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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    The same conclusion has been reached in the United States. In Siderman de Blake v. Republic of Argentina (1992) 965F 2d 699 the plaintiff brought civil proceedings for alleged acts of torture against the Government of Argentina. It was held by the 9th Circuit Court of Appeals that although prohibition against torture has attained the status of jus cogens in international law (citing Filartiga v. Pena-Irala (1980) 630F 2d 876) it did not deprive the defendant state of immunity under the Foreign Sovereign Immunities Act.

    Admittedly these cases were civil cases, and they turned on the terms of the Sovereign Immunity Act in England and the Foreign Sovereign Immunity Act in the United States. But they lend no support to the view that an allegation of torture "trumps" a plea of immunity. I return later to the suggestion that an allegation of torture excludes the principle of non-justiciability.

    Further light is shed on state practice by the widespread adoption of amnesties for those who have committed crimes against humanity including torture. Chile was not the first in the field. There was an amnesty at the end of the Franco-Algerian War in 1962. In 1971 India and Bangladesh agreed not to pursue charges of genocide against Pakistan troops accused of killing about 1 million East Pakistanis. General amnesties have also become common in recent years, especially in South America, covering members of former regimes accused of torture and other atrocities. Some of these have had the blessing of the United Nations, as a means of restoring peace and democratic government.

    In some cases the validity of these amnesties has been questioned. For example, the Committee against Torture (the body established to implement the Torture Convention under article 17) reported on the Argentine amnesty in 1990. In 1996 the Inter-American Commission investigated and reported on the Chilean amnesty. It has not been argued that these amnesties are as such contrary to international law by reason of the failure to prosecute the individual perpetrators. Notwithstanding the wide terms of the Torture Convention and the Taking of Hostages Convention, state practice does not at present support an obligation to extradite or prosecute in all cases. Mr. David Lloyd Jones (to whom we are all much indebted for his help as amicus) put the matter as follows:

     "It is submitted that while there is some support for the view that generally applicable rules of state immunity should be displaced in cases concerning infringements of jus cogens, e.g. cases of torture, this does not yet constitute a rule of public international law. In particular it must be particularly doubtful whether there exists a rule of public international law requiring states not to accord immunity in such circumstances. Such a rule would be inconsistent with the practice of many states."

    Professor Greenwood took us back to the charter of the International Military Tribunal for the trial of war criminals at Nuremburg, and drew attention to article 7, which provides:

      "The official position of defendants, whether as heads of state or responsible officials in government departments, shall not be considered as freeing them from responsibility or mitigating punishment."

One finds the same provision in almost identical language in article 7(2) of the Statute of the International Tribunal for the Former Yugoslavia (1993), article 6(2) of the Statue of the International Tribunal for Rwanda (1994) and most recently in article 27 of the Statute of the International Criminal Court (1998). Like the Divisional Court, I regard this as an argument more against the appellants than in their favour. The setting up of these special international tribunals for the trial of those accused of genocide and other crimes against humanity, including torture, shows that such crimes, when committed by heads of state or other responsible government officials cannot be tried in the ordinary courts of other states. If they could, there would be little need for the international tribunal.

    Professor Greenwood's reference to these tribunals also provides the answer to those who say, with reason, that there must be a means of bringing such men as Senator Pinochet to justice. There is. He may be tried (1) in his own country, or (2) in any other country that can assert jurisdiction, provided his own country waives state immunity, or (3) before the International Criminal Court when it is established, or (4) before a specially constituted international court, such as those to which Professor Greenwood referred. But in the absence of waiver he cannot be tried in the municipal courts of other states.

    On the first issue I would hold that Senator Pinochet is entitled to immunity as former head of state in respect of the crimes alleged against him on well established principles of customary international law, which principles form part of the common law of England.

Issue two: Immunity under Part I of the State Immunity Act 1978

    The long title of the State Immunity Act 1978 states as its first purpose the making of new provision with respect to proceedings in the United Kingdom by or against other states. Other purposes include the making of new provision with respect to immunities and privileges of heads of state. It is common ground that the Act of 1978 must be read against the background of customary international law current in 1978; for it is highly unlikely, as Lord Diplock said in Alcom Ltd. v. Republic of Colombia [1984] 4 A.C. 580 at p. 600 that Parliament intended to require United Kingdom courts to act contrary to international law unless the clear language of the statute compels such a conclusion. It is for this reason that it made sense to start with customary international law before coming to the statute.

    The relevant sections are as follows:

     "1. General immunity from jurisdiction

     (1) A state is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.

     (2) A court shall give effect to the immunity conferred by this section even though the state does not appear in the proceedings in question.

     "14. States entitled to immunities and privileges

     "(1) The immunities and privileges conferred by this Part of this Act apply to any foreign or commonwealth state other than the United Kingdom; and references to a state include references to -

     (a) the sovereign or other head of that state in his public capacity;

     (b) the government of that state; and

     (c) any department of that government,

     but not to any entity (hereafter referred to as a 'separate entity') which is distinct from the executive organs of the government of the state and capable of suing or being sued.

     (2) A separate entity is immune from the jurisdiction of the courts of the United Kingdom if, and only if -

     (a) the proceedings relate to anything done by it in the exercise of sovereign authority; . . .

     "16. Excluded matters

     (1) This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964  . . .

     (4) This Part of this Act does not apply to criminal proceedings."

    Mr. Nichols drew attention to the width of section 1(1) of the Act. He submitted that it confirms the rule of absolute immunity at common law, subject to the exceptions contained in sections 2-11, and that the immunity covers criminal as well as civil proceedings. Faced with the objection that Part I of the Act is stated not to apply to criminal proceedings by virtue of the exclusion in section 16(4), he argues that the exclusion applies only to sections 2-11. In other words section 16(4) is an exception on an exception. It does not touch section 1. This was a bold argument, and I cannot accept it. It seems clear that the exclusions in section 16(2)(3) and (5) all apply to Part I as a whole, including section 1(1). I can see no reason why section 16(4) should not also apply to section 1(1). Mr. Nichols referred us to an observation of the Lord Chancellor in moving the Second Reading of the Bill in the House of Lords: Hansard 17 January 1978 col. 52. In relation to Part I of the Bill he said "immunity from criminal jurisdiction is not affected, and that will remain." I do not see how this helps Mr. Nicholls. It confirms that the purpose of Part I was to enact the restrictive theory of sovereign immunity in relation to commercial transactions and other matters of a civil nature. It was not intended to affect immunity in criminal proceedings.

    The remaining question under this head is whether the express exclusion of criminal proceedings from Part I of the Act, including section 1(1), means that the immunity in respect of criminal proceedings which exists at common law has been abolished. In Al Adsani v. Government of Kuwait 107 I.L.R. 536 at 542 Stuart Smith L.J. referred to the State Immunity Act as providing a "comprehensive code." So indeed it does. But obviously it does not provide a code in respect of matters which it does not purport to cover. In my opinion the immunity of a former head of state in respect of criminal acts committed by him in exercise of sovereign power is untouched by Part I of the Act.

Issue 3: Immunity under Part III of the State Immunity Act

    The relevant provision is section 20 which reads:

     "(1) Subject to the provisions of this section and to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to -

     (a) a sovereign or other head of State;

     (b) members of his family forming part of his household; and

     (c) his private servants,

     as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants.  . . .

     "(5) This section applies to the sovereign or other head of any state on which immunities and privileges are conferred by Part I of this Act and is without prejudice to the application of that Part to any such sovereign or head of state in his public capacity."

The Diplomatic Privileges Act 1964 was enacted to give force to the Vienna Convention on diplomatic privileges. Section 1 provides that the Act is to have effect in substitution for any previous enactment or rule of law.

    So again the question arises whether the common law immunities have been abolished by statute. So far as the immunities and privileges of diplomats are concerned, this may well be the case. Whether the same applies to heads of state is more debatable. But it does not matter. For in my view the immunities to which Senator Pinochet is entitled under section 20 of the State Immunity Act are identical to the immunities which he enjoys at common law.

    The Vienna Convention provides as follows:

     "Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.  . . .

     "Article 31: A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state.  . . .

     "Article 39(1): Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving state on proceedings to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.

     (2) When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

The critical provision is the second sentence of article 39(2). How is this sentence to be applied (as it must) to a head of state? What are the "necessary modifications" which are required under section 20 of the State Immunity Act? It is a matter of regret that in such an important sphere of international law as the immunity of heads of state from the jurisdiction of our courts Parliament should have legislated in such a round-about way. But we must do our best.

    The most extreme view, advanced only, I think, by Professor Brownlie for the Interveners and soon abandoned, is that the immunity extends only to acts performed by a visiting head of state while within the United Kingdom. I would reject this submission. Article 39(2) is not expressly confined to acts performed in the United Kingdom, and it is difficult to see what functions a visiting heads of state would be able to exercise in the United Kingdom as head of state other than purely ceremonial functions.

    A less extensive view was advanced by Mr. Alun Jones as his first submission in reply. This was that the immunity only applies to the acts of heads of state in the exercise of their external functions, that is to say, in the conduct of international relations and foreign affairs generally. But in making the "necessary modifications" to article 39 to fit a head of state, I see no reason to read "functions" as meaning "external functions." It is true that diplomats operate in foreign countries as members of a mission. But heads of state do not. The normal sphere of a head of state's operations is his own country. So I would reject Mr. Alun Jones's first submission.

    Mr. Alun Jones's alternative submission in reply was as follows:

     "However, if this interpretation is wrong, and Parliament's intention in section 20(1)(a) of the State Immunity Act was to confer immunity in respect of the exercise of the internal, as well as the external, functions of the head of state, then the second sentence of article 39(2) must be read as if it said:   'with respect to official acts performed by a head of state in the exercise of his functions as head of state, immunity shall continue to subsist.'"

Here Mr. Alun Jones hits the mark. His formulation was accepted as correct by Mr. Nicholls and Miss Clare Montgomery on behalf of the respondents, and by Mr. David Lloyd Jones as amicus curiae.

    So the question on his alternative submission is whether the acts of which Senator Pinochet is accused were "official acts performed by him in the exercise of his functions as head of state." For the reasons given in answer to issue 1, the answer must be that they were.

    So the answer is the same whether at common law or under the statute. And the rationale is the same. The former head of state enjoys continuing immunity in respect of governmental acts which he performed as head of state because in both cases the acts are attributed to the state itself.

Issue 4--non-justiciability

    If I am right that Senator Pinochet is entitled to immunity at common law, and under the statute, then the question of Non-justiciability does not arise. But I regard it as a question of overriding importance in the present context, so I intend to say something about it.

    The principle of non-justiciability may be traced back to the same source as head of state immunity, namely, the Duke of Brunswick v. The King of Hanover. Since then the principles have developed separately; but they frequently overlap, and are sometimes confused. The authoritative expression of modern doctrine of non-justiciability is to be found in the speech of Lord Wilberforce in Buttes Gas and Oil Co. v. Hammer [1982] A.C. 888. One of the questions in that case was whether there exists in English law a general principle that the courts will not adjudicate upon the transactions of foreign sovereign states. Lord Wilberforce answered the question in the affirmative. At 932 he said:

      "In my opinion there is, and for long has been, such a general principle, starting in English law, adopted and generalised in the law of the United States of America which is effective and compelling in English courts. This principle is not one of discretion, but is inherent in the very nature of the judicial process."

Lord Wilberforce traces the principle from Duke of Brunswick v. King of Hanover through numerous decisions of the Supreme Court of the United States including Underhill v. Hernandez, Oetjen v. Central Leather Co. (1918) 246 U.S. 297 and Banco Nacional de Cuba v. Sabbatino (1964) 376 U.S. 398. In the latter case Lord Wilberforce detected a more flexible use of the principle on a case-by-case basis. This is borne out by the most recent decision of the Supreme Court in W.S. Kirkpatrick & Co. Inc. v. Environmental Tectonics Corporation International (1990) 493 U.S. 400. These and other cases are analysed in depth by Mance J. in his judgment in Kuwait Airways Corporation v. Iraqi Airways Co. (unreported) 29 July 1998, from which I have derived much assistance. In the event Mance J. held that judicial restraint was not required on the facts of that case. The question is whether it is required (or would be required if head of state immunity were not a sufficient answer) on the facts of the present case. In my opinion there are compelling reasons for regarding the present case as falling within the non-justiciability principle.

    In the Buttes Gas case the court was being asked "to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were 'unlawful' under international law." Lord Wilberforce concluded that the case raised issues upon which a municipal court could not pass. In the present case the State of Spain is claiming the right to try Senator Pinochet, a former head of state, for crimes committed in Chile, some of which are said to be in breach of international law. They have requested his extradition. Other states have also requested extradition. Meanwhile Chile is demanding the return of Senator Pinochet on the ground that the crimes alleged against him are crimes for which Chile is entitled to claim state immunity under international law. These crimes were the subject of a general amnesty in 1978, and subsequent scrutiny by the Commission of Truth and Reconciliation in 1990. The Supreme Court in Chile has ruled that in respect of at least some of these crimes the 1978 amnesty does not apply. It is obvious, therefore, that issues of great sensitivity have arisen between Spain and Chile. The United Kingdom is caught in the crossfire. In addition there are allegations that Chile was collaborating with other states in South America, and in particular with Argentina, in execution of Plan Condor.