Garnett, Richard --- "The Defence of State Immunity for Acts of Torture" [1997] AUYrBkIntLaw 3; (1997) 18 Australian Year Book of International Law 97
[*] Lecturer in Law, Monash University. The author wishes to thank the Hon Justice Sir Kenneth Keith and Professor DW Greig for their kind comments and suggestions.
[1] Amnesty International, Torture in the Eighties (1984) p 28.
[2] Ibid, p 3.
[3] Universal Declaration of Human Rights, GA Res 217 A (III) UN Doc A1810 at 71 (1948).
[4] International Covenant on Civil and Political Rights (1966) 999 UNTS 171.
[5] Optional Protocol to the International Covenant on Civil and Political Rights, 999 UNTS 171.
[6] See the determinations of the HRC cited in McGoldrick D, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1991) p 369.
[7] EQ and AQ v Uruguay, UN Doc A/38/40 at 216.
[8] McGoldrick, n 6 above, p 381.
[9] As of March 1997, see http://www.un.org/Depts/Treaty/final/ts2/newsfiles/part_boo/iv_boo/iv_5.html. Australia became a party to the ICCPR in 1980 and the Optional Protocol in 1991.
[10] United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, 1465 UNTS 85; also reprinted in (1984) ILM 1027.
[11] As of March 1997, see http://www.un.org/Depts/Treaty/final/ts2/newsfiles/part_boo/iv_boo/iv_9.html. Australia became a party to the CAT in 1989 and enacted a number of its provisions into domestic law in the Crimes (Torture) Act 1988 (Cth).
[12] As of August 1997, 41 States had accepted the competence of the Committee to hear individual claims, including Australia in 1993; (statistics from Australian Department of Foreign Affairs and Trade). The majority of claims so far heard by the Committee have involved persons seeking asylum who have argued that return to their place of origin would expose them to the risk of torture; see, for example, Mutombo v Switzerland (1994) 1(3) IHRR 122.
[13] European Convention for the Prevention of Torture (1987) Europ TS No 126.
[14] In the Draft Optional Protocol to the CAT it is proposed that a “Sub-Committee Against Torture” be created, having the power to visit periodically and on an ad hoc basis any place of detention in a State Party and to conduct meetings with persons deprived of their liberty. The Sub-Committee would have the power to make its findings public should a State Party fail to cooperate to implement the Sub-Committee’s recommendations or if the party otherwise permits torture to continue. See Report of the Working Group on the Draft Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc E/CN.4/1996/WG.11/CRP.1, para 18.
[15] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva 1) 75 UNTS 31; Geneva Convention for the Amelioration of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (Geneva 2); Geneva Convention Relative to the Treatment of Prisoners of War (Geneva 3) 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva 4) 75 UNTS 287.
[16] Protocol I Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3; Protocol II Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609. As of June 1997, 188 States were party to the Geneva Conventions and 147 and 139 respectively to Additional Protocols I and II; (statistics from Australian Red Cross). Australia became a party to the Conventions in 1957 and the Protocols in 1991.
[17] See for example Articles 49–50 of Geneva Convention I.
[18] Wolfrum R, “Enforcement of International Humanitarian Law” in Fleck D ed, The Handbook of Humanitarian Law in Armed Conflicts (1995) p 547.
[19] Ibid, p 548.
[20] Including Australia in 1992; (statistics from Australian Department of Foreign Affairs and Trade.)
[21] Schachter O, International Law In Theory and Practice (1991) p 338; Higgins R, Problems and Process: International Law and How We Use It (1994) p 22; Burgers J and Danelius H, The United Nations Convention Against Torture: A Handbook (1988) p 12; American Law Institute, Restatement of the Law, Third, Foreign Relations Law of the United States (1987) s702(d).
[22] See Resolutions 3059 (XXVIII) (1973) UN Doc A/Res/3059 (XXVIII); 3218 (XXIX) (1974) UN Doc A/Res/3218 (XXIX); 3452 (XXX) UN Doc A/Res/3452 (XXX); and 3453 (XXX) (1975) UN Doc A/Res/ 3453 (XXX); 32/62 (1977) UN Doc A/Res/32/62 (in which the UN Commission on Human Rights was requested to draw up a draft convention) and 39/46 (1984) UN Doc A/Res/39/46 (in which the draft convention was opened for signature). Resolutions 3452 (XXX) 3453 (XXX) and 32/62 are extracted in Appendix 2, 3 and 4 respectively, of Burgers and Danelius, Ibid, pp 191–6.
[23] The Declaration was adopted by the General Assembly in Resolution 3452, above.
[24] Sloan B, “General Assembly Resolutions Revisited” (1987) 58 British Yearbook of International Law 39 at 70–4.
[25] Ibid, at 128–132, citing the opinion of Tanaka J in the South West Africa, Second Phase, Judgment, ICJ Rep 1966, p 6 at 292.
[26] There also exists a consistent body of judicial practice in the United States supporting the view that torture is a prohibited norm of customary international law starting with the Second Circuit case of Filartiga v Pena-Irala [1980] USCA2 576; 630 F 2d 876 (CA2 1980) (2d Cir 1980). For a fuller discussion of the United States decisions on torture see section IV. United States Practice below, this volume p 106.
[27] Akehurst M, “Custom As a Source of International Law” (1974–5) 47 British Yearbook of International Law 1 at 2–3.
[28] Amnesty International, n 1 above, pp 90–93.
[29] Higgins, n 21 above, p 22.
[30] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) Merits, Judgment, ICJ Rep 1986, p 14; (hereafter referred to as the Nicaragua case).
[31] Ibid, at 98.
[32] See Article 53 of the Vienna Convention On the Law of Treaties 1969, 1155 UNTS 331; 8 ILM 679.
[33] Hannikainen L, Peremptory Norms (Jus Cogens) In International Law (1988) p 508; O’Boyle M, “Torture and Emergency Powers Under the European Convention On Human Rights: Ireland v the United Kingdom ” (1977) 71 American Journal of International Law 674 at 686–688; Burgers and Danelius, n 21 above, p 12; American Law Institute, n 21 above, comment (n) to s 702(d).
[34] See, for example Article 2(2) of the CAT which provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture”. See also, to like effect, Article 4(2) of the ICCPR.
[35] See the Robert E Brown Case (US v GB) (1923) 6 RIAA 120 at 129.
[36] In particular European countries of the civil law tradition such as Belgium and Italy, see Badr G, State Immunity: An Analytical and Prognostic View (1984) ch 2.
[37] See especially, Brownlie I, Principles of Public International Law, 4th ed (1990) p 333; and Crawford J, “A New Foreign State Immunities Act for Australia?” [1978] AUYrBkIntLaw 3; (1983) 8 Aust YBIL 71 at 90.
[38] See discussion at nn 95 –97, 100 below and accompanying text.
[39] Argentine Republic v Amerada Hess Shipping Corp [1989] USSC 11; 488 US 428 at 439 (1989).
[40] Trooboff P, “Foreign State Immunity: Emerging Consensus on Principles” (1986) 200 Recueil Des Cours 235 at 352.
[41] For example, Holubek v US (1961) 40 ILR 73 (Supreme Court of Austria).
[42] Schreuer C, State Immunity: Some Recent Developments (1988) pp 51–52. The precise reasons for the territorial limitation would seem to lie in both private and public international law. Under generally accepted principles of private international law, it is the country in which the wrong occurred which is considered the most appropriate forum of adjudication for torts; ibid, p 53. The bulk of the evidence would normally be located there and, assuming that its domestic law were to be applied to the case (which again is likely on most choice of law tests) its courts would be better equipped to do so. These considerations would seem to apply a fortiori where the State is not only the place of the wrong but also is the defendant in the action. As a matter of public international law, the doctrines of the sovereign equality of States and non-intervention in other States’ affairs continue to exercise a powerful hold in the international community and are represented in a number of provisions of the United Nations Charter, for example, Article 2(7). Such principles serve to reinforce the doctrine of State immunity and limit the emergence of wide exceptions.
[43] De Letelier v Republic of Chile, 488 F Supp 665 (DDC 1980).
[44] Ibid, at 671.
[45] Ibid, at 673.
[46] Alicog v Saudi Arabia, 860 F Supp 379 (SD Tex 1994).
[47] Ibid, at 384. In this case the plaintiffs’ claims failed due to a lack of evidence.
[48] See for example, McKeel v Islamic Republic of Iran, 722 F 2d 583 (9th Cir 1983).
[49] Section 1605(a)(2).
[50] [1993] USSC 33; 113 S Ct 1471 (1993).
[51] Ibid, at 1480.
[52] See, for example, Gergen J, “Human Rights and the Foreign Sovereign Immunities Act” (1996) 36 Virginia Journal of International Law 765 at 774.
[53] Saudi Arabia v Nelson, n 50 above, at 1480.
[54] John Doe v UNOCAL Corp, 963 F Supp 880 (CD Cal 1997).
[55] Ibid, at 887–88.
[56] See, for example, Paust J, “Draft Brief Concerning Claims to Foreign Sovereign Immunity and Human Rights: Non-Immunity for Violations of International Law under the FSIA” (1985) 8 Houston Journal of International Law 49 at 66.
[57] Argentine Republic v Amerada Hess, n 39 above, at 441–442.
[58] Gergen, n 52 above, at 778 fn 90. It is interesting to note that in the case of the United States’ ratification of the CAT, the Senate expressly attached an understanding to Article 14 that a contracting State was only required to provide a private right of action for acts of torture committed within its territory; see Gery Y, “The Torture Victim Protection Act: Raising Issues of Legitimacy” (1993) 26 George Washington Journal of International Law & Economics 597 at 608, fn 84.
[59] For example, in Siderman De Blake v Republic of Argentina [1992] USCA9 1398; 965 F 2d 699 at 719–720 (9th Cir 1992) where it was held that Article 8 of the UNDHR did not create a private right of action in US courts against a foreign State. See also Denegri v Chile unreported, 6 April 1992 (DDC).
[60] Argentine Republic v Amerada Hess, n 39 above, at 442–443.
[61] In Re Estate of Ferdinand Marcos, [1996] USCA9 2749; 94 F 3d 539 at 548 (9th Cir 1996).
[63] Ibid, at 714–717.
[64] See the discussion above at nn 32 –34 above and accompanying text. [65] In the Siderman case an implied waiver of immunity was nevertheless found where Argentina had commenced criminal proceedings against the Siderman family in its own courts and then requested a Californian court to serve process upon the family. The US Court of Appeals for the 9th Circuit took the view that because Argentina had sought to involve the US courts “in the very course of activity for which the Sidermans seek redress” this amounted to an implied waiver; see n 59 above, at 722. More recently, in another phase of the Marcos litigation, it was held that the Philippines Government had not waived its immunity to suit in a claim arising out of acts of torture by Marcos where the Government had brought a separate action in the US courts to recover assets held by the former President. The Court said that, for there to be an implied waiver, there had to be a direct connection between the foreign State’s activities in the US courts and the plaintiff’s claims for relief. Here the Government’s separate suit was unrelated to the claim for torture. See Estate of Ferdinand Marcos, n 61 above, at 547. [66] [1994] USCADC 292; 26 F 3d 1166 (DC Cir 1994).
[67] [1997] USCA2 106; 101 F 3d 239 (2nd Cir 1996).
[68] Princz v Germany, n 66 above, at 1174.
[69] Smith v Libya, n 67 above, at 243.
[70] Ibid, at 244.
[71] Smith v Libya, n 67 above, at 244.
[72] Most significantly, the US State Department intervened in support of Saudi Arabia in the Nelson case, see n 50 above.
[73] See, for example, Correale J, “The Torture Victim Protection Act: A Vital Contribution to International Human Rights Enforcement or Just A Nice Gesture?” (1994) 6 Pace International Law Review 197; Haffke C, “The Torture Victim Protection Act: More Symbol than Substance” (1994) 43 Emory Law Journal 1467, esp at 1494–1501; Lininger T, “Recent Development: Overcoming Immunity Defences to Human Rights Suits In US Courts” (1994) 7 Harvard Human Rights Journal 177; Fitzpatrick J, “The Future of the ATCA of 1789: Lessons From In Re Marcos Human Rights Litigation” (1993) 67 St John’s Law Review 491; Reimann M, “A Human Rights Exception to Sovereign Immunity: Some Thoughts On Princz v Federal Republic of Germany” (1995) 16 Michigan Journal of International Law 403; Bederman D, “Dead Man’s Hand: Reshuffling Foreign Sovereign Immunities in US Human Rights Litigation” (1995–96) 25 Georgia Journal of International and Comparative Law 255; Rabkin J, “Universal Justice: the Role of Federal Courts in International Civil Litigation” (1995) 95 Columbia Law Review 2120 and Paust, n 56 above. Among the few dissenters may be cited Zimmerman A, “Sovereign Immunity and Violations of Jus Cogens: Some Critical Remarks” (1995) 16 Michigan Journal of International Law 433 and Gery, n 58 above.
[74] Schreuer, n 42 above, p 60.
[75] Section 1605(a)(7).
[76] This is certainly the view of scholars; see, for example, MacKusick D, “Comment: Human Rights Versus Sovereign Rights: The State-Sponsored Terrorism Exception in the Foreign Sovereign Immunities Act” (1996) 10 Emory International Law Review 741 at 769–771. Section 1605(a)(7) has been recently applied to defeat an immunity plea in an action for extrajudicial killing, see Flatow v Iran unreported, 11 March 1998 (DDC).
[77] It is interesting to note that in the Smith case the US Court of Appeals for the 2nd Circuit relied in part upon the recent amendment to reject the argument that breaches of jus cogens norms should amount to a waiver of State immunity on the basis that such a conclusion did not accord with Congressional intent; n 67 above, at 242.
[78] See especially, the views of Reimann, n 73 above, at 422 and Rabkin, n 73 above, at 2147. [79] Note Article 2(7) of the United Nations Charter. [80] See Filartiga v Pena-Irala, n 26 above.
[81] See Kadic v Karadzic, [1996] USCA2 16; 70 F 3d 232 at 245 (2nd Cir 1995).
[82] Weintraub R, “International Law: Establishing Incredible Events By Credible Evidence: Civil Suits for Atrocities that Violate International Law” (1996) 62 Brooklyn Law Review 753 at 765.
[83] Haffke, n 73 above, at 1490.
[84] Trajano v Marcos, [1992] USCA9 3140; 978 F 2d 493 at 497 (9th Cir 1992); Hilao v Marcos, [1994] USCA9 1938; 25 F 3d 1467 at 1472 (9th Cir 1994); and Cabiri v Baffour Assasie-Gyimah 921 F Supp 1189 at 1197 (SDNY 1996).
[85] Hilao, n 84 above at 1472; Cabiri, n 84 above at 1197; Xuncax v Gramajo 886 F Supp 162 at 175 (D Mass 1995). The problem of State immunity was circumvented in Trajano v Marcos in a rather less satisfactory way. There, the Court determined that because the defendant, Marcos-Manotoc, had been the subject of a default judgment in the lower court in the instant matter, the US Court of Appeals for the 9th Circuit was able to draw the inference that she acted on her own authority, not on that of the Philippines Government. Therefore, her acts cannot have been taken “within any official mandate”; Trajano v Marcos, n 84 above at 498. The obvious riposte to this (which was not addressed by the Court) is that if the defendant acted only on her own authority, how could she then have acted “under color of law” for the purposes of a suit under the ATCA?
[88] Occasionally, plaintiffs have been fortunate in that a new regime in the foreign country in which the acts of torture have occurred has come to power and promptly waived any State immunity claimed by the individual sued. Such a waiver occurred in Paul v Avril, 812 F Supp 207 (SD Fla 1993) and Mushikiwabo v Barayagwiza unreported, 9 April 1996 (SDNY) but this is unlikely to be a common circumstance.
[89] Weintraub, n 82 above, at 765.
[90] See the views of ILC members Koroma, Calero-Rodrigues and Ni in Yearbook of the International Law Commission 1983, vol I, pp 83–85. See also the views of national representatives from Brazil, Bulgaria, Chile, China, Czechoslovakia, GDR and the USSR in Yearbook of the International Law Commission 1988, vol II (1) pp 58–59, 62, 64–65, 69, 83. Other examples of countries which have indicated that they do not accept the restrictive theory include: Colombia, Ecuador, Hungary, Poland, Syria, Trinidad and Tobago and Venezuela, see United Nations Materials on Jurisdictional Immunities of States and their Property (1982) pp 79, 90, 567, 576, 601, 605, 611, 638.
[92] See the views of ILC members Jagota and Ushakov, 1 Yearbook of the International Law Commission 1983, vol I, pp 95–96.
[93] See Yearbook of the International Law Commission 1983, vol I, p 97.
[94] Koroma, n 90 above, at 83.
[95] See, for example, In Re Danish State Railways in Germany (1953) 20 ILR 178 and Red Nacional de Ferrocariles Espanoles v Mrs Cavaille (1984) 65 ILR 41.
[96] Fox H, “State Responsibility and Tort Proceedings Against A Foreign State In Municipal Courts” (1989) XX Netherlands Yearbook of International Law 3 at 18–19.
[97] Ibid.
[98] Inter-American Draft Convention on Jurisdictional Immunity of States (1983) 22 ILM 292.
[99] Ibid, Article 5.
[100] It has, however, been argued that certain gross breaches of human rights (eg political assassination) should not be classified as “governmental” activities because they are not “proper to or distinctive of” a State. That is, such conduct can hardly be claimed to be “proper” authorised activity when it (almost certainly) violates the domestic law of all countries and international law nor “distinctive” of government, where private groups also perform such acts. See Crawford, n 37 above, at 89. On such a view, torture could be classified as a “private” activity (in terms of the sovereign/commercial test) and so not giving rise to immunity.
[101] State Immunity Act 1979, s 7.
[102] Foreign Sovereign Immunity Act 1981, s 6.
[103] State Immunity Act 1982, s 6.
[104] Foreign States Immunities Act 1985 (Cth) s 13.
[105] State Immunity Ordinance 1981.
[106] Sucharitkul S, Yearbook of the International Law Commission 1983, vol II (1) p 43.
[107] Fox, n 96 above, at 29; Australian Law Reform Commission, Report No 24, Foreign State Immunity (1984) p 69; Lewis C, State and Diplomatic Immunity (1990) p 53; Crawford, n 37 above, at 88.
[108] Unreported, 12 March 1996, Eng CA.
[112] This point was not appreciated by one commentator who criticised the Court’s upholding of immunity in Al Adsani on the basis that, since English law allowed criminal jurisdiction to be exercised over individuals committing acts of torture outside the UK (pursuant to the Criminal Justice Act 1988) then why could not civil jurisdiction be exercised over the State responsible for such acts? (See Marks S, “Torture and the Jurisdictional Immunity of Foreign States” [1997] Cambridge Law Journal 8 at 10.) However, as the United States practice shows, there is a great difference, in terms of intrusion upon a foreign State’s sovereignty, between a domestic court exercising jurisdiction (whether civil or criminal) over an individual offender from that State and a court doing so over the State itself.
[114] Section 9 (general immunity from jurisdiction).
[115] Section 13 (personal injury exception).
[116] Yager v R [1977] HCA 10; (1977) 139 CLR 28.
[117] See Yearbook of the International Law Commission 1991, vol II (2) p 23.
[119] See Yearbook of the International Law Commission 1991, vol II (2) p 44. Under the Anglo-American doctrine of forum non conveniens, a local court has a discretion to stay proceedings where there exists a foreign court more appropriately situated to try the action. See Gulf Oil Corp v Gilbert [1947] USSC 45; 330 US 501 (US Sup Ct 1947) and Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL). The doctrine does not therefore act to exclude totally the jurisdiction of the local court. The principle does not exist in civilian legal systems. In Australia, the doctrine of forum non conveniens has been rejected and replaced by the “clearly inappropriate forum” test; see Voth v Manildra Flour Mills [1990] HCA 55; (1990) 171 CLR 538 (HCA). Pursuant to this approach, an Australian court may only grant a stay of its proceedings in favour of trial in a foreign court where the defendant can show that the local court is “clearly inappropriate” to try the action. The effect of the “clearly inappropriate” test has been to make it more difficult for defendants to obtain a stay (see Nygh P, Conflict of Laws in Australia (1995) pp 106–7) which raises the interesting question of whether an Australian court may be more likely (than its English or American counterparts) to exercise jurisdiction over a foreign act of torture, assuming any immunity obstacle was overcome.
[120] See Yearbook of the International Law Commission 1991, vol II (2) p 44.
[121] Article 2(e) in (1991) 64 (II) Annuaire de l’ Institut de Droit International 267.
[122] (1987) 62 (II) Annuaire de l’Institut de Droit International 269 (per Sir Ian Sinclair).
[123] Especially Paust, n 56 above and the writers cited at n 73 above.
[124] For example, Bianchi A, “Denying State Immunity to Violators of Human Rights” (1994) 46 Austrian Journal of Public and International Law 195.
[125] The CAT includes such a provision in Article 5(2).
[126] One writer has argued that “the rationale behind the law of sovereign immunity requires that some reasonably close connection should exist between the forum [S]tate and the cause of action” and that, in the context of a tort claim against a foreign State, a domestic court’s assuming jurisdiction only where the tort occurred in its territory achieves a reasonable balance between the interest of the individual in seeking redress and the interest of the State in protecting its sovereignty; see Crawford, n 37 above, at 92. This is a statement of the territorial view of State immunity which, as noted above, is currently the prevailing position in most common law countries.
[128] This “floodgates” danger was recognised by Trooboff, n 40 above, at 360–361. Crawford has also stated that, in his view, “it is not for the courts of any one country to become general human rights courts” in Proceedings of the 65th Conference of the International Law Association (1992) p 319.
[129] See, for example, Hartford Fire Insurance Co v California [1993] USSC 100; 125 L Ed 2d 612 (US Sup Ct 1993) and the recent debate surrounding the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 (more commonly known as the Helms-Burton Act) in (1996) 90 American Journal of International Law 419–440.
[130] Schreuer, n 42 above, p 60.
[131] Hassan F, “A Conflict of Philosophies: The Filartiga Jurisprudence” (1983) 32 International and Comparative Law Quarterly 250 at 257.
[132] “Whilst Western societies see the national courts as a champion of private rights not all countries acknowledge that role and in some the status of the courts would hardly justify any such expectation ...”; Fox H, “Private Law Damages As a Method of State Accountability: The Tort Exception to State Immunity” [1993] Third World Legal Studies 107 at 118. Schreuer argues that “a more realistic role for domestic courts in the area of human rights protection might be to assume jurisdiction in cases where an international body of supervision has determined authoritatively that a violation has occurred”; see n 42
above, at 60. However, it is likely that, even in this situation, Nation States will fear partial treatment, given the politically charged subject matter.
[133] It has also been argued, on a more theoretical level, that it is inappropriate for treaty obligations entered into between States on the international plane to be enforced by individuals domestically because such obligations do not neatly transpose into private rights and domestic courts lack the legal standards by which to judge the conduct of other Nation States; see Fox, Ibid, at 111–113, 118.