This article considers whether the recent decision of the International Court of Justice in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) definitively draws the line under the question whether states enjoy jurisdictional immunity in cases involving allegations of human rights violations. The article first submits that the judgment is likely to foreclose the development of an exception to state immunity on the basis of the nature of the allegations alone. However, it argues that the Court’s rejection of the so-called ‘forum of last resort’ exception to immunity may not be determinative. Rather, such an exception may still emerge in national and international courts mandated to assess the impact of the lack of alternative means available to address a claim on the right of access to a court. The article concludes with an assessment of the impact of the judgment on the availability of immunity ratione materiae to individuals in such cases. It offers analysis as to why immunity ratione materiae can be considered separately from that of the state in civil proceedings and explores whether the recognition of individual civil responsibility in international law could form a basis for an exception to immunity ratione materiae.
In the most significant judgment to date on the relationship between state immunity and human rights, the International Court of Justice (ICJ) recently issued its decision in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening).1 Inter alia, the Court found that Italy infringed international law by denying Germany immunity from jurisdiction where violations of international human rights and humanitarian law were alleged.2 In doing so, the Court summarily rejected the four exceptions to jurisdictional immunity that Italy argued applied. Firstly, it found that the so-called ‘territorial tort’ exception did not extend to alleged torts committed by the ‘armed forces of a foreign State, and other organs of a State working in co-operation with those armed forces, in the course of conducting an armed conflict’.3 It then dismissed the remainder of Italy’s arguments that separately and cumulatively Germany did not enjoy jurisdictional immunity due to the gravity of the alleged violations;4 their status as violations of jus cogens or peremptory norms;5 and the lack of an alternative forum in which to present the claims.6 The Court also distinguished its decision from the immunity ratione materiae of foreign officials in criminal proceedings where allegations of human rights violations are made but failed to mention its relevance to civil proceedings despite ongoing litigation against foreign officials in this regard. In one of the first responses to the judgment, Andrea Bianchi surmised that ‘[a]t last we have certainty. After almost twenty years of heated debate … we now know. States cannot be sued for serious human rights violations before the municipal courts of another state’.7
This article considers whether the ICJ’s decision definitively draws the line under the question whether states enjoy jurisdictional immunity in cases involving allegations of human rights violations from three perspectives. In the first part, I examine the Court’s rejection of the widest formulation of an exception to state immunity based on the nature of the violations alleged. In this regard, I note that the ICJ’s reasoning is as thin as judgments rendered in national courts. However, its dismissal of the reasoning of the only two national courts to have considered that allegations of human rights violations provide an exception to state immunity renders the successful litigation of this point in the future unlikely.
Ultimately, however, the wide exception to state immunity does not strike at the main reason for lodging civil suits against foreign states in national courts. The majority of, if not all, suits involving allegations of human rights violations have been brought by nationals or residents of the forum state on an assessment that the courts of the state allegedly responsible were unavailable or inadequate. In Section 2, I address the so-called ‘forum of last resort’ exception and assess whether the ICJ’s rejection of this argument forecloses the potential for its successful employment in the future. In this respect, I suggest that an exception on this basis may still emerge within the jurisprudence of international human rights bodies that are mandated to consider the impact of any general rule of international law on the right of access to a court.
While the European Court of Human Rights (ECtHR) did not take the lack of an alternative forum into account when determining the proportionality of the restriction of immunity on access to a court in the Al-Adsani case, the Court was criticized for this failure. The criticism pointed in particular to other cases concerning parliamentary and international organizational immunity in which the lack of an alternative forum in which to present the complaint constituted a central factor in its finding of a violation of Article 6(1) of the European Convention on Human Rights (ECHR). Accordingly, in future cases, the ECtHR and other international tribunals with similar mandates may depart from the judgment of the ICJ judgment on this basis. I would suggest that this would be the most appropriate way for the law to develop in navigating the demands of traditional and contemporary international law. However it is, one that would benefit from treatment in hard or soft law instruments in addition to individual cases in order to flesh out the full meaning of alternative forums for dispute resolution and to guide national judiciaries in their application of this test.
Finally, I consider the Court’s distinction between its finding of state immunity and the availability of immunity ratione materiae to foreign officials in criminal proceedings. While only obiter dicta, Bianchi rightly predicts that, ‘[e]very single line of [the judgment] will be scrutinized and “gobbets” of it will be relied upon, often regardless of context and facts, as if they were incontestable truths’.8 In only distinguishing its decision from criminal proceedings against foreign officials, the risk arises that the judgment may be interpreted as extending to the immunity ratione materiae of foreign officials in civil proceedings. As a particularly live issue due to ongoing litigation on this point, I conclude this article by offering analysis as to why courts should not automatically assume that the state’s immunity would be circumvented in civil proceedings against state officials where the official would not enjoy immunity ratione materiae in criminal proceedings. I then explore whether the recognition of individual civil responsibility in international law could form a basis for an exception to immunity ratione materiae.
2. The Rejection of an Exception to Immunity Based on the Nature of the Allegations Alone
As set out in the introduction, the ICJ rejected Italy’s submission that an exception to state immunity derives from the gravity of the alleged violations and their status as jus cogens norms from which no derogation is permitted. The majority of, if not all, cases to precede the ICJ’s judgment have raised the question whether the nature of the allegations alone permits the denial of state immunity as a central aspect of the litigation. As discussed below, the formulation of this argument varies,9 with the ICJ separating it into an exception based on the gravity of the allegations and an exception based on allegations of violations of jus cogens norms. While the ICJ offers thin reasoning and fails to engage with the range of theories advanced for a wide exception to state immunity on these grounds, in this section, I suggest that its finding most likely forecloses the successful litigation of such an exception in the future.
As I have discussed elsewhere, prior to the ICJ’s decision, national courts were broadly split on the significance of the nature of allegations to immunity determinations.10 On one side, the courts of dualist states rejected the argument due to the lack of an explicit jus cogens or human rights exception within their national legislation, providing for a general rule of immunity subject to specific exceptions. Until Jones v. Saudi Arabia, these courts usually dismissed the argument through statutory construction rather than by engaging in a detailed examination of the relevance of international law.11 While the decision in Jones still focused heavily on statutory construction, Lords Bingham and Hoffmann considered the relevant international law on the issue more closely. In particular, they found that jus cogens norms do not prevail over state immunity in international law. Quoting Lady Fox, Lord Bingham noted that, ‘[s]tate immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement’.12
On the other side, the courts of Greece and Italy — both of which do not have national legislation on state immunity — were persuaded by arguments focused on the nature of the allegations and consequently found that international law permitted an exception to state immunity although on different grounds. In Prefecture of Voiotia v. Federal Republic of Germany,13 the Greek Areios Pagos found that allegations of violations of jus cogens norms prevailed over state immunity in international law through an implied waiver. By contrast, in the Ferrini case,14 the Italian Court of Cassation reached the same conclusion through a systematic interpretation of international law which would prioritize ‘hierarchically superior norms’, i.e. jus cogens, because in this case, recognizing immunity ‘would hinder the protection of values whose safeguard is to be considered … essential to the whole international community’.15
None of the courts on either side of the divide offered detailed international legal analysis of the issues at stake. In validating one side, the ICJ similarly provided little reasoning other than replicating the finding of the House of Lords in the UK that no conflict exists between state immunity and jus cogens norms as the ‘two sets of rules address different matters’,16 and identifying a sequencing difficulty arising from the projected exception in that it would require the determination whether the allegation had actually taken place, thus touching on the merits of the claim, in order to decide upon the Court’s jurisdiction.17 Rather, the ICJ mainly carried out a numerical weighing of the number of national decisions in which immunity was upheld and denied in order to reach its conclusion.18 The ICJ thus appeared to consider the quantification of state practice sufficient to identify customary international law rather than also requiring opinio juris with the implication that when state practice is so ‘widespread, consistent’ that ‘one may infer a belief that the practice is required or permitted by law’ the need for opinio juris is dispensed with.19
While the decision can be critiqued from this perspective, two factors render it unlikely that national or international courts will depart from the ICJ’s conclusion. First, the Court explicitly dismissed the reasoning of the Italian courts and was not persuaded by the intervention of Greece as the only other state in which the judiciary had upheld an exception to state immunity based on the nature of the allegations alone. It therefore seems unlikely that any court will seek to resurrect the exception or admit it on a differently fashioned theory not addressed by the ICJ. While there is no formal hierarchy between international institutions,20 the ICJ is often characterized as positioned at the apex,21 and in practice, its jurisprudence is typically given considerable weight by other judicial bodies.22 As noted by Jonathan Charney, ‘[t]he fact is that the ICJ has a caché that makes its pronouncements on questions of general international law particularly significant’.23 Second and interrelated, in the past, national judiciaries have led the expansion of the restrictive doctrine of immunity with regard to the commercial exception in particular,24 thus demonstrating their capacity for law creation. However, in relation to human rights, with the exception of the Greek and Italian courts, national courts have indicated little willingness to act as anything other than enforcers of a traditional reading of international law.25 Moreover, policy concerns, such as the potential that certain national courts could be overburdened with claims against foreign states because of the perception that they would issue high damages awards and that interstate relations may be harmed as a result, may also inhibit the future development of the law in this area. Accordingly, this aspect of the judgment appears to provide the certainty referenced in the introduction by foreclosing the future judicial success of a wide exception to state immunity in the absence of new state practice or the adoption of a human rights protocol to the 2004 United Nations Convention on the Jurisdictional Immunities of States and Their Property.
3. The Rejection of the Forum of Last Resort Exception
For the purposes of the case before the ICJ and the majority of, if not all, cases alleging human rights violations in which the immunity of the state has been challenged, the wide exception to state immunity discussed in the previous section has not actually been needed. Indeed, in Germany v. Italy, Italy did not rely on an exception based on the nature of alleged violations alone. Rather, it advanced a more nuanced and narrower reading of the relationship between state immunity and human rights, noting that:
Nevertheless the dispute on the existence and scope of the concept of jus cogens during the Second World War seems, in the case under discussion, a quite sterile one. The problem in fact is not how the violations committed by Germany were to be qualified at that time. The problem is whether the absolute denial of access to justice, and the denial of any form of reparation, to victims of behaviours that were unquestionably forbidden by customary international law when they were committed, and unquestionably constitute violations of jus cogens today, is compatible with the contemporary concept of jus cogens.26
The ICJ dismissed this purported exception, according it even less attention than an exception based on the nature of the allegations alone.27 In particular, it found that no state practice supported the contention that ‘the entitlement of a State to immunity [is] dependent upon the existence of effective alternative means of securing redress’,28 highlighting that it was ‘not unaware that the immunity … may preclude judicial redress for the Italian nationals concerned’.29 The Court also rejected the argument that the combination of the ‘gravity of the violations, the status of the rules violated and the absence of alternative means of redress’ justified the denial of immunity, by again referencing a lack of state practice on this point.30 Equally, as discussed below, it also appeared to suggest that victims might still receive a form of reparation through a possible interstate settlement by noting that the claims ‘could be the subject of further negotiation involving the two States concerned, with a view to resolving the issue’.31
An exception based on a denial of access to a court is a newer argument that has not been rehearsed in national courts as frequently as the wide exception to state immunity derived from the nature of the allegations alone. It is in keeping with the general tenor of international law which preferences the resolution of disputes against a state in its own courts and thus aligns with the spirit of the principle of exhaustion of local remedies by affording states the opportunity to resolve claims internally.32 Only where states negate to take up this opportunity or fail to provide adequate remedies to adjudicate such claims would an exception to state immunity apply. Framed in this light, the exception to state immunity acts as a pressure point on states to ensure the availability and adequacy of remedies in the state allegedly responsible,33 as well as minimizing opportunities for forum shopping.
This exception also focuses much more centrally on the underlying reason and motivation for bringing suits in foreign courts in the first place. In the majority of cases, individuals institute claims of alleged human rights violations or international crimes in their state of nationality or residence, having assessed that the courts of the state allegedly responsible are unavailable and that their state of nationality will not espouse the claim by way of diplomatic protection. Accordingly, the suits are generally brought because no alternative exists. Thus, as Micaela Frulli points out, where ‘state immunity totally deprives the claimants of their rights, it is appropriate to search for a residual solution for at least those cases’.34
At a technical level, the exception aligns with the nature of immunity as a procedural rule in that it does not require a determination of the veracity of the allegations, which should only be considered on the merits and, not as part of an assessment of the court’s jurisdiction. Dapo Akande and Sangeeta Shah note, ‘this bears repeating over and over again, the granting of immunity is not a statement that an act is lawful. Rather, it is a declaration by the judicial authority concerned that it is not the appropriate forum for pronouncing on the legality or illegality of the act’.35 As noted above, a forum of last resort exception responds to the contention that state immunity, as a procedural rule, merely diverts the claim to an alternative form of settlement,36 by preserving its application where such diversion is meaningful but preventing immunity from denying victims the right to have their claim resolved where no alternative forum exists.
Before the ICJ, three judges voiced their support for an exception to state immunity based on the forum of last resort.37 For example, while agreeing with the decision of the majority, in his separate opinion, Judge Bennouna noted that ‘when it arises in connection with international crimes … the question of jurisdictional immunity raises fundamental ethical and juridical problems for the international community as a whole, which cannot be evaded simply by characterizing immunity as a simple matter of procedure’.38 He therefore advocated a narrow exception to state immunity ‘when a State presumed to be the author of unlawful acts rejects any engagement of its responsibility, in whatever form’ thus enabling the individuals concerned to exercise their right to ‘access to justice in their own country’.39 He concluded that such an approach would strike ‘an equal balance between State sovereignties and the considerations of justice and equity operating within such sovereignties. The Westphalian concept of sovereignty is thus gradually receding, as the individual takes centre stage in the international legal system’.40 Similarly, Judge Yusuf criticized the Court for ‘substantially overlook[ing], if not completely sidelin[ing]’41 this aspect of the case which he considered ‘fundamental’ to the dispute.42 He noted that ‘immunity should not be an obstacle to such reparation in those exceptional circumstances where no other means of redress is available. This is a very limited exception to immunity bounded by the special circumstances arising from the lack of other remedial avenues for the victims’.43
However, the ICJ’s framing of international law as requiring the provision of state immunity, regardless of the relevance of other international legal principles renders it difficult to take the lack of an alternative forum for dispute resolution into account.44 This section therefore considers whether the law of state immunity may continue to develop towards the recognition of a forum of last resort exception in judicial forums as well as hard and soft law instruments.
A. The Continuing Judicial Relevance of a Forum of Last Resort Exception
As set out in the introduction, to date, the ECtHR is the only international tribunal that has been called upon to determine the applicability of state immunity where it would result in a denial of the right of access to a court. In Al-Adsani v. United Kingdom, the ECtHR rejected the respondent state’s submission that Article 6(1) ECHR, which provides a right of access to a court, did not apply to ‘matters outside the State’s jurisdiction’ and ‘as international law required an immunity in the present case, the facts fell outside the jurisdiction of the national courts and, consequently, Article 6’.45 Rather, it found that,
it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 — namely that civil claims must be capable of being submitted to a judge for adjudication — if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons. ... It notes that an action against a State is not barred in limine: if the defendant State waives immunity, the action will proceed to a hearing and judgment. The grant of immunity is to be seen not as qualifying a substantive right but as a procedural bar on the national courts’ power to determine the right.46
This framework therefore differs from the ICJ’s characterization of state immunity as it enables other relevant principles to be taken into account. Accordingly, pursuant to the ECtHR’s interpretation of restrictions on the right of access to a court under Article 6(1) ECHR, once it determined that Article 6(1) was engaged,47 the Court then had to determine whether the restriction imposed on the right of access to a court by immunity pursued a legitimate aim and was proportionate to the aim pursued. In this case, the Court upheld the domestic court’s provision of state immunity on the basis that it pursued the legitimate aim of ‘complying with international law to promote comity and good relations between States through the respect of another State’s sovereignty’.48
However, despite the ECtHR’s recognition that limitations on the right of access to a court should not impair ‘the very essence of the right’,49 it did not consider whether the lack of reasonable alternative means to resolve the dispute rendered the restriction disproportionate to the aim pursued. This omission has been criticized by commentators to the case,50 particularly in light of its departure from earlier jurisprudence on parliamentary and international organizational immunity. In these cases, the ECtHR found that the restriction of immunity violated Article 6(1) where it effectively rendered the right of access to a court theoretical, ineffective or illusory, with the lack of reasonable alternative means to resolve the dispute constituting a significant factor in the decision.51 National courts have also rejected claims by international organizations to immunity where it would result in a denial of access to justice.52 However, in the recent Mothers of Srebrenica case, the ICJ’s judgment featured prominently in the Dutch Supreme Court’s rejection of an exception to the immunity of international organizations based on the gravity of the allegations.53 The Court noted the difference in the types of immunity at stake but dismissed the relevance for this purpose, noting that:
Although UN immunity should be distinguished from State immunity, the difference is not such as to justify ruling on the relationship between the former and the right of access to the courts in a way that differs from the ICJ’s decision on the relationship between State immunity and the right of access to the courts. The UN is entitled to immunity regardless of the extreme seriousness of the accusations on which the Association et al. base their claims.54
While the ICJ’s decision on the relevance of the gravity of the allegations appeared to be most instructive to the Dutch Supreme Court, it also referenced the rejection of an exception based on a lack of reasonable alternative means of dispute resolution.55 The cross-fertilization between the immunities of states and the immunities of international organizations in this case raises the question whether the ICJ decision will have a negative impact on the trend to deny international organizations immunity where no reasonable alternative to access justice exists.
Nevertheless, provided the ECtHR maintains its position that Article 6(1) ECHR is engaged, in future cases it may have to address the question of proportionality more closely.56 Where no alternative means to resolve the dispute exist, the Court will therefore be faced with the dilemma: it will either have to acknowledge that the right of access to a court is ineffective, theoretical and illusory which is contrary to its own jurisprudence or it will have to find that while, as far as possible, it must interpret its Convention in line with international law, in cases of clear conflict, the specific Convention requirements override general international law.57 If the Court adopts the latter approach, the law on state immunity and human rights may therefore continue to develop through this narrower exception. While the ECtHR is the only international human rights tribunal to have been seized of the question of the relationship between human rights and state immunity to date,58 a similar result may emerge from other international human rights bodies with provisions on access to a court or an effective procedural remedy,59 if presented with such cases.
A similar argument has been advanced in the Canadian courts on constitutional grounds that the application of the Canadian State Immunity Act to foreign states and their officials in cases in which torture is alleged would constitute ‘a bar to their fundamental right to be heard by an independent tribunal’.60 In the ongoing litigation in Kazemi v. Iran, in which the estate of a Canadian citizen allegedly tortured and killed in Iran and her son have sued the state of Iran and certain named officials, the plaintiffs have argued that ‘it is impossible for them to enjoy procedural fairness and obtain a fair hearing in Iran’ thus rendering the Canadian courts the appropriate forum in which to hear the claim.61 The Quebec Court of First Instance found that the right to obtain a fair hearing can only apply where such a right exists in the first place but that the State Immunity Act ‘eliminates any jurisdictional power of a Canadian court to hear and decide over a civil recourse involving a foreign state’.62 However, this finding has been challenged on appeal. If successfully pleaded, again this argument may continue to carve out an exception to state immunity where constitutional law allows, particularly in states in which the plaintiffs are nationals or enjoy refugee status.
B. The Contribution of Hard and Soft Law Instruments to Guiding National Judiciaries
Even if the forum of last resort exception is recognized judicially, the challenges associated with its application may favour the adoption of a hard or soft law instrument to flesh out how national judiciaries should assess the availability of alternative avenues for dispute resolution.63 In the cases in which the ECtHR has applied a ‘reasonable alternative means’ test in relation to other types of immunity, Cedric Ryngaert submits that it has not always provided national judiciaries with sufficient guidance on how to determine the availability and quality of the alternative means of dispute resolution. He thus points out that, ‘[c]urrently … it is not so much a question of whether a “reasonable alternative means” test ought to be performed, but rather of how this test should actually be conducted’.64 Accordingly, a deeper consideration of how the test would work in practice would likely reduce the potential for error and provide more assurances to national judiciaries that are traditionally reluctant to examine the practices of peers in other countries.65
The exhaustion of local remedies test demonstrates the challenges associated with assessing the availability of other avenues for dispute resolution (judicial and non-judicial) that would allow for the application of a forum of last resort exception. Martin Scheinin observes that the exhaustion of local remedies rule is ‘more an art than a science. The practical application of the requirement of domestic remedies is one of the most unpredictable issues in international human rights litigation’.66 This is because courts not only have to identify whether local remedies are formally available but also their adequacy and whether other legal, political and practical barriers impede access to justice in practice, such as threats to litigants, their lawyers and witnesses. The operation of a similar rule horizontally between national judiciaries would likely pose greater challenges and would therefore require careful consideration, including determining which party would bear the burden of establishing the availability of an alternative forum of dispute resolution.
The elaboration of the test would also necessitate consideration of whether non-judicial means of dispute resolution would factor in the application of the forum of last resort exception. Of particular note are the relevance of diplomatic protection and negotiated settlements between states.67 In Al-Adsani, the government of the UK submitted that the applicant was not left without a remedy due to the continuing possibility of ‘diplomatic representations or an inter-State claim’.68 In his separate opinion in Germany v. Italy, Judge Bennouna also appeared to consider diplomatic protection to constitute a potential alternative remedy, noting that diplomatic protection ‘represents the last resort or ultima ratio for the protection of internationally guaranteed human rights’.69 However, as I have discussed elsewhere, diplomatic protection does not currently constitute a right in international law but is rather a discretionary remedy of the state concerned.70 Accordingly, closer consideration of exactly how diplomatic protection could factor into the assessment whether the forum of last resort exception applied would be necessary. For example, this might require an affirmative statement by the state of nationality that it would espouse the claim prior to litigation in a foreign national court and the freezing of any statutes of limitations in order to permit the alleged victim to reinstate the claim, if such a commitment was not honoured subsequently.
Similarly, as noted above, while rejecting the relevance of the reasonable alternative means test, the ICJ majority also appeared to suggest that the victims in this case were not left without a non-judicial remedy, at least, due the possibility of an interstate settlement. Like diplomatic protection, this projected solution suffers from similar deficiencies in that the alleged victim has no control over whether a negotiated settlement will be pursued or achieved; whether any terms agreed will be favourable or comply with international human rights law; and whether any resulting reparation, including financial settlement, will be paid to the state or individual as the victim. Again, therefore, a clearer picture of how the pursuit of a negotiated settlement could substitute for the right of access to a court would be required, including if the negotiations were to breakdown or fail.
In sum, the ICJ’s rejection of a forum of last resort exception appears less stable legally and normatively than the rejection of the wide exception to state immunity based on the nature of the allegations alone. Rather than affirmatively foreclose the applicability of this exception, the law may continue to develop along these lines. I would suggest that this would reflect an appropriate mediation of the different interests at stake but one which requires greater scrutiny as to how it would operate in practice.
4. The Distinction between State Immunity and Immunity Ratione materiae in Civil Proceedings
Finally, the Court made two comments in obiter dicta which while innocuous on their face may have significant implications for the development of the law on the immunity ratione materiae of foreign officials in civil suits involving alleged human rights violations. First, the Court distinguished the House of Lords’ decision in Pinochet on the grounds that it ‘concerned the immunity of a former Head of State from the criminal jurisdiction of another State’, referencing the ‘distinction between criminal and civil proceedings as “fundamental to [its] decision” ’ and the ‘rationale for the judgment in Pinochet [as] based upon the specific language of the 1984 United Nations Convention against Torture, which has no bearing on the present case’.71 The Court later noted that ‘it is addressing only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State is not in issue in the present case’.72
This distinction is significant because, since the House of Lords’ decision in Pinochet, it has been increasingly recognized that foreign state officials do not enjoy immunity ratione materiae where certain allegations of human rights violations are made, even if carried out in an official capacity and where the state itself enjoys immunity.73 The obiter dicta may therefore be read to affirm this development in international law by ensuring that its decision upholding the immunity of the state is not read to cover immunity ratione materiae in criminal proceedings. Conversely, the Court’s failure to mention immunity ratione materiae in civil proceedings may be read to imply that the decision extends to such assertions of immunity which, as discussed below, is the position that has been taken by the courts of England and Wales. In this final section, therefore, I consider the persuasiveness of the extension of state immunity to immunity ratione materiae in civil proceedings, where it is not available in criminal cases.
A. The Emergence of an Exception to Immunity Ratione materiae in Criminal Proceedings
As a general matter, immunity ratione materiae covers the acts of foreign officials when carried out in an official capacity and endures even once the official has left office. On one theory, immunity ratione materiae is provided to state officials as states can only act through their officials. Traditionally, therefore, where officials act as the state they are considered to bear no separate responsibility in international law,74 but rather are viewed as ‘mere instruments of the state’,75 with the result that ‘a suit against an individual acting in his official capacity is the practical equivalent of a suit against the sovereign directly’.76 An alternative theory does not focus on the exclusive responsibility of the state but rather contends that only the state can be held responsible at the international level. As noted by André Nollkaemper, in traditional international law, the ‘[r]esponsibility of individuals is a matter of national, not international law. … Remedies fall on the state, not on individuals whose acts triggered state responsibility. Sanctions on individuals are left to national law’.77 Under both theories, officials are accorded immunity ratione materiae for acts carried out in an official capacity in order to protect the state from suits against it abroad when it would otherwise enjoy immunity. Thus, any suit against an official is considered to circumvent the immunity of the state,78 and the purpose of immunity ratione materiae is to ‘ensure that the proper defendant was before the court’.79
As noted above, an exception to this general proposition has developed in relation to certain international crimes.80 Thus, as referenced by the ICJ, in Pinochet the House of Lords found that a former head of state did not enjoy immunity ratione materiae from criminal proceedings where torture was alleged,81 even though seven years later the same court found that a foreign state was entitled to jurisdictional immunity where torture was alleged.82 In Pinochet, the law lords reached the same conclusion but split in the reasoning they employed to reach the result. Some of the judges found that the duty to prosecute as required by the terms of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment could not logically coexist with immunity ratione materiae.83 Others reached the same conclusion on the basis of individual criminal responsibility under international law, citing Sir Arthur Watts’ proposition that:
For international conduct which is so serious as to be tainted with criminality to be regarded as attributable only to the impersonal state and not to the individuals who ordered it or perpetrated it is both unrealistic and offensive to common notions of justice. The idea that individuals who commit international crimes are internationally accountable has now become an accepted part of our law.84
The question that arises from these findings is whether the exception to immunity ratione materiae is exclusive to criminal proceedings or applies in any proceedings arising out of the international crime alleged. Courts have not explored this question. Rather in civil proceedings they have tended to revert to the traditional construction of immunity ratione materiae without considering the developments in the criminal sphere and their relevance in any detail. Indeed, the most that can be derived from the jurisprudence is the assertion that states are not impleaded in criminal proceedings, as states cannot be criminally prosecuted under current international law.85 However, this provides an unsatisfactory explanation as to how states are concretely impleaded in civil suits concerning allegations of the same human rights violations or why immunity ratione materiae should continue to apply in civil proceedings if it is no longer available in criminal cases. This is even more the case because, as Frulli points out, ‘a similar situation cannot occur in most civil law countries, where the adhesion procedures (constitution de partie civile) allows the victims to apply for compensation in conjunction with the criminal proceedings’.86 Citing the Milde case, in which an order of compensation was made alongside the conviction in absentia of Max Josef Milde, she argues that the adhesion process prevents separate decisions on immunity based on the type of proceeding concerned. I would suggest that now that immunity ratione materiae is denied in criminal cases in common law countries and in civil law countries through the adhesion process, courts need to more fully consider its continuing applicability in civil proceedings that are brought independently of criminal proceedings or are not joined with them.
B. The Possibility of Individual Civil Responsibility under International Law
In contrast to criminal proceedings, civil suits against officials have been treated with circumspection on the view that they may only be lodged because the state — with deep pockets — cannot be reached due to the principle of state immunity and that the official unfairly bears the brunt of the barriers created by international law.87 A different way in which to look at this issue, however, might be to recognize that, but for state immunity, many individuals might seek to sue both the state and any responsible officials for alleged human rights violations as a means to hold them responsible concurrently.88 Factually, where civil suits have been lodged for alleged human rights violations, they have been brought against the foreign official’s personal assets thus suggesting that they were motivated by the personal responsibility of the official, separately from the responsibility of the state. In recognition of this characterization of civil suits, in Jones, Lord Phillips departed from his previous opinion in Pinochet that states would be impleaded in civil but not criminal proceedings against (former) officials where torture was alleged. He therefore concluded that in civil proceedings, as in criminal, ‘[i]t is the personal responsibility of the individuals, not that of the state, which is in issue’.89
Notwithstanding this rationale, the difficulty that arises in civil proceedings is that international law does not provide as clear a premise on which to base claims directed at the personal responsibility of the foreign official for acts carried out in an official capacity and therefore also attributable to the state. The lack of this clear premise may account for courts’ reversion to the traditional international law justification of the impleading of the state when extending immunity ratione materiae to foreign state officials in civil but not criminal proceedings.
Returning to the two lines of reasoning advanced in Pinochet, the first rationale was that immunity could not logically coexist with the treaty obligation to prosecute claims of torture. In the civil sphere, there is more ambivalence whether the jurisdiction of the forum state’s courts is obligatory or permissive only. The claim that it is obligatory,90 has recently been supported by the United Nations Committee against Torture in its concluding observations on Canada’s state party report in which it found that: ‘The State party should ensure that all victims of torture are able to access remedy and obtain redress, wherever acts of torture occurred and regardless of the nationality of the perpetrator or victim. In this regard, it should consider amending the State Immunity Act to remove obstacles to redress for all victims of torture’.91 Alternatively, others have submitted that there is no equivalent to the duty to prosecute in the civil sphere; the most that can be identified is the permissive exercise of universal civil jurisdiction over certain alleged international wrongs such as torture.92
Establishing that the courts of the forum state can adjudicate extraterritorial claims of torture is necessary as immunity constitutes an exception to the jurisdiction of the forum state.93 It is not sufficient, however, to deny a claim of immunity ratione materiae by a foreign state official because it does not establish the jurisdiction of the forum state’s court over the official. Thus, the second rationale for the provision of immunity ratione materiae to foreign state officials, namely, that only the state can be held responsible at the international level, also has to be overcome. International law clearly recognizes the principle of individual responsibility concurrently with the responsibility of the state. However, as Steven Ratner and Jason Abrams point out, international law traditionally expresses individual responsibility as criminal in nature, explaining that individual responsibility ‘concerns a target of responsibility for human rights atrocities’ whereas criminal responsibility ‘addresses the nature of the responsibility’.94 Accordingly, the question that requires resolution is whether international law recognizes individual civil responsibility so as to overcome the rationale for the provision of immunity ratione materiae in civil but not criminal proceedings on the grounds that only the state can be held responsible at the international level.
A positivist account of international law would prevent any cross-fertilization of developments in the criminal sphere to civil proceedings against foreign officials and would thus preserve the distinction between the availability of immunity ratione materiae in civil and criminal proceedings even if it does not capture the object and purpose of the suit. In this respect, the submission that the immunity of the state would be circumvented in civil but not criminal proceedings against an official operates more as a traditional default position rather than containing any meaningful content. This is particularly the case if the assets of the state are not targeted and no other concrete argument can be advanced to demonstrate that the state would be the proper defendant in the suit.95
An alternative — and in my view, better — framing might be to acknowledge the emergence of a gap in international law. This gap arises from the piercing of the traditional rationales for the provision of immunity ratione materiae (that immunity ratione materiae covers acts that can be exclusively attributed to the state and the responsibility of the individual cannot be addressed at the international level) by the developments in the criminal sphere, but at the same time, the persistent lack of clarity of how they apply in civil proceedings that are unconnected to any criminal proceedings. While individual responsibility has generally been expressed in criminal terms, scholars submit that no principled reason exists why it cannot extend to the civil sphere also,96 particularly as this distinction has already been overcome in practice in civil law countries through the adhesion process. Although, as Andrew Clapham concedes, it is a progressive proposal:
Or, to put this in terms of the role of the individual in international law, is it not time to admit that, not only do individuals have international rights and criminal law obligations, but perhaps they also have civil law international obligations? This is admittedly a progressive idea. The International Law Commission … has been quite cryptic about this idea but has left the door open for its promotion … . If we do not want the development of international law to stagnate we should perhaps admit the progressive idea that individuals have, in addition to these rights and criminal law obligations, certain international civil law obligations; this step could help to build an international community which properly recognizes the role of the individual in international law.97
Where a gap emerges, Rosalyn Higgins has argued that ‘unless international law was to remain in a rudimentary state the judicial function must include “developing and applying international law to hitherto untested situations” ’.98 If courts are prepared to fill this gap first by affirming a fuller form of individual responsibility under international law, it would logically follow that immunity ratione materiae could not coexist with such recognition. It would therefore appear difficult to sustain the argument that immunity ratione materiae could continue to apply in civil proceedings expressly aimed at achieving the personal accountability of the official, particularly where it has already been removed in criminal proceedings and civil proceedings brought in the course of a criminal action. Indeed, in 2009, the Institut de Droit International adopted a resolution on the immunity of foreign state officials that assumed a unitary approach to individual responsibility. The resolution provides that, ‘[n]o immunity from jurisdiction other than personal immunity in accordance with international law applies with regard to international crimes’.99 The resolution defined jurisdiction as the criminal, civil and administrative jurisdiction of national courts of one state as it relates to the immunity of another state or its agents conferred by treaties or customary international law,100 and international crimes as ‘serious crimes under international law such as genocide, crimes against humanity, torture and war crimes’.101 It also underscored that the removal of the subject matter immunity of the individual did not affect the attribution of the conduct to the state, thus suggesting the possibility of dual attribution regardless of the type of proceedings.102 Accordingly, the law may be moving in this direction and in the absence of a strong counterargument courts may be in the position to contribute to this development by filling in the emergent gap.
5. Concluding Remarks
Returning to the question posed at the outset of this article, the decision in Germany v. Italy provides the definitive pronouncement on the relationship between state immunity and alleged human rights violations under general international law. Notwithstanding the immediate certainty produced by this judgment, its longevity is potentially challenged by two aspects of contemporary international law. Firstly, the lex specialis of international (quasi) judicial institutions with a human rights mandate to consider the impact of general international law on the specific right of access to a court or the right to a procedural remedy may result in a divergence from state immunity where no alternative forum for dispute resolution exists. Secondly, the burgeoning of an expansive view of individual responsibility of international law may foreclose the extension of the judgment to immunity ratione materiae in civil proceedings where it would be denied in criminal proceedings arising out of the same alleged human rights violations. Accordingly, the significance of the judgment reaches beyond predictions on the future for state immunity to the structure, subjects and systems of international law as a whole.