The Jurisdictional Immunity of States in National Civil Proceedings for Allegation of Torture

English: After studying law at the Universities of Geneva and Lucerne, Martin Hemmi worked as a project manager at the Swiss Consulates General in San Francisco and Atlanta and as a research assistant at the Institute for Public Law and the Center for Migration Law at the University of Bern. His doctoral thesis on international law entitled "The Jurisdictional Immunity of States in National Civil Proceedings for Allegation of Torture" was financially supported by the Swiss National Science Foundation. He spent extended research periods at the Transnational Law Institute of King's College London and at the McGill Center for Human Rights and Legal Pluralism. After completing his dissertation, Martin Hemmi worked as Associate Crime Prevention and Criminal Justice Officer at UNODC headquarters in Vienna in the section for human trafficking and migrant smuggling. Deutsch: Nach dem Rechtsstudium an den Universitäten Genf und Luzern, arbeitete Martin Hemmi als Projektmanager an den Generalkonsulaten San Francisco und Atlanta sowie als Lehrassistent am Instiut für öffentliches Recht und am Zentrum für Migrationsrecht der Universität Bern. Seine völkerrechtliche Doktorarbeit mit dem Titel "The Jurisdictional Immunity of States in National Civil Proceedings for Allegation of Torture" wurde vom Schweizerischen Nationalfonds finanziell gefördert. Er verbrachte längere Forschungsaufenthalte am Transnational Law Instute des King's College London und am McGill Center for Human Rights and Legal Pluralism. Nach der Dissertation war Martin Hemmi als Associate Crime Prevention and Criminal Justice Officer am UNODC Hauptsitz in Wien in der Sektion für Menschenhandel und Migrantenschmuggel tätig.

In 2003, a Canadian‐Iranian photojournalist named Zarah Kazemi travelled to Tehran to cover student demonstrations that were expected to take place against the Iranian Government. After a massive deployment of security forces, approximately 4000 students disappeared, many of which were believed to have been brought to Evin Prison, Tehran’s main political detention facility. The following day, Zarah, together with hundreds of concerned family members, gathered in front of Evin Prison to discover what had happened to the arrestees. That same day, Zarah was approached by a police guard who had witnessed her taking pictures of the scene. She was herself arrested because she refused to surrender her camera, worried that public officials might harass families whose photos she had taken. 19 days later, Zarah died while in Iranian custody. In 2005, medical records appeared stating that Zarah’s body showed clear signs of rape and torture, including a fractured skull, two broken fingers, missing fingernails, a crushed toe, a broken nose, and deep scratches on the neck and legs. In 2014, the Canadian Supreme Court rejected a reparation claim directed against the Iranian Government as the Iranian State enjoyed full jurisdictional immunity over the alleged offences. The present study is concerned with the relationship that exists between the privilege of a State not to be subjected to the civil jurisdiction of a foreign court and the various legal obligations related to the prohibition of torture, inhuman and degrading treatment. It should be elaborated, whether a State is immune for acts of torture in national tort proceedings and, if so, what legal tensions arise from this conclusion. A primary focus is given to the international legal duties incumbent on the forum where proceedings are introduced. May a national court legally decline jurisdiction over damages claims introduced by victims of torture without violating individual rights or international obligations? What other legal measures exist that would enable a court to provide a domestic judicial remedy despite jurisdictional immunities in place?No comprehensive analysis over the issue has been offered within the specific subject matter of either torture or inhuman and degrading treatment. The most recent study conducted in this area concerned the relation between State immunity law and fundamental human rights violations and dates to 2007. Many important developments have since taken place, most notably the 2012 International Court of Justice (ICJ) ruling concerning the Jurisdictional Immunities of States and the 2018 Grand Chamber judgment of the European Court of Human Rights (ECtHR) in Naït‐Liman v. Switzerland4. Despite high expectations, neither judgments led to a clarification of all relevant aspects of State immunity law. Several fundamental facets were either not discussed by the courts or intentionally left out of the deliberation. The study will consider the arguments forwarded in these cases, identify unanswered questions in relation to State immunity law and torture offences, and attempt to fill gaps wherever possible. Further, no legal literature, especially in the English language, can be found which sufficiently considers State immunity in relation to all rights and obligations connected to the prohibition of torture. Answering the research question will involve an appreciation of all legal tensions and their inherent inter‐play to one‐another. The present thesis should give the reader an updated and thorough insight into the current legal challenges of State immunity law as it relates to the struggle of victims of torture to receive remedy and access to justice. From a methodological point of view, issues should be presented and discussed following the recognized scientific methods known to the legal profession, including an appreciation of all relevant legal materials including case‐law, treaties and other codified texts as well as academic writings. The study is divided into four main parts: Part I is dedicated to the foundations of international and national State immunity law, introducing the object, scope, purpose, and sources of jurisdictional immunities of States. In Part II, existing exceptions to State immunity are presented and considered as a potential means for giving victims of torture access to the civil justice system of a State. Only once the immunity of States for acts of torture is established, the issue of potentially conflicting international obligations may be raised. Whether the forum State is subject of overlapping, irreconcilable obligations and how a norm conflict must be resolved, will be discussed in Part III of this thesis. Part IV offers a comprehensive conclusion as well as a summary of the legal findings.