Special mission immunity and General Hegazy case
The case arose from an official visit by Egyptian General Mahmoud Hegazy to the UK in September 2015. General Hegazy is alleged to be responsible for torture and other atrocities in Egypt, including the Rabaa Square massacre of 2013. The Metropolitan Police did not investigate or arrest him because they had been advised by the Foreign Office and the Crown Prosecution Service that he had “special mission immunity”.
THE STORY
The Claimants in this case had notified the Metropolitan Police of Hegazy’s likely presence in the UK in 2015 and requested that immediate steps be taken to arrest him on torture allegations. Ordinarily, UK police can investigate and arrest foreign torture suspects under the principles of universal jurisdiction, embodied in section 134 of the Criminal Justice Act 1988. However, in this case, the Metropolitan Police responded that they had been advised by the Foreign and Commonwealth Office (FCO) and the Crown Prosecution Service (CPS) that General Hegazy had “special mission immunity” and therefore could not be arrested and prosecuted.
ACTION FOR JUSTICE
The UK Government grants “special mission status” to foreign official visitors on an ad hoc basis, and claimed that immunity from criminal jurisdiction flows from “special mission status”. Special mission immunity has no legislative basis in the UK but instead was said by the UK Government to have its basis in customary international law.
Human rights organisation REDRESS, together with Amnesty International, intervened in this case. We submitted that there is insufficient State practice accompanied by the recognition of a legal obligation to show a clear rule of customary international law that obliges States to afford visiting foreign officials who have special mission status, including torturers and other war criminals, absolute personal inviolability and complete immunity from criminal jurisdiction.
Even if there were such a rule, we submitted it should not be received into common law because it is for Parliament to consider the extent to which such an immunity should be a part of English law, and such a rule is difficult to reconcile with the UK’s obligations under the UN Convention Against Torture.
REDRESS and Amnesty International made submissions on the law only and did not take a position on the facts of this particular case. REDRESS and Amnesty International were represented pro bono by Shaheed Fatima QC, Rachel Barnes, and Hickman and Rose solicitors.
THE OUTCOMES
On 5 August 2016, in the first English case in which a Court was asked to make a specific finding on the role of customary international law with respect to a “special mission” visit to the UK, the Divisional Court ruled that customary international law requires States to secure, for the duration of a “special mission” visit, personal inviolability and immunity from criminal jurisdiction for the members of the “special mission”. The Divisional Court also found that this rule of customary international law is given effect by English common law.
On 19 July 2018 the Court of Appeal confirmed the Divisional Court’s judgment.
QUICK FACTS
- Case name: The Queen on the application of Freedom of Justice Party and Others v Secretary Of State for FCO and others
- Jurisdiction: High Court of Justice, Queen’s Bench Division
- Date filed: 7 June 2016
- Current status: Court of Appeal judgment issued.
- Legal representation: REDRESS and Amnesty International (interveners)