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)
------------------------------------------------------------------------

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 HOPE OF CRAIGHEAD

My Lords,

This is an appeal against the decision of the Divisional Court to quash the
provisional warrants of 16 and 22 October 1998 which were issued by the
metropolitan stipendiary magistrate under section 8(1)(b) of the Extradition
Act 1989. The application to quash had been made on two grounds. The first
was that Senator Pinochet as a former head of state of the Republic of Chile
was entitled to immunity from arrest and extradition proceedings in the
United Kingdom in respect of acts committed when he was head of state. The
second was that the charges which had been made against him specified
conduct which would not have been punishable in England when the acts were
done, with the result that these were not extradition crimes for which it
would be lawful for him to be extradited.
The Divisional Court quashed the first warrant, in which it was alleged that
Senator Pinochet had murdered Spanish citizens in Chile, on the ground that
it did not disclose any offence for which he could be extradited to Spain.
Its decision on that point has not been challenged in this appeal. It also
quashed the second warrant, in which it was alleged that Senator Pinochet
was guilty of torture, hostage-taking, conspiracy to take hostages and
conspiracy to commit murder. It did so on the ground that Senator Pinochet
was entitled to immunity as a former head of state from the process of the
English courts. The court held that the question whether these were offences
for which, if he had no immunity, it would be lawful for him to be
extradited was not a matter to be considered in that court at that stage.
But Lord Bingham of Cornhill C.J. said that it was not necessary for this
purpose that the conduct alleged constituted a crime which would have been
punishable in this country at the time when it was alleged to have been
committed abroad.
When this appeal was first heard in your Lordships' House the argument was
directed almost entirely to the question whether Senator Pinochet was
entitled as a former head of state to claim sovereign immunity in respect of
the charges alleged against him in the second provisional warrant. It was
also argued that the offences of torture and hostage-taking were not
offences for which he could be extradited until these became offences for
which a person could be prosecuted extra-territorially in the United
Kingdom. But the second argument appears to have been regarded as no more
than a side issue at that stage. This is not surprising in view of the terms
of the second provisional warrant. The offences which it specified extended
over periods lasting well beyond the date when the conduct became
extra-territorial offences in this country. Only Lord Lloyd of Berwick dealt
with this argument in his speech, and he confined himself to one brief
comment. He said that it involved a misunderstanding of section 2 of the
Extradition Act 1989, as in his view section 2(1)(a) referred to conduct
which would constitute an offence in the United Kingdom now, not to conduct
which would have constituted an offence then: [1998] 3 W.L.R. 1456, 1481F-G.
The offences alleged against Senator Pinochet
Four offences were set out in the second provisional warrant of 22 October
1998. These were:
(1) torture between 1 January 1988 and December 1992;
(2) conspiracy to torture between 1 January 1988 and 31 December 1992;
(3)  (a) hostage-taking and (b) conspiracy to take hostages between 1
 January 1982 and 31 January 1992; and
(4) conspiracy to commit murder between January 1976 and December  1992.
These dates must be compared with the date of the coup which brought Senator
Pinochet to power in Chile, which was 11 September 1973, and the date when
he ceased to be head of state, which was 11 March 1990. Taking the dates in
the second provisional warrant at their face value, it appears (a) that he
was not being charged with any acts of torture prior to 1 January 1988, (b)
that he was not being charged with any acts of hostage-taking or conspiracy
to take hostages prior to I January 1982 and (c) that he was not being
charged with any conspiracy to commit murder prior to January 1976. On the
other hand he was being charged with having committed these offences up to
December 1992, well after the date when he ceased to be head of state in
Chile.
The second appellant has taken the opportunity of the interval between the
end of the first hearing of this appeal and the second hearing to obtain
further details from the Spanish judicial authorities. He has explained that
the provisional warrant was issued under circumstances of urgency and that
the facts are more developed and complex than first appeared. And a number
of things have happened since the date of the first hearing which, it is
submitted, mean that the provisional warrant no longer has any life or
effect. On 9 December 1998 the Secretary of State issued an authority to
proceed under section 7(4) of the Act of 1989. On 10 December 1998 the
Spanish indictment was preferred in Madrid, and on 24 December 1998 further
particulars were drafted in accordance with Article 13 of the European
Convention on Extradition for furnishing with the extradition request.
Mr. Alun Jones Q.C. for the appellants said that it would be inappropriate
for your Lordships in these circumstances to confine an examination of the
facts to those set out in the provisional warrant and that it would be
unfair to deprive him of the ability to rely on material which has been
served within the usual time limits imposed in the extradition process. He
invited your Lordships to examine all the material which was before the
Secretary of State in December, including the formal request which was
signed at Madrid on 3 November 1998 and the further material which has now
been submitted by the Spanish Government. Draft charges have been prepared,
of the kind which are submitted in extradition proceedings as a case is
presented to the magistrate at the beginning of the main hearing under
section 9(8) of the Act. This has been done to demonstrate how the charges
which are being brought by the Spanish judicial authorities may be expressed
in terms of English criminal law, to show the offences which he would have
committed by his conduct against the law of this country.
The crimes which are alleged in the Spanish request are murder on such a
scale as to amount to genocide and terrorism, including torture and
hostage-taking. The Secretary of State has already stated in his authority
to proceed that Senator Pinochet is not to be extradited to Spain for
genocide. So that part of the request must now be left out of account. But
my impression is that the omission of the allegation of genocide is of
little consequence in view of the scope which is given in Spanish law to the
allegations of murder and terrorism.
It is not our function to investigate the allegations which have been made
against Senator Pinochet, and it is right to place on record the fact that
his counsel, Miss Montgomery Q.C., told your Lordships that they are all
strenuously denied by him. It is necessary to set out the nature and some of
the content of these allegations, on the assumption that they are supported
by the information which the Spanish judicial authorities have made
available. This is because they form an essential part of the background to
the issues of law which have been raised in this appeal. But the following
summary must not be taken as a statement that the allegations have been
shown to be true by the evidence, because your Lordships have not considered
the evidence.
The material which has been gathered together in the extradition request by
the Spanish judicial authorities alleges that Senator Pinochet was party to
a conspiracy to commit the crimes of murder, torture and hostage-taking, and
that this conspiracy was formed before the coup. He is said to have agreed
with other military figures that they would take over the functions of
government and subdue all opposition to their control of it by capturing and
torturing those who opposed them, who might oppose them or who might be
thought by others to be likely to oppose them. The purpose of this campaign
of torture was not just to inflict pain. Some of those who were to be
tortured were to be released, to spread words of the steps that would be
taken against those who opposed the conspirators. Many of those who were to
be tortured were be subjected to various other forms of atrocity, and some
of them were be killed. The plan was to be executed in Chile and in several
other counties outside Chile.
When the plan was put into effect victims are said to have been abducted,
tortured and murdered pursuant to the conspiracy. This was done first in
Chile, and then in other countries in South America, in the United States
and in Europe. Many of the acts evidencing the conspiracy are said to have
been committed in Chile before 11 September 1973. Some people were tortured
at a naval base in August 1973. Large numbers of persons were abducted,
tortured and murdered on 11 September 1973 in the course of the coup before
the junta took control and Senator Pinochet was appointed its President.
These acts continued during the days and weeks after the coup. A period of
repression ensued, which is said to have been at its most intense in 1973
and 1974. The conspiracy is said to have continued for several years
thereafter, but to have declined in intensity during the decade before
Senator Pinochet retired as head of state on 11 March 1990. It is said that
the acts committed in other countries outside Chile are evidence of the
primary conspiracies and of a variety of sub-conspiracies within those
states.
The draft charges which have been prepared in order to translate these broad
accusations into terms of English law may be summarised as follows:
(1) conspiracy to torture between 1 January 1972 and 10 September 1973  and
between 1 August 1973 and 1 January 1990 - charges 1, 2 and 5;
(2) conspiracy to take hostages between 1 August 1973 and 1 January 1990  -
charge 3;
(3) conspiracy to torture in furtherance of which murder was committed  in
various countries including Italy, France, Spain and Portugal  between 1
January 1972 and 1 January 1990 - charge 4; (4) torture between 1 August
1973 and 8 August 1973 and on 11  September 1973 - charges 6 and 8 [there is
no charge 7];
(5) conspiracy to murder in Spain between 1 January 1975 and 31  December
1976 and in Italy on 6 October 1975 - charges 9 and 12;
(6) attempted murder in Italy on 6 October 1975 - charges 10 and 11;
(7) torture on various occasions between 11 September 1973 and May  1977 -
charges 13 to 29 and 31 to 32; and
(8) torture on 24 June 1989 - charge 30.
This summary shows that some of the alleged conduct relates to the period
before the coup when Senator Pinochet was not yet head of state. Charges 1
and 5 (conspiracy to torture) and charge 6 (torture) relate exclusively to
that period. Charges 2 and 4 (conspiracy to torture) and charge 3
(conspiracy to take hostages) relate to conduct over many years including
the period before the coup. None of the conduct now alleged extends beyond
the period when Senator Pinochet ceased to be head of state.
Only one charge (charge 30 - torture on 24 June 1989) relates exclusively to
the period after 29 September 1988 when section 134 of the Criminal Justice
Act 1988, to which I refer later, was brought into effect. But charges 2 and
4 (conspiracy to torture) and charge 3 (conspiracy to take hostages) which
relate to conduct over many years extend over this period also. Two acts of
torture which are said to have occurred between 21 and 28 October 1988 are
mentioned in the extradition request. They have not been included as
separate counts in the list of draft charges, but it is important not to
lose sight of the fact that the case which is being made against Senator
Pinochet by the Spanish judicial authorities is that each act of torture has
to be seen in the context of a continuing conspiracy to commit torture. As a
whole, the picture which is presented is of a conspiracy to commit
widespread and systematic torture and murder in order to obtain control of
the government and, having done so, to maintain control of government by
those means for as long as might be necessary.
Against that background it is necessary first to consider whether the
relevant offences for the purposes of this appeal are those which were set
out in the second provisional warrant or those which are set out in the
draft charges which have been prepared in the light of the further
information which has been obtained from the Spanish judicial authorities.
On one view it might be said that, as the appeal is against the decision of
the Divisional Court to quash the second provisional warrant, your Lordships
should be concerned only with the charges which were set out in that
document. If that warrant was bad on the ground that the charges which it
sets out are charges in respect of which Senator Pinochet has immunity,
everything else that has taken place in reliance upon that warrant must be
bad also. If he was entitled to immunity, no order should have been made
against him in the committal proceedings and the Secretary of State should
not have issued an authority to proceed. But Article 13 of the European
Convention on Extradition which, following the enactment of the Extradition
Act 1989, the United Kingdom has now ratified (see the European Convention
on Extradition Order 1990, S.I. 1990 No. 1507), provides that if the
information communicated by the requesting party is found to be insufficient
to allow the requested party to make a decision in pursuance of the
Convention the requested party may ask for the necessary supplementary
information to be provided to it by the requesting party.
It is clear that the first provisional warrant was prepared in circumstances
of some urgency, as it was believed that Senator Pinochet was about to leave
the United Kingdom in order to return to Chile. Once begun, the procedure
was then subject to various time limits. There was also the problem of
translating the Spanish accusations, which cover so many acts over so long a
period, into the terms of English criminal law. I do not think that it is
surprising that the full extent of the allegations which were being made was
not at first appreciated. In my opinion the Spanish judicial authorities
were entitled to supplement the information which was originally provided in
order to define more clearly the charges which were the subject of the
request. On this view it would be right to regard the material which is now
available as explanatory of the charges which the second provisional warrant
was intended to comprise. Mr. Clive Nicholls Q.C. for Senator Pinochet said
that he was content with this approach in the interests of finality.
Are the alleged offences "extradition crimes"?
If your Lordships are willing, as I suggest we should be, to examine this
material it is necessary to subject it to further analysis. The starting
point is section 1(1) of the Extradition Act 1989, which provides that a
person who is accused in a foreign state of the commission of an extradition
crime may be arrested and returned to that state in accordance with the
extradition procedures in Part III of the Act. The expression "extradition
crime" is defined in section 2 of the Act under two headings. The first,
which is set out in section 2(1)(a), refers to

 "conduct in the territory of a foreign state . . . which, if it occurred in
the United Kingdom, would constitute an offence punishable with imprisonment
for a term of twelve months, or any greater punishment, and which, however
described in the law of the foreign state&!!;is so punishable under that
law."
The second, which is set out in section 2(1)(b) read with section 2(2),
refers to an extra-territorial offence against the law of a foreign state
which is punishable under that law with imprisonment for a term of 12 months
or any greater punishment, and which in corresponding circumstances would
constitute an extra-territorial offence against the law of the United
Kingdom punishable with imprisonment for a term of 12 months or any greater
punishment.
For reasons which have been explained by my noble and learned friend Lord
Browne-Wilkinson, the critical issue on the question of sovereign immunity
relates to the effect of the United Nations Convention against Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December
1984 ("the Torture Convention") and the offences which allege torture. As to
those alleged offences which do not fall within the scope of the Torture
Convention and which could not be prosecuted here under section 134 of the
Criminal Justice Act 1988, any loss of immunity would have to be decided on
other grounds. But there is no need to examine this question in the case of
those alleged offences for which Senator Pinochet could not in any event be
extradited. The purpose of the following analysis is to remove from the list
of draft charges those charges which fall into that category either because
they are not extradition crimes as defined by section 2 of the Extradition
Act 1989 or because for any other reason other than on grounds of immunity
they are charges on which Senator Pinochet could not be extradited.
This analysis proceeds on the basis that the definition of the expression
"extradition crime" in section 2 of the Act of 1989 requires the conduct
which is referred to in section 2(1)(a) to have been an offence which was
punishable in the United Kingdom when that conduct took place. It also
proceeds on the basis that it requires the extra-territorial offence which
is referred to in section 2(1)(b) to have been an extra-territorial offence
in the United Kingdom on the date when the offence took place. The principle
of double criminality would suggest that this was the right approach, in the
absence of an express provision to the contrary. The tenses used in section
2 seem to me to be equivocal on this point. They leave it open to
examination in the light of the provisions of the Act as a whole. The
argument in favour of the date when the conduct took place has particular
force in the case of those offences listed in section 22(4) of the Act.
These have been made extra-territorial offences in order to give effect to
international conventions, but neither the conventions nor the provisions
which gave effect to them were intended to operate retrospectively.
I respectfully agree with the reasons which my noble and learned friend Lord
Browne-Wilkinson has given for construing the definition as requiring that
the conduct must have been punishable in the United Kingdom when it took
place, and that it is not sufficient for the appellants to show that it
would be punishable here were it to take place now.
Hostage-taking
An offence under the Taking of Hostages Act 1982 is one of those offences,
wherever the act takes place, which is deemed by section 22(6) of the
Extradition Act 1989 to be an offence committed within the territory of any
other state against whose law it is an offence. This provision gives effect
to the International Convention against the Taking of Hostages of 18
December 1979 ("the Hostage Convention"). Under section 1 of the Act of 1982
hostage-taking is an extra-territorial offence against the law of the United
Kingdom. Section 1(1) of that Act defines the offence in these terms:

 "A person, whatever his nationality, who, in the United Kingdom or
elsewhere, -

 (a) detains any other person ('the hostage'), and

 (b) in order to compel a State, international governmental organisation or
person to do or to abstain from doing any act, threatens to kill, injure or
continue to detain the hostage,
 commits an offence."

Mr. Jones accepted that he did not have particulars of any case of
hostage-taking. He said that his case was that Senator Pinochet was involved
in a conspiracy to take hostages for the purposes which were made unlawful
by section 1 of the Act. Charge 3 of the draft charges, which is the only
charge which alleges conspiracy to take hostages, states that the course of
conduct which was to be pursued was to include the abduction and torture of
persons as part of a campaign to terrify and subdue those who were disposed
to criticise or oppose Senator Pinochet or his fellow conspirators. Those
who were not detained were to be intimidated, through the accounts of
survivors and by rumour, by fear that they might suffer the same fate. Those
who had been detained were to be compelled to divulge information to the
conspirators by the threatened injury and detention of others known to the
abducted persons by the conspirators.
But there is no allegation that the conspiracy was to threaten to kill,
injure or detain those who were being detained in order to compel others to
do or to abstain from doing any act. The narrative shows that the alleged
conspiracy was to subject persons already detained to threats that others
would be taken and that they also would be tortured. This does not seem to
me to amount to a conspiracy to take hostages within the meaning of section
1 of the Act of 1982. The purpose of the proposed conduct, as regards the
detained persons, was to subject them to what can best be described as a
form of mental torture.
One of the achievements of the Torture Convention was to provide an
internationally agreed definition of torture which includes both physical
and mental torture in the terms set out in Article 1:

 "For the purposes of this convention, torture means any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on
a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person
has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimination of
any kind . . . "
The offence of torture under English law is constituted by section 134(1) of
the Criminal Justice Act 1988, which provides:

 "A public official or person acting in an official capacity, whatever his
nationality, commits the offence of torture if in the United Kingdom or
elsewhere he intentionally inflicts severe pain or suffering on another in
the performance or purported performance of his official duties."
Section 134(3) provides that it is immaterial whether the pain or suffering
is physical or mental and whether it is caused by an act or an omission. So,
in conformity with the Convention, the offence includes mental as well as
physical torture. It seems to me that the conspiracy which charge 3 alleges
against Senator Pinochet was a conspiracy to inflict mental torture, and not
a conspiracy to take hostages.
I would hold therefore that it is not necessary for your Lordships to
examine the Hostage Convention in order to see whether its terms were such
as to deprive a former head of state of any immunity from a charge that he
was guilty of hostage-taking. In my opinion Senator Pinochet is not charged
with the offence of hostage-taking within the meaning of section 1 (1) of
the Taking of Hostages Act 1982.
Conspiracy to murder and attempted murder
The charges of conspiracy to torture include allegations that it was part of
the conspiracy that some of those who were abducted and tortured would
thereafter be murdered. Charge 4 alleges that in furtherance of that
agreement about four thousand persons of many nationalities were murdered in
Chile and in various other countries outside Chile. Two other charges,
charges 9 and 12, allege conspiracy to murder - in one case of a man in
Spain and in the other of two people in Italy. Charge 9 states that Senator
Pinochet agreed in Spain with others who were in Spain, Chile and France
that the proposed victim would be murdered in Spain. Charge 12 does not say
that anything was done in Spain in furtherance of the alleged conspiracy to
murder in Italy. There is no suggestion in either of these charges that the
proposed victims were to be tortured. Two further charges, charges 10 and
11, allege the attempted murder of the two people in Italy who were the
subject of the conspiracy to commit murder there. Here again there is no
suggestion that they were to be tortured before they were murdered.
Murder is a common law crime which, before it became an extra-territorial
offence if committed in a convention country under section 4 of the
Suppression of Terrorism Act 1978, could not be prosecuted in the United
Kingdom if it was committed abroad except in the case of a murder committed
abroad by a British citizen: Offences against the Person Act 1861, section
9. A murder or attempted murder committed by a person in Spain, whatever his
nationality, is an extradition crime for the purposes of his extradition to
Spain from the United Kingdom under section 2(1)(a) of the Extradition Act
1989 as it is conduct which would be punishable here if it occurred in this
country. But the allegation relating to murders in Spain and elsewhere which
is made against Senator Pinochet is not that he himself murdered or
attempted to murder anybody. It is that the murders were carried out, or
were to be carried out, in Spain and elsewhere as part of a conspiracy and
that he was one of the conspirators.
Section 1 of the Criminal Law Act 1977 created a new statutory offence of
conspiracy to commit an offence triable in England and Wales. The offence of
conspiracy which was previously available at common law was abolished by
section 5. Although the principal offence was defined in the statute more
narrowly, in other respects it codified the pre-existing law. It came into
force on 1 December 1977: S.I. 1977 No. 1682. Subsection (4) of that section
provides:

 "In this Part of this Act 'offence' means an offence triable in England and
Wales, except that it includes murder notwithstanding that the murder in
question would not be so triable if committed in accordance with the
intention of the parties to the agreement."

The effect of that subsection is that a person, whatever his nationality, 
who agrees in England to a course of conduct which will involve the offence
of murder abroad may be prosecuted here for the offence of conspiracy to
murder even although the murder itself would not have been triable in this
country. It re-enacted a provision to the same effect in section 4 of the
Offences against the Person Act 1861, which it in part repealed: see
Schedule 13 to the Act of 1977. Section 4 of the Act of 1861 was in these
terms:

 "All persons who shall conspire, confederate, and agree to murder any
person, whether he be a subject of Her Majesty or not, and whether he be
within the Queen's Dominions or not, and whosoever shall solicit, encourage,
persuade, or endeavour to persuade, or shall propose to any person, to
murder any other person, whether he be a subject of Her Majesty or not, and
whether he be within the Queen's Dominions or not, shall be guilty of a
misdemeanour, and being convicted thereof shall be liable, at the discretion
of the court, to be kept in penal servitude for any term not more than ten
and not less than three years,--or to be imprisoned for any term not
exceeding two years, with or without hard labour."
So the conduct which is alleged against Senator Pinochet in charge 9 - that
between 1 January 1975 and 31 December 1976 he was a party to a conspiracy
in Spain to murder someone in Spain - is an offence for which he could,
unless protected by immunity, be extradited to Spain under reference to
section 4 of the Act of 1861, as it remained in force until the relevant
part of it was repealed by the Act of 1977. This is because his
participation in the conspiracy in Spain was conduct by him in Spain for the
purposes of section 2(1)(a) of the Extradition Act 1989.
The conduct which is alleged against him in charge 4 is that he was a party
to a conspiracy to murder, in furtherance of which about four thousand
people were murdered in Chile and in various countries outside Chile
including Spain. It is implied that this conspiracy was in Chile, so I would
hold that this is not conduct by him in Spain for the purposes of section
2(1)(a) of Act of 1989. The question then is whether it is an
extra-territorial offence within the meaning of section section 2(1)(b) of
that Act.
 A conspiracy to commit a criminal offence in England is punishable here
under the common law rules as to extra-territorial conspiracies even if the
conspiracy was formed outside England and nothing was actually done in this
country in furtherance of the conspiracy: Somchai Liangsiriprasert v.
Government of the United States of America [1991] 1 A.C. 225. In that case
it was held by the Judicial Committee, applying the English common law, that
a conspiracy to traffic in a dangerous drug in Hong Kong entered into in
Thailand could be tried in Hong Kong although no act pursuant to that
conspiracy was done in Hong Kong. Lord Griffiths, delivering the judgment of
the Board, said at p. 251C-D:

 "Their Lordships can find nothing in precedent, comity or good sense that
should inhibit the common law from regarding as justiciable in England
inchoate crimes committed abroad which are intended to result in the
commission of criminal offences in England."
In Regina v. Sansom [1991] 2 Q.B. 130 the appellants had been charged with
conspiracy contrary to section 1 of the Criminal Law Act 1977, which does
not in terms deal with extra-territorial conspiracies. The Court of Appeal
rejected the argument that the principle laid down in Somchai referred only
to the common law and that it could not be applied to conspiracies charged
under the Act of 1977. Taylor L.J. said, at p. 138B that it should now be
regarded as the law of England on this point.
As Lord Griffiths observed in Somchai at p. 244C, it is still true, as a
broad general statement, that English criminal law is local in its effect
and that the criminal law does not concern itself with crimes committed
abroad. But I consider that the common law of England would, applying the
rule laid down in Somchai, also regard as justiciable in England a
conspiracy to commit an offence anywhere which was triable here as an extra-
territorial offence in pursuance of an international convention, even
although no act was done here in furtherance of the conspiracy. I do not
think that this would be an unreasonable extension of the rule. It seems to
me that on grounds of comity it would make good sense for the rule to be
extended in this way in order to promote the aims of the convention.
Prior to the coming into force of the Suppression of Terrorism Act 1978, a
conspiracy which was formed outside this country to commit murder in some
country other than England in pursuance of which nothing was done in England
to further that conspiracy would not be punishable in England, as it was not
the intention that acts done in pursuance of the conspiracy would result in
the commission of a criminal offence in this country. The presumption
against the extra-territorial application of the criminal law would have
precluded such conduct from being prosecuted here. Section 4(1) of the Act
of 1978 gives the courts of the United Kingdom jurisdiction over a person
who does any act in a convention country which, if he had done that act in a
part of the United Kingdom, would have made him guilty in that part of the
United Kingdom of an offence mentioned in some, but not all, of the
paragraphs of Schedule 1 to that Act. Murder is one of the offences to which
that provision applies. But that Act, which was passed to give effect to the
European Convention on the Suppression of Terrorism of 27 January 1977, did
not come into force until 21 August 1978: S.I. 1978 No. 1063. And Chile is
not a convention country for the purposes of that Act, nor is it one of the
non-convention countries to which its provisions have been applied by
section 5 of the Act of 1978. Only two non-convention countries have been so
designated. These are the United States (S.I. 1986 No. 2146) and India (S.I.
1993 No. 2533).
Applying these principles, the only conduct alleged against Senator Pinochet
as conspiracy to murder in charge 4 for which he could be extradited to
Spain is that part of it which alleges that he was a party to a conspiracy
in Spain to commit murder in Spain prior to 21 August 1978. As for the
allegation that he was a party to a conspiracy in Spain or elsewhere to
commit murder in a country which had been designated as a convention country
after that date, the extradition request states that acts in furtherance of
the conspiracy took place in France in 1975, in Spain in 1975 and 1976 and
in the United States and Portugal in 1976. These countries have now been
designated as countries to which the Suppression of Terrorism Act 1978
applies. But the acts which are alleged to have taken place there all
pre-date the coming into force of that Act. So the extra-territorial
jurisdiction cannot be applied to them.
The alleged offences of attempted murder in Italy are not, as such, offences
for which Senator Pinochet could be extradited to Spain under reference to
section 2(1)(a) of the Act of 1989 because the alleged conduct did not take
place in Spain and because he is not of Spanish nationality. But for their
date they would have been offences for which he could have been extradited
from the United Kingdom to Spain under reference to section 2(1)(b), on the
grounds, first, that murder is now an extra-territorial offence under
section 4(1)(a) of the Suppression of Terrorism Act 1978 as it is an offence
mentioned in paragraph 1 of Schedule 1 to that Act, Italy has been
designated as a convention country (S.I. 1986 No. 1137) and, second, that an
offence of attempting to commit that offence is an extra-territorial offence
under section 4(1)(b) of the Act of 1978. But the attempted murders in Italy
which are alleged against Senator Pinochet are said to have been committed
on 6 October 1975. As the Act of 1978 was not in force on that date, these
offences are not capable of being brought within the procedures laid down by
that Act.
Finally, to complete the provisions which need to be reviewed under this
heading, mention should be made of an amendment which was made to Schedule 1
to the Suppression of Terrorism Act 1978 by section 22 of the Criminal
Justice Act 1988, which includes within the list of offences set out in that
schedule the offence of conspiracy. That section appears in Part 1 of the
Act of 1988, most of which was repealed before having been brought into
force following the enactment of the Extradition Act 1989. But section 22
was not repealed. It was brought into force on 5 June 1990: S.I. 1990 No.
1145. It provides that there shall be added at the end of the schedule a new
paragraph in these terms:

 "21. An offence of conspiring to commit any offence mentioned in a
preceding paragraph of this Schedule."
At first sight it might seem that the effect of this amendment was to
introduce a statutory extra-territorial jurisdiction in regard to the
offence of conspiracy, wherever the agreement was made to participate in the
conspiracy. But this offence does not appear in the list of offences in that
Schedule in respect of which section 4(1) of the Suppression of Terrorism
Act 1978 gives jurisdiction, if committed in a convention country, as
extra-territorial offences. In any event section 22 was not brought into
force until 5 June 1990: S.I. 1990 No. 1145. This was after the last date
when Senator Pinochet is alleged to have committed the offence of
conspiracy.
Torture and conspiracy to torture
Torture is another of those offences, wherever the act takes place, which is
deemed by section 22(6) of the Extradition Act 1989 to be an offence
committed within the territory of any other state against whose law it is an
offence. This provision gives effect to the Torture Convention of 10
December 1984. But section 134 of the Criminal Justice Act 1988 also gave
effect to the Torture Convention. It made it a crime under English law for a
public official or a person acting in an official capacity to commit acts of
both physical and mental torture: see subsection (3). And it made such acts
of torture an extra-territorial offence wherever they were committed and
whatever the nationality of the perpetrator: see subsection (1). Read with
the broad definition which the expression "torture" has been given by
Article 1 of the Convention and in accordance with ordinary principles, the
offence which section 134 lays down must be taken to include the ancillary
offences of counselling, procuring, commanding and aiding or abetting acts
of torture and of being an accessory before or after the fact to such acts.
All of these offences became extra-territorial offences against the law of
the United Kingdom within the meaning of section 2(2) of the Extradition Act
1989 as soon as section 134 was brought into force on 29 September 1988.
Section 134 does not mention the offence of conspiracy to commit torture,
nor does Article 1 of the Convention, nor does section 22(6) of the
Extradition Act 1989. So, while the courts of the United Kingdom have
extra-territorial jurisdiction under section 134 over offences of official
torture wherever in the world they were committed, that section does not
give them extra-territorial jurisdiction over a conspiracy to commit torture
in any other country where the agreement was made outside the United Kingdom
and no acts in furtherance of the conspiracy took place here. Nor is it
conduct which can be deemed to take place in the territory of the requesting
country under section 22(6) of the Act of 1989.
However, the general statutory offence of conspiracy under section 1 of the
Criminal Law Act 1977 extends to a conspiracy to commit any offence which is
triable in England and Wales. Among those offences are all the offences over
which the courts in England and Wales have extra-territorial jurisdiction,
including the offence under section 134 of the Act of 1988. And, for reasons
already mentioned, I consider that the common law rule as to extra-
territorial conspiracies laid down in Somchai Liangsiriprasert v. Government
of the United States of America [1991] 1 A.C. 225 applies if a conspiracy
which was entered into abroad was intended to result in the commission of an
offence, wherever it was intended to be committed, which is an
extra-territorial offence in this country. Accordingly the courts of this
country could try Senator Pinochet for acts of torture in Chile and
elsewhere after 29 September 1988, because they are extra-territorial
offences under section 134 of the Act of 1988. They could also try him here
for conspiring in Chile or elsewhere after that date to commit torture,
wherever the torture was to be committed, because torture after that date is
an extra-territorial offence and the courts in England have jurisdiction
over such a conspiracy at common law.
Torture prior to 29 September 1989
Section 134 of the Criminal Law Act 1988 did not come into force until 29
September 1988. But acts of physical torture were already criminal under
English law. Among the various offences against the person which would have
been committed by torturing would have been the common law offence of
assault occasioning actual bodily harm or causing injury and the statutory
offence under section 18 of the Offences against the Person Act 1861 of
wounding with intent to cause grievous bodily harm. A conspiracy which was
entered into in England to commit these offences in England was an offence
at common law until the common law offence was replaced on 1 December 1977
by the statutory offence of conspiracy in section 1 of the Criminal Law Act
1977 which remains in force and available. As I have said, I consider that a
conspiracy which was entered into abroad to commit these offences in England
would be triable in this country under the common law rule as to extra-
territorial conspiracies which was laid down in Somchai Liangsiriprasert v.
Government of the United States of America [1991] 1 A.C. 225 if they were
extra-territorial offences at the time of the alleged conspiracy.
However none of these offences, if committed prior to the coming into force
of section 134 of the Criminal Justice Act 1988, could be said to be
extra-territorial offences against the law of the United Kingdom within the
meaning of section 2(2) of the Extradition Act 1989 as there is no basis
upon which they could have been tried extra-territorially in this country.
The offences listed in Schedule 1 to the Suppression of Terrorism Act 1978
include the common law offence of assault and the statutory offences under
the Offences against the Person Act 1861. But none of these offences are
included in the list of offences which are made extra- territorial offences
if committed in a convention country by section 4(1) of the Extradition Act
1989. So the rule laid down in Somchai cannot be applied to any conspiracy
to commit these offences in any country outside England, as it would not be
an extra-territorial conspiracy according to English law. Senator Pinochet
could only be extradited to Spain for such offences under reference to
section 2(1)(a) of the Act of 1989 if he was accused of conduct in Spain
which, if it occurred in the United Kingdom, would constitute an offence
which would be punishable in this country. Section 22(6) of the Act of 1989
is of no assistance, because torture contrary to the Torture Convention had
not yet become an offence in this country.
None of the charges of conspiracy to torture and none of the various torture
charges allege that Senator Pinochet did anything in Spain which might
qualify under section 2(1)(a) of the Act of 1989 as conduct in that country.
All one can say at this stage is that, if the information presented to the
magistrate under section 9(8) of the Act of 1989 in regard to charge 4 were
to demonstrate (i) that he did something in Spain prior to 29 September 1988
to commit acts of torture there, or (ii) that he was party to a conspiracy
in Spain to commit acts of torture in Spain, that would be conduct in Spain
which would meet the requirements of section 2(1)(a) of that Act.
Torture after 29 September 1989
The effect of section 134 of the Criminal Justice Act 1988 was to make acts
of official torture, wherever they were committed and whatever the
nationality of the offender, an extra- territorial offence in the United
Kingdom. The section came into force two months after the passing of the Act
on 29 September 1988, and it was not retrospective. As from that date
official torture was an extradition crime within the meaning of section 2(1)
of the Extradition Act 1989 because it was an extra-territorial offence
against the law of the United Kingdom.
The general offence of conspiracy which was introduced by section 1 of the
Criminal Law Act 1977 applies to any offence triable in England and Wales:
section 1(4). So a conspiracy which took place here after 29 September 1988
to commit offences of official torture, wherever the torture was to be
carried out and whatever the nationality of the alleged torturer, is an
offence for which Senator Pinochet could be tried in this country if he has
no immunity. This means that a conspiracy to torture which he entered into
in Spain after that date is an offence for which he could be extradited to
Spain, as it would be an extradition offence under section 2(1)(a) of the
Act of 1989. But, as I have said, I consider that the common law of England
would, applying the rule laid down in Somchai Liangsiriprasert v. Government
of the United States of America [1991] 1 A.C. 225, also regard as
justiciable in England a conspiracy to commit an offence which was triable
here as an extra-territorial offence in pursuance of an international
convention, even although no act was done here in furtherance of the
conspiracy. This means that he could be extradited to Spain under reference
to section 2(1)(b) of the Act of 1989 on charges of conspiracy to torture
entered into anywhere which related to periods after that date. But, as
section 134 of the Act of 1988 does not have retrospective effect, he could
not be extradited to Spain for any conduct in Spain or elsewhere amounting
to a conspiracy to commit torture, wherever the torture was to be carried
out, which occurred before 29 September 1988.
The conduct which is alleged against Senator Pinochet under the heading of
conspiracy in charge 4 is not confined to the allegation that he was a party
to an agreement that people were to be tortured. Included in that charge is
the allegation that many people in various countries were murdered after
being tortured in furtherance of the conspiracy that they would be tortured
and then killed. So this charge includes charges of torture as well as
conspiracy to torture. And it is broad enough to include the ancillary
offences of counselling, procuring, commanding, aiding or abetting, or of
being accessory before or after the fact to, these acts of torture.
Ill-defined as this charge is, I would regard it as including allegations of
torture and of conspiracy to torture after 29 September 1988 for which, if
he has no immunity, Senator Pinochet could be extradited to Spain on the
ground that, as they were extra-territorial offences against the law of the
United Kingdom, they were extradition crimes within the meaning of section
2(1) of the Act of 1989.
What is the effect of the qualification which I have just mentioned, as to
the date on which these allegations of torture and conspiracy to torture
first became offences for which, at the request of Spain, Senator Pinochet
could be extradited? In the circumstances of this case its effect is a
profound one. It is to remove from the proceedings the entire course of such
conduct in which Senator Pinochet is said to have engaged from the moment he
embarked on the alleged conspiracy to torture in January 1972 until 29
September 1988. The only offences of torture and conspiracy to torture which
are punishable in this country as extra-territorial offences against the law
of the United Kingdom within the meaning of section 2(2) of the Act of 1989
are those offences of torture and conspiracy to torture which he is alleged
to have committed on or after 29 September 1988. But almost all the offences
of torture and murder, of which there are alleged to have been about four
thousand victims, were committed during the period of repression which was
at its most intense in 1973 and 1974. The extradition request alleges that
during the period from 1977 to 1990 only about 130 such offences were
committed. Of that number only three have been identified in the extradition
request as having taken place after 29 September 1988.
Of the various offences which are listed in the draft charges only charge
30, which refers to one act of official torture in Chile on 24 June 1989,
relates exclusively to the period after 29 September 1988. Two of the
charges of conspiracy to commit torture extend in part over the period after
that date. Charge 2 alleges that Senator Pinochet committed this offence
during the period from 1 August 1973 to 1 January 1990, but it does not
allege that any acts of torture took place in furtherance of that
conspiracy. Charge 4 alleges that he was party to a conspiracy to commit
torture in furtherance of which acts of murder following torture were
committed in various countries including Spain during the period from 1
January 1972 to 1 January 1990. The only conduct alleged in charges 2 and 4
for which Senator Pinochet could be extradited to Spain is that part of the
alleged conduct which relates to the period after 29 September 1988.
Although the allegations of conspiracy to torture in charge 2 and of torture
and conspiracy to torture in charge 4 must now be restricted to the period
from 29 September 1988 to 1 January 1990, the fact that these allegations
remain available for the remainder of the period is important because of the
light which they cast on the single act of torture alleged in charge 30. For
reasons which I shall explain later, I would find it very difficult to say
that a former head of state of a country which is a party to the Torture
Convention has no immunity against an allegation of torture committed in the
course of governmental acts which related only to one isolated instance of
alleged torture. But that is not the case which the Spanish judicial
authorities are alleging against Senator Pinochet. Even when reduced to the
period from 29 September 1988 until he left office as head of state, which
the provisions for speciality protection in section 6(4) of the Extradition
Act 1989 would ensure was the only period in respect of which the Spanish
judicial authorities would be entitled to bring charges against him if he
were to be extradited, the allegation is that he was a party to the use of
torture as a systematic attack on all those who opposed or who might oppose
his government.
The extradition request states that between August 1977, when the National
Intelligence Directorate (DINA) was dissolved and replaced by the National
Intelligence Bureau (CNI), the Directorate of Communications of the
Militarised Police (DICOMCAR) and the Avenging Martyrs Commando (COVERMA),
while engaged in a policy of repression acting on orders emanating from
Augusto Pinochet, systematically performed torture on detainees (Bound
Record, vol. 2, pp. 314-315). Among the methods which are said to have been
used was the application of electricity to sensitive parts of the body, and
it is alleged that the torture sometimes led to the victim's death. Charge
30 alleges that the victim died after having been tortured by inflicting
electric shock. The two victims of an incident in October 1988, which is
mentioned in the extradition request but is not the subject of a separate
count in the list of draft charges, are said to have shown signs of the
application of electricity after autopsy. It appears that the evidence has
revealed only these three instances after 29 September 1988 when acts of
official torture were perpetrated in pursuance of this policy. Even so, this
does not affect the true nature and quality of those acts. The significance
of charges 2 and 4 may be said to lie in the fact that they show that a
policy of systematic torture was being pursued when those acts were
perpetrated.
I must emphasise that it is not our function to consider whether or not the
evidence justifies this inference, and I am not to be taken as saying that
it does. But it is plain that the information which is before us is capable
of supporting the inference that the acts of torture which are alleged
during the relevant period were of that character. I do not think that it
would be right to approach the question of immunity on a basis which ignores
the fact that this point is at least open to argument. So I consider that
the óKóóKargument that Senator Pinochet has no immunity for this reduced
period is one which can properly be examined in the light of developments in
customary international law regarding the use of widespread or systematic
torture as an instrument of state policy.
Charges which are relevant to the question of immunity
The result of this analysis is that the only charges which allege
extradition crimes for which Senator Pinochet could be extradited to Spain
if he has no immunity are: (1) those charges of conspiracy to torture in
charge 2, of torture and conspiracy to torture in charge 4 and of torture in
charge 30 which, irrespective of where the conduct occurred, became
extra-territorial offences as from 29 September 1988 under section 134 of
the Criminal Justice Act 1988 and under the common law as to extra
territorial conspiracies; (2) the conspiracy in Spain to murder in Spain
which is alleged in charge 9; (3) such conspiracies in Spain to commit
murder in Spain and such conspiracies in Spain prior to 29 September 1988 to
commit acts of torture in Spain, as can be shown to form part of the
allegations in charge 4.
So far as the law of the United Kingdom is concerned, the only country where
Senator Pinochet could be put on trial for the full range of the offences
which have been alleged against him by the Spanish judicial authorities is
Chile.
State immunity
Section 20(1)(a) of the State Immunity Act 1978 provides that the Diplomatic
Privileges Act 1964 applies, subject to "any necessary modifications", to a
head of state as it applies to the head of a diplomatic mission. The
generality of this provision is qualified by section 20(5), which restricts
the immunity of the head of state in regard to civil proceedings in the same
way as Part I of the Act does for diplomats. This reflects the fact that
section 14 already provides that heads of state are subject to the
restrictions in Part I. But there is nothing in section 20 to indicate that
the immunity from criminal proceedings which Article 31.1 of the Vienna
Convention as applied by the Act of 1964 gives to diplomats is restricted in
any way for heads of state. Section 23(3), which provides that the
provisions of Parts I and II of the Act do not operate retrospectively,
makes no mention of Part III. I infer from this that it was not thought that
Part III would give rise to the suggestion that it might operate in this
way.
It seems to me to be clear therefore that what section 20(1) did was to give
statutory force in the United Kingdom to customary international law as to
the immunity which heads of state, and former heads of state in particular,
enjoy from proceedings in foreign national courts. Marcos and Marcos v.
Federal Department of Police [1990] 102 I.L.R 198, 203 supports this view,
as it was held in that case that the Article 39.2 immunity was available
under customary international law to the former head of state of the
Republic of the Philippines.
The question then is to what extent does the immunity which Article 39.2
gives to former diplomats have to be modified in its application to former
heads of state? The last sentence of Article 39.2 deals with the position
after the functions of the diplomat have come to an end. It provides that
"with respect to acts performed by such person in the exercise of his
functions as a member of the mission, immunity shall continue to subsist."
It is clear that this provision is dealing with the residual immunity of the
former diplomat ratione materiae, and not with the immunity ratione personae
which he enjoys when still serving as a diplomat. In its application to a
former head of state this provision raises two further questions: (1) does
it include functions which the head of state performed outside the receiving
state from whose jurisdiction he claims immunity, and (2) does it include
acts of the kind alleged in this case - which Mr. Alun Jones Q.C. accepts
were not private acts but were acts done in the exercise of the state's
authority?
As to the first of these two further questions, it is plain that the
functions of the head of state will vary from state to state according to
the acts which he is expected or required to perform under the constitution
of that state. In some countries which adhere to the traditions of
constitutional monarchy these will be confined largely to ceremonial or
symbolic acts which do not involve any executive responsibility. In others
the head of state is head of the executive, with all the resources of the
state at his command to do with as he thinks fit within the sphere of action
which the constitution has given to him. I have not found anything in
customary international law which would require us to confine the expression
"his functions" to the lowest common denominator. In my opinion the
functions of the head of state are those which his own state enables or
requires him to perform in the exercise of government. He performs these
functions wherever he is for the time being as well as within his own state.
These may include instructing or authorising acts to be done by those under
his command at home or abroad in the interests of state security. It would
not be right therefore to confine the immunity under Article 39.2 to acts
done in the receiving state. I would not regard this as a "necessary
modification" which has to be made to it under section 20(1) of the Act of
1978.
As to the second of those questions, I consider that the answer to it is
well settled in customary international law. The test is whether they were
private acts on the one hand or governmental acts done in the exercise of
his authority as head of state on the other. It is whether the act was done
to promote the state's interests - whether it was done for his own benefit
or gratification or was done for the state: United States v. Noriega (1990)
746 F.Supp. 1506, 1519-1521. Sir Arthur Watts Q.C. in his Hague Lectures,
The Legal Position in International Law of Heads of States, Heads of
Governments and Foreign Ministers (1994-III) 247 Recueil des cours, p. 56,
said : "The critical test would seem to be whether the conduct was engaged
in under colour of or in ostensible exercise of the head of state's public
authority." The sovereign or governmental acts of one state are not matters
upon which the courts of other states will adjudicate: I Congresso del
Partido [1983] A.C. 244, 262C per Lord Wilberforce. The fact that acts done
for the state have involved conduct which is criminal does not remove the
immunity. Indeed the whole purpose of the residual immunity ratione materiae
is to protect the former head of state against allegations of such conduct
after he has left office. A head of state needs to be free to promote his
own state's interests during the entire period when he is in office without
being subjected to the prospect of detention, arrest or embarrassment in the
foreign legal system of the receiving state: see United States v. Noriega,
p. 1519; Lafontant v. Aristide (1994) 844 F.Supp. 128, 132. The conduct does
not have to be lawful to attract the immunity.
It may be said that it is not one of the functions of a head of state to
commit acts which are criminal according to the laws and constitution of his
own state or which customary international law regards as criminal. But I
consider that this approach to the question is unsound in principle. The
principle of immunity ratione materiae protects all acts which the head of
state has performed in the exercise of the functions of government. The
purpose for which they were performed protects these acts from any further
analysis. There are only two exceptions to this approach which customary
international law has recognised. The first relates to criminal acts which
the head of state did under the colour of his authority as head of state but
which were in reality for his own pleasure or benefit. The examples which
Lord Steyn gave [1998] 3 W.L.R. 1456, 1506B-C of the head of state who kills
his gardener in a fit of rage or who orders victims to be tortured so that
he may observe them in agony seem to me plainly to fall into this category
and, for this reason, to lie outside the scope of the immunity. The second
relates to acts the prohibition of which has acquired the status under
international law of jus cogens. This compels all states to refrain from
such conduct under any circumstances and imposes an obligation erga omnes to
punish such conduct. As Sir Arthur Watts Q.C. said in his Hague Lectures,
page 89, note 198, in respect of conduct constituting an international
crime, such as war crimes, special considerations apply.
But even in the field of such high crimes as have achieved the status of jus
cogens under customary international law there is as yet no general
agreement that they are outside the immunity to which former heads of state
are entitled from the jurisdiction of foreign national courts. There is
plenty of source material to show that war crimes and crimes against
humanity have been separated out from the generality of conduct which
customary international law has come to regard as criminal. These
developments were described by Lord Slynn of Hadley [1998] 3 W.L.R. 1456,
1474D-H and I respectfully agree with his analysis. As he said, at p. 1474H,
except in regard to crimes in particular situations where international
tribunals have been set up to deal with them and it is part of the
arrangement that heads of state should not have any immunity, there is no
general recognition that there has been a loss of immunity from the
jurisdiction of foreign national courts. This led him to sum the matter up
in this way at p. 1475B-E:

 "So it is necessary to consider what is needed, in the absence of a general
international convention defining or cutting down head of state immunity, to
define or limit the former head of state immunity in particular cases. In my
opinion it is necessary to find provision in an international convention to
which the state asserting, and the state being asked to refuse, the immunity
of a former head of state for an official act is a party; the convention
must clearly define a crime against international law and require or empower
a state to prevent or prosecute the crime, whether or not committed in its
jurisdiction and whether or not committed by one of its nationals; it must
make it clear that a national court has jurisdiction to try a crime alleged
against a former head of state, or that having been a head of state is no
defence and that expressly or impliedly the immunity is not to apply so as
to bar proceedings against him. The convention must be given the force of
law in the national courts of the state; in a dualist country like the
United Kingdom that means by legislation, so that with the necessary
procedures and machinery the crime may be prosecuted there in accordance
with the procedures to be found in the convention."
That is the background against which I now turn to the Torture Convention.
As all the requirements which Lord Slynn laid out in the passage at p.
1475B-E save one are met by it, when read with the provisions of sections
134 and 135 of the Criminal Justice Act 1988 which gave the force of law to
the Convention in this country, I need deal only with the one issue which
remains. Did it make it clear that a former head of state has no immunity in
the courts of a state which has jurisdiction to try the crime?
The Torture Convention and Loss of Immunity
The Torture Convention is an international instrument. As such, it must be
construed in accordance with customary international law and against the
background of the subsisting residual former head of state immunity. Article
32.2 of the Vienna Convention, which forms part of the provisions in the
Diplomatic Privileges Act 1964 which are extended to heads of state by
section 20(1) of the Sovereign Immunity Act 1978, subject to "any necessary
modifications", states that waiver of the immunity accorded to diplomats
"must always be express". No modification of that provision is needed to
enable it to apply to heads of state in the event of it being decided that
there should be a waiver of their immunity. The Torture Convention does not
contain any provision which deals expressly with the question whether heads
of state or former heads of state are or are not to have immunity from
allegations that they have committed torture.
But there remains the question whether the effect of the Torture Convention
was to remove the immunity by necessary implication. Although Article 32.2
says that any waiver must be express, we are required nevertheless to
consider whether the effect of the Convention was necessarily to remove the
immunity. This is an exacting test. Section 1605(a)(1) of the United States
Federal Sovereignty Immunity Act provides for an implied waiver, but this
section has been narrowly construed: Siderman de Blake v. Republic of
Argentina (1992) 965 F.2d 699, p. 720; Princz v. Federal Republic of Germany
(1994) 26 F.3d 1166, p. 1174; Argentine Republic v. Amerada Hess Shipping
Corporation (1989) 109 S.Ct. 683, p. 693. In international law the need for
clarity in this matter is obvious. The general rule is that international
treaties should, so far as possible, be construed uniformly by the national
courts of all states.
The preamble to the Torture Convention explains its purpose. After referring
to Article 5 of the Universal Declaration of Human Rights which provides
that no one shall be subjected to torture or other cruel, inhuman or
degrading treatment and to the United Nations Declaration of 9 December 1975
regarding torture and other cruel, inhuman or degrading treatment or
punishment, it states that it was desired "to make more effective the
struggle against torture and other cruel, inhuman or degrading treatment or
punishment throughout the world". There then follows in Article 1 a
definition of the term "torture" for the purposes of the Convention. It is
expressed in the widest possible terms. It means "any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted"
for such purposes as obtaining information or a confession, punishment,
intimidation or coercion or for any reason based on discrimination of any
kind. It is confined however to official torture by its concluding words,
which require such pain or suffering to have been "inflicted by or at the
instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity".


This definition is so broadly framed as to suggest on the one hand that 
heads of state must have been contemplated by its concluding words, but to
raise the question on the other hand whether it was also contemplated that
they would by necessary implication be deprived of their immunity. The words
"public official" might be thought to refer to someone of lower rank than
the head of state. Other international instruments suggest that where the
intention is to include persons such as the head of state or diplomats they
are mentioned expressly in the instrument: see Article 27 of the Rome
Statute of the International Criminal Court which was adopted on 17 July
1998. But a head of state who resorted to conduct of the kind described in
the exercise of his function would clearly be "acting in an official
capacity". It would also be a strange result if the provisions of the
Convention could not be applied to heads of state who, because they
themselves inflicted torture or had instigated the carrying out of acts of
torture by their officials, were the persons primarily responsible for the
perpetration of these acts.
Yet the idea that the framing of the definition in these terms in itself was
sufficient to remove the immunity from prosecution for all acts of torture
is also not without difficulty. The jus cogens character of the immunity
enjoyed by serving heads of state ratione personae suggests that, on any
view, that immunity was not intended to be affected by the Convention. But
once one immunity is conceded it becomes harder, in the absence of an
express provision, to justify the removal of the other immunities. It may
also be noted that Burgers and Danelius, in their Handbook on the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, at p. 131, make this comment on Article 5.1 of the Convention,
which sets out the measures which each state party is required to take to
establish its jurisdiction over the offences of torture which it is required
by Article 4 to make punishable under its own criminal law:

 "This means, first of all, that the state shall have jurisdiction over the
offence when it has been committed in its territory. Under international or
national law, there may be certain limited exceptions to this rule, e.g. in
regard to foreign diplomats, foreign troops, parliament members or other
categories benefiting from special immunities, and such immunities may be
accepted insofar as they apply to criminal acts in general and are not
unduly extensive."
These observations, although of undoubted weight as Jan Herman Burgers of
the Netherlands was a Chairman/Rapporteur to the Convention, may be thought
to be so cryptic as to defy close analysis. But two points are worth making
about them. The first is that they recognise that the provisions of the
Convention are not inconsistent with at least some of the immunities in
customary international law. The second is that they make no mention of any
exception which would deprive heads of state or former heads of state of
their customary international law immunities. The absence of any reference
to this matter suggests that the framers of the Convention did not consider
it. The Reports of the Working Group on the Draft Convention to the Economic
and Social Council of the Commission on Human Rights show that many meetings
were held to complete its work. These extended over several years, and many
issues were raised and discussed before the various delegations were content
with its terms. If the issue of head of state and former head of state
immunity was discussed at any of these meetings, it would without doubt have
been mentioned in the reports. The issue would have been recognised as an
important one on which the delegations would have to take instructions from
their respective governments. But there is no sign of this in any of the
reports which have been shown to us.
The absence of any discussion of the issue is not surprising, once it is
appreciated that the purpose of the Convention was to put in place as widely
as possible the machinery which was needed to make the struggle against
torture more effective throughout the world. There was clearly much to be
done, as the several years of discussion amply demonstrate. According to
Burgers and Danelius, p. 1, the principal aim was to strengthen the existing
position by a number of supportive measures. A basis had to be laid down for
legislation to be enacted by the contracting states. An agreed definition of
torture, including mental torture, had to be arrived at for the adoption by
states into their own criminal law. Provisions had to be agreed for the
taking of extra-territorial jurisdiction to deal with these offences and for
the extradition of offenders to states which were seeking to prosecute them.
As many states do not extradite their own citizens and the Convention does
not oblige states to extradite, they had to undertake to take such measures
as might be necessary to establish jurisdiction over these offences in cases
where the alleged offender was present within their territory but was not to
be extradited. For many, if not all, states these arrangements were
innovations upon their domestic law. Waiver of immunities was not mentioned.
But, as Yoram Dinstein, Diplomatic Immunity from Jurisdiction Ratione
Materiae (1966) International and Comparative Law Quarterly, 76, 80 had
already pointed out, it would be entirely meaningless to waive the immunity
unless local courts were able, as a consequence, to try the offender.
These considerations suggest strongly that it would be wrong to regard the
Torture Convention as having by necessary implication removed the immunity
ratione materiae from former heads of state in regard to every act of
torture of any kind which might be alleged against him falling within the
scope of Article 1. In Siderman de Blake v. Republic of Argentina (1992) 965
F.2d 699, 714-717 it was held that the alleged acts of official torture,
which were committed in 1976 before the making of the Torture Convention,
violated international law under which the prohibition of official torture
had acquired the status of jus cogens. Cruel acts had been perpetrated over
a period of seven days by men acting under the direction of the military
governor. Argentina was being ruled by an anti-semitic military junta, and
epithets were used by those who tortured him which indicated that Jose
Siderman was being tortured because of his Jewish faith. But the definition
in Article 1 is so wide that any act of official torture, so long as it
involved "severe" pain or suffering, would be covered by it.
As Burgers and Danelius point out at p. 122, although the definition of
torture in Article 1 may give the impression of being a very precise and
detailed one, the concept of "severe pain and suffering" is in fact rather a
vague concept, on the application of which to a specific case there may be
very different views. There is no requirement that it should have been
perpetrated on such a scale as to constitute an international crime in the
sense described by Sir Arthur Watts in his Hague Lectures at p. 82, that is
to say a crime which offends against the public order of the international
community. A single act of torture by an official against a national of his
state within that state's borders will do. The risks to which former heads
of state would be exposed on leaving office of being detained in foreign
states upon an allegation that they had acquiesced in an act of official
torture would have been so obvious to governments that it is hard to believe
that they would ever have agreed to this. Moreover, even if your Lordships
were to hold that this was its effect, there are good reasons for doubting
whether the courts of other states would take the same view. An express
provision would have removed this uncertainty.
Nevertheless there remains the question whether the immunity can survive
Chile's agreement to the Torture Convention if the torture which is alleged
was of such a kind or on such a scale as to amount to an international
crime. Sir Arthur Watts in his Hague Lectures, p. 82 states that the idea
that individuals who commit international crimes are internationally
accountable for them has now become an accepted part of international law.
The international agreements to which states have been striving in order to
deal with this problem in international criminal courts have been careful to
set a threshold for such crimes below which the jurisdiction of those courts
will not be available. The Statute of the International Tribunal for the
Former Yugoslavia (1993) includes torture in article 5 as one of the crimes
against humanity. In paragraph 48 of his Report to the United Nations the
Secretary-General explained that crimes against humanity refer to inhuman
acts of a very serious nature, such as wilful killing, torture or rape,
committed as part of a widespread or systematic attack against any civilian
population. Similar observations appear in paragraphs 131 to 135 of the
Secretary-General's Report of 9 December 1994 on the Rwanda conflict.
Article 3 of the Statute of the International Tribunal for Rwanda (1994)
included torture as one of the crimes against humanity "when committed as
part of a widespread or systematic attack against any civilian population"
on national, political, ethnic or other grounds. Article 7 of the Rome
Statute contains a similar limitation to acts of widespread or systematic
torture.
The allegations which the Spanish judicial authorities have made against
Senator Pinochet fall into that category. As I sought to make clear in my
analysis of the draft charges, we are not dealing in this case - even upon
the restricted basis of those charges on which Senator Pinochet could
lawfully be extradited if he has no immunity - with isolated acts of
official torture. We are dealing with the remnants of an allegation that he
is guilty of what would now, without doubt, be regarded by customary
international law as an international crime. This is because he is said to
have been involved in acts of torture which were committed in pursuance of a
policy to commit systematic torture within Chile and elsewhere as an
instrument of government. On the other hand it is said that, for him to lose
his immunity, it would have to be established that there was a settled
practice for crime of this nature to be so regarded by customary
international law at the time when they were committed. I would find it hard
to say that it has been shown that any such settled practice had been
established by 29 September 1988. But we must be careful not to attach too
much importance to this point, as the opportunity for prosecuting such
crimes seldom presents itself.
Despite the difficulties which I have mentioned, I think that there are
sufficient signs that the necessary developments in international law were
in place by that date. The careful discussion of the jus cogens and erga
omnes rules in regard to allegations of official torture in Siderman de
Blake v. Republic of Argentina (1992) 26 F.2d 1166, pp. 714-718, which I
regard as persuasive on this point, shows that there was already widespread
agreement that the prohibition against official torture had achieved the
status of a jus cogens norm. Articles which were published in 1988 and 1989
are referred to at p. 717 in support of this view. So I think that we can
take it that that was the position by 29 September 1988. Then there is the
Torture Convention of 10 December 1984. Having secured a sufficient number
of signatories, it entered into force on 26 June 1987. In my opinion, once
the machinery which it provides was put in place to enable jurisdiction over
such crimes to be exercised in the courts of a foreign state, it was no
longer open to any state which was a signatory to the Convention to invoke
the immunity ratione materiae in the event of allegations of systematic or
widespread torture committed after that date being made in the courts of
that state against its officials or any other person acting in an official
capacity.
As Sir Arthur Watts, Q.C. has explained in his Hague Lectures (1994) at p.
82, the general principle in such cases is that of individual responsibility
for international criminal conduct. After a review of various general
international instruments relating mainly but not exclusively to war crimes,
of which the most recent was the International Law Commission's draft Code
of Crimes against the Peace and Security of Mankind of 1988, he concludes at
p. 84 that it can no longer be doubted that as a matter of general customary
international law a head of state will personally be liable to be called to
account if there is sufficient evidence that he authorised or perpetrated
such serious international crimes. A head of state is still protected while
in office by the immunity ratione personae, but the immunity ratione
materiae on which he would have to rely on leaving office must be denied to
him.
I would not regard this as a case of waiver. Nor would I accept that it was
an implied term of the Torture Convention that former heads of state were to
be deprived of their immunity ratione materiae with respect to all acts of
official torture as defined in article 1. It is just that the obligations
which were recognised by customary international law in the case of such
serious international crimes by the date when Chile ratified the Convention
are so strong as to override any objection by it on the ground of immunity
ratione materiae to the exercise of the jurisdiction over crimes committed
after that date which the United Kingdom had made available.
I consider that the date as from which the immunity ratione materiae was
lost was 30 October 1988, which was the date when Chile's ratification of
the Torture Convention on 30 September 1988 took effect. Spain had already
ratified the Convention. It did so on 21 October 1987. The Convention was
ratified by the United Kingdom on 8 December 1988 following the coming into
force of section 134 of the Criminal Justice Act 1988. On the approach which
I would take to this question the immunity ratione materiae was lost when
Chile, having ratified the Convention to which section 134 gave effect and
which Spain had already ratified, was deprived of the right to object to the
extra-territorial jurisdiction which the United Kingdom was able to assert
over these offences when the section came into force. But I am content to
accept the view of my noble and learned friend Lord Saville of Newdigate
that Senator Pinochet continued to have immunity until 8 December 1988 when
the United Kingdom ratified the Convention.
Conclusion
It follows that I would hold that, while Senator Pinochet has immunity
ratione materiae from prosecution for the conspiracy in Spain to murder in
Spain which is alleged in charge 9 and for such conspiracies in Spain to
murder in Spain and such conspiracies in Spain prior to 8 December 1988 to
commit acts of torture in Spain as could be shown to be part of the
allegations in charge 4, he has no immunity from prosecution for the charges
of torture and of conspiracy to torture which relate to the period after
that date. None of the other charges which are made against him are
extradition crimes for which, even if he had no immunity, he could be
extradited. On this basis only I too would allow the appeal, to the extent
necessary to permit the extradition to proceed on the charges of torture and
conspiracy to torture relating to the period after 8 December 1988.
The profound change in the scope of the case which can now be made for the
extradition to Spain of Senator Pinochet will require the Secretary of State
to reconsider his decision to give authority to proceed with the extradition
process under section 7(4) of the Extradition Act 1989 and, if he decides to
renew that authority, with respect to which of the alleged crimes the
extradition should be authorised. It will also make it necessary for the
magistrate, if renewed authority to proceed is given, to pay very careful
attention to the question whether the information which is laid before him
under section 9(8) of the Act supports the allegation that torture in
pursuance of a conspiracy to commit systematic torture, including the single
act of torture which is alleged in charge 30, was being committed by Senator
Pinochet after 8 December 1988 when he lost his immunity.

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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