Terrorism and State Immunity

The English Commercial Court recently gave judgment in a case in which a number of the defendants claimed state immunity - Basel Hashwah and others v. Qatar National Bank (Q.P.S.C.) and others [2022] EWHC 2242 (Comm).

The claims arose out of the defendants’ alleged participation in an alleged terrorist funding arrangement, by which funds were allegedly channelled to the Al-Nusra Front in Syria. The Defendants were individuals and entities associated with the State of Quatar.

Although the defendants denied the allegations, for the purpose of the state immunity application they agreed that the court should proceed on the basis that the claimants’ allegations could be made out.

The Court considered a number of points,

1.    The Commercial transaction exception under s. 3 SIA (State Immunity Act 1978).

2.    The characterisation of the alleged acts as “state conduct”, “public duty”, or “the exercise of sovereign authority” such as to extend the immunity of the state to an agent under s1 of the SIA.

3.    Whether it would be contrary to the United Kingdom’s obligations pursuant to Resolution 1373 (2001) of the United Nations Security Council and Article 6 of the European Convention on Human Rights (the “ECHR”) and the Human Rights Act 1998 (the “HRA”).”

The Court stated, “The key point is that by definition a private citizen cannot provide support for terrorist activity that is “state sponsored”. By definition such support can be provided only by a state. As Stewart J held, such activity by a state is by its very nature “ ... an inherently sovereign or governmental act ...” – see Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs.”

The Court went on to describe the ambit of the Act as follows,

"15.       “The scheme of the SIA is to create a general immunity for the governmental acts of states and their officials, subject to any qualifications to the immunity derived from generally accepted customary international law norms and the express exceptions set out in later sections of the SIA. If the case concerns a governmental act that does not fall within one of these qualifications or exceptions, the state and its officials are immune from suit in respect of such acts – see Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs (ibid.) per Lord Sumption JSC at [39]. That is so whether or not the acts are illegal, unconstitutional or unauthorised under the internal law of the state concerned or otherwise - see The I Congreso Del Partido (ibid.) per Lord Wilberforce at 272, because the rationale of the state immunity principle is to prevent such issues being canvassed in the courts of one state in respect of the acts of another; and Jones v Ministry of the Interior of Saudi Arabia & another (ibid.) per Lord Bingham at paragraph 12, where it was held that Saudi officials allegedly responsible for torture could not be sued in the courts of England and Wales.”

"16.       There is no evidence that there is an international consensus that satisfies these requirements, which qualifies the fundamental norm of international law on which sovereign immunity is founded so as to enable the SIA to be construed in the way contended for by the claimants. That two states, the United States of America and Canada, have introduced terrorism exceptions into their domestic state immunity legislation is not to the point. Parliament has not introduced such an exception here and that those states have done so does not demonstrate that a consensus has emerged amongst nations to the effect that state immunity should not apply to civil claims in respect of alleged terrorist financing by states.”

"46.       However, in my judgment, the premise is not correct and the Article 6 point is unarguable in light of the conclusions I have reached concerning the United Nations Issue. In those circumstances no question of reading down or granting a declaration of incompatibility can arise.”

The Court found, “In summary therefore, officials and agents of a state are entitled to the same protection that the state would be entitled to if the state itself had been sued for the acts in question. There is no dispute in this case that if otherwise state immunity applies it is available to the defendants.”

Whilst the decision appears to be legally correct, it cries out for legislation to bring into effect in English law a prohibition along the lines of Resolution 1373 and similar to that in the USA and Canada to prevent states financing terrorism.

Steven Loble