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19/01/2006

State Immunity In Civil Actions For Fundamental Violations Of Human Rights

Presentation by:
Yves Le Bouthillier
President of the Law Commission of Canada

Raoul Wallenberg International Human Rights Symposium
New York
January 19, 2006

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Good afternoon,

I am truly delighted to have this opportunity to address such a distinguished and learned audience. The theme of our discussion is Human Rights, Law and Security in the Contemporary World. It is a very broad topic; one that could be developed in a myriad of directions. My focus will be on holding foreign State accountable in domestic courts for fundamental violation of human rights as a possible means to further human security, a topic linked to the remarks of a previous speaker, professor Leitner. But first let me say a few words about the Law Commission and explain how the issue I will address fits with the on going projects of the Commission.

The Law Commission is an independent federal agency created by an Act of Parliament and whose purpose and mission is to engage Canadians in the renewal of the law to ensure that it is relevant, responsive, effective, just and equally accessible to all. It makes recommendations to Parliament on law reform. Like the topic of this panel, the Law Commission of Canada has a very broad mandate and its work is correspondingly diverse.

One of the current projects of the Commission is to examine the impact of globalization on Canadian law. Next month we will release a discussion paper on this issue in which we will explore two main themes, each of which raises in turn many questions.

The first theme deals with who should be involved and what mechanisms should be in place in Canada to increase transparency, participation and accountability in the negotiation, acceptance and implementation at the domestic level of international norms. This requires us to examine the role that the federal executive, Parliament, parliamentarians, provinces and other actors play or could play in building the ever converging relationship between international and domestic law.

The second theme concerns Canada’s approach to extraterritorial norms in an era of globalization, including to what extent Canada should regulate the conduct of its nationals and of non-nationals abroad. With regard to this second theme, one of the questions we raise in our discussion paper is the extent to which Canadian law can respond to extraterritorial violations of international treaties or customary norms aimed at protecting human rights and in particular whether victims of these extraterritorial human rights violations at the hands of a foreign State can obtain a legal remedy in Canada. We ask whether Canada should abandon the doctrine of State immunity in case of transnational human rights litigation for extraterritorial breaches of fundamental human rights? Should States who torture be immune from lawsuits in Canadian courts? Would human security be better achieved if foreign State could be held to account in our own domestic courts?

Until the 1970s, the Anglo-American legal community generally adhered to the notion that States, being equal in sovereignty and dignity, could never be subjected to the judicial processes of other States. Today, the doctrine of State immunity is not absolute, but rather relative or restrictive. A foreign State’s commercial activity, for instance, is no longer protected from proceedings. The commercial activity exception was developed in response to the increased presence of the State in the marketplace and the need to foster predictability and fairness in commercial dealings.

International law has come to recognize other exceptions to immunity, most notably, when a foreign government submits to the jurisdiction of the forum State and also in civil proceedings arising from death or personal injury occurring within the forum State. While some exceptions are derived from customary international law (e.g. the exceptions for commercial activity and waiver), others (e.g. the local torts exception) find their origin in the law of treaties, most notably the 1972 European Convention on State Immunity and the 2004 United Nations Convention on the Jurisdictional Immunities of States and their Property. However, existing multilateral conventions on State immunity remain widely unpopular – there are only 8 parties to the European convention, and 5 signatories to the UN Convention – with the result that, as it stands today, courts continues to apply immunity principles as a matter of domestic law. (Common law - e.g. New Zealand and Ireland, statute law - e.g. Canada and US - or a combination of both - e.g. United Kingdom).

Transnational human rights claims strain conventional ways of thinking about State immunity. Why? Because they tend to involve violations of human rights that have achieved the status of peremptory norms of international law, such as the prohibitions against torture, genocide, slavery and extrajudicial killing.

These peremptory norms express our highest and most fundamental standards. They embody and safeguard the values and interests of the international community as a whole, as opposed to those of a particular State or group. They represent absolute limits on the exercise of State power.

The currently recognized exceptions to State immunity do not address these norms. Civil actions for extraterritorial torture are very different from commercial activity exception where private interests of parties are involved. Civil actions for extraterritorial torture implicate the vital security interests of the international community as a whole.

Difficult questions clearly need to be answered. On what basis should immunity be granted or denied in civil proceedings for extraterritorial torture? Can such acts fairly be characterized as sovereign acts of State to which immunity would apply?

Judges Higgins, Kooijmans and Buergenthal touched on the question of State functions in their Joint Separate Opinion in the decision of the ICJ in the Arrest Warrant case. They stated at paragraph 85 of their reasons:

It is now increasingly claimed in the literature that serious international crimes cannot be regarded as official acts because they are neither normal State functions nor functions that a State alone (in contrast to an individual) can perform. This view is underscored by the increasing realization that State-related motives are not the proper test for determining what constitutes public State acts. The same view is gradually also finding expression in State practice, as evidenced in judicial decisions and opinions¹.

The European Court of Human Rights, in a very close decision, opted for State immunity in Al-Adsani v. United Kingdom (2001). A Kuwaiti national sued his government in the UK, and his claim was dismissed because Kuwait was held to be immune under English law. In Strasbourg, Al-Adsani alleged that by upholding Kuwait’s immunity, the British State Immunity Act prevented him from accessing justice, a right that is guaranteed under Article 6 of the European Human Rights Convention.

The 17-judge Grand Chamber was divided 9 to 8. While the majority recognized that the jus cogens nature of the torture prohibition entailed the removal of immunity of individuals in criminal trials – as was done in Pinochet for instance – it observed that no similar rule of international law had emerged with respect to the immunity of States in the context of civil proceedings. The eight-judge minority strongly disagreed with this distinction between criminal and civil proceedings. They noted in their joint dissenting opinion, and I quote: “It is not the nature of the proceedings which determines the effects that a jus cogens rule has upon another rule of international law, but the character of the rule as a peremptory norm and its interaction with a hierarchically lower rule. The prohibition of torture, being a rule of jus cogens, acts in the international sphere and deprives the rule of sovereign immunity of all its legal effects in that sphere.” Given the disagreement in Strasbourg, one can safely surmise that the normative hierarchy debate will likely continue.

The notion that international law is silent on the relationship between State immunity and peremptory norms was also seriously cast into doubt in a recent case. In Ferini v. Germany (2004), an Italian civil claim in relation to forced deportation and slave labour during WW2, the Italian Court of Cassation ruled that Germany was not entitled to claim immunity for violations of peremptory norms.

This issue was recently addressed in Canada. In Bouzari v. Iran an Iranian national sued his government in the province of Ontario for torture. In June 2004 the Court of Appeal for Ontario held Mr. Bouzari’s lawsuit to be barred by the Canadian 1982 State Immunity Act, which contains no exceptions for human rights violations. Nor could an exception be created as a matter of common law since, according to the Court of Appeal, the Canadian statute must be regarded as a complete code with respect to immunities. The courts further adopted the majority’s view in Al-Adsani that international law contained no rule requiring that immunity be denied in civil claims for extraterritorial torture.

However, some commentators have suggested since that it may be that State parties to the UN Convention Against Torture, including Canada, have an expressed obligation to deny the immunity of nations that practice torture. Article 14 of the Torture Convention directs, and I quote, that “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.” Until recently, the orthodox reading of Article 14 would have States compensate individuals only if they had been tortured in their own territory. However, in May 2005, upon hearing Canada’s report that the Bouzari case had been dismissed, the Committee Against Torture – the body that monitors State compliance with the Torture Convention – expressed concerns that the absence in Canada “of effective measures to provide civil compensation to victims of torture in all cases” - that is - including cases against States, not just individual defendants. The Committee then recommended that Canada “review its position under Article 14 of the Convention to ensure provision of compensation through its civil jurisdiction to all victims of torture.”²

I note the use of the words “all victims of torture” in the Committee’s report, which imply that both Canadian and foreign victims of torture are designated.³ Accordingly, and most importantly, the ultimate implication of the Committee’s recommendation appears to be that Article 14 targets, contrary to what the Court of appeal of Ontario found in Bouzari, both domestic and extraterritorial torture. As pointed out however by Edward Hyland in the book edited by professor Craig Scott of Osgoode Hall Law School, Torture as Tort, article 14 leave it to “each State to determine the means by which the obligation for civil redress will be fulfilled – whether for instance through a private civil right or statutory right”.⁴ It must be noted that the Committee Against Torture’s reading of the Convention is not binding, but it is its persuasive authority that could properly be invoked in a court of law.

Since the decision in Bouzari it is not only foreign nationals that have sought redress in our courts for extraterritorial torture, but also Canadian citizens. I will note in passing that Mr. Bouzari has obtained Canadian citizenship since the decision of the Court of appeal. But in addition to Mr. Bouzari - and since his case - other cases of have come to the attention of the public:

• Jamil Sarif Saleh of Ottawa sued the United Arab Emirates for torture. His case was dismissed on the basis of the ruling in Bouzari.

• Maher Arar of Ottawa initiated an action against Syria in Canada for torture. A Commission of Inquiry is currently underway to determine the role Canadian authorities played in relation to Mr. Arar’s ordeal. His lawsuit against Syria in Ontario has been dismissed on the basis of the Bouzari ruling. Mr. Arar has also filed a claim in the Federal Court for the Eastern District of New York against US authorities under the Alien Tort Statute and Torture Victim Protection Act.

• Zhara Kazemi of Montreal was tortured and beaten to death while in detention after being arrested for taking pictures of a student demonstration in Tehran. Canadian pressure on the Iranian government to account for these actions have thus far been unsuccessful.

• William Sampson of Vancouver was imprisoned for nearly two years in Saudi Arabia. He launched a lawsuit for torture in England against Saudi officials, which is still ongoing. Indeed, in 2004, the English Court of Appeal heard Mr. Sampson’s case, along with the case of British national Ronald Jones who also claims he was tortured in Saudi Arabia. While Sampson and his co-plaintiffs sued individual Saudi officials, Jones’ case targeted the Kingdom of Saudi Arabia itself. The court followed its previous ruling in Al-Adsani and held the Jones claim to be barred by the State Immunity Act. The Sampson claim was allowed to proceed however since State officials are not included in language of the Act and that, in any event, torture could not be countenanced as a proper State function to which immunity would apply. In essence, the Court of Appeal extended the Pinochet No III ruling to civil claims against individuals. The House of Lords will hear the cases in April of this year.

Efforts to amend Canada’s State Immunity Act have already been undertaken though have not yet come to fruition. A Bill was tabled in the Senate last April (Bill C-367), which would have caused the removal of immunity of any State that supports terrorist activities. Of course, the Bill expired with the dissolution of Parliament last November. Another draft Bill contained an exception to State immunity in proceedings for any of the core international crimes defined under the Rome Statute, namely, genocide, war crimes and crimes against humanity. These acts are prohibited under Canadian criminal law pursuant to the War Crimes and Crimes Against Humanity Act. However it was not introduced before Parliament dissolved. These initiatives do however demonstrate the interest of many on this issue.

It is an issue that no doubt merits further debate and study. The release of the discussion paper of the LCC next month will hopefully help in this process. State immunity as well as the 24 other questions raised in the discussion paper will be the object of forthcoming public consultations and discussion forums to which all Canadians and other interested parties will be invited to participate.

Thank you.

¹ The judicial decisions which the judges refer to are the Eichmann case (Supreme Court of Israel), the Bouterse case (Amsterdam Court of Appeal) and the Pinochet case (House of Lords). Those instances concerned violations of peremptory norms of international law.

² Conclusions and recommendations of the Committee Against Torture regarding Canada, May 2005. Available at : http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CAT.C.CR.34.CAN.En?OpenDocument

³ See E.M. Hyland « Signficantly, the right to adequate and fair compensation imposes an obligation on states to satisfy that right without limitation to where that torture occurred. » p.406 in C. Scott (ed.) Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation, Oxford, Hart Publishing, 2001.

⁴ Ibid.