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 HUTTON
My Lords,
The rehearing of this appeal has raised a number of separate issues which
have been fully considered in the speech of my noble and learned friend Lord
Browne-Wilkinson which I have had the benefit of reading in draft. I am in
agreement with his reasoning and conclusion that the definition of an
"extradition crime" in the Extradition Act 1989 requires the conduct to be
criminal under United Kingdom law at the date of commission. I am also in
agreement with the analysis and conclusions of my noble and learned friend
Lord Hope of Craighead as to the alleged crimes in respect of which Senator
Pinochet could be extradited apart from any issue of immunity. I further
agree with the view of Lord Browne-Wilkinson that Senator Pinochet is
entitled to immunity in respect of charges of murder and conspiracy to
murder, but I wish to make some observations on the issue of immunity
claimed by Senator Pinochet in respect of charges of torture and conspiracy
to torture.
Senator Pinochet ceased to be head of state of Chile on 11 March 1990, and
he claims immunity as a former head of state. The distinction between the
immunity of a serving head of state and the immunity of a former head of
state is discussed by Sir Arthur Watts K.C.M.G., Q.C. in his monograph, "The
Legal Position in International Law of Heads of States, Heads of Governments
and Foreign Ministers". He states at pp. 53, 88 and 89:
"It is well established that, put broadly, a head of state enjoys a wide
immunity from the criminal, civil and administrative jurisdiction of other
states. This immunity--to the extent that it exists--becomes effective upon
his assumption of office, even in respect of events occurring earlier. . .
"A head of state's immunity is enjoyed in recognition of his very special
status as a holder of his state's highest office . . .
"A former head of state is entitled under international law to none of the
facilities, immunities and privileges which international law accords to
heads of states in office. . .
"After his loss of office he may be sued in relation to his private
activities, both those taking place while he was still head of state, as
well as those occurring before becoming head of state or since ceasing to be
head of state. . .
"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."
Section 20 in Part III of the State Immunity Act 1978 provides that, subject
to any necessary modifications, the Diplomatic Privileges Act 1964 shall
apply to a sovereign or other head of state, and section 2 of the Act of
1964 provides that the Articles of the Vienna Convention on Diplomatic
Relations set out in Schedule 1 to the Act shall have the force of law in
the United Kingdom. The Articles set out in Schedule 1 include Articles 29,
31 and 39. Article 29 provides:
"The person of a diplomatic agent shall be inviolable. He shall not be
liable to any form of arrest or detention."
Article 31 provides:
"1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction
of the receiving state."
Article 39 provides:
"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."
One of the issues raised before your Lordships is whether section 20 of the
State Immunity Act relates only to the functions carried out by a foreign
head of state when he is present within the United Kingdom, or whether it
also applies to his actions in his own state or in another country. Section
20 is a difficult section to construe, but I am of opinion that, with the
necessary modifications, the section applies the provisions of the
Diplomatic Privileges Act, and therefore the Articles of the Vienna
Convention, to the actions of a head of state in his own country or
elsewhere, so that, adopting the formulation of Lord Nicholls of Birkenhead
in the earlier hearing [1998] 3 W.L.R. 1456, 1499E, with the addition of
seven words, the effect of section 20 of the Act of 1978, section 2 of the
Diplomatic Privileges Act and of the Articles of the Vienna Convention is
that:
"a former head of state shall continue to enjoy immunity from the criminal
jurisdiction of the United Kingdom with respect to acts performed by him,
whether in his own country or elsewhere, in the exercise of his functions as
a head of state."
I consider, however, that section 20 did not change the law in relation to
the immunity from criminal jurisdiction to which a former head of state was
entitled in the United Kingdom but gave statutory form to the relevant
principle of international law which was part of the common law.
Therefore the crucial question for decision is whether, if committed, the
acts of torture (in which term I include acts of torture and conspiracy to
commit torture) alleged against Senator Pinochet were carried out by him in
the performance of his functions as head of state. I say "if committed"
because it is not the function of your Lordships in this appeal to decide
whether there is evidence to substantiate the allegations and Senator
Pinochet denies them. Your Lordships had the advantage of very learned and
detailed submissions from counsel for the parties and the interveners and
from the amicus curiae (to which submissions I would wish to pay tribute)
and numerous authorities from many jurisdictions were cited.
It is clear that the acts of torture which Senator Pinochet is alleged to
have committed were not acts carried out in his private capacity for his
personal gratification. If that had been the case they would have been
private acts and it is not disputed that Senator Pinochet, once he had
ceased to be head of state, would not be entitled to claim immunity in
respect of them. It was submitted on his behalf that the acts of torture
were carried out for the purposes of protecting the state and advancing its
interests, as Senator Pinochet saw them, and were therefore governmental
functions and were accordingly performed as functions of the head of state.
It was further submitted that the immunity which Senator Pinochet claimed
was the immunity of the state of Chile itself. In the present proceedings
Chile intervened on behalf of Senator Pinochet and in paragraph 10 of its
written case Chile submitted:
" . . . the immunity of a head of state (or former head of state) is an
aspect of state immunity . . . Immunity of a head of state in his public
capacity is equated with state immunity in international law . . . Actions
against representatives of a foreign government in respect of their
governmental or official acts are in substance proceedings against the state
which they represent, and the immunity is for the benefit of the state."
Moreover, it was submitted that a number of authorities established that the
immunity which a state is entitled to claim in respect of the acts of its
former head of state or other public officials applies to acts which are
unlawful and criminal.
My Lords, in considering the authorities it is necessary to have regard to a
number of matters. First, it is a principle of international law that a
state may not be sued in the courts of another state without its consent
(although this principle is now subject to exceptions--the exceptions in the
law of the United Kingdom being set out in the State Immunity Act 1978).
Halsbury's Laws of England 4th ed. published in 1977 vol. 18 para 1548
stated:
"An independent sovereign state may not be sued in the English courts
against its will and without its consent. This immunity from the
jurisdiction is derived from the rules of international law, which in this
respect have become part of the law of England. It is accorded upon the
grounds that the exercise of jurisdiction would be incompatible with the
dignity and independence of any superior authority enjoyed by every
sovereign state. The principle involved is not founded upon any technical
rules of law, but upon broad considerations of public policy, international
law and comity."
Secondly, many of the authorities cited by counsel were cases where an
action in tort for damages was brought against a state. Thirdly, a state is
responsible for the actions of its officials carried out in the ostensible
performance of their official functions notwithstanding that the acts are
performed in excess of their proper functions. Oppenheim's International
Law, 9th ed., states at page 545:
"In addition to the international responsibility which a state clearly
bears for the official and authorised acts of its administrative officials
and members of its armed forces, a state also bears responsibility for
internationally injurious acts committed by such persons in the ostensible
exercise of their official functions but without that state's command or
authorisation, or in excess of their competence according to the internal
law of the state, or in mistaken, ill-judged or reckless execution of their
official duties. A state's administrative officials and members of its armed
forces are under its disciplinary control, and all acts of such persons in
the apparent exercise of their official functions or invoking powers
appropriate to their official character are prima facie attributable to the
state. It is not always easy in practice to draw a clear distinction between
unauthorised acts of officials and acts committed by them in their private
capacity and for which the state is not directly responsible. With regard to
members of armed forces the state will usually be held responsible for their
acts if they have been committed in the line of duty, or in the presence of
and under the orders of an official superior."
Fourthly, in respect of the jurisdiction of the courts of the United
Kingdom, foreign states are now expressly given immunity in civil
proceedings (subject to certain express exceptions) by statute. Part I of
the State Immunity Act 1978 relating to civil proceedings provides in
section 1(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."
But Part I of the Act has no application to criminal jurisdiction and
section 16(4) in Part I provides:
"This Part of this Act does not apply to criminal proceedings."
In the United States of America section 1604 of the Foreign Sovereign
Immunities Act 1976 provides:
"Subject to existing international agreements to which the United States is
a party at the time of enactment of this Act a foreign state shall be immune
from the jurisdiction of the courts of the United States and of the states
except as provided in sections 1605 to 1607 of this chapter."
Counsel for Senator Pinochet and for Chile relied on the decision of the
Court of Appeal in Al-Adsani v. Government of Kuwait (1996) 107 I.L.R. 536
where the plaintiff brought an action for damages in tort against the
government of Kuwait claiming that he had been tortured in Kuwait by
officials of that government. The Court of Appeal upheld a claim by the
government of Kuwait that it was entitled to immunity. Counsel for the
plaintiff submitted that the rule of international law prohibiting torture
is so fundamental that it is jus cogens which overrides all other principles
of international law, including the principle of sovereign immunity. This
submission was rejected by the Court of Appeal on the ground that immunity
was given by section 1 of the State Immunity Act 1978 and that the immunity
was not subject to an overriding qualification in respect of torture or
other acts contrary to international law which did not fall within one of
the express exceptions contained in the succeeding sections of the Act. Ward
L.J. stated at p. 549:
"Unfortunately, the Act is as plain as plain can be. A foreign state enjoys
no immunity for acts causing personal injury committed in the United Kingdom
and if that is expressly provided for the conclusion is impossible to escape
that state immunity is afforded in respect of acts of torture committed
outside this jurisdiction."
A similar decision was given by the United States Court of Appeals, Ninth
Circuit, in Siderman de Blake v. Republic of Argentina (1992) 965 F.2d 699
where an Argentine family brought an action for damages in tort against
Argentina and one of its provinces for acts of torture by military
officials. Argentina claimed that it was entitled to immunity under the
Foreign Sovereign Immunities Act and the Court of Appeals, with reluctance,
upheld this claim. The argument advanced on behalf of the plaintiffs was
similar to that advanced in the Al-Adsani case, but the court ruled that it
was obliged to reject it because of the express provisions of the Foreign
Sovereign Immunities Act, stating at p. 718:
"The Sidermans argue that since sovereign immunity itself is a principle of
international law, it is trumped by jus cogens. In short, they argue that
when a state violates jus cogens, the cloak of immunity provided by
international law falls away, leaving the state amenable to suit.
"As a matter of international law, the Sidermans' argument carries much
force.
. . .
"Unfortunately, we do not write on a clean slate. We deal not only with
customary international law, but with an affirmative Act of Congress, the
FSIA. We must interpret the FSIA through the prism of Amerada Hess. Nothing
in the text or legislative history of the FSIA explicitly addresses the
effect violations of jus cogens might have on the FSIA's cloak of immunity.
Argentina contends that the Supreme Court's statement in Amerada Hess that
the FSIA grants immunity 'in those cases involving alleged violations of
international law that do not come within one of the FSIA's exceptions', 488
U.S. at 436, 109 S.Ct. at 688, precludes the Sidermans' reliance on jus
cogens in this case. Clearly, the FSIA does not specifically provide for an
exception to sovereign immunity based on jus cogens. In Amerada Hess, the
court had no occasion to consider acts of torture or other violations of the
peremptory norms of international law, and such violations admittedly differ
in kind from transgressions of jus dispositivum, the norms derived from
international agreements or customary international law with which the
Amerada Hess court dealt. However, the court was so emphatic in its
pronouncement 'that immunity is granted in those cases involving alleged
violations of international law that do not come within one of the FSIA's
exceptions,' Amerada Hess, 488 U.S. at 436, 109 S. Ct. at 688, and so
specific in its formulation and method of approach, id. at 439, 109 S.Ct. at
690 ('Having determined that the FSIA provides the sole basis for obtaining
jurisdiction over a foreign state in federal court, we turn to whether any
of the exceptions enumerated in the Act apply here'), we conclude that if
violations of jus cogens committed outside the United States are to be
exceptions to immunity, Congress must make them so. The fact that there has
been a violation of jus cogens does not confer jurisdiction under the FSIA."
It has also been decided that where an action for damages in tort is brought
against officials of a foreign state for actions carried out by them in
ostensible exercise of their governmental functions, they can claim state
immunity, notwithstanding that their actions were illegal. The state itself,
if sued directly for damages in respect of their actions would be entitled
to immunity and this immunity would be impaired if damages were awarded
against the officials and then the state was obliged to indemnify them. In
Jaffe v. Miller [1993] I.L.R. 446, government officials were sued in tort
for laying false criminal charges and for conspiracy for kidnap, and it was
held that they were entitled to claim immunity. Finlayson J.A., delivering
the judgment of the Ontario Court of Appeal, stated at pp. 458-459:
"I also agree with the reasoning on this issue put forward by counsel for
the respondents. Counsel submitted that to confer immunity on a government
department of a foreign state but to deny immunity to the functionaries, who
in the course of their duties performed the acts, would render the State
Immunity Act ineffective. To avoid having its action dismissed on the ground
of state immunity, a plaintiff would have only to sue the functionaries who
performed the acts. In the event that the plaintiff recovered judgment, the
foreign state would have to respond to it by indemnifying its functionaries,
thus, through this indirect route, losing the immunity conferred on it by
the Act. Counsel submitted that when functionaries are acting within the
scope of their official duties, as in the present case, they come within the
definition of 'foreign state'."
In my opinion these authorities and similar authorities relating to claims
for damages in tort against states and government officials do not support
the claim of Senator Pinochet to immunity from criminal proceedings in the
United Kingdom because the immunity given by Part I of the State Immunity
Act 1978 does not apply to criminal proceedings.
Counsel for Senator Pinochet and for Chile further submitted that under the
rules of international law courts recognise the immunity of a former head of
state in respect of criminal acts committed by him in the purported exercise
of governmental authority. In Marcos and Marcos v. Federal Department of
Police (1989) 102 I.L.R. 198 the United States instituted criminal
proceedings against Ferdinard Marcos, the former President of the
Philippines, and his wife, who had been a Minister in the Philippine
Government. They were accused of having abused their positions to acquire
for themselves public funds and works of art. The United States authorities
sought legal assistance from the Swiss authorities to obtain banking and
other documents in order to clarify the nature of certain transactions which
were the subject of investigation. Mr. Marcos and his wife claimed immunity
as the former leaders of a foreign state. In its judgment the Swiss federal
tribunal stated at p. 203:
"The immunity in relation to their functions which the appellants enjoyed
therefore subsisted for those criminal acts which were allegedly committed
while they were still exercising their powers in the Republic of the
Philippines. The proceedings brought against them before the United States
courts could therefore only be pursued pursuant to an express waiver by the
State of the Philippines of the immunity which public international law
grants them not as a personal advantage but for the benefit of the state
over which they ruled."
The tribunal then held that the immunity could not be claimed by Mr. & Mrs
Marcos in Switzerland because there had been an express waiver by the State
of the Philippines. However I would observe that in that case Mr. and Mrs
Marcos were not accused of violating a rule of international law which had
achieved the status of jus cogens.
Counsel also relied on the decision of the Federal Constitutional Court of
the Federal Republic of Germany In re Former Syrian Ambassador to the German
Democratic Republic (unreported) 10 June 1997. In that case the former
Syrian ambassador to the German Democratic Republic was alleged to have
failed to prevent a terrorist group from removing a bag of explosives from
the Syrian Embassy, and a few hours later the explosives were used in an
attack which left one person dead and more than 20 persons seriously
injured. Following German unification and the demise of the German
Democratic Republic in 1990 a District Court in Berlin issued an arrest
warrant against the former ambassador for complicity in murder and the
causing of an explosion. The Provincial Court quashed the warrant but the
Court of Appeal overruled the decision of the Provincial Court and restored
the validity of the warrant, holding that "The complainant was held to have
contributed to the attack by omission. He had done nothing to prevent the
explosives stored at the embassy building from being removed." The former
ambassador then lodged a constitutional complaint claiming that he was
entitled to diplomatic immunity.
The Constitutional Court rejected the complaint and held that the obligation
limited to the former German Democratic Republic to recognise the continuing
immunity of the complainant, according to Article 39(2) of the Vienna
Convention, was not transferred to the Federal Republic of Germany by the
international law of state succession.
Counsel for Senator Pinochet and for Chile relied on the following passage
in the judgment of the constitutional court:
"For the categorization as an official act, it is irrelevant whether the
conduct is legal according to the legal order of the Federal Republic of
Germany (see above B.II.2.a)bb)) and whether it fulfilled diplomatic
functions in the sense of Article 3 of the VCDR (see also the position taken
by the [Swiss] Federal Political Department on 12 May [82] 1961,
Schweizerisches Jahrbuch für internationles Recht (SJIR) 21 [1964] p. 171;
however, a different position was taken by the Federal Political Department
on 31 January 1979, reproduced in SJIR 36 (1980), p. 210 at 211 f.). The
commission of criminal acts does not simply concern the functions of the
mission. If a criminal act was never considered as official, there would be
no substance to continuing immunity.
"In addition, there is no relevant customary international law exception
from diplomatic immunity here (see Preamble to the VCDR, 5th paragraph) . .
. .
"Diplomatic immunity from criminal prosecution basically knows no exception
for particularly serious violations of law. The diplomat can in such
situations only be declared persona non grata."
However, two further parts of the judgment are to be noted. First, it
appears that the explosives were left in the embassy when the ambassador was
absent, and his involvement began after the explosives had been left in the
embassy. The report states:
"The investigation conducted by the Public Prosecutor's Office concluded
that the bombing attack was planned and carried out by a terrorist group.
The complainant's sending state had, in a telegram, instructed its embassy
in East Berlin to provide every possible assistance to the group. In the
middle of August 1983 a member of the terrorist group appeared in the
embassy while the complainant was absent and requested permission from the
then third secretary to deposit a bag in the embassy. In view of the
telegram, which was known to him, the third secretary granted that
permission.
"Later, the member of the terrorist group returned to the embassy and
asked the third secretary to transport the bag to West Berlin for him in an
embassy car. At the same time, he revealed that there were explosives in the
bag. The third secretary informed the complainant of the request. The
complainant first ordered the third secretary to bring him the telegram, in
order to read through the text carefully once again, and then decided that
the third secretary could refuse to provide the transportation. After the
third secretary had returned and informed the terrorist of this, the
terrorist took the bag, left the embassy and conveyed the explosive in an
unknown manner towards West Berlin."
It appears that these facts were taken into account by the constitutional
court when it stated:
"The complainant acted in the exercise of his official functions as a
member of the mission, within the meaning of Article 39(2)(2) of the VCDR,
because he is charged with an omission that lay within the sphere of his
responsibility as ambassador, and which is to that extent attributable to
the sending state.
"The complainant was charged with having done nothing to prevent the return
of the explosive. The Court of Appeal derived the relevant obligation of
conduct out of the official responsibility of the complainant, as leader of
the mission, for objects left in the embassy. After the explosive was left
in the embassy and therefore in the complainant's sphere of control and
responsibility, he was obligated, within the framework of his official
duties, to decide how the explosive would then be dealt with. The
complainant made such a decision, apparently on the basis of the telegraphed
instruction from his sending state, so that private interests are not
discernible (on the classification of activities on the basis of
instructions see the Bingham Case in McNair, International Law Opinions,
Vol. 1, 1956, p. 196 at 197; Denza, Diplomatic Law, 1976, p. 249 f.; Salmon
Manuel de Droit Diplomatique, 1994, p. 458 ff.). Instead, the complainant
responded to the third secretary directly, in his position as the superior
official, and, according to the view of the Court of Appeal, sought the best
solution for the embassy."
In addition the constitutional court stated that the rules of diplomatic law
constitute a self-contained regime and drew a distinction between the
immunity of a diplomat and the immunity of a head of state or governmental
official and stated:
"Article 7 of the Charter of the International Military Tribunal of
Nuremberg (UNTS. Vol. 82, p. 279) [7] and following it Article 7(2) of the
Statute of the International Criminal Tribunal for Yugoslavia (ILM 32
(1993), p. 1192), as well as Article 6(2) of the Statute for the
International Criminal Tribunal for Rwanda (ILM 33 (1994), p. 1602) state
that the official position of an accused, whether as a leader of a state or
as a responsible official in a Government department, does not serve to free
him from responsibility or mitigate punishment. Exemptions from immunity for
cases of war criminals, violations of international law and offences against
jus cogens under international law have been discussed as developments of
this rule. . . .However, as the wording of Article 7 of the Charter of the
International Military Tribunal of Nuremberg makes clear, these exceptions
are relevant only to the applicable law of state organs that flows directly
from it, in particular for members of the Government, and not to diplomatic
immunity.
"State immunity and diplomatic immunity represent two different
institutions of international law, each with their own rules, so that no
inference can be drawn from any restrictions in one sphere as to possible
effects in the other."
Therefore I consider that the passage in the judgment relied on by counsel
does not give support to the argument that acts of torture, although
criminal, can be regarded as functions of a head of state.
In 1946 the General Assembly of the United Nations affirmed: "The principles
of international law recognised by the Charter of the Nuremberg Tribunal and
the judgment of the Tribunal" and gave the following directive to its
International Law Commission:
"This Committee on the codification of international law established by the
resolution of the General Assembly of 11 December 1946, to treat as a matter
of primary importance plans for the formulation, in the context of a general
codification of offences against the peace and security of mankind, or of an
international criminal code, of the principles recognised in the Charter of
the Nuremberg Tribunal and in the judgment of the Tribunal."
Pursuant to this directive the 1950 Report of the International Law
Commission to the General Assembly set out the following principle followed
by the commentary contained in paragraph 103:
"The fact that a person who committed an act which constitutes a crime
under international law acted as head of state or responsible Government
official does not relieve him from responsibility under international law.
"103. This principle is based on article 7 of the Charter of the Nürnberg
Tribunal. According to the Charter and the judgment, the fact that an
individual acted as head of state or responsible government official did not
relieve him from international responsibility. 'The principle of
international law which, under certain circumstances, protects the
representatives of a state',said the Tribunal, 'cannot be applied to acts
which are condemned as criminal by international law. The authors of these
acts cannot shelter themselves behind their official position in order to be
freed from punishment . . . .' The same idea was also expressed in the
following passage of the findings: 'He who violates the laws of war cannot
obtain immunity while acting in pursuance of the authority of the state if
the state in authorising action moves outside its competence under
international law."
The 1954 International Law Commission draft code of offences against the
peace and security of mankind provided in Article III:
"The fact that a person acted as head of state or as responsible Government
official does not relieve him of responsibility for committing any of the
offences defined in the code."
The Statute of the International Tribunal for the former Yugoslavia
established by the Security Council of the United Nations in 1993 for the
prosecution of persons responsible for serious violations of international
humanitarian law committed in the territory of the former Yugoslavia since
1991 provided in Article 7 paragraph 2:
"The official position of any accused person, whether as head of state or
Government or as a responsible Government official, shall not relieve such
person of criminal responsibility nor mitigate punishment."
The Statute of the International Tribunal for Rwanda established by the
Security Council of the United Nations in 1994 for the prosecution of
persons responsible for genocide and other serious violations of
international humanitarian law committed in the territory of Rwanda in 1994
provided in Article 6 paragraph 2:
"The official position of any accused person, whether as head of state or
Government or as a responsible Government official shall not relieve such
person of criminal responsibility nor mitigate punishment."
The 1996 draft code of the International Law Commission of Crimes against
the Peace and Security of Mankind provided in Article 7:
"The official position of an individual who commits a crime against the
peace and security of mankind, even if he acted as head of state of
Government, does not relieve him of criminal responsibility or mitigate
punishment."
In July 1998 in Rome the United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal Court
adopted the Statute of the International Criminal Court. The Preamble to the
Statute states (inter alia):
"Mindful that during this century millions of children, women and men have
been victims of unimaginable atrocities that deeply shock the conscience of
humanity,
"Recognizing that such grave crimes threaten the peace, security and
well-being of the world,
"Affirming that the most serious crimes of concern to the international
community as a whole must not go unpunished and that their effective
prosecution must be ensured by taking measures at the national level and by
enhancing international cooperation,
"Determined to put an end to impunity for the perpetrators of these crimes
and thus to contribute to the prevention of such crimes,
"Determined to these ends and for the sake of present and future
generations, to establish an independent permanent International Criminal
Court in relationship with the United Nations system, with jurisdiction over
the most serious crimes of concern to the international community as a
whole.
"Emphasising that the International Criminal Court established under this
Statute shall be complementary to national criminal jurisdictions.
"Resolved to guarantee lasting respect for the enforcement of international
justice,
"Have agreed as follows:"
Article 5 of the Statute provides that jurisdiction of the court shall be
limited to the most serious crimes of concern to the international community
as a whole which include crimes against humanity. Article 7 states that
"crime against humanity" means a number of acts including murder and torture
when committed as part of a widespread or systematic attack directed against
any civilian population, with knowledge of the attack.
Article 27 provides:
"1. This Statute shall apply equally to all persons without any distinction
based on official capacity. In particular, official capacity as a head of
state or Government, a member of a Government or parliament, an elected
representative or a government official shall in no case exempt a person
from criminal responsibility under this Statute, nor shall it, in and of
itself, constitute a ground for reduction of sentence.
"2. Immunities or special procedural rules which may attach to the official
capacity of a person, whether under national or international law, shall not
bar the court from exercising its jurisdiction over such a person."
Therefore since the end of the second world war there has been a clear
recognition by the international community that certain crimes are so grave
and so inhuman that they constitute crimes against international law and
that the international community is under a duty to bring to justice a
person who commits such crimes. Torture has been recognised as such a crime.
The preamble to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment 1984 ("the Torture Convention), which has
been signed by the United Kingdom, Spain and Chile and by over one hundred
other nations, states:
"Considering that, in accordance with the principles proclaimed in the
Charter of the United Nations, recognition of the equal and inalienable
rights of all members of the human family is the foundation of freedom,
justice and peace in the world,
"Recognizing that those rights derive from the inherent dignity of the
human person,
"Considering the obligation of states under the Charter, in particular
Article 55, to promote universal respect for, and observance of, human
rights and fundamental freedoms,
"Having regard to article 5 of the Universal Declaration of Human Rights
and article 7 of the International Covenant on Civil and Political Rights,
both of which provide that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment,
"Having regard also to the Declaration on Protection of All Persons from
Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment adopted by the General Assembly on 9 December 1975
"Desiring to make more effective the struggle against torture and other
cruel, inhuman or degrading treatment or punishment throughout the world,
"Have agreed as follows:"
Article 1 defines "torture" as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for
purposes specified in the Article such as punishment or intimidation or
obtaining information or a confession, and such pain and suffering is
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."
The Convention then contains a number of Articles designed to make the
measures against public officials who commit acts of torture more effective.
In their handbook on the Convention, Burgers and Danelius stated at p. 1:
"It is expedient to redress at the outset a widespread misunderstanding as
to the objective of the Convention against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment, adopted by the General Assembly of the
United Nations in 1984. Many people assume that the Convention's principal
aim is to outlaw torture and other cruel, inhuman or degrading treatment or
punishment. This assumption is not correct insofar as it would imply that
the prohibition of these practices is established under international law by
the Convention only and that this prohibition will be binding as a rule of
international law only for those states which have become parties to the
Convention. On the contrary, the Convention is based upon the recognition
that the above-mentioned practices are already outlawed under international
law. The principal aim of the Convention is to strengthen the existing
prohibition of such practices by a number of supportive measures."
As your Lordships hold that there is no jurisdiction to extradite Senator
Pinochet for acts of torture prior to 29 September 1988, which was the date
on which section 134 of the Criminal Justice Act 1988 came into operation,
it is unnecessary to decide when torture became a crime against
international law prior to that date, but I am of opinion that acts of
torture were clearly crimes against international law and that the
prohibition of torture had required the status of ius cogens by that date.
The appellants accepted that in English courts a serving head of state is
entitled (ratione personae) to immunity in respect of acts of torture which
he has committed. Burgers and Danelius, referring to the obligation of a
state party to the convention to establish its jurisdiction over offences of
torture, recognise that some special immunities may exist in respect of acts
of torture and state at p. 131:
"under international or national law, there may be certain limited
exceptions to this rule, e.g. in relation 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."
It is also relevant to note that article 98 of the Rome Statute establishing
the International Criminal Court provides:
"The court may not proceed with a request for surrender or assistance which
would require the requested state to act inconsistently with its obligations
under international law with respect to the state or diplomatic immunity of
a person or property of a third state, unless the court can first obtain the
cooperation of that third state for the waiver of the immunity."
But the issue in the present case is whether Senator Pinochet, as a former
head of state, can claim immunity (ratione materiae) on the grounds that
acts of torture committed by him when he was head of state were done by him
in exercise of his functions as head of state. In my opinion he is not
entitled to claim such immunity. The Torture Convention makes it clear that
no state is to tolerate torture by its public officials or by persons acting
in an official capacity and Article 2 requires that:
"1. Each state party shall take effective legislative, administrative,
judicial or other measures to prevent acts of torture in any territory under
its jurisdiction."
Article 2 further provides that:
"2. No exceptional circumstances whatsoever, whether a state of war or a
threat of war, internal political instability or any other public emergency,
may be invoked as a justification of torture."
Article 4 provides:
"1. Each state party shall ensure that all acts of torture are offences
under its criminal law. The same shall apply to an attempt to commit torture
and to an act by any person which constitutes complicity or participation in
torture."
"2. Each state party shall make these offences punishable by appropriate
penalties which take into account their grave nature."
Article 7 provides:
"1. The state party in the territory under whose jurisdiction a person
alleged to have committed any offence referred to in article 4 is found,
shall in the cases contemplated in article 5, if it does not extradite him,
submit the case to its competent authorities for the purpose of
prosecution."
I do not accept the argument advanced by counsel on behalf of Senator
Pinochet that the provisions of the Convention were designed to give one
state jurisdiction to prosecute a public official of another state in the
event of that state deciding to waive state immunity. I consider that the
clear intent of the provisions is that an official of one state who has
committed torture should be prosecuted if he is present in another state.
Therefore having regard to the provisions of the Torture Convention, I do
not consider that Senator Pinochet or Chile can claim that the commission of
acts of torture after 29 September 1988 were functions of the head of state.
The alleged acts of torture by Senator Pinochet were carried out under
colour of his position as head of state, but they cannot be regarded as
functions of a head of state under international law when international law
expressly prohibits torture as a measure which a state can employ in any
circumstances whatsoever and has made it an international crime. It is
relevant to observe that in 1996 the military government of Chile informed a
United Nations working group on human rights violations in Chile that
torture was unconditionally prohibited in Chile, that the Constitutional
prohibition against torture was fully enforced and that:
"It is therefore apparent that the practice of inflicting unlawful
ill-treatment has not been instituted in our country as is implied by the
resolution [a UN resolution critical of Chile] and that such ill-treatment
is not tolerated; on the contrary, a serious, comprehensive and coherent
body of provisions exist to prevent the occurrence of such ill-treatment and
to punish those responsible for any type of abuse."
It is also relevant to note that in his opening oral submissions on behalf
of Chile Dr. Lawrence Collins Q.C. stated:
"the Government of Chile, several of whose present members were in prison
or exile during those years, deplores the fact that the governmental
authorities of the period of the dictatorship committed major violations of
human rights in Chile. It reaffirms its commitment to human rights,
including the prohibition of torture."
In its written submissions (which were repeated by Dr. Collins in his oral
submissions) Chile stated:
"The Republic intervenes to assert its own interest and right to have these
matters dealt with in Chile. The purpose of the intervention is not to
defend the actions of Senator Pinochet whilst he was head of state. Nor is
the purpose to prevent him from being investigated and tried for any crime
he is alleged to have committed whilst in office, provided that any
investigation and trial takes place in the only appropriate courts, namely
those of Chile. The democratically elected Government of the Republic of
Chile upholds the commitment of the Republic under international conventions
to the maintenance and promotion of human rights. The position of the
Chilean Government on state immunity is not intended as a personal shield
for Senator Pinochet, but is intended to defend Chilean national
sovereignty, in accordance with generally accepted principles of
international law. Its plea, therefore, does not absolve Senator Pinochet
from responsibility in Chile if the acts alleged against him are proved."
My Lords, the position taken by the democratically elected Government of
Chile that it desires to defend Chilean national sovereignty and considers
that any investigation and trial of Senator Pinochet should take place in
Chile is understandable. But in my opinion that is not the issue which is
before your Lordships; the issue is whether the commission of acts of
torture taking place after 29 September 1988 was a function of the head of
state of Chile under international law. For the reasons which I have given I
consider that it was not.
Article 32(2) of the Vienna Convention set out in Schedule 1 to the
Diplomatic Privileges Act 1964 provides that: "waiver must always be
express." I consider, with respect, that the conclusion that after 29
September 1988 the commission of acts of torture was not under international
law a function of the head of state of Chile does not involve the view that
Chile is to be taken as having impliedly waived the immunity of a former
head of state. In my opinion there has been no waiver of the immunity of a
former head of state in respect of his functions as head of state. My
conclusion that Senator Pinochet is not entitled to immunity is based on the
view that the commission of acts of torture is not a function of a head of
state, and therefore in this case the immunity to which Senator Pinochet is
entitled as a former head of state does not arise in relation to, and does
not attach to, acts of torture.
A number of international instruments define a crime against humanity as one
which is committed on a large scale. Article 18 of the Draft Code of Crimes
against the Peace and Security of Mankind 1996 provides:
"A crime against humanity means any of the following acts, when committed
in a systematic manner on a large scale or instigated or directed by a
Government or any organisation or a group:
(a) Murder;
(b) Extermination;
(c) Torture . . ."
And article 7 of the 1998 Rome Statute of the International Criminal Court
provides:
"For the purposes of this Statute, 'crime against humanity' means any of
the following acts when committed as part of a wide spread or systematic
attack directed against any civilian population, with knowledge of the
attack:
(a) Murder;
(b) Extermination;
. . .
(f) Torture
. . ."
However, article 4 of the Torture Convention provides that:
"Each state party shall ensure that all acts of torture are offences under
its criminal law." (emphasis added)
Therefore I consider that a single act of torture carried out or instigated
by a public official or other person acting in a official capacity
constitutes a crime against international law, and that torture does not
become an international crime only when it is committed or instigated on a
large scale. Accordingly I am of opinion that Senator Pinochet cannot claim
that a single act of torture or a small number of acts of torture carried
out by him did not constitute international crimes and did not constitute
acts committed outside the ambit of his functions as head of state.
For the reasons given by Oppenheim at p. 545, which I have cited in an
earlier part of this judgment, I consider that under international law Chile
is responsible for acts of torture carried out by Senator Pinochet, but
could claim state immunity if sued for damages for such acts in a court in
the United Kingdom. Senator Pinochet could also claim immunity if sued in
civil proceedings for damages under the principle stated in Jaffe v. Miller.
But I am of opinion that there is no inconsistency between Chile and Senator
Pinochet's entitlement to claim immunity if sued in civil proceedings for
damages and Senator Pinochet's lack of entitlement to claim immunity in
criminal proceedings for torture brought against him personally. This
distinction between the responsibility of the state for the improper and
unauthorised acts of a state official outside the scope of his functions and
the individual responsibility of that official in criminal proceedings for
an international crime is recognised in Article 4 and the commentary thereon
in the 1996 draft Report of the International Law Commission:
"Responsibility of States
The fact that the present Code provides for the responsibility of
individuals for crimes against the peace and security of mankind is without
prejudice to any question of the responsibility of states under
international law.
"Commentary
(1) Although, as made clear by article 2, the present Code addresses
matters relating to the responsibility of individuals for the crimes set out
in Part II, it is possible, indeed likely, as pointed out in the commentary
to article 2, that an individual may commit a crime against the peace and
security of mankind as an 'agent of the State', 'on behalf of the State',
'in the name of the State' or even in a de facto relationship with the
state, without being vested with any legal power.
(2) The 'without prejudice' clause contained in article 4 indicates that
the present Code is without prejudice to any question of the responsibility
of a state under international law for a crime committed by one of its
agents. As the commission already emphasised in the commentary to article 19
of the draft articles on state responsibility, the punishment of individuals
who are organs of the state 'certainly does not exhaust the prosecution of
the international responsibility incumbent upon the state for
internationally wrongful acts which are attributed to it in such cases by
reason of the conduct of its organs'. The state may thus remain responsible
and be unable to exonerate itself from responsibility by invoking the
prosecution or punishment of the individuals who committed the crime."
Therefore for the reasons which I have given I am of opinion that Senator
Pinochet is not entitled to claim immunity in the extradition proceedings in
respect of conspiracy to torture and acts of torture alleged to have been
committed by him after 29 September 1988 and to that extent I would allow
the appeal. However I am in agreement with the view of Lord Browne-Wilkinson
that the Secretary of State should reconsider his decision under section 7
of the Extradition Act 1989 in the light of the changed circumstances
arising from your Lordships' decision.
Back to Top
Lord Browne-Wilkinson
Lord Goff of Chieveley
Lord Hope of Craighead
Lord Hutton
Lord Saville of Newdigate
Lord Millett
Lord Phillips of Worth Matravers
|
