|Judgment - Regina v. Bartle and the Commissioner of Police
for the Metropolis and Others Ex Parte Pinochet|
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) continued
There would seem to be two explanations for immunity ratione materiae. The first is that to sue an individual in respect of the conduct of the state's business is, indirectly, to sue the state. The state would be obliged to meet any award of damage made against the individual. This reasoning has no application to criminal proceedings. The second explanation for the immunity is the principle that it is contrary to international law for one state to adjudicate upon the internal affairs of another state. Where a state or a state official is impleaded, this principle applies as part of the explanation for immunity. Where a state is not directly or indirectly impleaded in the litigation, so that no issue of state immunity as such arises, the English and American courts have nonetheless, as a matter of judicial restraint, held themselves not competent to entertain litigation that turns on the validity of the public acts of a foreign state, applying what has become known as the act of state doctrine. Two citations well illustrate the principle:
1. Underhill v. Hernandez (1897) 168 U.S. 456 at p. 457 (per Fuller C.J.):
2. Buck v. Att. Gen.  Ch. 475, 770, per Diplock L.J.
It is contended on behalf of the respondent that the question of whether an official is acting in a public capacity does not depend upon whether he is acting within the law of the state on whose behalf he purports to act, or even within the limits of international law. His conduct in an official capacity will, whether lawful or unlawful, be conduct of the state and the state will be entitled to assert immunity in respect of it. In the field of civil litigation these propositions are supported by authority. There are a number of instances where plaintiffs have impleaded states claiming damages for injuries inflicted by criminal conduct on the part of state officials which allegedly violated international law. In those proceedings it was of the essence of the plaintiffs' case that the allegedly criminal conduct was conduct of the state and this was not generally in issue. What was in issue was whether the criminality of the conduct deprived the state of immunity and on that issue the plaintiffs failed. Counsel for the Respondent provided us with an impressive, and depressing, list of such case:
Saltany v. Reagan (1988) 702 F. Supp. 319 (claims of assassination and terrorism); Siderman de Blake v. Republic of Argentine (1992) 965 F.2d 699 (claim of torture); Princz v. Federal Republic of Germany (1994) 26 F. 3d 1166 (D.C. Cir. 1994) (claim in respect of the holocaust); Al-Adsani v. Government of Kuwait (1996) 107 I.L.R. 536 (claim of torture); Sampson v. Federal Republic of Germany 975 F. Supp. 1108 (N.D. I11. 1997) (claim in respect of the holocaust); Smith v. Libya, 886 F. Supp. 406 (EDNY, 1995) 101 F. 3d 239 (2d Cir. 1996) (claim in respect of Lockerbie bombing); Persinger v. Islamic Republic of Iran 729 F.2d 835, (D.C. Cir. 1984) (claim in relation to hostage taking at the U.S. Embassy).
It is to be observed that all but one of those cases involved decisions of courts exercising the federal jurisdiction of the United States, Al-Adsani v. Government of Kuwait being a decision of the Court of Appeal of this country. In each case immunity from civil suit was afforded by statute--in America, the Foreign Sovereign Immunities Act and, in England, the State Immunity Act 1978. In each case the court felt itself precluded by the clear words of the statute from acceding to the submission that state immunity would not protect against liability for conduct which infringed international law.
The vital issue.
The submission advanced on behalf of the respondent in respect of the effect of public international law can, I believe, be summarised as follows:
1. One state will not entertain judicial proceedings against a former head of state or other state official of another state in relation to conduct performed in his official capacity.
2. This rule applies even if the conduct amounts to a crime against international law.
3. This rule applies in relation to both civil and criminal proceedings.
For the reasons that I have given and if one proceeds on the premise that Part I of the State Immunity Act correctly reflects current international law, I believe that the first two propositions are made out in relation to civil proceedings. The vital issue is the extent to which they apply to the exercise of criminal jurisdiction in relation to the conduct that forms the basis of the request for extradition. This issue requires consideration of the nature of that jurisdiction.
The development of international criminal law.
In the latter part of this century there has been developing a recognition among states that some types of criminal conduct cannot be treated as a matter for the exclusive competence of the state in which they occur. In the 9th edition of Oppenheim, published in 1992, the authors commented at p. 998:
The appellants, and those who have on this appeal been given leave to support them, contend that this passage, which appears verbatim in earlier editions, is out of date. They contend that international law now recognises a category of criminal conduct with the following characteristics:
1) It is so serious as to be of concern to all nations and not just to the state in which it occurs.
2) Individuals guilty of it incur criminal responsibility under international law.
3) There is universal jurisdiction in respect of it. This means that international law recognises the right of any state to prosecute an offender for it, regardless of where the criminal conduct took place.
4) No state immunity attaches in respect of any such prosecution.
My Lords, this is an area where international law is on the move and the move has been effected by express consensus recorded in or reflected by a considerable number of international instruments. Since the Second World War states have recognised that not all criminal conduct can be left to be dealt with as a domestic matter by the laws and the courts of the territories in which such conduct occurs. There are some categories of crime of such gravity that they shock the consciousness of mankind and cannot be tolerated by the international community. Any individual who commits such a crime offends against international law. The nature of these crimes is such that they are likely to involve the concerted conduct of many and liable to involve the complicity of the officials of the state in which they occur, if not of the state itself. In these circumstances it is desirable that jurisdiction should exist to prosecute individuals for such conduct outside the territory in which such conduct occurs.
I believe that it is still an open question whether international law recognises universal jurisdiction in respect of international crimes--that is the right, under international law, of the courts of any state to prosecute for such crimes wherever they occur. In relation to war crimes, such a jurisdiction has been asserted by the State of Israel, notably in the prosecution of Adolf Eichmann, but this assertion of jurisdiction does not reflect any general state practice in relation to international crimes. Rather, states have tended to agree, or to attempt to agree, on the creation of international tribunals to try international crimes. They have however, on occasion, agreed by conventions, that their national courts should enjoy jurisdiction to prosecute for a particular category of international crime wherever occurring.
The principle of state immunity provides no bar to the exercise of criminal jurisdiction by an international tribunal, but the instruments creating such tribunals have tended, nonetheless, to make it plain that no exception from responsibility or immunity from process is to be enjoyed by a head of state or other state official. Thus the Charter of the Nuremberg Tribunal 1945 provides by Article 7:
The Tokyo Charter of 1946, the Statute of the International Criminal Tribunal for the former Yugoslavia of 1993, the Statute of the International Criminal Tribunal for Rwanda 1994 and the Statute of the International Criminal Court 1998 all have provisions to like effect.
Where states, by convention, agree that their national courts shall have jurisdiction on a universal basis in respect of an international crime, such agreement cannot implicitly remove immunities ratione personae that exist under international law. Such immunities can only be removed by express agreement or waiver. Such an agreement was incorporated in the Convention on the Prevention and Suppression of the Crime of Genocide 1984, which provides:
Had the Genocide Convention not contained this provision, an issue could have been raised as to whether the jurisdiction conferred by the Convention was subject to state immunity ratione materiae. Would international law have required a court to grant immunity to a defendant upon his demonstrating that he was acting in an official capacity? In my view it plainly would not. I do not reach that conclusion on the ground that assisting in genocide can never be a function of a state official. I reach that conclusion on the simple basis that no established rule of international law requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime. International crimes and extra-territorial jurisdiction in relation to them are both new arrivals in the field of public international law. I do not believe that state immunity ratione materiae can co-exist with them. The exercise of extra-territorial jurisdiction overrides the principle that one state will not intervene in the internal affairs of another. It does so because, where international crime is concerned, that principle cannot prevail. An international crime is as offensive, if not more offensive, to the international community when committed under colour of office. Once extra-territorial jurisdiction is established, it makes no sense to exclude from it acts done in an official capacity.
There can be no doubt that the conduct of which Senator Pinochet stands accused by Spain is criminal under international law. The Republic of Chile has accepted that torture is prohibited by international law and that the prohibition of torture has the character of jus cogens and or obligation erga omnes. It is further accepted that officially sanctioned torture is forbidden by international law. The information provided by Spain accuses Senator Pinochet not merely of having abused his powers as head of state by committing torture, but of subduing political opposition by a campaign of abduction, torture and murder that extended beyond the boundaries of Chile. When considering what is alleged, I do not believe that it is correct to attempt to analyse individual elements of this campaign and to identify some as being criminal under international law and others as not constituting international crimes. If Senator Pinochet behaved as Spain alleged, then the entirety of his conduct was a violation of the norms of international law. He can have no immunity against prosecution for any crime that formed part of that campaign.
It is only recently that the criminal courts of this country acquired jurisdiction, pursuant to Section 134 of the Criminal Justice Act 1984, to prosecute Senator Pinochet for torture committed outside the territorial jurisdiction, provided that it was committed in the performance, or purported performance, of his official duties. Section 134 was passed to give effect to the rights and obligations of this country under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, to which the United Kingdom, Spain and Chile are all signatories. That Convention outlaws the infliction of torture "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 required to make such conduct criminal under its law, wherever committed. More pertinently, each state party is required to prosecute any person found within its jurisdiction who has committed such an offence, unless it extradites that person for trial for the offence in another state. The only conduct covered by this Convention is conduct which would be subject to immunity ratione materiae, if such immunity were applicable. The Convention is thus incompatible with the applicability of immunity ratione materiae. There are only two possibilities. One is that the States Parties to the Convention proceeded on the premise that no immunity could exist ratione materiae in respect of torture, a crime contrary to international law. The other is that the States Parties to the Convention expressly agreed that immunity ratione materiae should not apply in the case of torture. I believe that the first of these alternatives is the correct one, but either must be fatal to the assertion by Chile and Senator Pinochet of immunity in respect of extradition proceedings based on torture.
The State Immunity Act 1978.
I have referred earlier to Part I of the State Immunity Act 1978, which does not apply to criminal proceedings. Part III of the Act, which is of general application is headed "Miscellaneous and Supplementary". Under this Part, Section 20 provides:
(a) a sovereign or other head of state;
(b) members of his family forming part of his household; and
(c) his private servants,
The Diplomatic Privileges Act 1964 was passed to give effect to the Vienna Convention on Diplomatic Relations of 1961. The preamble to the Convention records that "peoples of all nations from ancient times have recognised the status of diplomatic agents". The Convention codifies long standing rules of public international law as to the privileges and immunities to be enjoyed by a diplomatic mission. The Act of 1964 makes applicable those Articles of the Convention that are scheduled to the Act. These include Article 29, which makes the person of a diplomatic agent immune from any form of detention and arrest, Article 31 which confers on a diplomatic agent immunity from the criminal and civil jurisdiction of the receiving state and Article 39, which includes the following provisions:
The question arises of how, after the "necessary modifications", these provisions should be applied to a head of state. All who have so far in these proceedings given judicial consideration to this problem have concluded that the provisions apply so as to confer the immunities enjoyed by a diplomat upon a head of state in relation to his actions wherever in the world they take place. This leads to the further conclusion that a former head of state continues to enjoy immunity in respect of acts committed "in the exercise of his functions" as head of state, wherever those acts occurred.
For myself, I would not accord Section 20 of the Act of 1978 such broad effect. It seems to me that it does no more than to equate the position of a head of state and his entourage visiting this country with that of a diplomatic mission within this country. Thus interpreted, Section 20 accords with established principles of international law, is readily applicable and can appropriately be described as supplementary to the other Parts of the Act. As Lord Browne-Wilkinson has demonstrated, reference to the parliamentary history of the Section discloses that this was precisely the original intention of Section 20, for the section expressly provided that it applied to a head of state who was "in the United Kingdom at the invitation or with the consent of the Government of the United Kingdom". Those words were deleted by amendment. The mover of the amendment explained that the object of the amendment was to ensure that heads of state would be treated like heads of diplomatic missions "irrespective of presence in the United Kingdom".
Senator Pinochet and Chile have contended that the effect of Section 20, as amended, is to entitle Senator Pinochet to immunity in respect of any acts committed in the performance of his functions as head of state anywhere in the world, and that the conduct which forms the subject matter of the extradition proceedings, insofar as it occurred when Senator Pinochet was head of state, consisted of acts committed by him in performance of his functions as head of state.
If these submissions are correct, the Act of 1978 requires the English court to produce a result which is in conflict with international law and with our obligations under the Torture Convention. I do not believe that the submissions are correct, for the following reasons:
As I have explained, I do not consider that Section 20 of the Act of 1978 has any application to conduct of a head of state outside the United Kingdom. Such conduct remains governed by the rules of public international law. Reference to the parliamentary history of the section, which I do not consider appropriate, serves merely to confuse what appears to me to be relatively clear.
If I am mistaken in this view and we are bound by the Act of 1978 to accord to Senator Pinochet immunity in respect of all acts committed "in performance of his functions as head of state", I would not hold that the course of conduct alleged by Spain falls within that description. Article 3 of the Vienna Convention, which strangely is not one of those scheduled to the Act of 1964, defines the functions of a diplomatic mission as including "protecting in the receiving state the interests of the sending state and of its nationals, within the limits permitted by international law" [the emphasis is mine].
Insofar as Part III of the Act of 1978 entitles a former head of state to immunity in respect of the performance of his official functions I do not believe that those functions can, as a matter of statutory interpretation, extend to actions that are prohibited as criminal under international law. In this way one can reconcile, as one must seek to do, the provisions of the Act of 1978 with the requirements of public international law.
For these reasons, I would allow the appeal in respect of so much of the conduct alleged against Senator Pinochet as constitutes extradition crimes. I agree with Lord Hope as to the consequences which will follow as a result of the change in the scope of the case.
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