The immunities of state officials in civil proceedings involving allegations of torture.

• Author: Mora, Paul David

I Introduction

State officials have no personal entitlement to jurisdictional immunities under international law. As immunities derive from the principle of sovereign equality (1) they are rights belonging to the State. Only the State may enter the plea of immunity or consent to being made the subject of foreign legal process by waiving this right. This is not to suggest that natural persons do not enjoy the benefits of immunity. To the contrary, monarchs and ambassadors were the original beneficiaries of immunity, and international law now recognises three regimes extending privileges to public officials indirectly. Individual officials enjoy State immunity when considered to be part of the State, or when named in proceedings affecting the interest of the State. In addition, individuals holding certain offices that embody the sovereign or represent it abroad in its foreign relations benefit from personal immunity. Finally, acts performed by representative agents carrying out official duties are subject to functional immunity. This article considers the immunities enjoyed by State officials in foreign proceedings seeking civil redress for torture. It explores the contributions made by a number of recent judicial decisions to the separate rules existing under each regime that indirectly confers immunities to State officials. The article also examines whether a State ratifying the UN Convention against Torture 1984 (CAT) (2) submits to the jurisdiction of another State and waives the right to plead immunity on behalf of its officials.

II State Immunity

1. The Extension of State Immunity to State Officials

   International law places restrictions on States seeking to use their national legal systems as a means to regulate the conduct of other States. State immunity bestows States with a right to not be made defendants in foreign legal proceedings. This benefit may be extended to public officials when they are considered to be part of the State, or when named in proceedings affecting the interest of the State.

   The definition of the 'State' contained in certain instruments codifying the law of State immunity recognises two broad categories of individuals who fall within the meaning of this term. Article 2(1) (b)(i) of the UN Convention on Jurisdictional Immunities of States and their Property 2004 (3) (UNCSI) considers the 'State' to include its various organs of government, such as the sovereign, head of State and head of government when acting in a public capacity. (4) These offices embody the State and the individuals who hold them are entitled to enjoy the same immunities as those of the State itself. The second category of natural persons receiving the benefits of State immunity are those who acts on behalf of the State. Proceedings brought directly against an individual for these acts 'are essentially proceedings against the State they represent'. (5) As such, article 2(l)(b)(iv) includes 'representatives of the State acting in that capacity' within the definition of the 'State' in the UNCSI. (6)

   The Canadian State Immunity Act 1985 (7) (CSIA) also confers State immunity to officials in both of these situations. Section 2(a) CSIA provides that sovereigns and heads of States acting in a public capacity are to be included in the definition of'foreign state'. In addition, section 2(b) CSIA includes 'government of the foreign state' within the meaning of this term. In Kazemi Estate v Islamic Republic of Iran, the Supreme Court of Canada held in a claim brought against three named officials and a foreign State seeking damages for torture committed abroad that it was unclear, on the plain wording of the Act, who was covered by this provision. (8) The Supreme Court of Canada addressed this uncertainty by interpreting the wording in light of its context, as well as the purpose of the CSIA. In relation to the named public officials the Supreme Court observed: '[t]he reality is that governmental decisions are carried out by a state's servants and agents. States are abstract entities that can only act through individuals'. (9) Moreover, when commenting on the purpose of the CSIA it identified that:

   [S]uing a government official in [a]... personal capacity for acts done while in government has many of the same effects as suing the state, effects that the [CSIA] seeks to avoid. Allowing civil claims against individual public officials would in effect require our courts to scrutinize other states' decision making as carried out by their public officials. (10) In light of these considerations the Supreme Court of Canada ruled that public officials, being necessary instruments of the State, fall within the meaning of'foreign state' and benefit from State immunity when acting in an official capacity. (11)

   The national legislation of the United Kingdom and Australia follow the same approach. The UK State Immunity Act 1978 (12) (UKSIA) considers the 'sovereign or head of that State in his public capacity' to fall within the meaning of the 'State', (13) and the Australian Foreign States Immunities Act 1985 (14) (AFSIA) similarly includes the 'head of a foreign State... in his or her public capacity' within the definition of the 'foreign State'. (15) The House of Lords declared on the immunity of public officials m Jones v Saudi Arabia that, 'as a matter of international law, the same immunity against suit in a foreign domestic court which protects the state itself also protects the individual for whom the state is responsible'. (16) The case concerned a civil action for torture allegedly perpetrated by named officials who were sued as agents of the foreign State. Their Lordships held that the term 'government' referred to as part of the definition of the 'State' in the UKSIA (17) included the conduct of individual representatives who acted in an official capacity. (18) The decision of the New South Wales Court of Appeal in Zhang v Zemin (19) construed an identical provision in the AFSIA (20) in this way.

   Not all of the national legislation codifying the law of State immunity considers public officials to fall within the meaning of the 'State'. The US Supreme Court held in Samantar v Yousuf that the US Foreign Sovereign Immunity Act 1976 (21) (FSIA) only placed the immunity of foreign States on a statutory footing and left the existing treatment of individual officials under the common law untouched. (22) This particular finding did not however mean that officials could not enjoy the benefits of State immunity, as the US Supreme Court did 'not doubt that in some circumstances the immunity of the foreign state extends to an individual for acts taken in his official capacity'. (23) According to the US Supreme Court, proceedings only initiated against an official may be dismissed under the FSIA where they impact upon the rights of an absent State. (24) Such 'actions against an official ... [are to be] treated as actions against the foreign state itself, as the state is the real party in interest'. (25) The dismissal of suit would take place 'regardless of whether the official is immune or not under the common law'. (26)

   An official who is extended the benefit of State immunity will enjoy the same privileges as those of the State. The scope of the privileges under State immunity are however not necessarily co-extensive with those established by the other regimes governing the immunities of State officials. Foreign officials are entitled to immunity in situations where the State itself is not. (27)

2. State Immunity in Civil Proceedings for Torture

   The doctrine of State immunity was once absolute and provided States with a complete exemption to foreign legal process. Practice over the twentieth century has led to the recognition of a restrictive doctrine where States now enjoy a. prima facie immunity from civil jurisdiction, subject to limited and well-recognised exceptions. (28) Immunity under the restrictive doctrine is only granted in respect of sovereign acts (acta de jure imperii). States remain amenable in civil suits involving acts performed in a commercial or private capacity (acta de jure gestionis).

   The Supreme Court of Canada considered in Kazemi whether foreign States enjoy immunity in civil proceedings involving allegations of torture. It found the CSIA to be a complete codification of the Canadian law on the immunities of the State from civil jurisdiction, (29) and that torture did not fall within one of the exceptions to immunity recognised by the CSIA. (30) This finding is consistent with the practice reviewed in the Jurisdictional Immunities of the Stat case, where the International Court of Justice (ICJ) concluded that there is no exception under customary international law to the jurisdictional immunities of the State in cases involving serious violations of human rights law (or the law of armed conflict) committed outside the territory of the forum State. (31) In addition, the Supreme Court rejected the suggestion that granting immunity to a foreign State in civil proceedings for torture would be inconsistent with a peremptory norm of international law. (32) Customary international law was held to have only bestowed the prohibition on torture with a peremptory status. (33) This prohibition neither created an exception to State immunity, nor required States to provide a civil remedy for violations committed abroad. (34) Once again, the conclusion drawn in Kazemi is consistent with those of the ICJ in the Jurisdictional Immunities of the State case. (35)

   This immunity enjoyed by the State is extended to officials named in proceedings brought before a legal system that define the 'State' to include representatives acting in an official capacity. (36) The reasons why international law considers torture to be an act performed in an official capacity are considered in detail below. (37)

   Ill Personal Immunity

1. Rationale and Beneficiaries

   Immunity ratione personae may be pleaded on behalf of individuals who...