Hostname: page-component-cd9895bd7-gbm5v Total loading time: 0 Render date: 2024-12-23T09:41:27.610Z Has data issue: false hasContentIssue false
  • English
  • Français

The Pinochet Case No. 3

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick ,
Dominic McGoldrick  and
Hazel Fox
Get access Rights & Permissions [Opens in a new window]

Extract

The decision of the Appellate Committee of the House of Lords, given on 24 March 1999,1 confirms, by the impressive vote of 6 to 1, the earlier majority ruling that a former head of state enjoys no immunity in extradition or criminal proceedings brought in the United Kingdom in respect of the international crime of torture.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 48 , Issue 3 , July 1999 , pp. 687 - 702
Copyright
Copyright © British Institute of International and Comparative Law 1999

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (Amnesty International intervening) (No.3) (1999) 2 All E.R. 97Google Scholar, hereafter referred to as Pinochet No.3. For comment on the earlier decision See Fox, , “The First Pinochet Case: Immunity of a Former Head of State” (1999) 48 I.C.L.Q. 207–216.Google Scholar

2. Lord Browne-Wilkinson, Pinochet No.3, 100.

3. Ibid, 102.

4. Ibid, 114.

5. Ibid., 115.

6. Ibid., 102.

7. R. v. Bow Street Magistrate and others, ex p. Pinochet Ugarte (Amnesty International and others intervening) (1998) 4 A.E.R. 897, hereafter Pinochet No.1.Google Scholar

8. R v. Bow Street Magistrate and others, ex p. Pinochet Ugarte (Amnesty International and others intervening) (1999) 1 All E.R. 577Google Scholar, hereafter Pinochet No.2. Lord Hoffman was a Director and Chair of Amnesty International Charity Ltd which had been incorporated to fund-raise and conduct research into purposes shared by Amnesty International. None of the Law Lords attributed bias, whether actual or apparent, to Lord Hoffman; they held, however, that the close relationship of the two organisations, one of which was a party to the proceedings, required the Court to treat the other, of which Lord Hoffman was Director, also as a party, and therefore as a matter which should have been disclosed so as to give a party an opportunity to object to Lord Hoffman hearing the case.

9. Per Lord Browne-Wilkinson, Pinochet No.3, 107.

10. Lord Phillips, Pinochet No.3, 185.

11. The recognition of the extraterritorial scope of the offence of conspiracy at common law Liangsiripraesert v. Govt of USA (1991) 1 A.C. 225Google Scholar, and by statute, Criminal Law Act 1977, s.1, Regina v. Sansom (1991) 2 Q.B. 130, also contributed to the widened extraterritorial jurisdiction of the English courts, Lord Hope, Pinochet No.3, 138–140.Google Scholar

12. The United Nations Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment, 1984, HMSO (UK) Cmnd 9593.23 ILM 1027, 24 ILM 535, hereafter the UN Torture Convention.

13. Lord Goff deplored the lack of such a review and the adoption of the majority of “the simple approach” concentrating on the UN Torture Convention, Pinochet No.31, 117.

14. The Times, 9 April 1999.

15. H.L. Debates Vol. 329 Col. 311, 15 April 1999. Leave to judicially review this second authority of the Home Secretary to proceed was refused, The Times, 28 May 1999.

16. Lord Goff queried whether reliance could be placed on earlier charges of torture excluded under the double criminality rule to establish that the single act of torture alleged to have occurred on 24 June 1989 was part of a still continuing campaign. Pinochet No.3 131.

17. Pinochet No.3, 192.

18. Ibid., 113, 172.

19. Lord Hope of Craighead, Pinochet No.3, 146.

20. Jumenez v. Aristeguieta 311 F 2d 547, US Ct of Apps. (5th Cir.).

21. Lord, Browne-Wilkinson, 114.Google Scholar

22. Hansard, HL, 16 March 1978, 1538, col.1Google Scholar

23. The immunity of a head of state was reviewed by the International Law Commission in the course of its preparation over 20 years of a draft convention on the jurisdictional immunities of states and their properties; The Sixth Committee of the UN General Assembly is deliberating over the final draft with a view to convening a conference to achieve its adoption as a multilateral convention. Initially this draft convention included “the sovereign or head of State” in the expression “State” in the draft definition article (1980) ILCYIB vol.II, part 1, p.205, paras.36–7, 2nd report)Google Scholar, and set out in a draft article 25 the immunities of “personal sovereigns and other heads of states” in much the same way as SIA s.20 ( 1986 ILCYB vol.1, part 1, p.5, para.10).Google Scholar The International Law Commission after extensive review of State practice ( 1981 ILCYB vol.2, part 1, p.136, para.31Google Scholar, 3rd Report) and lengthy debate ( 1986 ILCYB vol.1, part 1, pp.4–20)Google Scholar, deleted the phrase from the definition of “state” and the draft article 25. In the final draft convention, sent to UN, it inserted a saving clause which reads:

“The present articles are likewise without prejudice to the privileges and immunities accorded under international law to Heads of State ratione personae” ( 1991 ILCYB Vol.1, part 2, p.1).Google Scholar

The commentary on this article reads:

The reservation of article 3.2 refers exclusively to the private acts or personal immunities and privileges recognised and accorded in the practice of states without any suggestion that their status should in any way be affected by the present articles. The existing customary law is left untouched ( 1991 ILCYB vol.2, part 2, p.22).Google Scholar

24. See Dinstein at (1966) 15 I.C.L.Q. 76 at 88Google Scholar, “[the diplomatic agent] is performing official acts of State, A in the territory of State B with the latter's consent, and these acts of State deserve special consideration and immunity”.

25. Leonard's Carrying Co. Ltd v. Asiatic Petroleum Co. Ltd (1915) A.C. 707.Google Scholar

26. Meridian Global Funds Management Asia Ltd v. Securities Commission (1995) 2 A.C. 500 at 510.Google Scholar

27. Pinochet No.3, 112.

28. Pinochet No.3, 171. Lord Milieu's errors as to the absolute nature of the immunity from civil proceedings of the head of mission (he omits its restriction in respect of three matters specified in article 31 of the Vienna Convention on Diplomatic Relations) and his family and servants (where it is much reduced or non existent dependent on their status as administrative and technical staff, service staff or private servants) is of no significance to the case.

29. Ibid., 169.

30. Denza, , Diplomatic Law 2nd edn, 211–220, 229–230.Google Scholar

31. Op. cit., 230–253.

32. (1964) 2 Q.B. 352.Google Scholar

33. Satow's Guide to Diplomatic Practice 5th edn, 131.Google Scholar

34. The Court in Pinochet No.3 agreed with their Lordships in Pinochet No.1 that the process of making the “necessary modifications” was difficult; in Lord Browne-Wilkinson's words, “the correct way of applying Article 39(2) of the Vienna Convention to a former head of state is a baffling one” (113). The majority found the section was not limited in its application to heads of state when visiting the UK or to acts performed in a representative character, and applied to “the actions of a head of state in his own country or elsewhere”, Hutton, 154. Lord Hope reached this conclusion by defining a head of state's functions by reference to national law, rather than “the lowest common denominator” of international law; “… the functions of a state are those which his own state enables him or requires him to perform in the exercise of government. He performs these functions wherever he is for the time being as well as within his own state. These may include instructing or authorising acts to be done by those under his command at home or abroad in the interests of State security” (146).

35. Burgers, and Danelius, , Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).Google Scholar

36. Pinochet No.3, 109.

37. Ibid., 121.

38. Ibid., 110, 121.

39. Per Hutton, , Phillips, , Pinochet No.3, 165, 192.Google Scholar

40. Per Browne-Wilkinson, , Pinochet No.3, 114.Google Scholar

41. Per Saville, , Miliett, , Pinochet No.3, 169, 179.Google Scholar

42. Per Hope, , Pinochet No.3. 152.Google Scholar

43. Pinochet No.3, 123.

44. Von Dardel v. USSR 623 F.Supp. 286 (DDC 1985).Google Scholar

45. Argentina v. Amerada Shipping Corp. 109 S. Ct 683 (1989) per Rehnquist CJ at 693.Google Scholar

46. (1812) 7 Cranch 116 (US).Google Scholar

47. This confusion was heightened by concessions made in the course of the proceedings: that extradition proceedings were to be treated as criminal proceedings and hence the law of immunity of a head of State from criminal proceedings was applicable; and that the words “public official or other person acting in an official capacity” in the prohibition of torture in the 1984 UN Convention included a Head of State.

These two concessions were important. To equate extradition to criminal proceedings within the forum state assumes that the jurisdiction in the one is of the same quality as in the other, but in a case of immunity it clearly is not. In the one the performance of official functions within the state as well as the presence of an official gives rise to the need for immunity; in the latter in extradition territorial jurisdiction is limited to the presence of the alleged offender, there are no acts performed within the forum state for which immunity is sought. The plea is more accurately a request for inviolability of the person by reason of official acts performed outside the territory of the forum state and over which that state has no competence. Similarly to concede that a head of state is included as a potential offender in the definition of torture in article 1 does not also mean that the mandatory obligation to exercise jurisdiction based on commission of the offence or nationality or presence of the alleged offender constitutes an assumption of jurisdiction over the validity of official acts of another state performed outside the forum state.

48. Trendtex Trading Corporation v. Central Bank of Nigeria (1977) Q.B. 529.Google Scholar

49. I Congreso del Partido (1983) 1 A.C. 244.Google Scholar

50. Ibid., per Shaw LJ at 578.

51. Pinochet No.3, 127.

52. Per Lord, Saville, Pinochet No.3, 169.Google Scholar

53. Ibid., 171.

54. Ibid., per Goff, 119.