Introduction
The Sassi and Benchellali v. France case in the European Court of Human Rights (ECtHR), that dealt with immunity of former United States (US) officials in criminal proceedings for allegations of torture in the Guantanamo Bay detention camp, joins the ongoing discussion on immunity for State officials (the text of the decision is available in French, see here, for a non-official English translation, via Google Translate, see here). In particular, the case sheds light on the debate concerning the existence of exceptions to State immunity for violations of jus cogens norms.
The debate concerning such exceptions revolves around article 7 of the International Law Commission (ILC) Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction (the “Draft Articles”), according to which immunity ratione materiae does not apply to jus cogens violations, like torture. Sassi and Benchellali came in a timely fashion, as the ILC continued its work on the Draft Articles during its 75th summer session (for discussion on dilemmas prior to the session, see here).
Against this backdrop, this blogpost aims to evaluate the decision of the ECtHR, in an effort to push forward the discussion on immunity of State Officials for jus cogens violations. As I will show, the Sassi and Benchellali case demonstrates the need to balance between the obligation to prosecute for international crimes, and between the desire to promote harmonization of competing views on the topic, in order to safeguard State sovereignty and promote legal validity and stability.
Background – the Legal Situation Leading Up to the Ruling
The legal background to Sassi and Benchellali v. France can be found in the ECtHR’s jurisprudence, in cases dealing with jus cogens violations. A starting point for the discussion, is the Al-Adsani v. the United Kingdom case from 2001, in which the ECtHR dealt with the question of the compatibility of the customary rules on State immunity with Article 6 of the European Convention on Human Rights, that deals with the right to a fair trial, in the context of allegations of torture. In that case, the ECtHR found that while there is tremendous importance to the jus cogens prohibition of torture, there is no exception to immunity ratione materiae (para.66). In other words, a State enjoys immunity from civil suit in the courts of another State where acts of torture are alleged.
A similar question was presented before the EHtHR again in 2014, in the Jones and Others v. the United Kingdom, in which the Court found that immunity to State officials should be granted for alleged violation of jus cogens (in that case, for acts of torture) (para.215). The Court added that due to developments international law, “this is a matter which needs to be kept under review by Contracting States”. A similar view was adopted in J.C. and Others v. Belgium in 2021 (para.75). The most recent development was in M.M v. France, where the court discussed the personal immunity of the sitting Head of State (President Al-Sisi of Egypt), and stressed that similar to its position toward immunity ratione materiae, a sitting Head of State enjoys absolute immunity from criminal jurisdiction in foreign domestic courts (para.87-88).
The Facts of the Sassi and Benchellali
The case revolves around allegations by two French nationals arguing for unlawful detention and torture at the US detention camp in Guantanamo Bay during 2002-2004. The petitioners lodged a civil complaint in France requesting French authorities to investigate and prosecute US senior officials of different positions and ranks, based on allegations concerning violations of liberty and acts of torture.
The case was initially dismissed by French courts on grounds of immunity ratione materiae of the officials, as the actions were State acts under US governmental counterterrorism policies, which are covered by sovereign immunity (para.25). In doing so, the French courts took the approach that no jus cogens exceptions exists to State officials immunity, or in the words of the Court of Cassation: “Under international law, the crimes denounced, whatever their gravity, do not fall within the exceptions to the principle of immunity from jurisdiction.” (para.26). It should be noted, that in a highly anticipated judgment in 2023, the Court of Cassation has confirmed the use of universal jurisdiction against a former Syrian official. In addition, questions of consistency arise when comparing the present case with other instances of arrest warrants for State officials, for example relating to the former Syrian President Bashar al-Assad.
Jus Cogens Exceptions to Immunity Ratione Materiae
In Sassi and Benchellali, this time around before the ECtHR, the applicants argued that the immunity granted by French courts restricted their right of access to justice under Article 6(1) of the European Convention on Human Rights. In order to reach its ruling, the ECtHR had to decide if international law provides with exceptions to immunity in cases of jus cogens violations.
In reaching its decision, the ECtHR reiterated the view of the ICJ in Germany v. Italy (2012), which rejected the view that a jus cogens exception to State immunity exists (para.97), since there is no treaty anchoring such a rule, nor a customary rule that has crystallized. Indeed, the ECtHR noted that in the current state of international law, it was not permissible to say that States do not enjoy jurisdictional immunity in cases relating to serious violations of human rights law or international humanitarian law, including jus cogens rules (para.53)
In its ruling, the ECtHR evaluated if indeed the ILC’s Draft Articles indicate a shift in customary law. Prior to referring to the view of the ECtHR, some background on this article is due.
As noted by the ILC, draft article 7 recognized an exception to the rule on immunity ratione materiae, in cases of jus cogens crimes, due to two grounds (p.230): (1) an alleged “discernible trend” restricting the applicability of ratione materiae immunity in cases involving international crimes (p.232); (2) the desire to promote unity and systemic interpretation of questions of immunity under international law (p.234). It should be noted, though, that the rationales behind Article 7 raise some doubts. It was suggested by Shen that some methodological problems exist in the ILC commentary, and Webb noted that while the “The quest for coherence is admirable… a systemic approach can also go too far – stretching analogies and ignoring differences, seeing a trend where there is none”. In the view of Webb, each type of immunity is a world and beyond, with each regime was developed largely step-by-step through domestic jurisprudence, rather than via a top down enterprise as the attempt made by the ILC in their Draft Articles). Further, former ILC member Sean Murphy doubted the existence of State practice and opinio juris to support the existence of a trend recognizing the exception enumerated in Article 7 (for more objections, see former ILC member, Mathias Forteau). In particular, almost none of the judgments cited in the ILC commentary as evidence of a “discernible trend” on limiting immunity, actually involved a conviction of a foreign official for whom his State invoked immunity
In the Sassi and Benchellali v. France case, the ECtHR found that the proposed article 7 of the ILC Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction does not reflect an existing rule under international law (para.61). In doing so, the ECtHR recognized, inter lineas, that this proposed article can represent, at best, lex ferenda. My reading is supported by the ECtHR statement that “the applicants have not provided any evidence to support the conclusion, particularly in the light of the work of the ILC (paragraphs 28, 30 and 39 above), that the state of international law has developed to such an extent since 2012 that the findings made in the above-mentioned cases are no longer valid” (para.61). As such, it seems that the ECtHR doubts the existence of the “discernible trend” identified by the ILC.
Whilst the court relied on cases as Al-Adsani v. the United Kingdom and Jones and Others v. the United Kingdom, which revolves around immunity from civil litigation against foreign officials in the context of proceedings requesting monetary compensation, it should be clear that the Court had to engage with a different issue: immunity in criminal cases for torture, rather than civil suits for torture. The ruling in Sassi and Benchellali, in the words of the Court, is a development of its position in M.M v. France:
“according to which, by analogy with what it has already recognized in relation to immunity ratione materiae, under the rules of customary international law, Ministers for Foreign Affairs and Heads of State in office enjoy absolute immunity from criminal jurisdiction abroad” (para. 62).
Therefore, the Court made it clear: immunity ratione materiae is absolute, similar to immunity for Heads of State.
Finally, while the ECtHR rejected the suggested jus cogens exception, it did not rule out the possibility of a development of such a customary exception in the future (Sassi and Benchellali v. France, para.53). Yet, as of today, the ECtHR was not convinced that there is indeed evidence for such a trend. This underscores the need to refine the approach of the ILC in future drafts, in order to promote more unity with States and tribunal’s concerns before asserting a possible global trend.
In sum, the Sassi and Benchellali judgment contains three main takeaways, of relevance to our discussion: (1) clarification on the vast scope of immunity ratione materiae and the lack of jus cogens exception in criminal cases; (2) equivalence in the scope of immunity ratione materiae and immunity ratione personae (3) the lack of customary status of the Draft Article 7. One problematic aspect of the ruling, it should be noted, is that the Court does not explain sufficiently why it treats State immunity in civil suits as similar normatively to ratione materiae immunity of State officials in criminal cases. In other words, there was room to explain why even if one could not sue a State for compensation in a French court, there can nevertheless be criminal prosecution of a former official of that State.
The Status of Draft Article 7 – Where Are We at Currently?
Draft article 7 is a focal point to the international debate of the ILC’s draft articles. Not surprisingly, the length of the combined comments of States on this article alone is 50 pages long, substantially longer than other articles (see for the combined document of Comments and observations received from Governments). In addition, the flux of differing views on this issue also impacted the long-standing tradition of the ILC practice of adopting articles by consensus, and article 7 was adopted by a regular vote.
The ECtHR’s position supports the stated positions of more than 20 States, that expressed a negative position towards draft article 7 (for an overall assessment, see here). In the view of Brazil, for example, the existing status quo is crucial for the “stability of international relations, as it prevents the abusive, arbitrary and politically motivated exercise of criminal jurisdiction to be used against State officials”.
States opposing to draft article 7 also highlighted the lack of evidence to determine that a trend is occurring in limited. For example, Singapore’s comments, p.2, notes that “There also remains insufficient State practice or jurisprudence to support a proposition that exceptions to immunity of State officials exist under international law”. Similarly, according to the approach adopted by the United States, “Draft Article 7 is not supported by widespread and consistent State practice and opinio juris and, as a result, it does not reflect customary international law” (p.9). Other States also took the view that Article 7 is, at best, progressive development of international law (such as the United Kingdom, Japan, Australia and Israel). As noted above, the ECtHR adopted a similar approach, in its statement that: “the applicants have not adduced any evidence from which it could be concluded, particularly in the light of the work of the ILC…that the state of international law has developed to such an extent…” (para. 61).
Conclusion
As can be seen, the debate on exceptions to immunity of State officials is still alive in kicking. Looking ahead, it will be beneficial to aspire for harmonization between the differing views, in a way that will balance between the need to promote prosecution of international crimes and avoiding impunity and between safeguarding State sovereignty. The ILC should attribute importance to the consistent view presented by the ECtHR, in light of the important role of international tribunals in clarifying the essence of international law, and anchoring its impact on reality.
On a broader level, the rule that will be adopted should advance stability in international relations and promote friendly relations between States. In this regard, it was noted by Saudi Arabia, that the lack of a consensus on the extent of immunity for State officials could “lead to an increase in arbitrary accusations against officials of foreign States, creating serious tensions in international relations.” The ILC commentary notes that a balance between the differing views “will ensure that immunity fulfils the purpose for which it was established (to protect the sovereign equality and legitimate interests of States) and that it is not turned into a procedural mechanism to block all attempts to establish the criminal responsibility of certain individuals (State officials) arising from the commission of the most serious crimes under international law”. A possible solution, suggested by scholars like Forteau, and also by States, like Brazil, is to promote a new treaty-based rule, rather than progressive development of a contested norm. This avenue can put aside the need to reconcile conflicting State views, and present an option to opt in to, in a way that will prevent prejudicing sovereignty and inhibiting on the possibility to promote international cooperation in a polarized era.
