British Appeals Court Rejects Official Acts Immunity for Mongolian Rendition

Last Friday, a British appellate court -- the England and Wales High Court -- issued an unusual decision that creates a further chink in the immunity of foreign government officials from criminal prosecution for their official acts and that could have implications for current and former U.S. government officials.  The case involved an extradition request by Germany for Khurts Bat, the head of Mongolia’s Office of National Security, who was the subject of a European arrest warrant for allegedly having participated in the 2003 rendition from Germany to Mongolia (through kidnapping and drugging) of a Mongolian national, whom the Mongolian Government believed had been responsible for the assassination of the Mongolian Interior Minister.  Bat was arrested after travelling to London to meet with Foreign Office officials.  The British court rejected arguments that Bat had immunity from extradition under various customary international law theories of immunity.  Specifically, the court rejected Bat’s (and Mongolia’s) arguments that Bat was on a Special Diplomatic Mission, on the ground that the Foreign Office had not specifically consented to his mission; that he enjoyed Head of State immunity (ratione personae), on the ground that he was neither a head of state or foreign minister or similarly high-ranking official; and that he enjoyed official acts immunity (ratione materiae), on the ground that customary international law does not recognize immunity for an offence committed in the state which seeks to conduct the prosecution. Although there are a few other precedents, the court’s rejection of Bat’s argument for official acts immunity breaks some new ground.  Under traditional principles of customary international law, current or former government officials enjoy immunity from prosecution or civil suit in foreign courts for their official acts (although the U.S. Department of Justice has not always recognized these immunities when prosecuting foreign officials).  To allow otherwise would violate the sovereign immunity of the government official’s state, since states may only act through their officials.  In Bat’s case, Mongolia specifically took responsibility for his conduct in Germany.  Nevertheless, the British court recognized an exception to the general principle of official acts immunity for cases, not of jus cogens violations (for which some human rights lawyers have urged an exception to immunity), but where the alleged crime was perpetrated in the territory that seeks to exercise jurisdiction.  Because many cases involving the criminal prosecution of a foreign government official are likely to involve crimes that have occurred in that forum, the British decision may have widened an exception that could swallow the general rule of official acts immunity.