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Law

State Immunity and Human Rights Violations

Quick fact

In the 1999 Pinochet case, British courts ruled that a former head of state could be extradited for torture, signalling that immunity does not extend to serious international crimes.

Why this is interesting

If a foreign government tortures its citizens, can those victims sue that government in your country's courts? The answer is usually no—but sometimes, surprisingly, yes.

Read the full explanation

Understanding State Immunity and Human Rights Violations

State immunity is a rule of international law that says a state cannot be tried in another state's courts without its consent. It protects the dignity and independence of sovereign states and is a cornerstone of international relations. The idea is simple: if states could sue each other in court, every dispute would become a legal battle, threatening peace and mutual respect. However, this absolute protection conflicts with the need to bring justice for serious human rights violations, such as torture, genocide, and crimes against humanity. After World War II, the world moved toward holding individuals accountable, and gradually, some courts began to carve out exceptions to state immunity when the violation is severe enough.

A deeper explanation

The core mechanism that allows the exception is the distinction between acts of state (public acts) and private acts. Under the restrictive theory of immunity, states are immune for sovereign acts (acta jure imperii) but not for commercial acts (acta jure gestionis). Torts, including human rights abuses, were traditionally covered by immunity, but courts in several countries have started to deny immunity when the act violates a peremptory norm of international law (jus cogens), such as the prohibition of torture. This is because jus cogens norms are considered so fundamental that they override all other international agreements and principles. However, the International Court of Justice in the 2012 Jurisdictional Immunities case held that a state's immunity is not affected by the seriousness of the alleged violations, reflecting a continuing tension. The debate hinges on whether sovereignty is absolute or can be limited by higher legal principles.

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