The UK Government's attitude to torture - already deeply ambivalent - has taken another turn with the recent news that it will intervene in a case coming up before the House of Lords, on whether Saudi Arabian officials should be immune from civil action in the English courts for allegedly torturing British citizens wrongly accused of carrying out bomb attacks in Saudi Arabia. It will come as little surprise to those who have followed Blair's Government's recent record on torture - from seeking to have evidence obtained therefrom overseas declared admissable in UK courts, through their attempts to deport aliens to countries where they would be at risk on the basis of memoranda of understanding with the respective governments, to the almighty and ongoing fudge on the issue of the US "extraordinary rendition" flights through UK airports - that they will be seeking to defend the Saudi officials' immunity from civil action.
Happily, things have not gone according to plan for Blair on this issue: the attempt to have torture evidence declared admissable failed; the memoranda of understanding, although awaiting their first real legal test, have attracted a high level of public judicial skepticism and suspicion; and the rendition flights have been embarassing, to say the least. So what of the chances of this latest attempt? And, perhaps more importantly, why is the UK Government so intent on securing the immunity of foreign torturers of falsely-accused UK citizens?
The case, Jones v. The Ministery for the Interior of Saudi Arabia, has already been heard by the Court of Appeal, in October 2004, who decided that, although the Kingdom of Saudi Arabia itself could not be the subject of a civil action in respect of torture in the English courts, the officials who carried it out could, in principle, be so called to account. This judgment, incidentally, is well worth reading - it contains an impressive array of analyses of case-law from various national, regional and international jurisdictions, and it is one of the first that I have come across that attempts to grapple with the jurisprudential mess left by the Pinochet affair before the House of Lords: two cases, and numerous separate judgments - some concurring, some dissenting, but all for slightly different reasons. It is also signifcant in that it notes that the idea that the prohibition of torture is now a jus cogens - a peremptory norm of international law - was an unproblematic given for all the parties to the case.
It's probably worth recalling at this point that the case, and international law generally, establishes a difference between immunity rationae personae and that rationae materiae. The first attaches to persons of Heads of State and of diplomatic missions, in their capacity as representatives of the State, and is absolute for as long as they hold that role - it was only after Pinochet had retired that foreign courts could even entertain an action involving him. This reflects the general immunity of States from prosecution in the national courts of others (there are some, mostly commercial, exceptions - see, for the UK, the State Immunity Act of 1978, Part I), and explains the first finding of the Court of Appeal - that the Kindgom of Saudi Arabia was immune from civil action in the UK courts in terms of the alleged torture suffered. The second form of immunity, rationae materiae, is more limited in that it is not absolute; it covers only those acts carried out in an official capacity. It is, however, considerably broader, in that it applies to all officials of the State. It is therefore this second that is of most interest in this case.
The basic reasoning seems to follow some of that which was central to the final judgment in the Pinochet case: that the Torture Convention cannot be read as being compatible with the applicability of state immunity rationae materiae in respect of the acts that it prohibits. Again, the judges note that those Law Lords who came to this conclusion did so on different grounds, but the simplest - and, in my view, the soundest - was that of Lord Millet, who simply said that it was inconceivable that the Parties to the Convention - which defines torture as certain acts committed by State officials acting in an official capacity- intended to provide immunity for everybody who perpetrated the acts that it sought to criminalise, and over which it compelled States to establish jurisdiction. This meant that, although Pinochet's immunity as Head of State was absolute for as long as he held that role, he could claim no immunity in respect of torture once he had retired.
On this basis, the likely outcome of the case seems clear enough - the House of Lords has effectively already held that immunity rationae materiae does not attach to acts of torture carried out by State officials in their official capacity (be that due to an implied waiver in the Torture Convention, or the fact that torture can never be an "official act", the result is the same). There is, however, one potential complication (leaving to one side how deeply split the Lords were over the Pinochet affair - in both judgments): they have only dealt, thus far, with immunity from criminal proceedings in cases of torture, while the present case involves an attempt to sue through the civil courts.
Perhaps surprisingly, an initial look at the final Pinochet judgment suggests that this difference may be more singnificant than it at first appears: the speeches of three of the judges who voted in favour of extraditing Pinochet on the charges of torture, Lords Hutton, Millet and Phillips, contained dicta which seemed to suggest that the immunty rationae materiae for acts of torture would continue to exist for civil cases, and be excluded only in criminal proceedings (See judgment, paras. 55-57). Lord Millet, for example, observed that "the very official or governmental character of the acts... still operates as a bar to the civil jurisdiction of national courts, and continued, (at p. 278) to say:
I see nothing illogical or contrary to public policy in denying the victims of state sponsored torture the right to sue the offending state in a foreign court while at the same time permitting (and indeed requiring) other states to convict and punish the individuals responsible if the offending state refuses to take action. This was the very object of the Torture Convention.
Of course, it may be argued here that Lord Millet, although making explicit a distinction between civil and criminal responsibility, refers only to the former in terms of the State and the latter in terms of the individuals themselves. Lord Phillips, however, was perhaps the most explicit, stating that while a civil action indirectly impleaded the State, the same was not true of a criminal action, where only the responsibility of the individual was concerned (p. 281 of Pinochet 3). He went on to note that, if the State Immunity Act of 1978 was an accurate reflection of international law, "two propositions are made out in relation to civil proceedings".
(1) One state will not entertain proceedings against a former head of state or other state official of another state in relation to conduct performed in his official capacity. (2) This rule applies even if the conduct amounts to a crime against international law...
These may suggest that the Law Lords will back the UK Governments attempts to have the immunity of the Saudi officials recognised. However, it would, I think, be a mistake to read too much into them. Firstly, and I think this not unimportant, the current politics of the judiciary in the UK seem overwhelmingly in favour of limiting Government action, particularly in areas such as these. Perhaps more importantly, however, it should be remembered that these were only dicta - remarks that barely registered as significant in the context of the complex judgments of which they formed a tiny part. The judges of the Court of Appeal go to some lengths to state why they reject this proposition, drawing on an impressive range of international jurisprudence - and in particular on a lengthy discussion of US case law - in the process. They note, for example (para. 76 of the Jones judgment) that it is not at all clear why a civil action impleads the state in any manner more objectionable than would criminal proceedings. Perhaps most significantly, Lord Phillips himself is one of the judges who sat on the case, and he (at para. 128) directly and explicitly withdraws his comments from the Pinochet case, quoted above, stating "On reflection I have concluded that the argument [that the state is indirectly impleaded] does not run in relation to civil proceedings either". In both, it is the personal responsibility of individuals, not that of the State (which is (almost) always immune rationae personae) that is implicated.
Lord Phillips, then, has reconsidered; and it seems to me likely that Hutton and Millet may well do so too. However, given how close the judgments in the Pinochet case were, and the fact that the House of Lords is not bound by its own precedent, the outcome may depend upon the composition of the court for this particular case. Nonetheless, it would be surprising if, distinctions between civil and criminal actions notwithstanding, the court did not decide to follow the reasoning that roughly characterised the majority opininion in its earlier, important judgment. To do otherwise would call the integrity of the initial judgment - and of the court itself, already damaged over having to hear the same case twice - seriously into question. Expect, I think, another judicial slap in the face to Governmental ambitions in terms of the law relating to torture.
It is also, however, important to ask: why is the Government is so keen to protect Saudi torturers of UK citizens from civil actions in UK courts? The answer can only, I think, be in terms of international precedent. A quick skim of the Court of Appeal judgment is sufficient to show how influential decisions of major national courts on topics like this can be in jurisdictions across the world. I have already suggested that Blair's plan to use memoranda of understanding with governments known to torture people in order to facilitate extradition and returns could possibly give rise to some legal accountability on his part for any acts of torture committed on such people afterwards. This may seem a little far-fetched, but the more publicly the Prime Minister is seen to be attempting to subvert and erode national and international protection mechanisms against torture, the more likely it becomes. It certainly has the potential to make life more difficult for his US allies, given their rendition practices. And what of the UK's previous record? Not the happiest, in terms, for example, of its treatment of Irish prisoners. Is there a chance that a House of Lords judgment rejecting immunity from civil actions for acts of torture might lead to a spate of claims being lodged in Dublin?
Whatever the concrete reasons behind this intervention, it seems - and will be viewed - as the continuation of a developing trend: the continuing subversion of the much vaunted and oft-proclaimed universal prohibition of torture. If the mechanisms in place to make this prohibition effective are to themselves remain of worth, then it seems that we, in the UK at least, have once again our unelected, conservative judiciary - rather than our elected, "progressive", social-democratic representatives - to thank for this.