“Pinochet No. 4”? Immunity ratione materiae returns to the High Court

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By Tobias Thienel

The Pinochet line of cases in the English courts, and particularly in the UK House of Lords, will be reasonably familiar to most international lawyers. Whether rightly or wrongly, they stand for important propositions as to the immunity of foreign officials, chief among which was the proposition that immunity was unavailable for acts of torture. (I say ‘rightly or wrongly’, because the central holding of those cases was not as broad as many thought at the time: see Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26, [2007] 1 AC 270, paras 86 et seq).


Those cases are now joined by a new fascinating case on various issues of immunity in the English High Court: Bat v Investigating Judge of the German Federal Court [2011] EWHC 2029 (Admin) concerned a remarkable set of facts, and culminated in an important holding, with many interesting remarks along the way.


The facts, in broad outline, were these: The investigating judge at the German Federal (i.e., supreme) Court had issued a European Arrest Warrant against a Mr Khurts Bat on roughly the following charges: Mr Khurts Bat, the Head of the Office of National Security of Mongolia, was alleged to have abducted a Mongolian national from Le Havre in France, to have taken him to Berlin and then to have had him flown out to Mongolia, where the abducted person was imprisoned. The scenario, then, was reasonably similar to that in the famous Alvarez-Machain case (see Sosa v Alvarez-Machain, 542 U.S. 692 (2004)).


On the basis of this European Arrest Warrant, Mr Khurts Bat was arrested in London, and his extradition to Germany was approved at first instance by a Magistrates’ Court. However, Mr Khurts Bat contested his extradition on the grounds of sovereign immunity. In a pointer to the importance of the case, his side – more precisely, the Mongolian government – was represented by no less a figure than Sir Elihu Lauterpacht QC. The Foreign Office, as an interested party, was represented by Sir Michael Wood QC.


The Court dismissed all claims to immunity. Most remarkably, it held that immunity ratione materiae – the immunity available to all present and former officials with respect to their official acts – was unavailable where the crimes at issue were alleged to have been committed in the forum state (in this case, Germany).

But immunity ratione materiae was by no means the only string in Sir Elihu’s bow. Rather, his argument of immunity was put on three bases, each of which would have been sufficient in itself to get Mr Khurts Bat (and, by extension, his government) off. Those three bases were:

– Immunity as a member of a special mission to the UK, under the rules of customary law conversant with the Convention on Special Missions;

– immunity ratione personae on the grounds of  his exalted rank as a representativeof his state;

– immunity ratione materiae, the acts in question having been acts of the Mongolian state and as such immune from German and British jurisdiction.


This case therefore stands as one of the relatively few authorities on the immunity of special missions. Moreover, such immunity could only have been based on customary international law, because the UK had only signed the Convention on Special Missions but not ratified it, and Mongolia had neither signed nor ratified. The High Court – through Moses LJ – briefly noted that the UK was bound not to defeat the object and purpose of the Convention under Article 18 of the VCLT, but that was of course beside the point because even that limited obligation could not exist vis-à-vis Mongolia, that state not having accepted the Convention in any way.


In broad outline, the Court held that a special mission was to be regarded much like a transient diplomatic mission, a short-term embassy so to speak. Therefore, special mission immunity required a form of consent from the receiving state, much like the establishment of a diplomatic mission and the sending of individual diplomats requires accreditation by that state. Such consent by the UK was disproved – with conclusive force, held Moses LJ – by a letter from the Foreign Office. Accordingly, the claim to special mission immunity failed.


The second ground of immunity, under which the Head of the Office of National Security would have enjoyed immunity ratione personae, also failed. It was certainly true that the International Court of Justice had held that not only heads of state, but also foreign ministers could enjoy such personal (and absolute) immunity. On that basis, English District Judges had already accorded such immunity also to ministers of defence or commerce (Moses LJ noted this without comment; see para 60 of his judgment). However, heading an office of national security was not enough. For what it’s worth, I think that can only be correct.


The third ground of immunity, that of immunity in respect of the official acts of Mr Khurts Bat, was probably the most attractive. The Mongolian government had not officially acknowledged the alleged crimes as its own, but it was certainly more than arguable that Mr Khurts Bat had not gone off on a frolic of his own, akin to ‘killing his gardener in a fit of rage’, as the famous example goes. Moreover, it was difficult to make any Pinochet-style argument to the effect that there was no immunity for crimesas severe as those at issue (which wasn’t the ratio decidendi of Pinochet anyway).


But that was not the point. Instead, the Court ultimately held (as I have already said in my spoiler above) that immunity ratione materiae was not available where the crimes in question were alleged to have been committed in the forum state (which was agreed to be the state requesting extradition, i.e. Germany). Therefore, since some of the charges in the European Arrest Warrant related to acts performed in Berlin and in transit in Germany, Mr Khurts Bat could not claim immunity.


In so holding, the High Court relied – to a quite remarkable extent – on a scholarly treatise, Immunity, Individuals and International Law by Dr Elizabeth Franey. Like her, the Court dismissed the McLeod case, the Rainbow Warrior affair and a reasonably well-known statement by the Appeals Chamber of the ICTY (The Prosecutor v Tihomir Blaskic, Objection to the Issue of a Subpoena Duces Tecum, para 38) as authorities for a wider immunity. The High Court also agreed with an ILC Special Rapporteur, Roman Kolodkin (see para 94(p) of his Second Report).


This holding is in line with a recent trend towards limited immunity. It also neatly explains cases like that of Erich Priebke in Italy, who was convicted by an Italian court of war crimes committed in Italy in 1944, without anyone raising any issue of Germany’s immunity ratione materiae (although Germany would not have claimed such immunity).


It seems likely that this judgment will be appealed. If I am not mistaken, this can now only be done by an application for leave to appeal to the UK Supreme Court. But even if such leave is denied, the argument of immunity is likely to resurface at trial in Germany. The issues will therefore remain with us for some time, and the case will throw up more state practice on this important rule.

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