House of Lords Decision Today in Sampson State Immunity Case
The House of Lords today allowed an appeal by the Kingdom of Saudi Arabia against a Court of Appeal decision in October 2004 allowing four men (including Canadian William Sampson) who claim that they were tortured in Saudi Arabian prisons to sue for damages. The kingdom, backed by the UK Government, had argued that its officials were protected by the 1978 State Immunity Act from proceedings brought in Britain.
This was the first time that the Lords had considered whether a foreign country could claim state immunity over civil proceedings brought against its officials for damages for personal injuries caused by alleged torture.
Lord Bingham said that the the issue at the heart of the case was the relationship between two principles of international law. One was that a sovereign state will not assert its judicial authority over another; the second, and more recent, principle was one that condemned and criminalised the official practice of torture, required states to suppress the practice and provided for the trial and punishment of officials found guilty of it. To establish their right to sue, the four claimants had to show that the grant of immunity to the Saudi defendants under the 1978 Act would be disproportionate and inconsistent with normal international law. This they had failed to do.
Lord Hoffmann was sympathetic to the four men but said that international law was based upon the common consent of nations. “It is not for a national court to develop international law by unilaterally adopting a version of that law which, however desirable, forward-looking and reflective of values it may be, is simply not accepted by other states,” he said.
The plaintiffs have said that they will take Britain to the European Court of Human Rights after the law lords ruled they could not sue their alleged torturers.
Strong negative reaction to the judgment reported at http://www.guardian.co.uk/uklatest/story/0,,-5886241,00.html
Simon,
I’m curious as to your own reaction. I read the decision yesterday and thought that while it was legally defensible on a conservative, narrow reading of the law of state immunity, I couldn’t help feeling disappointed that the court did not take the initiative to push the boundaries of customary international law. Courts created an exception to state immunity for commercial activity; to create one for torture, by contrast, would appear to be a much less revolutionary innovation.
The court relied heavily on the decisions of the Ontario Superior Court and Court of Appeal in Bouzari v. Iran. The factum of Canadian Lawyers for International Human Rights, which intervened before the CA in Bouzari, has an excellent presentation of the jus cogens argument that, unfortunately, found no favour either in Canada or in the UK: the factum can be accessed at http://www.claihr.org/claihr_new/Factum.DOC.
Alex
My feeling is that the Lords went as far out in the issue of foreign torture and the extension of national jurisdiction over crimes abroad as they are likely to go in some of the statements in the Pinochet case (Regina v. Bartle) at http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm.
Frankly, I think they would be much more comfortable if Parliament took the lead in endorsing universal jurisdiction over torture: see generally the Amnesty Report at http://www.amnesty.org/resources/pdf/combating_torture/sections/section7-5.pdf and the discussion of the so-called Head of State immunity at http://law.ateneo.edu/PIL%20Readings/23.%20Akande,%20IL%20Immunities%20and%20ICC.html and http://www.ejil.org/journal/Vol13/No4/130853.pdf. It’s not the English way.
And there is realpolitik at play here too. And I don’t simply mean Saudi oil. Given the resistance of the Bush/Cheney administration to the idea of an International Criminal Court, I can’t see the Blair Cabinet sticking its head out on these issues.
Ultimately the conservative view of state immunity was safer.
If you want to see what a court might do the best example is the Spanish law – see in addition to the judgments of the Constitutional Court, the decisions of the Audiencia Nacional in Pinochet, Scilingo at http://www.boe.es/g/es/bases_datos_tc/doc.php?coleccion=tc&id=SENTENCIA-2001-0169 and commentary at http://criminet.ugr.es/recpc/07/recpc07-r1.pdf and Fidel Castro.
But the Spanish doctrine also appears to have been much more in favour of a strong claim in favour of torture victims – see http://www.uclm.es/profesorado/asanchez/webdih/03Materiales/ART%C3%8DCULOSPYBIL.doc.
If you had told me thirty years ago that the Spanish courts would be in the lead on these issues, I would have thought the notion preposterous. But the Spanish constitutional evolution is fascinating.