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ADDRESSING THE RELATIONSHIP BETWEEN STATE IMMUNITY AND
JUS COGENS
State Immunity Act 1985 that provided no appropriate exception to immunity in
the case of peremptory norms. The court even argued that no evidence existed in
State practise to demonstrate that the violation of
jus cogens
norms would bar the
application of immunity.
43
English courts have tended to grant immunity regardless of whether
jus cogens
was
involved, as the cases of
Al-Adsani
44
and
Jones
45
show. In the former case the plaintiff
claimed reparation for alleged acts of torture in the Kuwaiti State Security Prison.
The Court of Appeal upheld Kuwaiti immunity and did not recognize any
jus cogens
exception. Mr. Al-Adsani then brought a case to the European Court of Human
Rights, which will be discussed below. In
Jones
the House of Lords similarly dismissed
the claim and granted Saudi Arabia immunity by referring to arguments employed in
Al-Adsani
and concluded that victims did not have the right to sue Saudi authorities
in UK courts according to 1978 State Immunity Act.
46
Interestingly, in the
Pinochet
case,
47
where the immunity of the former head of Chilean State was in question, the
House of Lords ruled that General Pinochet had to be denied immunity with respect
to acts of torture since such international crimes had status of
jus cogens
.
48
A tendency in favor of peremptory norms in their relationship with State
immunity may be seen in the domestic decisions of Greek and Italian courts. Greece’s
Court of First Instance of Leivadia in the
Prefecture of Voiotia case
accepted the claims
brought against Germany for the atrocities during the Nazi occupation in Distomo
in 1944. It held that a State violating
jus cogens
norms could not invoke immunity
before the courts of the forum state.
49
Although the Court of Appeal confirmed
the judgment of the lower court, the court of highest instance (by a very narrow
majority of six votes to five) reversed the decision, finding that, due to a general
norm of customary law that rendered inadmissible any claim against a foreign state
for torts committed by its armed forces, Germany enjoyed an immunity.
50
The
Applicants filed a further complaint before the ECtHR, who declared it inadmissible
43
ibid
., para. 88. For further discussion on the case, see Novogrodsky, N.B., Immunity for Torture:
Lessons from Bouzari. In
EJIL
, Vol. 18, No. 5 (2007), pp. 939-953.
44
Al-Adsani v. Government of Kuwait and Others, Court of Appeal
(1996).
45
Jones v. Saudi Arabia
, House of Lords (2006).
46
The State Immunity Act of 1978 contains a general rule on immunity with several exceptions relating
to the cases when a State itself has submitted to the proceedings, to the cases involving commercial
transactions, labor contracts, patents and trade marks, personal injuries occurred in the UK etc. For
further debate on the Jones case see Orakheshvili, A., State Immunity and Hierarchy of Norms: Why
the House of Lords Got it Wrong. In
EJIL
18 (2007), pp. 955-970.
47
Ex parte Pinochet (No 3)
; UKHL, 1999. An academic view on this judgment is offered in Bianchi, A.,
Immunity versus Human Rights: Pinochet Case. In:
EJIL
10 (1999), p. 237-277.
48
Although this was not the proper reason why the immunity was finally denied. See, however, comment
of Lord Millett,
ibid.
, p. 278.
49
Prefecture of Voiotia case
, pp. 599-600.
50
Special Supreme Court of Greece,
Federal Republic of Germany v. Miltiadis Margellos
, No. 6 (2002),
para. 15; translation of the judgment by Bartsch, K. – Elberling, B., Jus Cogens v. State Immunity:
Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou
et al
. v.
Greece and Germany Decision. In 4
German Law Journal
(2003), pp. 476-491.