The limits of the state liability exemption in wartime

Charles-Edouard Renault

De Gaulle Fleurance & Associés, Paris

cerenault@dgfla.com

On 14 April 2022, the Ukrainian Supreme Court quashed a judgment of the Zakarpattia Appeal Court of 1 September 2021 which had granted the Russian Federation state immunity in a claim raised by Ukrainian civilians, victims of forced territory exile or of personal loss of relatives killed during operations led by Russian troops during the invasion of Crimea in 2014.[1]

In order to assess the effective validity of Russia’s immunity, the Ukrainian Supreme Court first applied a careful check of five criteria that could ground the potential tort exemption to the principle of state immunity, namely: qualifying the acts in breach with the rules of war; looking to identify perpetrators; localising the damaging acts; evaluating compensation of victims’ prejudice; and confirming authority of the lex fori to handle this category of claim.

This ruling is significant because it extends in the continuation of other rulings from some foreign supreme courts addressing war crimes, which have attempted to extend their judicial competency in limiting the effect of immunity from jurisdiction, while the International Court of Justice or European Court of Human Rights case law tended to be more restrictive based on customary international law.

Some of these highly ranked jurisdictions were referring to the European Convention on State Immunity, as adopted by the Council of Europe on 16 May 1972, and to the not yet fully ratified United Nations Convention on Jurisdictional Immunities of States and Their Property of 2 December 2004, which both have set up a clear distinction between acta jure gestionis and acta jure imperii. These international conventions provide for few exceptions to state immunity before a court of another state: either a state decides to waive its immunity, ‘explicitly’ under an international treaty or contract, or ‘implicitly’ when a foreign state joins litigation and files a counterclaim in the lex fori of another state or the state falls under one of the categories of situations in which it does not enjoy immunity in another jurisdiction.

For instance, it concerns some proceedings relating ‘to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the state’, if the act or omission occurred in whole or in part in the territory of the lex fori.

The issue raised by the judgment of the Ukrainian Supreme Court in the Zakarpattia case is to determine if these acts could limit the perimeters of acta jure imperii, in view of the effective harm it may cause to the principle of jus cogens. It attempts to define more precisely the scope of the tort exemption outlined in both conventions by targeting repeated infringements of fundamental rights by an aggressor state during wartime.

The principle of state immunity is no longer absolute

The principle of state immunity is enshrined in Article 79(1) of the Law of Ukraine on Private International Law. The judicial immunity according to which filing of a claim against a foreign state, or joinder of a foreign state to participate in a case as a defendant may be allowed only with the consent of the relevant state, unless otherwise provided for by an international treaty to which Ukraine is a signatory or by corresponding laws of Ukraine, is indeed consistent with the European Convention on State Immunity which Ukraine has not yet ratified.

The European Court of Human Right (ECtHR) already recognised that principle of state immunity for exemptions, as mentioned in its judgment in Cudak v Lithuania[2] of 23 March 2010, where it held that customary rules on state immunity which allow for relative immunity were acceptable albeit not being codified, considering that the restriction to full immunity pursued a legitimate aim and was proportionate to the goal to be achieved.

To that extent, Article 79(4) of the Law of Ukraine on Private International Law deals with this notion of proportionality where, in violation of the rules of international law, Ukraine, its property or representatives in a foreign state are not provided with the same judicial immunity as provided to foreign states, property or representatives in Ukraine. In this case, the Ukrainian government may take appropriate measures permitted by international law against a foreign state or its property, unless diplomatic measures are sufficient to resolve the consequences of the said violation of international law.

This provision is an acknowledgement of the possibility to expressly limit the principle of immunity, as emphasised in the international conventions on jurisdictional immunity mentioned above.

Violations of the rules of the customary law of war are a relevant example of an exception to the principle of immunity

The position of principle of international justice has often been that an act of war committed by a state’s troops on third-party territory should not be considered a sufficient ground for waiving the state's immunity.

In its ruling regarding the jurisdictional immunities of Germany,[3] the International Court of Justice recalled that ‘while the immunity of a foreign State from jurisdiction does not extend to certain claims for reparation in respect of wrongful acts committed in the territory of the State of the forum, customary international law still requires that immunity be recognized for a State whose armed forces or other organs are accused of having committed wrongful acts in the territory of another State during an armed conflict’.

Similarly, the French Court of Cassation reiterated the principle of restricted immunity, overturning the position of a Court of Appeal which had upheld the German state's immunity from jurisdiction, ruling that ‘the act of forcing deportees in enemy territory to work as part of the war economy had been carried out as a public power’, as a fully-fledged acta jure imperii.[4]

For the French judiciary, which recently examined a claim against US armed forces and the US President for acts of torture, ‘international custom precludes the prosecution of agents of a State before the criminal courts of a foreign State for acts falling into this category. As international law stands, such crimes, however serious, do not fall within the scope of the exceptions to the principle of immunity from jurisdiction’. Such acts of forced coercion did not equate to simple acta jure gestionis but constituted acta jure imperii.[5]

Probably mindful of the impact of this ruling, the French Court de Cassation carefully acknowledged in the said ruling that: ‘It is up to the international community to set any limits to this principle [the principle of Sate immunity], when it comes up against other values recognized by this community, in particular the prohibition of torture’.[6]

However, considering the extraordinary nature of war crimes, as defined by the Hague Convention respecting the Laws and Customs of War on Land (the ‘Hague Convention’), the supreme courts of some other states have taken a more open approach, to allow for the apprehension of aggressor states and for the implementation of a possible compensation process. Thus, the Areios Pagos – the Supreme Court of Greece – in its Distomo massacre case ruled that violations of jus cogens are excluded from acta jure imperii under the Hague Convention, implying in this case a tacit waiver by the German state of its right to invoke immunity from jurisdiction.[7]

More notably, in the Ferrini ruling, the Italian Court of Cassation rejected the jurisdictional immunity granted to foreign States for acts of ‘public authority’ when these acts are international crimes, invoking the imperative nature of jus cogens norms and their hierarchical superiority over the principle of jurisdiction immunity, whether resulting from the laws or customary in nature.[8]

In this regard, and referring to the Statute of the Nuremberg Tribunal, a war of aggression prepared, provoked, and led by a sovereign state could constitute an international crime, a violation of the jus cogens, for which states could be judged.[9]

But it should be recalled here that, upon a claim from Germany, the International Court of Justice censored Italy’s ruling on Ferrini and other compensation claims of the same nature, considering the concept of armed conflict was falling directly within the scope of an acta jure imperii[10] and that Germany had already contributed to war compensation to the benefit of Italy in the early 1950s.

And yet, in the old days, the International Court of Justice – then the Permanent Court of International Justice – had recognised in the Mavrommatis Concessions in Palestine case, for Greece, the ‘elementary principle of international law which authorizes the State to protect its nationals injured by acts contrary to international law committed by another State, from which they have not been able to obtain satisfaction through ordinary channels’.[11].

The Ukrainian judge drew on these successive approaches to confirm the exception to the principle of jurisdictional immunity for Russia.

Applying the criteria of war crimes for exemption from the principle of immunity from jurisdiction

Referring both to Article 11 of the European Convention on State Immunity and to Article 12 of the United Nations Convention on the Jurisdictional Immunities of States and Their Property, the Ukrainian Supreme Court confirmed that, when pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is allegedly attributable to a State, if the act or omission occurred in whole or in part in the territory of the for, immunity shall be waived.

In determining whether the judicial immunity shall apply to Russia, the Ukrainian judge took into account five major tort exemption items: (i) the claim at hand involved seeking compensation for moral damage to citizens of Ukraine due to harm and death caused by Russian troops; (ii) the place of infliction of the damage was Ukraine; (iii) damage was caused by agents of the Russian Army who violated principles and objectives enshrined in the UN Charter on the prohibition of military aggression against another state; (iv) in committing acts of armed aggression, Russia was not exercising its sovereign rights, but violating its obligation to respect Ukraine’s sovereignty and territorial integrity; and (v) Ukrainian legislation sets, as a general rule, that damage caused in Ukraine to an individual as a result of illegal actions by any third party may be compensated pursuant to a judgment of an Ukrainian court.

Commenting on each item, the Ukrainian Supreme Court stated that the Russian armed forces had been committing war crimes and other serious crimes since 2014 and continued to do so as of the time of the ruling. Consequently, after the start of the war in 2014, ‘any Ukrainian court, when hearing a case involving the Federation of Russia as a defendant, has a right to ignore its immunity’ and to handle ‘cases on compensation for damage caused to individuals due to the Federation of Russia’s armed aggression under the claims against such foreign country’.

It is from the angle of the principle of the notion of fair war, which according to Cicero, must be based on ‘respect for an alliance, defense against aggression, and having as its goal the establishment of a lasting peace’ that the Ukrainian courts have chosen to limit the immunity of Russia as the aggressor state. The special operation launched in February 2022, following the invasion of Crimea in 2014, is the very opposite of the notion of jus ad bellum (right to go to war) and against the laws of war. Such a controversial set of acts should give rise to an exception to state immunity.

In a recent case, the ECtHR held that to have jurisdiction and to award fair compensation to the plaintiff state, three criteria had to be met: (i) a complaint made by the applicant state concerning the violation of basic human rights of its nationals or other victims; (ii) identification of victims; and (iii) serious grounds for bringing the proceedings.[12]

In this regard, arresting, detaining, and collectively expelling Georgian nationals from Russia, during the war of 2008, was considered to fulfill the three conditions allowing to confirm the claim of Georgian government as a plaintiff and the award of a fair compensation of €10m.

Considering the above, it will be interesting to observe how the ECtHR will interpret the ruling of the Ukrainian Supreme Court when handling the Ukrainian government's allegations of serious and massive human rights violations committed by Russia during its military operations on Ukrainian territory since 24 February 2022, in the inter-state claim raised against Russia.[13]