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 MILLETT
My Lords,
I have had the advantage of reading in draft the speech of my noble and
learned friend, Lord Browne-Wilkinson. Save in one respect, I agree with his
reasoning and conclusions. Since the one respect in which I differ is of
profound importance to the outcome of this appeal, I propose to set out my
own process of reasoning at rather more length than I might otherwise have
done.
State immunity is not a personal right. It is an attribute of the
sovereignty of the state. The immunity which is in question in the present
case, therefore, belongs to the Republic of Chile, not to Senator Pinochet.
It may be asserted or waived by the state, but where it is waived by treaty
or convention the waiver must be express. So much is not in dispute.
The doctrine of state immunity is the product of the classical theory of
international law. This taught that states were the only actors on the
international plane; the rights of individuals were not the subject of
international law. States were sovereign and equal: it followed that one
state could not be impleaded in the national courts of another; par in parem
non habet imperium. States were obliged to abstain from interfering in the
internal affairs of one another. International law was not concerned with
the way in which a sovereign state treated its own nationals in its own
territory. It is a cliche of modern international law that the classical
theory no longer prevails in its unadulterated form. The idea that
individuals who commit crimes recognised as such by international law may be
held internationally accountable for their actions is now an accepted
doctrine of international law. The adoption by most major jurisdictions of
the restrictive theory of state immunity, enacted into English law by Part I
of the State Immunity Act 1978, has made major inroads into the doctrine as
a bar to the jurisdiction of national courts to entertain civil proceedings
against foreign states. The question before your Lordships is whether a
parallel, though in some respects opposite, development has taken place so
as to restrict the availability of state immunity as a bar to the criminal
jurisdiction of national courts.
Two overlapping immunities are recognised by international law; immunity
ratione personae and immunity ratione materiae. They are quite different and
have different rationales.
Immunity ratione personae is a status immunity. An individual who enjoys its
protection does so because of his official status. It enures for his benefit
only so long as he holds office. While he does so he enjoys absolute
immunity from the civil and criminal jurisdiction of the national courts of
foreign states. But it is only narrowly available. It is confined to serving
heads of state and heads of diplomatic missions, their families and
servants. It is not available to serving heads of government who are not
also heads of state, military commanders and those in charge of the security
forces, or their subordinates. It would have been available to Hitler but
not to Mussolini or Tojo. It is reflected in English law by section 20(1) of
the State Immunity Act 1978, enacting customary international law and the
Vienna Convention on Diplomatic Relations (1961).
The immunity of a serving head of state is enjoyed by reason of his special
status as the holder of his state's highest office. He is regarded as the
personal embodiment of the state itself. It would be an affront to the
dignity and sovereignty of the state which he personifies and a denial of
the equality of sovereign states to subject him to the jurisdiction of the
municipal courts of another state, whether in respect of his public acts or
private affairs. His person is inviolable; he is not liable to be arrested
or detained on any ground whatever. The head of a diplomatic mission
represents his head of state and thus embodies the sending state in the
territory of the receiving state. While he remains in office he is entitled
to the same absolute immunity as his head of state in relation both to his
public and private acts.
This immunity is not in issue in the present case. Senator Pinochet is not a
serving head of state. If he were, he could not be extradited. It would be
an intolerable affront to the Republic of Chile to arrest him or detain him.
Immunity ratione materiae is very different. This is a subject-matter
immunity. It operates to prevent the official and governmental acts of one
state from being called into question in proceedings before the courts of
another, and only incidentally confers immunity on the individual. It is
therefore a narrower immunity but it is more widely available. It is
available to former heads of state and heads of diplomatic missions, and any
one whose conduct in the exercise of the authority of the state is
afterwards called into question, whether he acted as head of government,
government minister, military commander or chief of police, or subordinate
public official. The immunity is the same whatever the rank of the
office-holder. This too is common ground. It is an immunity from the civil
and criminal jurisdiction of foreign national courts but only in respect of
governmental or official acts. The exercise of authority by the military and
security forces of the state is the paradigm example of such conduct. The
immunity finds its rationale in the equality of sovereign states and the
doctrine of non-interference in the internal affairs of other states: see
Duke of Brunswick v. King of Hanover (1848) 2 H.L.Cas. 1; Hatch v. Baez
(1876) 7 Hun. 596 U.S.; Underhill v. Hernandez (1897) 168 U.S. 456. These
hold that the courts of one state cannot sit in judgment on the sovereign
acts of another. The immunity is sometimes also justified by the need to
prevent the serving head of state or diplomat from being inhibited in the
performance of his official duties by fear of the consequences after he has
ceased to hold office. This last basis can hardly be prayed in aid to
support the availability of the immunity in respect of criminal activities
prohibited by international law.
Given its scope and rationale, it is closely similar to and may be
indistinguishable from aspects of the Anglo-American Act of State doctrine.
As I understand the difference between them, state immunity is a creature of
international law and operates as a plea in bar to the jurisdiction of the
national court, whereas the Act of State doctrine is a rule of domestic law
which holds the national court incompetent to adjudicate upon the lawfulness
of the sovereign acts of a foreign state.
Immunity ratione materiae is given statutory form in English law by the
combined effect of section 20(1) of the State Immunity Act 1978 the
Diplomatic Privileges Act 1964 and Article 39.2 of the Vienna Convention.
The Act of 1978 is not without its difficulties. The former head of state is
given the same immunity "subject to all necessary modifications" as a former
diplomat, who continues to enjoy immunity in respect of acts committed by
him "in the exercise of his functions." The functions of a diplomat are
limited to diplomatic activities, ie. acts performed in his representative
role in the receiving state. He has no broader immunity in respect of
official or governmental acts not performed in exercise of his diplomatic
functions: see Dinstein on Diplomatic Immunity from Jurisdiction Ratione
Materiae (1966) 15 International and Comparative Law Quarterly 76 at 82.
There is therefore a powerful argument for holding that, by a parity of
reasoning, the statutory immunity conferred on a former head of state by the
Act of 1978 is confined to acts performed in his capacity as head of state,
ie. in his representative role. If so, the statutory immunity would not
protect him in respect of official or governmental acts which are not
distinctive of a head of state, but which he performed in some other
official capacity, whether as head of government, commander-in-chief or
party leader. It is, however, not necessary to decide whether this is the
case, for any narrow statutory immunity is subsumed in the wider immunity in
respect of other official or governmental acts under customary international
law.
The charges brought against Senator Pinochet are concerned with his public
and official acts, first as Commander-in-Chief of the Chilean army and later
as head of state. He is accused of having embarked on a widespread and
systematic reign of terror in order to obtain power and then to maintain it.
If the allegations against him are true, he deliberately employed torture as
an instrument of state policy. As international law stood on the eve of the
Second World War, his conduct as head of state after he seized power would
probably have attracted immunity ratione materiae. If so, I am of opinion
that it would have been equally true of his conduct during the period before
the coup was successful. He was not then, of course, head of state. But he
took advantage of his position as Commander-in-Chief of the army and made
use of the existing military chain of command to deploy the armed forces of
the state against its constitutional government. These were not private
acts. They were official and governmental or sovereign acts by any standard.
The immunity is available whether the acts in question are illegal or
unconstitutional or otherwise unauthorised under the internal law of the
state, since the whole purpose of state immunity is to prevent the legality
of such acts from being adjudicated upon in the municipal courts of a
foreign state. A sovereign state has the exclusive right to determine what
is and is not illegal or unconstitutional under its own domestic law. Even
before the end of the Second World War, however, it was questionable whether
the doctrine of state immunity accorded protection in respect of conduct
which was prohibited by international law. As early as 1841, according to
Quincy Wright (see (1947) 41 A.J.I.L at p. 71), many commentators held the
view that:
"the Government's authority could not confer immunity upon its agents for
acts beyond its powers under international law."
Thus state immunity did not provide a defence to a crime against the rules
of war: see Sir Hirsch Lauterpacht (1947) 63 L.Q.R. pp. 442-3. Writing in
(1946) 59 Harvard Law Journal 396 before the Nuremberg Tribunal delivered
its judgment and commenting on the seminal judgment of Chief Justice
Marshall in Schooner Exchange v. McFaddon (1812) 11 U.S. (7 Cranch) 116,
Sheldon Glueck observed at p. 426:
"As Marshall implied, even in an age when the doctrine of sovereignty had a
strong hold, the non-liability of agents of a state for 'acts of state' must
rationally be based on the assumption that no member of the Family of
Nations will order its agents to commit flagrant violations of international
and criminal law."
Glueck added (at p. 427) that:
"In modern times a state is--ex hypothesi- incapable of ordering or
ratifying acts which are not only criminal according to generally accepted
principles of domestic penal law but also contrary to that international law
to which all states are perforce subject. Its agents, in performing such
acts, are therefore acting outside their legitimate scope; and must, in
consequence be held personally liable for their wrongful conduct."
It seems likely that Glueck was contemplating trial before municipal courts,
for more than half a century was to pass before the establishment of a truly
international criminal tribunal. This would also be consistent with the
tenor of his argument that the concept of sovereignty was of relatively
recent origin and had been mistakenly raised to what he described as the
"status of some holy fetish."
Whether conduct contrary to the peremptory norms of international law
attracted state immunity from the jurisdiction of national courts, however,
was largely academic in 1946, since the criminal jurisdiction of such courts
was generally restricted to offences committed within the territory of the
forum state or elsewhere by the nationals of that state. In this connection
it is important to appreciate that the International Military Tribunal (the
Nuremberg Tribunal) which was established by the four Allied Powers at the
conclusion of the Second World War to try the major war criminals was not,
strictly speaking, an international court or tribunal. As Sir Hersch
Lauterpacht explained in Oppenheim's International Law vol. II 7th ed.
(1952) pp. 580-1, the Tribunal was:
". . . the joint exercise by the four states which established the
Tribunal, of a right which each of them was entitled to exercise separately
on its own responsibility in accordance with international law."
In its judgment the Tribunal described the making of the Charter as an
exercise of sovereign legislative power by the countries to which the German
Reich had unconditionally surrendered, and of the undoubted right of those
countries to legislate for the occupied territories which had been
recognised by the whole civilised world.
Article 7 of the Charter of the Tribunal provided:
"The official position of defendants, whether as heads of state or
responsible officials in government departments, shall not be considered as
freeing them from responsibility or mitigating punishment." (my emphasis)
In its judgment the Tribunal ruled that:
". . . the very essence of the Charter is that individuals have
international duties which transcend the national obligations of obedience
imposed by the individual state. He who violates the rules 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 principle of international law, which under
certain circumstances protects the representatives of a state, cannot be
applied to acts which are condemned as criminal by international law" (my
emphasis).
The great majority of war criminals were tried in the territories where the
crimes were committed. As in the case of the major war criminals tried at
Nuremberg, they were generally (though not always) tried by national courts
or by courts established by the occupying powers. The jurisdiction of these
courts has never been questioned and could be said to be territorial. But
everywhere the plea of state immunity was rejected in respect of atrocities
committed in the furtherance of state policy in the course of the Second
World War; and nowhere was this justified on the narrow (though available)
ground that there is no immunity in respect of crimes committed in the
territory of the forum state.
The principles of the Charter of the International Military Tribunal and the
Judgment of the Tribunal were unanimously affirmed by Resolution 95 of the
General Assembly of the United Nations in 1946. Thereafter it was no longer
possible to deny that individuals could be held criminally responsibility
for war crimes and crimes against peace and were not protected by state
immunity from the jurisdiction of national courts. Moreover, while it was
assumed that the trial would normally take place in the territory where the
crimes were committed, it was not suggested that this was the only place
where the trial could take place.
The Nuremberg Tribunal ruled that crimes against humanity fell within its
jurisdiction only if they were committed in the execution of or in
connection with war crimes or crimes against peace. But this appears to have
been a jurisdictional restriction based on the language of the Charter.
There is no reason to suppose that it was considered to be a substantive
requirement of international law. The need to establish such a connection
was natural in the immediate aftermath of the Second World War. As memory of
the war receded, it was abandoned.
In 1946 the General Assembly had entrusted the formulation of the principles
of international law recognised in the Charter of the Nuremberg Tribunal and
the Judgment of the Tribunal to the International Law Commission. It
reported in 1954. It rejected the principle that international criminal
responsibility for crimes against humanity should be limited to crimes
committed in connection with war crimes or crimes against peace. It was,
however, necessary to distinguish international crimes from ordinary
domestic offences. For this purpose, the Commission proposed that acts would
constitute international crimes only if they were committed at the
instigation or the toleration of state authorities. This is the distinction
which was later adopted in the Convention against Torture (1984). In my
judgment it is of critical importance in relation to the concept of immunity
ratione materiae. The very official or governmental character of the acts
which is necessary to found a claim to immunity ratione materiae, and which
still operates as a bar to the civil jurisdiction of national courts, was
now to be the essential element which made the acts an international crime.
It was, no doubt, for this reason that the Commission's draft code provided
that: "The fact that a person acted as head of state or as a responsible
Government official does not relieve him of responsibility for committing
any of the offences defined in the code."
The landmark decision of the Supreme Court of Israel in Attorney-General of
Israel v. Eichmann (1962) 36 I.L.R. 5 is also of great significance.
Eichmann had been a very senior official of the Third Reich. He was in
charge of Department IV D-4 of the Reich Main Security Office, the
Department charged with the implementation of the Final Solution, and
subordinate only to Heydrich and Himmler. He was abducted from Argentina and
brought to Israel, where he was tried in the District Court for Tel Aviv.
His appeal against conviction was dismissed by the Supreme Court. The means
by which he was brought to Israel to face trial has been criticised by
academic writers, but Israel's right to assert jurisdiction over the
offences has never been questioned.
The court dealt separately with the questions of jurisdiction and Act of
State. Israel was not a belligerent in the Second World War, which ended
three years before the state was founded. Nor were the offences committed
within its territory. The District Court found support for its jurisdiction
in the historic link between the State of Israel and the Jewish people. The
Supreme Court preferred to concentrate on the international and universal
character of the crimes of which the accused had been convicted, not least
because some of them were directed against non-Jewish groups (Poles,
Slovenes, Czechs and gipsies).
As a matter of domestic Israeli law, the jurisdiction of the court was
derived from an Act of 1950. Following the English doctrine of Parliamentary
supremacy, the court held that it was bound to give effect to a law of the
Knesset even if it conflicted with the principles of international law. But
it went on to hold that the law did not conflict with any principle of
international law. Following a detailed examination of the authorities,
including the judgment of the Permanent Court of International Justice in
the Lotus case, 7 September 1927, it concluded that there was no rule of
international law which prohibited a state from trying a foreign national
for an act committed outside its borders. There seems no reason to doubt
this conclusion. The limiting factor that prevents the exercise of
extra-territorial criminal jurisdiction from amounting to an unwarranted
interference with the internal affairs of another state is that, for the
trial to be fully effective, the accused must be present in the forum state.
Significantly, however, the court also held that the scale and international
character of the atrocities of which the accused had been convicted fully
justified the application of the doctrine of universal jurisdiction. It
approved the general consensus of jurists that war crimes attracted
universal jurisdiction: see, for example, Greenspan's The Modern Law of Land
Warfare (1959) where he writes at p. 420 that:
"Since each sovereign power stands in the position of a guardian of
international law, and is equally interested in upholding it, any state has
the legal right to try war crimes, even though the crimes have been
committed against the nationals of another power and in a conflict to which
that state is not a party."
This seems to have been an independent source of jurisdiction derived from
customary international law, which formed part of the unwritten law of
Israel, and which did not depend on the statute. The court explained that
the limitation often imposed on the exercise of universal jurisdiction, that
the state which apprehended the offender must first offer to extradite him
to the state in which the offence was committed, was not intended to prevent
the violation of the latter's territorial sovereignty. Its basis was purely
practical. The great majority of the witnesses and the greater part of the
evidence would normally be concentrated in that state, and it was therefore
the most convenient forum for the trial.
Having disposed of the objections to its jurisdiction, the court rejected
the defence of Act of State. As formulated, this did not differ in any
material respect from a plea of immunity ratione materiae. It was based on
the fact that in committing the offences of which he had been convicted the
accused had acted as an organ of the state, "whether as head of the state or
a responsible official acting on the government's orders." The court applied
Article 7 of the Nuremberg Charter (which it will be remembered expressly
referred to the head of state) and which it regarded as having become part
of the law of nations.
The case is authority for three propositions:
(1) There is no rule of international law which prohibits a state from
exercising extraterritorial criminal jurisdiction in respect of crimes
committed by foreign nationals abroad.
(2) War crimes and atrocities of the scale and international character of
the Holocaust are crimes of universal jurisdiction under customary
international law.
(3) The fact that the accused committed the crimes in question in the
course of his official duties as a responsible officer of the state and in
the exercise of his authority as an organ of the state is no bar to the
exercise of the jurisdiction of a national court.
The case was followed in the United States in Demjanjuk v. Petrovsky (1985)
603 F. Supp. 1468 aff'd. 776 F. 2d. 571. In the context of an extradition
request by the State of Israel the court accepted Israel's right to try a
person charged with murder in the concentration camps of Eastern Europe. It
held that the crimes were crimes of universal jurisdiction, observing:
"International law provides that certain offences may be punished by any
state because the offenders are enemies of all mankind and all nations have
an equal interest in their apprehension and punishment."
The difficulty is to know precisely what is the ambit of the expression
"certain offences".
Article 5 of the Universal Declaration of Human Rights of 1948 and Article 7
of the International Covenant on Civil and Political Rights of 1966 both
provided that no one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. A resolution of the General Assembly in
1973 proclaimed the need for international co-operation in the detection,
arrest, extradition and punishment of persons guilty of war crimes and
crimes against humanity. A further resolution of the General Assembly in
1975 proclaimed the desire to make the struggle against torture more
effective throughout the world. The fundamental human rights of individuals,
deriving from the inherent dignity of the human person, had become a
commonplace of international law. Article 55 of the Charter of the United
Nations was taken to impose an obligation on all states to promote universal
respect for and observance of human rights and fundamental freedoms.
The trend was clear. War crimes had been replaced by crimes against
humanity. The way in which a state treated its own citizens within its own
borders had become a matter of legitimate concern to the international
community. The most serious crimes against humanity were genocide and
torture. Large scale and systematic use of torture and murder by state
authorities for political ends had come to be regarded as an attack upon the
international order. Genocide was made an international crime by the
Genocide Convention in 1948. By the time Senator Pinochet seized power, the
international community had renounced the use of torture as an instrument of
state policy. The Republic of Chile accepts that by 1973 the use of torture
by state authorities was prohibited by international law, and that the
prohibition had the character of jus cogens or obligation erga omnes. But it
insists that this does not confer universal jurisdiction or affect the
immunity of a former head of state ratione materiae from the jurisdiction of
foreign national courts.
In my opinion, crimes prohibited by international law attract universal
jurisdiction under customary international law if two criteria are
satisfied. First, they must be contrary to a peremptory norm of
international law so as to infringe a jus cogens. Secondly, they must be so
serious and on such a scale that they can justly be regarded as an attack on
the international legal order. Isolated offences, even if committed by
public officials, would not satisfy these criteria. The first criterion is
well attested in the authorities and text books: for a recent example, see
the judgment of the international tribunal for the territory of the former
Yugoslavia in Prosecutor v. Anto Furundzija (unreported) given on 10
December 1998, where the court stated:
"At the individual level, that is, of criminal liability, it would seem
that one of the consequences of the jus cogens character bestowed by the
international community upon the prohibition of torture is that every state
is entitled to investigate, prosecute, and punish or extradite individuals
accused of torture who are present in a territory under its jurisdiction."
The second requirement is implicit in the original restriction to war crimes
and crimes against peace, the reasoning of the court in Eichmann, and the
definitions used in the more recent Conventions establishing ad hoc
international tribunals for the former Yugoslavia and Rwanda.
Every state has jurisdiction under customary international law to exercise
extra-territorial jurisdiction in respect of international crimes which
satisfy the relevant criteria. Whether its courts have extra-territorial
jurisdiction under its internal domestic law depends, of course, on its
constitutional arrangements and the relationship between customary
international law and the jurisdiction of its criminal courts. The
jurisdiction of the English criminal courts is usually statutory, but it is
supplemented by the common law. Customary international law is part of the
common law, and accordingly I consider that the English courts have and
always have had extra-territorial criminal jurisdiction in respect of crimes
of universal jurisdiction under customary international law.
In their handbook on the Convention against Torture (1984), Burgers and
Danelius wrote at p. 1:
"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 the 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."
In my opinion, the systematic use of torture on a large scale and as an
instrument of state policy had joined piracy, war crimes and crimes against
peace as an international crime of universal jurisdiction well before 1984.
I consider that it had done so by 1973. For my own part, therefore, I would
hold that the courts of this country already possessed extra-territorial
jurisdiction in respect of torture and conspiracy to torture on the scale of
the charges in the present case and did not require the authority of statute
to exercise it. I understand, however, that your Lordships take a different
view, and consider that statutory authority is require before our courts can
exercise extra-territorial criminal jurisdiction even in respect of crimes
of universal jurisdiction. Such authority was conferred for the first time
by section 134 of the Criminal Justice Act 1988, but the section was not
retrospective. I shall accordingly proceed to consider the case on the
footing that Senator Pinochet cannot be extradited for any acts of torture
committed prior to the coming into force of the section.
The Convention against Torture (1984) did not create a new international
crime. But it redefined it. Whereas the international community had
condemned the widespread and systematic use of torture as an instrument of
state policy, the Convention extended the offence to cover isolated and
individual instances of torture provided that they were committed by a
public official. I do not consider that offences of this kind were
previously regarded as international crimes attracting universal
jurisdiction. The charges against Senator Pinochet, however, are plainly of
the requisite character. The Convention thus affirmed and extended an
existing international crime and imposed obligations on the parties to the
Convention to take measures to prevent it and to punish those guilty of it.
As Burgers and Danielus explained, its main purpose was to introduce an
institutional mechanism to enable this to be achieved. Whereas previously
states were entitled to take jurisdiction in respect of the offence wherever
it was committed, they were now placed under an obligation to do so. Any
state party in whose territory a person alleged to have committed the
offence was found was bound to offer to extradite him or to initiate
proceedings to prosecute him. The obligation imposed by the Convention
resulted in the passing of section 134 of the Criminal Justice Act 1988.
I agree, therefore, that our courts have statutory extra-territorial
jurisdiction in respect of the charges of torture and conspiracy to torture
committed after the section had come into force and (for the reasons
explained by my noble and learned friend, Lord Hope of Craighead) the
charges of conspiracty to murder where the conspiracy took place in Spain.
I turn finally to the plea of immunity ratione materiae in relation to the
remaining allegations of torture, conspiracy to torture and conspiracy to
murder. I can deal with the charges of conspiracy to murder quite shortly.
The offences are alleged to have taken place in the requesting state. The
plea of immunity ratione materiae is not available in respect of an offence
committed in the forum state, whether this be England or Spain.
The definition of torture, both in the Convention and section 134, is in my
opinion entirely inconsistent with the existence of a plea of immunity
ratione materiae. The offence can be committed only 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 official or governmental nature of the
act, which forms the basis of the immunity, is an essential ingredient of
the offence. No rational system of criminal justice can allow an immunity
which is co-extensive with the offence.
In my view a serving head of state or diplomat could still claim immunity
ratione personae if charged with an offence under section 134. He does not
have to rely on the character of the conduct of which he is accused. The
nature of the charge is irrelevant; his immunity is personal and absolute.
But the former head of state and the former diplomat are in no different
position from anyone else claiming to have acted in the exercise of state
authority. If the respondent's arguments were accepted, section 134 would be
a dead letter. Either the accused was acting in a private capacity, in which
case he cannot be charged with an offence under the section; or he was
acting in an official capacity, in which case he would enjoy immunity from
prosecution. Perceiving this weakness in her argument, counsel for Senator
Pinochet submitted that the United Kingdom took jurisdiction so that it
would be available if, but only if, the offending state waived its immunity.
I reject this explanation out of hand. It is not merely far-fetched; it is
entirely inconsistent with the aims and object of the Convention. The
evidence shows that other states were to be placed under an obligation to
take action precisely because the offending state could not be relied upon
to do so.
My Lords, the Republic of Chile was a party to the Torture Convention, and
must be taken to have assented to the imposition of an obligation on foreign
national courts to take and exercise criminal jurisdiction in respect of the
official use of torture. I do not regard it as having thereby waived its
immunity. In my opinion there was no immunity to be waived. The offence is
one which could only be committed in circumstances which would normally give
rise to the immunity. The international community had created an offence for
which immunity ratione materiae could not possibly be available.
International law cannot be supposed to have established a crime having the
character of a jus cogens and at the same time to have provided an immunity
which is co-extensive with the obligation it seeks to impose.
In my opinion, acts which attract state immunity in civil proceedings
because they are characterised as acts of sovereign power may, for the very
same reason, attract individual criminal liability. The respondents relied
on a number of cases which show that acts committed in the exercise of
sovereign power do not engage the civil liability of the state even if they
are contrary to international law. I do not find those decisions
determinative of the present issue or even relevant. In England and the
United States they depend on the terms of domestic legislation; though I do
not doubt that they correctly represent the position in international law. I
see nothing illogical or contrary to public policy in denying the victims of
state sponsored torture the right to sue the offending state in a foreign
court while at the same time permitting (and indeed requiring) other states
to convict and punish the individuals responsible if the offending state
declines to take action. This was the very object of the Torture Convention.
It is important to emphasise that Senator Pinochet is not alleged to be
criminally liable because he was head of state when other responsible
officials employed torture to maintain him in power. He is not alleged to be
vicariously liable for the wrongdoing of his subordinates. He is alleged to
have incurred direct criminal responsibility for his own acts in ordering
and directing a campaign of terror involving the use of torture. Chile
insists on the exclusive right to prosecute him. The Torture Convention,
however, gives it only the primary right. If it does not seek his
extradition (and it does not) then the United Kingdom is obliged to
extradite him to another requesting state or prosecute him itself.
My Lords, we have come a long way from what I earlier described as the
classical theory of international law - a long way in a relatively short
time. But as the Privy Council pointed out in In re Piracy Jure Gentium
[1934] A.C. 586 at p. 597, international law has not become a crystallised
code at any time, but is a living and expanding branch of the law. Glueck
observed (op.cit. at p. 398) that:
"unless we are prepared to abandon every principle of growth for
international law, we cannot deny that our own day has its right to
institute customs."
In a footnote to this passage he added:
"Much of the law of nations has its roots in custom. Custom must have a
beginning; and customary usages of states in the matter of national and
personal liability for resort to prohibited methods of warfare and to
wholesale criminalism have not been petrified for all time."
The law has developed still further since 1984, and continues to develop in
the same direction. Further international crimes have been created. Ad hoc
international criminal tribunals have been established. A permanent
international criminal court is in the process of being set up. These
developments could not have been foreseen by Glueck and the other jurists
who proclaimed that individuals could be held individually liable for
international crimes. They envisaged prosecution before national courts, and
this will necessarily remain the norm even after a permanent international
tribunal is established. In future those who commit atrocities against
civilian populations must expect to be called to account if fundamental
human rights are to be properly protected. In this context, the exalted rank
of the accused can afford no defence.
For my own part, I would allow the appeal in respect of the charges relating
to the offences in Spain and to torture and conspiracy to torture wherever
and whenever carried out. But the majority of your Lordships think
otherwise, and consider that Senator Pinochet can be extradited only in
respect of a very limited number of charges. This will transform the
position from that which the Secretary of State considered last December. I
agree with my noble and learned friend Lord Browne-Wilkinson that it will be
incumbent on the Secretary of State to reconsider the matter in the light of
the very different circumstances which now prevail.
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Lord Browne-Wilkinson
Lord Goff of Chieveley
Lord Hope of Craighead
Lord Hutton
Lord Saville of Newdigate
Lord Millett
Lord Phillips of Worth Matravers
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