This article analyzes the 6-1 decision by the Appellate Committee of the House of Lords in Regina v. Bow Street Magistrate, ex parte Pinochet Ugarte, (hereinafter Pinochet III) denying the former head of state of Chile, Augusto Pinochet Ugarte, a writ of habeas corpus against his arrest on Spanish charges of human rights crimes.
In Pinochet I the House of Lords, by a 3-2 majority, had also denied the writ of habeas corpus. However, in Pinochet II this ruling was set aside because of links between one of the Law Lords who heard the appeal and Amnesty International, an intervener in the case. While the opinions of the Law Lords in Pinochet I remain as important precedents, the decision of 24 March 1999 in Pinochet III is the definitive ruling by the House of Lords which allowed the extradition proceedings against Pinochet to proceed.
The opinions in Pinochet III address the scope and reach of international law, particularly with regard to international human rights. All seven Law Lords on the Appellate Committee wrote opinions (“speeches”) addressing customary international law, the immunities of heads of state and former heads of state, fundamental norms of human rights and universal jurisdiction. As will be detailed below, the opinions of a number of Law Lords on these issues were relatively conservative. Four of the Law Lords, and at times more, concluded that: a former head of state enjoys immunity under customary international law for torture; the “official” acts of a head of state can include violations of jus cogens norms; customary international law does not provide national courts with universal jurisdiction over individual acts of torture; and official torture could be considered an “act of state.” As a result, a majority of the Law Lords required that both Chile and the U.K. had to have given some form of consent for the prosecution to proceed.
Four of the Law Lords found that the ratification of the Convention against Torture (CAT) by Chile and the U.K. provided the requisite consent. In important and positive rulings on this Convention, the majority found that the CAT barred torture carried out by heads of state; that it provided universal jurisdiction in national courts over the crime of torture; that its language was inconsistent with the immunity of a former head of state; and that Chile’s ratification was inconsistent with and/or had abrogated any immunity claimed by Pinochet. It was, thus, the Convention against Torture that allowed the Pinochet case to go forward.
As extraordinary as it was for a national court to find a former head of state subject to extradition for human rights offenses, the opinions were a mix of progressive and traditional concepts. Nearly all the Law Lords took note of developments since the prosecutions at Nuremberg, finding that official or state torture of a country’s own citizens was prohibited by the customary law of international human rights and that former officials could be held responsible for such conduct in international tribunals. However, for the majority, customary international law alone would have been insufficient as a basis upon which Pinochet’s extradition and prosecution for torture could have continued in national courts. Four of the Law Lords relied on somewhat outdated concepts of state sovereignty, at least in the area of international human rights, to require concurrence by the states involved, particularly Chile. Even violations of jus cogens norms by Pinochet were not sufficient to penetrate state sovereignty and the immunity attached to it. State sovereignty and the immunity that protects a state’s officials were overcome only by the Convention Against Torture.
Prior to reaching the question of Pinochet’s immunity from extradition, the Law Lords dealt with the issue of whether the charges against Pinochet satisfied the “double criminality” requirement of the Extradition Act of 1989. That rule requires that the acts alleged by the requesting state (Spain) constitute crimes both in that state and in the requested state (U.K.). Here again, the Law Lords chose a conservative path, one that limited the charges for which Pinochet could be extradited to those committed after 29 September 1988, when the Criminal Justice Act, the statute permitting the prosecution of extraterritorial torture in the U.K., took effect.
As a consequence of the “double criminality” ruling coupled with the ruling that his immunity was abrogated only after the CAT had been ratified by Spain, Chile and the U.K., Pinochet was subject to extradition solely for torture and conspiracy to torture committed after 8 December 1988. This sharply reduced the scope of the crimes examined in Pinochet I and upon which the Secretary of State had rendered his first decision to proceed with the extradition. Each of the six Law Lords in the majority emphasized this change in the scope of the charges and suggested that the Secretary of State reconsider his decision allowing the extradition. On 15 April 1999 the Secretary did so, issuing a second authority to proceed.
Analysis of Pinochet III
Facts and Issues
In Pinochet III, the Law Lords considered the extradition request from Spain that accused Pinochet of torture, murder, hostage taking and conspiracy to carry out each of these crimes. These acts were executed as part of a plan to overthrow the government of Chile and eliminate all opposition. According to the request, Pinochet’s opponents were to be tortured, “disappeared” and/or killed. The tortures included rape, other kinds of sexual assault, electroshocks, beatings and additional barbarities. The Chilean National Corporation of Reparation and Reconciliation and its predecessor, the National Commission of Truth and Reconciliation, also known as the Rettig Commission, documented the cases of 3,197 killings and “disappearances.” These acts were allegedly carried out in Chile, other countries in South America, the United States and Europe. The acts were alleged to have taken place even prior to the coup of 11 September 1973 and to have continued until 1 January 1990, shortly before Pinochet left office. There was no real dispute, even from Pinochet’s defense counsel, that “during the period of the Senator Pinochet regime appalling acts of barbarism were committed in Chile and elsewhere in the world: torture, murder and the unexplained disappearance of individuals, all on a large scale.”
All seven Law Lords viewed the case as presenting two major issues. First, whether the Spanish charges constituted “extradition crimes” within the meaning of the Extradition Act of 1989; and second, whether Pinochet, as a former head of state, was entitled to immunity from arrest and prosecution in the U.K. for crimes committed while he was Chile’s head of state.
No issue was raised as to whether the accusations against Pinochet were crimes under the law of Spain. Spanish law permitted extraterritorial jurisdiction over torture, murder and hostage taking in Chile under the universality principle; over crimes against Spanish nationals in Chile under the passive nationality principle; and over conspiracy to murder in Spain under the territoriality principle. The question for the Law Lords was whether the acts were crimes under the law of the U.K. The charges based upon Pinochet’s conduct in Spain, a minor part of the allegations, also presented little problem. They were based on the territoriality principle and such conduct would have at all relevant times been a crime in the U.K. The claims on behalf of Spanish citizens based on the passive nationality principle were rejected, since the U.K. does not recognize this principle with regard to its own nationals.
However the third category, based upon the principle of universal jurisdiction, and which contained the majority of the charges, caused difficulty for the court. Would torture in Chile constitute a crime in the U.K.? The language of the Extradition Act allows extradition only for conduct which “would constitute an extra-territorial offense” under the law of the United Kingdom. But does this language mean that the conduct had to constitute an offense under British law at the date of the offense or at the date of the extradition request from Spain? This was a crucial issue, for nearly all of the torture charges against Pinochet occurred before 29 September 1988, when U.K. courts were given extraterritorial jurisdiction over torture committed anywhere in the world. If the date was that of the extradition request, Pinochet could be extradited for the totality of his acts of torture.
Lord Browne-Wilkinson, who wrote the lead opinion on this issue which was followed by six of the seven judges, admitted that the words “would constitute” in the Act could be read “more easily” to refer to the date of the extradition request than to the date of the conduct. He nonetheless concluded that the acts had to have been crimes in the U.K. on the conduct date. He based this conclusion on a brief analysis of British extradition law in a different class of cases (for countries not parties to the European Convention on Extradition) and on language in the 1870 U.K. Extradition Act. Neither he nor any of the other judges elaborated further or offered any policy reason for choosing the conduct date.
The choice of the conduct date radically limited the charges for which Pinochet could be extradited. Indeed, of the 30 draft charges prepared by the prosecution to assist the court, the only charges remaining in the case were: (1) one act of torture committed in Chile on 24 June 1989; (2) conspiracy to commit torture in Chile (permitted because at least one act of torture was committed after the 29 September 1988 date); and (3) conspiracy to commit murder in Spain.
There is little legal or policy support for the Lords’ use of the conduct date; indeed, there appears to be authority for finding that the appropriate date for evaluating double criminality is at the time of the extradition request. Moreover, the Law Lords could have found that Pinochet’s conduct was criminal in the U.K. when it occurred. As a general matter, the importance of the double criminality principle itself is diminishing, in both the U.K. and the U.S. The rule is now less one of international law than a “consideration based on policy and expediency.” The U.S. and a number of other countries treat the double criminality rule liberally, and will extradite so long as there is an analogous crime in both legal systems at the time of the request. The U.S. Supreme Court has gone further still, holding that in some situations double criminality is not required. Recent cases in the U.K. also have given a liberal interpretation to the double criminality principle, although the issue of whether the act must have been a crime at the time of commission or of the extradition request is not clearly settled—or at least was not until Pinochet III.
Apart from these considerations, the plain language of the U.K. Extradition Act clearly points to the time of the extradition request. It refers to offenses which “would constitute” crimes in the U.K. and not “which did constitute” or “would have constituted” crimes– acts that are criminal in the present, and not in the past.
Second, from a policy standpoint, the double criminality rule provides a moral safeguard and seeks to insure that an extradition does not offend the public policy of the requested country. Unless the offense is currently an offense in the requested country, extradition may well offend that country’s policies. For example, if certain offenses had been decriminalized in the interim, such as smoking marijuana or engaging in homosexual acts, a country would not extradite persons accused of those offenses even though they had been crimes when committed. Or, in an example cited by the attorneys for the Crown Prosecution Service (CPS), some countries criminalized money laundering before the U.K. did so. If one of those countries sought the extradition of a money-launderer who had fled to the U.K., it would be inappropriate for the U.K. to refuse extradition because on the conduct date money-laundering was not a crime in England. It would be sufficient that it was currently a crime in England. Any other result would lead to the U.K becoming a safe haven for certain crimes. Although this argument was made, the Law Lords in Pinochet III never confronted this policy issue. Third, to the extent fairness to the defendant is a concern, it does not seem unfair to extradite Pinochet for acts of torture even if the U.K. did not have jurisdiction over such acts when they were committed. During the entire period of Pinochet’s rule, and long before, torture was prohibited by the laws of the U.K., Spain and Chile.
Finally, even if the Law Lords insisted on reading the Extradition Act as requiring that the offenses be crimes in the U.K on the date committed, they could have found §134 of the Criminal Justice Act of 1988, which criminalized extraterritorial torture, to be retroactive. No new crime was delineated; torture, a crime malum in se, has been a crime in countries throughout the world including Chile, the U.K. and Spain for a very long time. What’s more, holding §134 to be retroactive would not offend the principle of nullum crimen sine lege (no crime without law). The Criminal Justice Act merely conferred jurisdiction on the courts of the U.K. to prosecute torture that occurred outside its borders. In Landgraf v. USI Film Products, the United States Supreme Court noted that application of a new jurisdictional rule usually “takes away no substantive right but simply changes the tribunal that is to hear the case.”
In other words, the Law Lords had choices. A variety of alternate theories would have permitted extradition for the hundreds of crimes for which Pinochet was charged. A number of these crimes were committed in Chile, allegedly under Pinochet’s direction, even prior to his becoming head of state. Head of state immunity would not be available for these crimes.
Immunity of a Former Head of State
The Law Lords next had to determine whether as a former head of state Pinochet was immune from arrest and extradition proceedings in the United Kingdom with respect to criminal acts (those that met the “double criminality” rule) committed while he was head of state. Six of the Law Lords decided that he did not have such immunity for torture and conspiracy to commit torture. These opinions are complex and difficult to decipher. Although there were differences among the Lords, there was broad agreement on a number of important issues deriving from the statutory law in the U.K. with regard to immunity.
The Law Lords viewed the immunity of a former head of state as derivative of the principle of state immunity and therefore looked to the U.K.’s State Immunity Act of 1978. While similar to the Foreign Sovereign Immunities Act of the United States, the U.K. Act specifically addresses the immunities of heads of state. Part I of the U.K. Act, which applies only to civil suits, adopts the restrictive theory of immunity, permitting exceptions for suits on commercial matters and injuries caused by activities within the U.K. Part III of the Act is the most relevant to the Pinochet case. It states that “subject…to any necessary modifications, the Diplomatic Privileges Act of 1964 shall apply to a sovereign or other head of state in the same way it applies to the head of a diplomatic mission.” The Diplomatic Privileges Act states that the Vienna Convention on Diplomatic Relations of 1961 (hereinafter the Vienna Convention) “shall have the force of law in the United Kingdom.”
The Vienna Convention does not deal with heads of state, but with diplomats, and therefore its language must be read “with necessary modifications.” Article 31(1), when so modified, gives a head of state “immunity from the criminal jurisdiction of the receiving state.” Under the law of the U.K. this type of immunity is termed immunity ratione personae. It is a status immunity given to a current head of state (or an ambassador) and renders him immune from all actions or prosecutions whether or not they were done for the benefit of the state. In Pinochet III there was no real dispute regarding this type of immunity as to a current head of state under either the statute or customary international law. The problem arose with regard to the immunity of a former head of state for acts carried out while in office.
It took the Lords some twisting and turning to fit former heads of state into the language of the Vienna Convention. Article 39(1) of the Vienna Convention immunizes a former diplomat “in the exercise of his functions as a member of the mission….” The majority of the Lords modified this article to accord a former head of state immunity from criminal process in relation to his official acts as head of state, whether committed in Chile, the UK. or elsewhere. In the U.K., this type of immunity is referred to as immunity ratione materiae, as it is an immunity based upon conduct or acts. This same immunity applies not only to heads of state, but to all state officials who carry out their functions on behalf of the state. As Lord Browne-Wilkinson explained:
The effect is that a head of state will, under the statute, as at international law, enjoy state immunity so long as he is in office, and after he ceases to hold office will enjoy the concomitant immunity ratione materiae ‘in respect of acts performed [by him] in the exercise of his functions [as head of state]….’
The majority of the Law Lords treated this statutory immunity for a former head of state as reflective of customary international law. Moreover, the Preamble of the Vienna Convention mandates that questions regarding immunity not answered by the Convention should be governed by customary international law. Thus, to the extent there were questions regarding Pinochet’s immunity, the Law Lords employed customary international law (and obviously convention law) to make their determination.
Torture as a Function of a Head of State
The Law Lords first considered whether the Spanish allegations against Pinochet were for official acts he performed as head of state or, as Lord Browne-Wilkinson phrased it, “as part of his official functions as head of state.” Even if the acts were carried out under the color of his authority, could the official functions of a head of state include acts which were criminal under his state’s constitution, under customary international law, or both? The Lords gave a variety of answers to these questions. Three of the Law Lords decided, although for different reasons, that torture and conspiracy to commit torture could not fall within the official functions of a head state.
Lord Browne-Wilkinson found that acts criminal under local law could be, nevertheless, “official” and give rise to immunity ratione materiae. He also found that, although under customary international law torture was an international crime and a violation of a jus cogens norm, prior to ratification of the CAT the organization of state torture could still constitute an official function of a head of state. He reasoned that until the CAT, national courts had no jurisdiction to punish acts of torture committed abroad and, therefore, it was not a “fully constituted crime.” However, once the CAT gave domestic courts worldwide universal
jurisdiction to prosecute torture, it was such a crime. At that point as a matter of international law, torture could no longer be an official function of a head of state, at least for those states that had ratified the CAT. Therefore, for Lord Browne-Wilkinson, ratification of the CAT by Chile on 30 October 1988 and subsequently by the U.K. effective on 8 December 1988, were determinative. As of this latter date, Pinochet could be prosecuted for torture and conspiracy to commit torture because it had become a “fully constituted” international crime.
Lord Hutton found that the acts of torture committed by Pinochet, while carried out “under colour of his position as head of state…cannot be regarded as functions of a head of state” when torture is an international crime prohibited in all circumstances. Thus, Pinochet could claim no immunity; indeed, immunity did not even arise, as torture was not a function of a head of state. However, unlike Lord Browne-Wilkinson, it was not Chile’s consent to the CAT that was necessary. He specifically declined to rely on any implied waiver of immunity by Chile. For Lord Hutton, by 29 September 1988 (when the U.K. acquired extraterritorial jurisdiction over torture through the Criminal Justice Act), torture was a crime under international law and had acquired the status of jus cogens.
In a departure from all of the other Lords, Lord Phillips found that there was no customary international law rule affording immunity to a former head of state. He argued that no state practice to establish such a rule exists because, until recently, states did not have extraterritorial criminal jurisdiction for crimes committed by heads of state in their own states. Even today, he doubted that customary law provides such universal jurisdiction. He thus concluded that even if torture could be a function of a state official, “no established rule of international law requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime.”
However, Lord Phillips recognized that the State Immunity Act of 1978 may accord Pinochet immunity with respect to acts committed as head of state. But, by use of a fairly clever argument, he found that as a matter of statutory interpretation such immunity could not extend to acts contrary to international law. Article 3 of the Vienna Convention defines the functions of a diplomatic mission as those “within the limits permitted by international law.” By analogy, the functions of a head of state must also be so limited. As torture is contrary to international law, committing it cannot be a function of a head of state, and no immunity is mandated for a former head of state.
Lord Phillips did not give a date by which Pinochet would have lost immunity, as he believed former heads of state have no such immunity. Accordingly, he would have permitted the extradition to go forward as to all crimes found extraditable. The date, as far as allegations of torture and conspiracy to torture are concerned would thus be 29 September 1988, the day the U.K. acquired extraterritorial jurisdiction over those crimes.
Each of these three, Lords Browne-Wilkinson, Hutton and Phillips, adopted different approaches to the question of whether the official acts of a head of state could include international crimes. They all arrived at a sensible and legally defensible conclusion: the official acts of a head of state do not encompass conduct that constitutes international crimes. It would seem contrary to both law and reason that the official functions of a head of state could include genocide, torture, crimes against humanity or war crimes. While it is true that a head of state can commit these crimes because of his powers as such, and may even believe these offenses are in the best interest of the state, developments in the law particularly from the Nuremberg trials forward outlaw these acts on an international level. There should be no question in this day and age: international human rights crimes are not and cannot be within the official functions of a head of state.
The foregoing analysis does not mean that a current head of state can be criminally prosecuted or is subject to a civil suit for such international crimes in national courts. In the U.K., a serving head of state would have immunity ratione personae, which protects him absolutely, whether or not the conduct violates international law. In the U.S., a current head of state has a similar absolute immunity, a status-based immunity. However, a former head of state is no longer protected because of his status; he has immunity only for official acts or acts within his functions as a head of state.
Of the three Law Lords who decided that international crimes were not within the function of a head of state, Lord Hutton gave the most cogent and well-reasoned opinion. He understood that a head of state, or other official for that matter, did act under color of official authority when committing torture. After all, the very definition of the crime requires state action — but that did not mean that torture, an international crime, was within the functions of a head of state. In this respect, Lord Hutton’s analysis was analogous to that employed in United States courts in civil suits under the Alien Tort Claims Act and the Torture Victim Protection Act.
Some courts have held that the Foreign Sovereign Immunities Act of the United States (FSIA), covers foreign officials including former heads of state who acted in their official capacities, although this is not within the language of the statute. These courts have held that ex-officials are not protected by the FSIA unless their actions were within the scope of their authority and consistent with their legal mandate. It would be rare, if ever, that acts such as torture, disappearances, and summary execution would be within the scope of authority of a state official and within his legal mandate. Those acts are outlawed by almost all states and by international law, which is binding upon all states. For example, in the series of suits against former Philippine President Ferdinand Marcos, his estate claimed that the abuses were carried out under his authority as head of state and were thus immunized. The court rejected this argument, finding that “acts of torture, execution, and disappearance were clearly acts outside of his authority as President.”
Lord Hutton and Lord Browne-Wilkinson also differed as to whether it was customary law or convention law that made torture an international crime. Lord Hutton determined that torture was an international crime as a matter of customary international law and a violation of a jus cogens norm. Therefore, torture could not be an “official” act even if there were no universal jurisdiction over the crime. For Lord Browne-Wilkinson, although torture was a violation of a norm of jus cogens prior to the CAT, it was the CAT and its ratification by Chile and the U.K., that gave states extraterritorial or universal jurisdiction. It was only then that torture was no longer an official function of a head of state. Even assuming Lord Browne-Wilkinson was correct regarding universal jurisdiction over torturers prior to CAT, torture was still a violation of a jus cogens norm for which a former head of state should not have had immunity. By requiring the consent of Chile and the U.K. through treaty, Lord Browne-Wilkinson misunderstood the thrust of the international prohibition on torture. It is a norm binding on all nations and officials; its prohibitions apply without the need for the additional and explicit consent of individual countries.
In sum, as a result of these rulings, Lords Browne-Wilkinson, Hutton and Phillips found that Pinochet had no immunity for torture and conspiracy to torture–these acts could not be and were not within the functions of a head of state. Lords Hutton and Phillips did not rely on ratification of the CAT and found that Pinochet had no immunity after 29 September 1988, the day extraterritorial torture was made criminal in the U.K. Lord Browne-Wilkinson found that Pinochet only lost immunity as of 8 December 1988, subsequent to the ratification of the CAT by Chile and the U.K.
Waiver, Abrogation & Inconsistency
Two of the Lords, Lords Hope and Saville, found that torture and other such human rights violations could be within the functions of a head of state. A former head of state prosecuted for such crimes would thus have immunity under customary international law. The question then became whether Chile had waived or abrogated this immunity. Lords Hope and Saville answered this question by examining the CAT.
Lord Hope began by asking whether the functions of a head of state include acts such as torture which were carried out in the exercise of the state’s authority. He considered it to be “well-settled” in customary international law that conduct by a head of state which is criminal, even as a matter of customary international law, can be a function of a head of state. A former head of state therefore has immunity for such acts so long as they were performed in the exercise of the functions of government. As Lord Hope said: “The purpose for which these acts were performed protects them from any further analysis.”
He then addressed crimes that have the status of jus cogens under international law, such as war crimes and crimes against humanity. He acknowledged that all states must refrain from such crimes and have an obligation erga omnes to punish such conduct. Despite this, Lord Hope found that a former head of state would still have immunity in foreign national courts for violation of such jus cogens norms. It was only in particular situations before international courts that such a former head of state did not have immunity. This was not as a matter of customary international law, but was part of the special statutes establishing those tribunals.
Under Lord Hope’s analysis, a head of state’s immunity in a national court could only be limited by an express or implied provision in an international convention to which both the state asserting immunity (Chile) and the state being asked to refuse such immunity (U.K.) were parties. From this point on, his analysis was both complex and muddy. Pointing out that the CAT does not expressly address head of state immunity for torture, he asked whether immunity was removed by necessary implication. He found that although the CAT prohibits single acts of torture, it does not remove immunity for such acts. Lord Hope did not consider such single acts to be international crimes, deciding rather that the risks to former heads of state “of being detained in foreign states” would be so great that governments could not have agreed to this.
However, he found that the allegations against Pinochet were not isolated acts of torture but of a policy to commit systematic torture. Such systematic torture constitutes a crime against humanity which Lord Hope stated had achieved the status of a jus cogens norm by September 1988. But this was still not sufficient to invalidate Pinochet’s immunity. That only occurred once Chile ratified the CAT, because the CAT allowed states to exercise universal jurisdiction over crimes against humanity. At that point, a state that ratified the convention could no longer assert immunity against allegations of systematic or widespread torture. As Chile’s ratification of the CAT was effective on 30 October 1988, immunity was lost on that date. Without explanation, however, Lord Hope was “content to accept the view of … Lord Saville … that Senator Pinochet continued to have immunity until 8 December 1988, when the United Kingdom ratified the Convention.”
It is difficult to reconcile Lord Hope’s opinion with the CAT or with customary international law. The CAT, by its terms, outlaws even a single act of torture and provides states with extraterritorial jurisdiction over such acts. There is no limitation on such jurisdiction to systematic or widespread torture. Whatever customary international law said regarding universal jurisdiction over torture, once Chile ratified the Convention, it is difficult to see how that ratification could be read as only applicable to systematic or widespread torture. While Lord Hope’s ruling made little difference in the Pinochet case, it might in the case of a former head of state charged with a single act of torture. What if, for example, a former ruler had a key opposition figure tortured? Under Lord Hope’s opinion, that ruler would have immunity.
Lord Hope correctly found that systematic torture was a crime against humanity and a violation of a jus cogens norm. However, he wrongly believed that perpetrators of crimes against humanity were not subject to universal jurisdiction — at least without the consent of their states. Even if one could dispute that a single act of torture subjected a former head of state to extraterritorial jurisdiction, systematic torture constituting a crime against humanity clearly has been subject to such jurisdiction for many years. Under Lord Hope’s analysis, no crimes against humanity or any other international crimes, are subject to universal jurisdiction without the consent of states. This is an out-dated and limited view.
Lord Saville, in the briefest opinion, found that under customary international law a former head of state is immune from criminal proceedings in other states with regard to acts carried out in his official capacity as head of state. For Lord Saville, this immunity would protect a former head of state no matter how horrendous his acts, and even if his conduct violated a jus cogens norm, so long as such acts are official and not private acts. As the acts alleged against Pinochet were carried out in his official capacity, he was protected by immunity ratione materiae. Lord Saville believed that there was no qualification or exception to this immunity before the CAT, even though systematic or widespread use of torture was an international crime.
The CAT modified this immunity, however, at least for states parties which agreed to exercise jurisdiction over alleged torturers from other states parties. As the CAT covered torture inflicted by a “person acting in an official capacity,” it included torture carried out for state purposes. Judge Saville reasoned that a head of state who employed torture would be a “person acting in an official capacity” within the meaning of the CAT.
Judge Saville believed that immunity was inconsistent with the terms of the CAT. A state party to the CAT could not claim immunity based upon official torture, when the CAT obligated countries to extradite or prosecute officials for this very conduct. Thus, the CAT provided an exception to the general rule of immunity ratione materiae. He reached this conclusion not by implying terms into the CAT, “but simply by applying its express terms.” Since Chile, Spain and the U.K. were all parties to the CAT as of 8 December 1988, those states could not claim immunity ratione materiae for their former heads of state.
The prior critique of Lord Hope’s opinion applies equally to that of Lord Saville. Both find that systematic torture can be a function of a head of state, both agree that customary international law grants immunity to a former head of state for what amounts to crimes against humanity, and both require that states ratify a convention before extraterritorial jurisdiction can be asserted over such crimes. However, Lord Saville correctly analyzed the CAT by finding that the immunity of a former head of state who commits even a single act of torture is inconsistent with the CAT.
No Immunity in Customary International Law for Crimes Against Humanity
The opinion of Lord Millett is the most progressive, and the most similar to the majority opinions in Pinochet I. To the extent that the charges against Pinochet constitute crimes against humanity, Lord Millet would not have relied on the CAT to find that Pinochet had no immunity. However, as a result of the ruling on “double criminality,” the charges were reduced to what Millett characterized as isolated acts of torture. For Lord Millett, extradition and prosecution for such acts requires the assent of the state; the CAT provides that authority.
In Lord Millet’s view, state immunity under customary international law does not protect conduct prohibited by international law. Immunity for international crimes was questionable even prior to the end of World War II. Millet analyzed developments in the international law of human rights since WWII, including the Charter of the International Military Tribunal, the Nuremberg trials and Judgment, Resolution 95 of the General Assembly affirming the Judgment, Attorney General of Israel v. Eichmann and Demjanjuk v. Petrovsky. He decided that a category of crimes against humanity now exists that had evolved from war crimes; that the manner in which a state treats its own citizens is a matter of concern to the international community; and that “large scale and systematic torture and murder by state authorities for political ends had come to be regarded as an attack upon the international order.”
From this he concluded that there is universal jurisdiction and no immunity for crimes by former heads of state or other former officials if two criteria are met: 1) the crimes are contrary to a peremptory norm of international law, and 2) they are so serious and on such a scale as to constitute an attack on the international legal order. In his view, the crimes of which Pinochet was accused (the systematic use of torture on a large scale as an instrument of state policy), met these criteria and had done so by 1973, when Pinochet took power. Systematic use of torture had joined piracy, war crimes and crimes against peace. On this basis he would have permitted the extradition and prosecution of Pinochet for the torture and conspiracy to torture from 1973 onward.
As described above, the other Lords limited the crimes charged, however, to those after 29 September 1988. Lord Millet treated these as individual instances of torture and therefore not as crimes against humanity. According to him, prior to the CAT isolated acts were not subject to universal jurisdiction, but the CAT obligated states parties to exercise jurisdiction. It was likewise with regard to immunity of a former head of state. The CAT definition of torture as an “official” act was inconsistent with immunity ratione materiae. As Lord Millet wisely stated:
International law cannot be supposed to have established a crime having the character of a jus cogens and at the same time to have provided an immunity which is co-extensive with the obligation it seeks to impose.
Thus for Lord Millet, once Chile ratified the CAT on 30 October 1988, it had “assented” to foreign courts exercising universal jurisdiction over the official use of torture.
Lord Millet correctly found that Pinochet had been charged with crimes against humanity subject to universal jurisdiction for which a former head of state had no immunity. However, he arguably mis-characterized the crimes charged after 29 September 1988 as isolated acts of torture, despite the allegation that Pinochet was engaged in a conspiracy to torture. As Lord Hope pointed out, that charge included an allegation of systematic torture to gain and retain state power. Had Lord Millet adopted this view, he would not have had to rely on the CAT. However, once he treated the acts after 29 September 1988 as isolated, he then adopted the conservative legal position with regard to universal jurisdiction and immunity critiqued above.
Six of the Lords, for varying reasons, found that a former head of state does not have immunity from extradition and prosecution for torture and conspiracy to torture. Four of these Lords relied on the CAT to abrogate Pinochet’s immunity. Three of these Lords decided that Pinochet no longer had immunity after 8 December 1988, the date by which Spain, Chile and the U.K. had all ratified the CAT. One decided that the operative date was Chile’s ratification on 30 October 1988. The two other Lords found that Pinochet had no immunity for any acts committed after 29 September 1988, when his acts met the U.K.’s “double criminality” rule. Lord Browne-Wilkinson, in announcing the decision, said the majority agreed that Pinochet could be extradited for torture and conspiracy to torture allegedly committed only after 8 December 1988. Five of the six Lords in the majority found that Pinochet could not be extradited for conspiracy to commit murder in Spain, as it was not an extraditable offense or because Pinochet was immune. Thus, the final result of Pinochet III was that Pinochet was subject to extradition to Spain for the crimes of torture and conspiracy to commit torture allegedly committed after 8 December 1999.
Although the charges for which Pinochet was found extraditable were much more limited than those he was accused of in Spain, the decision is nonetheless a major step forward in holding accountable officials, including heads of state, who direct and condone human rights atrocities. The decision sends an important message to officials who murder and torture: no longer will your title or claims of state sovereignty protect you from your victims who seek justice. While the opinions had their limitations and took a narrower view of customary international law than many believe was warranted, in the end the result is remarkable. The highest court in the U.K. rejected Pinochet’s claim that he could not be extradited and tried for the crime of torture. As of this writing, December 1999, Augusto Pinochet Ugarte remains in custody in the U.K.