In 2012, a dissident attempted to have Bahrain’s Prince Nasser bin Hamad Al Khalifa arrested in the UK during a visit for the Olympics over allegations of torture during the Arab Spring’s 2011 pro-democracy protests in Bahrain. The UK’s Crown Prosecution Service said at the time the prince was immune to prosecution because of his royal status. Today, the High Court in London squashed the original decision: The prince is not immune from prosecution over torture.
The case was brought by FF, the pseudonym of a Bahraini dissident who was granted refuge in the UK after being badly beaten and imprisoned during the protests, whose lawyer said that the decision “clears the way for an investigation of the prince” and “further evidence will be submitted to the police in due course.”
Whether this will lead to a prosecution of the prince in the UK, should he decide to enter the country again, is an open question. The CPS called the decision “academic” in court, saying there is no evidence against the prince—which FF’s lawyer disputes, though FF admits that the prince was not present during his personal torture.
The government of Bahrain noted that it had never actually claimed any immunity for the prince from prosecution in the British courts and denies any of the accusations. “This has been an ill-targeted, politically motivated and opportunistic attempt to misuse the British legal system,” it said. “Contrary to assertions being made in the wake of today’s hearing, the court order does not open the door to a prosecution.”
The case is a reprise of the attempted prosecution of Chile’s Augusto Pinochet, who was arrested in 1998 while in London for medical treatment—under a Spanish warrant—for events that took place under his military dictatorship, including more than 90 counts of torture. Pinochet claimed immunity under the same law that the CPS cited in not charging the prince—the State Immunity Act of 1978—but the highest court in Britain ruled that the United Nations Convention Against Torture gave any state the right to bring a prosecution, saying:
The jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed. International law provides that offences jus cogens may be punished by any state because the offenders are ‘common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution.’
But actually enforcing such a case—under the widespread political pressure that it comes with—is another matter. Pinochet was freed on medical grounds, after pleas to set him free came from former heads of state like Margaret Thatcher and the elder George Bush. In fact, in the 26 years since the UN torture convention was incorporated into UK law, only one person has been convicted—an Afghan warlord prosecuted in 2005 in a case that cost more than £3 million ($4.8 million).
Still, the British court’s decision today sends out a fairly unambiguous message: there is no legal immunity from torture anywhere.