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The contribution of national courts to the international law on state immunity from civil jurisdiction: Vojotia, Jones and the Mothers of Srebrenica case

By Birgit Peters, Associate Editor, ILDC, Universität Rostock 

The customary international law on individual and state immunity from jurisdiction for serious international crimes largely developed by the decisions of national courts. In 1998, the Pinochet cases before the British House of Lords (now: Supreme Court), or the Spanish Audiencia Nacional and other judgments quickly set the standard for cases concerning criminal jurisdiction. They confirmed the rule that former heads of states and high ranking state officials could be subject to individual criminal jurisdiction for grave international crimes committed during their term of office. However, those judgments contributed only to the formation of the customary rule that former heads of states could be prosecuted before national criminal courts for serious crimes committed during office. As later affirmed by the International Court of Justice (ICJ) in Belgium v. Congo, incumbent heads of states and high ranking state officials, such as foreign ministers, could not be individually prosecuted at national levels while still in office. This was notwithstanding their criminal prosecution at the international level, as also provided by article 27 (2) of the Rome Statute of the International Criminal Court.

After this first wave of judgements had defined the customary rules on immunities from individual criminal jurisdiction, courts discussed from 2011 onwards, whether those principles also applied in civil cases concerning reparations for the harm suffered by the victims. Here, a customary rule did not crystallize as quickly as in criminal matters. Rather, national and international jurisprudence affirmed, that a customary rule lifting immunity in cases concerning individual civil liability for grave international crimes did not exist. Three major judgments reported on ILDC contributed greatly to this discussion.

In the Vojotia judgment, the Italian Court of Cassation tried to enforce the judgment of the Greek Tribunal of Leivadia, which had awarded a payment of ca 20 million Euro to the victims of the German attack on the Greek village Distomo of June 1944, in which about 300 villagers had died. After the Court of Appeal of Florence had allowed the enforcement of the judgment in Italy, the case eventually reached the Court of Cassation. Germany launched simultaneous proceedings before the ICJ. Although the proceedings were already pending in The Hague, the Court of Cassation declared the case admissible and upheld the findings of the Court of Appeal. On the merits, it affirmed previous Italian jurisprudence, which had established that acts committed in violation of jus cogens norms could not be considered as acts de iure imperii. Thus, it found states did not enjoy immunity from civil jurisdiction for those acts. Still, those findings did not reflect the customary international law on state immunity from civil jurisdiction at the time. As the ICJ confirmed a year later in Germany v. Italy, there existed no customary rule which established such an exception from the immunity from civil jurisdiction in international law.   

In Jones, the British House of Lords needed to contemplate whether UK courts had jurisdiction to entertain proceedings brought by claimants against a foreign state and its officials at whose hands they suffered torture, in the territory of the foreign state. The case hinged on the application of the right to remedy as guaranteed by article 6 of the European Convention on Human Rights (ECHR). The claimants argued that this right had been infringed by the Foreign Sovereign Immunities Act (FSA), which prevented them from bringing a torture case against Saudi Arabia and Saudi Arabian officials before British courts. The House of Lords upheld the general rule of article 1 of the FSA as a justified exception to the right guaranteed under article 6 (1) of the ECHR. It considered no exception could be established to the general rule of state sovereignty in the present case. Though the Lords admitted the law was somewhat in flux, they could not confirm such exception. They argued, the Pinochet judgment –on which the appellants had based their claim– had only dealt with individual criminal responsibility, and not with state liability in tort. Also the tort claim against the individual defendants was barred by the principle of state immunity.    

The Jones claimants further pursued their claim before the European Court of Human Rights (ECtHR). The ECtHR affirmed the Houses’ findings in Jones v. UK and considered the principle of sovereign immunity a legitimate restriction to the right guaranteed under article 6 (1) of the ECHR. The ECtHR found, sovereign immunity pursued the “legitimate aim of complying with international law to promote comity and good relations between States…“ and needed to be regarded as an ‘inherent restriction’ to the right to a fair trial, which was “generally accepted by the community of nations as part of the doctrine of State immunity“ (para 188). However, this judgment was later criticised, since the ECtHR did not consider whether those principles also applied in civil proceedings against the state officials which had committed acts amounting to torture. 

The final case, which considered the immunity of international organizations, was the judgment of the Dutch Supreme Court in the Mothers of Srebrenica case against the United Nations. In this case, the claimants had brought a tort case against the United Nations for the genocidal acts inflicted upon them and their relatives under the eye of the Dutch battalion ‘Dutchbat’, which was stationed in Srebrenica at the time. As in Jones, the claimants argued their right to an effective remedy under article 6 of the ECHR would be violated, if the United Nations were granted immunity from civil jurisdiction. The Supreme Court argued the rules on the immunity of the United Nations, in particular article 2 (2) of the Convention on the Privileges and Immunities of the United Nations, did not undermine the core of the right guaranteed by article 6 of the ECHR. The UN enjoyed certain privileges under international law, which was already expressed by article 103 of the UN Charter. Although the United Nations were an international organization and not a state, there was nothing which justified an exception to the analogy of the immunity of states from civil jurisdiction. As Rosenne van Alebeek and others commented in their discussion of the case, this argument repudiates the very meaning of the right to remedy. In spite of these findings, all three cases demonstrate that the customary law on state immunity in civil cases has not yet come to accept an exception for international crimes.

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