1995

CA

Al adsani v Government of Kuwait 107 ILR 536 (1996)

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] Resolution 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

(Argentine Republic v Amerada Hess Shipping Corporation 488 US 428 SC, 1989), the USSC had to consider the provisions of Foreign States Immunities Act FSIA 1976 similar to SIA 1978 UK, The action concerned a claim arising out of damage suffered by an oil tanker when attacked by Argentine military aircraft during the Falklands War. Jurisdiction was claimed by the plaintiff in the US, on the basis that the attack was a violation of the law of nations. The court said: Rehnquist CJ: ‘we draw the plain implication that immunity is granted in those cases involving alleged violation of IL that do not come within the one of the FSIA’s exceptions’ (Siderman de Blanke v Republic of Argentina 965 F (2d) 699, 1992), the US Court of Appeal for 9th Circuit. Jose Siderman claimed that Argentine Officials, for whom the state was responsible, had tortured him. The court said: Fletcher: ‘While we agree with the Sidermans that official acts of torture of the sort they allege Argentina to have committed constitute a ius cogens violation, we conclude that Amerada Hess forecloses the attempt to posit a basis for jurisdiction not expressly countenanced by the FSIA’ The practical consequences of the plaintiff’s submission would be dire. The court of the UK are open to all who seek their help, whether they are British citizen or not. First defendant (Kuwait) is entitled to immunity in respect of the events alleged to have taken place in Kuwait. Turning to the acts committed in England, the Judge said that he was satisfied that threats have been made, that they occurred within the UK and caused personal injured. But he was not satisfied that the threats emanated from persons acting on behest of Kuwait Government. I agree with the judge that the plaintiff does not establish jurisdiction against the 1st defendant. I would dismiss the appellant.