The efforts of Janan Harb, a widow of the late King Fahd of Saudi Arabia, to obtain her share of the King’s estate through the English courts have given rise to two novel questions of international law. First, is the estate of a Head of State who died in office immune from legal action? Second, can a foreign royal refuse to give evidence in court?
In accordance with international trends to minimise immunities and combat the perceived impunity of officials, both questions were answered in the negative. This post examines the background to the Harb cases, outlines the arguments made, and comments on the impact they are likely to have on international immunities.
Background
The following facts were assumed for the limited purposes of deciding the immunity question.
Ms Harb married the late King Fahd of Saudi Arabia in 1968. Their relationship met with disapproval in Riyadh due to her Christianity. She was forced to leave Saudi Arabia. The King, however, promised that he would financially support her for the rest of her life. He did so until suffering a stroke in 1995. In June 2003, Ms Harb met with the King’s son, Prince Abdul Aziz. He agreed to honor his father’s promise by transferring £12,000,000 and two properties in central London to Ms Harb. In return, Ms Harb promised to remove various allegations contained in matrimonial proceedings she had initiated against the King in the United Kingdom (see Harb v HM King Fahd Bin Abdul Aziz [2005 EWCA Civ 1324).
The King died in 2005. Ms Harb alleged that she had fulfilled her side of the agreement, but that the Prince failed to make the promised transfers. She claims specific performance of the agreement. Without making any submission regarding Ms Harb’s claims, the Prince raised Head of State immunity in order to oust the court’s jurisdiction.
At first instance: Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2014] EWHC 1807 (Ch)
Rose J recognised that the relevant United Kingdom legislation governing Head of State immunity, the State Immunity Act 1978, reflected customary international law. Importantly, it was to be construed in accordance with customary international law. These principles Rose J drew from a previous UK decision dealing with Head of State immunity, R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147 (“Pinochet”).
This case established that a serving Head of State enjoys immunity ratione personae that covers both private and official acts. A former Head of State, however, has a more limited immunity ratione materiae. This immunity covers only official actions taken while in office. Private acts, whether performed before, during, or after holding office, are not covered by immunity ratione materiae.
Rose J saw no reason to depart from these principles in respect of a Head of State who had died in office. Indeed, he considered himself bound by the principles in Pinochet. Accordingly, he rejected the Prince’s claim to Head of State immunity.
On appeal: HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz v Harb [2015] EWCA Civ 481
The Court of Appeal agreed to hear the Prince’s appeal, noting at paragraph 15 of the judgment that the issue “was not covered directly by authority or, indeed, in the text books or legal literature.”
The Prince was represented by Lord Pannick QC. He made four arguments in favour of King Fahd’s immunity ratione personae surviving his death. First, he factually distinguished the present case from Pinochet. He noted that where Pinochet had concerned immunity from criminal law, the present case was a civil claim. The crux of this argument would be that anything said in Pinochet on immunity from civil actions was obiter dicta. The Court, however, found the attempts to distinguish Pinochet misguided. The true effect of Pinochet on the present case was to affirm that the provisions of the State Immunity Act 1978 reflected customary international law. The many factual differences between Pinochet and the present case could not displace this general principle.
Lord Pannick’s second argument was that to bring legal action against a deceased Head of State would be an affront to that State. The underlying assumption of this argument is that when a Head of State dies in office they remain an embodiment of the State. To permit suit of the embodiment of a foreign State in English courts would be a grave insult to that State. The Court disagreed, noting that when a Head of State dies, they are immediately replaced. This is necessary so that the State may continue without disintegrating in a legal vacuum: “the King is dead, long live the King.” As there can exist only one Head of State, legal action against a deceased Head of State cannot be an affront to that State, given that there can only be one embodiment of the State at any one time.
The third argument concerned the practical difficulties that may arise if a Head of State died in the United Kingdom. In such a situation, customary international law indicates that a coronial inquest would be prevented by immunity. Lord Pannick argued that this principle showed that immunity survived the death of the Head of State, and that this immunity must be the Head of State’s immunity ratione personae. The Court, however, clarified that a coronial inquest would be improper because it would be, in effect, an inquiry into the internal affairs of another State. Such inquiry is prohibited by State immunity – not because of any immunity of the deceased Head of State themselves.
Lord Pannick’s final argument was that Heads of State would bear in mind, when performing their roles, the potential legal actions against their estates should they die in office. If they retire they will be able to contest any legal action. But if they die in office they cannot. Lord Pannick argued that Heads of State would be distracted by these concerns, and that this would frustrate the functional basis of Head of State immunity. The Court rejected this argument on the grounds of illogicality. A terminally ill Head of State could leave office, have proceeding issued against her, and then pass away, leaving no immunity for her estate. Yet if that same Head of State had not left office then her estate would be immune under Lord Pannick’s formulation. Yet in neither case would the Head of State be in a position to be able to deal with the litigation. Accordingly, there could be no functional basis for retaining the immunity. Ultimately, Lord Pannick’s arguments could not surmount the lack of reason in policy, logic or practice why the position in law of a Head of State who died in office should be more favourable than that of a retired Head of State.
At trial: Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2015] EWHC 2195 (Ch)
Once the immunity question had been resolved by the Court of Appeal, trial was set down for 16 July 2015. A new defence tactic was run: namely, that the Prince could not come to London to give evidence. Numerous reasons were given for why the Prince should not be compelled to attend court, including that the resulting media attention would be distasteful. The key reason, however, was given in a short letter given by the Saudi Embassy to the court, which is worth reproducing in full:
The Embassy of the Kingdom of Saudi Arabia in London presents its compliments to the court and it wishes to convey the following note from the Ministry of Foreign Affairs to Saudi Arabia. With reference to the litigation entitled Harb v HRH Prince Abdul Aziz which is due to be heard on 16 July 2015, the Government of the Kingdom of Saudi Arabia wishes to inform the court that it is not permissible for a member of the royal family of Saudi Arabia to provide oral evidence in foreign court proceedings concerning matters relating to HM the late King Fahd. The Royal Court of Saudi Arabia forbids HRH Prince Abdul Aziz from doing so in this matter. No discourtesy is intended to the judge hearing this case. By providing this letter, and with all due respect to the court of the United Kingdom, the government of the Kingdom of Saudi Arabia does not submit to the jurisdiction of the English court, nor does the Kingdom waive the applicable immunity and privilege to which its officials are entitled.
The trial judge, Peter Smith J, rejected the Prince’s submissions. Importantly, the allegation that it would be contrary to Saudi law for a member of the House of Saud to give evidence in a foreign court was not supported by any expert evidence. Further, members of the House of Saud had previously given evidence in English courts, including before Peter Smith J. Accordingly, the trial judge ordered that the Prince attend court on 20 July 2015. This the Prince failed to do, resulting in Peter Smith J imposing a £25,000 fine on him. Further, the Prince’s absence resulted in his written evidence being heavily discounted, as he had not been subjected to cross-examination.
Conversely, Ms Harb attended court and was cross-examined extensively. Smith J ultimately found her claim and version of events to be credible. Judgment was given in her favour on 3 November 2015 (Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2015] EWHC 3155 (Ch). However, as Ms Harb and her advisors are no doubt aware, enforcing the judgement against Saudi assets in London may give rise to further litigation – and further immunity questions. Moreover, an appeal is possible, if not highly likely, given the evident importance of this case to the House of Saud.
Comment
The above judgements are to be welcomed as according with international law, supporting the trend to minimise immunities, and combating the perceived impunity of officials. It is unfortunate, however, that the justification for immunity ratione personae was not explored in any of the decisions.
Following the judgment of the International Court of Justice in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3, immunity ratione personae arises because Heads of State, Heads of Government and Foreign Ministers can through their acts bind their respective States. Notably, these acts require no further authorisation: these high-ranking officials can and do act in their own names. Further, the powers of these three officials are plenary. A Head of State, a Head of Government or a Foreign Minister can enter into any kind of international agreement. But questions would be raised about the capacity of, for example, a Finance Minister to bind her country by signing an extradition treaty.
As it is not possible, in a legal sense, to differentiate the official acts from the private acts performed by these three officials when abroad, immunity ratione personae should apply equally between them. Yet, contrary to the Arrest Warrant judgment, Lord Pannick’s arguments implied that Heads of State enjoy an immunity that fundamentally differs from that enjoyed by Heads of Government and Foreign Ministers.The rejection of this argument is that any and all acts of Heads of State, Heads of Government and Foreign Ministers while they are capable of binding their respective States cannot be questioned in foreign courts. Consideration of this theoretical basis for immunity ratione personae provides a simple solution to the present case: as King Fahd can no longer act so as to bind Saudi Arabia, his immunity ratione personae could not have survived his death.
There is, moreover, a persuasive practical basis for refusing the Prince’s immunity claim. While not argued before the English courts or mentioned in any of the judgments, granting immunity to King Fahd’s estate would have the perverse incentive of encouraging Heads of State to die in office so as to gain immunity for their estates. This is contrary to the notion that politicians should not remain in office for life, and particularly that no one should be “President for Life”. Accordingly, there are strong policy grounds for refusing to extend immunity ratione personae beyond death.