Playing the Ace? Jus Cogens Crimes and Functional Immunity in National Courts.

In Pinochet (No. 3), the UK House of Lords ruled that former Heads of State can be held accountable for the jus cogens crime of torture in foreign domestic courts, notwithstanding their pre-existing functional immunity. Since then, national courts have been seen as an avenue not only for prosecuting alleged torturers but also for seeking compensation for their victims. In a spate of cases before regional and national courts, including the House of Lords, claimants have argued that foreign States and their officials are no longer immune from private suits alleging torture. These arguments have been consistently rejected, with judicial majorities stressing that the longstanding right of State immunity from civil proceedings can only be overridden by positive law or impermissible conflict with a jus cogens norm. This article seeks to demonstrate that the international law principles and methodology the courts applied in deciding the civil claims cases are also applicable to Pinochet (No. 3) and irreconcilable with its outcome. When the way in which legal argument is framed determines the result, the real dispute is revealed to lie between competing methodologies of legal argument and competing concepts of justice and State consent in international law. [ABSTRACT FROM AUTHOR]