De-immunizing torture: reconciling human rights and state immunity.

• Author: Forcese, Craig

In May 2005, the United Nations Committee Against Torture expressed "its concern at ... the absence of effective measures to provide civil compensation [in Canada] to victims of torture in all cases." The committee was responding to a ruling of the Ontario Court of Appeal holding that the federal State Immunity Act barred the plaintiff from bringing a civil suit in Ontario for torture inflicted upon him by, and in, Iran. The committee's views place Canada on the horns of a dilemma: If Canada relaxes its state immunity law to allow such lawsuits in order to comply with the Committee Against Torture's recommendations, it may run afoul of the international law of state immunity. Yet, if it persists with its current understanding of state immunity rules, it will fail to take the steps the committee views as necessary to comply with the Torture Convention. This article concludes that state torturers are not necessarily invulnerable to civil remedies in the courts of other states. First, while courts have resisted efforts to de-immunize states themselves, courts may be able to limit state immunity for officials engaging in acts of torture. Second, the international law of countermeasures offers an avenue out of Canada's dilemma. So long as the prerequisites for countermeasures are met, international law permits Canada to limit state immunity for acts of torture. The article suggests amendments to Canada's State Immunity Act that would accomplish exactly this objective.

En mai 2005, le Comite contre la torture des Nations Unies exprimait son inquietude vis a vis de l'absence au Canada de mesures adequates visant a pourvoir une compensation civile aux victimes de la torture dans toutes les instances. Le comite reagissait a une decision de la Cour d'Appel de l'Ontario qui avait determine que, selon les termes de la Loi sur l'Immunite des Etats, le requerant ne pouvait entamer une action au civil en Ontario a la suite de tortures subites en Iran. L'avis du comite met le Canada devant un dilemme : si le Canada assouplit ses lois sur l'immunite de l'Etat afin de permettre de telles actions, il se heurtera peut-etre aux principes de l'immunite de l'Etat en droit international. Or, si le Canada maintient sa conception actuelle des regles de l'immunite de l'Etat, il n'arrivera pas a prendre les mesures que le comite juge necessaires afin de se conformer avec la Convention contre la torture. L'auteur en conclut que les tortionnaires a la solde d'etats ne sont pas necessairement a l'abri de sanctions civiles imposees par les tribunaux etrangers. De prime abord, quoique les tribunaux aient resiste aux atteintes a l'immunite de l'Etat, ils seraient peut-etre en mesure de limiter l'immunite des fonctionnaires ayant pris part a la torture. En second lieu, les regles de droit international portant sur les contre-mesures offrent au Canada une solution possible au dilemme. Lorsque les conditions des contre-mesures sont satisfaites, le droit international permettrait au Canada de limiter l'immunite etatique en ce qui a trait a la torture. En vue de cet objectif, l'auteur propose certains amendements a la Loi sur l'Immunite des Etats du Canada.

Introduction I. The Concept of State Immunity A. Sovereignty and Jurisdiction B. Overview of State Immunity 1. Definition 2. Justifications II. Scope of State Immunity A. Immunity Ratione Personae B. Immunity Ratione Materiae 1. Definition 2. Scope of Agency a. Strict Application b. Tempered Application c. Tempered Application in Response to Competing International Norms III. Exceptions to State Immunity A. Waiver B. Broadly Accepted Subject-Matter Exceptions C. Human Rights Exceptions to State Immunity 1. Right to Civil Redress Under the Torture Convention 2. Civil Redress for Torture and State Immunity 3. Bouzari v. Iran 4. The UN Committee Against Torture D. Reconciling Human Rights and State Immunity 1. The Obstacles 2. A Possible Solution Conclusion Introduction

In May 2005, the United Nations Committee Against Torture placed Canada on the horns of a dilemma. In its fifth report on Canada's compliance with the UN Torture Convention, (1) the committee expressed "its concern at ... [t]he absence of effective measures to provide civil compensation to victims of torture in all cases," (2) an obligation under article 14 of the treaty. While the committee did not expressly identify the case in its report, it was clearly responding to Bouzari v. Iran, (3) a recent ruling of the Ontario Court of Appeal. In that case, the appeal court held that the federal State Immunity Act (4) barred the plaintiff from bringing a civil suit in Ontario for torture inflicted upon him by, and in, Iran.

The State Immunity Act codifies the international legal doctrine of the same name. At international law, the courts of one sovereign state have no competence to judge the actions of another sovereign state. This doctrine was recently affirmed by the International Court of Justice ("ICJ") in Congo v. Belgium. (5) In that matter, the ICJ held that state immunity barred prosecution in one country's courts of a high official of another country, even when the charges concerned crimes against humanity. Yet, in its assessment of Canada's compliance with the Torture Convention, the Committee Against Torture manifested no sympathy for state immunity. The concept went unmentioned in its conclusions in its report, which stated 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." (6)

This wording is opaque. The committee does not squarely call upon the government of Canada to relax state immunity in cases of alleged torture. The implications of its conclusions are obvious, however, given the context in which they were issued. Insofar as the committee is concerned, Canada's obligations under the Torture Convention include the provision of civil remedies against torturers, even foreign torturing states.

Canada's dilemma is as follows: If it relaxes its state immunity law to allow such lawsuits in order to comply with the Committee Against Torture's recommendations, it may run afoul of the international law of state immunity. Yet, if it persists with its current understanding of state immunity rules, it will rail to take the steps the committee views as necessary to comply with the Torture Convention. This is no small conundrum. On the one hand, torture is a horrific, unprincipled practice for which recompense should be extracted. On the other hand, state immunity is the oil that lubricates international relations. If national courts were empowered to judge other states (and seize their local assets), the resulting tit-for-tat could impair diplomatic relations and exacerbate international tensions. For this reason, state immunity is a robust principle of international law, binding on Canada.

This article addresses Canada's dilemma. Part I briefly defines state immunity, situating it within the concept of state sovereignty and identifying popular justifications for its existence. Part II examines the scope of state immunity, focusing on its two subcategories: immunity ratione personae (immunity by reason of the person) and immunity ratione materiae (immunity by reason of the matter). In relation to the latter category, this part focuses particular attention on the question of state agency and human rights abuses. Finally, Part III examines exceptions to state immunity, both those that have received ready acceptance and, more controversially, a putative exception for human rights violations. This part pays particular attention to Bouzari (C.A.) and similar cases, and to the Committee Against Torture's position.

This article concludes that international courts examining the issue and courts in Canada, the United Kingdom, and the United States asked to apply state immunity have been unwilling to limit state immunity on a human rights theory. Most notably, they have rejected arguments that the Torture Convention compels such a limitation. From this conclusion, however, it does not follow that state torturers are necessarily invulnerable to civil remedies in the courts of other states. Specifically, the international law of countermeasures offers an avenue out of the dilemma posed by the Committee Against Torture's criticism of Canada. So long as the prerequisites for countermeasures are met, international law permits Canada to limit state immunity for acts of torture that violate obligations owed to Canada as a member of the international community and as a party to the Torture Convention. This article suggests amendments to Canada's State Immunity Act that would accomplish exactly this objective.

1. The Concept of State Immunity

   1. Sovereignty and Jurisdiction

      State sovereignty is the cornerstone of international law. (7) In simple terms, it is the right to exercise in relation to a state's territory the functions of a state, independently of any other state. (8) The principle of non-intervention in the sovereign affairs of states is a concept reflected in the UN General Assembly's influential Declaration on Principles of International Law concerning Friendly Relations and Co-operation. This instrument declares that "[e]very State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State," and that "[n]o State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State." (9)

      Sovereignty is a meaningless concept if it does not include the right to exercise independent legislative, judicial, and executive authority over state territory. A necessary expression of sovereignty is thus the exercise of jurisdiction over people, events, and things found or occurring within the territory of the state. The scope of this jurisdiction and the...