The Plaintiff, who held British and Kuwaiti nationality, came into the possession in Kuwait of video tapes that contained sexual scenes, the contents became common, much to the embarrassment of the 2nd defendant (member of the Royal Family), who in 1991 took the plaintiff which other members of the Royal Family to a state security prison. The plaintiff was beaten and burned. The plaintiff then moved to London and received medical attention, while living in London he received phone calls threaten him. Plaintiff appealed the judgment that the 1st defendant, Kuwait, was entitled to State immunity.
[The US position changed in 1997 when it was added to the FSIA that State was not immune for torture, extra judicial killing, hostage taking, aircraft sabotage]
Stuart-Smith: The plaintiff contends that 1 SIA 1978 must be read subject to the implication that the state is only granted immunity if it is acting within the law of nations. In IL torture is a violation of a fundamental human right, it is a crime a tort for which the victim should be compensated. The argument is than IL against torture is so fundamental that it is jus cogens which overrides all other principles of IL, including the well established principles of Sovereign immunity.
Authority in the US is contrary to the previous argument