OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

Lord Browne-Wilkinson; Lord Goff of Chieveley; Lord Hope of Craighead; Lord Hutton;
Lord Saville of Newdigate; Lord Millett; Lord Phillips of Worth Matravers

LORD BROWNE-WILKINSON

.....My Lords,

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].

.....The facts

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:

....."(1) 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;
........(2) Between the first day of January 1988 and 31 December 1992 being a public official, .............conspired with persons unknown to intentionally inflict severe pain or suffering on another .............in the performance or purported performance of his official duties;
........(3) Between the first day of January 1982 and 31 January 1992 he detained other persons (the .............hostages) and in order to compel such persons to do or to abstain from doing any act .............threatened to kill, injure or continue to detain the hostages;
........(4) Between the first day of January 1982 and 31 January 1992 conspired with persons .............unknown to detain other persons (the hostages) and in order to compel such persons to do .............or to abstain from doing any act, threatened to kill, injure or continue to detain the .............hostages;
.........(5) Between January 1976 and December 1992 conspired together with persons unknown to ..............commit murder in a Convention country."
................................................................................ ...
9. Secondly, the Republic of Chile applied to intervene as a party. Up to this point Chile had been urging that immunity should be afforded to Senator Pinochet, but it now wished to be joined as a party. Any immunity precluding criminal charges against Senator Pinochet is the immunity not of Senator Pinochet but of the Republic of Chile. Leave to intervene was therefore given to the Republic of Chile. ...

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.

.....Charges 13-29; and 31-32: torture on various occasions between 11 September 1973 and May
.....1977.

.....Charge 30: torture on 24 June 1989.

11. I turn then to consider which of those charges are extradition crimes.

.....Extradition Crimes
............................................................................... ...

12. The 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.]
................................................................................ ...
.....State immunity

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.

15. 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.
.............................................................................. ...
16. In my judgment at common law a former head of state enjoys similar immunities ... once he ceases to be head of state. He too loses immunity ... on ceasing to be head of state. He can be sued on his private obligations: Ex-King Farouk of Egypt v. Christian Dior (1957) 24 I.L.R. 228; Jimenez v. Aristeguieta (1962) 311 F. 2d 547. As ex head of state he cannot be sued in respect of acts performed whilst head of state in his public capacity: Hatch v. Baez [1876] 7 Hun. 596. Thus, at common law, the position of the former ambassador and the former head of state appears to be much the same: both enjoy immunity for acts done in performance of their respective functions whilst in office.
.............................................................................. ...
17. The question then which has to be answered is whether the alleged organisation of state torture by Senator Pinochet (if proved) would constitute an act committed by Senator Pinochet as part of his official functions as head of state. It is not enough to say that it cannot be part of the functions of the head of state to commit a crime. Actions which are criminal under the local law can still have been done officially and therefore give rise to immunity ....

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
in torture cases will be state officials. Yet, if the former head of state has immunity, the man most responsible will escape liability while his inferiors (the chiefs of police, junior army officers) who carried out his orders will be liable. I find it impossible to accept that this was the intention.

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

.....My Lords,
.............................................................. ...
.....IV. State immunity

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:

....."1. Every person entitled to privileges and immunities shall enjoy them from the moment
...........he enters the territory of the receiving state on proceeding 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."

............................................................................ ...
26. There can be no doubt that the immunity of a head of state ... applies to both civil and criminal proceedings. This is because the immunity applies to any form of legal process. The principle of state immunity is expressed in the Latin maxim par in parem non habet imperium, the effect of which is that one sovereign state does not adjudicate on the conduct of another. This principle applies as between states, and the head of a state is entitled to the same immunity as the state itself, as are the diplomatic representatives of the state. ...

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:

....."for acts of such seriousness that they constitute not merely international wrongs (in the
.....broad sense of a civil wrong) but rather international crimes which offend against the
.....public order of the international community."

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:

....."It can no longer be doubted that as a matter of general customary international law a head of
.....state will personally be liable to be called to account if there is sufficient evidence that he
.....authorised or perpetrated such serious international crimes."
............................................................................... ...

VI. The issue whether immunity ratione materiae has been excluded under the Torture Convention
............................................................................... ...
(c) The functions of public officials and others acting in an official capacity.

29. However 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.
............................................................................... ...
LORD HOPE OF CRAIGHEAD
............................................................................... ...

.....My Lords,
............................................................................... ...
.....The offences alleged against Senator Pinochet

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;

.....(3) (a) hostage-taking and
...........(b) conspiracy to take hostages between 1 January 1982 and 31 January 1992; and

.....(4) conspiracy to commit murder between January 1976 and December 1992.

31. These dates must be compared with the date of the coup which brought Senator Pinochet to power in Chile, which was 11 September 1973, and the date when he ceased to be head of state, which was 11 March 1990. Taking the dates in the second provisional warrant at their face value, it appears (a) that he was not being charged with any acts of torture prior to 1 January 1988 [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.
....................................................................................... ...
..... State immunity

32. ... I consider that the answer to it is well settled in customary international law. The test is whether they were private acts on the one hand or governmental acts done in the exercise of his authority as head of state on the other. It is whether the act was done to promote the state's interests - whether it was done for his own benefit or gratification or was done for the state: United States v. Noriega (1990) 746 F.Supp. 1506, 1519-1521. Sir Arthur Watts Q.C. in his Hague Lectures, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers (1994-III) 247 Recueil des cours, p. 56, said : "The critical test would seem to be whether the conduct was engaged in under colour of or in ostensible exercise of the head of state's public authority." The sovereign or governmental acts of one state are not matters upon which the courts of other states will adjudicate: I Congresso del Partido [1983] A.C. 244, 262C per Lord Wilberforce. The fact that acts done for the state have involved conduct which is criminal does not remove the immunity. Indeed the whole purpose of the residual immunity ... is to protect the former head of state against allegations of such conduct after he has left office. A head of state needs to be free to promote his own state's interests during the entire period when he is in office without being subjected to the prospect of detention, arrest or embarrassment in the foreign legal system of the receiving state: see United States v. Noriega, p. 1519; Lafontant v. Aristide (1994) 844 F.Supp. 128, 132. The conduct does not have to be lawful to attract the immunity.

33. ... 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 [1998] 3 W.L.R. 1456, 1506B-C of the head of state who kills his gardener in a fit of rage or who orders victims to be tortured so that he may observe them in agony seem to me plainly to fall into this category and, for this reason, to lie outside the scope of the immunity. The second relates to acts the prohibition of which has acquired the status under international law of jus cogens. This compels all states to refrain from such conduct under any circumstances and imposes an obligation erga omnes [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.
................................................................................... ...
34. Despite the difficulties which I have mentioned, I think that there are sufficient signs that the necessary developments in international law were in place by that date [when the Convention entered into force]. The careful discussion of the jus cogens [norm from which no State may deviate] and erga omnes [crimes against all nations] rules in regard to allegations of official torture in Siderman de Blake v. Republic of Argentina (1992) 26 F.2d 1166, pp. 714-718, which I regard as persuasive on this point, shows that there was already widespread agreement that the prohibition against official torture had achieved the status of a jus cogens norm. ... Having secured a sufficient number of signatories, it entered into force on 26 June 1987. In my opinion, once the machinery which it provides was put in place to enable jurisdiction over such crimes to be exercised in the courts of a foreign state, it was no longer open to any state which was a signatory to the Convention to invoke the immunity ... in the event of allegations of systematic or widespread torture committed after that date being made in the courts of that state against its officials or any other person acting in an official capacity.
................................................................................... ...
.....Conclusion

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.

LORD HUTTON

.....My Lords,
.............................................................................. ...

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:

.........."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."

38. 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."

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:

......."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."

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:

......."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."
................................................................................. ...
41. 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.
................................................................................. ...
42. 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."

43. 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. ...
.................................................................................... ...
44. But the issue in the present case is whether Senator Pinochet, as a former head of state, can claim immunity ... 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."

45. 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."
...................................................................................... ...
46. 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.

LORD MILLETT

.......My Lords,
...................................................................................... ...
47. 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 ... . 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 ... development has taken place so as to restrict the availability of state immunity as a bar to the criminal jurisdiction of national courts.

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.

51. 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 ... . 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.
................................................................................ ...
52. The court [ landmark decision of the Supreme Court of Israel in Attorney-General of Israel v. Eichmann (1962) 36 I.L.R. 5 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.
................................................................................. ...
53. The trend was clear. War crimes had been replaced [after WWII] 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.
.................................................................................... ...
54. 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.
.................................................................................... ...
55. 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.

LORD PHILLIPS OF WORTH MATRAVERS

My Lords,
.............................................................................. ...
.....The development of international criminal law.

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:

....."While no general rule of positive international law can as yet be asserted which gives to states
........the right to punish foreign nationals for crimes against humanity in the same way as they are,
........for instance, entitled to punish acts of piracy, there are clear indications pointing to the gradual .......evolution of a significant principle of international law to that effect. That principle consists
........both in the adoption of the rule of universality of jurisdiction and in the recognition of the
........supremacy of the law of humanity over the law of the sovereign state when enacted or applied
........in violation of.elementary human rights in a manner which may justly be held to shock the
........conscience of mankind."
.............................................................................. ...
57. My Lords, this is an area where international law is on the move and the move has been effected by express consensus recorded in or reflected by a considerable number of international instruments. Since the Second World War states have recognised that not all criminal conduct can be left to be dealt with as a domestic matter by the laws and the courts of the territories in which such conduct occurs. There are some categories of crime of such gravity that they shock the consciousness of mankind and cannot be tolerated by the international community. Any individual who commits such a crime offends against international law. The nature of these crimes is such that they are likely to involve the concerted conduct of many and liable to involve the complicity of the officials of the state in which they occur, if not of the state itself. In these circumstances it is desirable that jurisdiction should exist to prosecute individuals for such conduct outside the territory in which such conduct occurs.
............................................................................. ...

[The remaining opinions are omitted.]

Notes & Questions
1. On what basis did the House of Lords withhold head of State immunity to Pinochet (thereby overruling the lower tribunal)?

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 Rodley–who participated as an observer for Amnesty International–summarizes the case as follows:

.....Even the narrowest reading of the Pinochet litigation–and such a reading requires us to
limit the scope [which abrogated the historical rule of unrestricted, absolute immunity of all former heads of State for all conduct while in office] only to states parties to the ... Convention against Torture ... –marks a milestone in the evolution of international law. It confirms that, at least in respect of public officials other than a serving head of state, the doctrine of state or sovereign immunity is no bar to the exercise of universal jurisdiction over such officials from the states
parties to the Convention in respect of the crime of torture.

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
........New York hospital. This suit was dismissed on related grounds (§9.7 Act of State).

......• Deposed Philippine President Marcos, who was sued in the US, on numerous occasions, after his 1986
........ departure from the Philippines to Hawaii (§11.5). He could not properly claim this legal immunity ........because the successor government of the Philippines agreed that the suits against Marcos could ........proceed in the courts of the US. That approval thus waived whatever sovereign immunity Marcos might ........have otherwise been entitled to invoke.

.......• Senegal's lower courts dismissed such a suit against Chad's head of State in October, 2000. For details
..........of the pending litigation, see Chad: Hissène Habré's Victims Demand Justice: The Habré Case Signals
..........the End of Impunity at <http://www.hrw.org/press/2000/10/habre1026.htm>.

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. N.Y. 1994).

.....• A French appeals court approved a proceeding against Libya's head of State because of his alleged role
........in the bombing of a French airliner over Niger in 1989. For F. Kirgis, French Court Proceedings ......Against Muammar Qadhafi, in ASIL Insights, Flash Insight No. 56 (Oct., 2000), click here.

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
Washington, D.C. federal court. They seek over US $3,000,000.00 from Henry Kissinger and Richard
Helms. Kissinger was the US National Security Advisor, and Helms was the US CIA Director in 1973. It has been wodely reported, on previous occasions, that the US allegedly arranged for the summary execution of the commander, who served under Allende. The US did not want Allende in office, and supported Augusto Pinochet's rise to power--when he staged a successful military coup d'etat in 1973. The US allegedly aided right-wing extremeists in the Chilean military to dispose of Allende and Schnieder. Source: Reuters, Sept. 12, 2001.

Go To Chapter 2, Section 2.6, text p.84, RESTRICTIVE IMMUNITY,
..........immediately after the Ex Parte Pinochet reference to this web page.