JOINT DISSENTING OPINION OF JUDGES ROZAKIS AND CAFLISCH JOINED BY JUDGES WILDHABER, COSTA, CABRAL BARRETO AND VAJIĆ

We regret that we are unable to concur with the Court’s majority in finding that, in the present case, there has not been a violation of Article 6 of the Convention in so far as the right of access to a court is concerned. Unlike the majority, we consider that the applicant was unduly deprived of his right of access to English courts to entertain the merits of his claim against the State of Kuwait although that claim was linked to serious allegations of torture. To us the main reasoning of the majority – that the standards applicable in civil cases differ from those applying in criminal matters when a conflict arises between the peremptory norm of international law on the prohibition of torture and the rules on State immunity – raises fundamental questions, and we disagree for the following reasons.

1. The Court’s majority unequivocally accept that the rule on the prohibition of torture had achieved at the material time, namely at the time when civil proceedings were instituted by the applicant before the English courts, the status of a peremptory rule of international law ( jus cogens ). They refer to a number of authorities which demonstrate that the prohibition of torture has gradually crystallised as a jus cogens rule. To this conclusion we readily subscribe and in further support of this we refer to the Statutes of the ad hoc Tribunals for the Former Yugoslavia and Rwanda, and to the Statute of the International Criminal Court, which also gives a definition of the crime [See Article 7 § 2 (e) of the Statute of the International Criminal Court]. State practice corroborates this conclusion [See, inter alia , the judgment of the Swiss Tribunal Fédéral in the case of Sener c. Ministère public de la Confédération et Département fédéral de justice et police where, as early as 1983, the tribunal accepted that the rule of the prohibition of torture of the European Convention on Human Rights is a rule of jus cogens : “… il s’agit là, selon le Tribunal Fédéral , .. de règles contraignantes [ recte : impératives] du droit des gens, règles dont il convient de tenir compte dans l’examen d’une demande d’extradition, que la Suisse soit ou non liée avec l’Etat requérant par la convention européenne d’extradition, la convention européenne des Droits de l’Homme ou un traité bilatéral ….” (ATF vol. 109 Ib , p. 72)] .

By accepting that the rule on prohibition of torture is a rule of jus cogens , the majority recognise that it is hierarchically higher than any other rule of international law, be it general or particular, customary or conventional, with the exception, of course, of other jus cogens norms. For the basic characteristic of a jus cogens rule is that, as a source of law in the

now vertical international legal system, it overrides any other rule which does not have the same status. In the event of a conflict between a jus cogens rule and any other rule of international law, the former prevails. The consequence of such prevalence is that the conflicting rule is null and void, or, in any event, does not produce legal effects which are in contradiction with the content of the peremptory rule.

2. The Court’s majority do not seem, on the other hand, to deny that the rules on State immunity; customary or conventional, do not belong to the category of jus cogens ; and rightly so, because it is clear that the rules of State immunity, deriving from both customary and conventional international law, have never been considered by the international community as rules with a hierarchically higher status. It is common knowledge that, in many instances, States have, through their own initiative, waived their rights of immunity; that in many instances they have contracted out of them, or have renounced them. These instances clearly demonstrate that the rules on State immunity do not enjoy a higher status, since jus cogens rules, protecting as they do the “ ordre public ”, that is the basic values of the international community, cannot be subject to unilateral or contractual forms of derogation from their imperative contents.

3. The acceptance therefore of the jus cogens nature of the prohibition of torture entails that a State allegedly violating it cannot invoke hierarchically lower rules (in this case, those on State immunity) to avoid the consequences of the illegality of its actions. In the circumstances of this case, Kuwait cannot validly hide behind the rules on State immunity to avoid proceedings for a serious claim of torture made before a foreign jurisdiction; and the courts of that jurisdiction (the United Kingdom) cannot accept a plea of immunity, or invoke it ex officio , to refuse an applicant adjudication of a torture case. Due to the interplay of the jus cogens rule on prohibition of torture and the rules on State immunity, the procedural bar of State immunity is automatically lifted, because those rules, as they conflict with a hierarchically higher rule, do not produce any legal effect. In the same vein, national law which is designed to give domestic effect to the international rules on State immunity cannot be invoked as creating a jurisdictional bar, but must be interpreted in accordance with and in the light of the imperative precepts of jus cogens .

4. The majority, while accepting that the rule on the prohibition of torture is a jus cogens norm, refuse to draw the consequences of such acceptance. They contend that a distinction must be made between criminal proceedings, where apparently they accept that a jus cogens rule has the overriding force to deprive the rules of sovereign immunity from their legal effects, and civil proceedings, where, in the absence of authority, they consider that the same conclusion cannot be drawn. Their position is well summarised in paragraph 66 of the judgment , where they assert that they do not find it established that “there is yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum State”. Hence, “[t]he 1978 Act, which grants immunity to States in respect of personal injury claims not inconsistent with those limitations generally accepted by the community of nations as part of the doctrine of State immunity”.

In our opinion, the distinction made by the majority and their conclusions are defective on two grounds.

Firstly, the English courts, when dealing with the applicant’s claim, never resorted to the distinction made by the majority. They never invoked any difference between criminal charges or civil claims, between criminal and civil proceedings, in so far as the legal force of the rules on State immunity or the applicability of the 1978 Act was concerned. The basic position of the Court of Appeal – the last court which dealt with the matter in its essence – is expressed by the observations of Lord Justice Stuart-Smith who simply denied that the prohibition of torture was a jus cogens rule. In reading the Lord Justice’s observations, one even forms the impression that if the Court of Appeal had been convinced that the rule of prohibition of torture was a norm of jus cogens , they could grudgingly have admitted that the procedural bar of State immunity did not apply in the circumstances of the case.

Secondly, the distinction made by the majority between civil and criminal proceedings, concerning the effect of the rule of the prohibition of torture, is not consonant with the very essence of the operation of the jus cogens rules. It is not the nature of the proceedings which determines the effects that a jus cogens rule has upon another rule of international law, but the character of the rule as a peremptory norm and its interaction with a hierarchically lower rule. The prohibition of torture, being a rule of jus cogens , acts in the international sphere and deprives the rule of sovereign immunity of all its legal effects in that sphere. The criminal or civil nature of the domestic proceedings is immaterial. The jurisdictional bar is lifted by the very interaction of the international rules involved, and the national judge cannot admit a plea of immunity raised by the defendant State as an element preventing him from entering into the merits of the case and from dealing with the claim of the applicant for the alleged damages inflicted upon him.

Under these circumstances we believe that the English courts have erred in considering that they had no jurisdiction to entertain the applicant’s claim because of the procedural bar of State immunity and the consequent application of the 1978 Act. Accordingly, the applicant was deprived of his right to have access to the English court to entertain his claim of damages for the alleged torture suffered by him in Kuwait, and Article 6 § 1, has, in our view, been violated.