The Case Against Pinochet | American Diplomacy Est 1996

By J. Craig Barker

The author addresses, in the Chilean context, human rights questions and international law bearing on heads of state. Given the current conflict in the Balkans, clearly the topic could come to have have wider interest on the world scene. Professor Barker of the Department of Law at the University of Reading, England, is widely published in the field. He directs studies toward the M.A. degree in diplomacy at the university.

~Ed.

THE ARREST OF SENATOR AUGUSTO PINOCHET at a London hospital on 17 October 1998 and the on-going attempts to extradite him to Spain to face charges there of torture, hostage-taking, and murder have been the subject of great interest and no small amount of debate among international lawyers, human rights activists, and politicians around the world. The case against Pinochet is unprecedented in the United Kingdom not least because it was heard by the Judicial Committee of the House of Lords, the highest court of appeal in criminal matters in the United Kingdom, on two separate occasions.¹ More generally, the case represents the first serious attempt anywhere in the world to bring to justice a former head of state for offenses allegedly committed in the country of which he was the head of state.The decision of the House of Lords that Pinochet should be extradited to Spain to stand trial has been seized upon by many as a great step forward in the development of international human rights and international law in general. Certainly, the case will stand as a deterrent for former heads of state who have committed acts, such as those allegedly committed by Pinochet, from visiting the United Kingdom. Beyond that, however, the implications of this ruling may be more limited. In particular, in its most recent decision, the House of Lords reduced fundamentally the charges on which Pinochet would be allowed to stand trial in Spain. Furthermore, as the ruling serves as a legal precedent only in the United Kingdom, its implications for international human rights and international law may be limited.

A. The Pinochet Ruling

The House of Lords identified two key legal issues in its decision of 23 March 1999. First, were the offenses of which Pinochet was accused “extraditable offenses” in terms of the Extradition Act 1989? Secondly, if the offenses were extraditable, was Pinochet immune in respect of all or any of those offenses?

1. Extraditable Offenses

In terms of UK law, by virtue of the Extradition Act 1989, if an individual is to be extradited from the United Kingdom to stand trial in another country for an alleged offense, the authorities of the state seeking extradition are require to fulfill a number of requirements. For example, the offense must be sufficiently serious, carrying a potential sentence of at least six months imprisonment. There must also be sufficient evidence that the offense has been committed, this latter requirement is known as the prima facie case requirement. The most important requirement for present purposes, however, is that the offense constitutes an offense under the law of both the United Kingdom and the state seeking extradition; this is known as the double criminality rule. Crucially, double criminality must exist at the time of the commission of the alleged offense, not just at the time of the bringing of the extradition proceedings.

The crimes of murder, hostage-taking, and torture have long been recognized as offenses under UK law when those offenses are committed on the territory of the United Kingdom. The right to prescribe such crimes lies in the principle of territorial jurisdiction which is the primary basis of jurisdiction in international law and highlights the fundamental concept of the territorial sovereignty of states. However, it was not previously clear whether these acts constitute crimes under UK law when they are committed outside the territory of the United Kingdom. Recognising the limitations of territorial sovereignty in this regard, international law has sought to establish the criminal liability of individuals for certain crimes, designated crimes against humanity, through the jurisdictional principle known as universality. According to this principle, a state has jurisdiction over a particular crime regardless of the place of commission of the crime. It works essentially on the basis that states are required to prosecute individuals accused of such crimes or, where they are not willing or not able to prosecute, to extradite the accused to a state which is willing or able to prosecute.

The origins of the principle of universality lie in the attempts during the eighteenth and nineteenth centuries to deal with the problem of piracy. Pirates were able to escape jurisdiction by operating on the high seas outside the territorial



		While some states… may balk at the thought of any court other than its own deciding on such [politically sensitive] issues, the International Criminal Court must surely be seen as a better forum than national courts.

jurisdiction of any state. Accordingly, it was necessary for states to agree that each and every state should be able to exercise jurisdiction in order for pirates to be brought to justice and, perhaps more importantly, to reduce the opportunity for pirates to interfere with the economic interests of the most powerful maritime nations. Similar developments occurred in relation to slave trading when the economic costs of slavery for the most powerful nations began to outweigh the benefits. The exercise of jurisdiction over pirates and slave traders rarely interfered with the territorial jurisdiction of other states and the principle of universal jurisdiction in respect of such crimes became part of customary international law.The principle of universality was extended after the Second World War by the Nuremberg and Tokyo war crimes tribunals to cover war crimes. There may be some doubt as to the legality of the Nuremberg and Tokyo tribunals. However, such doubts have been dispelled by the clear acceptance by the international community of the decisions of these tribunals, most notably in the form of the Affirmation of the Principles of International Law recognized by the Charter of Nuremberg adopted by the United Nations General Assembly on 11 December 1946.² Although the Nuremberg and Tokyo tribunals did in principle override the territorial jurisdiction of Germany and Japan, both states had been defeated in the Second World War and little consideration was given by the allied nations to their sovereign rights. It is worth noting that, while some states have successfully prosecuted war criminals in respect of crimes committed during the Second World War,³ the vast majority of such prosecutions took place before the international tribunals at Nuremberg and Tokyo. Similar international tribunals were set up to deal with war crimes in Rwanda and the former Yugoslavia. Accordingly it was not left to individual states to initiate prosecutions in these cases.

Subsequent attempts to provide for universal jurisdiction against crimes which are regarded as crimes against humanity have had to overcome the fundamental obstacle of the territorial jurisdiction of the state in which the crime is committed. In such cases it is imperative for states specifically to consent to the exercise of a jurisdiction which has the effect of overriding its own. Accordingly, the creation of such jurisdiction has only been possible through the creation of international treaty regimes which provide for such jurisdiction to be exercised on the basis of the specific consent of the states involved in the regime through their ratification of the relevant treaty instrument. One such treaty regime is the Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment of 1984 to which the United Kingdom, Spain, and Chile are all parties.

In the United Kingdom, treaties to which the United Kingdom has become party cannot be relied on directly before the UK courts. They form no part of the national law of the United Kingdom. If a measure in a treaty is to be part of UK law, it must be incorporated into that law by means of a legislative act, that is, an Act of Parliament. The reason for this is that treaties are entered into by the executive. Were such treaties automatically to become part of UK law, the role of the legislature in making law would be usurped by the executive. This is contrary to the basic principle the separation of powers enshrined in the British Constitution.

The relevant provisions of the Torture Convention were adopted into UK law by section 134 of the Criminal Justice Act 1988 which came into force in the United Kingdom on 29 September 1988. Accordingly, under the double criminality rule, an individual can only be extradited from the United Kingdom on charges of torture committed outside the United Kingdom where the alleged offenses occurred after 29 September 1988. In relation to Pinochet, this had the effect of vastly reducing the number of charges for which he can stand trial in Spain.

2. State Immunity

Under international law, states are entitled to immunity from the jurisdiction of other states in respect of matters which are considered to be public acts of a state. The origins of state immunity, sometimes called sovereign immunity, can be traced back to the beginnings of modern international law and the doctrine of the sovereign equality of states. According to this doctrine, one state should not be able to challenge the sovereign acts of another state by allowing such acts to be made subject to the former state’s jurisdiction. The primary difficulty with the law of state immunity lies in the identification of what constitutes a public act of a state.

Early international law effectively deemed all acts of a state to be public acts thereby ensuring the complete, or absolute, immunity of states. However, as states began to involve themselves more and more in trading and other commercial activities the inequities of the absolute doctrine became more and more apparent, particularly for private traders who had entered into agreements with states or state entities. The problem was particularly acute in relation to the states of the former Soviet bloc which engaged in trading through state trading enterprises which, under the doctrine of absolute state immunity were immune in respect of such transactions. The middle of the twentieth century witnessed a move away from the absolute doctrine to a more restrictive doctrine which began to distinguish between the public acts of a state properly so called and those acts which are essentially private in nature for which immunity should not be granted. Unfortunately, international law has been unable to devise a mechanism for distinguishing private acts of a state from public acts of a state. Accordingly, it has been left up to individual states to designate within their own municipal law where the distinction should be drawn.

In the United Kingdom the relevant law is to be found in the State Immunity Act 1978. Part I of the 1978 Act provides that foreign states are immune from the jurisdiction of the UK courts subject to certain specified exceptions. Crucially, however, Part I of the Act does not apply to criminal acts.⁴ The House of Lords in its decision did not consider whether the result of this was that states are absolutely immune from the jurisdiction of the UK courts in respect of criminal acts or whether they have no immunity at all in respect of such acts. This is a matter of considerable importance which remains undetermined by the Pinochet litigation and may well give rise to litigation in the future. The reason that the House of Lords did not need to consider this question arises from the fact that the State Immunity Act 1978 contains a specific provision dealing with heads of state. Unfortunately, this provision is anything but straightforward.

Section 20(1) of the State Immunity Act 1978 provides that heads of state are entitled to the same privileges and immunities to which diplomats are entitled under the Diplomatic Privileges Act 1964. The 1964 Act was enacted to bring into UK law the provisions of the Vienna Convention on Diplomatic Relations 1961, the provisions of which were adopted verbatim into UK law by that Act. Article 39(2) of the Vienna Convention provides that diplomats are entitled to immunity after their functions have ceased but only in respect of official acts. This provision was intended to ensure that there was no subsisting immunity for diplomats’ private acts after they have left the country in which they served.

It was argued on behalf of Pinochet that section 20(1) of the State Immunity Act 1978 and, as a result, Article 39(2) of the Vienna Convention could only apply to a head of state who had been present in the United Kingdom and further, it could only apply to acts undertaken while he or she was in the United Kingdom in the same way as it would apply to diplomats. The House of Lords examined the negotiating history of the State Immunity Act and found that it had been intended to apply to heads of state whether or not they were, or had ever been, present in the United Kingdom. Indeed an amendment to the original Bill had changed the original wording of the section limiting the provision to heads of state who were in the United Kingdom so as to cover all heads of state whether in the United Kingdom or not. The effect of this is that serving heads of state enjoy complete civil and criminal immunity from the jurisdiction of the UK courts in respect of both their private and official acts. However, former heads of state enjoy immunity only in respect of their official acts. It may be argued that the drafters of the Vienna Convention cannot have intended the Convention to apply in this way. However as a matter of construction of UK law, the position stated by the House of Lords, while difficult to follow and extremely untidy as a matter of legislative drafting, must nevertheless be correct.

The final question addressed by the House of Lords was, accordingly, whether the acts of which Pinochet is accused could be considered to be official acts. Examining the terms of the Torture Convention, the House noted that torture constitutes a crime under that Convention only where it is carried out by the officials of a particular state, in other words, the offense is an offense of “official” torture. Lord Goff, in his dissenting judgment, argued that as the Torture Convention had not expressly removed the right of head of state immunity in the case of torture, such immunity remained.⁵ However, the majority held that as torture was defined as “official” torture, it must have been intended that immunity should not remain in respect of such crimes. Thus, according to Lord Saville of Newdigate:

So far as the states that are parties to the Torture Convention are concerned, I cannot see how, so far as torture is concerned, [State] immunity can exist consistently with the terms of that Convention. Each state party has agreed that the other state parties can exercise jurisdiction over alleged official torturers found within their territories, by extraditing them or referring them to their own appropriate authorities for prosecution; and thus to my mind can hardly simultaneously claim an immunity from extradition or prosecution that is necessarily based on the official nature of the alleged torture. So I do not reach this conclusion by implying terms into the Torture Convention, but simply by applying its express terms.⁶

This position was summarised by Lord Browne-Wilkinson who posed the following question: “How can it be for international law purposes an official function to do something which international law itself prohibits and criminalizes?”⁷

B. The Implications of the Pinochet Judgment

1. The Legal Implications of the JudgmentIt is tempting, as many have already done, to proclaim the decision of the House of Lords as a momentous step forward in the enforcement of international human rights and international law in general. However, caution is required in order to avoid overstating the impact of this decision. First, the decision serves as a legal precedent only in the United Kingdom. No other state is bound by this decision. The best that can be said is that the decision by the highest court in one of the foremost Western states is of persuasive authority for courts in other jurisdictions, particularly Commonwealth states and the United States of America which share a common legal heritage with the United Kingdom. However, even this claim may be exaggerated. Even within the United Kingdom it should be recognized that the decision is very much dependent on its facts. In particular, the fact that none of the seven judges in the case agreed entirely with one another as to the precise details of the decision is evidence of divergence of opinion which could be exploited by lawyers in subsequent cases.

Secondly, and more generally, the decision cannot stand on its own as a precedent for international law. At best, the decision stands as evidence of the practice of the United Kingdom in relation to the application and interpretation of the Torture Convention of 1984. Certainly, as was noted above, courts in other jurisdictions will be able to refer to the decision and draw inferences therefrom. In this process, it is likely that the case will be used by those pushing for greater enforcement of the Torture Convention. If those courts choose to follow the lead of the House of Lords, it is probable that a jurisprudence will emerge which will confirm the operation of the 1984 Convention as overriding the existence of state immunity within international law. This position may eventually evolve into customary international law. However, if no such developments follow, the House of Lords decision may pass into history as an interesting but ultimately insignificant attempt to bring the perpetrator of gross violations of human rights to justice in a national court.

It is the involvement of the national courts of both the United Kingdom and Spain in this process which gives rise to much of the interest in the decision. As has been noted previously, the law of state immunity originally developed in order to avoid courts sitting in judgment of the acts of foreign states. Even the most vehement opponents of state immunity have conceded the need for some system whereby the truly public acts of a foreign state cannot be questioned by the courts of other states. However, in determining what are the public acts of a state, the law has moved more and more towards restricting the extent of such acts. This has had considerable impact on the issue of state sovereignty.

2. The Impact on State Sovereignty

The realist school of international relations posits states as rational self-interested entities existing in a system of perpetual struggle for power. Within such a system the sovereignty of states is supreme, limited only by consent. Such consent is subject to revocation where the self interest of the state demands. Accordingly, for realists, international law is, at best, ephemeral, at worst, irrelevant. What realists fail to consider is that sovereignty is itself a legal concept. As such it is subject to developments in the law which have the effect of redefining sovereignty. Every time a state enters into a treaty relationship, it is both exercising its sovereignty and restricting its sovereignty. In simple bilateral relationships, the consequent effect on the power of states to act as they see fit may be slight depending on the relative power of the contracting states. However, with regard to multilateral treaties, states which enter into such relationships are giving the opportunity to many other states to challenge the subsequent actions of the state where such actions are not in conformity with the provisions of the agreement. It must be conceded that relative power is a consideration here too. However, it is much more difficult for states to act in a wholly self-interested way in relation to such matters.


		Chile had already restricted its sovereign rights by signing and ratifying the Torture Convention which… allows for the exercise of jurisdiction by Spain and the United Kingdom over Chilean officials including their former head of state.

Where the realist challenge of international law is most justifiable is where it is directed at the enforcement of that law. As was noted above, the relative power of states is a factor in the determination of whether or not they comply with their legal obligations, whether in the form of treaties, both bilateral and multilateral, or customary international law. One way round this inherent weakness of international law is to attach liability directly to the individual or individuals most responsible for the breach of the international obligation. On first inspection, such an approach would seem to be very attractive, not least because it does not overtly challenge the sovereignty of the state. Closer inspection, however, reveals that such a challenge is there.

Where a criminal act is committed by the official of a state, jurisdiction over that act lies primarily with the state in question. However, where universality applies, the challenge to the sovereignty of the state is not direct. Rather it is an indirect challenge of the decision not to exercise jurisdiction over a particular individual. The circumstances of the Pinochet case clearly illustrate the problem. At the end of Pinochet’s rule in Chile, the Chilean authorities took the decision, based on rational political considerations, that greater stability would be achieved internally in Chile were Pinochet to be granted immunity in respect of the alleged offenses committed by him while he was in office. Many commentators have argued that this should have been an end to the matter, arguing that Chile was best placed to decide what was in its best interests in this particular situation. In normal circumstances this should have been an end to the matter given the importance placed by international law and international relations in general of the right of states to determine their own internal matters. However in this case, Chile had already restricted its sovereign rights by signing and ratifying the Torture Convention which specifically provided for the possibility, or indeed requirement, of universality in respect of the alleged crimes and consequently allows for the exercise of jurisdiction by Spain and the United Kingdom over Chilean officials including their former head of state. However such jurisdiction can only exist in respect of crimes which occurred at the earliest after the date at which Chile entered into the regime governed by the Torture Convention, otherwise there would be a direct attack on the sovereignty of Chile.

3. Should Such Cases be Brought in National Courts?

Regardless of the legal implications of the decision in the Pinochet case, the political implications of that decision give rise to a further consideration in relation to the exercise of jurisdiction by national courts, that is whether such courts are indeed the appropriate forums for cases of this type. The first point to note is that enforcement of international law through national courts is extremely random and depends on many political as well as legal factors. Neither the Government of Spain nor the Government of the United Kingdom was responsible for bringing legal proceedings against Pinochet. The action was commenced by the judiciary in Spain and was responded to by the British judicial system. The UK Government did in fact have the opportunity to bring the proceedings to an end, and indeed still do. However, the political ramifications of deciding to halt the extradition proceedings may well have been more harmful to the UK Government than allowing the proceedings to go ahead given the publicity and interest which the House of Lords decisions have attracted.

Nevertheless, the decision by Mr. Straw, the British Home Secretary, to allow the extradition proceedings against Pinochet to go ahead has had a number of serious political ramifications including the possible undermining of the political situation in Chile as well as the relations between the United Kingdom and Chile.⁸ Further, Lord Goff in his speech in the House of Lords, highlighted the political difficulties that might ensue if state immunity were not to exist in cases such as those involving Pinochet. He noted that:

If immunity rationae materiae was excluded, former heads of state and senior public officials would have to think twice about traveling abroad, for fear of being subject of unfounded allegations emanating from States ofa different persuasion.

This is a valid political consideration of the impact of the Pinochet decision. However, from a legal perspective it must fail given the fact that in the Pinochet litigation, as has already been noted, the jurisdiction which existed in respect of the limited crimes for which Pinochet can be extradited had been specifically consented to not only by the United Kingdom and Spain but also by Chile itself.

Nevertheless, if we return to the question of whether national courts constitute the most appropriate forums, Lord Goff’s objections appear to be credible. Granted, there is at the moment no other appropriate international forum in which a case such as this could have been brought. However, it would seem that this case highlights the need for the successful creation of the International Criminal Court. The International Criminal Court was formally established in June of last year by the Rome Convention. The Statute of the Court specifically provides that there will be no immunity from the jurisdiction of the court. This reflects the fact that the Court will be an international tribunal in respect of which the doctrine of par in parem non habet imperium, the cornerstone of the doctrine of state immunity, will not apply. Once again, the key here is the consent of states who sign the Convention. Every state that signs the Rome Statute will do so in the exercise of sovereign authority which will have the effect of reducing the sovereignty of the state in respect of such matters. It is worth noting that the Rome Statute envisages that the ordinary national courts will continue to play a crucial role in dealing with breaches of international law by individuals. However, where issues of state immunity properly arise in national courts, extradition can take place to the International Criminal Court which will have jurisdiction to hear such cases without the barrier of state immunity. The hope is that the International Criminal Court will provide an impartial international forum for the hearing of such politically sensitive issues. While some states, most notably the United States of America, which has not signed the Rome Convention, may balk at the thought of any court other than its own deciding on such issues, the International Criminal Court must surely be seen as a better forum than national courts.

C. Conclusion

In conclusion, the implications of the Pinochet case should not be overstated. It is a decision which is fundamentally limited by its specific facts. On the other hand, what the case does show is that international law can be used as a means of ensuring greater compliance with international human rights obligations by providing for the liability of individuals. However, it has been argued that such developments can only take place through the direct consent of states in the form of treaties which provide for universal jurisdiction in respect of specific crimes. Further, it is submitted that where the possibility exists of a direct clash between the principles of universality and state immunity, national courts do not provide the best forum for the hearing of such cases. Consequently, the need to ensure the full establishment of the International Criminal Court becomes paramount.

ENDNOTES

1. The most recent decision is reported at [1999] 2 WLR 825. The House of Lords set aside its first decision of 25 November 1998 ([1998] 3 WLR 1011) on the ground that the Committee had not been properly constituted on that occasion due to the links between Lord Hoffmann, one of the Lords in that case, and the human rights group Amnesty International which had been allowed to intervene in the case. (see [1999] 2 WLR 272) Never before has the House of Lords set aside one of its decisions in this way. All three judgments of the House of Lords are available at the House of Lords home page at http://www.parliament. 2. See the speech of Lord Browne-Wilkinson, [1999] 2 WLR 825, 840.

3. It is interesting to note that the first successful attempt to prosecute such an individual in the United Kingdom occurred only in March 1999.

4. See s.16(4) of the State Immunity Act 1978.

5. [1999] 1 WLR 825, 855-863.

6. [1999] 1 WLR 825, 903-904 (italics added).

7. [1999] 1 WLR 825, 847.

8. One of the most serious consequences has been the ongoing decision by the Chilean airline LanChile to cease commercial flights to the Falkland Islands, which has had serious economic repercussions for that British territory.