The Pinochet Precedent: Don't Leave Home Without It

NEIL BOISTER and RICHARD BURCHILL?

THE PINOCHETPRECEDENT: DON’T LEAVE HOME WITHOUT IT

Former heads of state who have allegedly committed international crimesmay have to reconsider visiting the United Kingdom after the decisions ofthe House of Lords inR.v. Bow Street Stipendiary Magistrate and others,ex parte Pinochet Ugarte (Amnesty international Intervening).1 The twodecisions were fraught with political implication and legal confusion. Inthe first, by a margin of three to two, the Law Lords found that GeneralAugusto Pinochet, Chile’s former head of state, does not have immunityfor crimes against humanity committed under his orders while he was inpower. Their reasons: torture and hostage-taking are not the functions ofa head of state and so an ex-head of state who directs these activitiesdoes not enjoy immunity from prosecution for such acts as violations ofinternational law. After their first decision was disqualified due to allegedbias, the Law Lords again found that Pinochet did not enjoy sovereignimmunity, but in this instance for a much more limited range of offences.Whatever the eventual fate of Pinochet it is highly unlikely he will serveany form of punitive sentence.2 However, these judgments appear to marka turning point in international law. The principle of sovereign immunity,expressed in the maximpar in parem non habet imperium, meaning thatone sovereign state does not adjudicate on the conduct of another, is nolonger impervious in national courts, at least in respect of former heads

? Neil Boister, B.A. (Natal, 1983), LL.B. (Natal, 1985), LL.M (Natal, 1988), Ph.D.(Nottingham, 1998); Richard Burchill, B.A. (Maine, 1993), M.A. (Hull, United Kingdom,1994), Ph.D. (Nottingham, 1999). The authors would like to thank Robert Cryer for hiscomments.

1 R.v. Bow Street Stipendiary Magistrate and others, exparte Pinochet Ugarte, [1998]4 All ER 897, [1998] 3 WLR 1456 (H.L.) (hereinafter “Pinochet, first appeal” – all refer-ences are to the All E.R.); andR.v. Bow Street Stipendiary Magistrate and others, expartePinochet Ugarte (Amnesty International and others intervening)(No. 3), [1999] 2 W.L.R.827, [1999] 2 All E.R. 97 (H.L.) (hereinafter “Pinochet, second appeal” – all referencesare to the W.L.R.). On the first appeal, see Hazel Fox,The First Pinochet Case: Immunityof a Former Head of State, 48 INT’ L & COMP. L. Q. 207.

2 If Pinochet is tried and convicted in Spain he will not serve a jail sentence as underSpanish law no person over the age of 75 may be incarcerated,The Guardian, December10, 1998 at 1.

Criminal Law Forum 10: 405–442, 1999.© 2000Kluwer Academic Publishers. Printed in the Netherlands.

406 NEIL BOISTER AND RICHARD BURCHILL

of state. If the example being made of Pinochet takes hold as precedentthen other former state leaders guilty of international crimes against theirown people will have to think twice before leaving the safety of their ownterritory, the place where, ironically, they are usually safest due to domesticamnesty provisions. The decisions also demonstrate that violations ofinternational law remain violations susceptible to prosecution regardlessof any domestic settlements that have been reached. But the Pinochet storybegins a lot earlier.

When he handed over power, Pinochet said:

No one is going to touch my people. The day they do, the state of law will come to an end.3

Pinochet took control of Chile on September 11, 1973, seizing power bymilitary force from the elected government of President Salvador Allendeon the justification that Chile was sliding towards communism. Pinochetruled the country as the Head of State of the Republic until he handed overpower to a civilian government on March 11, 1990. He became a senatorfor life and remained Commander in Chief of the armed forces until 1998.Allende and an estimated 5,000 other victims were killed during the courseof the coup and its immediate aftermath. During Pinochet’s rule thousandsof individuals were detained, tortured, executed or disappeared. From anearly stage, both the United Nations and the Organisation of AmericanStates identified the institutionalised practice of torture, ill-treatment, andarbitrary arrest by agents of the military government and documentedthese violations. The United Nations Ad-Hoc Working Group on Chileconcluded that cases of torture, as crimes against humanity, were subjectto international prosecution.4

The re-democratised Chile established a National Commission forTruth and Reconciliation in 1991. It found a total of 3,197 cases involvingdeath by torture, disappearance and execution that were officially attribut-able to Pinochet’s rule.5 However, a 1978 domestic amnesty protectingthose responsible for human rights violations during the coup gave

3 As quoted in AMERICAS WATCH, CHILE IN TRANSFORMATION: HUMAN RIGHTS

SINCE THE PLEBISCITE1988–89 73 (1989).4 G.A. Res. 3448(XXX).5 See generally: R.J. Quinn,Will the Rule of Law End? Challenging Grants of Amnesty

for the Human Rights Violations of Prior Regimes: Chile’s New Model, 62 FORDHAM

L. REV. 905 (1992); N. Roht-Arriaza, L. Gibson,The Developing Jurisprudence onAmnesty, 20 HUM. RTS. Q. 843 at 847–849 (1998). They note that the Commission wasnot permitted to identify living victims or those responsible or to recommend sanctions.According toThe Economist, Nov. 28, 1998 at 23, 2,095 extra-judicial executions anddeaths under torture and 1,102 disappearances were attributed to the intelligence serviceand the army under General Pinochet’s command by Chilean government investigations,while many other deaths were never accounted for.

THE PINOCHETPRECEDENT 407

Pinochet immunity. Moreover, Pinochet was made a senator giving himimmunity from prosecution unless rescinded by the Supreme Court.6 If hisimmunity as a senator were removed, the military tribunals, which consistof Pinochet’s former supporters and colleagues, would probably have juris-diction since Pinochet’s acts were committed as part of his military service.The result of any such trial, we suggest, would be fairly predictable. Since1992 there have been a number of attempts to reinterpret the amnesty lawwith out success and at present there are twelve cases before the Chileancourts concerning human rights violations committed by Pinochet andother members of his regime.7

I. THE PINOCHET SAGA IN THE ENGLISH COURTS

Pinochet arrived in the United Kingdom on September 22, 1998. He wasarrested in London in terms of two warrants issued by Bow Street Magis-trates dated October 16 and 22. The warrants were issued at the instance ofa Spanish judge, Baltasar Garzon.8 Relying on the obligations in the 1957European Convention on Extradition,9 to which both the United Kingdomand Spain are party, he requested Pinochet’s extradition on the basis ofalleged involvement in various crimes including incidents of hostage-taking, torture, conspiracy to torture, murder, and conspiracy to murderwith respect to approximately 4,000 people.10 Since then, similar extradi-tion requests have also been made to the United Kingdom by Switzerland,Belgium and France.

6 Decree Law 2191(April 18, 1978) gives impunity for events that occurred betweenSeptember 11, 1973 and March 10, 1978, the period when the bulk of crimes werecommitted. The Chilean amnesty has been challenged twice in the Supreme Court andboth times it has been considered constitutional –Insunza Bascunancase (May–August1990) andRoma Menacase (October 26, 1995). The Chilean amnesty has been found tobe incompatible with Chile’s human rights obligations under theAmerican Convention onHuman Rightsby the Inter-American Commission on Human Rights, see Annual Reportof the IACHR (1985/6) at 193 and more recently Report No. 25/98 (Chile), Annual Reportof the IACHR (1997) at 512.

7 SeeN. Roht-Ariazza and L. Gibson,supranote 5 at 848–849.8 Garzon is already responsible for proceedings in Spain dealing with individuals

accused of crimes against humanity during Argentina’s ‘dirty war’: N. Roht-Ariazza andL. Gibson,supranote 5 at 859.

9 (1957) 359 U.N.T.S. 273.10 An earlier request included charges of genocide as well.


Divisional Court of the Queen’s Bench Division

The arrest warrants were first examined by way of judicial review in theQueen’s Bench Division of the High Court.11 The primary objection tothe warrants was that Pinochet, as a former head of state, was immunefrom the criminal jurisdiction of the English courts for acts committedas head of state, a position with which the three justices agreed. In theHigh Court, Lord Bingham relied upon sovereign immunity to quashthe arrest warrants. He noted that English statute law, incorporating therelevant provisions of the 1961Vienna Convention on Diplomatic Rela-tions,12 grants immunity to heads of state, and that the authors of varioustexts consider this immunity to be absolute. Although he recognised thatinternational law has evolved so that certain international crimes no longerfall under the claim of immunity for a head of state, he felt that this evolu-tion remained “embryonic” and that there exists no practice or consensusfor a “universal acceptance of a definition of crimes against humanity”.He distinguished the removal of sovereignty by the international tribunalsat Nuremberg, The Hague and Arusha as relating to international andnot national prosecution. For recent authority he turned toAl-Adsaniv.Government of Kuwait,13 a civil action for torture brought against theKuwaiti Government in the English courts, where it had been held that theonly exceptions to sovereign immunity are those set out in the sectionsof the State Immunity Act 1978and that the legislature when passingthe statute had not intended to subject sovereign immunity to overridingqualification by international law. A very clear idea of the kind of thinkingwhich underpinned the judgment can be gleaned in the following excerptfrom the supporting speech of Mr Justice Collins:

The submission was made . . . that it could never be in the exercise of such functions tocommit crimes as serious as those allegedly committed by the appellant. Unfortunately,history shows that it has indeed on occasion been state policy to exterminate or to oppressparticular groups. One does not have to look very far back in history to see examples ofthat sort of thing having happened. There is in my judgment no justification for readingany limitation based on the nature of the crimes committed into the immunity whichexists.14

Although he ordered that the arrest warrant be quashed, Lord Binghamstayed the order. He allowed an appeal by the Commissioner of Policeand the Spanish Government to the House of Lords “having regard to the

11 R. v. Bartle, ex parte Pinochet, Divisional Court, Queen’s Bench Division, Oct. 28,1998, (1998) 37 I.L.M. 1302 (Bingham LCJ, Richards and Collins JJ).

12 (1961) 500 U.N.T.S. 95.13 (1996) 107 I.L.R. 536 (CA).14 Supranote 11 at para 80.


obvious public importance and international interest in the issue that hasbeen raised and argued”. But Lord Bingham was confident that his decisionwould not be overturned.15 The question certified for the House of Lordsto answer was as to “the proper interpretation and scope of the immunityenjoyed by a former head of state from arrest and extradition proceedingsin the United Kingdom in respect of acts committed when he was head ofstate”.16

The First Appeal to the House of Lords

At the first hearing the Lords agreed that, as a technical matter, Pinochethad been head of state in Chile and they agreed that as a matter of lawif he were still head of state he would have enjoyed absolute sovereignimmunity in terms of English legislation and English common law.17

What was at issue was whether former heads of state enjoyed absoluteimmunity. In answering this question the Law Lords split three to two,Lords Nicholson, Steyn and Hoffman concluding that he did not possesssovereign immunity, Lords Slynn and Lloyd concluding that he retainedimmunity.

Lord Slynn continued in much the same vein as Lord Bingham of theQueen’s Bench Division. He viewed English legislation18 and internationallaw19 as granting immunity to a sovereign who allegedly commits unlawfulacts while acting in an official capacity as head of state, and held that thisimmunity does not lapse when the sovereign ceases to be head of state.20

Again the crucial issue was whether absolute sovereign immunity had beenlimited by recent developments in international criminal law. Lord Slynnheld that international law may override this immunity when applied inthe state where the offences occurred or by an international tribunal, but itwas not a principle ofjus cogensthat sovereign immunity was necessarilyoverridden when the prosecution took place in another state’s courts.21 Hereasoned that in a dualist system like the United Kingdom’s, the with-

15 Ibid., at para 130.16 Ibid., at para 88.17 SeePinochet, first appeal,supranote 1, per Lord Nicholls at 938g and Lord Steyn at

943g.18 Primarily theState Immunity Act 1978and theDiplomatic Privileges Act 1964.19 The 1961 Vienna Convention on Diplomatic Relations(500 U.N.T.S. 95) and

customary international law.20 Pinochet(first appeal)supranote 1 at 904g–911d.21 Ibid., at 913b–g.


drawal of immunity would depend upon the particular crime and how ithad been transformed into English law.22

Lord Slynn noted that article 1 of the 1984Convention Against Tortureand other Cruel, Inhuman or Degrading Treatment or Punishment(the“Torture Convention”), incorporated into English law by section 134 oftheCriminal Justice Act 1988, refers to “public officials or persons actingin that capacity” as being open to prosecution.23 He argued that suchofficials do not include the sovereigns themselves because in interna-tional conventions specific reference is always made to heads of state inaddition to general reference to public officials. He thus concluded thatin the Torture Convention, “public official” did not include the head orformer head of state.24 Moving on, he noted that article 4 of the 1948Convention on the Prevention and Punishment of the Crime of Genocide(the “Genocide Convention”)25 which makes “constitutionally responsiblerulers” open to prosecution, has not been incorporated into theGenocideAct 1969. Finally, he observed that neither the 1979International Conven-tion Against the Taking of Hostages(the “Hostage-Taking Convention”)26

and theTaking of Hostages Act 1982removed sovereign immunity. LordSlynn thus concluded that while the removal of sovereign immunity maybe good in respect of public officials, it was not good in respect of the headof state.27 He called for the appeal to be dismissed.

Lord Lloyd agreed with Lord Slynn that customary international lawgranted immunity for acts of an official nature and that allegations oftorture and hostage-taking did not trump Pinochet’s immunity.28 He askedwhether Pinochet was entitled to immunity in terms of articles of the 1961Vienna Convention on Diplomatic Relations, incorporated in the scheduleof the Diplomatic Privileges Act 1964and applicable through the opera-tion of part 3 of theState Immunity Act 1978. He held that article 39(2)’sreference to “official acts performed by him in the exercise of his functionsas head of state” included the acts with which Pinochet was being chargedand that sovereign immunity applied.29 He reasoned that the only line that

22 Ibid., at 915c–e.23 Section 134(1) of theCriminal Justice Act 1988reads in full “A public official or

person acting in an official capacity, whatever his nationality, commits the offence oftorture if in the United Kingdom or elsewhere he intentionally inflicts severe pain orsuffering on another in the performance or purported performance of his official duties.”

24 Pinochet, first appeal,supranote 1 at 916h–917g.25 (1951) 78 U.N.T.S. 277.26 (1979) 1316 U.N.T.S. 205.27 Pinochet, first appeal,supranote 1 at 917.28 Ibid., at 929g.29 Ibid., at 933h.


could be drawn was between private and public acts and that by their verynature crimes carried out through the organs of state and in co-operationwith other states were public acts to which immunity applied. Lord Lloydwas not convinced by arguments distinguishing the offences charged basedon their gravity. Finally, applying the act of state doctrine, he felt thatdue to the political controversy surrounding the whole affair, the UnitedKingdom courts should not take jurisdiction in this matter or they wouldbe caught in the crossfire between Spain and Chile.30 It was a matter bestleft to the executive.

The scheme of both dissenting judgments is simple. Lords Slynn andLloyd did not completely resurrect the pre-Nuremberg principle of interna-tional law that a former head of state is immune from prosecution for anyoffence in any tribunal other than in his own state. They limited the directexclusion of immunity by international law to international tribunals andheld that the removal of immunity in a national tribunal is solely a questionof domestic law, whether or not such domestic law is indirectly appliedinternational law. On this basis they found that sovereign immunity hasnot yet been removed from English domestic law.

By contrast, the majority clearly supported the removal of sovereignimmunity. Lord Nicholls, with whom Lord Hoffman concurred, dismissedLord Bingham’s reliance in the Divisional Court onAl-Adsaniv. Govern-ment of Kuwaitbecause it concerned civil proceedings “not relevant tothe present case”.31 He dispensed with Lord Lloyd’s argument that theissue was a non-justiciable act of state by holding that it must yield tothe contrary intention of Parliament as expressed in legislation.32. LordNicholls held that Parliament’s enactment of statutes such as theCriminalJustice Act 1988, incorporating theTorture Convention33 and theTaking ofHostages Act 1982, incorporating theHostage-Taking Convention,34 madeit “clear that prosecution will require an investigation into the conduct ofofficials acting in an official capacity in foreign countries”.35 With regardsto the personal immunity of Pinochet as a head of state, Lord Nichollsconfirmed that section 20 of theState Immunity Act 1978, and articles 31and 39 of the 1961Vienna Convention on Diplomatic Relationsconfer

30 Ibid., at 934g.31 Ibid., at 937d. He also dismissed the similar reasoning used by the United States

Supreme Court inArgentinav. Amerada Hess Shipping Corp., 488 U.S. 428 (1989).32 Pinochet, first appeal,supranote 1 at 938a.33 Section 134(1) of theAct incorporates the crimes of torture as set out in articles 5 and

7 of theTorture Convention.34 TheAct incorporates the offences in articles 5 and 8 of theHostage-Taking Conven-

tion.35 Pinochet, first appeal,supranote 1 at 938b.


immunity on acting heads of state in respect of all actions, while formerheads of state only enjoy immunity “in respect of acts performed in theexercise of functions which international law recognises as functions ofa head of state”.36 Contrary to the Divisional Court, which had held thatacts of torture and hostage-taking charged against Pinochet were done inthe exercise of his official functions, and thus under the colour of stateauthority which should be respected by the United Kingdom as a matter ofcomity, Lord Nicholls concluded that “it hardly needs saying that tortureof his own subjects, or of aliens, would not be regarded by internationallaw as a function of a head of state”.37 Finally, Lord Nicholls notedthat even if a residual sovereign immunity existed in customary interna-tional law it would not protect Pinochet from international treaty law thatmakes it clear that states are obliged to prosecute or extradite torturers andhostage-takers.38

Lord Steyn supported this position. After examining the convoluteddomestic legislation he synthesised the following principle applicable inthis case:

A former head of state shall enjoy immunity from the criminal justice of the UnitedKingdom with respect to his official acts performed in the exercise of his functions ashead of state.39

Lord Steyn then reviewed Lord Bingham’s approach in the DivisionalCourt to the point at which the law draws the line between official andunofficial acts – in effect between immunity and accountability. He criti-cised the conclusions drawn by Lord Bingham and Collins J. that evenwhen it comes to torture head of state immunity prevails by showing howthis sort of reasoning would lead to the conclusion that the crimes perpe-trated by Hitler would come under official acts thereby offering immunity.Lord Steyn pointed out:

If a Head of State kills his gardener in a fit of rage that could by no stretch of the imagina-tion be described as an act performed in the exercise of his functions as Head of State.If a Head of State orders victims to be tortured in his presence for the sole purpose ofenjoying the spectacle of the pitiful twitchings of victims dying in agony. . . that could notbe described as acts undertaken by him in the exercise of his functions as Head of State.40

Lord Steyn reasoned that the concept of an individual performing thefunctions of the head of state implied that there are actions not included

36 Ibid., at 939g.37 Ibid., at 939h.38 Ibid., at 941 generally.39 Ibid., at 944f.40 Ibid., at 945d–e.


within such functions. A meaningful line had to be drawn. How it wasto be drawn did not depend on Chilean law but on international law. Heheld that international law had developed to the extent that by the timethe Chilean coup was staged in 1973, torture and hostage-taking and othercrimes against humanity could not be acts performed in the exercise ofthe functions of a head of state.41 However, Lord Steyn’s construction ofthe facts was quite narrow. He found that Pinochet was, like the head ofstate that kills or tortures his gardener, allegedly guilty of private crimes forwhich he did not enjoy sovereign immunity. In Lord Steyn’s view, Pinochetwas unable to rely on sovereign immunity because agents of the ChileanSecret Service committed acts of torture under his direct orders; he wasunable to do so because of his personal rather than constructive criminalresponsibility.42

Looking beyond immunity in English statute law, Lord Steyn heldthat there was no general immunity under customary international laweither, as it had been overridden by convention and statute.43 Finally, withregard to the act of state doctrine, his Lordship concluded that argumentsrelated to the impact of the proceedings before the United Kingdom courtshaving detrimental effects in Chile and past “acquiescence” of the UnitedKingdom with regards to Pinochet were irrelevant to the House of Lords’decision in this matter. International human rights law demanded externalscrutiny of these matters and generally overrode the act of state doctrine.44

It is the majority’s assessment of the impact of international criminallaw on the exclusion of immunity, which marks the first hesitant stepaway from past domestic practice in the United Kingdom. Shortly afterthe successful appeal to the House of Lords, the Home Secretary author-ised extradition proceedings. However, Pinochet’s lawyers challenged theoriginal appeal decision charging bias on the part of Lord Hoffman. Hehad sat without disclosing his connections to Amnesty International whichhad intervened in the first hearing and was deemed to be a party to thecase. This created an appearance of bias, Lord Hoffmann being considereda judge in his own cause because he shared the same goals as AmnestyInternational concerning the fate of Pinochet. A new panel of the House

41 Ibid., at 945j.42 Ibid., at 943d–e. Hazel Fox,supranote 1 at 214, points out that this finding on the

facts considerably narrows theratio of the case. It implies that personal involvement isnecessary to remove the cloak of immunity and that there exist offences which are notprivate crimes but which can be considered part of the functions of a head of state.

43 Pinochet, first appeal,supranote 1 at 946d.44 Ibid., at 947e–f. Here he approves of the observation in the American Law Institute’s

1 Third Restatement of the Foreign Relations Law of the United States370 (1986), exceptthat he substitutes “generally” for “probably”.


of Lords, chaired by Lord Browne-Wilkinson, set aside the order, allowingfor a second appeal to the Law Lords on the question of immunity.45

The Second Appeal to the House of Lords

At the rehearing, to which Spain submitted a much-expanded list ofextraditable offences, the Lords voted six to one that Pinochet did nothave immunity. However, the decision applied only to offences that werecommitted after the alleged crimes were enacted in English law.46 Thisdramatically reduced the number of charges against Pinochet as the firstdate of such enactment was in 1988.

The major distinction between the first and second hearing of the Houseof Lords was the emphasis the majority in the second appeal placed ondouble criminality. The principle of double criminality holds that for extra-dition to be possible the offence must be a crime in both the requestingand requested states and that both states must be able to take jurisdictionover it on the same basis.47 The majority in the first appeal made littlespecific reference to the crimes Pinochet was charged with, and simplyassumed that once domestic law removed immunity it did so for all inter-national crimes committed anywhere at any time. No reference was madeto whether the crimes alleged had in fact been transformed into Englishlaw when the alleged actions were carried out. But in the second appeal,because the appellants had tried to extend backwards the period duringwhich the crimes charged were alleged to have been committed to thepre-coup stage, the respondents had replied that this was prevented by thedouble criminality rule, and the Lords seized upon the issue.48

Lord Browne-Wilkinson gave the key speech for the majority. In hisview, double criminality meant that the conduct for which Pinochet was

45 R. v. Bow Street Stipendiary Magistrate and others, ex parte Pinochet Ugarte(No.2), [1999] All E.R. 577 (H.L.). Lords Browne-Wilkinson, Goff, Nolan, Hope, and Hutton.See: Timothy Jones,Judicial Bias and Disqualification in the Pinochet Case, 1999 PUBLIC

LAW 391.46 Pinochet, second appeal,supranote 1. Lords Browne-Wilkinson, Goff, Hope, Phil-

lips, Hutton and Saville required the alleged conduct be a crime in both requesting andrequested state (the latter at the time the offence was carried out), while Lord Millet rejectedthis requirement.

47 See generally Lech Gardocki,Double Criminality in Extradition Law, 1&2 Israel L.Rev. 288 (1993).

48 The issue of double criminality should properly have been raised at a further appealfrom the granting of an extradition order once the sovereign immunity issue had beensettled because technically the question on appeal to be answered by the House of Lordswas solely whether Pinochet retained his immunity. As it was raised here, no further appealis likely to be permitted on this ground.


going to be extradited had to be criminal in both Spain and the UnitedKingdom.49 The schedule of offences for which Pinochet’s extradition wasrequested was by this stage quite detailed.50 The first issue Lord Browne-Wilkinson decided was whether the date at which double criminality hadto apply under the provisions of theExtradition Act 1989was the date atwhich the conduct became criminal under United Kingdom law or the datewhen the extradition request was made. He noted that the different typesof extradition contemplated by theActall contemplated extradition only ifthe conduct was a crime in the United Kingdom on the date the conductoccurred.51 As a result, and as Lord Hope demonstrated in his speech,all the charges of torture or conspiracy to torture relating to conductthat occurred before September 29, 1988, the date on which theTortureConvention, incorporated into English law by section 134 of theCriminalJustice Act 1988, came into effect, were not extraditable. Thus the issue ofwhether a former head of state was entitled to sovereign immunity appliedto the few charges where the conduct occurred after September 29, 1988.52

The appeal turned on whether Pinochet enjoyed sovereign immunity inrespect of these few charges.

To address the issue of immunity regarding the remaining charges, LordBrowne-Wilkinson turned his attention to the law of torture. Althoughhe based most of his decision on the narrow application of the UnitedKingdom’s treaty obligations in its domestic law, he did make contra-dictory statements about the status of torture as ajus cogensprohibition,that is, a peremptory norm from which no deviation is permitted.53 He was

49 Pinochet, second appeal,supranote 1 at 832G.50 Lord Hope sets out the schedule in detail,ibid., at 866–889. Briefly, it included:

charges 1, 2, 5 – conspiracy to torture between 1/1/1972 and 20/9/1973 and between1/8/1973–1/1/1990; charge 3 – conspiracy to take hostages between 1/7/1973–1/1/1990;charge 4 – conspiracy to torture in furtherance of which murder was committed in variouscountries including Italy, France, Spain, and Portugal between 1/1/1972–1/1/1990; charges6 and 8 – torture between 1/8/1973 and 8/8/1973 and on 11/9/1973; charges 9 and 12 –conspiracy to murder in Spain between 1/1/1975–31/12/1976 and in Italy on 6/10/1975;charges 10 and 11 – attempted murder in Italy on 6/10/1975; charges 13–29 and 31–32– torture on various occasions between 11/9/1973 and May 1977; charge 30 – torture onJune 24, 1989.

51 Ibid., at 838E to 839E.52 Ibid., at 839H–840D. According to Lord Hope, these included the parts of conspiracy

to torture in charges 2 and 4 that related to actions taken after the relevant date and thewhole of charge 30. Charge 3, the hostage-taking allegation, was held not to disclose anoffence under theTaking of Hostages Act 1982. Charge 9 – the conspiracy in Spain tocommit murder in Spain and charge 4 – the conspiracy in Spain prior to September 29,1988 to commit acts of murder and torture in Spain – were extradition crimes.

53 Ibid., at 840–842.


in no doubt that state torture was an international crime “in the highestsense” long before the conclusion of the 1984Torture Convention.54 Henoted that torture on a large scale has been a crime against humanity since1945,55 observing that Chile accepted the prohibition on torture asjuscogens.56 This status, Lord Browne-Wilkinson argued, justified states “intaking universal jurisdiction over torture wherever committed”, because,citing Demjanjuk v. Petrovsky,57 alleged offenders were the “commonenemies of all mankind and all nations have an equal interest in theirapprehension and prosecution”.58 It is apparent that he regarded torture as acrime in customary international law. But he seemed to feel that the conclu-sion and application of theTorture Conventionwere absolutely necessarybefore a United Kingdom court could take jurisdiction over torture. Afterpointing out that there was no international tribunal to punish internationalcrimes of torture, Lord Browne-Wilkinson noted that although local courtscould take jurisdiction,59 that was not enough in this instance: “The TortureConvention was agreed not to create an international crime which had notpreviously existed but to provide an international system under which theinternational criminal – the torturer – could find no safe haven.”60

He thus confined himself to an examination of theTorture Conventionand its application in the United Kingdom in order to decide whetherPinochet, as a former head of state, enjoyed sovereign immunity for theseoffences. He decided that a head of state could be classified as a “publicofficial” for the purposes of article 1 of theTorture Conventionand section134 of theCriminal Justice Act 1988.61 Faced with theTorture Conven-tion’s silence on immunity, he turned to the obligations it imposed. LordBrowne-Wilkinson noted that it incorporated an unqualified duty to eitherextradite or punish a torturer found within a state’s territory and thus

54 Ibid., at 841F.55 Ibid., at 841A. He cited in support: General Assembly Resolutions 3059, 3452 and

3453, adopted in 1973 and 1975; article 5 of theStatute of the International CriminalTribunal for the Former Yugoslavia, U.N. Doc. S/RES/827, annex (1993); article 3 ofthe Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955,annex (1994);Prosecutorv. Furundzija(Case no. IT-95-17/1-T), Judgment, Dec. 10, 1998,(1999) 38 I.L.M.317.

56 Pinochet, second appeal,supranote 1 at 841B.57 (1985) 603 F.Supp. 1468, 776 F.2d 571.58 Pinochet, second appeal,supranote 1 at 841E.59 Ibid., at 841G, citingDemjanjukandAttorney-General of Israelv. Eichmann, (1968)

36 I.L.R. 5 (District Court, Jerusalem).60 Pinochet, second appeal,supranote 1 at 842B.61 Ibid., at 842H–843G. Article 1 of theConventiondefines torture as the infliction or

instigation of severe pain for a wide range of purposes by such a “public official”.


applied universal jurisdiction to torture.62 He also noted that all three statesinvolved, the United Kingdom, Spain and Chile, are parties to theTortureConvention.63

After observing that acting heads of state enjoyed sovereign immunityratione personae, that is, blanket personal immunity from civil and crim-inal liability, Lord Browne-Wilkinson held that former heads of stateenjoyed only immunityratione materiaewith respect to civil and criminalimmunity for official actions performed when in office.64 He overcamethe apparent hurdle of section 20(1) of theState Immunity Act 1978,which provides that “subject to . . . any necessary modifications, theDiplo-matic Privileges Act 1964shall apply to (a) a sovereign or head of state”,by holding that the protections granted could not be greater than thosealready enjoyed under international law by former heads of state, and thusthe “necessary modifications” will result in a former head of state beinggranted at the most immunityratione materiae. Thus, Pinochet as a formerhead of state only enjoyed immunity for acts that were part of his officialfunctions as head of state.65 Lord Browne Wilkinson believed that torture,“an international crime against humanity andjus cogens”, could not bean official act.66 This statement appears to suggest that the exclusion ofimmunity is based upon customary international law, and the evidenceused to support it is the attribution of personal criminal liability by interna-tional law.67 In the same breath he held that the “implementation of tortureas defined by theTorture Conventioncannot be a state function”68 whichsuggests that what is being discussed is the implied removal of immunityin treaty based crimes like torture. He soon revealed his thinking:

I have doubts whether, before the coming into force of the Torture Convention, the exist-ence of the international crime of torture asjus cogenswas enough to justify the conclusionthat the organisation of state torture could not rank for immunity purposes as performanceof an official function. At that stage there was no international tribunal to punish tortureand no general jurisdiction to permit or require its punishment in domestic courts. Not untilthere was some form of universal jurisdiction for the punishment of the crime of torturecould it be talked about as a fully constituted international crime. But in my judgmentthe Torture Convention did provide what was missing: a worldwide universal jurisdiction.

62 Ibid., at 843G. Article 5 provides for the establishment of extra-territorial jurisdiction,article 7 for theaut dedere aut punireobligation and article 8 for extradition.

63 Ibid., at 844A.64 Ibid., at 844–845.65 Ibid., at 846B.66 Ibid., at 846D.67 Ibid., at 846E–G, citing as authority Sir Arthur Watts,The Legal Position in Inter-

national Law of Heads of States, Heads of Governments and Foreign Ministers, 247R.C.A.D.I. 82 (1994–III).

68 Ibid.


Further it required all member states to ban and outlaw torture: article 2. How can it befor international law purposes an official function to do something which international lawitself prohibits and criminalises? Thirdly, an essential feature of the international crimeof torture is that it must be committed “by or with the acquiescence of a public official orother person acting in an official capacity”. As a result all defendants in torture cases will bestate officials. Yet, if the former head of state has immunity, the man most responsible willescape liability while his inferiors (the chiefs of police, junior army officers) who carriedout his orders will be liable. I find it impossible to accept that this was the intention.69

Finally Lord Browne-Wilkinson pointed out the absurdity of creating aconvention which applies to officials, but then grants immunityrationemateriaeto all officials (since sovereign immunity would logically extendto all officials) for official acts.70 These factors together resulted in LordBrowne-Wilkinson holding that continued immunity for the ex-head ofstate was not consistent with the provisions of theTorture Convention.

Lord Goff was the only dissenting voice of the seven judges who satin the second appeal. He accepted that double criminality had reducedthe number of charges very significantly, but he agreed with the analysisof Lord Slynn in the first appeal that none of the treaties relevant to theremaining charges against Pinochet either expressly or impliedly removedthe “long established immunity of former heads of state”.71 He held thattheState Immunity Act 1978governed this issue completely in English law.Section 20(1) provides that theDiplomatic Privileges Act 1964, meaningin effect theVienna Convention on Diplomatic Relationsapplied to ahead of state with any “necessary modifications”. In his view, this meantimmunity granted under customary international law.72 Lord Goff held thatthe commission by a former head of state of a serious crime does notremove this immunity. While he acknowledged that international law hadapplied personal responsibility to heads of state for certain internationalcrimes, he argued first that it was not settled that systematic torture wasa crime against humanity until the 1990s. Second, he declared that thevarious instruments establishing that torture was a crime were concernedwith responsibility before international tribunals and not with the exclu-sion of sovereign immunity before national courts. He concluded that ifimmunity had been removed in respect of crimes of torture before nationalcourts it had to have been removed in theTorture Conventionitself.73

Lord Goff agreed with counsel for Chile that a state’s waiver ofimmunity in a treaty had to be express and could not be implied. For

69 Ibid., at 847C–E.70 Ibid., at 847G–H.71 Ibid., at 849H.72 Ibid., at 852B.73 Ibid., at 852F–853G.


support he relied onArgentine Republicv. Amerada Hess ShippingCorporation,74 where Rehnquist C.J. had said that “[n]or do we seehow a foreign state can waive immunity . . . by signing an internationalagreement that contains no mention of a waiver of immunity to suit inUnited States courts . . . ” In addition, Lord Goff relied upon statements inOppenheim’s International Law75 and theReport of the International LawCommission on the Jurisdictional Immunities of States and Their Prop-erty.76 He believed that English law, in the shape of theState ImmunityAct 1978, preserved immunity unless it was expressly waived. TheTortureConventionwas silent on this point.

Lord Goff then confronted the circuitous argument of the appellantsthat states parties to theTorture Conventiondid not agree to a waiver ofsovereign immunity but did agree that torture was no longer an act whichcould be classified as a public function and thus subject to immunity. Heargued that the requirement of express removal of immunity could not becircumvented in this way because the meaning of governmental functionsfor the purposes of immunity was settled. It included criminal actions andcould not be changed, even in respect of international crimes like torture,unless changed expressly.77 He reasoned that given the confused processof its adoption the text of theTorture Conventionwas the only safe guide toits terms and noted that thetravaux preparatoiresdid not throw any lighton such an implied term.78 He also argued that theTorture Conventionwasnot incompatible with the retention of immunity because in most casesit would not arise as prosecution would be territorial, and even where itdid occur abroad an assertion of immunity was unlikely.79 He said therewas nothing in theConventionor the travauxabout removing immunitybecause states must have thought it necessary to retain sovereign immunityfor a variety of compelling reasons. Included among these were the easeof extradition withoutprima facieevidence for a single act of torture, thepossible use of such extradition for misguided or malicious or mistakenpurposes against the former heads of states of powerful countries withmany enemies, or the extradition of a public official such as a policeman“on the ground that he or she has acquiesced in a single act of physicalor mental torture”.80 Lord Goff believed that sovereign immunity was

74 109 S. Ct. 683 at 693 (1989).75 OPPENHEIM’ S INTERNATIONAL LAW 351–355 (Sir Robert Jennings and Sir Arthur

Watts, eds., 9th ed., 1992).76 Yearbook. . . 1991, Vol. II, Part. 2.77 Pinochet, second appeal,supranote 1 at 859B–D.78 Ibid., at 859G–860H.79 Ibid., at 860D.80 Ibid., at 860H–861G.


retained in order to get widespread adherence to theTorture Conventionand its removal was not mentioned in thetravauxbecause it never crossedthe authors’ minds that it would be implied due to the grave difficultiesassociated with such removal.81 He concluded that the fact that the issuehad not been raised until now suggested that it was not an issue.82

Lord Hope’s task was to analyse whether the charges alleged againstPinochet, which had been amplified by the Spanish Government in theinterval between appeals,83 were extradition crimes in terms of theExtradi-tion Act 1989. Spain alleged that Pinochet was responsible for a continuingconspiracy to commit widespread and systematic torture and murder inorder to take and maintain control of the Chilean government.84 Lord Hoperuled out hostage-taking because he considered that what had occurred inChile was not hostage-taking but torture.85 The key extraditable offenceswere mainly conspiracies to torture under section 134 of theCriminalJustice Act, applying theTorture Convention. Importantly, however, to beextraditable, acts of torture or conspiracies to commit torture would, due todouble criminality, have to have been committed after September 29, 1988when section 134 of theCriminal Justice Act 1988entered into force. Thusall the allegations involving the most intense period of oppression in Chile,the years 1973 and 1974, fell away.

Lord Hope took the view, as had Lord Goff, that even criminal actionsfell within the functions of a head of state unless they were private actionssuch as the example given by Lord Steyn in the first appeal of the headof state who kills his gardener in a fit of rage.86 There was in his opinionno general agreement that all international crimes fell outside immunity.It appears he believed that immunity had only been clearly withdrawnfrom crimes against humanity and war crimes, and only before interna-tional tribunals. Before national courts there was in his opinion no generalrecognition of the loss of immunity.

Following Lord Slynn’s approach in the first appeal he then turnedto the Torture Conventionto discover whether it had removed suchimmunity.87 Content that the authors of theConventiondid not contem-plate such removal, that theConventionincluded broadly defined andisolated acts that would not have been agreed to by heads of state aware

81 Ibid., at 862G.82 Ibid., at 863G.83 Further particulars were supplied in terms of article 13 of theEuropean Convention

on Extradition, supranote 9.84 Pinochet, second appeal,supranote 1 at 868F.85 Ibid., at 870F–871G.86 Ibid., at 881E–G.87 Ibid., at 882A–D.


of potential risks, Lord Hope concluded that there was no implied removalof immunity in theTorture Convention.88 There nevertheless remained theissue of whether sovereign immunity applied to torture when it was soserious that it amounted to an international crime. He outlined the scope ofcrimes against humanity as set out in article 5 of theStatute of the Interna-tional Criminal Tribunal for the Former Yugoslavia, article 3 of theStatuteof the International Criminal Tribunal for Rwandaand article 7 of theRome Statute of the International Criminal Court.89 These made it clear,in his view, that crimes against humanity included torture when committedas part of a widespread and systematic attack against any civilian popula-tion.90 Lord Hope concluded that the allegations that the Spanish judicialauthorities had made against Pinochet fell into that category because theyalleged his involvement in the pursuit of a policy to commit systematictorture within Chile and elsewhere as a policy of government.91 It thenbecame a question of the point at which the practice supporting the classi-fication of systematic torture became settled in customary internationallaw. Lord Hope opined that the United States Federal Court’s decision inSiderman de Blakev. Republic of Argentina92 was persuasive authority thatthe prohibition of official torture was ajus cogensnorm. But for him theclincher was the conclusion of theTorture Conventionitself:

In my opinion, once the machinery which it provides was put in place to enable jurisdictionover such crimes to be exercised in the courts of a foreign state it was no longer open to anystate which was a signatory to the Convention to invoke the immunityratione materiaeinthe event of allegations of systematic or widespread torture committed after that date beingmade in courts of that state against its official or any other person acting in an officialcapacity.93

He noted that he was neither relying on a waiver nor an implied term intheTorture Conventionbut upon a confirmation of obligations establishedunder customary international law by the time Chile ratified theConven-tion. Immunity was lost in his view when Chile’s ratification took effect onOctober 30, 1988 and Chile was deprived of the right to object to the extra-territorial jurisdiction of the United Kingdom, although he accepted thatChile may have had immunity until December 8, 1988 when the UnitedKingdom ratified the Convention.94

88 Ibid., at 884H–885E.89 U.N. Doc. A/CONF.183/9, July 17, 1998.90 Pinochet, second appeal,supranote 1 at 885G–H.91 Ibid., at 886B.92 965 F.2d 699 at 714–718.93 Pinochet, second appeal,supranote 1 at 886E.94 Ibid., at 886H–887C.


Lord Hutton’s speech considered the issue of individual responsibilityfor acts committed by a former head of state in violation of internationallaw. He traced this development from article 7 of theNuremberg Charterto the Rome Statute of the International Criminal Courtand concludedthat there was “a clear recognition by the international community thatcertain crimes are so grave and so inhuman that they constitute crimesagainst international law and that the international community is undera duty to bring to justice a person who commits such crimes”.95 LordHutton sided with the majority view that Pinochet could not be extraditedfor crimes committed before September 29, 1988, the date the UnitedKingdom signed theConvention, not because torture was not a crime butonly because the domestic courts were not empowered by statute to act inthis regard.96 In Lord Hutton’s view it did not matter whether Pinochet wasresponsible for a single act of torture or torture on a large-scale, any act oftorture by a public official is a crime under international law.97

Lord Saville viewed customary international law and section 20 of theState Immunity Act 1978as providing former heads of state with immunityratione materiaein respect of actions performed in an official capacity.98

His problem was that prior to the application of theTorture Conven-tion there was no law in force domestically allowing for prosecution orthe removal of immunity.99 Adoption of theConventionchanged this bysetting up “a scheme” where states parties were under an obligation toeither prosecute or extradite alleged torturers within their jurisdiction.100

By the terms of theConventionimmunity ratione materiaecould no longerbe claimed by a former head of state as theConventionapplied to acts oftorture inflicted or instigated by a public official or person acting in anofficial capacity.101

Lord Millett provided a substantial dissenting view not on the issue ofimmunity, but on the issue of double criminality. He did not agree withthe majority that the jurisdiction of the English courts for the crime oftorture only extends from 1988 when the United Kingdom incorporated theTorture Conventioninto domestic law. He believed that if a crime infringedjus cogensunder international law and was so serious as to be regarded asan attack on the international order “every state is entitled to investigate,

95 Ibid., at 897E.96 Ibid., at 898E.97 Ibid., at 901B.98 Ibid., at 902G.99 Ibid., at 903A.

100 Ibid., at 903B.101 Ibid., at 904A–E.


prosecute, and punish or extradite individuals accused of torture who arepresent in a territory under its jurisdiction”.102 In short, Lord Millet feltthat torture had the necessary status as an international crime to enable acourt of the United Kingdom to take jurisdiction prior to the conclusion oftheConvention.

Although his inquiry reached back to the early 1800s,103 he observedthat the issue of immunity concerning violations ofjus cogensnormsand the application of universal jurisdiction by municipal courts waslargely academic prior to Nuremberg.104 Lord Millett viewed the Nurem-berg Tribunal as important in two respects. It completely rejected allpleas of state immunity as a defence and confirmed that individualscould be criminally responsible for war crimes and crimes against thepeace in domestic courts.105 Furthermore, following General AssemblyResolution 95(I), confirming theNuremberg Charter, the application ofextra-territorial jurisdiction became accepted: although “it was assumedthat the trial would normally take place in the territory where the crimeswere committed, it was not suggested that this was the only place wherethe trial could take place”.106

Lord Millett expanded the underlying principles of Nuremberg toaccommodate the particulars of the present case. The Nuremberg Tribunalhad jurisdiction over crimes against humanity if they were war crimesor crimes against the peace. This “restriction”, he felt, was due to timeperiod and not any substantive rule of international law for “[a]s thememory of war receded, it was abandoned”.107 As part of this develop-ment it became necessary to distinguish between international crimes andordinary domestic offences. Lord Millett followed the International LawCommission’s proposal that international crimes are those “committedat the instigation or the toleration of state authorities”.108 In his viewthis distinction was adopted by theTorture Conventionand provided animportant aspect of immunityratione materiaeas the nature of the act

102 Ibid., at 911G.103 He referred toSchooner Exchangev. M’Faddon, (1812) 11 U.S. (7 Cranch). He citesS. Glueck,The Nuremberg Trial and Aggressive War, 59 HARV. L. REV. 396 at 426 (1946),and Hersch Lauterpacht,The Subjects of the Law of Nations, 63 L. Q. REV. 438 (1947), asbeing among those who believed that the judgment implied that “no member of the familyof nations will order its agents to commit flagrant violations of international and criminallaw”.104 Pinochet, second appeal,supranote 1 at 908A.105 Ibid., at 908F–H.106 Ibid., at 908H.107 Ibid., at 909A–B.108 Ibid., at 909D.


which gives rise to the immunity claim “was now to be the essentialelement which made the act an international crime”.109

Lord Millett turned to theEichmanncase,110 noting that the means bywhich Eichmann was brought to Israel has been criticised by academicsbut that “Israel’s right to assert jurisdiction over the offences has neverbeen questioned”.111 In Eichmannthe Supreme Court of Israel concludedthat there is no rule of international law prohibiting a state from tryinga foreign national for acts committed outside its borders. Lord Millettagreed, observing that the only limiting factor for the exercise of extra-territorial jurisdiction is that the accused be in the forum state.112 LordMillett approved of the Israeli court’s reliance on customary internationallaw as the unwritten law of Israel and of its dictum that jurisdiction was notdependant upon statute. Lord Millet held that English courts have alwayshad extra-territorial jurisdiction over international crimes because customis part of the common law and the common law supplements statute.113

Thus, courts in the United Kingdom have had jurisdiction over the crimeof torture at least since 1973, when Pinochet executed his coup and thatjurisdiction could be exercised extra-territorially.114 But Lord Millett wasalone in his willingness to extradite Pinochet for pre-1988 offences.

II. THE CRITIQUE

The entire Pinochet affair before the English courts raises numerous issuesof law and practice that commentators will undoubtedly be discussing wellinto the future. The situation is complicated by the number of hearingswhich have been held. At the time of writing there exist no less than twelveindividual opinions provided by the highest court in the United Kingdomon the matter of the extradition of Pinochet. Even if we omit the first orderof the House of Lords, there remain seven distinct opinions on a range ofquestions relating to torture and state immunity.

109 Ibid., at 909D–C.110 Attorney-General of Israelv. Eichmann, (1968) 36 I.L.R. 5 (District Court, Jeru-salem).111 Pinochet, second appeal,supranote 1 at 909E–F.112 Ibid., at 910A–B.113 Ibid., at 912B.114 Ibid., at 912E.

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TABLE I

Analysis of opinions of the Law Lords inPinochet, second appeal

Browne- Goff Hope Hutton Saville Millett Phillips

Wilkinson

Is torturejus cogens? Yes No – implied Silent Yes Appears supportive, Yes Silentnot expressed but not clear

Is conventional application necessary Yes Yes Yes Yes Yes No Yesbefore the United Kingdom canestablish jurisdiction?

Does customary international law Uncertain No No Uncertain Silent Yes Uncertainwithdraw immunity for allinternational crimes, regardlessof the forum?

Does theTorture Convention Silent No No Silent Silent Silent Silentimpliedly withdraw immunity?

Is immunity withdrawn because it is Yes No Silent Yes Yes Yes – implied Yesinconsistent with theTorture not expressedConvention’s definition of tortureas an “official act”?

Is immunity only withdrawn in Silent No Yes Silent – implied Silent Yes Silentrespect of systematic torture support?– a crime against humanity?

Does immunity remain intact in No Yes No No No No Noa domestic forum?


English Judges and International Law

Table I shows that six out of seven Law Lords felt that the conclusion oftheTorture Conventionwas necessary before immunity could be removed.Only one Law Lord felt that customary international law was sufficientfor this purpose. However, many of the same judges felt that torture was ajus cogensnorm. When Lord Browne-Wilkinson, among others, acceptedthat the prohibition on torture wasjus cogens, why then did he not relyon customary international law to apply this crime in the law of theUnited Kingdom? If he had done so he would have avoided the restric-tion placed by the principle of double criminality on charges availableagainst Pinochet and particularly the issue concerning the date on whichtheTorture Conventionwas first applied in United Kingdom law. He wouldhave rendered Pinochet extraditable for the full range of offences allegedagainst him.

There is nothing in the provisions of section 2 of theExtradition Act1989 stipulating that offences under customary international law cannotqualify as extraditable offences.115 Admittedly, the use of customary inter-national law in the English courts has a rather chequered history. Theconservative view had long been that international law only applied inEnglish law when Parliament allowed it to be applied and only to theextent dictated.116 However, authority does exist for the direct prosecutionof customary international offences in English courts117 and, followingthe dictum of Lord Denning inTrendtex Trading Corporationv. CentralBank of Nigeria,118 customary international law is directly applicable inthe United Kingdom unless legislative provisions provide otherwise. Theproblem is that while the rule appears to be that international law is auto-matically part of the English law through the process of incorporation,119

the rise of treaty law as the dominant source of international law has ledto a trend towards transformation before international law becomes appli-cable in domestic law.120 As expressed inCommercial and Estates Co. of

115 Apart from a minimum punishment of one year, all that section 2 requires is that itmust be conduct in the territory of a foreign state that “would constitute an offence” underUnited Kingdom law or an extra-territorial offence against the law of a foreign state that“would constitute an extra-territorial offence against the law of the United Kingdom”.116 Blackburnv. Attorney General, [1971] 1 WLR 1307.117 Treeves Case, (April 27, 1796) in Pleas of the Crown at 821 (Edward Hyde East, ed.,vol.II, 1803), where the court apparently applied the laws and customs of war directly to aprosecution of the supply of unwholesome food to French prisoners of war.118 [1977] QB 529; [1977] 2 WLR 356; [1977] 1 All ER 881 (C.A.).119 Barbuit’s Case, (1737) Cas. Temp. Talbot 281.120 It has recently been argued that in the United States customary international law isonly applicable after action taken by the government, see Curtis Bradley and Jack Gold-


Egyptv. Board of Trade: “International law as such can confer no rightscognisable in the municipal courts. It is only in so far as the rules of interna-tional law are recognised as included in the rules of municipal law that theyare allowed in municipal courts to give rise to rights and obligations.”121

This approach dominated in thePinochetappeal, with many of the Lordsrecognising the importance of international law but, with the exception ofLord Millet, limiting its operation only to the extent allowed by Parliamentin the domestic legislative application of treaty law.122 They chose to avoidusing custom.123 The reason for this reluctance appears to be that, as waspointed out inWest Rand Central Gold Mining Co.v. R.,124 the rules ofcustomary international law are difficult to discover, especially in a caselike Pinochet, and courts prefer recourse to clearly identifiable domesticlegislation.

Given the dominance of the notion of parliamentary sovereignty125

in the United Kingdom, it is unsurprising that the majority of the LawLords were unwilling to commit themselves upon the question of whetheruniversal jurisdiction applied in respect of the crimes alleged againstPinochet. They approached the issue from a very narrow jurisdictionalperspective,viz.: the matter to be decided was the application in Englishlaw of the international conventions to which the United Kingdom wasparty and the duty to extradite or punish under those conventions. Themajority of the Lords were not prepared to go as far as stating that thesenorms werejus cogensnorms external of the treaties that created them, thatuniversal jurisdiction applied to these crimes, and that no transformation

smith,Customary International Law as Federal Common Law: A Critique of the ModernPosition, 110 HARV. L. REV. 815 (1997).121 [1925] 1 KB 271 at 295.122 An even more dismissive use of international law occurred inEllerman Linesv.Murray, [1931] A.C. 126 at 147 where the court held that if a domestic statute enactedto give effect to an international treaty is vague or confused recoursecannotbe had to theoriginal international treaty in order to determine meaning even if it is appended to thedomestic act.123 In this the English courts are not alone. See Matthew Lippman,The Pursuit of NaziWar Criminals in the United States and other Anglo American Legal Systems, 29 CAL . W.INT’ L L. J. 1 at 24 (1998) who points out that the Deschênes “Commission of Inquiryon War Criminals” in Canada decided that although customary international law wasrecognised in Canada, it constituted too unconventional a foundation upon which to baseprosecution (citingReport Part I: Public17 (1986)). A similar commission in the UnitedKingdom (The Hetherington and Chalmers “Report of the War Crimes Inquiry” (1989))discounted reliance on anything except domestic legislation.124 [1905] 2 KB 391, 407.125 The consequence is a perpetuation of the dualist position in theory and at the practicallevel “a legal culture of resistance to the use of international law before domestic courts”.See MURRAY HUNT, USING HUMAN RIGHTS LAW IN ENGLISH COURTS11 (1998).


process was required.126 It seems that given the necessity of fixing liabilityfor specific offences to Pinochet, it was simply easier for the House ofLords to retreat from the full implications of their various statements aboutthe jus cogensnature of torture prior to 1984 and to build their judgmentupon the safer ground of the domestically appliedTorture Convention.However, with respect, many of them had already made the most difficultdecision – finding that the prohibition against torture wasjus cogens. Therewas nothing to stop the Law Lords from realising the full implications ofthis finding.

From the judgment of the House of Lords it appears that the subjectivelegislative approval of states remains the key to the application of inter-national law domestically. Many would argue that this took the case ofinternational law backwards, not forwards. We find it curiously inept onthe part of the appellants that, in Lord Browne-Wilkinson’s words, “no-one. . . suggested that before section 134 [of the Criminal Justice Act] cameinto effect torture committed outside the United Kingdom was a crimeunder United Kingdom law”.127 He had himself accepted that torture wasan international crime against humanity prior to theConventionand, aspointed out above, according to English law customary international lawis directly applicable in courts in the United Kingdom. The fault prob-ably lies with the appellants, who were unwilling to base prosecution onanything less than legislated conventional obligations. The consequence ofthis approach is that without legislative application of international crimesthere can be no prosecution or extradition, and international law remainsfirmly anchored to domestic foundations. Indeed, international law is in asubordinate position to domestic law.

Was Chile’s Agreement to the Torture Convention Necessary?

It is not clear whether the Lords considered it necessary that Chile beparty to theTorture Conventionto permit the United Kingdom and Spainto exercise jurisdiction over a Chilean national committing offences inChile and remove the sovereign immunity attaching to that individual.Lord Browne-Wilkinson, among others, mentioned that Chile is a stateparty to theConventionon a number of occasions.128 Furthermore, whenhe turned first to the sovereign immunity of former heads of state he said:

The issue is whether international law grants state immunity in relation to the internationalcrime of torture and, if so, whether the Republic of Chile is entitled to claim such immunityeven though Chile, Spain and the United Kingdom are all parties to the Torture Convention

126 See Lord Steyn inPinochet, first appeal,supranote 1 at 947e.127 Pinochet, second appeal,supranote 1 at 833A.128 Ibid. at 842A.


and therefore “contractually” bound to give effect to its provisions from 8 December 1988at the latest.129

At the end of his judgment he noted that Pinochet did not enjoy sovereignimmunity inter alia because

Chile had agreed to outlaw such conduct and Chile had agreed with other parties to theTorture 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.130

For his part, Lord Saville explicitly provided the dates of ratification ofthe Conventionfor the United Kingdom, Spain and Chile,131 stating that“[e]ach state party has agreed that the other state parties can exercisejurisdiction over alleged official torturers found within their territories”.132

Further on, he stated:

Since 8 December 1988 Chile, Spain and this country have all been parties to the TortureConvention. So far as these countries at least are concerned it seems to me that from thatdate these state parties are in agreement with each other that the immunityratione materiaeof their former heads of state cannot be claimed in cases of alleged official torture. In otherwords, so far as the allegations of official torture against Senator Pinochet are concerned,there is now by this agreement an exception or qualification to the general rule of immunityratione materiae.133

Lord Millet noted Chile’s acknowledgement that even before Pinochettook power torture was prohibited by international law and had taken ona jus cogenscharacter or was an obligationerga omnes, although Chileinsisted this did not confer universal jurisdiction or remove immunityratione materiaebefore foreign courts.134 He also held that torture on alarge scale had been a crime to which universal jurisdiction attached “wellbefore 1984”.135 However, a later statement reveals his understanding ofwhat Chile has conceded. He said:

My Lords, the Republic of Chile was a party to the Torture Convention, and must be takento have assented to the imposition of an obligation on foreign national courts to take andexercise criminal jurisdiction in respect of the official use of torture. I do not regard it ashaving 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 normally giverise to immunity. The international community has created an offence for which immunityratione materiaecould not possibly be available. International law cannot be supposed to

129 Ibid., at 844D.130 Ibid., at 848B.131 Ibid., at 903C.132 Ibid., at 903G.133 Ibid., at 903G.134 Ibid., at 911E–F.135 Ibid., at 912E.


have established a crime having the character ofjus cogensand at the same time to haveprovided an immunity which is co-extensive with the obligation it seeks to impose.136

Lord Millet appears here to retract his commitment to the effectivenessof customary international law. The statement highlights Chile’s assent tothe Convention’s application of universal jurisdiction and implies it wasnecessary for the removal of immunity. However, he then talks not of theremoval of immunity by theConventionbut as ajus cogensnorm. It allbecomes a little clearer when we recall that for the majority it was theTorture Conventionthat established thisjus cogensobligation, and LordMillet is adapting himself to that position. Chile’s support was not neces-sary to establish theConvention. But we are left asking whether Chile’ssupport was necessary to establish thejus cogensnature of torture throughthe means of theConvention. It seems impossible that one state’s supportis necessary to give any crime this status. The peremptory nature of theobligation must flow from general international support for theConventionand horror at the crime itself. Lord Phillips appeared a little clearer:

The exercise of extra-territorial jurisdiction overrides the principle that one state willnot intervene in the affairs of another. It does so because, when international crime isconcerned, that principle cannot prevail. . . The Republic of Chile has accepted that tortureis prohibited by international law and that the prohibition of torture has the character ofjuscogensand or obligationerga omnes. It is further accepted that officially sanctioned tortureis forbidden by international law.137

He later pointed out that when concluding theTorture Conventionstateshad either proceeded on the premise that no immunityratione materiaeexisted in respect of torture, or had expressly agreed that such immunityshould not be applied to torture. He believed the first alternative to becorrect.138 So do we.

It appears that the majority of the Law Lords reasoned as follows: oncethe Torture Conventionwas concluded, with Chile’s participation, thenChile could not object to the removal of immunity. It is not clear, however,whether they would have accepted that the conclusion of theTortureConvention, without Chile’s participation, would achieve the same result.Put another way, the issue is whether a legal right to establish jurisdictionfor the states parties to theConventioncould be created by theConventionwithout the participation of the state where the offence occurred. The LawLords did not expressly state that without Chile’s participation, the UnitedKingdom would not have been able to take jurisdiction over Pinochet onthe basis of theTorture Convention, and although the majority implied

136 Ibid., at 913H.137 Ibid., at 924G–H.138 Ibid., at 925E–F.


that such agreement was necessary to give the domestic court authority,we would argue that the existence of such agreement in this particular casemeant that the Law Lords did not apply their minds to the problem, and thatsuch agreement is in fact unnecessary to create such domestic authority.

That a treaty does not create either obligations or rights for a third statewithout its consent is a general principle of public international law.139

This rule, pacta tertiis nec nocere nec prodesse possent, is viewed asreflecting customary international law.140 But while this applies to thirdstates it does not necessarily apply to other subjects of international lawsuch as international criminals. To require the consent of the state ofterritoriality or of nationality does not accord with principle or practice.Universal jurisdiction has been applied by domestic courts in respect ofwar crimes and crimes against humanity141 and there is nothing unusualtoday in the conferral of jurisdiction over nationals of non-state partiesthrough the mechanism of treaty law. Numerous international conventionsinclude provisions allowing states parties to a treaty to exert jurisdictionover an individual who is a national of a state that is not party to the partic-ular instrument or who commits an offence in the territory of a state that

139 Article 34,Vienna Convention on the Law of Treaties, (1969) 115 U.N.T.S. 331.140 D.J. HARRIS, CASES AND MATERIALS IN INTERNATIONAL LAW 781 note 1 (5thed., 1998). Treaties such as theUnited Nations Charterhave been understood to createobjective regimes that assert jurisdiction over non-states parties. TheAaland IslandsConventionof 1856, theSuez Canal Conventionof 1888, and the provisions of theTreatyof Versaillesof 1919 concerning the Kiel Canal are considered to create objective regimesvalid against third states,ibid. See Michael Akehurst, A Modern Introduction to Interna-tional Law 131 (6th ed., 1993) who disputes the point that theUnited Nations Charterhascreated any obligations or rights concerning third states through article 2(6). Instead hesees the provisions of this article as merely pronouncing a policy the United Nations willfollow with regard to non-members.141 SeeAttorney General Israelv. Eichmann, (1968) 36 I.L.R. 277 (Supreme Court),where the Israeli Supreme Court held that there was “full justification for applying herethe principal of universal jurisdiction since the international character of ‘crimes againsthumanity’ . . . dealt with in this instant case is no longer in doubt”. In the United States caseIn re Demjanjuk, 612 F.Supp. 544 (1985), 776 F.2d 571 (1985), the court invoked universaljurisdiction to allow the extradition of an alleged German war criminal to Israel. The courtnoted that “international law does not generally prohibit the application of national lawsover non-citizens for acts committed outside its territory”. The court continued: “Israel hasbrought charges. . . asserting jurisdiction based on a statute that penalises ‘war crimes’ and‘crimes against humanity’ among other acts. The international community has determinedthat these offences are crimes over which universal jurisdiction exists.” The court alsocitedU.S.v. Otto, Case no. 000-Mauthausen-5 (DJAWC, July 10, 1947), to the effect that“international law provides that certain offences may be prosecuted by any state becausethe offenders are common enemies of all mankind and all nations have an equal interest intheir apprehension and punishment”.


is not party to the instrument. First and foremost is theTorture Conventionwhich, in articles 5 to 7, creates a system whereby

there shall be no safe-haven for torturers or for their accomplices in the countries whichare Parties to the Convention. Each State Party in whose territory a person alleged to havecommitted such an offence is found shall, even if the alleged offender is not its nationaland if the offence was committed abroad, be obliged to submit the case to its competentauthorities for the purpose of prosecution unless it extradites the alleged offender to anotherState.142

Similar universal jurisdiction may be exercised under theSlaveryConvention,143 the Hague Convention for the Suppression of UnlawfulSeizure of Aircraft,144 the Montreal Convention for the Suppression ofUnlawful Acts against the Safety of Civil Aviation,145 theConvention on thePrevention and Punishment of Crimes against Internationally protectedPersons, including Diplomatic Agents,146 and theHostage-Taking Conven-tion.147 TheInternational Convention on the Suppression and Punishmentof the Crime of Apartheid148 provides for jurisdiction through article 4(b)where the states parties agree:

To adopt legislative, judicial and administrative measures to prosecute, bring to trial andpunish in accordance with their jurisdiction persons responsible for, or accused of, [thecrimes constituting apartheid] whether or not such persons reside in the territory of theState in which the acts are committed or are nationals of that State or of some other Stateor are stateless persons.

In the crimes envisaged by these treaties149 we are dealing with morethan simply an extension of extra-territorial jurisdiction founded upon asufficient connection between the state assuming jurisdiction and the crim-inal by means of the effects principle or the like. In these treaty crimes,

142 J. HERMAN BURGERS ANDHANS DANELIUS, THE UNITED NATIONS CONVEN-TION AGAINST TORTURE: A HANDBOOK ON THE CONVENTION AGAINST TORTURE

AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 3(1988). Also: NIGEL RODLEY, THE TREATMENT OF PRISONERS UNDERINTERNA-TIONAL LAW 49 (2nd ed., 1999) who states that “[u]nless a state extradites an allegedtorturer to another country to stand trial, it is obliged to institute criminal proceedings,regardless of the latter’s nationality, or of where the crime is committed”.143 266 U.N.T.S. 42, articles 3, 6.144 860 U.N.T.S. 105, articles 4 and 7.145 974 U.N.T.S. 177, articles 5 and 7.146 28 U.N.T.S. 1975, articles 3 and 7.147 18 I.L.M. 1456, articles 5 and 8.148 1015 U.N.T.S. 243.149 There should also be included G.A. Res 47/133 on Forced Disappearances, thatcontemplates a treaty where signatories will be required to extradite or prosecute anyoffender.


the only jurisdictional connection required is that the accused is physi-cally in the hands of a state which, as illustrated by assertion of universaljurisdiction in a treaty to which it is are party, consider that the suspecthas performed actions which seriously deviate from universally acceptednorms of human behaviour and threaten international peace and security.TheTorture Conventionis of the same stuff. Article 7(1) reads:

The State Party in the territory under whose jurisdiction a person alleged to have committedany offence referred to in article 4 is found shall in the cases contemplated in article 5, ifit does not extradite him, submit the case to its competent authorities for the purpose ofprosecution.

The legal status of the offence in the state where the crime was committedis not considered by thisaut dedere aut judicareobligation150 and stateshave interpreted it as such.151

In their exercise of this treaty obligation states parties may in fact inter-fere with what the state with territorial jurisdiction may choose to regard asits exclusive sovereign jurisdiction, but it is submitted that the developmentof international criminal law, the enactment of legislation and the conclu-sion of bilateral and multilateral treaties with extra-territorial effect, havebeen largely about the encroachment upon territoriality and sovereignty.This process has not always been consensual, something evidenced by, forexample, the extension of domestic jurisdiction over far more controver-sial offences such as drug trafficking.152 In state practice, treaties creatinginternational offences have been applied by domestic courts to establish

150 Nor are they considered by most conventional formulations of theaut dedere autjudicare principle, which simply do not consider the legal interests of non-party statesover offences committed on their territories in the formulation of the legal principleobliging states to either extradite or prosecute offences that occur elsewhere – see gener-ally the treaties surveyed by M. CHERIF BASSIOUNI AND E.M. WISE, AUT DEDERE

AUT JUDICARE: THE DUTY TO EXTRADITE OR PROSECUTE ININTERNATIONAL LAW

(1995).151 Austria has made the following declaration: “Austria will establish its jurisdictionin accordance with article 5 of the Convention irrespective of the laws applying in theplace where the offence occurred . . . ”Multilateral Treaties Deposited with the SecretaryGeneral, U.N. Doc. ST/REG/Ser.E/16, at 193 (1997).152 The story of how the territorial limits of jurisdiction over drug offences have beenextended is too long to tell in detail here. However, a few examples serve to illustrate thepoint. The United States’s extension of jurisdiction over extra-territorial drug conspiraciesthrough application of the effects principle of extra-territorial jurisdiction is exemplifiedby United Statesv. Ricardo, 619 F.2d 1124 (5th Cir. 1980), where the U.S. DistrictCourt determined it had jurisdiction over defendants charged with conspiracy to importmarijuana, even though the conspiracy took place outside the United States and wasthwarted before any marijuana was imported. Creeping United States jurisdiction crepteven further when in 1986 Congress passed 21 USC section 959 (1986) extending itsjurisdiction over foreign nationals exporting drugs to the United States. Section 959(d)


jurisdiction even though the alleged offence was committed in anotherstate’s territory.153 While the prosecution of extra-territorial human rightsviolations in domestic courts has not been common in spite of provisionsfor universal jurisdiction, this reluctance is due to the desire to avoid polit-ical conflicts with other states. It does not eliminate the fact that the statesparties have agreed to specific obligations for enforcement.154

To take the opposing viewpoint would be to accept that the exercise ofuniversal jurisdiction in a convention is dependant upon individual stateconsent.155 Why this is not so is because a treaty crime like that set outin the Torture Conventionis not only applicable to conduct that occurswithin the states parties. TheConventiondoes not just create a tortious

renders it “unlawful for any person to manufacture, or distribute a controlled substance. . . intending that such substance be unlawfully imported into the United States . . . ” Somestates have simply gone the whole way. Section 6(5) of the German Penal Code reads:“Irrespective of the law of the place where the offence was committed, German crim-inal law is applicable to the following offences committed abroad:. . . (5) illicit traffic innarcotic drugs. The German Federal Supreme Court has held in theUniversal Jurisdictionover Drug Offences Case, 74 I.L.R. 166 (1979), that section 6(5) bases jurisdiction forprosecution of illicit traffic in all kinds of controlled drugs on the principle of universality.In D.P.P.v. Doot, [1973] A.C. 807, Lord Wilberforce noted inobiter that the prevention ofthe narcotics trade falls under the principle of universality in international law (at 803D).In United Statesv. Marino Garcia, 679 F.2d 1373 at 1382 note 16, the court noted: “Itmay well be that the time has arrived when the Congress of the United States should byappropriate legislation include drug trafficking in the same category as slave trafficking andpiracy and authorise prosecution of drug trafficking on the high seas as offences against theLaw of Nations . . . ”153 For example, inUnited Statesv. Fawaz Yunis, 924 F.2d 1086 (1991), the court reliedupon domestic legislation implementing theHostage-Taking Conventionand theHagueHijacking Conventionto take jurisdiction over a Lebanese citizen suspected of hijacking aJordanian aircraft in the Middle East. The United States exercised jurisdiction as the basisof passive personality – two United States citizens were among the alleged victims. InUnited Statesv. Layton, 509 F.Supp. 544 (1981), 855 F.2d 1388 (1988), passive person-ality was invoked to take jurisdiction over the murder of a United States congressman bya Guyanan citizen in Guyana, as provided for in theConvention on the Prevention andPunishment of Crimes against Internationally Protected Persons, 1035 U.N.T.S. 167. InUnited Statesv. Yousef, 927 F.Supp 673 (1996) such jurisdiction was based on theMontrealConvention. In none of these cases did the United States domestic court consider the factthat the crime had occurred in another state’s territory and was committed by another state’snational as preventing the legitimate establishment of jurisdiction.154 See STEPHEN RATNER AND JASON ABRAMS, ACCOUNTABILITY FOR HUMAN

RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY

161 (1997).155 Fritz Alexander Mann,The Doctrine of Jurisdiction in International Law, 113R.C.A.D.I. 9 at 10 (1964–I), andThe Doctrine of International Jurisdiction Revisited afterTwenty Years, 186 R.C.A.D.I. 19 at 20 (1984–III), reiterates the strict view that nationaljurisdiction is co-terminus with sovereignty.


relationship between or among the states parties. Its object is to create a no-hiding place regime for torturers. The extension of universal jurisdictionin theConventionis a practical measure to ensure those accused of torturecannot find any safe haven.156 By its very nature it conflicts with statesovereignty.

In a sense, torture is asui generiscategory of treaty crime which over-laps with custom in certain instances so that individual state consent tojurisdiction no longer matters. This type of treaty crime issui generisbecause of the nature of the violation condemned. State sponsored tortureviolates fundamental norms; it shocks the conscience of all humanity. Thegravity of the norm violated makes it in the reasonable interest of all statesto assume jurisdiction without the consent of any other state, whetherthat state is the state of territoriality, or nationality or whatever. This isnot surprising as it is hard to conceive of an anti-torture convention thatrequired ratification or consent by the state of territoriality or nationalitybeing acceptable to states or to general public opinion. Such treaties donot interfere with state sovereignty because with regard to crimes of suchgravity there is no sovereignty.

The strength of this point is confirmed by the fact that Lord Browne-Wilkinson held that Pinochet continued to enjoy sovereign immunity inrespect of the charges of murder and conspiracy to murder brought againsthim.157 This suggests that from an international perspective they are quali-tatively different crimes. It is also noteworthy that no emphasis is givento the precise date upon which Chile became party to theConvention. Wesubmit that the references in the judgment to Chile being party are merelya reply to Chile’s intervention in the case reminding Chile that they toomust be familiar with the provisions of theTorture Conventionbecausethey signed up to it. To hold otherwise would be to ignore the terms of theTorture Conventionitself. Chile’s major legal concern with the prosecu-tion of one of its nationals or someone who committed an offence on itsterritory relates only to ensuring that they get a fair trial – a human rightsissue, not an issue of jurisdiction.

156 This was the full intention of the drafters of theTorture Convention: see Burgersand Daneliussupranote 142 at 36. The United Kingdom was opposed to this idea duringthe drafting saying the idea “went beyond the practicable” and that it would find it diffi-cult to breach the territorial principle or even accept a limited degree of extra-territorialjurisdiction,ibid., at 40.157 Pinochet, second appeal,supranote 1 at 848C.


Issues of Immunity –Treaty Crimesv. Customary International Law

In their discussion of torture, the majority of the Law Lords did notmake a clear distinction between the core international crimes listed inthe Rome Statute of the International Criminal Courtwhich are part ofcustomary international law and impose a direct obligation on individuals,and treaty crimes or transnational crimes where states have undertakento criminalise certain conduct in their domestic law, with the result thatthe obligation is only imposed on individuals indirectly through domesticlaw. Today, systematic torture is a core crime, a crime against humanity,and sovereign immunity has not applied to crimes against humanity sinceNuremberg whether the forum was domestic or international. Torture inthe Torture Convention, on the other hand, is a treaty crime. The instru-ment grants domestic courts jurisdiction but says nothing expressly aboutthe withdrawal of sovereign immunity. While elements of the crime ofsystematic torture can be said to be covered by the scope of the treatyoffence, what of those situations when torture was not systematic? Arethey of less weighty legal consequence? Does immunity remain intact?Lord Browne-Wilkinson spoke of thejus cogensinternational crime oftorture and of torture in theTorture Conventionas if they were the sameoffence and included all forms of torture. In his view what was nascentasjus cogensbecame patent once theTorture Conventionwas concluded.Once the treaty obliged states to criminalise official conduct amounting totorture no matter where it has taken place, in his view it established thestatus of torture, in all its forms, as an international crime. Immunity fellaway for all forms of torture because, said Lord Browne-Wilkinson, it haslong been removed by international law from international crimes.

Lord Browne-Wilkinson implied that thejus cogensprohibition ontorture did not and could not confirm the status of torture as a high crimenot subject to immunity. If so, thisjus cogensprohibition as he envisagesit does not amount to much. It may only withdraw immunity before aninternational tribunal. But we believe that thejus cogensprohibition ontorture can be disentangled from theConvention. We agree with LordMillet’s early statements that it was clear before the conclusion of theTorture Conventionin 1984 that systematic torture was a crime againsthumanity and that immunity had been excluded before all courts. WhattheTorture Conventionestablishes, and what the House of Lords confirms,is that other forms of non-systematic torture are now also internationalcrimes from which immunity has been excluded before all courts. Thevalue of thePinochetjudgment as precedent is that it makes it possibleto examine other treaty crimes to discover whether they too establish


universal jurisdiction in the face of a grave threat and thus envisage theremoval of sovereign immunity.

For the House of Lords the difficulty was attempting to combine treatyobligations and customary international law obligations into a coherentsingle basis for action. When theConventionwas concluded, allowingstates parties to exert rights over the nationals of non-state parties, then thewhole neat division between purely treaty and customary offences beganto look ambiguous, the source of the authority confused and the resultcontentious. However, three discernible reasons can be extracted from themajority judgment justifying why the treaty crime of torture withdrawssovereign immunity from former heads of state.

First, the treaty itself is a response to a practice that shocks theconscience of mankind and violates thecivitas maxima. Lord Goff, indissent, denied that torture is an international offence because he couldnot see how the interests of sovereign states and the removal of sovereignimmunity are logically or legally compatible. But when it comes to thecommission of torture by officials of such states, they may be politicallycompatible but they are not logically, legally or morally compatible. Oneonly has to point to the long and bloody history of the abuse of officialpower. TheTorture Conventionis a response to this abuse.

Second, the gravity of this normative breach is confirmed by its recog-nition in customary international law. The first stage in the development ofthe international offence of torture was its establishment as ajus cogensnorm of narrow scope, the second stage its expansion and formalisationin a treaty. Built on a foundation of custom, the treaty crime of tortureexpands thejus cogensprohibition on torture and contracts immunity.

Third, the treaty reflects the growing international concern with torturein all its forms and particularly in the extension of universal jurisdic-tion in domestic courts over acts of torture committed by public officials.Before the treaty, torture was at most a crime in customary internationallaw with a strong bias to territorial jurisdiction and a vague permissiveextra-territorial jurisdiction. TheTorture Conventioncreated the obliga-tion for a signatory state to exercise a form of universal jurisdiction. Bybecoming party to it and transforming theConventioninto domestic law,the United Kingdom accepted the obligation to either prosecute or extra-dite all torturers including former heads of state. In a sense theConventionfinishes the process. Before theConventionthe offence did not for practicalpurposes exist in the United Kingdom. TheConventionand its enablinglegislation brought it into existence in the domestic forum.

These three factors, gravity, recognition in custom, and the universalityof jurisdiction through treaty, serve as useful principles for identifying


other treaty crimes with sufficient status to withdraw sovereign immunity.These factors appear to be in a dynamic relationship with one another.Thus, for instance, there may be situations where the offence is establishedin treaty law before the offence has been established even in part as custom.But the treaty would probably confirm the customary status of the offence.

Finally, it is worth pointing out that while theTorture Conventionservedas the basis for the majority decision, Lord Millet’s approach providesanother avenue for the withdrawal of sovereign immunity. If the estab-lishment of the status of the crime in customary international law is clear,then no treaty is necessary to assert universal jurisdiction and withdrawimmunity.

Constructive Liability

Fox points out that in the first appeal, Lord Steyn was only willing toremove the cloak of sovereign immunity from Pinochet because of hisdirect personal involvement in the alleged international offences.158 BothLord Browne-Wilkinson and Lord Millet emphasised in the second appealthat Pinochet was not being alleged to be criminally liable vicariously –just because he was head of state at the time and because other responsibleofficials violated human rights to keep him in power – but rather it wasalleged that he was directly responsible for criminal acts in ordering anddirecting a campaign of terror involving the use of torture.159 This leavescloaked in immunity those offences where no direct personal involve-ment can be established, a massive lacuna considering how difficult itis in practice to establish personal involvement by leaders who covertheir connections to the dirty work of their subordinates.160 A number ofalternatives present themselves.

It seems likely that the principle that the Law Lords were thinkingof when referring to constructive liability was conspiracy to commit theEnglish crime of torture, as applied in English domestic criminal law, toanyone including former political leaders. The problem is that to prove

158 Ibid., at 943d–e; Hazel Fox,supranote 1 at 214.159 Pinochet, second appeal,supranote 1 at 834A, 914D.160 As has been demonstrated in the South African context, it is very difficult to establishthe causal chain between policy-maker and executor. InS. v. Msane(unreported 1996 –NPD) the prosecution failed to establish that General Magnus Malan and other seniormembers of the apartheid security apparatus were aware of and organised the hit-squadmurders of anti-apartheid activists in Kwa Zulu-Natal in the 1980s and early 1990s. Theiracquittal turnedinter alia upon the trial court’s failure to accept that the statement “removefrom society” in a document drafted by a senior police office necessarily meant assas-sination. See Jeremy Sarkin, Howard Varney,Failing To Pierce The Hit-Squad Veil: AnAnalysis of the Malan Trial, 10 S. AFR. J. CRIM. JUST. 141 (1997).


the subsistence of a conspiracy there must be proof of agreement theperformance of which will involve the commission of offences. Proof ofagreement by the ex-head of state to the commission of particular offencesmay be difficult to obtain. Once it can be established that the agents andX were part of a conspiracy to achieve a common purpose, a conspiracylargely constructed by X, it is submitted that all are liable and none canclaim immunity. X, in particular, cannot claim immunity just because heor she does not know the precise time, place or the identity of the victimof his subordinate’s actions. X gives them a general mandate to act on hisor her behalf. It is the informality of situations of official terror which istheir most common feature. It is often very difficult to prove the existenceof a direct chain of command traceable to the leadership, but this does notmean that a chain of command does not exist.

If we isolate conspiracy as something peculiar to Anglo-Americanjurisprudence, then in the alternative we can rely on the much broadernorm of command responsibility161 as applied by international humani-tarian law to the military or civilian162 leaders of military or paramilitaryforces. This principle provides broadly for either individual responsibilitywhere the commander intentionally plans, instigates or orders the crime oraids and abets such conduct, or for liability for subordinates on a “known”or “should have known and failure to take reasonable steps to prevent”standard.163 We submit that when the scale, scope and longevity of theviolence dictate that the only reasonable inference that can be drawn is

161 See generally William Fenrick,Some International Problems Related to the Prosecu-tions before the International Criminal Tribunal for the former Yugoslavia, 6 DUKE J.COMP. & I NT’ L L. 103 (1995).162 In Prosecutorv. Delalic et al.(Case no. IT-96-21-T), Judgment, Nov. 16, 1998, (1999)38 I.L.M.57, para. 354, the Trial Chamber of the International Criminal Tribunal for theFormer Yugoslavia held that “individuals in positions of authority, whether civilians withinmilitary structures, may incur criminal responsibility under the doctrine of commandresponsibility on the basis of their de facto as well as de jure role as superiors”.163 In respect of international armed conflicts the principle as part of customary interna-tional law was set out in theUnited Statesv. Yamashita, (1946) 4 Law Reports of the Trialsof the War Criminals 1 at 39–45 (United States Military Commission). Article 86(2) ofProtocol Additional I to the 1949 Geneva Conventionscrystallised the accused’s liabilityfor failing to stop his subordinates violating international law. In non-international armedconflict, article 7(1) of theStatute of the International Criminal Tribunal for the FormerYugoslaviaprovides for individual liability while article 7(3) provides for commandresponsibility. In applying the latter provision, the Tribunal has distinguished betweendirect command responsibility, which requires conscious positive action by the accused,and indirect command responsibility, where liability rests upon culpable omissions. See:Prosecutorv. Delalic et al., supranote 162 at 117–149. Article 25 of theRome Statuteof the International Criminal Courtestablishes individual liability for intentional acts,while article 28 goes further and applies criminal liability to military or other effective


that a head of state was either aware and sanctioned these actions or thatthe head of state was grossly negligent for not preventing them, he or shecannot avoid liability on the basis of sovereign immunity.

The Status in International Law of Domestic Grants of SovereignImmunity

The majority of the Lords declined to decide whether the grant of absoluteimmunity in Chile is itself a violation of international law, or whetherstates are under a duty in terms of international law to prosecute massiveviolations of human rights committed within other states.164 Lord Lloyd,dissenting in the first appeal, accepted that the granting of amnesty wasnot contrary to international law because state practice clearly supportedsuch amnesties.165 At the international level the United Nations HumanRights Committee has expressed its dissatisfaction with domestic amnestyarrangements. In its comments concerning Peru’s amnesty laws, which aresimilar to Chile’s, the Committee stated:

Such an amnesty prevents appropriate investigation and punishment of perpetrators of pasthuman rights violations, undermines efforts to establish respect for human rights, contrib-utes to an atmosphere of impunity among perpetrators of human rights violations andconstitutes a very serious impediment to efforts undertaken to consolidate democracy andpromote respect for human rights and is thus in violation of article 2 of the Covenant.166

Orentlicher167 argues that human rights violations are never a domesticaffair and domestic immunity is itself a violation of international law.She may have overstated her case.168 But even if jurisdiction over suchoffences is, as some argue, permissive rather than mandatory, the legality

commanders for negligently failing to prevent the commission of offences by forces undertheir control if they had the opportunity to do so.164 As suggested by Diane Orentlicher,Settling Accounts: The Duty to Prosecute HumanRights Violations of a Prior Regime, 100 YALE L. J. 2537 at 2540–2541 (1991).165 Pinochet, second appeal,supranote 1 at 929j.166 U.N. Doc. A/40/51 at 49.167 See also in the specific context of South Africa, Z. Motala,The Promotion of NationalUnity and Reconciliation Act, the Constitution and International Law, 28 COMP. & I NT’ L

L. J. OF S. AFR. 338 at 339 (1995).168 Michael Scharf,The Letter of the Law: The Scope of the International Legal Obliga-tion to Prosecute Human Rights Crimes, 59 L. & CONTEMP. PROBS. 60–61 (1996) arguesthat while international instruments like theGeneva Conventionsmay require prosecutionwhere mass violence is directed at racial groups in an international armed conflict, andtheTorture Conventionrequires prosecution if a state is party, in respect of other humanrights violations there is at present only a belief that something should be done (a positionsupported by Roht-Arriaza and Gibsonsupranote 5, at 884–5). Scharf argues that customrecognises permissive jurisdiction to prosecute but there is insufficient state practice toestablish such prosecution as obligatory.


of amnesty is impliedly in question when one state prosecutes what anotherpermits. The argument against amnesty is broadly the maintenance ofthe rule of law globally; the argument in favour is the fragility of newpolitical arrangements in a post-civil trauma era. The extent to which theamnesty made possible the political transition in Chile and its continu-ance is a contingent political question. Orentlicher argues that prosecutionsfor violations of international law are issues beyond local contingency.169

They are general moral duties.By implication, states that grant domestic amnesties are in violation

of international law and could be subject to a range of measures fromcondemnation to economic and political isolation. This would amount topunishing the victims. Nino rejects such a position arguing that it is builtupon a theory of retributive punishment which is not practical in termsof the complex reality of states where amnesty is granted and that it willcause further human rights violations.170 Moreover, it is not enforced byspecially affected states in their practice. Roht-Arriaza and Gibson haveshown that the supreme courts of such states either tend to regard amnestiesas valid under international law and place domestic law in a superior posi-tion to international law or simply chose to ignore international law, whilelocal courts tend to be more responsive and find amnesties violative ofinternational law.171But what of the courts of other states? Spanish, Argen-tinean, German and Ecuadorian courts have already investigated offencescommitted in Chile and Argentina by military defendants and seized theirproperty.172 The fact that arrest warrants have been issued for Pinochet in anumber of other states in Europe indicates an acceptance of the necessity ofpursuing gross human rights violators from other states in national courts.In the House of Lords, thePinochetdecision indicates a change of attitudeby a major common law jurisdiction, the United Kingdom.

This is not purely a deontological (no amnesty) versus consequentialist(amnesty) debate. If one accepts the argument that there can be no peacewithout justice, and no reconciliation without punishment, it is arguablethat the prosecution of international criminals abroad may help to savedemocracy at home in the long-term. And it is arguable that internationallaw should not tolerate a doctrine of exception by specially affected states.On the other hand, such external intervention may simply be viewed aselitist.

169 Diane Orentlicher,supranote 164 at 2547.170 Carlos Nino,The Duty to Punish Past Abuses of Human Rights put into Context: TheCase of Argentina, 100 YALE L.J. 2619 at 2620 (1991).171 N. Roht-Arriaza, L. Gibson,supranote 5 at 862.172 Ibid., at 885.


However, one of the possible legal consequences of a domestic grant ofamnesty which may impact externally is the invocation of double jeopardyby those granted domestic amnesty when put on trial in a foreign jurisdic-tion. It seems that the success of such a plea would depend on whether theamnesty process was regarded as penal or not.

III. CONCLUSION

The first appeal judgment of the House of Lords inPinochetwas chal-lenged successfully because of the connections of Lord Hoffman toAmnesty International. However, the Lords were given a second chanceto confirm or deny that a former ruler’s sovereignty is no longer absolute,and to choose to uphold the international rule of law.

Commentators have noted that the judgment inPinochetmeans thatformer state leaders under whose government human rights violationsoccurred must now think twice before leaving home.173 It should berecalled, however, that the English courts did not say that such individualswill be tried under English law or that the United Kingdom will make anyovert effort to bring these individuals to justice. They only held that if aproper legal request for extradition is made then it must be honoured.174

Extradition remains a political as much as a legal question, but with theissue of the immunity of former heads of state clarified, its political natureis left exposed, and it will be up to politicians to give the final sanctionto the extradition of alleged gross violators of human rights.175 Finally itmight be noted that even current heads of state who commit internationalcrimes and rely upon sovereign immunity while in office may eventuallylose office and immunity. ThePinochetprecedent reaches beyond existingformer heads of state.

173 Editorial: “The limits of immunity: the law strikes back”,The Guardian, Nov. 26,1998, p. 25.174 The United Kingdom chose not to try Pinochet as the Attorney General said thatthere was “insufficient admissible evidence under English law of an offence” to merita prosecution under theConvention against Torture. “He may be responsible for 4,000deaths, but he isn’t going to be put on trial here.”The Guardian, Oct. 29, 1998, p. 1.175 On how Conservative and Labour politicians have chosen to ignore Pinochet’s visitsto the United Kingdom in the past see H. Young,The Law Lords Leave One Man with NoPlace to Hide. Who? Jack Straw, The Guardian, Nov. 26, 1998, p. 24.

Documents

The Pinochet Precedent: Don't Leave Home Without It