By Rebecca Lowe
The recent European Court of Human Rights (ECtHR) ruling that Saudi Arabian officials enjoy state immunity is a ‘dangerous set-back in the fight against torture’, the UN Special Rapporteur on Torture has told IBA Global Insight.
‘Lower ranking’ personnel should be held accountable for the torture of foreign citizens, according to Juan Méndez. His comments follow an ECtHR judgment that Saudi officials accused of torture by four British men cannot be sued in UK courts, upholding a House of Lords ruling in 2006.
According to the judgment, the officials enjoy immunity from civil suit because they are representatives of the state. Under generally recognised rules of international law, states – including heads of state and diplomats – are immune from both criminal and civil proceedings in any foreign domestic court.
While conceding that ‘foreign state immunity is fairly well established’, Méndez voices ‘perplexity’ that this should extend to named functionaries. He agrees with the UK Court of Appeal, which unanimously ruled in 2004 that the accused could not be said to be acting in an ‘official’ capacity as torture is not a legitimate act of state.
‘For lower ranking officials to be extant only because they were discharging public functions seems to me a dangerous set-back in the fight against torture,’ he says. ‘Not to be able to sue individuals even if they acted under the colour of authority seems to me to go counter to the Convention Against Torture and the obligations of the state.’
The Convention Against Torture (CAT or the ‘Convention’) came into force in 1987 and has been ratified by 154 countries, including Saudi Arabia. It requires states to take measures to prevent torture within their borders and requires them to offer remedies to victims.
‘The obligation to provide a remedy is an important part of the Convention,’ says Méndez, who was himself tortured by the Argentinian junta in the 1970s. ‘So if you can’t get a remedy in Saudi Arabia then I think the responsibility falls to the UK.’
‘For lower ranking officials to be extant only because they were discharging public functions seems to me a dangerous set-back in the fight against torture’
Juan E Méndez
UN Special Rapporteur on Torture
University of Minnesota Professor of Law Robert Stein, Co-Chair of the IBA Rule of Law Action Group and former Executive Director of the American Bar Association, believes the decision was ‘very disappointing’. ‘While there is precedent to support the decision, there are contrary authorities, particularly in recent years, that would have supported a decision denying immunity, especially for individual defendants,’ he says.
Foreign state immunity was dealt a significant blow in 1999, when the House of Lords ruled that former Chilean dictator Augusto Pinochet could be prosecuted for acts of torture committed after the Convention came into force. However, this was a criminal, not civil, case.
For Méndez, the distinction between criminal and civil ‘may be important’ in a case like Pinochet because it was held under universal jurisdiction, which allows states to charge an individual with the most serious international crimes regardless of whether the defendant or crime has any connection with the state. Allowing civil suits under such jurisdiction may encourage people to ‘shop around for the country where they can seize assets’, he says.
However, no distinction should exist in the ECtHR case, Méndez asserts. Because the victims were British they should be permitted to sue under ‘passive personality’ jurisdiction, he argues, whereby states permit their own citizens to take legal action against foreign nationals for the most serious crimes.
Sir Geoffrey Bindman, founder of Bindmans law firm, which represents three of the four claimants, agrees that the ruling was incompatible with the CAT. ‘In Pinochet, the House of Lords decided there was no immunity for acts of a head of state after he’s ceased to be in office,’ he says. ‘That’s quite incompatible with the decision that even officials are covered by state immunity.’
There should also be no distinction between civil and criminal liability in either this case or Pinochet, Bindman argues. ‘The separation of civil and criminal is a false distinction. An anomaly,’ he says. ‘There isn’t the sharp distinction between the two in other countries as there is in the UK. Even in the UK it’s possible for judges to award damages in criminal cases.’
Bindman believes the ECtHR judges relied too heavily on its narrow nine-to-eight ruling in the 2001 Al-Adsani case, in which a dual Kuwaiti-British national was denied the right to sue the Kuwaiti Government for alleged acts of torture. In upholding state immunity, the majority found a distinction could be made between criminal proceedings and civil claims.
For Bindman, state immunity as a whole – for both heads of state and lower officials, and both civil and criminal claims – should ultimately be abolished. ‘The ECtHR hasn’t moved in line with modern thinking,’ he says. ‘Immunity is an outdated concept when it comes to breaches of major human rights.’
The claimants, Ron Jones, Alexander Mitchell, William Sampson and Leslie Walker, allege they were falsely imprisoned in Riyadh and subjected to ‘sustained and systematic torture’, including starvation, beatings and sleep deprivation. Medical reports support their claims. To-date, Saudi Arabia has offered no form of compensation.
In recent years, Sampson has died and Walker has fallen seriously ill. Bindman voices frustration at the delay – as well as at recent efforts to speed up proceedings, which may have contributed to the case being denied a final hearing before the Grand Chamber. ‘We have been a double victim,’ he says. ‘A victim of the pressure on the court from the number of cases and of the later attempts to reduce this pressure.’
The men are appealing for a fresh hearing before the Grand Chamber.