The aim of the United Kingdom's State Immunity Act 1978 is to grant other States immunity from the jurisdiction of the courts of the United Kingdom except as provided in the Act itself. A number of exceptions to that general rule appear in sections 2 to 11.
As long ago as 2001, the European Court of Human Rights Grand Chamber decided Al Adsani v United Kingdom - (Grand Chamber 21st November 2001). Mr Al-Adsani sought to sue Kuwait in respect of injury to his physical and mental health caused by torture in Kuwait in May 1991 and threats against his life and well-being made after his return to the United Kingdom on 17 May 1991. Mr Al-Adsani's claim was rejected in the Court of Appeal and a further appeal to the House of Lords was refused. At Strasbourg, it was held that there was no violation of Articles 3 and 6.
On 14th January 2014, the European Court of Human Rights has reached a similar conclusion in Jones, Mitchell and other v United Kingdom - (European Court of Human Rights Fourth Section). See also the article in The Guardian 14th January.
The Court, while noting the growing recognition of the overriding importance of the prohibition of torture, did not find it established that there is yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum State. The 1978 Act, which grants immunity to States in respect of personal injury claims unless the damage was caused within the United Kingdom, is not inconsistent with those limitations generally accepted by the community of nations as part of the doctrine of State immunity.
The basic facts of the case were:
The applicants, Ronald Grant Jones, Alexander Hutton Johnston Mitchell, William James Sampson, and Leslie Walker, are British nationals who were born in 1953, 1955, 1959 and 1946 respectively. The case concerned the refusal of the UK courts to allow the applicants to sue the Kingdom of Saudi Arabia or its officials for compensation for acts of torture allegedly carried out in Saudi Arabia. The applicants all claim that they were arrested in Riyadh in 2000 or 2001, and subjected to beatings, sleep deprivation and anal rape as well as being given mind-altering drugs. In 2002 Mr Jones brought proceedings against Saudi Arabia’s Ministry of Interior and the man who he alleges tortured him, claiming damages for torture. His application was struck out in February 2003 on the grounds that Saudi Arabia and its officials were entitled to State immunity. A claim by Mr Mitchell, Mr Sampson and Mr Walker against the four individuals that they considered to be responsible for their torture was struck out for the same reason in February 2004. The applicants appealed the decisions, and their cases were joined. In October 2004 the UK Court of Appeal unanimously found that, though Mr Jones could not sue the Kingdom of Saudi Arabia itself, the applicants could pursue their cases against the individual named defendants. However, this decision was overturned by the House of Lords in June 2006, which held that the applicants could not pursue any of their claims on the ground that all of the defendants were entitled to State immunity.
Two principles of international law are in conflict here. First, the principle that one State will not, with certain exceptions, exert its judicial authority over another State. Secondly, the international law condemnation of torture. In Jones, Mitchell and others, the European Court's 4th section held:
" ... the Court is satisfied that the grant of immunity to the State officials in the present case reflected generally recognised rules of public international law. The application of the provisions of the 1978 Act to grant immunity to the State officials in the applicants’ civil cases did not therefore amount to an unjustified restriction on the applicant’s access to a court. There has accordingly been no violation of Article 6 § 1 of the Convention in this case. However, in light of the developments currently underway in this area of public international law, this is a matter which needs to be kept under review by Contracting States."
This was a 6 to 1 majority decision. Judge Bianku added a short concurring judgment. Judge Kalaydjieva added a dissenting judgment. These are reproduced below. It will be particularly interesting to see whether this case is referred to the Grand Chamber under Article 43 of the Convention:
CONCURRING OPINION OF JUDGE BIANKU
DISSENTING OPINION OF JUDGE KALAYDJIEVA
Judges of the Court
European Journal of International Law - Philippa Webb (Lecturer on Public International law, Kings College London) - The re-integration of State and Official Immunity?
See the submissions from Interights and Redress
Is Torture an “Official Act”? Reflections on Jones v. United Kingdom http://t.co/MVnuEMgpNe On the Opinio Juris blog by William S. Dodge
— Eoin O'Dell (@cearta) January 15, 2014
Our statement with @REDRESSTrust @amnesty @Interights regrets ECtHR decision on immunity in torture damages claims: http://t.co/rnZMEpDqT0
— JUSTICE (@JUSTICEhq) January 14, 2014