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The European Court of Human Rights has been accused of undue interference with UK domestic policies. A contrary criticism – undue subservience to unsatisfactory decisions of UK courts – has more substance. The recent decision of the Fourth Chamber of the Court in Jones and others v. United Kingdom is a great disappointment.

On 14 January by a majority of six judges to one, the Fourth Chamber denied a remedy to four British expatriates tortured and detained for up to three years in Saudi Arabia. Sandy Mitchell, Bill Sampson (whose recent premature death was hastened by his ill-treatment), and Les Walker were falsely accused of involvement in the murder of another British expatriate; Ron Jones, falsely accused of a bombing, was tortured and detained for 67 days. The Court accepted the argument of the UK government that immunity of the Saudi state and its officials from legal action in UK courts, which had been upheld by the House of Lords, did not violate the Human Rights Convention.

Those who recall the Pinochet case may be puzzled. In 1998 the House of Lords denied immunity to the former Chilean dictator when the Spanish government sought his extradition to face a criminal prosecution for widespread torture and murder of his political opponents. How then can one explain granting it to the Saudis? And how can one explain the refusal of the European Court to give effect to the UN convention against torture, adopted in 1984, to which both the United Kingdom and Saudi Arabia are among the 154 State Parties? The Torture Convention was substantially enacted in UK law (Criminal Justice Act 1988 s.134) so as to give jurisdiction to UK courts over torture perpetrated anywhere in the world by public officials of any state. Moreover, the prohibition on torture is universally binding in customary international law. It is a peremptory norm (ius cogens).

It is true that the claimants were bringing a civil claim. The Torture Convention primarily focuses on criminal prosecution but it also requires that victims can secure compensation by suing those responsible. Article 14 of the Torture Convention obliges each State party to ensure “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.”. When it adopted the Convention the United States lodged a reservation expressing its understanding that the obligation was limited to acts of torture committed within its own jurisdiction, but no other state has claimed a similar interpretation. The Committee against Torture, elected by the State Parties to the Convention, rejected it in its 2012 report. “Indeed”, says the report, “article 14 requires States Parties to ensure that all victims of torture and ill-treatment are able to access a remedy and obtain redress.” Furthermore, US courts have recently denied foreign state officials immunity against civil claims alleging violation of jus cogens norms. In Samantar v. Yousef (699 F.3rd 763, 2012) the Federal Court of Appeals for the Fourth Circuit concluded “…under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts are performed in an official capacity.” A petition to the Supreme Court is pending.

In the Saudi case the seven judges of the Fourth Chamber had to consider a precedent decided by the Grand Chamber of the Court in 2002. Suleiman Al-Adsani, a UK-born officer in the Kuwaiti Air Force sued the State of Kuwait for damages for severe injuries inflicted by torture. The Grand Chamber upheld the UK court’s recognition of the immunity of the Kuwaiti government - there was no claim to immunity by individual officials - by the narrowest possible majority: nine votes to eight of the 17 strong court.

In the Saudi case the six judges were guided by the Al-Adsani ruling on state immunity but Al-Adsani did not rule on immunity of state officials. One of the judges who decided the Saudi case thought it should have been referred to the Grand Chamber and another dissented from the decision to grant immunity. The claimants are now asking for the Saudi case to be re-considered by the Grand Chamber.

The European judges naturally paid close attention to the views of the English judges who ruled on the Saudi case in the Court of Appeal and the House of Lords. All of these judges followed the Al-Adsani majority in upholding the immunity of the Saudi state, but there was a stark difference between the Court of Appeal and House of Lords judges on the liability of the individual officials. The Court of Appeal refused immunity to the officials.The House of Lords reversed that ruling.

The Court of Appeal included two judges later promoted to the House of Lords and Supreme Court: Lords Phillips and Mance. Mance stressed that giving immunity to state officials who committed acts of systematic torture denied victims access to a court - required by Article 6 of the Human Rights Convention - where, as here, the victim had no prospect of redress in the state where the torture occurred. Lord Phillips considered that the final Pinochet judgment had shown that torture could no longer fall within the official duties of a state official. In the House of Lords, however, Lord Bingham disagreed and thought that immunity did not “contradict a prohibition contained in a ius cogens norm but merely diverted any breach to a different method of settlement”. This may be plausible in theory but in practice no other method of settlement is available. The Saudis have rejected all attempts to reach a settlement voluntarily.

The Fourth Chamber of the European Court missed a great opportunity. “What a pity” said the one dissenting judge, echoing a similar comment by a dissenting judge in the Al-Adsani case. Though criminal prosecutions remain available and immunity is completely excluded by the International Criminal Court and all other international tribunals, the European court and some English judges cling to an outdated relic of nationalism. A criminal prosecution is no remedy for the victim, especially when the culprit is protected within his own state, but a civil remedy can provide redress by allowing seizure of the culprit’s property wherever it may be found. To take a practical example of the latter, at an interlocutory stage in the Saudi case, the Saudi government failed to comply with an order to pay costs to the claimants. The claimants’ lawyers sent a bailiff to impound a Saudi plane at Heathrow. The bill was rapidly paid.

The judges who upheld the immunity were well aware of the injustice they felt obliged to leave unredressed. They recognised that the tide was turning against immunity and concluded their judgement as follows: “…in the light of the developments currently underway in this area of public international law, this is a matter to be kept under review by Contracting Parties.”

This gives little comfort to the claimants. There remains hope that the Grand Chamber will review the Fourth Chamber’s ruling and reverse it, but could take a very long time – too long for the victims, whose lives have been ruined, and in the case of Bill Sampson, literally destroyed. Their need for redress is urgent. The UK government supported them while they were imprisoned, and helped to secure their release, but has failed to bring any effective pressure on the Saudis to compensate them. Several human rights organisations, including the Redress Trust, Amnesty International and Human Rights Watch, are urging the UK government to bring that pressure now.

The other essential step which the UK government must take is to support a change in UK law to remove immunity for torture in the future. The State Immunity Act 1978 excluded state immunity in other fields, notably in commercial transactions. The late Lord Archer of Sandwell, a former solicitor-general, introduced a Torture (Damages) Bill in 2008 to add torture to the list of exclusions. It was widely approved but did not reach the statute book. It should now be re-introduced and enacted with full government backing.

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