Judgment - Regina v. Bartle and the Commissioner of Police for the Metropolis and others EX Parte Pinochet (on appeal from a Divisional Court of the Queen's Bench Division)
Regina v. Evans and another and the Commissioner of Police for the Metropolis and others EX Parte Pinochet (on appeal from a Divisional Court of the Queen's Bench Division)
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    In that connection it is necessary to consider when the pre-existing immunity is lost. In my view it is from the date when the national legislation comes into force, although I recognise that there is an argument that it is when the convention comes into force, but in my view nothing earlier will do. Acts done thereafter are not protected by the immunity; acts done before, so long as otherwise qualifying, are protected by the immunity. It seems to me wrong in principle to say that once the immunity is cut down in respect of particular crimes it has gone even for acts done when the immunity existed and was believed to exist. Equally, it is artificial to say that an evil act can be treated as a function of a Head of State until an international convention says that the act is a crime when it ceases ex post facto to have been a function. If that is the right test, then it gives a clear date from which the immunity was lost. This may seem a strict test and a cautious approach, but in laying down when States are to be taken to be taken as abrogating a long established immunity it is necessary to be satisfied that they have done so.

The Crimes Alleged

    What is the position in regard to the three groups of crimes alleged here: torture, genocide and taking hostages?

    The Torture Convention of 10 December 1984 defines torture as severe pain or suffering intentionally inflicted for specific purposes, "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

    Each State Party is to ensure that all acts of torture are offences under its criminal law and to establish jurisdiction over offences committed in its territory, or by a national of that State or, if the State considers it appropriate, when the victim is a national of that State (Article 5). It must also establish jurisdiction where, "the alleged offender is present under its jurisdiction and it does not extradite pursuant to Article 8." Thus, where a person is found in the territory of a State in the cases contemplated in Article 5, then the State must, by Article 7: "if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution." States are to give each other the greatest measure of assistance in connection with criminal proceedings.

    The important features of this Convention are: (1) that it involves action "by a public official or other person acting in an official capacity"; (2) that by Articles 5 and 7, if not extradited, the alleged offender must be dealt with as laid down; and (3) Chile was a State Party to this Convention and it therefore accepted that, in respect of the offence of torture, the United Kingdom should either extradite or take proceedings against offending officials found in its jurisdiction.

    That Convention was incorporated into English law by section 134 of the Criminal Justice Act 1988. Section 134(1) and (2) provides:

     "(1) A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties."

     "(2) A person not falling within subsection (1) above commits the offence of torture, whatever his nationality, if:-   (a) in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence:-    (i) of a public official; or      (ii) of a person acting in an official capacity; and   (b) the official or other person is performing or purporting to perform his official duties when he instigates the commission of the offence or consents to or acquiesces in it."

If committed other than in the United Kingdom lawful authority, justification or excuse under the law of the place where the torture was inflicted is a defence, but in Chile the constitution forbids torture.

    It is thus plain that torture was recognised by the State Parties as a crime which might be committed by the persons, and be punishable in the States, referred to. In particular, the Convention requires that the alleged offender, if found in the territory of a State Party, shall be, if not extradited, submitted to the prosecution authorities.

    This, however, is not the end of the enquiry. The question remains--have the State Parties agreed, and in particular have the United Kingdom and Chile, which asserts the immunity, agreed that the immunity enjoyed by a former Head of State for acts ratione materiae, shall not apply to alleged crimes of torture? That depends on whether a Head of State, and therefore a former Head of State, is covered by the words "a public official or a person acting in that capacity". As a matter of ordinary usage, it can obviously be argued that he is. But your Lordships are concerned with the use of the words in their context in an international Convention. I find it impossible to ignore the fact that in the very Conventions and Charters relied on by the appellants as indicating that jurisdiction in respect of certain crimes was extended from 1945 onwards, there are specific provisions in respect of Heads of State as well as provisions covering officials. These provisions may relate to jurisdiction, or to the removal of a defence, and immunity of course is different from each, both as a concept and in that it is only pleadable in bar to proceedings in National Courts. These provisions do, however, serve as a guide to indicate whether States have generally accepted that former Heads of State are to be regarded as "public officials" and accordingly that the immunity has been taken away from former Heads of State in the Torture Convention.

    Thus, in the Nuremberg Charter 1945 (Article 7), the official position of defendants "whether as Heads of State or responsible officials" does not free them from responsibility. In the Genocide Convention (1948) persons committing the act shall be punished "whether they are constitutionally responsible rulers, public officials or private individuals". In the Yugoslav and Rwanda Tribunals,

     "The official position of any accused person, whether as Head of State or Government or as a responsible Government official"

is not a defence (Article 7). Even as late as the Rome Statute on the International Criminal Court by Article 27 "official capacity as a Head of State or Government ... or Government official" is not exempted from criminal responsibility.

    In these cases, States have not taken the position that the words public or government official are wide enough to cover Heads of State or former Heads of State, but that a specific exclusion of a defence or of an objection to jurisdiction on that basis is needed. It is nothing to the point that the reference is only to Head of State. A Head of State on ceasing to be a Head of State is not converted into a public official in respect of the period when he was a Head of State if he was not so otherwise. This is borne out by the experience of the International Law Commission in seeking to produce a draft in respect of State immunity. The reports of its meeting show the difficulties which arose in seeking to deal with the position of a Head of State.

    I conclude that the reference to public officials in the Torture Convention does not include Heads of State or former Heads of State, either because States did not wish to provide for the prosecution of Heads of State or former Heads of State or because they were not able to agree that a plea in bar to the proceedings based on immunity should be removed. I appreciate that there may be considerable political and diplomatic difficulties in reaching agreement, but if States wish to exclude the long established immunity of former Heads of State in respect of allegations of specific crimes, or generally, then they must do so in clear terms. They should not leave it to National Courts to do so because of the appalling nature of the crimes alleged.

    The second provisional warrant does not mention genocide, though the international warrant and the request for extradition do. The Genocide Convention in Article 6 limits jurisdiction to a tribunal in the territory in which the act was committed and is not limited to acts by public officials. The provisions in Article 4 making "constitutionally responsible rulers" liable to punishment is not incorporated into the English Genocide Act of 1948. Whether or not your Lordships are concerned with the second international warrant and the request for extradition (and Mr. Nicholls, Q.C. submits that you are not), the Genocide Convention does not therefore satisfy the test which I consider should be applied.

    The Taking of Hostages Convention which came into force in 1983 and the Taking of Hostages Act 1982 clearly make it a crime for "any person, whatever his nationality" who "in the United Kingdom or elsewhere to take hostages for one of the purposes specified." This again indicates the scope both of the substantive crime and of jurisdiction, but neither the Convention nor the Act contain any provisions which can be said to take away the customary international law immunity as Head of State or former Head of State.

    It has been submitted that a number of other factors indicate that the immunity should not be refused by the United Kingdom--the United Kingdom's relations with Chile, the fact that an amnesty was granted, that great efforts have been made in Chile to restore democracy and that to extradite the respondent would risk unsettling what has been achieved, the length of time since the events took place, that prosecutions have already been launched against the respondent in Chile, that the respondent has, it is said, with the United Kingdom Government's approval or acquiescence, been admitted into this country and been received in official quarters. These are factors, like his age, which may be relevant on the question whether he should be extradited, but it seems to me that they are for the Secretary of State (the executive branch) and not for your Lordships on this occasion.

The Alternative Basis--Acts of State--and Non-Justiciability

    United States Courts have been much concerned with the defence of act of state as well as of sovereign immunity. They were put largely on the basis of comity between nations beginning with the Schooner Exchange v. M'Faddon (supra). See also Underhill v. Hernandez 168 US 250. In Banco National de Cuba v. Sabbatino 307F 2d 845 (1961) it was said that "the Act of State Doctrine briefly stated that American Courts will not pass on the validity of the acts of foreign governments performed in their capacities as sovereigns within their own territories . . . This doctrine is one of the conflict of laws rules applied by American Courts; it is not itself a rule of international law . . . it stems from the concept of the immunity of the sovereign because "the sovereign can do no wrong" (page 855). See also the 3rd Restatement of the Law paragraph 443/444. In International Association of Machinists v. Opec (649F 2d 134) [1981] the 9th Circuit Court of Appeals took the matter further

     "The doctrine of sovereign immunity is similar to the Act of State Doctrine in that it also represents the need to respect the sovereignty of foreign states. The law of sovereign immunity goes to the jurisdiction of the Court. The Act of State Doctrine is not jurisdictional . . . Rather it is a procedural doctrine designed to avoid action in sensitive areas. Sovereign immunity is a principle of international law, recognised in the United States by statutes. It is the states themselves, as defendants, who may claim sovereign immunity."

    The two doctrines are separate, but they are often run together. The law of Sovereign immunity is now contained in the Foreign Sovereign Immunities Act (28 USSC-1602) ("F.S.I.A.") in respect of civil matters and many of the decisions on sovereign immunity in the United States turn on the question whether the exemption to a general State immunity from suit falls within one of the specific exemptions. The F.S.I.A. does not deal with criminal Head of State immunity. In the United States the Courts would normally follow a decision of the executive as to the grant or denial of immunity and it is only when the executive does not take a position that "Courts should make an independent determination regarding immunity" (Kravitch S.C.J. in US v. Noriega (7 July 1997)).

    In Kirkpatrick v. Environmental Tectonics (493 U.S. 403 110 S. Ct. 701 (1990)) the Court said that, having begun with comity as the basis for the act of State doctrine, the Court more recently regarded it as springing from the sense that if the judiciary adjudicated on the validity of foreign acts of State, it might hinder the conduct of foreign affairs. The Supreme Court said that "Act of State issues only arise when a Court must decide--that is when the outcome of the case turns upon--the effect of official action by a foreign Sovereign" (p. 705).

    In English law the position is much the same as it was in the earlier statements of the United States Courts. The act of State doctrine "is to the effect that the Courts of one State do not, as a rule, question the validity or legality of the official acts of another Sovereign State or the official or officially avowed acts of its agents, at any rate in so far as those acts involve the exercise of the State's public authority, purport to take effect within the sphere of the latter's own jurisdiction and are not in themselves contrary to international law" (Oppenheim 9th edition, page 365). In Buttes Gas (supra), Lord Wilberforce spoke of the normal meaning of acts of State as being "action taken by a Sovereign State within its own territory." In his speech, only a year before International Association of Machinists v. Opec., Lord Wilberforce asked whether, apart from cases concerning acts of British officials outside this country and cases concerned with the examination of the applicability of foreign municipal legislation within the territory of a foreign State, there was not "a more general principle that the Courts will not adjudicate upon the transactions of foreign Sovereign States"--a principle to be considered if it existed "not as a variety of 'acts of State', but one of judicial restraint or abstention".

    Despite the divergent views expressed as to what is covered by the Act of State doctrine, in my opinion once it is established that the former Head of State is entitled to immunity from arrest and extradition on the lines I have indicated, United Kingdom Courts will not adjudicate on the facts relied on to ground the arrest, but in Lord Wilberforce's words, they will exercise "judicial restraint or abstention."

    Accordingly, in my opinion, the respondent was entitled to claim immunity as a former Head of State from arrest and extradition proceedings in the United Kingdom in respect of official acts committed by him whilst he was Head of State relating to the charges in the provisional warrant of 22 October 1998. I would accordingly dismiss the appeal.

LORD LLOYD OF BERWICK

My Lords, Background

    On 11 September 1973 General Augusto Pinochet Ugarte assumed power in Chile after a military coup. He was appointed president of the Governing Junta the same day. On 22 September the new regime was recognised by Her Majesty's Government. By a decree dated 11 December 1974 General Pinochet assumed the title of President of the Republic. In 1980 a new constitution came into force in Chile, approved by a national referendum. It provided for executive power in Chile to be exercised by the President of the Republic as head of state. Democratic elections were held in December 1989. As a result, General Pinochet handed over power to President Aylwin on 11 March 1990.

    In opening the appeal before your Lordships Mr. Alun Jones Q.C. took as the first of the three main issues for decision whether General Pinochet was head of state throughout the whole period of the allegations against him. It is clear beyond doubt that he was. So I say no more about that.

 
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