On 14 January 2014, the European Court of Human Rights (ECtHR) in Jones v. UK upheld the jurisdictional immunities of both the state and state officials, against whom Mr. Jones and other applicants brought civil claims for alleged torture committed abroad. The detailed analyses of the decision can be found on EJIL Talk! (by Philippa Web and Lorna McGregor) and Opinio Juris (by William S. Dodge and Chimène Keitner). The ECtHR has re-aligned the immunity of states and that of state officials (see Philippa Web’s post) with respect to civil proceedings to compensate the acts of torture. (photo credit)
Apart from the scope of jurisdictional immunity itself, Jones v. UK contains another interesting point: how domestic and regional courts accept and resist the interpretation offered by a human rights treaty-monitoring body.
The monitoring body before the ECtHR
In Jones v. UK, the applicants invoked Article 14(1) (right to redress) of the Convention Against Torture (1984), as one of relevant rules of international law in interpreting Article 6(1) (the right of access to a court) of the European Convention on Human Rights. Article 14(1) of the Convention Against Torture provides 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…”
The applicants argued that granting immunity would contravene the Convention Against Torture, which requires a civil remedy for acts of torture, including those committed outside the forum state. The provision of compensation under Article 14 is not territorially limited (para. 173).
This interpretation finds support from the Committee against Torture, the monitoring body for the Convention Against Torture. In July 2005, in Concluding Observations addressed to Canada, the Committee expressed its concern over the restricted availability of civil remedies to torture victims (CAT/C/CR/34/CAN, para. 5(g)). In June 2012, the Committee specified its concern, recommending that Canada consider amending its State Immunity Act (CAT/C/CAN/CO/6, paras. 14-15). In December 2012, these country-specific observations culminated in General Comment No. 3 concerning Article 14, in which the Committee expressed its position that:
“granting immunity, in violation of international law, to any State or its agents or to non-State actors for torture or ill-treatment, is in direct conflict with the obligation of providing redress to victims.” (CAT/C/GC/3, para. 42)
The ECtHR in Jones v. UK disagreed with the Committee against Torture. It observed that the “question whether the Torture Convention has given rise to universal civil jurisdiction is…far from settled” (para. 208).
The monitoring body before domestic courts
As the ECtHR noted, its disagreement was in line with earlier judicial contestation at the domestic level (paras. 208, 29-30).
In Canada, in 2002 and 2004, the Ontario Superior Court and the Ontario Court of Appeal in Bouzari v. Iran dismissed a civil action against Iran for torture by upholding Iran’s jurisdictional immunities (cases reported as 124 ILR 427, and 128 ILR 586, and analyzed by Novogrodsky 18 EJIL 939-953). The Canadian Bouzari cases were followed by the Committee’s aforementioned Concluding Observations in 2005, in which the Committee recommended that Canada “should review its position under article 14 of the Convention to ensure the provision of compensation through its civil jurisdiction to all victims of torture” (CAT/C/CR/34/CAN, para. 5 (f)).
The Observations by the Committee against Torture to Canada then invited criticisms in 2006 from British judges in Jones v. Saudi Arabia. Having noted the Committee’s critical remark regarding Canada’s state report, Lord Bingham dismissed the relevance of the Committee’s observation, noting that “[w]hatever its value in influencing the trend of international thinking, the legal authority of the Committee’s recommendation is slight” (para. 23). Lord Hoffmann found “no value” in the Committee’s position (para. 57).
It must, however, be remembered that domestic courts engage with the Committee’s observations in both accommodating and confrontational manners. For instance, in Bouzari, the Canadian Ontario Superior Court in 2002 endorsed the observation of the Canadian Attorney-General’s expert, Mr. (now Judge) Greenwood, who pointed out the absence of negative comment from the Committee against Torture regarding Canada’s state reports with respect to a civil remedy for torture committed abroad (124 ILR 427, paras. 51–52). Namely, in the 2002 Canadian decision, the Committee’s country-specific observations were employed in favor of the government, and approved by the Court.
Contesting the interpretation of human rights treaty-monitoring bodies
The Committee against Torture is one of the ten UN human rights treaty-monitoring bodies that actively publish their findings, such as General Comments/Recommendations, Concluding Observations/Comments, and Views. Under international law, states, and indirectly, their courts, may be obliged to give effect to the monitoring bodies’ findings if they reflect established treaty interpretation. It can also be argued that there is an international obligation of procedural nature to give serious consideration to the Views of human rights treaty bodies concerning individual complaints (see the analysis by Alebeek & Nollkaemper (2012) at 385–397). Yet not all findings reflect established interpretation; the existence of the procedural obligation is not settled; and at any rate, the obligation may not apply to General Comments and the Concluding Observations. Under domestic law, domestic executive organs may be obliged to give effect to the Views regarding individual communications. Nevertheless, such domestic legislation is limited, and, at any rate, has little relevance in obliging or enabling judicial organs to give effect to the Views, much less General Comments and the Concluding Observations.
Overall, judicial engagement with the findings of UN human rights treaty-monitoring bodies, including those of the Committee against Torture, depends largely on the discretion of judges. This has created space for judicial engagement through modalities of both accommodation and contestation. A more nuanced understanding is thus required with regard to the observation made by the ILA’s Committee on International Human Rights Law and Practice (1997-2008) in its 2004 Berlin report, which analyzed an extensive body of court decisions. The 2004 report observed that “most courts have recognised that…the treaty bodies’ interpretations deserve to be given considerable weight” (para. 175, emphasis added). At least from the confrontational responses to the findings of the Committee against Torture, as seen in Bouzari, Jones v. Saudi Arabia, and now Jones v. UK, it appears that domestic and regional courts occasionally discount and contest the interpretation put forward by the treaty-monitoring bodies.