Dire Tladi, Special Rapporteur, para. 132; UN Doc. A/72/10 (2017), Draft Article 7(1), ILC Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction (provisionally adopted by the Commission), 176–77.

6. See generally Eric A. Heinze, ‘Humanitarian Intervention: Morality and International Law on Intolerable Violations of Human Rights’, International Journal of Human Rights 8, no. 4 (2004): 471–90; see for detailed analyses on certain human rights recognised as jus cogens norms Selman Ozdan, ‘The Human Rights Challenge to Immunity in International Law’ (PhD diss., Queen’s University Belfast, 2016), 61–96.

7. On this point, Hans Kelsen claims that

[the] power of the state to conclude treaties under general international law is in principle unlimited. States are competent to make treaties on whatever matter they please. But the content of the treaty must not conflict with a norm of general international law which has the character of jus cogens.

Hans Kelsen, Principles of International Law (New York: Rinehart, 1952), 322–23.

8. Q. C. Hazel Fox and Philippa Webb, The Law of State Immunity, 3rd ed. (Oxford: Oxford University Press, 2013), 1.

9. Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th ed. (London: Routledge, 1997), 209.

10. Rosanne van Alebeek, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (Oxford: Oxford University Press, 2008), 316; Lee M. Caplan, ‘State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory’, American Journal of International Law 97, no. 4 (October 2003): 741–42, https://doi.org/10.2307/3133679.

11. Alebeek, The Immunity of States and their Officials in International Criminal Law and International Human Rights Law, 320.

12. Al-Adsani v. The United Kingdom (Application No 35763/97) Judgment (European Court of Human Rights November 21, 2001).

13. Ibid., paras. 9–10.

14. Ibid., para. 10.

15. Ibid. ‘[A]lthough he had obtained judgment by default against the Sheikh, the judgment could not be executed because the Sheikh had no ascertainable recoverable assets in the United Kingdom’. Ibid., para. 51.

16. Ibid., para. 66; see Alexander Orakhelashvili, ‘State Immunity in National and International Law: Three Recent Cases before the European Court of Human Rights’, Leiden Journal of International Law 15 (2002): 704–05.

17. Jones v. Saudi Arabia [2006] UKHL 26 (UK House of Lords June 14, 2006). Comparing with the Al-Adsani decision, the Court, in Jones and others case, had a robust majority, the final decision was given by six votes to one.

18. Jones and others v. The United Kingdom (Application Nos 34356/06 and 40528/06) Judgment (European Court of Human Rights January 14, 2014); see Cedric Ryngaert, ‘Jones v United Kingdom: The European Court of Human Rights Restricts Individual Accountability for Torture’, Utrecht Journal of International and European Law 30, no. 79 (2014): 47–50.

19. Jones and others v. The United Kingdom, para. 189.

20. Ibid.

21. Ibid., para. 188 and Al-Adsani v. The United Kingdom, para. 54.

22. Orakhelashvili, ‘State Immunity in National and International Law’, 704–05.

23. Al-Adsani v. The United Kingdom, para. 55 and Jones and others v. The United Kingdom, para. 195.

24. Ed Bates, ‘The Al-Adsani Case, State Immunity and the International Legal Prohibition on Torture’, Human Rights Law Review 3 (2003): 204.

25. Al-Adsani v. The United Kingdom, para. 61.

26. Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge, New York, Melbourne: Cambridge University Press, 2003), 242.

27. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) 2012 ICJ Rep 99 (2012); See Onder Bakircioglu, ‘Germany v Italy: The Triumph of Sovereign Immunity Over Human Rights Law’, International Human Rights Law Review 1, no. 1 (January 2012): 93–109, https://doi.org/10.1163/22131035-00101002; Sangeeta Shah, ‘Jurisdictional Immunities of the State: Germany v Italy’, Human Rights Law Review 12, no. 3 (September 2012): 555–73, https://doi.org/10.1093/hrlr/ngs023.

28. Al-Adsani v. The United Kingdom, para. 66.

29. See Lorna McGregor, ‘State Immunity and Human Rights is there a Future after Germany v. Italy?’ Journal of International Criminal Justice 11, no. 1 (2013): 125–45.

30. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), para. 37.

31. Ibid., paras. 62–104.

32. For mentioned State practices, see ibid., para. 72.

33. Ibid., paras. 80–81, 91.

34. Ibid., para. 56.

35. Ozdan, ‘The Human Rights Challenge to Immunity in International Law’, 181–9; see R v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 3) [2000] 1 AC 147 (HL); see also generally Michael Byers, ‘The Law and Politics of the Pinochet Case’, Duke Journal of Comparative & International Law 10, no. 2 (April 2000): 415–42; Andrea Bianchi, ‘Immunity Versus Human Rights: The Pinochet Case’, European Journal of International Law 10, no. 2 (1999): 237–77.

36. See Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), paras. 87–91.

37. Ibid., para. 101.

38. Ibid., paras. 98, 101, 103 and 104.

39. See Vienna Convention on the Law of Treaties, art. 53.

40. Xiaodong Yang, ‘State Immunity in the European Court of Human Rights: Reaffirmations and Misconceptions’, British Yearbook of International Law 74, no. 1 (January 2004): 340, https://doi.org/10.1093/bybil/74.1.333.

41. See Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment, paras. 92, 94 and 97; see also Chile Eboe-Osuji, ‘State Immunity, State Atrocities, and Civil Justice in the Modern Era of International Law’, in The Canadian Yearbook of International Law, ed. Don M. McRae, vol. 45 (Vancouver: University of British Columbia Press, 2007), 256.

42. Hazel Fox, The Law of State Immunity (Oxford: Oxford University Press, 2002), 525; Jones v. Saudi Arabia, paras. 24 and 44.

43. Riccardo Pavoni, ‘Human Rights and the Immunities of Foreign States and International Organizations’, in Hierarchy in International Law: The Place of Human Rights, ed. Erika de Wet and Jure Vidmar (Oxford: Oxford University Press, 2012), 75.

44. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002 ICJ Rep 3, para. 33 or p. 159 (Dissenting Opinion of Judge Van den Wyngaert).

45. Phillip Wardle, ‘Zhang v Zemin (2008) 251 ALR 707’, Australian International Law Journal 15 (2009): 277–81.

46. Stefan Talmon, ‘Jus Cogens after Germany v. Italy: Substantive and Procedural Rules Distinguished’, Leiden Journal of International Law 25, no. 4 (2012): 983.

47. Alexander Orakhelashvili, ‘State Immunity and International Public Order Revisited’, Germany Yearbook of International Law 49 (2006): 360.

48. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Written Statement of the Hellenic Republic, 2011, para. 54.

49. Ibid.

50. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Germany’s Comments on the Greek Declaration, 2011, para. 14.

51. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), para. 58.

52. Ibid., para. 296 (Dissenting Opinion of Judge Trindade).

53. Orakhelashvili, ‘State Immunity and International Public Order Revisited’, 360.

54. See supra note 3.

55. Article 71 of the Convention reads:

In the case of a treaty which is void under article 53 the parties shall a) eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law; and b) bring their mutual relations into conformity with the peremptory norm of general international law.

56. See Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), paras. 315–16 (Dissenting Opinion of Judge Trindade). See also Orakhelashvili, ‘State Immunity and International Public Order Revisited’.

57. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), para. 294 (Dissenting Opinion of Judge Trindade).

58. Ibid.

59. Orakhelashvili, ‘State Immunity and International Public Order Revisited’, 361.

60. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), paras. 106, 107 and 108.

61. Ibid., para. 137.

62. According to Article 94 of the UN Charter, each member of the UN is bound

to comply with the decision of the International Court of Justice in any case to which it is a party. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

Article 59 of the International Court of Justice Statute also states that the Court’s decision ‘has no binding force except between the parties and in respect of that particular case’.

63. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), para. 123 (Dissenting Opinion of Judge Trindade).

64. Ibid., para. 284.

65. Ibid., para. 26 (Dissenting Opinion of Judge Jusuf).

66. See Andrea Bianchi, ‘Gazing at the Crystal Ball (Again): State Immunity and Jus Cogens beyond Germany v Italy’, Journal of International Dispute Settlement 4, no. 3 (July 2013): 457–75.

67. Quoted in Judge Antônio Augusto Cançado Trindade, The Construction of a Humanized International Law: A Collection of Individual Opinions (1991-2013) (Leiden: Brill Nijhoff and Hotei Publishing, 2015), bk. 2 Chapter 7, 1500.

68. See Bianchi, ‘Gazing at the Crystal Ball (Again)’.

69. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), para. 181 (Dissenting Opinion of Judge Trindade).

70. Alexander Orakhelashvili, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts: A Reply to Dapo Akande and Sangeeta Shah’, European Journal of International Law 22, no. 3 (August 2011): 852, https://doi.org/10.1093/ejil/chr065

71. Ibid.

72. See International Law Commission, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’, in Yearbook of the International Law Commission (2001), Vol. II, Pt. II, articles 40 and 41.

73. See for the discussion on peremptory norms Ulf Linderfalk, ‘The Effect of Jus Cogens Norms: Whoever Opened Pandora’s Box, Did You Ever Think About the Consequences?’ European Journal of International Law 18, no. 5 (November 2007): 853–71, https://doi.org/10.1093/ejil/chm044.

74. Al-Adsani v. The United Kingdom, para.1 or p. 29–30 (Joint Dissenting Opinion).

75. See for further discussion Christian Tomuschat, ‘Reconceptualizing the Debate on Jus Cogens and Obligations Erga Omnes: Concluding Observations’, in The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes, ed. Christian Tomuschat and Jean Marc Thouvenin (Leiden: Martinus Nijhoff Publishers, 2006), 425–36.

76. Alexander Orakhelashvili, ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong’, European Journal of International Law 18, no. 5 (November 2007): 955–70, https://doi.org/10.1093/ejil/chm049.

77. Al-Adsani v. The United Kingdom, para. 3 or p. 30 (Joint Dissenting Opinion). The

alleged superiority of jus cogens over the rules of State immunity and the projected clash between them rests on the hypothesis that peremptory norms have the all-encompassing effect of overriding all legal consequences which otherwise attach to a violation of a rule.

Helmut Philipp Aust, Complicity and the Law of State Responsibility (Cambridge, New York, Melbourne: Cambridge University Press, 2011), 37.

78. Yang, ‘State Immunity in the European Court of Human Rights’, 345.

79. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), para. 49 or p. 197 (Dissenting Opinion of Judge Trindade).

80. Orakhelashvili, ‘State Immunity and Hierarchy of Norms’, 969.

81. Yang, ‘State Immunity in the European Court of Human Rights’, 343.

82. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), paras. 16 and 58 or p. 186 and 200 (Dissenting Opinion of Judge Trindade).

83. Immunity ratione materiae

protects both current and former officials from lawsuits in foreign national courts. This kind of immunitycovers onşy official, not private, conduct. Functional immunity […] ultimately protects States because it prevents them from being sued indirectly through the officials that work on their behalf.

Ingrid Wuerth, ‘Foreign Official Immunity: Invocation, Purpose, Exceptions’, Swiss Review of International and European Law 23 (2013): 207.

84. A v. Office of the Attorney General of Switzerland, B, C ILDC 1933 (Swiss Federal Criminal Court July 25, 2012); Unofficial English version provided by TRIAL (the Swiss non-governmental association), https://www.asser.nl/upload/documents/20130221T040104-Nezzar_Judgm_Eng_translation%2025-07-2012.pdf. The original decision of the Court is available (in French) at, https://bstger.weblaw.ch/cache/pub/cache.faces?ul=fr&file=20120725_BB_2011_140.htm (hereinafter Khaled Nezzar case). para. 5.3.2.

85. Khaled Nezzar case, 3.

86. Gabriella Citroni, ‘Swiss Court Finds No Immunity Fort He Former Algerian Minister of Defence Accused of War Crimes: Another Brick in the Wall of the Fight Against Impunity’, August 15, 2012, https://www.ejiltalk.org/swiss-court-finds-no-immunity-for-the-former-algerian-minister-of-defence-accused-of-war-crimes-another-brick-in-the-wall-of-the-fight-against-impunity/

87. Khaled Nezzar case, para. 5.3.5.

88. Ibid., para. 5.4.2.

89. Ibid., para. 5.4.3.

90. Ibid.

91. Ibid., paras. 5.5–6.

92. UN Doc. A/72/10 (2017), 176–77.

93. UN Doc. A/CN.4/714 (2018), para. 132.

94. Dire Tladi, ‘The International Law Commission’s Recent Work on Exceptions to Immunity: Charting the Course fora Brave New World in International Law?’ Leiden Journal of International Law 32, no. 1 (2019): 169–87.

95. Ibid.

96. Yousuf v. Samantar 699 F.3d 763 (4th Cir. 2012), 777.

97. Ibid. Mohamed Ali Samantar had resided in Virginia, USA as a permanent legal resident before he died in 2016.

98. Ibid., 766.

99. Samantar v. Yousuf 560 U.S. 305 (2010).

100. Yousuf v. Samantar, 767.

101. Ibid.

102. Ibid.

103. Ibid.

104. Ibid., 773.

105. Chimene Keitner, ‘Officially Immune? A Response to Bradley and Goldsmith’, Yale Journal of International Law Online 36 (2010): 9; Yousuf v. Samantar, 774.

106. Larson v. Domestic and Foreign Commerce Corp. 337 U.S. 682 (1949), 689; Chuidian v. Philippine National Bank 912 F.2d 1095 (9th Cir. 1990), 1106.

107. Yousuf v. Samantar, 775.

108. Jus cogens includes, ‘at a minimum, the prohibitions against genocide; slavery or slave trade; murder or disappearance of individuals; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination’. Evan J. Criddle and Evan Fox-Decent, ‘A Fudiciary Theory of Jus Cogens’, Yale Journal of International Law 34 (2009): 331–32; Based on ‘international covenants, agreements and declarations, commentators have identified at least four acts that are now subject to unequivocal international condemnation: torture, summary execution, genocide and slavery’. Tel-Oren v. Libyan Arab Republic 726 F.2d 774 (D.C. Cir. 1984), 791.

109. Yousuf v. Samantar, 775.

110. Ibid., 776.

111. Siderman de Blake v. Republic of Argentina 965 F.2d 699 (9th Cir. 1992), 718; Paul v. Avril 812 F.Supp. 207 (S.D. Fla. 1993), 212.

112. Yousuf v. Samantar, 777.

113. Ibid., 778

114. Ibid., 778.

115. Curtis A. Bradley and Laurence R. Helfer, ‘International Law and the U.S. Common Law of Foreign Official Immunity’, The Supreme Court Review 2010, no. 1 (2011): 236.

116. See Wuerth, ‘Foreign Official Immunity: Invocation, Purpose, Exceptions’.

117. UN Doc. A/CN.4/714, para. 123.

118. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), para. 306 or p. 288 (Dissenting Opinion of Judge Trindade).

119. See Trindade, Judge Antônio A. Cançado Trindade. The Construction of a Humanized International Law, bk. 2 Chapter 7.

120. See Orakhelashvili, ‘State Immunity in National and International Law’, 703–14.

121. See McGregor, ‘State Immunity and Human Rights is there a Future after Germany v. Italy?’

122. International Law Commission, ‘Report of the Commission to the General Assembly on the Work of Its Thirty-Second Session’, in Yearbook of the International Law Commission (1980), Vol. II, Pt. II, article 6, p. 147.

123. See Trindade, Judge Antônio A. Cançado Trindade. The Construction of a Humanized International Law, bk. 2 Chapter 7, 1413.

124. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), para. 306 or p. 288 (Dissenting Opinion of Judge Trindade).