..............................................JUDGMENT OF THE HOUSE OF LORDS
...............................................................REGINA v. BARTLE
.........................................AND THE COMMISSIONER OF POLICE FOR
..............................THE METROPOLIS AND OTHERS EX PARTE PINOCHET
.................................................................On 24 March 1999
.................................On Appeal from a Divisional Court of the Queen's Bench Division
Full opinion: <http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm>
Author's Note: Chile's
former dictator, Augusto Pinochet, is the individual most identified
with human rights abuses in Chile from 1973 through 1990. He
is allegedly responsible for the death and disappearance of numerous
political opponents of his regime. Prior to leaving office, he
arranged for an amendment to the Chilean Constitution, making
him a senator for life. In October 1998, he traveled to London
on a Chilean diplomatic passport--presumably to give him another
layer of immunity from prosecution. Spain issued an arrest warrant,
requesting that England extradite him to Spain to be tried for
the murder of numerous Spaniards living in or visiting Chile.
He was thus arrested in London.
.....Red paragraph numbering and blue textual enhancements have been added to this edited version of the case. See Notes & Questions below, at end of case.
1. As is well known, this case concerns an attempt by the Government of Spain to extradite Senator Pinochet from this country to stand trial in Spain for crimes committed (primarily in Chile) during the period when Senator Pinochet was head of state in Chile. The interaction between the various legal issues which arise is complex. I will therefore seek, first, to give a short account of the legal principles which are in play in order that my exposition of the facts will be more intelligible.
.....Outline of the law
2. In general, a state only exercises criminal jurisdiction over offences which occur within its geographical boundaries. If a person who is alleged to have committed a crime in Spain is found in the United Kingdom, Spain can apply to the United Kingdom to extradite him to Spain. ...
3. Since the Nazi atrocities and the Nuremberg trials, international law has recognised a number of offences as being international crimes. Individual states have taken jurisdiction to try some international crimes even in cases where such crimes were not committed within the geographical boundaries of such states. The most important of such international crimes for present purposes is torture which is regulated by the International Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. The obligations placed on the United Kingdom by that Convention (and on the other 110 or more signatory states who have adopted the Convention) were incorporated into the law of the United Kingdom ... on 29 September 1988. Section 134 created a new crime under United Kingdom law, the crime of torture. As required by the Torture Convention "all" torture wherever committed world-wide was made criminal under United Kingdom law and triable in the United Kingdom. No one has suggested that before section 134 came into effect torture committed outside the United Kingdom was a crime under United Kingdom law. Nor is it suggested that section 134 was retrospective so as to make torture committed outside the United Kingdom before 29 September 1988 a United Kingdom crime. Since torture outside the United Kingdom was not a crime under U.K. law until 29 September 1988, the principle of double criminality which requires an Act to be a crime under both the law of Spain and of the United Kingdom cannot be satisfied in relation to conduct before that date if the principle of double criminality requires the conduct to be criminal under United Kingdom law [in addition to Spanish law] at the date it was committed. If, on the other hand, the double criminality rule only requires the conduct to be criminal under U.K. law at the date of extradition the rule was satisfied in relation to all torture alleged against Senator Pinochet whether it took place before or after 1988. The Spanish courts have held that they have jurisdiction over all the crimes alleged.
4. In these circumstances, the first question that has to be answered is whether or not the definition of an "extradition crime" in the Act of 1989 requires the conduct to be criminal under U.K. law at the date of commission or only at the date of extradition. [On this point of law, the House of Lords decided that only a limited number of the charges relied upon to extradite Senator Pinochet constitute extradition crimes since most of the conduct relied upon occurred long before 1988].
5. On 11 September 1973 a right-wing coup evicted the left-wing regime of President Allende. The coup was led by a military junta, of whom Senator (then General) Pinochet was the leader. At some stage he became head of state. The Pinochet regime remained in power until 11 March 1990 when Senator Pinochet resigned.
6. There is no real dispute that during the period of the Senator Pinochet regime appalling acts of barbarism were committed in Chile and elsewhere in the world: torture, murder and the unexplained disappearance of individuals, all on a large scale. Although it is not alleged that Senator Pinochet himself committed any of those acts, it is alleged that they were done in pursuance of a conspiracy to which he was a party, at his instigation and with his knowledge. He denies these allegations. None of the conduct alleged was committed by or against citizens of the United Kingdom or in the United Kingdom.
7. In 1998 Senator Pinochet came to the United Kingdom for medical treatment. The judicial authorities in Spain sought to extradite him in order to stand trial in Spain on a large number of charges. Some of those charges had links with Spain. But most of the charges had no connection with Spain. ... Our job is to decide two questions of law: are there any extradition crimes and, if so, is Senator Pinochet immune from trial for committing those crimes. If, as a matter of law, there are no extradition crimes or he is entitled to immunity in relation to whichever crimes there are, then there is no legal right to extradite Senator Pinochet to Spain or, indeed, to stand in the way of his return to Chile. If, on the other hand, there are extradition crimes in relation to which Senator Pinochet is not entitled to state immunity then it will be open to the Home Secretary to extradite him. The task of this House is only to decide those points of law.
8. On 16 October 1998 an international warrant for the arrest of Senator Pinochet was issued in Spain. On the same day, a magistrate in London issued a provisional warrant ("the first warrant") under section 8 of the Extradition Act 1989. He was arrested in a London hospital on 17 October 1998. On 18 October the Spanish authorities issued a second international warrant. A further provisional warrant ("the second warrant") was issued by the magistrate at Bow Street Magistrates Court on 22 October 1998 accusing Senator Pinochet of:
Between 1 January 1988 and December 1992 being a public official
intentionally inflicted ............severe pain or suffering on another in the performance
or purported performance of his ............official duties;
10. Charges 1, 2 and 5: conspiracy to torture between 1 January 1972 and 20 September 1973 and between 1 August 1973 and 1 January 1990;
.....Charge 3: conspiracy to take hostages between 1 August 1973 and 1 January 1990;
.....Charge 4: 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.
.....Charges 6 and 8: torture between 1 August 1973 and 8 August 1973 and on 11 September 1973.
.....Charges 9 and 12: conspiracy to murder in Spain between 1 January 1975 and 31 December ....1976 and in Italy on 6 October 1975.
.....Charges 10 and 11: attempted murder in Italy on 6 October 1975.
13-29; and 31-32: torture on various occasions between 11 September
1973 and May
.....Charge 30: torture on 24 June 1989.
11. I turn then to consider which of those charges are extradition crimes.
jus cogens nature of the international crime of torture justifies
states in taking universal jurisdiction over torture wherever
committed. International law provides that offences jus cogens
may be punished by any state because the offenders are "common
enemies of all mankind and all nations have an equal interest
in their apprehension and prosecution": Demjanjuk v.
Petrovsky (1985) 603 F. Supp. 1468; 776 F. 2d. 571. [Universal
jurisdiction is addressed in Section 5.2 of the textbook
& torture will be addressed in Section 11.2 of the textbook.]
13. This is the point around which most of the argument turned. It is of considerable general importance internationally since, if Senator Pinochet is not entitled to immunity in relation to the acts of torture alleged to have occurred after 29 September 1988, it will be the first time so far as counsel have discovered when a local domestic court has refused to afford immunity to a head of state or former head of state on the grounds that there can be no immunity against prosecution for certain international crimes.
14. Given the importance of the point, it is surprising how narrow is the area of dispute. There is general agreement between the parties as to the rules of statutory immunity and the rationale which underlies them. The issue is whether international law grants state immunity in relation to the international crime of torture and, if so, whether the Republic of Chile is entitled to claim such immunity even though Chile, Spain and the United Kingdom are all parties to the Torture Convention and therefore "contractually" bound to give effect to its provisions from 8 December 1988 at the latest.
It is a basic principle of international law that one sovereign
state (the forum state) does not adjudicate on the conduct of
a foreign state. The foreign state is entitled to procedural
immunity from the processes of the forum state. This immunity
extends to both criminal and civil liability. State immunity
probably grew from the historical immunity of the person of the
monarch. In any event, such personal
immunity of the head of state persists to the present day: the
head of state is entitled to the same immunity as the state itself. The diplomatic representative of the foreign
state in the forum state is also afforded the same immunity in
recognition of the dignity of the state which he represents.
This immunity enjoyed by a head of state in power and an ambassador
in post is a complete immunity attaching to the person of the
head of state or ambassador and rendering him immune from all
actions or prosecutions whether or not they relate to matters
done for the benefit of the state.
18. Can it be said that the commission of a crime which is an international crime against humanity and jus cogens [norm from which no State may deviate] is an act done in an official capacity on behalf of the state? I believe there to be strong ground for saying that the implementation of torture as defined by the [UN] Torture Convention cannot be a state function. ...
19. It can be objected that ... [one is] looking at those cases where the international community has established an international tribunal in relation to which the regulating document expressly makes the head of state subject to the tribunal's jurisdiction: see, for example, the Nuremberg Charter Article 7; the Statute of the International Tribunal for former Yugoslavia; the Statute of the International Tribunal for Rwanda and the Statute of the International Criminal Court [Section 9.5 on International Criminal Courts]. It is true that in these cases it is expressly said that the head of state or former head of state is subject to the court's jurisdiction. But those are cases in which a new court with no existing jurisdiction is being established. The jurisdiction being established by the Torture Convention and the Hostages Convention is one where existing domestic courts of all the countries are being authorised and required to take jurisdiction internationally. The question is whether, in this new type of jurisdiction, the only possible view is that those made subject to the jurisdiction of each of the state courts of the world in relation to torture are not entitled to claim immunity.
20. I have doubts whether, before
the coming into force of the Torture Convention, the existence
of the international crime of torture as jus cogens was enough
to justify the conclusion that the organisation of state torture
could not rank for immunity purposes as performance of an official
function. At that stage there was no international tribunal to
punish torture and no general jurisdiction to permit or require
its punishment in domestic courts. Not until there was some form
of universal jurisdiction for the punishment of the crime of
torture could it really be talked about as a fully constituted
international crime. But in my judgment the Torture Convention
did provide what was missing: a worldwide universal jurisdiction.
Further, it required all member states to ban and outlaw torture:
Article 2. How can it be for international law purposes an official
function to do something which international law itself prohibits
and criminalises? Thirdly, an essential feature of the international
crime of torture is that it must be committed "by or with
the acquiesence of a public official or other person acting in
an official capacity." As a result all defendants
21. Finally, and to my mind decisively, if the implementation of a torture regime is a public function giving rise to immunity..., this produces bizarre results. Immunity ... applies not only to ex-heads of state and ex-ambassadors but to all state officials who have been involved in carrying out the functions of the state. Such immunity is necessary in order to prevent state immunity being circumvented by prosecuting or suing the official who, for example, actually carried out the torture when a claim against the head of state would be precluded by the doctrine of immunity. If that applied to the present case, and if the implementation of the torture regime is to be treated as official business sufficient to found an immunity for the former head of state, it must also be official business sufficient to justify immunity for his inferiors who actually did the torturing. Under the Convention the international crime of torture can only be committed by an official or someone in an official capacity. They would all be entitled to immunity. It would follow that there can be no case outside Chile in which a successful prosecution for torture can be brought unless the State of Chile is prepared to waive its right to its officials immunity. Therefore the whole elaborate structure of universal jurisdiction [Section 5.2 on Five Jurisdictional Principles] over torture committed by officials is rendered abortive and one of the main objectives of the Torture Convention--to provide a system under which there is no safe haven for torturers--will have been frustrated. In my judgment all these factors together demonstrate that the notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention.
22. For these reasons in my judgment if, as alleged, Senator Pinochet organised and authorised torture after 8 December 1988, he was not acting in any capacity which gives rise to immunity ratione materiae because such actions were contrary to international law, Chile had agreed to outlaw such conduct and Chile had agreed with the other parties to the Torture Convention that all signatory states should have jurisdiction to try official torture (as defined in the Convention) even if such torture were committed in Chile.
23. As to the charges of murder and conspiracy to murder, no one has advanced any reason why the ordinary rules of immunity should not apply and Senator Pinochet is entitled to such immunity.
LORD GOFF OF CHIEVELEY
24. Like my noble and learned friend Lord Browne-Wilkinson, I regard the principles of state immunity applicable in the case of heads of state and former heads of state as being relatively non-controversial, though the legislation on which they are now based, the State Immunity Act 1978, is in a strange form which can only be explained by the legislative history of the Act.
25. The function of the Diplomatic Privileges Act 1964 is to give effect to the Vienna Convention on Diplomatic Relations in this country, the relevant articles of which are scheduled to the Act. The problem is, of course, how to identify the "necessary modifications" when applying the Vienna Convention to heads of state [as opposed to an ambassador, absent a comparable head of State convention]. The nature of the problem is apparent when we turn to Article 39 of the [Diplomat's] Convention, which provides:
Every person entitled to privileges and immunities shall enjoy
them from the moment
When the functions of a person enjoying privileges and immunities
have come to an
27. However, a question arises whether any limit is placed on the immunity in respect of criminal offences. Obviously the mere fact that the conduct is criminal does not of itself exclude the immunity, otherwise there would be little point in the immunity from criminal process; and this is so even where the crime is of a serious character. It follows, in my opinion, that the mere fact that the crime in question is torture does not exclude state immunity. It has however been stated by Sir Arthur Watts [citation omitted] that a head of state may be personally responsible:
acts of such seriousness that they constitute not merely international
wrongs (in the
28. He then referred to a number of instruments, including the Charter of the Nuremberg Tribunal (1946), the Charter of the Tokyo Tribunal (1948), the International Law Commission's Draft Code of Crimes Against the Peace and Security of Mankind (provisionally adopted in 1988), and the Statute of the War Crimes Tribunal for former Yugoslavia (1993), all of which expressly provide for the responsibility of heads of state, apart from the Charter of the Tokyo Tribunal which contains a similar provision regarding the official position of the accused. He concluded ... that:
can no longer be doubted that as a matter of general customary
international law a head of
VI. The issue whether immunity
ratione materiae has been excluded under the Torture Convention
it is, as I understand it, suggested that this well-established
principle can be circumvented in the present case on the basis
that it is not proposed that state parties to the Torture Convention
have agreed to waive their state immunity in proceedings brought
in the states of other parties in respect of allegations of torture
within the Convention. It is rather that, for the purposes of
the Convention, such torture does not form part of the functions
of public officials or others acting in an official capacity
including, in particular, a head of state. Moreover since state
immunity ... can only be claimed in respect of acts done by an
official in the exercise of his functions as such, it would follow,
for example, that the effect is that a former head of state does
not enjoy the benefit of immunity ... in respect of such torture
after he has ceased to hold office.
30. 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;
(a) hostage-taking and
.....(4) conspiracy to commit murder between January 1976 and December 1992.
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 [the date of the
UK law enacting the UN Torture Convention], (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 principle of immunity ... 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  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 [ie, all
States--as opposed to only one or several] 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.
35. It follows that I would hold that, while Senator Pinochet has immunity ... 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. ...
36. 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.
37. ... [T]he 1950 Report of the International Law Commission to the General Assembly set out the following principle followed by the commentary contained in paragraph 103:
fact that a person who committed an act which constitutes a crime
This principle is based on article 7 of the Charter of the Nürnberg
38. The 1954 International Law Commission draft code of offences against the peace and security of mankind provided in Article III:
fact that a person acted as head of state or as responsible Government
official does not
39. 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:
official position of any accused person, whether as head of state
or Government or as a
40. 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:
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
This Statute shall apply equally to all persons without any distinction
based on official
Immunities or special procedural rules which may attach to the
official capacity of 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. ...
Each state party shall take effective legislative, administrative,
judicial or other measures
45. Article 2 further provides that:
No exceptional circumstances whatsoever, whether a state of war
or a threat of war,
48. Two overlapping immunities are recognised by international law; immunity ratione personae and immunity ratione materiae. They are quite different and have different rationales.
49. 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 sThe 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.ecurity forces, or their subordinates. ...
50. 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.
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 ... . 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.
The case is authority for three propositions:
There is no rule of international law which prohibits a state
from exercising extraterritorial
War crimes and atrocities of the scale and international character
of the Holocaust are
The fact that the accused committed the crimes in question in
the course of his official duties
LORD PHILLIPS OF WORTH MATRAVERS
56. In the latter part of this century there has been developing a recognition among states that some types of criminal conduct cannot be treated as a matter for the exclusive competence of the state in which they occur. In the 9th edition of Oppenheim, published in 1992, the authors commented at p. 998:
no general rule of positive international law can as yet be asserted
which gives to states
[The remaining opinions are omitted.]
Notes & Questions
2. Did Chile impliedly waive the sovereign immunity by previously ratifying the UN Torture Convention?
3. Does Ex Parte Pinochet deny immunity to former heads of State in all cases? For example, would the charged crime of murder be a basis for extraditing Pinochet to Spain or some other country if one of its citizens were killed by government forces during Pinochet's reign?
4. What role did the Vienna Convention on Diplomatic Immunity play in analyzing this case?
5. In the introductory article in the first book on this affair, the UK's Sir Nigel Rodleywho participated as an observer for Amnesty Internationalsummarizes the case as follows:
6. Upon his return to Chile, Pinochet was arrested for crimes committed during his tenure as Chile's head of State. That decision, while laudable after the British proceedings, does not involve an international sovereign immunity question. Amenability to such prosecution is a matter of State law. For further details, see F. Kirgis, Pinochet Arrest in Chile, in ASIL Insights, Flash Insight No. 58 (Dec., 2000) at <http://www.asil.org/insights/insigh58.htm>. In July, 2001, the Santiago Court of Appeals reached the same result as the British Foreign Secretary: Pinochet will not stand trial in Chile because of his health. Relatives of his victims and other Chileans demonstrated against the local court's decision. In December 2004, a Chilean appeals court upheld Pinochet's indictment and house arrest, thus rejecting an appeal to dismiss this case on grounds of his failinghealth.
7. Other prominent examples of unsuccessful suits against former heads of State include suits against:
..... The former Shah of
Iran, who was served with a multibillion-dollar lawsuit in 1979
when he entered a
...... Deposed Philippine
President Marcos, who was sued in the US, on numerous occasions,
after his 1986
....... Senegal's lower
courts dismissed such a suit against Chad's head of State in
October, 2000. For details
8. Regarding the immunity of heads of State, who are still in office:
..... A US federal trial
court dismissed one against Haiti's Jean-Bertrand Aristide, involving
an alleged political .......assassination.
Lafontant v. Aristide, 844 Fed. Supp. 128 (Eastern Dist.
9. Regarding suits against former high government officials:
..... In September, 2001,
the two sons of slain Chilean military commander, Rene Schneider,
filed suit in a