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Immunities and Torture
Snapshot
Torture is jus cogens (Art 53 VCLT; Furundzija 1998; Al-Adsani para 61), yet states and officials still enjoy immunity for the gravest wrongs. Two stories. Criminal: Pinochet (No 3) [2000] 1 AC 147 stripped a former head of state of ratione materiae for torture — Art 1 CAT 1984 makes torture by definition official, so reading it as "official function" would render the Convention a dead letter. Civil: Al-Adsani (9–8) and Jones [2006] UKHL 26 upheld immunity in damages claims; the ICJ in Germany v Italy (2012) paras 92–97 generalised the rule. The bridge is Hazel Fox's procedure / substance distinction; the dissent (Rozakis–Caflisch; Bianchi) denies it holds. Position: internally consistent, normatively shabby. Fox protects state-to-state diplomacy by walling off the civil forum from a hierarchy conceded everywhere else; the criminal-track carve-out and the ILC's emerging Art 7 list are the partial corrective.
1. ISSUE — torture as jus cogens, but immunity persists
State immunity is a procedural rule preventing adjudication where the forum would otherwise have jurisdiction. Its rationales — sovereign equality (par in parem non habet imperium), non-intervention, comity, dignity — are at Al-Adsani para 54. The shift from absolute to restrictive immunity carved out a commercial exception (jure gestionis); the open question is whether torture, genocide and CAH — plainly jure imperii — should generate a further exception by their peremptory status.
Premises settled. Torture is jus cogens (Furundzija 1998; Pinochet; Al-Adsani para 61); VCLT Art 53: peremptory norm "from which no derogation is permitted". Hierarchy seems to follow. Yet courts refuse that conclusion in the civil forum and against incumbent personal-immunity holders.
Two cuts do the work. Civil / criminal: Pinochet v Al-Adsani/Jones. Substance / procedure: immunity "does not contradict" the prohibition; it merely diverts adjudication elsewhere. Neither cut is doctrinally innocent.
2. RULE — the immunity matrix
Two axes: who is immune, and from what kind of proceedings.
- State immunity — SIA 1978 s 1; restrictive in custom. Civil: Al-Adsani, Jones, Germany v Italy.
- Ratione personae — incumbents (heads of state, heads of government, foreign ministers, diplomats). Full immunity from foreign criminal jurisdiction during office, private and official acts (Yerodia paras 53–54; ILC draft Art 4). Lapses on leaving office.
- Ratione materiae — functional. Official-capacity acts, surviving office. Site of the torture exception (Pinochet; ILC draft Art 7).
- Forum — national v international courts (Art 27 ICC; contested against non-parties — Bashir 2019; Mongolia/Putin 2024).
The jus cogens claim cuts across these. Currently it bites at ratione materiae in criminal proceedings (Pinochet); not at state immunity in civil proceedings (Al-Adsani, Jones, Germany v Italy); not at incumbent ratione personae (Yerodia); contested before international tribunals (Bashir, Putin).
3. The cases
- Facts
- Spanish extradition request: torture in Chile 1973–1990 by the former head of state.
- Holding
- No ratione materiae for torture (post UK entry into force of CAT / s 134 CJA 1988).
- Reasoning
- Art 1 CAT defines torture as inflicted "by or with the consent or acquiescence of a public official". If that made torture an "official act" attracting ratione materiae, every torturer in uniform would be immune and the Convention a dead letter.
- Facts
- Civil damages claim for torture in Kuwait; UK courts upheld Kuwait's immunity under SIA 1978 s 1. Strasbourg complaint: Art 6 ECHR.
- Holding (9–8)
- No Art 6 violation. Immunity pursued the legitimate aim of comity (para 54) and reflected "generally recognized rules of public international law".
- Para 61
- Torture's jus cogens status accepted, but Pinochet and Furundzija distinguished as criminal liability of an individual, whereas Al-Adsani concerned civil immunity of the state. No "firm basis" to conclude that a state loses civil immunity for alleged torture.
- Dissent
- Rozakis, Caflisch, Wildhaber, Costa, Cabral Barreto, Vajic: the civil/criminal distinction is "not consonant with the very essence" of jus cogens. The peremptory character of the rule does the work, not the procedural label. The 9–8 split is the doctrinal news.
- Facts
- Damages for torture against Saudi state and named officials (colonel, police, prison governor).
- Holding
- Immunity upheld under SIA 1978 s 1; suing the agents cannot circumvent the state — in official capacity ratione materiae attaches (para 10).
- Reasoning
- (i) Pinochet distinguished as criminal universal jurisdiction "mandated by the Torture Convention" (para 19); (ii) Art 14 CAT does not assert universal civil jurisdiction (para 25); (iii) no customary duty over jus cogens breaches (para 27); (iv) Lord Bingham, quoting Fox, deploys procedure / substance (para 24).
- Strasbourg
- Affirmed (paras 199–215); para 215 conceded the area "needs to be kept under review".
- Facts
- Italian courts entertained civil claims by victims of WWII Nazi atrocities (forced labour, the Distomo and Civitella massacres). Cassation in Ferrini (2004) had held Germany not immune.
- Holding (paras 92–97)
- State immunity is customary law and applies. The jus cogens argument fails — "no conflict" between substantive peremptory rules and the procedural rule of immunity: they "address different matters". State-immunity rules "are procedural in character ... They do not bear upon the question whether or not the conduct ... was lawful or unlawful." Italy in breach.
- Aftermath
- Sentenza 238/2014: Italian Constitutional Court refuses domestic effect to the ICJ ruling because it conflicts with supreme constitutional principles of judicial protection (Arts 2, 24).
- Holding (paras 53–54)
- An incumbent foreign minister enjoys full immunity from foreign criminal jurisdiction throughout office, including for private acts, "to ensure the effective performance of [his] functions". No exception for international crimes.
- Para 60 (immunity / impunity)
- Immunity is not impunity: home-state prosecution; waiver; lapse on leaving office for private acts and acts before/after office; "certain international criminal courts". Four routes — narrow in practice.
- Holding
- "Neither State practice nor opinio juris that would support the existence of Head of State immunity under customary law vis-à-vis an international court." Art 27 Rome Statute removes immunities even for a non-state-party's incumbent head. Same logic applied to Mongolia for not arresting Putin in 2024.
- Contested
- Treaty effects on third-party heads collide with pacta tertiis (VCLT Art 34). Akande and others criticise the customary claim.
- Art 53 VCLT 1969
- Peremptory norm "from which no derogation is permitted"; conflicting treaties void.
- Art 1 CAT 1984
- Torture as suffering "inflicted by or with the consent or acquiescence of a public official". The phrase that bites in Pinochet.
- Art 27 ICC Statute 1998
- Applies "equally to all persons without any distinction based on official capacity"; immunities "shall not bar" jurisdiction.
- ILC Second Report A/CN.4/780 (2025)
- Draft Art 7: ratione materiae does not apply to genocide, CAH, war crimes, apartheid, torture, enforced disappearance.
4. CRITIQUE — substance v procedure
The bridge is Hazel Fox's procedure / substance distinction, formalised by Lord Bingham in Jones para 24 and echoed by the ICJ in Germany v Italy para 93. Jus cogens is substantive; immunity is procedural; they never collide; the hierarchy claim is true but vacuous, with nothing to bite on.
The dissent (Rozakis–Caflisch; Bianchi; in part the Italian Constitutional Court) has three replies. First, the cut is artificial: the substantive duty to remedy torture (CAT Arts 2, 14) presupposes a forum, so blocking the only forum hollows the substance out. Second, a peremptory rule is hierarchically superior to any inconsistent rule — labelling is not law. Third, peremptory norms entail procedural consequences (redress is part of the secondary regime).
The civil/criminal cut faces pressure too. English courts never drew it domestically; Strasbourg invented it. Pinochet's Art 1 CAT argument turns on the Convention's structure, not on criminal proceedings. Jones reads Pinochet as narrow extradition ratio; but if torture is universally cognisable, impenetrable state immunity in the civil dimension still produces a near dead letter.
Structural critique: Fox protects state-to-state diplomacy, which is what immunity has always been for. But the civil forum is where victims can actually reach states — no Pinochet for Saudi Arabia, no ICC for Germany — and walling it off immunises the state from the only justice available to its victims. Yerodia's four alternative routes were open neither to the Italian victims nor to Mr Al-Adsani.
Bashir / Putin is the converse problem. Art 27 cannot override the customary immunity of a non-party head of state (VCLT Art 34). The Appeals Chamber's claim that "neither state practice nor opinio juris" supports such immunity vis-à-vis an international court is difficult to sustain against state objections (Mongolia, China, AU, Russia). Opposite vice to Al-Adsani: over-eager to remove immunity, doctrinal accuracy suffers.
5. EVALUATION — coherence or impunity?
Defensible position: internally coherent, normatively unsatisfying. Fox protects state-to-state relations from routing through national civil courts of variable independence; any other rule licenses forum-shopping and weaponises domestic courts as instruments of foreign policy. Ferrini showed exactly the unilateralism sovereign equality is designed to suppress.
But coherent is not principled. Three things are true at once. (i) The criminal track has carved a torture exception (Pinochet) and is moving toward a list (ILC Art 7). (ii) The civil track refuses to follow (Al-Adsani, Jones, Germany v Italy). (iii) The lone displaced ex-dictator may be prosecuted while states qua states remain shielded from financial liability for the same acts. The asymmetry is political, not jurisprudential.
The law is making a policy choice dressed up as a logical one. "Merely procedural" is stipulation; "no conflict" is verbal. The Al-Adsani dissent, Bianchi and (cautiously) Tomuschat refuse the consolation; they differ in remedy — Bianchi for a domestic-court exception, Tomuschat more circumspect.
6. CONCLUSION
Coherent on its own terms; partly betraying the system's normative claims, structurally not accidentally. The Art 53 VCLT / Furundzija hierarchy is honoured in what is said and dishonoured in what is done. Pinochet is real but narrow; civil-track refusal is tidy yet practically coextensive with state impunity; the ICC line cuts the other way on weaker foundations. Moderate corrective: ILC Art 7 hardens into custom; Fox is retained in the civil forum but with a narrow territorial-atrocity exception (the Ferrini intuition without its overreach); ratione personae stays, with international tribunals doing the rest.
Academic voices
"State immunity is a procedural rule going to jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement. Arguably then there is no substantive content in the procedural plea of State immunity upon which a jus cogens mandate can bite."
— Hazel Fox & Philippa Webb, Law of State Immunity (3rd ed 2013) 75; quoted by Lord Bingham in Jones [2006] UKHL 26 [24]. Verbatim.
"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 ... deprives the rule of sovereign immunity of all its legal effects in that sphere."
— Joint dissent (Rozakis, Caflisch, Wildhaber, Costa, Cabral Barreto, Vajic), Al-Adsani v UK. Verbatim (extracted).
The Fox formulation succeeds only by stipulation. The substance of a peremptory norm includes the duty of redress; walling off the only available forum as "merely procedural" gives the substantive rule with one hand and takes it back with the other. State immunity for grave breaches is not a neutral allocation of jurisdiction but a substantive insulation of the wrongdoer.
— Andrea Bianchi, "Denying State Immunity to Violators of Human Rights" (1994) 46 Austrian J Pub Int'l L 195. Paraphrased.
Grave human-rights violations do not, of themselves, displace state immunity in civil proceedings — not because the system endorses the conduct but because civil-jurisdictional consequences cannot be inferred from the substantive prohibition without textual or customary support that does not yet exist. A defence of order, not of impunity.
— Christian Tomuschat, "L'immunité des États en cas de violations graves des droits de l'homme" (2005) 109 RGDIP 51. Paraphrased.
"The immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity ... While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law."
— ICJ, Arrest Warrant (DRC v Belgium), ICJ Reports 2002, para 60. Verbatim (extracted).
Common pitfalls
Exam answer skeleton
- FRAME. Torture is jus cogens, immunity persists. Answer-line: coherent but normatively shabby; criminal-track exception the partial corrective.
- RULE. Matrix: state immunity (SIA 1978 s 1); ratione personae (Yerodia); ratione materiae (Pinochet); national v international tribunals (Art 27 ICC).
- APPLICATION. Criminal: Pinochet, Art 1 CAT, dead-letter; Bashir/Putin. Civil: Al-Adsani 9–8 + dissent; Jones + Fox; Germany v Italy + Sentenza 238/2014.
- CRITIQUE. Does substance/procedure hold? Rozakis–Caflisch, Bianchi: no; ICJ, Tomuschat: yes. Art 1 CAT travels.
- EVALUATION. Asymmetry: ex-dictator prosecuted, state immune. Redress (Bianchi) v forum-shopping fear (Al-Adsani, Germany v Italy).
- CONCLUSION. ILC Art 7 hardens; narrow territorial-atrocity carve-out; ratione personae stays.
Checklist
- Structure stated up front.
- Authorities anchored: Art 53 VCLT; Art 1 CAT; Art 27 ICC.
- Ratione personae (Yerodia) v ratione materiae (Pinochet; ILC Art 7).
- Al-Adsani with 9–8 split and dissent.
- Jones with Bingham para 24 and the Fox quote.
- Germany v Italy paras 92–97 and Sentenza 238/2014.
- Engaged Fox, Bianchi, Tomuschat, the joint dissent.
- Took a position.