Jus cogens e rationes dell'immunità giurisdizionale degli Stati esteri e loro funzionari: tortuosità finemente argomentative (inglesi) in materia di "tortura governativa" (saudita)

This essay is focussed on the scope of State immunity from civil jurisdiction in actions for damages alleging the violation of human rights. The attention of the Author is drawn to investigate the question of the limits of State immunity having specific regard to official torture, in order to provide a safeguarding approach for the victims. This crime is the object of one of the UN Convention of 10 December 1984 against torture, which has enjoyed a particular success within the international contest, being rapidly ratified by a lot of States. The reason lies perhaps in the fact that governmental torture is a particularly hateful crime. It is then extremely important to allow the courts of other States to assume jurisdiction in civil proceedings brought against the State and its agents or servants, personally liable for the torture acts. Only in this way, it is possible to give relief to the victims and to provide an effective deterrent against the spread of governmental torture. In order to achieve these results, it is necessary to overcome the bar to the exercise of civil jurisdiction represented by the immunity. The Author after having offered a preliminary inquiry on the grounds of the customary rule of immunity and on the different ways in which it can be implemented in internal law, ask himself whether the exercise of civil jurisdiction in torture cases can actually represent an effective means against the spread of this crime. The answer of the Author is positive. He points out that such an exercise will lead to a judgment awarding damages against both the functionaries liable for the crime and their State. The judgment will have not only an important symbolic effect, but will also be enforceable, either in the State where it was entered into, or in a third State in which there are sufficient assets of the State or of the officials concerned. Therefore the victim can obtain a concrete restore for the pains suffered. Moreover that will determine an internalization of the economic cost of official torture, which should represent a good deterrent for the future. The analysis then goes on examining in detail the judgements given in the case Jones and Mitchell v. Saudi Arabia, dealing with the question of the limits of immunity in respect to civil claims for damages for alleged torture. At this regard, the possible solutions are three, each of them taken into consideration in the decisions. The first is based on the acceptance of the jus cogens nature of the prohibition of torture, representing then a rule from which no derogation is permitted. That should entail that a State, allegedly violating it, could not invoke hierarchically lower rules to bar the exercise of civil jurisdiction. The second position is the most conservative. It denies that the prohibition of torture has generated an ancillary procedural rule which, by way of exception to state immunity, entitles or even requires States to assume civil jurisdiction over other States in cases in which torture is alleged. The third solution distinguishes between the action against the State and that against its officials. In the former, the rule of immunity could be successfully invoked; while in the latter it could not, since it would not be possible to define the State functionaries inflicting torture as people acting in their official capacity. The Author considers each of these three solutions unsatisfactory and proposes a different one in order to avoid the applicability of the rule on immunity in civil suits, in which official torture is alleged. This result can be achieved taking in due consideration the UN Convention against torture of 10 December 1984. The success that it has enjoyed in terms of ratifications witnesses that the practice of official torture was totally disqualified and “banished” by the community of States, which “has expressed a will” to partially repeal the customary rule on immunity as regards civil proceedings brought by the victims of official torture. There is then an argument to hold that the customary rule on State immunity has been modified and limited in relation to this crime. That is confirmed also by Article 14.1 Convention under which «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». All these considerations lead the Author to the conclusion that the UN Convention against torture has had the same effect both in civil and criminal proceedings concerning governmental torture: the inapplicability of State immunity. So it is for the national rules of each State to determine whether its courts are competent to adjudicate tort claims alleging torture.