However, two further parts of the judgment are to be noted. First, it appears that the explosives were left in the embassy when the ambassador was absent, and his involvement began after the explosives had been left in the embassy. The report states:
"The investigation conducted by the Public Prosecutor's Office concluded that the bombing attack was planned and carried out by a terrorist group. The complainant's sending state had, in a telegram, instructed its embassy in East Berlin to provide every possible assistance to the group. In the middle of August 1983 a member of the terrorist group appeared in the embassy while the complainant was absent and requested permission from the then third secretary to deposit a bag in the embassy. In view of the telegram, which was known to him, the third secretary granted that permission.
"Later, the member of the terrorist group returned to the embassy and asked the third secretary to transport the bag to West Berlin for him in an embassy car. At the same time, he revealed that there were explosives in the bag. The third secretary informed the complainant of the request. The complainant first ordered the third secretary to bring him the telegram, in order to read through the text carefully once again, and then decided that the third secretary could refuse to provide the transportation. After the third secretary had returned and informed the terrorist of this, the terrorist took the bag, left the embassy and conveyed the explosive in an unknown manner towards West Berlin."
It appears that these facts were taken into account by the constitutional court when it stated:
"The complainant acted in the exercise of his official functions as a member of the mission, within the meaning of Article 39(2)(2) of the VCDR, because he is charged with an omission that lay within the sphere of his responsibility as ambassador, and which is to that extent attributable to the sending state.
"The complainant was charged with having done nothing to prevent the return of the explosive. The Court of Appeal derived the relevant obligation of conduct out of the official responsibility of the complainant, as leader of the mission, for objects left in the embassy. After the explosive was left in the embassy and therefore in the complainant's sphere of control and responsibility, he was obligated, within the framework of his official duties, to decide how the explosive would then be dealt with. The complainant made such a decision, apparently on the basis of the telegraphed instruction from his sending state, so that private interests are not discernible (on the classification of activities on the basis of instructions see the Bingham Case in McNair, International Law Opinions, Vol. 1, 1956, p. 196 at 197; Denza, Diplomatic Law, 1976, p. 249 f.; Salmon Manuel de Droit Diplomatique, 1994, p. 458 ff.). Instead, the complainant responded to the third secretary directly, in his position as the superior official, and, according to the view of the Court of Appeal, sought the best solution for the embassy."
In addition the constitutional court stated that the rules of diplomatic law constitute a self-contained regime and drew a distinction between the immunity of a diplomat and the immunity of a head of state or governmental official and stated:
"Article 7 of the Charter of the International Military Tribunal of Nuremberg (UNTS. Vol. 82, p. 279)  and following it Article 7(2) of the Statute of the International Criminal Tribunal for Yugoslavia (ILM 32 (1993), p. 1192), as well as Article 6(2) of the Statute for the International Criminal Tribunal for Rwanda (ILM 33 (1994), p. 1602) state that the official position of an accused, whether as a leader of a state or as a responsible official in a Government department, does not serve to free him from responsibility or mitigate punishment. Exemptions from immunity for cases of war criminals, violations of international law and offences against jus cogens under international law have been discussed as developments of this rule. . . .However, as the wording of Article 7 of the Charter of the International Military Tribunal of Nuremberg makes clear, these exceptions are relevant only to the applicable law of state organs that flows directly from it, in particular for members of the Government, and not to diplomatic immunity.
"State immunity and diplomatic immunity represent two different institutions of international law, each with their own rules, so that no inference can be drawn from any restrictions in one sphere as to possible effects in the other."
Therefore I consider that the passage in the judgment relied on by counsel does not give support to the argument that acts of torture, although criminal, can be regarded as functions of a head of state.
In 1946 the General Assembly of the United Nations affirmed: "The principles of international law recognised by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal" and gave the following directive to its International Law Commission:
"This Committee on the codification of international law established by the resolution of the General Assembly of 11 December 1946, to treat as a matter of primary importance plans for the formulation, in the context of a general codification of offences against the peace and security of mankind, or of an international criminal code, of the principles recognised in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal."
Pursuant to this directive the 1950 Report of the International Law Commission to the General Assembly set out the following principle followed by the commentary contained in paragraph 103:
"The fact that a person who committed an act which constitutes a crime under international law acted as head of state or responsible Government official does not relieve him from responsibility under international law.
"103. This principle is based on article 7 of the Charter of the Nürnberg Tribunal. According to the Charter and the judgment, the fact that an individual acted as head of state or responsible government official did not relieve him from international responsibility. 'The principle of international law which, under certain circumstances, protects the representatives of a state',said the Tribunal, 'cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment . . . .' The same idea was also expressed in the following passage of the findings: 'He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorising action moves outside its competence under international law."
The 1954 International Law Commission draft code of offences against the peace and security of mankind provided in Article III:
"The fact that a person acted as head of state or as responsible Government official does not relieve him of responsibility for committing any of the offences defined in the code."
The Statute of the International Tribunal for the former Yugoslavia established by the Security Council of the United Nations in 1993 for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 provided in Article 7 paragraph 2:
"The official position of any accused person, whether as head of state or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment."
The Statute of the International Tribunal for Rwanda established by the Security Council of the United Nations in 1994 for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda in 1994 provided in Article 6 paragraph 2:
"The official position of any accused person, whether as head of state or Government or as a responsible Government official shall not relieve such person of criminal responsibility nor mitigate punishment."
The 1996 draft code of the International Law Commission of Crimes against the Peace and Security of Mankind provided in Article 7:
"The official position of an individual who commits a crime against the peace and security of mankind, even if he acted as head of state of Government, does not relieve him of criminal responsibility or mitigate punishment."
In July 1998 in Rome the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court adopted the Statute of the International Criminal Court. The Preamble to the Statute states (inter alia):
"Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity,
"Recognizing that such grave crimes threaten the peace, security and well-being of the world,
"Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,
"Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,
"Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole.
"Emphasising that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions.
"Resolved to guarantee lasting respect for the enforcement of international justice,
"Have agreed as follows:"
Article 5 of the Statute provides that jurisdiction of the court shall be limited to the most serious crimes of concern to the international community as a whole which include crimes against humanity. Article 7 states that "crime against humanity" means a number of acts including murder and torture when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.
Article 27 provides:
"1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a head of state or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
"2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the court from exercising its jurisdiction over such a person."
Therefore since the end of the second world war there has been a clear recognition by the international community that certain crimes are so grave and so inhuman that they constitute crimes against international law and that the international community is under a duty to bring to justice a person who commits such crimes. Torture has been recognised as such a crime. The preamble to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 ("the Torture Convention), which has been signed by the United Kingdom, Spain and Chile and by over one hundred other nations, states:
"Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
"Recognizing that those rights derive from the inherent dignity of the human person,
"Considering the obligation of states under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,
"Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,
"Having regard also to the Declaration on Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly on 9 December 1975
"Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,
"Have agreed as follows:"
Article 1 defines "torture" as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes specified in the Article such as punishment or intimidation or obtaining information or a confession, and such pain and suffering is inflicted "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
The Convention then contains a number of Articles designed to make the measures against public officials who commit acts of torture more effective. In their handbook on the Convention, Burgers and Danelius stated at p. 1:
"It is expedient to redress at the outset a widespread misunderstanding as to the objective of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly of the United Nations in 1984. Many people assume that the Convention's principal aim is to outlaw torture and other cruel, inhuman or degrading treatment or punishment. This assumption is not correct insofar as it would imply that the prohibition of these practices is established under international law by the Convention only and that this prohibition will be binding as a rule of international law only for those states which have become parties to the Convention. On the contrary, the Convention is based upon the recognition that the above-mentioned practices are already outlawed under international law. The principal aim of the Convention is to strengthen the existing prohibition of such practices by a number of supportive measures."
As your Lordships hold that there is no jurisdiction to extradite Senator Pinochet for acts of torture prior to 29 September 1988, which was the date on which section 134 of the Criminal Justice Act 1988 came into operation, it is unnecessary to decide when torture became a crime against international law prior to that date, but I am of opinion that acts of torture were clearly crimes against international law and that the prohibition of torture had required the status of ius cogens by that date.
The appellants accepted that in English courts a serving head of state is entitled (ratione personae) to immunity in respect of acts of torture which he has committed. Burgers and Danelius, referring to the obligation of a state party to the convention to establish its jurisdiction over offences of torture, recognise that some special immunities may exist in respect of acts of torture and state at p. 131:
"under international or national law, there may be certain limited exceptions to this rule, e.g. in relation to foreign diplomats, foreign troops, parliament members or other categories benefiting from special immunities, and such immunities may be accepted insofar as they apply to criminal acts in general and are not unduly extensive."
It is also relevant to note that article 98 of the Rome Statute establishing the International Criminal Court provides:
"The court may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person or property of a third state, unless the court can first obtain the cooperation of that third state for the waiver of the immunity."
But the issue in the present case is whether Senator Pinochet, as a former head of state, can claim immunity (ratione materiae) on the grounds that acts of torture committed by him when he was head of state were done by him in exercise of his functions as head of state. In my opinion he is not entitled to claim such immunity. The Torture Convention makes it clear that no state is to tolerate torture by its public officials or by persons acting in an official capacity and Article 2 requires that:
"1. Each state party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."
Article 2 further provides that:
"2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."
Article 4 provides:
"1. Each state party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture."
"2. Each state party shall make these offences punishable by appropriate penalties which take into account their grave nature."
Article 7 provides:
"1. The state party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution."
I do not accept the argument advanced by counsel on behalf of Senator Pinochet that the provisions of the Convention were designed to give one state jurisdiction to prosecute a public official of another state in the event of that state deciding to waive state immunity. I consider that the clear intent of the provisions is that an official of one state who has committed torture should be prosecuted if he is present in another state.
Therefore having regard to the provisions of the Torture Convention, I do not consider that Senator Pinochet or Chile can claim that the commission of acts of torture after 29 September 1988 were functions of the head of state. The alleged acts of torture by Senator Pinochet were carried out under colour of his position as head of state, but they cannot be regarded as functions of a head of state under international law when international law expressly prohibits torture as a measure which a state can employ in any circumstances whatsoever and has made it an international crime. It is relevant to observe that in 1996 the military government of Chile informed a United Nations working group on human rights violations in Chile that torture was unconditionally prohibited in Chile, that the Constitutional prohibition against torture was fully enforced and that:
"It is therefore apparent that the practice of inflicting unlawful ill-treatment has not been instituted in our country as is implied by the resolution [a UN resolution critical of Chile] and that such ill-treatment is not tolerated; on the contrary, a serious, comprehensive and coherent body of provisions exist to prevent the occurrence of such ill-treatment and to punish those responsible for any type of abuse."
It is also relevant to note that in his opening oral submissions on behalf of Chile Dr. Lawrence Collins Q.C. stated:
"the Government of Chile, several of whose present members were in prison or exile during those years, deplores the fact that the governmental authorities of the period of the dictatorship committed major violations of human rights in Chile. It reaffirms its commitment to human rights, including the prohibition of torture."
In its written submissions (which were repeated by Dr. Collins in his oral submissions) Chile stated:
"The Republic intervenes to assert its own interest and right to have these matters dealt with in Chile. The purpose of the intervention is not to defend the actions of Senator Pinochet whilst he was head of state. Nor is the purpose to prevent him from being investigated and tried for any crime he is alleged to have committed whilst in office, provided that any investigation and trial takes place in the only appropriate courts, namely those of Chile. The democratically elected Government of the Republic of Chile upholds the commitment of the Republic under international conventions to the maintenance and promotion of human rights. The position of the Chilean Government on state immunity is not intended as a personal shield for Senator Pinochet, but is intended to defend Chilean national sovereignty, in accordance with generally accepted principles of international law. Its plea, therefore, does not absolve Senator Pinochet from responsibility in Chile if the acts alleged against him are proved."
My Lords, the position taken by the democratically elected Government of Chile that it desires to defend Chilean national sovereignty and considers that any investigation and trial of Senator Pinochet should take place in Chile is understandable. But in my opinion that is not the issue which is before your Lordships; the issue is whether the commission of acts of torture taking place after 29 September 1988 was a function of the head of state of Chile under international law. For the reasons which I have given I consider that it was not.
Article 32(2) of the Vienna Convention set out in Schedule 1 to the Diplomatic Privileges Act 1964 provides that: "waiver must always be express." I consider, with respect, that the conclusion that after 29 September 1988 the commission of acts of torture was not under international law a function of the head of state of Chile does not involve the view that Chile is to be taken as having impliedly waived the immunity of a former head of state. In my opinion there has been no waiver of the immunity of a former head of state in respect of his functions as head of state. My conclusion that Senator Pinochet is not entitled to immunity is based on the view that the commission of acts of torture is not a function of a head of state, and therefore in this case the immunity to which Senator Pinochet is entitled as a former head of state does not arise in relation to, and does not attach to, acts of torture.
A number of international instruments define a crime against humanity as one which is committed on a large scale. Article 18 of the Draft Code of Crimes against the Peace and Security of Mankind 1996 provides:
"A crime against humanity means any of the following acts, when committed in a systematic manner on a large scale or instigated or directed by a Government or any organisation or a group:
And article 7 of the 1998 Rome Statute of the International Criminal Court provides:
"For the purposes of this Statute, 'crime against humanity' means any of the following acts when committed as part of a wide spread or systematic attack directed against any civilian population, with knowledge of the attack:
However, article 4 of the Torture Convention provides that:
"Each state party shall ensure that all acts of torture are offences under its criminal law." (emphasis added)
Therefore I consider that a single act of torture carried out or instigated by a public official or other person acting in a official capacity constitutes a crime against international law, and that torture does not become an international crime only when it is committed or instigated on a large scale. Accordingly I am of opinion that Senator Pinochet cannot claim that a single act of torture or a small number of acts of torture carried out by him did not constitute international crimes and did not constitute acts committed outside the ambit of his functions as head of state.
For the reasons given by Oppenheim at p. 545, which I have cited in an earlier part of this judgment, I consider that under international law Chile is responsible for acts of torture carried out by Senator Pinochet, but could claim state immunity if sued for damages for such acts in a court in the United Kingdom. Senator Pinochet could also claim immunity if sued in civil proceedings for damages under the principle stated in Jaffe v. Miller. But I am of opinion that there is no inconsistency between Chile and Senator Pinochet's entitlement to claim immunity if sued in civil proceedings for damages and Senator Pinochet's lack of entitlement to claim immunity in criminal proceedings for torture brought against him personally. This distinction between the responsibility of the state for the improper and unauthorised acts of a state official outside the scope of his functions and the individual responsibility of that official in criminal proceedings for an international crime is recognised in Article 4 and the commentary thereon in the 1996 draft Report of the International Law Commission:
"Responsibility of States
The fact that the present Code provides for the responsibility of individuals for crimes against the peace and security of mankind is without prejudice to any question of the responsibility of states under international law.
(1) Although, as made clear by article 2, the present Code addresses matters relating to the responsibility of individuals for the crimes set out in Part II, it is possible, indeed likely, as pointed out in the commentary to article 2, that an individual may commit a crime against the peace and security of mankind as an 'agent of the State', 'on behalf of the State', 'in the name of the State' or even in a de facto relationship with the state, without being vested with any legal power.
(2) The 'without prejudice' clause contained in article 4 indicates that the present Code is without prejudice to any question of the responsibility of a state under international law for a crime committed by one of its agents. As the commission already emphasised in the commentary to article 19 of the draft articles on state responsibility, the punishment of individuals who are organs of the state 'certainly does not exhaust the prosecution of the international responsibility incumbent upon the state for internationally wrongful acts which are attributed to it in such cases by reason of the conduct of its organs'. The state may thus remain responsible and be unable to exonerate itself from responsibility by invoking the prosecution or punishment of the individuals who committed the crime."