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Case of Jones and Others v. the United Kingdom (Eur. Ct. H.R.)

  • Chimène I. Keitner (a1)

Extract

In recent years, national and international courts have grappled with the questions of foreign state immunity and foreign official immunity from domestic jurisdiction over claims arising from human rights abuses committed under color of foreign law. Foreign state immunity involves the immunity ratione personae of the state as a juridical person, as well as that of the state’s agencies, instrumentalities, and political subdivisions. Foreign official immunity involves the immunity ratione personae of incumbent heads of state and diplomats, as well as the immunity ratione materiae of other current and former officials for acts performed in the scope of their official duties.

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* This text was reproduced and reformatted from the text available at the European Court of Human Rights website (visited June 18, 2014), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-140005

1 See, e.g., Chimène I. Keitner, Foreign Official Immunity and the “Baseline” Problem, 80 Fordham L. Rev. 605 (2011) (detailing judgments applying state immunity acts).

2 State Immunity Act, 1978, c. 33, § 1(1) (U.K.). The State Immunity Act does not apply to criminal proceedings, id. § 16(4).

3 Convention for the Protection of Human Rights and Fundamental Freedoms, art. 6, Nov. 4, 1950, E.T.S. No. 5, 213 U.N.T.S. 222 [hereinafter European Convention], available at http://www.echr.coe.int/Documents/Convention_ENG.pdf; Ronald Grant Jones v. The Ministry of the Interior Al-Mamlaka Al-Arabiya as Saudiya (The Kingdom of Saudi Arabia) & Anor. and Sandy Mitchell & Ors v. Ibrahim Al-Dali & Ors, [2004] EWCA (Civ) 1394, available at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1394.html.

4 Jones, [EWCA] (Civ) ¶¶ 82-83 (citing Al-Adsani v. The United Kingdom, App. No. 35763/97, 34 Eur. Ct. H.R. Rep. 11 (2001), available at http://hudoc.echr.coe.int).

5 European Convention, supra note 3, at art. 6.

6 Jones v. Ministry of Interior, [2006] UKHL 26, available at http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060614/jones.pdf.

7 Jones and Others v. The United Kindgdom, App. Nos. 34356/06 & 40528/06, Eur. Ct. H.R. (2014), available at http://hudoc.echr.coe.int (concurring opinion of Judge Bianku).

8 Id. ¶ 198.

9 Id.

10 Id. ¶ 202.

11 Id. ¶ 204.

12 See Jurisdictional Immunities of the State (Ger. v. It.), 2012 I.C.J. 99, 139 (Feb. 3) (finding that Germany was entitled to immunity for acts committed by its armed forces on Italian territory during World War II, but not addressing the application of immunity in criminal proceedings against an official of the State); Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, 25 (Feb. 14) (finding that an incumbent Minister for Foreign Affairs was entitled to immunity ratione personae from foreign criminal process during his term of office, but not defining the scope of a former official’s immunity ratione materiae).

13 Id. ¶ 210.

14 Jones and Others v. The United Kindgdom, App. Nos. 34356/06 & 40528/06, Eur. Ct. H.R. (2014), available at http://hudoc.echr.coe.int (Kalaydjieva, J., dissenting).

15 The House of Lords determined that Pinochet was not entitled to immunity ratione materiae from extradition proceedings for torture because the organization of state torture, as defined by the Convention Against Torture, could not be considered “part of his official functions as head of state.” Ex Parte Pinochet (No. 3), [2000] 1 A.C. 147 (H.L.) (appeal taken from Eng.) (Lord Browne-Wilkinson). On the effects of the Pinochet decision, see Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (2005); but cf. Ingrid B. Wuerth, Pinochet’s Legacy Reassessed, 106 Am. J. Int’l L. 731 (2012).

16 The United States Supreme Court has found that the Foreign Sovereign Immunities Act does not apply to proceedings against individual officials, whose immunity is governed by the common law and applicable treaties. See Yousuf v. Samantar, 130 S. Ct. 2278 (2010). Reflecting a different approach, the United Nations Convention on Jurisdictional Immunities of States and Their Property, which does not apply to criminal proceedings, defines the term “State” as including “representatives of the State acting in that capacity.” See United Nations Convention on Jurisdictional Immunities of States and Their Property, in G.A. Res. 59/38, Annex, art. 2(b)(iv), U.N. Doc A/RES/59/38 (Dec. 2, 2004) (not yet in force).

17 The Grand Chamber denied the request for referral in Jones on June 2, 2014.

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