Diplomatic immunity: where are we now?

One of the first posts on this blog examined the public concern which can be caused when the broad immunities granted to diplomats hamper the investigation of serious crime. The issue continues to make the news: this week the focus is on the immunity of a North Korean diplomat who is wanted for questioning by Malaysian police as part of their investigation into the killing of Kim Jong-nam, the half-brother of the North Korean leader.

As we discussed previously, the question of immunity – whether of the State itself or of its diplomats – has given rise to a number of significant recent cases. Where the commission of crime is alleged, there can be a serious tension between the aims of (1) immunity, which smoothes the relations between sovereign, equal States, and (2) achieving redress for the victims of wrongdoing by those who benefit from immunity.

The Freedom and Justice Party case

This tension is powerfully illustrated by one of our top 10 international law cases of 2016, R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC 2010 (Admin). This was a judicial review claim brought by: (1) the Freedom and Justice Party, which formed the elected government of Egypt between June 2012 and July 2013 until its overthrow by the current military regime; (2) several individuals who had held ministerial office in that government; and (3) a British citizen and surgeon who describes working in emergency field hospitals in Egypt helping many individuals who were killed and injured in attacks by the Egyptian police, army and security services on a peaceful protest in July 2013.

they refused on the basis that his membership of a special mission gave him, like a diplomat, immunity from criminal process

The Freedom and Justice Party has been asking the War Crimes Unit of the Metropolitan Police to arrest individuals in the UK connected with the current Egyptian government, whom it alleges to be responsible for torture in Egypt. (Pursuant to s.134 of the Criminal Justice Act 1988, the UK has extraterritorial jurisdiction over torture – first exercised in the case of Faryadi Zardad, who in 2005 was convicted at the Old Bailey of torture and hostage-taking in Afghanistan). In response to these requests, the police had identified a number of relevant individuals and were carrying out a “scoping exercise”.

The Freedom and Justice Party became aware that Lt. General Mahmoud Hegazy, the director of the Egyptian Military Intelligence Service in July and August 2013, was due to visit the UK in September 2015 as a member of a “special mission”. It asked the Metropolitan Police to arrest him; they refused on the basis that his membership of a special mission gave him, like a diplomat, immunity from criminal process. The Foreign and Commonwealth Office and Director of Public Prosecutions supported this position (although there was some uncertainty about who had ultimately taken the decision, and on what advice).

The Freedom and Justice Party, along with the individual claimants, brought a judicial review claim to challenge the decision that General Hegazy was entitled to immunity. Amnesty International and Redress acted as interveners.

The nature of a special mission

The Divisional Court (Lloyd Jones J and Jay J) started by analysing the nature of a special mission:

Temporary missions were the earliest form of diplomatic missions but they fell into relative disuse in the seventeenth and eighteenth centuries as the practice of exchanging permanent envoys and embassies grew. Special missions then became associated with representation of the sending state or its ruling family on ceremonial occasions. However, following the Second World War, no doubt as a result of increased international co-operation and the development of air transport, special missions came to be used to an ever-increasing extent in many different fields of official business. […] In 1969 the United Nations General Assembly adopted the Convention on Special Missions to which 38 States are currently parties. The United Kingdom has signed but has not ratified the Convention on Special Missions.

The FCO had issued a certificate stating that General Hegazy was accepted as a member of an Egyptian special mission to the UK. (Such certificates are not reviewable by the courts, as we discussed here). Since there is no treaty between the UK and Egypt setting out the privileges and immunities to be accorded to a member of a special mission, and the UK is not a party to the Convention on Special Missions, the extent of General Hegazy’s immunity fell to be determined by reference to customary international law.

The position in customary international law

The Court set out the well-established principles for determining the existence of a rule of customary international law ([77]-[81]). In search of such a rule, it went on to look at:

1. State practice as expressed through various treaties;
2. The work of the International Law Commission which led to the Convention on Special Missions;
3. Decisions in the domestic courts of a wide range of States, starting with the UK, in respect of which the Court concluded that “there is only limited support in judicial decisions in the United Kingdom for the existence of rules of customary international law requiring the inviolability and immunity from criminal jurisdiction of members of special missions.” [120]
4. And finally, the writings of jurists on the subject.

This review led the Court to conclude that :

This survey of State practice, judicial decisions and the views of academic commentators leads us to the firm conclusion that there has emerged a clear rule of customary international law which requires a State which has agreed to receive a special mission to secure the inviolability and immunity from criminal jurisdiction of the members of the mission during its currency. There is, in our view, ample evidence in judicial decisions and executive practice of widespread and representative State practice sufficient to meet the criteria of general practice. Furthermore, the requirements of opinio juris are satisfied here by State claims to immunity and the acknowledgment of States granting immunity that they do so pursuant to obligations imposed by international law. Moreover, we note the absence of judicial authority, executive practice or legislative provision to contrary effect. [163]

Did this rule form part of the common law?

Having decided that customary international law does grant immunity from criminal process to members of a special mission, the Court had to decide whether and to what extent this rule formed part of English common law.

From Blackstone onwards, customary international law has often been expressed as forming part of the law of England, but a number of more recent cases have characterised customary international law, not as an automatic part of the law of England, but as a potential source on which the courts may draw when developing or applying the common law. The Court cited Lord Mance’s expression of this theory in R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69:

Speaking generally, in my opinion, the presumption when considering any such policy issue is that [customary international law], once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration. [150]

The Claimants put forward a number of reason why the common law should not recognise the immunity which the Court had found to exist at customary international law:

1. The UK had enacted the Diplomatic Relations Act 1964, which should be regarded as a comprehensive code in the area.
2. It was not for the courts to alter the scope of the criminal law.
3. This is an area in which Parliament can be expected to legislate, so the courts should not intervene.
4. The rule of customary international law which the Court had identified was vague in its scope.
5. The fact that the matter is controversial, requires democratic deliberation and raises difficult policy issues unsuitable for resolution by the courts, particularly since it involves immunity for torture.

The Court rejected each of these arguments, holding that:

1. The absence of any reference to special missions in the 1964 Act meant that Parliament had not intended the Act to regulate all aspects of immunity.
2. The case did not concern a change to the scope of the criminal law, but a mere procedural bar to its enforcement against certain individuals.
3. The question of immunity from criminal process is fairly straightforward and cannot be said to be suitable only for Parliament to deal with.
4. The fact that there may be uncertainties at the edges of the rule did not make the core immunity uncertain.
5. The ICJ, the ECHR and the House of Lords have all upheld the immunity of diplomats / States in respect of torture.

Accordingly, the Court granted the following declarations: “(1) Customary international law requires a receiving State to secure, for the duration of a special mission, personal inviolability and immunity from criminal jurisdiction for the members of the mission accepted as such by the receiving State. (2) This rule of customary international law is given effect by the common law.” [180]

Commentary

In terms of the process adopted to reach the conclusion, the Court’s judgment is notable for its extensive analysis of domestic, international and comparative legal materials, which must be a tribute to the work of the parties’ legal teams and the interveners. This shows the range and depth of evidence which will be needed in cases where it is necessary to establish the scope of customary international law.

the criteria which govern the reception of a particular rule of customary international law into English law have not always been clearly expressed

In terms of the result, the arrests of foreign officials have caused great political controversy in the UK (see for example the arrest warrant issued by a judge in London in respect of a visiting Israeli general in 2005), and it was certainly more convenient for the Court to find that General Hegazy was entitled to immunity at customary international law. In reaching this conclusion, the Court was supported by a range of evidence, although interestingly, it considered that domestic court practice in the UK itself was inconclusive.

The difficult question was then to what extent this rule of customary international law formed part of English common law. As we analysed in another recent post, the criteria which govern the reception of a particular rule of customary international law into English law have not always been clearly expressed, and the Claimants advanced a number of reasons why the rule should not form part of the common law.

However, the Court gave great weight to the fact that “a failure to give effect to that rule would result in the United Kingdom being in breach of its international obligations”: in other words, permitting the UK authorities to arrest General Hegazy could – if the Court’s analysis of the content of customary international law is correct – place the UK on a collision course with Egypt on the international level. Along with the range of domestic and international cases upholding immunity even in respect of torture claims, the political fact that torture must, by definition, be committed by a public official (who is therefore likely to have the support of his or her State) continues to block efforts to obtain redress for the victims of such crimes.