Pinochet as a former leader is not immune to extradition for crimes of genocide. New search] [Buy ICLR report: [2000] 1 AC 61] [Buy ICLR report ICLR report: [2000] 1 AC 61] [Buy ICLR report: [1998] 3 WLR 1456] [Help] Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, R v. [1998] UKHL 41; [2000] 1 AC 61; [1998] 4 All ER 897; [1998] 3 WLR 1456 (25th November, 1998) HOUSE OF LORDS Lord Slynn of Hadley Lord Lloyd of Berwick Lord Nicholls of Birkenhead Lord Steyn Lord Hoffmann OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE REGINA v. BARTLE AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND OTHERS (APPELLANTS) EX PARTE PINOCHET (RESPONDENT) (ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION) REGINA v. EVANS AND ANOTHER AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND OTHERS (APPELLANTS) EX PARTE PINOCHET (RESPONDENT) (ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION) ON 25 NOVEMBER 1998 UNAMENDED LORD SLYNN OF HADLEY My Lords, The respondent to this appeal is alleged to have committed or to have been responsible for the commission of the most serious of crimes--genocide, murder on a large scale, torture, the taking of hostages. In the course of 1998, eleven criminal suits have been brought against him in Chile in respect of such crimes. Proceedings have also now been brought in a Spanish court. The Spanish Court has, however, held that it has jurisdiction to try him. In the latter proceedings, none of these specific crimes is said to have been committed by the respondent himself. If the question for your Lordships on the appeal were whether these allegations should be investigated by a Criminal Court in Chile or by an international tribunal, the answer, subject to the terms of any amnesty, would surely be yes. But that is not the question and it is necessary to remind oneself throughout that it is not the question. Your Lordships are not being asked to decide whether proceedings should be brought against the respondent, even whether he should in the end be extradited to another country (that is a question for the Secretary of State) let alone whether he in particular is guilty of the commission or responsible for the commission of these crimes. The sole question is whether he is entitled to immunity as a former Head of State from arrest and extradition proceedings in the United Kingdom in respect of acts alleged to have been committed whilst he was Head of State. The Proceedings The proceedings have arisen in this way. On 16 October 1998 Mr. Nicholas Evans, a Metropolitan Magistrate, issued a provisional warrant for the arrest of the respondent pursuant to section 8(1)(b) of the Extradition Act 1989 on the basis that there was evidence that he was accused that: "between 11 September 1973 and 31 December 1983 within the jurisdiction of the Fifth Central Magistrate of the National Court of Madrid did murder Spanish citizens in Chile within the jurisdiction of the Government of Spain." A second warrant was issued by Mr. Ronald Bartle, a Metropolitan Magistrate, on 22 October 1998 on the application of the Spanish Government, but without the respondent being heard, despite a written request that he should be heard to oppose the application. That warrant was issued on the basis that there was evidence that he was accused: "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 within the jurisdiction of the Government of Spain." Particulars of other alleged offences were set out, namely: (i) between 1 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; (ii) Between 1 January 1982 and 31 January 1992: (a) he detained; (b) he 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; (iii) Between January 1976 and December 1992, conspired together with persons unknown to commit murder in a Convention country. It seems, however, that there are alleged at present to have been only one or two cases of torture between 1 January 1988 and 11 March 1990. The respondent was arrested on that warrant on 23 October. On the same day as the second warrant was issued, and following an application to the Home Secretary to cancel the warrant pursuant to section 8(4) of the Extradition Act 1989, solicitors for the respondent issued a summons applying for an order of Habeas Corpus. Mr. Michael Caplan, a partner in the firm of solicitors, deposed that the plaintiff was in hospital under medication following major surgery and that he claimed privilege and immunity from arrest on two grounds. The first was that, as stated by the Ambassador of Chile to the Court of St. James's, the respondent was "President of the Government Junta of Chile" according to Decree No. 1, dated 11 September 1973 from 11 September 1973 until 26 June 1974 and "Head of State of the Republic of Chile" from 26 June 1974 until 11 March 1990 pursuant to Decree Law No. 527, dated 26 June 1974, confirmed by Decree Law No. 806, dated 17 December 1974, and subsequently by the 14th Transitory Provision of the Political Constitution of the Republic of Chile 1980. The second ground was that the respondent was not and had not been a subject of Spain and accordingly no extradition crime had been identified. An application was also made on 22 October for leave to apply for judicial review to quash the first warrant of 16 October and to direct the Home Secretary to cancel the warrant. On 26 October a further application was made for Habeas Corpus and judicial review of the second warrant. The grounds put forward were (in addition to the claim for immunity up to 1990) that all the charges specified offences contrary to English statutory provisions which were not in force when the acts were done. As to the fifth charge of murder in a Convention country, it was objected that this charged murder in Chile (not a Convention country) by someone not a Spanish national or a national of a Convention country. Objection was also taken to the issue of a second provisional warrant when the first was treated as being valid. These applications were heard by the Divisional Court on 26 and 27 October. On 28 October leave was given to the respondent to move for certiorari and the decision to issue the provisional warrant of 16 October was quashed. The Magistrate's decision of 22 October to issue a provisional warrant was also quashed, but the quashing of the second warrant was stayed pending an appeal to your Lordships' House for which leave was given on an undertaking that the Commissioner of Police and the Government of Spain would lodge a petition to the House on 2 November 1998. It was ordered that the applicant was not to be released from custody other than on bail, which was granted subsequently. No order was made on the application for Habeas Corpus, save to grant leave to appeal and as to costs. The Divisional Court certified: "that a point of law of general public importance is involved in the Court's decision, namely the proper interpretation and scope of the immunity enjoyed by a former Head of State from arrest and extradition proceedings in the United Kingdom in respect of acts committed when he was Head of State". The matter first came before your Lordships on Wednesday 5 November. Application for leave to intervene was made first by Amnesty International and others representing victims of the alleged activities. Conditional leave was given to these intervenors, subject to the parties showing cause why they should not be heard. It was ordered that submissions should so far as possible be in writing, but that, in view of the very short time available before the hearing, exceptionally leave was given to supplement those by oral submissions, subject to time limits to be fixed. At the hearing no objection was raised to Professor Brownlie, Q.C. on behalf of these intervenors being heard. Leave was also given to other intervenors to apply to put in written submissions, although an application to make oral submissions was refused. Written submissions were received on behalf of these parties. Because of the urgency and the important and difficult questions of international law which appeared to be raised, the Attorney General, at your Lordships request, instructed Mr. David Lloyd Jones as amicus curiae and their Lordships are greatly indebted to him for the assistance he provided in writing and orally at such very short notice. Many cases have been cited by counsel, but I only refer to a small number of them. At the date of the provisional warrants and of the judgment of the Divisional Court no extradition request had been made by Spain, a party to the European Convention on Extradition, nor accordingly any authority to proceed from the Secretary of State under the Extradition Act 1989. The Divisional Court held that the first warrant was defective. The offence specified of murder in Chile was clearly not said to be committed in Spain so that section 2(1)(a) of the 1989 Act was not satisfied. Nor was section 2(1)(b) of the Act satisfied since the United Kingdom Courts could only try a defendant for murder outside the United Kingdom if the defendant was a British citizen (section 9 of the Offences Against the Person Act 1861 as amended). Moreover, section 2(3)(a) was not satisfied, since the accused is not a citizen of Spain and it is not sufficient that the victim was a citizen of Spain. The Home Secretary, however, was held not to have been in breach of his duty by not cancelling the warrants. As for the second provisional warrant, the Divisional Court rejected the respondent's argument that it was unlawful to proceed on the second warrant and that the Magistrate erred in not holding an inter partes hearing. The Court did not rule at that stage on the respondent's argument that the acts alleged did not constitute crimes in the United Kingdom at the time they were done, but added that it was not necessary that the conduct alleged did constitute a crime here at the time the alleged crime was committed abroad. As to the sovereign immunity claim, the Court found that from the earliest date in the second warrant (January 1976), the respondent was Head of State of Chile and, although he ceased to be Head of State in March 1990, nothing was relied on as having taken place after March 1990 and indeed the second international warrant issued by the Spanish Judge covered the period from September 1973 to 1979. Section 20 in Part III of the State Immunity Act 1978 was held to apply to matters which occurred before the coming into force of the Act. The Court read the international warrant as accusing the respondent not of personally torturing or murdering victims or causing their disappearance, but of using the powers of the State of which he was Head to do that. They rejected the argument that section 20(1) of the 1970 Act and Article 39 of the Vienna Convention only applied to acts done in the United Kingdom, and held that the applicant was entitled to immunity as a former Head of State from the criminal and civil process of the English Courts. A request for the extradition of the respondent, signed in Madrid on 3 November 1998 by the same judge who signed the international warrant, set out a large number of alleged murders, disappearances and cases of torture which, it is said, were in breach of Spanish law relating to genocide, to torture and to terrorism. They occurred mainly in Chile, but there are others outside Chile--e.g. an attempt to murder in Madrid, which was abandoned because of the danger to the agent concerned. The respondent personally is said to have met an agent of the intelligence services of Chile (D.I.N.A.) following an attack in Rome on the Vice-President of Chile in October 1975 and to have set up and directed "Operation Condor" to eliminate political adversaries, particularly in South America. "These offences have presumably been committed, by Augusto Pinochet Ugarte, along with others in accordance with the plan previously established and designed for the systematic elimination of the political opponents, specific segments of sections of the Chilean national groups, ethnic and religious groups, in order to remove any ideological dispute and purify the Chilean way of life through the disappearance and death of the most prominent leaders and other elements which defended Socialist, Communist (Marxist) positions, or who simply disagreed." By order of 5 November 1998, the Judges of the National Court Criminal Division in Plenary Session held that Spain had jurisdiction to try crimes of terrorism, and genocide even committed abroad, including crimes of torture which are an aspect of genocide and not merely in respect of Spanish victims. "Spain is competent to judge the events by virtue of the principle of universal prosecution for certain crimes--a category of international law--established by our internal legislation. It also has a legitimate interest in the exercise of such jurisdiction because more than 50 nationals were killed or disappeared in Chile, victims of the repression reported in the proceedings." The Validity of the Arrest Although before the Divisional Court the case was argued on the basis that the respondent was at the relevant times Head of State, it was suggested that he was not entitled to such recognition, at any rate for the whole of the period during which the crimes were alleged to have been committed and for which immunity is claimed. An affidavit sworn on 2 November 1974 was produced from Professor Faundez to support this. His view was that by Decree Law No. 1 of 11 September 1973, the respondent was only made President of the Military Junta; that Decree Law was in any event unconstitutional. By Decree Law No. 527 of 26 June 1974, the respondent was designated "Supreme Chief of the Nation" and by Decree Law No. 806 of 17 December 1974, he was given the title President of the Republic of Chile. This, too, it is said was unconstitutional, as was the Decree Law No. 788 of 4 December 1974 purporting to reconcile the Decree Laws with the Constitution. He was not, in any event, appointed in a way recognised by the Constitution. It seems clear, however, that the respondent acted as Head of State. In affidavits from the Ambassador of Chile to the Court of St. James's, sworn on 21 October 1998, and by affidavits of two former Ambassadors, his position has been said to be that of President of the Junta from 11 September 1973 until 26 June 1974 and then Head of State from 26 June 1974 until 11 March 1990. Moreover, it was the respondent who signed the letters of credential presented to The Queen by the Chilean Ambassador to the United Kingdom on 26 October 1973. Further, in the request for extradition dated 3 November 1998, the Spanish Government speak of him as being Head of State. He is said not to have immunity "in regard to the allegedly criminal acts committed when [the respondent] was Head of State in Chile" and in considering whether an immunity should be accorded, it was relevant to take into account that "Mr. Pinochet became Head of State after overthrowing a democratically elected Government by force". I accordingly accept for the purposes of this appeal that, although no certificate has been issued by the Secretary of State pursuant to Section 21(a) of the State Immunity Act 1978, on the evidence at all maternal times until March 1990 the respondent was Head of State of Chile. The protection claimed by the respondent is put essentially on two different bases, one a procedural bar to the proceedings for extradition and the other an objection that the issues raised are not justiciable before the English Courts. They are distinct matters, though there are common features. See for example Argentina v. Amerada Hess 488 U.S. 428, Filartiga v. Pena-Irala (1984) 577 F.Supp. 860, Siderman de Blake v. Republic of Argentina(1992) 965 F 2d 699, and Al Adsani v. Kuwait 107 I.L.R. 536. The Claim of Immunity Chronologically, it is the procedural bar which falls to be considered first. Can the respondent say either that because the State is immune from proceedings he cannot be brought before the Court, or can he say that as a former Head of State he has an immunity of his own which, as I see it, is a derivative of the principle of State immunity. The starting point for both these claims is now the State Immunity Act 1978. The long title of that Act states that this is to (a) make new provision in respect of proceedings in the United Kingdom by or against other States and (b) to make new provision with respect to the immunities and privileges of Heads of State. Part I deals with (a); Part III with (b). Part I By section 1 headed "General Immunity from Jurisdiction", it is provided: "(1) A State is immune from the jurisdiction of the Courts of the United Kingdom except as provided in the following provisions of this Part of this Act". The first part of the sentence is general and the exceptions which follow in sections 2 to 11 relate to specific matters--commercial transactions, certain contracts of employment and injuries to persons and property caused by acts or omissions in the United Kingdom--and do not indicate whether the general rule applies to civil or criminal matters, or both. Some of these exceptions -patents, trademarks and business names, death or personal injury--are capable of being construed to include both civil and criminal proceedings. Section 1 refers only to States and there is nothing in its language to indicate that it covers emanations or officials of the State. I read it as meaning States as such. Section 14, however, goes much further, since references to a State: "include references to (a) the sovereign or other head of that State in his public capacity; (b) the government of that State; and (c) any department of that government, but not to any entity (hereinafter referred to as a separate entity) which is distinct from the executive organs of the government of the State and capable of suing or of being sued". A "separate entity" is immune from jurisdiction "if, and only if--(a) the proceedings relate to anything done by it in the exercise of sovereign authority and (b) the circumstances are such that a State . . . would have been so immune." This section does not deal expressly with the position of a former Head of State. Section 16(4), however, under the heading "Excluded Matters", provides that "this Part of this Act does not apply to criminal proceedings". Mr. Nicholls, Q.C. contends that this must be read subject to the terms of the provision of Section 1(1) which confers absolute immunity from jurisdiction on States. Section 16(4) therefore excludes criminal proceedings from the exceptions provided in sections 2 to 11, but it does not apply to section 1(1), so that a State is immune from criminal proceedings and accordingly Heads of State enjoy immunity from criminal proceedings under section 14. I am not able to accept this. Section 16(4) is in quite general terms and must be read as including section 1 as well as sections 2 to 11 of the Act. It is hardly surprising that crimes are excluded from section 1, since the number of crimes which may be committed by the State as opposed to by individuals seems likely to be limited. It is also consistent with the Foreign Sovereign Immunity Act of the United States which, as I understand it, does not apply to criminal proceedings. Since extradition proceedings in respect of criminal charges are themselves regarded as criminal proceedings, the respondent cannot rely on Part I of the 1978 Act. Part III Part III of the Act contains the provisions of this Act on which it seems that this claim turns, curiously enough under the heading, "Miscellaneous and Supplementary". By section 20(1), "Heads of State", it is provided that: "subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to (a) A sovereign or other head of State; (b) members of his family forming part of his household; and (c) his private servants, as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants. . . . . (5) This section applies to the sovereign or other head of any State on which immunities and privileges are conferred by Part I of this Act and is without prejudice to the application of that Part to any such sovereign or head of State in his public capacity". With specific reference to the laws of war, but in the context the observation was equally applicable to crimes against humanity, the tribunal stated: "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." By a resolution passed unanimously on 11 December 1946, the United Nations general assembly affirmed the principles of international law recognised by the charter of the Nurnberg tribunal and the judgment of the tribunal. From this time on, no head of state could have been in any doubt about his potential personal liability if he participated in acts regarded by international law as crimes against humanity. In 1973 the United Nations put some of the necessary nuts and bolts into place, for bringing persons suspected of having committed such offences to trial in the courts of individual states. States were to assist each other in bringing such persons to trial, asylum was not to be granted to such persons, and states were not to take any legislative or other measures which might be prejudicial to the international obligations assumed by them in regard to the arrest, extradition and punishment of such persons. This was in resolution 3074 adopted on 3 December 1973.
New search] [Buy ICLR report: [2000] 1 AC 61] [Buy ICLR report
: [1998] 3 WLR 1456] [Help]
HOUSE OF LORDS
Lord Slynn of Hadley Lord Lloyd of Berwick Lord Nicholls of Birkenhead
Lord Steyn Lord Hoffmann
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
REGINA
v.
BARTLE AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND OTHERS (APPELLANTS)
EX PARTE PINOCHET (RESPONDENT)
(ON APPEAL FROM A DIVISIONAL COURT OF THE
QUEEN'S BENCH DIVISION)
REGINA
v.
EVANS AND ANOTHER AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND OTHERS (APPELLANTS)
EX PARTE PINOCHET (RESPONDENT)
(ON APPEAL FROM A DIVISIONAL COURT
OF THE QUEEN'S BENCH DIVISION)
ON 25 NOVEMBER 1998
UNAMENDED
LORD SLYNN OF HADLEY
My Lords,
The respondent to this appeal is alleged to have committed or to have been responsible for the commission of the most serious of crimes--genocide, murder on a large scale, torture, the taking of hostages. In the course of 1998, eleven criminal suits have been brought against him in Chile in respect of such crimes. Proceedings have also now been brought in a Spanish court. The Spanish Court has, however, held that it has jurisdiction to try him. In the latter proceedings, none of these specific crimes is said to have been committed by the respondent himself.
If the question for your Lordships on the appeal were whether these allegations should be investigated by a Criminal Court in Chile or by an international tribunal, the answer, subject to the terms of any amnesty, would surely be yes. But that is not the question and it is necessary to remind oneself throughout that it is not the question. Your Lordships are not being asked to decide whether proceedings should be brought against the respondent, even whether he should in the end be extradited to another country (that is a question for the Secretary of State) let alone whether he in particular is guilty of the commission or responsible for the commission of these crimes. The sole question is whether he is entitled to immunity as a former Head of State from arrest and extradition proceedings in the United Kingdom in respect of acts alleged to have been committed whilst he was Head of State.
The Proceedings
The proceedings have arisen in this way. On 16 October 1998 Mr. Nicholas Evans, a Metropolitan Magistrate, issued a provisional warrant for the arrest of the respondent pursuant to section 8(1)(b) of the Extradition Act 1989 on the basis that there was evidence that he was accused that:
(i) between 1 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;
(ii) Between 1 January 1982 and 31 January 1992: (a) he detained; (b) he 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;
(iii) Between January 1976 and December 1992, conspired together with persons unknown to commit murder in a Convention country.
It seems, however, that there are alleged at present to have been only one or two cases of torture between 1 January 1988 and 11 March 1990.
The respondent was arrested on that warrant on 23 October.
On the same day as the second warrant was issued, and following an application to the Home Secretary to cancel the warrant pursuant to section 8(4) of the Extradition Act 1989, solicitors for the respondent issued a summons applying for an order of Habeas Corpus. Mr. Michael Caplan, a partner in the firm of solicitors, deposed that the plaintiff was in hospital under medication following major surgery and that he claimed privilege and immunity from arrest on two grounds. The first was that, as stated by the Ambassador of Chile to the Court of St. James's, the respondent was "President of the Government Junta of Chile" according to Decree No. 1, dated 11 September 1973 from 11 September 1973 until 26 June 1974 and "Head of State of the Republic of Chile" from 26 June 1974 until 11 March 1990 pursuant to Decree Law No. 527, dated 26 June 1974, confirmed by Decree Law No. 806, dated 17 December 1974, and subsequently by the 14th Transitory Provision of the Political Constitution of the Republic of Chile 1980. The second ground was that the respondent was not and had not been a subject of Spain and accordingly no extradition crime had been identified.
An application was also made on 22 October for leave to apply for judicial review to quash the first warrant of 16 October and to direct the Home Secretary to cancel the warrant. On 26 October a further application was made for Habeas Corpus and judicial review of the second warrant. The grounds put forward were (in addition to the claim for immunity up to 1990) that all the charges specified offences contrary to English statutory provisions which were not in force when the acts were done. As to the fifth charge of murder in a Convention country, it was objected that this charged murder in Chile (not a Convention country) by someone not a Spanish national or a national of a Convention country. Objection was also taken to the issue of a second provisional warrant when the first was treated as being valid.
These applications were heard by the Divisional Court on 26 and 27 October. On 28 October leave was given to the respondent to move for certiorari and the decision to issue the provisional warrant of 16 October was quashed. The Magistrate's decision of 22 October to issue a provisional warrant was also quashed, but the quashing of the second warrant was stayed pending an appeal to your Lordships' House for which leave was given on an undertaking that the Commissioner of Police and the Government of Spain would lodge a petition to the House on 2 November 1998. It was ordered that the applicant was not to be released from custody other than on bail, which was granted subsequently. No order was made on the application for Habeas Corpus, save to grant leave to appeal and as to costs.
The Divisional Court certified:
At the date of the provisional warrants and of the judgment of the Divisional Court no extradition request had been made by Spain, a party to the European Convention on Extradition, nor accordingly any authority to proceed from the Secretary of State under the Extradition Act 1989.
The Divisional Court held that the first warrant was defective. The offence specified of murder in Chile was clearly not said to be committed in Spain so that section 2(1)(a) of the 1989 Act was not satisfied. Nor was section 2(1)(b) of the Act satisfied since the United Kingdom Courts could only try a defendant for murder outside the United Kingdom if the defendant was a British citizen (section 9 of the Offences Against the Person Act 1861 as amended). Moreover, section 2(3)(a) was not satisfied, since the accused is not a citizen of Spain and it is not sufficient that the victim was a citizen of Spain. The Home Secretary, however, was held not to have been in breach of his duty by not cancelling the warrants. As for the second provisional warrant, the Divisional Court rejected the respondent's argument that it was unlawful to proceed on the second warrant and that the Magistrate erred in not holding an inter partes hearing. The Court did not rule at that stage on the respondent's argument that the acts alleged did not constitute crimes in the United Kingdom at the time they were done, but added that it was not necessary that the conduct alleged did constitute a crime here at the time the alleged crime was committed abroad.
As to the sovereign immunity claim, the Court found that from the earliest date in the second warrant (January 1976), the respondent was Head of State of Chile and, although he ceased to be Head of State in March 1990, nothing was relied on as having taken place after March 1990 and indeed the second international warrant issued by the Spanish Judge covered the period from September 1973 to 1979. Section 20 in Part III of the State Immunity Act 1978 was held to apply to matters which occurred before the coming into force of the Act. The Court read the international warrant as accusing the respondent not of personally torturing or murdering victims or causing their disappearance, but of using the powers of the State of which he was Head to do that. They rejected the argument that section 20(1) of the 1970 Act and Article 39 of the Vienna Convention only applied to acts done in the United Kingdom, and held that the applicant was entitled to immunity as a former Head of State from the criminal and civil process of the English Courts.
A request for the extradition of the respondent, signed in Madrid on 3 November 1998 by the same judge who signed the international warrant, set out a large number of alleged murders, disappearances and cases of torture which, it is said, were in breach of Spanish law relating to genocide, to torture and to terrorism. They occurred mainly in Chile, but there are others outside Chile--e.g. an attempt to murder in Madrid, which was abandoned because of the danger to the agent concerned. The respondent personally is said to have met an agent of the intelligence services of Chile (D.I.N.A.) following an attack in Rome on the Vice-President of Chile in October 1975 and to have set up and directed "Operation Condor" to eliminate political adversaries, particularly in South America.
Although before the Divisional Court the case was argued on the basis that the respondent was at the relevant times Head of State, it was suggested that he was not entitled to such recognition, at any rate for the whole of the period during which the crimes were alleged to have been committed and for which immunity is claimed. An affidavit sworn on 2 November 1974 was produced from Professor Faundez to support this. His view was that by Decree Law No. 1 of 11 September 1973, the respondent was only made President of the Military Junta; that Decree Law was in any event unconstitutional. By Decree Law No. 527 of 26 June 1974, the respondent was designated "Supreme Chief of the Nation" and by Decree Law No. 806 of 17 December 1974, he was given the title President of the Republic of Chile. This, too, it is said was unconstitutional, as was the Decree Law No. 788 of 4 December 1974 purporting to reconcile the Decree Laws with the Constitution. He was not, in any event, appointed in a way recognised by the Constitution. It seems clear, however, that the respondent acted as Head of State. In affidavits from the Ambassador of Chile to the Court of St. James's, sworn on 21 October 1998, and by affidavits of two former Ambassadors, his position has been said to be that of President of the Junta from 11 September 1973 until 26 June 1974 and then Head of State from 26 June 1974 until 11 March 1990. Moreover, it was the respondent who signed the letters of credential presented to The Queen by the Chilean Ambassador to the United Kingdom on 26 October 1973. Further, in the request for extradition dated 3 November 1998, the Spanish Government speak of him as being Head of State. He is said not to have immunity "in regard to the allegedly criminal acts committed when [the respondent] was Head of State in Chile" and in considering whether an immunity should be accorded, it was relevant to take into account that "Mr. Pinochet became Head of State after overthrowing a democratically elected Government by force". I accordingly accept for the purposes of this appeal that, although no certificate has been issued by the Secretary of State pursuant to Section 21(a) of the State Immunity Act 1978, on the evidence at all maternal times until March 1990 the respondent was Head of State of Chile.
The protection claimed by the respondent is put essentially on two different bases, one a procedural bar to the proceedings for extradition and the other an objection that the issues raised are not justiciable before the English Courts. They are distinct matters, though there are common features. See for example Argentina v. Amerada Hess 488 U.S. 428, Filartiga v. Pena-Irala (1984) 577 F.Supp. 860, Siderman de Blake v. Republic of Argentina(1992) 965 F 2d 699, and Al Adsani v. Kuwait 107 I.L.R. 536.
The Claim of Immunity
Chronologically, it is the procedural bar which falls to be considered first. Can the respondent say either that because the State is immune from proceedings he cannot be brought before the Court, or can he say that as a former Head of State he has an immunity of his own which, as I see it, is a derivative of the principle of State immunity. The starting point for both these claims is now the State Immunity Act 1978. The long title of that Act states that this is to (a) make new provision in respect of proceedings in the United Kingdom by or against other States and (b) to make new provision with respect to the immunities and privileges of Heads of State.
Part I deals with (a); Part III with (b). Part I
By section 1 headed "General Immunity from Jurisdiction", it is provided: "(1) A State is immune from the jurisdiction of the Courts of the United Kingdom except as provided in the following provisions of this Part of this Act".
The first part of the sentence is general and the exceptions which follow in sections 2 to 11 relate to specific matters--commercial transactions, certain contracts of employment and injuries to persons and property caused by acts or omissions in the United Kingdom--and do not indicate whether the general rule applies to civil or criminal matters, or both. Some of these exceptions -patents, trademarks and business names, death or personal injury--are capable of being construed to include both civil and criminal proceedings.
Section 1 refers only to States and there is nothing in its language to indicate that it covers emanations or officials of the State. I read it as meaning States as such. Section 14, however, goes much further, since references to a State:
Section 16(4), however, under the heading "Excluded Matters", provides that "this Part of this Act does not apply to criminal proceedings". Mr. Nicholls, Q.C. contends that this must be read subject to the terms of the provision of Section 1(1) which confers absolute immunity from jurisdiction on States. Section 16(4) therefore excludes criminal proceedings from the exceptions provided in sections 2 to 11, but it does not apply to section 1(1), so that a State is immune from criminal proceedings and accordingly Heads of State enjoy immunity from criminal proceedings under section 14. I am not able to accept this. Section 16(4) is in quite general terms and must be read as including section 1 as well as sections 2 to 11 of the Act. It is hardly surprising that crimes are excluded from section 1, since the number of crimes which may be committed by the State as opposed to by individuals seems likely to be limited. It is also consistent with the Foreign Sovereign Immunity Act of the United States which, as I understand it, does not apply to criminal proceedings. Since extradition proceedings in respect of criminal charges are themselves regarded as criminal proceedings, the respondent cannot rely on Part I of the 1978 Act.
Part III
Part III of the Act contains the provisions of this Act on which it seems that this claim turns, curiously enough under the heading, "Miscellaneous and Supplementary". By section 20(1), "Heads of State", it is provided that:
: [1998] 3 WLR 1456] [Help]
Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, R v. [1998] UKHL 41; [2000] 1 AC 61; [1998] 4 All ER 897; [1998] 3 WLR 1456 (25th November, 1998)
Lord Steyn Lord Hoffmann
v.
BARTLE AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND OTHERS (APPELLANTS)
(ON APPEAL FROM A DIVISIONAL COURT OF THE
QUEEN'S BENCH DIVISION)
v.
EVANS AND ANOTHER AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND OTHERS (APPELLANTS)
(ON APPEAL FROM A DIVISIONAL COURT
OF THE QUEEN'S BENCH DIVISION)
LORD SLYNN OF HADLEY
My Lords,
The respondent to this appeal is alleged to have committed or to have been responsible for the commission of the most serious of crimes--genocide, murder on a large scale, torture, the taking of hostages. In the course of 1998, eleven criminal suits have been brought against him in Chile in respect of such crimes. Proceedings have also now been brought in a Spanish court. The Spanish Court has, however, held that it has jurisdiction to try him. In the latter proceedings, none of these specific crimes is said to have been committed by the respondent himself.
If the question for your Lordships on the appeal were whether these allegations should be investigated by a Criminal Court in Chile or by an international tribunal, the answer, subject to the terms of any amnesty, would surely be yes. But that is not the question and it is necessary to remind oneself throughout that it is not the question. Your Lordships are not being asked to decide whether proceedings should be brought against the respondent, even whether he should in the end be extradited to another country (that is a question for the Secretary of State) let alone whether he in particular is guilty of the commission or responsible for the commission of these crimes. The sole question is whether he is entitled to immunity as a former Head of State from arrest and extradition proceedings in the United Kingdom in respect of acts alleged to have been committed whilst he was Head of State.
The Proceedings
The proceedings have arisen in this way. On 16 October 1998 Mr. Nicholas Evans, a Metropolitan Magistrate, issued a provisional warrant for the arrest of the respondent pursuant to section 8(1)(b) of the Extradition Act 1989 on the basis that there was evidence that he was accused that:
- "between 11 September 1973 and 31 December 1983 within the jurisdiction of the Fifth Central Magistrate of the National Court of Madrid did murder Spanish citizens in Chile within the jurisdiction of the Government of Spain."
- "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 within the jurisdiction of the Government of Spain."
(i) between 1 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;
(ii) Between 1 January 1982 and 31 January 1992: (a) he detained; (b) he 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;
(iii) Between January 1976 and December 1992, conspired together with persons unknown to commit murder in a Convention country.
It seems, however, that there are alleged at present to have been only one or two cases of torture between 1 January 1988 and 11 March 1990.
The respondent was arrested on that warrant on 23 October.
On the same day as the second warrant was issued, and following an application to the Home Secretary to cancel the warrant pursuant to section 8(4) of the Extradition Act 1989, solicitors for the respondent issued a summons applying for an order of Habeas Corpus. Mr. Michael Caplan, a partner in the firm of solicitors, deposed that the plaintiff was in hospital under medication following major surgery and that he claimed privilege and immunity from arrest on two grounds. The first was that, as stated by the Ambassador of Chile to the Court of St. James's, the respondent was "President of the Government Junta of Chile" according to Decree No. 1, dated 11 September 1973 from 11 September 1973 until 26 June 1974 and "Head of State of the Republic of Chile" from 26 June 1974 until 11 March 1990 pursuant to Decree Law No. 527, dated 26 June 1974, confirmed by Decree Law No. 806, dated 17 December 1974, and subsequently by the 14th Transitory Provision of the Political Constitution of the Republic of Chile 1980. The second ground was that the respondent was not and had not been a subject of Spain and accordingly no extradition crime had been identified.
An application was also made on 22 October for leave to apply for judicial review to quash the first warrant of 16 October and to direct the Home Secretary to cancel the warrant. On 26 October a further application was made for Habeas Corpus and judicial review of the second warrant. The grounds put forward were (in addition to the claim for immunity up to 1990) that all the charges specified offences contrary to English statutory provisions which were not in force when the acts were done. As to the fifth charge of murder in a Convention country, it was objected that this charged murder in Chile (not a Convention country) by someone not a Spanish national or a national of a Convention country. Objection was also taken to the issue of a second provisional warrant when the first was treated as being valid.
These applications were heard by the Divisional Court on 26 and 27 October. On 28 October leave was given to the respondent to move for certiorari and the decision to issue the provisional warrant of 16 October was quashed. The Magistrate's decision of 22 October to issue a provisional warrant was also quashed, but the quashing of the second warrant was stayed pending an appeal to your Lordships' House for which leave was given on an undertaking that the Commissioner of Police and the Government of Spain would lodge a petition to the House on 2 November 1998. It was ordered that the applicant was not to be released from custody other than on bail, which was granted subsequently. No order was made on the application for Habeas Corpus, save to grant leave to appeal and as to costs.
The Divisional Court certified:
- "that a point of law of general public importance is involved in the Court's decision, namely the proper interpretation and scope of the immunity enjoyed by a former Head of State from arrest and extradition proceedings in the United Kingdom in respect of acts committed when he was Head of State".
At the date of the provisional warrants and of the judgment of the Divisional Court no extradition request had been made by Spain, a party to the European Convention on Extradition, nor accordingly any authority to proceed from the Secretary of State under the Extradition Act 1989.
The Divisional Court held that the first warrant was defective. The offence specified of murder in Chile was clearly not said to be committed in Spain so that section 2(1)(a) of the 1989 Act was not satisfied. Nor was section 2(1)(b) of the Act satisfied since the United Kingdom Courts could only try a defendant for murder outside the United Kingdom if the defendant was a British citizen (section 9 of the Offences Against the Person Act 1861 as amended). Moreover, section 2(3)(a) was not satisfied, since the accused is not a citizen of Spain and it is not sufficient that the victim was a citizen of Spain. The Home Secretary, however, was held not to have been in breach of his duty by not cancelling the warrants. As for the second provisional warrant, the Divisional Court rejected the respondent's argument that it was unlawful to proceed on the second warrant and that the Magistrate erred in not holding an inter partes hearing. The Court did not rule at that stage on the respondent's argument that the acts alleged did not constitute crimes in the United Kingdom at the time they were done, but added that it was not necessary that the conduct alleged did constitute a crime here at the time the alleged crime was committed abroad.
As to the sovereign immunity claim, the Court found that from the earliest date in the second warrant (January 1976), the respondent was Head of State of Chile and, although he ceased to be Head of State in March 1990, nothing was relied on as having taken place after March 1990 and indeed the second international warrant issued by the Spanish Judge covered the period from September 1973 to 1979. Section 20 in Part III of the State Immunity Act 1978 was held to apply to matters which occurred before the coming into force of the Act. The Court read the international warrant as accusing the respondent not of personally torturing or murdering victims or causing their disappearance, but of using the powers of the State of which he was Head to do that. They rejected the argument that section 20(1) of the 1970 Act and Article 39 of the Vienna Convention only applied to acts done in the United Kingdom, and held that the applicant was entitled to immunity as a former Head of State from the criminal and civil process of the English Courts.
A request for the extradition of the respondent, signed in Madrid on 3 November 1998 by the same judge who signed the international warrant, set out a large number of alleged murders, disappearances and cases of torture which, it is said, were in breach of Spanish law relating to genocide, to torture and to terrorism. They occurred mainly in Chile, but there are others outside Chile--e.g. an attempt to murder in Madrid, which was abandoned because of the danger to the agent concerned. The respondent personally is said to have met an agent of the intelligence services of Chile (D.I.N.A.) following an attack in Rome on the Vice-President of Chile in October 1975 and to have set up and directed "Operation Condor" to eliminate political adversaries, particularly in South America.
- "These offences have presumably been committed, by Augusto Pinochet Ugarte, along with others in accordance with the plan previously established and designed for the systematic elimination of the political opponents, specific segments of sections of the Chilean national groups, ethnic and religious groups, in order to remove any ideological dispute and purify the Chilean way of life through the disappearance and death of the most prominent leaders and other elements which defended Socialist, Communist (Marxist) positions, or who simply disagreed."
- "Spain is competent to judge the events by virtue of the principle of universal prosecution for certain crimes--a category of international law--established by our internal legislation. It also has a legitimate interest in the exercise of such jurisdiction because more than 50 nationals were killed or disappeared in Chile, victims of the repression reported in the proceedings."
Although before the Divisional Court the case was argued on the basis that the respondent was at the relevant times Head of State, it was suggested that he was not entitled to such recognition, at any rate for the whole of the period during which the crimes were alleged to have been committed and for which immunity is claimed. An affidavit sworn on 2 November 1974 was produced from Professor Faundez to support this. His view was that by Decree Law No. 1 of 11 September 1973, the respondent was only made President of the Military Junta; that Decree Law was in any event unconstitutional. By Decree Law No. 527 of 26 June 1974, the respondent was designated "Supreme Chief of the Nation" and by Decree Law No. 806 of 17 December 1974, he was given the title President of the Republic of Chile. This, too, it is said was unconstitutional, as was the Decree Law No. 788 of 4 December 1974 purporting to reconcile the Decree Laws with the Constitution. He was not, in any event, appointed in a way recognised by the Constitution. It seems clear, however, that the respondent acted as Head of State. In affidavits from the Ambassador of Chile to the Court of St. James's, sworn on 21 October 1998, and by affidavits of two former Ambassadors, his position has been said to be that of President of the Junta from 11 September 1973 until 26 June 1974 and then Head of State from 26 June 1974 until 11 March 1990. Moreover, it was the respondent who signed the letters of credential presented to The Queen by the Chilean Ambassador to the United Kingdom on 26 October 1973. Further, in the request for extradition dated 3 November 1998, the Spanish Government speak of him as being Head of State. He is said not to have immunity "in regard to the allegedly criminal acts committed when [the respondent] was Head of State in Chile" and in considering whether an immunity should be accorded, it was relevant to take into account that "Mr. Pinochet became Head of State after overthrowing a democratically elected Government by force". I accordingly accept for the purposes of this appeal that, although no certificate has been issued by the Secretary of State pursuant to Section 21(a) of the State Immunity Act 1978, on the evidence at all maternal times until March 1990 the respondent was Head of State of Chile.
The protection claimed by the respondent is put essentially on two different bases, one a procedural bar to the proceedings for extradition and the other an objection that the issues raised are not justiciable before the English Courts. They are distinct matters, though there are common features. See for example Argentina v. Amerada Hess 488 U.S. 428, Filartiga v. Pena-Irala (1984) 577 F.Supp. 860, Siderman de Blake v. Republic of Argentina(1992) 965 F 2d 699, and Al Adsani v. Kuwait 107 I.L.R. 536.
The Claim of Immunity
Chronologically, it is the procedural bar which falls to be considered first. Can the respondent say either that because the State is immune from proceedings he cannot be brought before the Court, or can he say that as a former Head of State he has an immunity of his own which, as I see it, is a derivative of the principle of State immunity. The starting point for both these claims is now the State Immunity Act 1978. The long title of that Act states that this is to (a) make new provision in respect of proceedings in the United Kingdom by or against other States and (b) to make new provision with respect to the immunities and privileges of Heads of State.
Part I deals with (a); Part III with (b). Part I
By section 1 headed "General Immunity from Jurisdiction", it is provided: "(1) A State is immune from the jurisdiction of the Courts of the United Kingdom except as provided in the following provisions of this Part of this Act".
The first part of the sentence is general and the exceptions which follow in sections 2 to 11 relate to specific matters--commercial transactions, certain contracts of employment and injuries to persons and property caused by acts or omissions in the United Kingdom--and do not indicate whether the general rule applies to civil or criminal matters, or both. Some of these exceptions -patents, trademarks and business names, death or personal injury--are capable of being construed to include both civil and criminal proceedings.
Section 1 refers only to States and there is nothing in its language to indicate that it covers emanations or officials of the State. I read it as meaning States as such. Section 14, however, goes much further, since references to a State:
- "include references to (a) the sovereign or other head of that State in his public capacity; (b) the government of that State; and (c) any department of that government, but not to any entity (hereinafter referred to as a separate entity) which is distinct from the executive organs of the government of the State and capable of suing or of being sued".
Section 16(4), however, under the heading "Excluded Matters", provides that "this Part of this Act does not apply to criminal proceedings". Mr. Nicholls, Q.C. contends that this must be read subject to the terms of the provision of Section 1(1) which confers absolute immunity from jurisdiction on States. Section 16(4) therefore excludes criminal proceedings from the exceptions provided in sections 2 to 11, but it does not apply to section 1(1), so that a State is immune from criminal proceedings and accordingly Heads of State enjoy immunity from criminal proceedings under section 14. I am not able to accept this. Section 16(4) is in quite general terms and must be read as including section 1 as well as sections 2 to 11 of the Act. It is hardly surprising that crimes are excluded from section 1, since the number of crimes which may be committed by the State as opposed to by individuals seems likely to be limited. It is also consistent with the Foreign Sovereign Immunity Act of the United States which, as I understand it, does not apply to criminal proceedings. Since extradition proceedings in respect of criminal charges are themselves regarded as criminal proceedings, the respondent cannot rely on Part I of the 1978 Act.
Part III
Part III of the Act contains the provisions of this Act on which it seems that this claim turns, curiously enough under the heading, "Miscellaneous and Supplementary". By section 20(1), "Heads of State", it is provided that:
- "subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to (a) A sovereign or other head of State; (b) members of his family forming part of his household; and (c) his private servants, as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants. . . . .
- (5) This section applies to the sovereign or other head of any State on which immunities and privileges are conferred by Part I of this Act and is without prejudice to the application of that Part to any such sovereign or head of State in his public capacity".
With specific reference to the laws of war, but in the context the observation was equally applicable to crimes against humanity, the tribunal stated:
The essential fragility of the claim to immunity is underlined by the insistence on behalf of General Pinochet that it is not alleged that he "personally" committed any of the crimes. That means that he did not commit the crimes by his own hand. It is apparently conceded that if he personally tortured victims the position would be different. This distinction flies in the face of an elementary principle of law, shared by all civilized legal systems, that there is no distinction to be drawn between the man who strikes, and a man who orders another to strike. It is inconceivable that in enacting the Act of 1978 Parliament would have wished to rest the statutory immunity of a former Head of State on a different basis.
On behalf of General Pinochet it was submitted that acts by police, intelligence officers and military personnel are paradigm official acts. In this absolute form I do not accept the proposition. For example, why should what was allegedly done in secret in the torture chambers of Santiago on the orders of General Pinochet be regarded as official acts? Similarly, why should the murders and disappearances allegedly perpetrated by DINA in secret on the orders of General Pinochet be regarded as official acts? But, in any event, in none of these cases is the further essential requirement satisfied, viz. that in an international law sense these acts were part of the functions of a Head of State. The normative principles of international law do not require that such high crimes should be classified as acts performed in the exercise of the functions of a Head of State. For my part I am satisfied that as a matter of construction of the relevant statutory provisions the charges brought by Spain against General Pinochet are properly to be classified as conduct falling beyond the scope of his functions as Head of State. Qualitatively, what he is alleged to have done is no more to be categorized as acts undertaken in the exercise of the functions of a Head of State than the examples already given of a Head of State murdering his gardener or arranging the torture of his opponents for the sheer spectacle of it. It follows that in my view General Pinochet has no statutory immunity.
Counsel for General Pinochet further argued that if he is not entitled to statutory immunity, he is nevertheless entitled to immunity under customary international law. International law recognizes no such wider immunity in favour of a former Head of State. In any event, if there had been such an immunity under international law Section 20, read with Article 39(2), would have overridden it. General Pinochet is not entitled to an immunity of any kind. Thirdly, any act of state doctrine is displaced by Section 134(1) of the Criminal Justice Act 1988 in relation to torture and Section (1)(1) of the Taking of Hostages Act 1982 . Both Acts provide for the taking of jurisdiction over foreign governmental acts. Fourthly, and more broadly, the Spanish authorities have relied on crimes of genocide, torture, hostage taking and crimes against humanity. It has in my view been clearly established that by 1973 such acts were already condemned as high crimes by customary international law. In these circumstances it would be wrong for the English courts now to extend the act of state doctrine in a way which runs counter to the state of customary international law as it existed in 1973. Since the act of state doctrine depends on public policy as perceived by the courts in the forum at the time of the suit the developments since 1973 are also relevant and serve to reinforce my view. I would endorse the observation in the Third Restatement of The Foreign Relations Law of the United States, published in 1986 by the American Law Institute, Volume 1, at 370, to the effect that: "A claim arising out of an alleged violation of fundamental human rights--for instance, a claim on behalf of a victim of torture or genocide--would (if otherwise sustainable) probably not be defeated by the act of state doctrine, since the accepted international law of human rights is well established and contemplates external scrutiny of such acts." But in adopting this formulation I would remove the word "probably" and substitute "generally." Finally, I must make clear that my conclusion does not involve the expression of any view on the interesting arguments on universality of jurisdiction in respect of certain international crimes and related jurisdictional questions. Those matters do not arise for decision.
I conclude that the act of state doctrine is inapplicable.
Conclusions
My Lords, since the hearing in the Divisional Court the case has in a number of ways been transformed. The nature of the case against General Pinochet is now far clearer. And the House has the benefit of valuable submissions from distinguished international lawyers. In the light of all the material now available I have been persuaded that the conclusion of the Divisional Court was wrong. For the reasons I have given I would allow the appeal.
LORD HOFFMANN
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead and for the reasons he gives I too would allow this appeal
- "He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorising action moves outside its competence under international law."
The essential fragility of the claim to immunity is underlined by the insistence on behalf of General Pinochet that it is not alleged that he "personally" committed any of the crimes. That means that he did not commit the crimes by his own hand. It is apparently conceded that if he personally tortured victims the position would be different. This distinction flies in the face of an elementary principle of law, shared by all civilized legal systems, that there is no distinction to be drawn between the man who strikes, and a man who orders another to strike. It is inconceivable that in enacting the Act of 1978 Parliament would have wished to rest the statutory immunity of a former Head of State on a different basis.
On behalf of General Pinochet it was submitted that acts by police, intelligence officers and military personnel are paradigm official acts. In this absolute form I do not accept the proposition. For example, why should what was allegedly done in secret in the torture chambers of Santiago on the orders of General Pinochet be regarded as official acts? Similarly, why should the murders and disappearances allegedly perpetrated by DINA in secret on the orders of General Pinochet be regarded as official acts? But, in any event, in none of these cases is the further essential requirement satisfied, viz. that in an international law sense these acts were part of the functions of a Head of State. The normative principles of international law do not require that such high crimes should be classified as acts performed in the exercise of the functions of a Head of State. For my part I am satisfied that as a matter of construction of the relevant statutory provisions the charges brought by Spain against General Pinochet are properly to be classified as conduct falling beyond the scope of his functions as Head of State. Qualitatively, what he is alleged to have done is no more to be categorized as acts undertaken in the exercise of the functions of a Head of State than the examples already given of a Head of State murdering his gardener or arranging the torture of his opponents for the sheer spectacle of it. It follows that in my view General Pinochet has no statutory immunity.
Counsel for General Pinochet further argued that if he is not entitled to statutory immunity, he is nevertheless entitled to immunity under customary international law. International law recognizes no such wider immunity in favour of a former Head of State. In any event, if there had been such an immunity under international law Section 20, read with Article 39(2), would have overridden it. General Pinochet is not entitled to an immunity of any kind. Thirdly, any act of state doctrine is displaced by Section 134(1) of the Criminal Justice Act 1988 in relation to torture and Section (1)(1) of the Taking of Hostages Act 1982 . Both Acts provide for the taking of jurisdiction over foreign governmental acts. Fourthly, and more broadly, the Spanish authorities have relied on crimes of genocide, torture, hostage taking and crimes against humanity. It has in my view been clearly established that by 1973 such acts were already condemned as high crimes by customary international law. In these circumstances it would be wrong for the English courts now to extend the act of state doctrine in a way which runs counter to the state of customary international law as it existed in 1973. Since the act of state doctrine depends on public policy as perceived by the courts in the forum at the time of the suit the developments since 1973 are also relevant and serve to reinforce my view. I would endorse the observation in the Third Restatement of The Foreign Relations Law of the United States, published in 1986 by the American Law Institute, Volume 1, at 370, to the effect that: "A claim arising out of an alleged violation of fundamental human rights--for instance, a claim on behalf of a victim of torture or genocide--would (if otherwise sustainable) probably not be defeated by the act of state doctrine, since the accepted international law of human rights is well established and contemplates external scrutiny of such acts." But in adopting this formulation I would remove the word "probably" and substitute "generally." Finally, I must make clear that my conclusion does not involve the expression of any view on the interesting arguments on universality of jurisdiction in respect of certain international crimes and related jurisdictional questions. Those matters do not arise for decision.
I conclude that the act of state doctrine is inapplicable.
Conclusions
My Lords, since the hearing in the Divisional Court the case has in a number of ways been transformed. The nature of the case against General Pinochet is now far clearer. And the House has the benefit of valuable submissions from distinguished international lawyers. In the light of all the material now available I have been persuaded that the conclusion of the Divisional Court was wrong. For the reasons I have given I would allow the appeal.
LORD HOFFMANN
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead and for the reasons he gives I too would allow this appeal
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