CYIL Vol. 4, 2013

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: 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. 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).