Judgment - Regina v. Bartle and the Commissioner of Police for the
Metropolis and Others Ex Parte Pinochet
Regina v. Evans and Another and the Commissioner of Police for the
Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court
of the Queen's Bench Division)
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HOUSE OF LORDS
Lord Browne-Wilkinson
Lord Goff of Chieveley
Lord Hope of Craighead
Lord Hutton
Lord Saville of Newdigate
Lord Millett
Lord Phillips of Worth Matravers
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
REGINA
v.
BARTLE AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND OTHERS
(APPELLANTS)
EX PARTE PINOCHET
(RESPONDENT)
REGINA
v.
EVANS AND ANOTHER AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND
OTHERS
(APPELLANTS)
EX PARTE PINOCHET
(RESPONDENT)
(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)
ON 24 March 1999
LORD PHILLIPS OF WORTH MATRAVERS
My Lords,
The Spanish government seeks extradition of Senator Pinochet to stand trial
for crimes committed in a course of conduct spanning a lengthy period. My
noble and learned friend Lord Browne-Wilkinson has described how, before
your Lordships' House, the Spanish Government contended for the first time
that the relevant conduct extended back to 1 January 1972, and now covered a
significant period before Senator Pinochet became head of state and thus
before acts done in that capacity could result in any immunity. This change
in the Spanish Government's case rendered critical issues that have hitherto
barely been touched on. What is the precise nature of the double criminality
rule that governs whether conduct amounts to an extradition crime and what
parts of Senator Pinochet's alleged conduct satisfy that rule? On the first
issue I agree with the conclusion reached by Lord Browne-Wilkinson and on
the second I agree with the analysis of my noble and learned friend, Lord
Hope of Craighead.
These conclusions greatly reduce the conduct that can properly form the
subject of a request for extradition under our law. They leave untouched the
question of whether the English court can assert any criminal jurisdiction
over acts committed by Senator Pinochet in his capacity of head of state. It
is on that issue, the issue of immunity, that I would wish to add some
comments of my own.
State Immunity
There is an issue as to whether the applicable law of immunity is to be
found in the State Immunity Act 1978 or in principles of public
international law, which form part of our common law. If the statute governs
it must be interpreted, so far as possible, in a manner which accords with
public international law. Accordingly I propose to start by considering the
position at public international law.
The nature of the claim to immunity
These proceedings have arisen because Senator Pinochet chose to visit the
United Kingdom. By so doing he became subject to the authority that this
state enjoys over all within its territory. He has been arrested and is
threatened with being removed against his will to Spain to answer criminal
charges which are there pending. That has occurred pursuant to our
extradition procedures. Both the executive and the court has a role to play
in the extradition process. It is for the court to decide whether the legal
requirements which are a precondition to extradition are satisfied. If they
are, it is for the Home Secretary to decide whether to exercise his power to
order that Senator Pinochet be extradited to Spain.
If Senator Pinochet were still the head of state of Chile, he and Chile
would be in a position to complain that the entire extradition process was a
violation of the duties owed under international law to a person of his
status. A head of state on a visit to another country is inviolable. He
cannot be arrested or detained, let alone removed against his will to
another country, and he is not subject to the judicial processes, whether
civil or criminal, of the courts of the state that he is visiting. But
Senator Pinochet is no longer head of state of Chile. While as a matter of
courtesy a state may accord a visitor of Senator Pinochet's distinction
certain privileges, it is under no legal obligation to do so. He accepts,
and Chile accepts, that this country no longer owes him any duty under
international law by reason of his status ratione personae. Immunity is
claimed, ratione materiae, on the ground that the subject matter of the
extradition process is the conduct by Senator Pinochet of his official
functions when he was head of state. The claim is put thus in his written
case:
"There is no distinction to be made between a head of state, a former head
of state, a state official or a former state official in respect of official
acts performed under colour of their office. Immunity will attach to all
official acts which are imputable or attributable to the state. It is
therefore the nature of the conduct and the capacity of the Respondent at
the time of the conduct alleged, not the capacity of the Respondent at the
time of any suit, that is relevant."
We are not, of course, here concerned with a civil suit but with proceedings
that are criminal in nature. Principles of the law of immunity that apply in
relation to civil litigation will not necessarily apply to a criminal
prosecution. The nature of the process with which this appeal is concerned
is not a prosecution but extradition. The critical issue that the court has
to address in that process is, however, whether the conduct of Senator
Pinochet which forms the subject of the extradition request constituted a
crime or crimes under English law. The argument in relation to extradition
has proceeded on the premise that the same principles apply that would apply
if Senator Pinochet were being prosecuted in this country for the conduct in
question. It seems to me that that is an appropriate premise on which to
proceed.
Why is it said to be contrary to international law to prosecute someone who
was once head of state, or a state official, in respect of acts committed in
his official capacity? It is common ground that the basis of the immunity
claimed is an obligation owed to Chile, not to Senator Pinochet. The
immunity asserted is Chile's. Were these civil proceedings in which damages
were claimed in respect of acts committed by Senator Pinochet in the
government of Chile, Chile could argue that it was itself indirectly
impleaded. That argument does not run where the proceedings are criminal and
where the issue is Senator Pinochet's personal responsibility, not that of
Chile. The following general principles are advanced in Chile's written case
as supporting the immunity claimed:
"(a) the sovereign equality of states and the maintenance of international
relations require that the courts of one state will not adjudicate on the
governmental acts of another state;
(b) intervention in the internal affairs of other states is prohibited by
international law;
(c) conflict in international relations will be caused by such
adjudication or intervention."
These principles are illustrated by the following passage from Hatch v. Baez
(1876) 7 Hun. 596, 5 Am. Int. L. Cas. 434, a case in which the former
President of the Dominican Republic was sued in New York for injuries
allegedly sustained at his hands in San Domingo.
"The counsel for the plaintiff relies on the general principle, that all
persons, of whatever rank or condition, whether in or out of office, are
liable to be sued by them in violation of law. Conceding the truth and
universality of that principle, it does not establish the jurisdiction of
our tribunals to take cognizance of the official acts of foreign
governments. We think that, by the universal comity of nations and the
established rules of international law, the courts of one country are bound
to abstain from sitting in judgement on the acts of another government done
within its own territory. Each state is sovereign throughout its domain. The
acts of the defendant for which he is sued were done by him in the exercise
of that part of the sovereignty of St. Domingo which belongs to the
executive department of that government. To make him amenable to a foreign
jurisdiction for such acts, would be a direct assault upon the sovereignty
and independence of his country. The only remedy for such wrongs must be
sought through the intervention of the government of the person injured.
"The fact that the defendant has ceased to be president of St. Domingo does
not destroy his immunity. That springs from the capacity in which the acts
were done, and protects the individual who did them, because they emanated
from a foreign and friendly government."
This statement was made in the context of civil proceedings. I propose to
turn to the sources of international law to see whether they establish that
those principles have given rise to a rule of immunity in relation to
criminal proceedings.
The sources of immunity
Many rules of public international law are founded upon or reflected in
Conventions. This is true of those rules of state immunity which relate to
civil suit--see the European Convention on State Immunity 1972. It is not,
however, true of state immunity in relation to criminal proceedings. The
primary source of international law is custom, that is "a clear and
continuous habit of doing certain actions which has grown up under the
conviction that these actions are, according to international law,
obligatory or right"--Oppenheim's International Law, 9th ed. p. 27. Other
sources of international law are judicial decisions, the writing of authors
and "the general principles of law recognised by all civilised nations"--see
Article 38 of the Statute of the International Court of Justice. To what
extent can the immunity asserted in this appeal be traced to such sources?
Custom
In what circumstances might a head of state or other state official commit a
criminal offence under the law of a foreign state in the course of the
performance of his official duties?
Prior to the developments in international law which have taken place in the
last fifty years, the answer is very few. Had the events with which this
appeal is concerned occurred in the 19th century, there could have been no
question of Senator Pinochet being subjected to criminal proceedings in this
country in respect of acts, however heinous, committed in Chile. This would
not have been because he would have been entitled to immunity from process,
but for a more fundamental reason. He would have committed no crime under
the law of England and the courts of England would not have purported to
exercise a criminal jurisdiction in respect of the conduct in Chile of any
national of that state. I have no doubt that the same would have been true
of the courts of Spain. Under international practice criminal law was
territorial. This accorded with the fundamental principle of international
law that one state must not intervene in the internal affairs of another.
For one state to have legislated to make criminal acts committed within the
territory of another state by the nationals of the latter would have
infringed this principle. So it would to have exercised jurisdiction in
respect of such acts. An official of one state could only commit a crime
under the law of another state by going to that state and committing a
criminal act there. It is certainly possible to envisage a diplomat
committing a crime within the territory to which he was accredited, and even
to envisage his doing so in the performance of his official
functions--though this is less easy. Well established international law
makes provision for the diplomat. The Vienna Convention on Diplomatic
Relations 1961 provides for immunity from civil and criminal process while
the diplomat is in post and, thereafter, in respect of conduct which he
committed in the performance of his official functions while in post.
Customary international law provided a head of state with immunity from any
form of process while visiting a foreign state. It is possible to envisage a
visiting head of state committing a criminal offence in the course of
performing his official functions while on a visit and when clothed with
status immunity. What seems inherently unlikely is that a foreign head of
state should commit a criminal offence in the performance of his official
functions while on a visit and subsequently return after ceasing to be head
of state. Certainly this cannot have happened with sufficient frequency for
any custom to have developed in relation to it. Nor am I aware of any custom
which would have protected from criminal process a visiting official of a
foreign state who was not a member of a special mission had he had the
temerity to commit a criminal offence in the pursuance of some official
function. For these reasons I do not believe that custom can provide any
foundation for a rule that a former head of state is entitled to immunity
from criminal process in respect of crimes committed in the exercise of his
official functions.
Judicial decisions
In the light of the considerations to which I have just referred, it is not
surprising that Senator Pinochet and the Republic of Chile have been unable
to point to any body of judicial precedent which supports the proposition
that a former head of state or other government official can establish
immunity from criminal process on the ground that the crime was committed in
the course of performing official functions. The best that counsel for Chile
has been able to do is to draw attention to the following obiter opinion of
the Swiss Federal Tribunal in Marcos and Marcos v. Federal Department of
Police (1989) 102 I.L.R. 198 at pp. 202-3.
"The privilege of the immunity from criminal jurisdiction of heads of state
. . . has not been fully codified in the Vienna Convention [on Diplomatic
Relations]. . . . But it cannot be concluded that the texts of conventions
drafted under the aegis of the United Nations grant a lesser protection to
heads of foreign states than to the diplomatic representatives of the state
which those heads of state lead or universally represent. . . . Articles 32
and 39 of the Vienna Convention must therefore apply by analogy to heads of
state."
Writings of authors
We have been referred to the writings of a number of learned authors in
support of the immunity asserted on behalf of Senator Pinochet. Oppenheim
comments at para. 456:
"All privileges mentioned must be granted to a head of state only so long
as he holds that position. Therefore, after he has been deposed or has
abdicated, he may be sued, at least in respect of obligations of a private
character entered into while head of state. For his official acts as head of
state he will, like any other agent of a state, enjoy continuing immunity."
This comment plainly relates to civil proceedings.
Satow's Guide to Diplomatic Practice 5th Edition deals in Chapter 2 with the
position of a visiting head of state. The authors deal largely with immunity
from civil proceedings but state (at p. 10) that under customary
international law "he is entitled to immunity--probably without
exception--from criminal and civil jurisdiction". After a further passage
dealing with civil proceedings, the authors state:
"A head of state who has been deposed or replaced or has abdicated or
resigned is of course no longer entitled to privileges or immunities as a
head of state. He will be entitled to continuing immunity in regard to acts
which he performed while head of state, provided that the acts were
performed in his official capacity; in this his position is no different
from that of any agent of the state."
Sir Arthur Watts in his monologue on The Legal Position in International Law
of Heads of State, Heads of Government and Foreign Ministers, Recueil des
cours, volume 247 (1994--III) deals with the loss of immunity of a head of
state who is deposed on a foreign visit. He then adds at p. 89:
"A head of state's official acts, performed in his public capacity as head
of state, are however subject to different considerations. Such acts are
acts of the state rather than the head of state's personal acts, and he
cannot be sued for them even after he has ceased to be head of state. The
position is similar to that of acts performed by an ambassador in the
exercise of his functions, for which immunity continues to subsist even
after the ambassador's appointment has come to an end."
My Lords, I do not find these writings, unsupported as they are by any
reference to precedent or practice, a compelling foundation for the immunity
in respect of criminal proceedings that is asserted.
General principles of law recognised by all civilised nations
The claim for immunity raised in this case is asserted in relation to a
novel type of extra-territorial criminal jurisdiction. The nature of that
jurisdiction I shall consider shortly. If immunity from that jurisdiction is
to be established it seems to me that this can only be on the basis of
applying the established general principles of international law relied upon
by Chile to which I have already referred, rather than any specific rule of
law relating to immunity from criminal process.
These principles underlie some of the rules of immunity that are clearly
established in relation to civil proceedings. It is time to take a closer
look at these rules, and at the status immunity that is enjoyed by a head of
state ratione personae.
Immunity from civil suit of the State itself.
It was originally an absolute rule that the court of one state would not
entertain a civil suit brought against another state. All states are equal
and this was said to explain why one state could not sit in judgment on
another. This rule was not viable once states began to involve themselves in
commerce on a large scale and state practice developed an alternative
restrictive rule of state immunity under which immunity subsisted in respect
of the public acts of the state but not for its commercial acts. A
distinction was drawn between acts done jure imperii and acts done jure
gestionis. This refinement of public international law was described by Lord
Denning, M.R. in Trendtex Trading Corporation v. Central Bank of Nigeria
[1977] 1 Q.B. 529. In that case the majority of the Court of Appeal held
that the common law of England, of which international law forms part, had
also changed to embrace the restrictive theory of state immunity from civil
process. That change was about to be embodied in statute, the State Immunity
Act 1978, which gave effect to the European Convention on State Immunity of
1972.
Part I of the Act starts by providing:
"1. General immunity from jurisdiction
(1) A state is immune from the jurisdiction of the courts of the United
Kingdom except as provided in the following provisions of this Part of this
Act."
Part I goes on to make provision for a number of exceptions from immunity,
the most notable of which is, by Section 3, that in relation to a commercial
transaction entered into by the state.
Part I does not apply to criminal proceedings--Section 16 (4).
The immunity of a head of state ratione personae.
An acting head of state enjoyed by reason of his status absolute immunity
from all legal process. This had its origin in the times when the head of
state truly personified the state. It mirrored the absolute immunity from
civil process in respect of civil proceedings and reflected the fact that an
action against a head of state in respect of his public acts was, in effect,
an action against the state itself. There were, however, other reasons for
the immunity. It would have been contrary to the dignity of a head of state
that he should be subjected to judicial process and this would have been
likely to interfere with the exercise of his duties as a head of state.
Accordingly the immunity applied to both criminal and civil proceedings and,
insofar as civil proceedings were concerned, to transactions entered into by
the head of state in his private as well as his public capacity.
When the immunity of the state in respect of civil proceedings was
restricted to exclude commercial transactions, the immunity of the head of
state in respect of transactions entered into on behalf of the state in his
public capacity was similarly restricted, although the remainder of his
immunity remained--see Sections 14 (1) (a) and 20 (5) of the Act of 1978.
Immunity ratione materiae.
This is an immunity of the state which applies to preclude the courts of
another state from asserting jurisdiction in relation to a suit brought
against an official or other agent of the state, present or past, in
relation to the conduct of the business of the state while in office. While
a head of state is serving, his status ensures him immunity. Once he is out
of office, he is in the same position as any other state official and any
immunity will be based upon the nature of the subject matter of the
litigation. We were referred to a number of examples of civil proceedings
against a former head of state where the validity of a claim to immunity
turned, in whole or in part, on whether the transaction in question was one
in which the defendant had acted in a public or a private capacity: Ex King
Farouk of Egypt v. Christian Dior, S.A.R.L. (1957) 24 I.L.R. 228; Soc. Jean
Desses v. Prince Farouk (1963) 65 I.L.R. 37; Jiminez v. Aristeguieta 311 F.
2d. 547; U.S. v. Noriega (1997) 117 F. 3rd. 1206.
There would seem to be two explanations for immunity ratione materiae. The
first is that to sue an individual in respect of the conduct of the state's
business is, indirectly, to sue the state. The state would be obliged to
meet any award of damage made against the individual. This reasoning has no
application to criminal proceedings. The second explanation for the immunity
is the principle that it is contrary to international law for one state to
adjudicate upon the internal affairs of another state. Where a state or a
state official is impleaded, this principle applies as part of the
explanation for immunity. Where a state is not directly or indirectly
impleaded in the litigation, so that no issue of state immunity as such
arises, the English and American courts have nonetheless, as a matter of
judicial restraint, held themselves not competent to entertain litigation
that turns on the validity of the public acts of a foreign state, applying
what has become known as the act of state doctrine. Two citations well
illustrate the principle:
1. Underhill v. Hernandez (1897) 168 U.S. 456 at p. 457 (per Fuller
C.J.):
"Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one country will not sit in judgment on
the acts of the government of another done within its own territory. Redress
of grievances by reason of such acts must be obtained through the means open
to be availed of by sovereign powers as between themselves . . . The
immunity of individuals from suits brought in foreign tribunals for acts
done within their own states, in the exercise of governmental authority,
whether as civil officers or as military commanders, must necessarily extend
to the agents of governments ruling by paramount force as matter of fact."
2. Buck v. Att. Gen. [1965] Ch. 475, 770, per Diplock L.J.
"As a member of the family of nations, the Government of the United Kingdom
(of which this court forms part of the judicial branch) observes the rules
of comity, videlicet, the accepted rules of mutual conduct as between state
and state which each state adopts in relation to other states to adopt in
relation to itself. One of those rules is that it does not purport to
exercise jurisdiction over the internal affairs of any other independent
state, or to apply measures of coercion to it or to its property, except in
accordance with the rules of public international law. One of the commonest
applications of this rule by the judicial branch of the United Kingdom
Government is the well-known doctrine of sovereign immunity. A foreign state
cannot be impleaded in the English courts without its consent: see Duff
Development Co. v. Kelantan Government. As was made clear in Rahimtoola v.
Nizam of Hyderabad, the application of the doctrine of sovereign immunity
does not depend upon the persons between whom the issue is joined, but upon
the subject-matter of the issue. For the English court to pronounce upon the
validity of a law of a foreign sovereign state within its own territory so
that the validity of that law became the res of the res judicata in the
suit, would be to assert jurisdiction over the internal affairs of that
state. That would be a breach of the rules of comity"
It is contended on behalf of the respondent that the question of whether an
official is acting in a public capacity does not depend upon whether he is
acting within the law of the state on whose behalf he purports to act, or
even within the limits of international law. His conduct in an official
capacity will, whether lawful or unlawful, be conduct of the state and the
state will be entitled to assert immunity in respect of it. In the field of
civil litigation these propositions are supported by authority. There are a
number of instances where plaintiffs have impleaded states claiming damages
for injuries inflicted by criminal conduct on the part of state officials
which allegedly violated international law. In those proceedings it was of
the essence of the plaintiffs' case that the allegedly criminal conduct was
conduct of the state and this was not generally in issue. What was in issue
was whether the criminality of the conduct deprived the state of immunity
and on that issue the plaintiffs failed. Counsel for the Respondent provided
us with an impressive, and depressing, list of such case:
Saltany v. Reagan (1988) 702 F. Supp. 319 (claims of assassination and
terrorism); Siderman de Blake v. Republic of Argentine (1992) 965 F.2d 699
(claim of torture); Princz v. Federal Republic of Germany (1994) 26 F. 3d
1166 (D.C. Cir. 1994) (claim in respect of the holocaust); Al-Adsani v.
Government of Kuwait (1996) 107 I.L.R. 536 (claim of torture); Sampson v.
Federal Republic of Germany 975 F. Supp. 1108 (N.D. I11. 1997) (claim in
respect of the holocaust); Smith v. Libya, 886 F. Supp. 406 (EDNY, 1995) 101
F. 3d 239 (2d Cir. 1996) (claim in respect of Lockerbie bombing); Persinger
v. Islamic Republic of Iran 729 F.2d 835, (D.C. Cir. 1984) (claim in
relation to hostage taking at the U.S. Embassy).
It is to be observed that all but one of those cases involved decisions of
courts exercising the federal jurisdiction of the United States, Al-Adsani
v. Government of Kuwait being a decision of the Court of Appeal of this
country. In each case immunity from civil suit was afforded by statute--in
America, the Foreign Sovereign Immunities Act and, in England, the State
Immunity Act 1978. In each case the court felt itself precluded by the clear
words of the statute from acceding to the submission that state immunity
would not protect against liability for conduct which infringed
international law.
The vital issue.
The submission advanced on behalf of the respondent in respect of the effect
of public international law can, I believe, be summarised as follows:
1. One state will not entertain judicial proceedings against a former head
of state or other state official of another state in relation to conduct
performed in his official capacity.
2. This rule applies even if the conduct amounts to a crime against
international law.
3. This rule applies in relation to both civil and criminal proceedings.
For the reasons that I have given and if one proceeds on the premise that
Part I of the State Immunity Act correctly reflects current international
law, I believe that the first two propositions are made out in relation to
civil proceedings. The vital issue is the extent to which they apply to the
exercise of criminal jurisdiction in relation to the conduct that forms the
basis of the request for extradition. This issue requires consideration of
the nature of that jurisdiction.
The development of international criminal law.
In the latter part of this century there has been developing a recognition
among states that some types of criminal conduct cannot be treated as a
matter for the exclusive competence of the state in which they occur. In the
9th edition of Oppenheim, published in 1992, the authors commented at p.
998:
"While no general rule of positive international law can as yet be asserted
which gives to states the right to punish foreign nationals for crimes
against humanity in the same way as they are, for instance, entitled to
punish acts of piracy, there are clear indications pointing to the gradual
evolution of a significant principle of international law to that effect.
That principle consists both in the adoption of the rule of universality of
jurisdiction and in the recognition of the supremacy of the law of humanity
over the law of the sovereign state when enacted or applied in violation of
elementary human rights in a manner which may justly be held to shock the
conscience of mankind."
The appellants, and those who have on this appeal been given leave to
support them, contend that this passage, which appears verbatim in earlier
editions, is out of date. They contend that international law now recognises
a category of criminal conduct with the following characteristics:
1) It is so serious as to be of concern to all nations and not just to the
state in which it occurs.
2) Individuals guilty of it incur criminal responsibility under
international law.
3) There is universal jurisdiction in respect of it. This means that
international law recognises the right of any state to prosecute an offender
for it, regardless of where the criminal conduct took place.
4) No state immunity attaches in respect of any such prosecution.
My Lords, this is an area where international law is on the move and the
move has been effected by express consensus recorded in or reflected by a
considerable number of international instruments. Since the Second World War
states have recognised that not all criminal conduct can be left to be dealt
with as a domestic matter by the laws and the courts of the territories in
which such conduct occurs. There are some categories of crime of such
gravity that they shock the consciousness of mankind and cannot be tolerated
by the international community. Any individual who commits such a crime
offends against international law. The nature of these crimes is such that
they are likely to involve the concerted conduct of many and liable to
involve the complicity of the officials of the state in which they occur, if
not of the state itself. In these circumstances it is desirable that
jurisdiction should exist to prosecute individuals for such conduct outside
the territory in which such conduct occurs.
I believe that it is still an open question whether international law
recognises universal jurisdiction in respect of international crimes--that
is the right, under international law, of the courts of any state to
prosecute for such crimes wherever they occur. In relation to war crimes,
such a jurisdiction has been asserted by the State of Israel, notably in the
prosecution of Adolf Eichmann, but this assertion of jurisdiction does not
reflect any general state practice in relation to international crimes.
Rather, states have tended to agree, or to attempt to agree, on the creation
of international tribunals to try international crimes. They have however,
on occasion, agreed by conventions, that their national courts should enjoy
jurisdiction to prosecute for a particular category of international crime
wherever occurring.
The principle of state immunity provides no bar to the exercise of criminal
jurisdiction by an international tribunal, but the instruments creating such
tribunals have tended, nonetheless, to make it plain that no exception from
responsibility or immunity from process is to be enjoyed by a head of state
or other state official. Thus the Charter of the Nuremberg Tribunal 1945
provides by Article 7:
"The official position of defendants, whether as head of state or
responsible officials in Government Departments shall not be considered as
freeing them from responsibility or mitigating punishment"
The Tokyo Charter of 1946, the Statute of the International Criminal
Tribunal for the former Yugoslavia of 1993, the Statute of the International
Criminal Tribunal for Rwanda 1994 and the Statute of the International
Criminal Court 1998 all have provisions to like effect.
Where states, by convention, agree that their national courts shall have
jurisdiction on a universal basis in respect of an international crime, such
agreement cannot implicitly remove immunities ratione personae that exist
under international law. Such immunities can only be removed by express
agreement or waiver. Such an agreement was incorporated in the Convention on
the Prevention and Suppression of the Crime of Genocide 1984, which
provides:
"Persons committing genocide or any of the other acts enumerated in Article
III shall be punished, whether they are constitutionally responsible rulers,
public officials, or private individuals."
Had the Genocide Convention not contained this provision, an issue could
have been raised as to whether the jurisdiction conferred by the Convention
was subject to state immunity ratione materiae. Would international law have
required a court to grant immunity to a defendant upon his demonstrating
that he was acting in an official capacity? In my view it plainly would not.
I do not reach that conclusion on the ground that assisting in genocide can
never be a function of a state official. I reach that conclusion on the
simple basis that no established rule of international law requires state
immunity ratione materiae to be accorded in respect of prosecution for an
international crime. International crimes and extra-territorial jurisdiction
in relation to them are both new arrivals in the field of public
international law. I do not believe that state immunity ratione materiae can
co-exist with them. The exercise of extra-territorial jurisdiction overrides
the principle that one state will not intervene in the internal affairs of
another. It does so because, where international crime is concerned, that
principle cannot prevail. An international crime is as offensive, if not
more offensive, to the international community when committed under colour
of office. Once extra-territorial jurisdiction is established, it makes no
sense to exclude from it acts done in an official capacity.
There can be no doubt that the conduct of which Senator Pinochet stands
accused by Spain is criminal under international law. The Republic of Chile
has accepted that torture is prohibited by international law and that the
prohibition of torture has the character of jus cogens and or obligation
erga omnes. It is further accepted that officially sanctioned torture is
forbidden by international law. The information provided by Spain accuses
Senator Pinochet not merely of having abused his powers as head of state by
committing torture, but of subduing political opposition by a campaign of
abduction, torture and murder that extended beyond the boundaries of Chile.
When considering what is alleged, I do not believe that it is correct to
attempt to analyse individual elements of this campaign and to identify some
as being criminal under international law and others as not constituting
international crimes. If Senator Pinochet behaved as Spain alleged, then the
entirety of his conduct was a violation of the norms of international law.
He can have no immunity against prosecution for any crime that formed part
of that campaign.
It is only recently that the criminal courts of this country acquired
jurisdiction, pursuant to Section 134 of the Criminal Justice Act 1984, to
prosecute Senator Pinochet for torture committed outside the territorial
jurisdiction, provided that it was committed in the performance, or
purported performance, of his official duties. Section 134 was passed to
give effect to the rights and obligations of this country under the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment of 1984, to which the United Kingdom, Spain and Chile are all
signatories. That Convention outlaws the infliction of torture "by or at the
instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity". Each state party is required
to make such conduct criminal under its law, wherever committed. More
pertinently, each state party is required to prosecute any person found
within its jurisdiction who has committed such an offence, unless it
extradites that person for trial for the offence in another state. The only
conduct covered by this Convention is conduct which would be subject to
immunity ratione materiae, if such immunity were applicable. The Convention
is thus incompatible with the applicability of immunity ratione materiae.
There are only two possibilities. One is that the States Parties to the
Convention proceeded on the premise that no immunity could exist ratione
materiae in respect of torture, a crime contrary to international law. The
other is that the States Parties to the Convention expressly agreed that
immunity ratione materiae should not apply in the case of torture. I believe
that the first of these alternatives is the correct one, but either must be
fatal to the assertion by Chile and Senator Pinochet of immunity in respect
of extradition proceedings based on torture.
The State Immunity Act 1978.
I have referred earlier to Part I of the State Immunity Act 1978, which does
not apply to criminal proceedings. Part III of the Act, which is of general
application is headed "Miscellaneous and Supplementary". Under this Part,
Section 20 provides:
"(1) Subject to the provisions of this section and to any necessary
modifications, the Diplomatic Privileges Act 1964 shall apply to-
(a) a sovereign or other head of state;
(b) members of his family forming part of his household; and
(c) his private servants,
as it applies to the head of a diplomatic mission, to members of his family
forming part of his household and to his private servants."
The Diplomatic Privileges Act 1964 was passed to give effect to the Vienna
Convention on Diplomatic Relations of 1961. The preamble to the Convention
records that "peoples of all nations from ancient times have recognised the
status of diplomatic agents". The Convention codifies long standing rules of
public international law as to the privileges and immunities to be enjoyed
by a diplomatic mission. The Act of 1964 makes applicable those Articles of
the Convention that are scheduled to the Act. These include Article 29,
which makes the person of a diplomatic agent immune from any form of
detention and arrest, Article 31 which confers on a diplomatic agent
immunity from the criminal and civil jurisdiction of the receiving state and
Article 39, which includes the following provisions:
"1. Every person entitled to privileges and immunities shall enjoy them
from the moment he enters the territory of the receiving state on
proceedings to take up his post or, if already in its territory, from the
moment when his appointment is notified to the Ministry for Foreign Affairs
or such other ministry as may be agreed.
"2. When the functions of a person enjoying privileges and immunities have
come to an end, such privileges and immunities shall normally cease at the
moment when he leaves the country, or on expiry of a reasonable period in
which to do so, but shall subsist until that time, even in case of armed
conflict. However, with respect to acts performed by such a person in the
exercise of his functions as a member of the mission, immunity shall
continue to subsist."
The question arises of how, after the "necessary modifications", these
provisions should be applied to a head of state. All who have so far in
these proceedings given judicial consideration to this problem have
concluded that the provisions apply so as to confer the immunities enjoyed
by a diplomat upon a head of state in relation to his actions wherever in
the world they take place. This leads to the further conclusion that a
former head of state continues to enjoy immunity in respect of acts
committed "in the exercise of his functions" as head of state, wherever
those acts occurred.
For myself, I would not accord Section 20 of the Act of 1978 such broad
effect. It seems to me that it does no more than to equate the position of a
head of state and his entourage visiting this country with that of a
diplomatic mission within this country. Thus interpreted, Section 20 accords
with established principles of international law, is readily applicable and
can appropriately be described as supplementary to the other Parts of the
Act. As Lord Browne-Wilkinson has demonstrated, reference to the
parliamentary history of the Section discloses that this was precisely the
original intention of Section 20, for the section expressly provided that it
applied to a head of state who was "in the United Kingdom at the invitation
or with the consent of the Government of the United Kingdom". Those words
were deleted by amendment. The mover of the amendment explained that the
object of the amendment was to ensure that heads of state would be treated
like heads of diplomatic missions "irrespective of presence in the United
Kingdom".
Senator Pinochet and Chile have contended that the effect of Section 20, as
amended, is to entitle Senator Pinochet to immunity in respect of any acts
committed in the performance of his functions as head of state anywhere in
the world, and that the conduct which forms the subject matter of the
extradition proceedings, insofar as it occurred when Senator Pinochet was
head of state, consisted of acts committed by him in performance of his
functions as head of state.
If these submissions are correct, the Act of 1978 requires the English court
to produce a result which is in conflict with international law and with our
obligations under the Torture Convention. I do not believe that the
submissions are correct, for the following reasons:
As I have explained, I do not consider that Section 20 of the Act of 1978
has any application to conduct of a head of state outside the United
Kingdom. Such conduct remains governed by the rules of public international
law. Reference to the parliamentary history of the section, which I do not
consider appropriate, serves merely to confuse what appears to me to be
relatively clear.
If I am mistaken in this view and we are bound by the Act of 1978 to accord
to Senator Pinochet immunity in respect of all acts committed "in
performance of his functions as head of state", I would not hold that the
course of conduct alleged by Spain falls within that description. Article 3
of the Vienna Convention, which strangely is not one of those scheduled to
the Act of 1964, defines the functions of a diplomatic mission as including
"protecting in the receiving state the interests of the sending state and of
its nationals, within the limits permitted by international law" [the
emphasis is mine].
Insofar as Part III of the Act of 1978 entitles a former head of state to
immunity in respect of the performance of his official functions I do not
believe that those functions can, as a matter of statutory interpretation,
extend to actions that are prohibited as criminal under international law.
In this way one can reconcile, as one must seek to do, the provisions of the
Act of 1978 with the requirements of public international law.
For these reasons, I would allow the appeal in respect of so much of the
conduct alleged against Senator Pinochet as constitutes extradition crimes.
I agree with Lord Hope as to the consequences which will follow as a result
of the change in the scope of the case.
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Lord Browne-Wilkinson
Lord Goff of Chieveley
Lord Hope of Craighead
Lord Hutton
Lord Saville of Newdigate
Lord Millett
Lord Phillips of Worth Matravers
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