¹ UNGA Res A/59/38 (2004), 2 Dec 2004. The United Kingdom signed the Convention on 30 Sept 2005. The author is grateful for thoughtful comments on an early draft by Andrew Dickinson, Lady Hazel Fox, Lorna Mcgregor, Kate Parlett and Elizabeth Wilmshurst.

² The Foreign and Commonwealth Office invited submissions from selected persons and organizations and on the question whether the UK should sign the Convention with or without an understanding or reservation. In addition to a meeting organized by the British Society of International Law in Nov 2004, there had been a meeting and a conference at Chatham House on the Convention, on 20 Jan 2005 and on 5 Oct 2005. See The new state immunity convention: commercial transactions, human rights, summary of discussion at International Law Programme Discussion Group, 20 Jan 2005, and state immunity and the new UN Convention, Chatham House, 5 Oct 2005, Transcripts and summaries of presentations and discussions (Chatham House Transcript) available at <http://www.riia.org>.

³ Jones v Ministry of the Interior Al-Mamlaka Al-Arabiya as Saudiya (The Kingdom of Saudi Arabia) (Judgment) Case No A2/2004/0489 Court of Appeal (16 May 2005) appeal to be argued 25–27 April 2006.

⁴ Lord Falconer has stated in response to a request by Lord Archer of Sandwell for a full parliamentary debate on whether protocols or reservations would be necessary before the United Kingdom decides whether to ratify the Convention that ‘there should be a proper debate before ratification occurs’. Hansard (12 Oct 2005) col 376.

⁵ The Chair of the Ad Hoc Committee, responding to criticism of the Convention ‘on the ground that it does not remove immunity in cases involving claims for civil damages against States for serious violations of human rights’, noted that this issue had been raised and dropped in the ILC and raised and dropped again in the General Assembly because ‘it was concluded that there was no clearly established pattern by State in this regard’. Chatham House transcript (5 Oct 2005) 9. He added that ‘it was recognized that any attempt to include such a provision would, almost certainly[, have] jeopardize[d] the conclusion of the Convention’ ibid. The Chair also said that it would have been difficult to define the concept of ‘serious violations of human rights’, but did not discuss similar terms in other instruments, such as ‘internationally recognized norms and standards’ and ‘internationally recognized human rights’ (Rome Statute of the International Criminal Court, Art.21 (1) (c) and (3)) or crimes under international law. ibid.

⁶ UNGA Res 39/46 (10 Dec 1984) Article 14 (1) states: ‘Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.’ The Committee against Torture has recently indicated when it considered the report of Canada in the light of the decision by the Ontario Court of Appeal in Bouzari v Islamic Republic of Iran (2004) that a civil suit for torture against Iran was barred by state immunity that Art 14 requires states parties to the Convention against Torture to permit victims to recover for torture in civil suits against states and their officials. Committee against Torture, Conclusions and recommendations, 34th Sess, 2–20 May 2005 UN Doc CAT/C/CR/34/CAN (7 July 2005) paras 4 (g) (expressing concern about ‘[t]he absence of effective measures to provide civil compensation to victims of torture in all cases’); 5 (f) (recommending that Canada ‘review its position under article 14 of the Convention to ensure the provision of compensation through its civil jurisdiction to all victims of torture’). See also McGregor, L ‘Questioning the Impact of the UN Convention on State Immunity on the Evolving Relationship between State Immunity and Jus Cogens Norms Under International Law (2006) 55 ICLQ 437–45.CrossRefGoogle Scholar

⁷ UNGA Res 40/34 (29 Nov 1985).

⁸ Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference on the Establishment of an International Criminal Court, Rome UN Doc A/CONF.183/9* (17 July 1998) as corrected by the process-verbaux UN Doc C.N.577.1998.TREATIES-8 (10 Nov 1998) and UN Doc C.N.604.1999.TREATIES-18 (12 July 1999) Art 75.

⁹ UN Comm'n Hum Rts Res E/CN.4/2005/L.48 (13 Apr 2005), adopting the Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law (Van Boven-Bassiouni Principles) and recommending that they be adopted by ECOCOC and the General Assembly, which adopted them in Resolution A/Res/60/147 (16 Dec 2005).

¹⁰ UN Comm'n Hum Rts Res E/CN.4/2005/L.93 (15 Apr 2005), endorsing the Set of Principles for the protection and promotion of human rights through action to combat impunity (Joinet-Orentlicher Principles) and recommending that they be widely disseminated by the UN High Commissioner for Human Rights and ‘to take them into account in relevant United Nations activities, especially in the framework of United Nations missions, field presences, as well as human rights, institutionbuilding and capacitybuilding activities, in cooperation with other parts of the United Nations system, States and other relevant actors’.

¹¹ Situation of the Democratic Republic of the Congo Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRs6, Case No ICC-01/04, Pre-Trial Chamber I (17 Jan 2006) para 115.

¹² UN Doc E/CN.4/2005/WG.22/WP.1/Rev 4 (23 Sept 2005) Art 24.

¹³ 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, reprinted in Roberts, Adam & Guelff, RichardDocuments on the Laws of War 67 (3rd ednOUP Oxford 2000).Google Scholar

¹⁴ McGregor (n 6) 437.

¹⁵ Article 5 of the International Law Commission' Articles on State Responsibility, which does not by any means exhaust the full scope of state responsibility for state officials or agents, provides: ‘The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.’

¹⁶ The International Law Commission draft Articles on Diplomatic Protection do not include an obligation to exercise diplomatic protection, leaving it to the complete discretion of states. International Law Commission Report on the work of its fifty-sixth session (3 May to 4 June and 5 July to 6 August 2004) UNGAOR 59th Sess Supp No 10, A/59/10 (2004) 17.

Even when diplomatic interventions are made on behalf of a state's own national seeking reparations for crimes under international law against another state, they are generally an ineffective means for victims and their families to obtain reparations for such crimes. They are largely dependent on the political, economic and military power of the state of the victim's nationality and its political will. That state will be asserting the claim on its own behalf for the harm to its interests, not as an agent for the victim, and it will often sacrifice the legal rights of the victim to competing political considerations, such as maintaining friendly relations with the state responsible for the wrong. For example, the Allies often settled claims with former Axis countries for crimes committed during the Second World War against their own nationals, such as torture of prisoners of war or sexual enslavement, for derisory awards of compensation. See, for example, Amnesty International Japan: Still waiting after 60 years—Japan's Military Sexual Slavery System AI Index: ASA 22/012/2005 (28 Oct 2005).

¹⁷ Claims commissions require either the consent of the state responsible for the crimes of its officials or agents or a decision of the Security Council acting in response to a situation involving a threat to or a breach of international security, they do not always make individualized determinations and they are usually limited to awards of compensation, which often are much lower than awards in nationals were the victims of crimes, but this procedure also requires the consent of the state responsible.

¹⁸ Oddly, the ILC recognized the inadequacy of diplomatic negotiations with respect to personal injuries and damage in the forum state by including Art 12 (see discussion below).

¹⁹ It is regrettable that Art 5 omits the requirement in the 1991 ILC draft Convention that the general rule of immunity was subject ‘to relevant rules of international law’. A similar, but more limited, provision was included in Art 33 of the European Convention on State Immunity 1972, ETS No 74, that ‘[n]othing in the present Convention shall affect existing or future international agreements in special fields which relate to matters dealt with in the present Convention.’

²⁰ ILC Final Draft Articles And Commentary on Jurisdictional Immunities of States and their Property (1991 ILC Commentary) 43rd Sess YB Int'l Law Comm'n 13 (1991), reprinted in Dickinson, Andrew, Lindsay, Rae and Loonam, James PState Immunuty: Selected Materials and Commentary (OUP Oxford 2005) 81.Google Scholar

²¹ Andrew Dickinson Chatham House transcript (5 Oct 2005) 12.

²² ibid 12–13 (not official acts); Dickinson, Andrew ‘Status of Forces under the UN Convention on State Immunity’ (2006) 55 ICLQ 427–35, 35 (not actions as representatives of the state).CrossRefGoogle Scholar

²³ R v Bow Street Metropolitan Stipendiary Magistrates and others, ex parte Pinochet Ugarte (Amnesty International and others intvervening) (No 3) [1999] 2 All ER 97 per Lord Browne-Wilkinson, 115; Lord Hope, 152; Lord Hutton, 163; Lord Saville, 169–70; Lord Millett, 179; and Lord Phillips, 190; see also R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (Amnesty International and others intervening) [1998] 4 All ER 897, per Lord Steyn, 109A. This view is consistent with decisions of United States Federal Courts: see, for example, Re Estate of Ferdinand Marcos, Human Rights Litigation 25 F.3d. 1467 (9th Cir 1994); Cabiri v Assasie-Gyimah 921 F. Supp 1188 (SDNY 1996); and Kadic v Karadzic 70 F.3d 232 (2d Cir 1995),

²⁴ For Example, Lord Browne-Wilkinson and Lord Hope focused on the Convention against Torture (115 and 152 respectively), while Lord Hutton focused on the jus cogens status of the prohibition of torture (163).

²⁵ Democratic Republic of the Congo v Belgium (Judgment) ICJ Rep (2001) para. 61. Art 3 of the convention states that the Convention is without prejudice to the immunities enjoyed by a state under international law in relation to the exercise of the functions of its diplomats (para 1) and the immunities accorded under international law to heads of state rationae personae (para 2). This article leaves open the question whether and to what extent these officials do enjoy immunities under customary international law from civil and criminal proceedings in a foreign court for genocide (a question not decided by the ICJ in Democratic Republic of the Congo v Belgium), crimes against humanity, war crimes or torture (also not decided by the ICJ) and, if they do enjoy such immunities, whether the state of nationality has a duty either to waive them with respect to such crimes or to submit the case to its own prosecuting authorities.

²⁶ Chatham House transcript (5 Oct 2005) (n 2) 13.

²⁷ Article 3 expressly excludes three immunities from the scope of the Convention, which would leave them, if the preamble of the General Assembly resolution is binding, subject to evolving customary international law: diplomatic immunities, immunities rationae personae of heads of state and immunities with respect to government aircraft and space objects.

²⁸ See generally McGregor (n 6).

²⁹ See, eg, Holubek v The Government of the United States (Judgment), Austrian Supreme Court (10 February 1961) 40 Int'l Law Rep 73 (1970). This limited exception reflects a generally accepted exception, which is incorporated in the European Convention on State Immunity 1972 and was accepted by the European Court of Human Rights in Kalogerpoulou and others v Greece and Germany Application no 59021/00 Admissibility decision (12 Dec 2002); see also Bartsch, K and Eberling, B ‘Jus Cogens vs State Immunity: Round Two’ (2003) 5(4) German Law Journal 477.Google Scholar

³⁰ The commentary to Art 12 of the 1991 ILC draft Convention stated that in addition to insurable risks, such as traffic accidents, ‘the scope of Art 12 is wide enough to cover also international physical harm such as assault and battery, malicious damage to property, arson or even homicide, including political assassination’ (citing Letelier v Republic of Chile 488 F Supp 665 (DDC 1980) (denying state's claim of immunity for political assassination in forum state).

³¹ The only reason cited by the ILC commentary to Art 12 of the 1991 draft Convention for this bar is that ‘the basis for the assumption and exercise of jurisdiction in cases covered by this exception is territoriality’. This statement, however, ignores the numerous examples of state practice permitting civil recovery for crimes under international law committed abroad, including Art 3 of the Hague Convention IV respecting the Laws and Customs of War on Land and its 1977 equivalent in Protocol I, the extensive jurisprudence over the past quarter century in civil cases in the USA and partie civile proceedings in civil law countries based on universal jurisdiction.

³² (n 5).

³³ The court found that ‘[t]he effect on the families of those who disappeared can amount to mental torture.’ Kingdom of Spain v Pinochet Judgment, Bow Street Magistrates' Court (8 Oct 1999) (Bartle, J) 38 Int'l Leg Mat 135, 140 (2000).

³⁴ Virginia Morris The International Law Commission's Draft Convention on the Jurisdictional Immunities of States and Their Property 17 Denv J Int'l L & Poly'y 395, 425 (1988–9). The Commentary to the 1991 International Law Commission's draft Convention states that ‘the scope of Article 12 wide enough to cover … intentional physical harm’, but it does not say that mental harm is excluded.

³⁵ Crimes under international law which do not necessarily involve death or personal injury include the acts of genocide of forcibly transferring children from a protected group to another group and imposing measures to prevent births within a protected group; crimes against humanity of enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, enforced disappearances and the crime of apartheid; and the war crimes of destroying or seizing property, declaring abolished, suspended or inadmissible in court the rights of enemy nationals, pillaging and conscripting or enlistment of child soldiers.

³⁶ The broad scope of extraterritorial jurisdiction in civil cases is evidenced by the recent decision of the United States Supreme Court in Sosa v Alvarez-Machain Docket No 03-339 (US Sup Ct 29 June 2004), and the decision of the Court of Appeal in the Jones case. Similarly, the broad scope of universal jurisdiction in criminal cases (including those involving partie civile claims for reparations) is evidenced by the Amnesty International study of state practice at the international and national level in 125 countries, Universal jurisdiction: The duty if states to enact and enforce legislation AI Index: IOR 53/002-018/2001 (Sept 2001) And the International Committee of the Red Cross study, Jean-Marie Henckaerts and Louise Doswald-Beck Customary International Humanitarian Law (CUP and International Committee of the Red Cross Cambridge 2005).

³⁷ In operative paragraph 2 of Resolution A/RES/59/38, the General Assembly states that it ‘[a]grees with the general understanding reached in the Ad Hoc Committee that the [Convention] does not cover criminal proceedings.’

³⁸ There is a dear distinction between the reference in the General Assembly resolution to the understanding with respect to the scope of proceedings covered and the understandings related to specific articles in the Annex to the Convention, which, according to Article 25, ‘forms an integral part of the Convention’.

³⁹ Fox, Hazel ‘In Defence of State Immunity: Why the UN Convention on State Immunity is Important’ (2006) 55 ICLQ 399–406. The action civile procedure or its equivalent is accepted and practiced in a number of civil law countries, including Austria, Belgium, Denmark, France, Luxembourg, the Netherlands, Portugal and Sweden and is possible in Finland, Germany, Greece, Italy and Spain. See Yves Donzallaz La Convention de Lugano du 16 septembre 1998 concernant la compétence judiciaire et l'exécution des decisions en matire civile et commerciale Vol III, No 5203–5272 (1998).CrossRefGoogle Scholar

⁴⁰ The Chair subsequently explained that ‘[t]he ILC in its Commentary had already identified military activities in a situation of armed conflict as exempted from the Convention’, and that it was his impression that all military activities were covered, but that it was up to states to determine whether the exemption extended that far. Chatham House transcript (5 October 2005) (n 2) 8.

⁴¹ See Fox (n 39) 401. Whether peace-keeping operations are covered by the term ‘military activities’ is not entirely free from doubt.

⁴² 1991 ILC Commentary Convention, Art 12, para 10.

⁴³ See Dickinson ‘Status of Forces’ (n 22) 430, 431–432.

⁴⁴ ibid 435.

⁴⁵ Henckaerts and Doswald-Beck 1 Customary International Humanitarian Law: Rules (Rule 149) 530; (Rule 150) 537.

⁴⁶ Application no 35763/97 123 ILR 24 (2001).

⁴⁷ Indeed, the Deputy Legal Adviser of the US State Department, who played a major role in the drafting of the Convention, has interpreted Art 26 in a manner that focuses on obligations of states to respect the sovereign rights and obligations of other states rather than the obligations of parties to the Convention to respect the rights of individuals under human rights and international humanitarian law treaties. David P Stewart ‘The UN Convention on Jurisdictional Immunities of States and Their Property’ (2005) 99 Am J Int'l L 194, 209–10.

⁴⁸ See Mc Gregor (n 5) 437. For an alternative view, see Dapo Akande's remarks, Chatham House Transcript (n 2) 18–20.

⁴⁹ Yassin Abdullah Kadi v Council of the European Union Case no T-315/01, Court of First Instance of the European Communities, Second Chamber, Extended Composition (21 Sept 2005) para 231.

⁵⁰ See Fox, HazelThe Law of State Immunity (OUP Oxford 2004) x–xi (paperback edition) 244–50.Google Scholar

⁵¹ The Deputy Legal Counsel of the United States Permanent Mission to the UN suggested on 2 Dec 2005, that ‘Article 12 should be interpreted to apply only to commercial, not governmental acts (presumably excepting torture)’. He did not mention any other crimes under international law. Similarly, the Deputy Legal Adviser of the US State Department recently state in relation to the scope of Article 12 that ‘[i]t is debatable, however, whether the traditional “public/private” distinction has entirely lost its vitality or its relevance in the area of non-commercial torts’. Stewart (n 1) 203. However, this restrictive interpretation is inconsistent with the plain language of the Convention, considerable state practice (including a number of US cases, such as Letelier, permitting civil suits for personal injuries for other governmental acts than torture), the drafting history and commentary by international law scholars during the drafting of the Convention and after its adoption.

⁵² Amnesty International letter to Emily Willmott, Assistant Legal Adviser, Foreign and Commonwealth Office (5 May 2005); Redress Immunity v Accountability: Considering the Relationship between State Immunity and Accountability for Torture and Other Serious International Crimes (Dec 2005).