The lives of high profile war criminals, torturers and despots have just got a little easier. No longer need they strike Britain off the list of destinations when they fancy a foreign jolly out of fear that some officious busybody will spoil their fun by having them arrested for their crimes.
All they have to do is get the Foreign Office to declare them on a “special mission” and they become untouchable. They have immunity, not because the UK Parliament has given them immunity through a statute fully debated and passed by MPs and Peers. Instead a couple of High Court judges have declared they have immunity as part of English Common Law. As such immunity for those on special missions has always been the law.*
The High Court case was prompted by a visit to Britain by Lieut General Mahmoud Hegazy, the director of the Egyptian Military Intelligence Service blamed for the “atrocities” that arose from the crushing of a demonstrators opposing the coup against Mohamed Morsi in July 2013. Hegazy came to Britain in 2015 to meet government ministers, but part of his “official” mission was a visit to a London arms fair, according to the Guardian.
On the face of it the judgment (R (Freedom and Justice Party) v the Foreign Office) – in favour of the Foreign Office position – flies in the face of the Government’s insistence in 2013 that it had the “firm policy of ending impunity for the most serious international crimes and a commitment to the protection of human rights”. On the other hand it does get the Government and state agents such as the police and Director of Public Prosecutions off an embarrassing hook when a torturer or despot comes calling on “official” business.
The case is deemed not to have changed the law as such since District Judges (equivalent to Magistrates in lower criminal courts) have tended to assume such official visitors do have immunity, even from serious crimes (though not in this case: Khurts Bat v German Federal Court). They have for the most part accepted the argument that the English Common Law (developed over centuries in the law courts rather than Parliament) recognises “customary international law” and that diplomatic immunity for such ad hoc missions (ie visits) is part of that law rather than mere “comity or courtesy”.
But is it? And in an era of human rights awareness, in particular the existence of the European Convention on Human Rights, is such immunity, in effect at the will of a Government, acceptable?
The case is looked at in detail below. Among other things, the judges, Lord Justice Lloyd Jones and Mr Justice Jay, examined material from the International Law Commission which in fact finds no clear legal source in “customary international law” for the notion of immunity. Nevertheless the ILC concluded:
“Four broad principles at least appear to be generally recognized: (i) That, subject to consent, special missions may be sent; (ii) That such missions, being composed of State representatives, are entitled to diplomatic privileges and immunities; (iii) That they receive no precedence ex proprio vigore [by their own force] over permanent missions; and (iv) That the mission is terminated when the object is achieved.”
Despite an assertion of these principles, the ILC did not set out the immunities that come with special mission status, not least because there were no great international precedents to establish what they should be, a “paucity of state practice in this area”.
Lloyd Jones and Jay proceeded to look at practice in individual countries – some of the material bordering on the anecdotal, such as the tale of three members of the French Property Commission in Cairo charged by Egyptian authorities with plotting the assassination of President Nasser in 1961. France pleaded special mission immunity and “the trial was eventually suspended ‘for high reasons of State’.”
But acting on “high reasons of state” is not necessarily the same as recognising a legal principle – quite the opposite, in reality. “Low politics” may be nearer the mark. Pressure may be applied, threats made and “customary international law” adduced merely as a face-saver. (See The French Property Commission in Egypt, (1963) 12 ICLQ 1383, which makes the point that there is “no settled answer” about such immunity.)
Some countries have enacted legislation recognising the principle of immunity for special missions, such as Finland (which, like Britain, has not ratified the 1969 Convention on Special Missions – only 38 states have). German legislation refers in general terms to international law and cases have accepted immunity. The Netherlands Government has merely endorsed a legal opinion on the matter. A questionnaire to states around the world found inconsistent attitudes to immunity with Albania and France (despite the Property Commission affair) following the entirely sensible view that immunity is limited to official acts of a member of the mission and would not therefore extend to immunity in the case of international crimes (a position the High Court judges rejected).
This is all rather thin stuff on which to base a firm principle that alleged torturers can be allowed to evade justice via a sponsorship certificate from the Government. The material is couched in terms like “it is now generally recognized”, “such is also the opinion” and “a general acceptance”, or by analogies rather than a firm basis of law.
No international tribunals have given considered rulings on the issue. Britain has decided not to ratify the main multilateral agreement available to it. Nevertheless the judges were able to declare it “a rule which we consider has become clearly established in customary international law.” Hence:
(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.
Judges at Common Law are supposed to declare what the law has always been, not make new law. Yet here is a very modern dilemma – not old-style potentates extending mutual and mutually convenient immunities to one another but democratic governments having relations with dictators over the heads of the people whom they should be serving.
There seems to be an agreement that there is “customary international law” to cover the matter – but no one seems able to find it. There was not even agreement in the ILC reports on the actually immunities offered – whether those of a permanent mission or something lesser. Nevertheless it insisted (in the judges’ words) “every special mission should be granted everything that is essential for the regular performance of its functions, having regard to its nature and task”.
And if that task is to visit an arms fair to consider purchases that might enhance and bolster its dictatorial position back home? The judges do not address this, presumably because diplomatic missions are deemed generally a good thing. Yet, what if an evil government, with evil motive invites an evil person to visit a nation that broadly still recognises the rule of law? The claimants’ lawyer, Tom Hickman, said this meant “a decision by the Secretary of State for Foreign and Commonwealth Affairs to recognise a person as part of a special mission would be conclusive and not amenable to judicial review”. This means the rule of law will have been subverted by this judgment.
*Note: The writ of Common Law does not run in Scotland, of whose workings this author professes no knowledge. If one were a torturer or despot on a special mission, though, it might be best to keep well south of the border.
R (Freedom and Justice Party) v the Foreign Office was prompted by a visit to Britain by Lieut General Mahmoud Hegazy, the director of the Egyptian Military Intelligence Service. It is alleged “that atrocities took place, including killings and acts of torture, during the course of a demonstration in Rab’a Square [in August 3013] in support of ex-President Morsi, and its aftermath”. Hegazy is said to bear responsibility for such atrocities.
He came to Britain in 2015 to meet Secretary of State for Defence, the Chief of Defence Staff, the National Security Adviser, and possibly others. He was also to visit a London arms fair, according to the Guardian. The Foreign Office issued him with a special missions certificate. This is not a certificate of immunity, as such, but simply a designation of a status. Whether that status carries immunity is a matter of law, and, as noted above, it had generally been regarded as providing such immunity.
Nevertheless ITN Solicitors, acting for the Freedom and Justice Party (FJP – an Islamic elected party ousted from government by the coup led by General Abdel Fatah al-Sisi), called on the Metropolitan Police’s War Crimes Unit of the Counter-Terrorism Command (SO15) to arrest Hegazy on his arrival.
The police and Crown Prosecution Service already had a list from the FJP of 43 people the party was urging the British authorities to prosecute under the universal jurisdiction conferred by section 134 of the Criminal Justice Act 1988, which renders it illegal for a “public official or person acting in an official capacity, whatever his nationality, [to commit] the offence of torture if in the United Kingdom or elsewhere”. Hegazy was among the 43. Detective Inspector Mason of SO15 told the lawyers:
“In relation to your request for the arrest of Mr Hegazy – we have been advised by the [FCO] that the individual has Special Mission Immunity in relation to his visit to the UK. We will not be seeking his arrest at this time but will continue with the Scoping Exercise [relating to what action to take regarding the 43].”
ITN sought to challenge the issue of the special mission certificate for Hegazy claiming in particular that special mission immunity was not part of customary international law. Hegazy came and went, undisturbed by the Metropolitan Police. The case then became one of seeking a declaration by the court against the advice of the Director of Public Prosecutions and, ultimately, the Foreign Office’s standing advice and guidance given in March 2013 and elsewhere that members of special missions are entitled to immunity (but see Procedural Issues below).
Customary international law
The privileges and immunities of members of permanent missions are as agreed and set out in the Vienna Convention on Diplomatic Relations 1961. Immunities for those on ad hoc special missions are a matter of law and must derive from treaty or “customary international law”, according to the judges in this case, Lord Justice Lloyd Jones and Mr Justice Jay.
There is no treaty on the matter between Britain and Egypt so the Foreign Office relies on customary law for the immunity it considers is implied by special mission status. This would have to be evidenced in a general practice accepted as law through “a settled practice and opinio juris” – ie legal opinion favouring the practice. So, for example, “the International Court of Justice will often infer the existence of opinio juris from a general practice, from scholarly consensus or from its own or other tribunals’ previous determinations.”
The practice must have been followed by states especially affected. But the judges said “general practice need not be universal, and total consistency is not required”. They cautioned, however, that:
“Whereas national judges may enjoy a measure of freedom to develop principles of law within their own legal systems, they have no such freedom to develop customary international law. International law is based on the common consent of states and there is, accordingly, a need for a national judge to guard against adopting a rule which might appear a desirable development as opposed to identifying rules which are sufficiently supported by state practice and opinio juris.”
The judges therefore looked at the recent history of agreements relating (in some cases indirectly) to this issue such as the Havana Convention of 1928 (backed by only about 20 states), the Vienna Convention (on permanent missions only) and the Convention on Special missions of 1969 (38 parties of which Britain is not one having not ratified it). Under Article 3 of the last, “the functions of a special mission are to be determined by the mutual consent of the sending and the receiving State”. The status gives immunity similar to that accorded permanent missions. The judges noted:
“In particular, the convention provides that the persons of the representatives of the sending State in the special mission and of the members of its diplomatic staff shall be inviolable and shall not be liable to any form of arrest or detention (Article 29) and shall enjoy immunity from the criminal jurisdiction of the receiving State (Article 31(1)). The convention also makes provision for a more restricted immunity from the civil and administrative jurisdiction of the receiving State (Article 31(2)).”
A 1962 report by the International Law Commission (link below) notes: “The activities of a special mission are part of what are usually functions of a permanent mission, and since privileges and immunities are granted in the interest of these functions and for promoting good relations between the States, it is natural that these advantages be granted also to special missions, unless they are based on circumstances which apply only to permanent missions.” A 1967 ILC report (link below) says:
“All the research carried out by the Special Rapporteur to establish the existence of universally applicable rules of positive law in this matter has produced very little result. Despite abundant examples of the use of special missions, the Special Rapporteur has failed to establish the existence of any great number of sources of law of more recent origin which might serve as a reliable basis for the formulation of rules concerning special missions…” (113)
adding that although special missions “represent the most practical institutions for the settlement of questions outside the ordinary run of affairs arising in international relations,” nevertheless “the rules of law relative to ad hoc diplomacy and the sources from which they are drawn are scanty and unreliable” with “no well-established juridical customs and no clearly defined practice” (120). Despite this the ILC set out these principles:
(i) That, subject to consent, special missions may be sent; (ii) That such missions, being composed of State representatives, are entitled to diplomatic privileges and immunities; (iii) That they receive no precedence ex proprio vigore [by their own force] over permanent missions; and (iv) That the mission is terminated when the object is achieved.”
The judges in the High Court case took the view that there was “ample evidence in judicial decisions and executive practice of widespread and representative State practice sufficient to meet the criteria of general practice”. It rejected the notion that immunity should be restricted to official acts done in the course of the special mission. “State practice in general does not support any such limitation” – raising the possibility that an individual could enter the country with the intention of kidnapping, torturing or murdering and would be clear to leave after committing the crimes.
The notion that the granting of special mission certificates would expel the rule of law (since courts would not be able to challenge them) was rejected thus:
“The consequences which may flow from such a [special mission] status are emphatically not a matter for the executive but for the courts to decide in accordance with the applicable law. If the courts were to decide to give effect to a rule of international law requiring the grant of immunity, that would in no sense involve the discretionary suspension of law by the executive or any extension of the prerogatives of the Crown.”
In other words it is not the government minister who confers immunity; the law (indeed, this very court) establishes that the immunity exists and is attached to the status the minister confers.
Anti Torture organisation Redress and Amnesty were interveners in this case. See: REDRESS intervention 7 June 2016 (pdf
ILC Fourth Report: Yearbook of the International Law Commission 1967 pdf
Special Missions – International Law Commission 1962 legal.un.org/ilc/documenta
Commons statement in 2010:
The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr Henry Bellingham: “Whether a visiting Minister of a foreign Government is entitled to immunity from arrest in the UK will depend on the status of the person concerned, whether they are travelling on official Government business, as well as on other considerations. By virtue of their office, immunities will attach to visiting Heads of State, Heads of Government and Ministers of Foreign Affairs, as well as, by extension, other Ministers who travel by virtue of their office. The extent to which such immunities may attach to other visiting senior officials will fall to be determined case-by-case depending on their status and the reasons for their visit to the UK.”
This was clarified later with the addition of this: “There are various forms of immunity that may operate in proceedings before UK courts, including, State immunity, diplomatic immunity and special missions immunity. State and diplomatic immunity are addressed in legislation; special missions immunity derives from customary international law. Each of these aspects of immunity have been addressed in UK court judgments, to which reference must be made when determining whether immunity applies in any given case.” Hansard 13 Dec 2010 : Column 72WS
The case may have interesting implications in pushing the bar regarding who can bring a judicial review. Broadly speaking this is normally only a “victim”, and the Freedom and Justice Party was not directly a victim in the sense of having been tortured by Hegazy. So the Foreign Office, in trying to keep the issue out of court, said: “the Claimants have no specific right to have the law clarified or the impugned decisions declared unlawful, not being the victims of any torture in Egypt”.
The Foreign Office denied having made any relevant justiciable decision on the basis that it had a full legal right to issue the special mission certificates. Whether or not they conferred immunity “must fall within the exclusive province of the courts, and is not for the executive” (ie for the Government to declare). The judges, Lloyd Jones LJ and Jay J, accepted this point.
An email had been sent by the Foreign Office to the police suggesting special mission status gave immunity but “this would amount to no more than an informal expression of opinion not properly the subject-matter of judicial review”. Other such expressions and statements had been made including in 2010 (see below) and 2013. Nevertheless, the police are not subject to the orders of the Executive under the doctrine of separation of powers. The giving of advice is not part of the Foreign Office’s remit so the advice had no legal status as such (and hence wasn’t justiciable).
Furthermore the whole issue was to an extent theoretical since Hegazy had gone with no plans to return to Britain. The “rules” for those seeking “declaratory relief” through judicial review (ie a judge’s declaration of facts or law) include:
“The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.” (Lord Dunedin, Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd  2 AC 438 at 448)
In this case the judges said: “It would be artificial, and somewhat strained, to hold that the Claimants are the victims of the torture being alleged or that they really represent the victims. They may have been instrumental in introducing a number of victims to ITN Solicitors, but they have no right to represent them.”
Nevertheless the judges took a “broader perspective” given the exceptional circumstances: “The claimants have raised a genuine issue of domestic law and are far from being busybodies or strangers to the issue. ITN Solicitors have been involved in high-level dialogue with the MPS [Metropolitan Police Service] since 2014.” The DPP’s advice is justiciable and “the present case falls in the realm of a hypothetical rather than an academic question, being ‘one which may need to be answered for real practical purposes at some stage, although the answer may not have immediate practical consequences for the particular parties in respect of the extant matter before the court’.” (Quote from Hickinbottom J. at 55(i) in R (Williams) v SSHD  EWHC 1268 (Admin)
In effect this seems to be saying that there is a matter of public interest – a legal doubt that needs clearing up, not necessarily for this case but future cases or behaviour of public bodies and others (ie it could halt pointless future challenges to “special mission status” certificates). The claimants may not have direct standing as victims but they have established a legitimate interest through earlier actions ie in bringing the issue of the 43 alleged offenders to the attention of the police. They have a right to have a declaration to establish that their legitimate interest in the matter is being stymied lawfully. So:
“The position would be different if the Claimants, entirely out of the blue, were coming to this court seeking an advisory declaration as to the law. In our view, they have been able to establish a sufficient metaphorical toe-hold into this case, and consequent standing to bring this claim, by virtue of the actions they took on a number of occasions, culminating in the events of September 2015 [ie informing SO15 of Lieut General Hegazy’s likely arrival and urging his arrest].”
But under the present circumstances the case comes within the court’s supervisory jurisdiction, to clarify the point of law that has arisen. “The law would be deficient, and unnecessarily technical, if an important issue of this sort could not be addressed in these circumstances.