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Published online by Cambridge University Press: 02 January 2018
This article provides a general overview, and analysis of the litigation surrounding General Augusto Pinochet's detention in London in 1998 and the subsequent attempts to extradite him to Spain, for trial on charges relating to human rights abuses committed during the period of his militaty dictatorship in Chile between 1973 and 1990. The complicated sequence of events, from proceedings in the Spanish courts (which started in 1996) up to Pinochet's release from British custody on medical grounds in 2000, is examined und the potential consequences of the two substantive House of Lords decisions are explored from a British-based public international lawyer's perspective. The focus of the analysis is not so much on the detailed technicalities of personal immunity in English law: as on the broad concepts of State jurisdiction over international crimes and immunity for such crimes in international criminal law: notable aspects discussed include the future of universal jurisdiction in customary international law and the position of that law in the UK's municipal courts.
This article is based on elements of papers given at a Judicial Seminar held under the auspices of the Grotius Programme, at the University of Liverpool in January 1999; at a seminar of the UK Group of the International Society for Military Law & the Law of War, held in London in February 1999: and at the 6th International Symposium for Judges, held at the Europäische Rechtsakademie, Trier, in October 1999.
1. United States v Noriega (1990) 746 F Supp 1506 (United States District Court for the Southern District of Florida). A transcript of the judgment is available on LEXIS.
2. An excellent summary of the historical background (relating to Argentina as well as Chile) is contained in a Derechos Human Rights Report dated 11 November 1998 (hereafter Derechos Report), available on the Internet at http://www.derechos.net/marga/papers/spain.html.
3. See ICTY Press Releases JL/PIU/403-E and JL/PIU/404-E, 27 May 1999. The indictment itself is available on the Internet at http://www.un.org/icty/indictment/english/ 24-05-99milo.htm. The precise charges cover crimes against humanity and violations of the laws or customs of war. It should be noted that, at the time of writing, Milošević, unlike Pinochet, is still serving as his country's head of state.
4. Operation Condor was one of the most notorious operations undertaken by military regimes in South America during the 1970s. It was masterminded by the Chilean National Intelligence Directorate and involved extensive co-operation with the intelligence services of Argentina, Bolivia, Brazil, Paraguay, Peru and Uruguay. Its objective was ‘to facilitate the “elimination of communism” and defend the “Western-Christian” society' – see Derechos Report, p 4.
5. Central Instructing Court No 6, Audiencia Nacional: Summary Proceeding 1/98-J, 20 September 1998. An unofficial English translation is available on the Internet at http://www.derechos.net/nizkor/chile/juicio/jurie.html.
6. Central Instructing Court No 5 had been hearing a separate case concerning disappearances in Chile. It accepted the transfer of the consolidated Chile-Argentina cases from Court No 6 on 20 October 1998. For a summary of the rather confusing Spanish judicial procedures leading to this situation, see Derechos Report, pp 6–8. Extensive commentaries in Spanish are available on the Internet at http://www.derechos.org.
7. This request was made at the instigation of Izquierda Unida (United Left), one of the initiators of the popular action.
8. These charges were made by the Agrupacion de Familiares de Detenidos y Desuparecidos de Chile (Chilean Group of Relatives of Detained and Disappeared People).
9. Derechos Report, pp 6–8.
10. Above n 5.
11. Derechos Report, p 9.
12. Derechos Report, pp 9–10.
13. Derechos Report, p 10.
14. The 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (78 UNTS 277) was incorporated into Spanish law in art 137bis of the Spanish Penal Code. In 1971, when incorporation took place, the Spanish definition of genocide was inconsistent with that contained in art II of the Genocide Convention (the Spanish definition referred to ‘a national ethnic, social or religious group’, whereas the Genocide Convention covers ‘a national, ethnical, racial or religious group’); however, art 137bis has since been replaced with art 607, which uses the same definition as that in the Genocide Convention.
15. Derechos Report, p 20.
16. Above n 14.
17. The Prosecutor v Jean-Paul Akayesu (1998) 37 ILM 1399 at 1406. The Trial Chamber, whilst acknowledging that ‘intent is a mental factor which is difficult, even impossible, to determine’, held that such intent could nevertheless be inferred from, inter alia, ‘the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups’ (at 1407). Repression in Chile did not target a particular group to the exclusion of all others: it encompassed anyone who opposed the military regime. At best this might be considered a ‘political group’, but genocide cannot be committed against a ‘political group’.
18. Hansard, HC Debs (Written Answers), 1998 9 December, Vol 322 Google Scholar, Col 215.
19. Derechos Report, p 21.
20. Above n 19. Under art 17 of the Spanish Code of Military Justice (1971), Spanish courts have extraterritorial jurisdiction over terrorist offences.
21. For an admirably clear and incisive discussion of this whole difficult area of criminal jurisdiction in international law (including jurisdiction over terrorist offences), see R Higgins Problems and Process: International Law and How We Use It (Oxford: Clarendon Press, 1994), pp 56–65.
22. Note that if Pinochet had stood trial in the UK under English law, the equivalent international law basis of the jurisdiction would effectively have been universal, precisely because of the UK's lack of any special connection to the alleged offences. But that was not the object of the actual proceedings in the UK, which were aimed not at prosecuting Pinochet but merely at extraditing him.
23. Among the most persistent offenders in this regard are the American courts: see eg United States v Yunis (1991) 88 ILR 176.
24. Above n 5, p 3.
25. Derechos Report, p 22.
26. Above n 19. The international law instruments referred to are the International Covenant on Civil and Political Rights (1966) 999 UNTS 171, art 7 of which prohibits torture; and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) 23 ILM 1027 and 24 ILM 535. It is worth noting, in light of the discussion of jurisdiction in respect of terrorist offences (text to n 21, above), that art 5 of the Torture Convention is couched in identical terms to the various anti-terrorism treaties, except that it additionally allows a state to assert jurisdiction ‘[w]hen the victim is a national of that State if that State considers it appropriate’ . Again, as with terrorist offences, jurisdiction over torture has not hitherto been recognised as universal under customary international law.
27. Except in so far as hostage-taking, which was included in the charges before the Divisional Court, can be said to be a terrorist-type offence.
28. Text to nn 23 and 26, above.
29. See the Lotus Case (1927) 4 AD 153 and criticism by Higgins, above n 21, pp 65–66.
30. See Statement of the United States National Security Adviser (1985) 24 ILM 1509.
31. Eg United Stares v Yunis (1991) 88 ILR 176.
32. Offences Against the Person Act 1861, s 9.
33. The decision of the US Court of Appeals for the 2nd Circuit in Filartiga v Pena-Irala (1980) 630 F 2d 876, while regarded by many as being of seminal importance, is probably cited as authority for more than it can really sustain on close reading. The case was brought in the US courts under the provisions of the Alien Tort Statute (28 USC § 1350). The court stated: ‘In light of the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of policy by virtually all the nations of the world (in principle if not in practice), we find that an act of torture committed by a state official against one held in detention [regardless of the nationality of the parties] violates established norms of the international law of human rights, and hence the law of nations’ (630 F 2D 876 at 880). In so holding, the court found that the US courts had jurisdiction over acts of torture committed in Paraguay, by Paraguayan nationals against Paraguayan nationals. The decision merely asserted the civil jurisdiction of the US courts to hear claims for compensation under a US statute; it did not purport to accord any criminality to torture (or recognise any universal jurisdiction thereover), but only recognised the existence of the international prohibition of torture, derived from human rights treaties and various United Nations General Assembly Resolutions. At most, the Filartiga decision may be regarded as evidence of the adoption of that prohibition into customary international law.
34. Higgins notes that, ‘…the fact that an act is a violation of [customary] international law does not of itself give rise to universal jurisdiction’: above n 21, p 62.
35. It should be noted that Chile had no standing in the original legal proceedings in the United Kingdom: it made no formal legal request for the rendition of Pinochet, although the Chilean government did make political representations to that effect. In the second set of hearings before the House of Lords, beginning in January 1999, the Chilean government appeared as an amicus curiae and argued for Pinochet to be released and allowed to return to Chile, as the question of whether or not he should stand trial was a matter for the domestic jurisdiction of Chile and as such should not be subject to interference by any other state.
36. Re Pinochet Ugarte (1998) 38 ILM 68 at 77.
37. Above n 32.
38. (1998) 38 ILM 68 at 78–79. The Lord Chief Justice noted that s 134 of the Criminal Justice Act 1988, s 1 of the Taking of Hostages Act 1982 and s 4 of the Suppression of Terrorism Act 1978 could, if invoked, confer extraterritorial jurisdiction on the UK in relation to Pinochet.
39. (1998) 38 ILM 68 at 79–85.
40. 500 UNTS 95. Section 20(1) of the State Immunity Act extends the Diplomatic Privileges Act 1964 to heads of state, subject to ‘any necessary modifications’ . The Diplomatic Privileges Act incorporates the Vienna Convention (including its provision, in art 39(2), of immunity ratione personae for former diplomats in respect of acts performed in the exercise of their functions) into UK law.
41. (1998) 38 ILM 68 at 83.
42. (1998) 38 ILM 68 at 84.
43. (1996) 107 ILR 536.
44. (1998) 38 ILM 68 at 85.
45. R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (Amnesty International and others intervening) (No 1) (1998) 4 AII ER 897. For an early commentary, see H Fox ‘The First Pinochet Case: Immunity of a Former Head of State’ (1999) 48 ICLQ 207.
46. Pinochet (No 1) (1998) 4 AII ER 897 at 908.
47. (1998) 4 All ER 897 at 913–917.
48. (1998) 4 All ER 897 at 930.
49. Cf The Porto Alexandre (1920) PD 30 and The Cristina (1938) AC 485, per Lord Atkin.
50. Duke of Brunswick v King of Hanover (1848) 9 ER 993; Hatch v Baez (1876) 7 Hun 596; Underhill v Hernandez (1897) 168 US 250.
51. ICTY Statute, art 7(2), ICTR Statute, art 6(2), ICC Statute, art 27. The ICTY Statute is reprinted at 32 ILM 1 192, the ICTR Statute at 33 ILM 1602 and the ICC Statute at 37 ILM 999. It should also be noted that, contrary to Lord Lloyd's opinion, none of these international tribunals would have jurisdiction over Pinochet: the ICTY and ICTR, because their jurisdiction is limited geographically to events occurring on the territory of the former Yugoslavia and Rwanda respectively; and the ICC, because art 11(1) of its Statute provides that it shall only have jurisdiction over cases arising after the Statute's entry into force.
52. The majority consisted of Lord Nicholls of Birkenhead, Lord Steyn, and Lord Hoffmann; the latter did not give a separate judgment but merely expressed agreement with both his colleagues.
53. (1998) 4 AII ER 897 at 940.
54. This is particularly true of torture: see art 1 of the Torture Convention, supra n 26, which defines torture as being ‘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’.
55. (1998) 4 All ER 897 at 945. A little further on (at 946). he reiterated: ‘The normative principles of international law do not require that such high crimes should be classified as acts performed in the exercise of the functions of a head of state.’
56. Hansard HC Debs (Written Answers) 9 December 1998, cols 213–217. The authority to proceed is required by the procedure stipulated in Pt III of the Extradition Act and has the effect of referring the case to a court of committal for a substantive decision, on the evidence, as to whether the offences alleged are in fact extraditable as disclosing equivalent offences over which a UK court would have jurisdiction. In this context it should be borne in mind that the House of Lords was, in firlochel (No 1), considering only a preliminary point of procedure: namely, whether Pinochet was immune from criminal proceedings. t is noteworthy that in Pinochet (No 3) the Law Lords addressed both procedural and substantive issues.
57. The closest analogy seems to have been in Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759, in which the House of Lords invalidated the Lord Chancellor's signature on decrees in favour of a company in which he was a substantial shareholder. That is nowhere near as draconian, however, as invalidating an entire decision with four separate and lengthy opinions.
58. R v Bow Street Metropolitan Stipendiary Magistrate, exp Pinochet Ugarte (Amnesty International and others intervening) (No 2) (1999) 1 All ER 577. The judges were Lord Browne-Wilkinson, Lord Goff of Chieveley, Lord Nolan, Lord Hope of Craighead and Lord Hutton. Amnesty International had previously sought, and been denied, an injunction to prevent Pinochet's return to Chile in the event that the Home Secretary declined to give an authority to proceed under the Extradition Act: Ex parte Amnesty International (1998) Times, 11 December.
59. Per Lord Hewart CJ in R v Sussex Justices, ex p McCarthy (1924) 1 KB 256.
60. United States v Noriega (1990) 746 F Sup 1506 at 1512–1519.
61. It should also be remembered that Pinochet was not actually being prosecuted in the UK: he was the subject of extradition proceedings, which is a different matter.
62. Above n 3 and accompanying text.
63. It is true that nearly a decade before Pinochet, Noriega's claim of immunity before the US courts was rejected, but this was entirely due to domestic political-constitutional reasons rather than to international law. In the US District Court for the Southern District of Florida (above n 1) the reason was stated to be that the US government had never recognised Noriega as the de jure sovereign of Panama. In 1997 the US Court of Appeals for the 11th Circuit went even further and held that ‘by pursuing Noriega's capture and this prosecution, the Executive Branch [of the US government] has manifested its clear sentiment that Noriega should be denied head-of-state immunity’; furthermore, ‘the charged acts relate to [his] private pursuit of personal enrichment’ . The full text of the decision is available on the Internet at http://laws.findlaw.com/11th/924687man.html.
64. In any event, it is submitted that the crimes in respect of which Pinochet might eventually have been extradited were not crimes attracting true universal jurisdiction as a matter of international law: see comment at n 26, above.
65. Fox, above n 45, p 215.
66. The Parlement Belge (1879) 4 PD 129.
67. Chung Chi Cheung v R (1939) AC 160.
68. (1977) QB 529, per Lord Denning MR and Shaw LJ.
69. Pinochet (No 1) (1998) 4 AII ER 897 at 937–938 (per Lord Nicholls). Of the minority judges, only Lord Lloyd gave detailed consideration to the act of state doctrine as a ground wholly separate from immunity in precluding justiciability: he held that the potential disruption to British foreign relations and interference in Chile's amnesty and the restoration of democracy there, occasioned by the proceedings against Pinochet, combined to render the case non-justiciable (at 934–935).
70. R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (Amnesty International and others intervening) (No 3) (1999) 2 All ER 97. The judges were Lord Browne-Wilkinson, Lord Goff of Chieveley, Lord Hope of Craighead, Lord Hutton, Lord Saville of Newdigate, Lord Millett and Lord Phillips of Worth Matravers. For early analysis, see J C Barker ‘The Future of Former Head of State Immunity after ex parte Pinochet’ (1999) 48 ICLQ 937; E Denza ‘Ex parte Pinochet: Lacuna or Leap?’ (1999) 48 ICLQ 949; and C Warbrick ‘Extradition Law Aspects of Pinocher 3’ (1999) 48 ICLQ 958.
71. (1998) 38 ILM 68.
72. (1998) 38 ILM 68 at 79. See also G Mullan ‘The Concept of Double Criminality in the Context of Extraterritorial Crimes’ (1997) Crim LR 17.
73. Pinochet (No 1) (1998) 4 All ER 897 at 921 (original emphasis).
74. Pinochet (No 3) (1999) 2 All ER 97 at 106.
75. (1999) 2 All ER 97 at 107.
76. (1990) 2 All ER 866 at 878. The case involved a conspiracy, entered into in Thailand, to traffic in a dangerous drug in Hong Kong; at the time of the appellant's arrest and trial, no overt act pursuant to the conspiracy had been committed in Hong Kong. See also R v Sansom (1991) 2 All ER 145.
77. Pinocher (No 3) (1999) 2 AII ER 97 at 140. The remarks quoted were actually made when Lord Hope was considering the charges involving conspiracy to murder, but they are clearly of general application. In relation to the charges of conspiracy to murder and attempted murder, Lord Hope held that the only one of these charges to survive his application of the double criminality rule was the allegation that Pinochet was a party to a conspiracy in Spain to commit murder in Spain prior to 3 1 December 1976 (at 139).
78. (1999) 2 All ER 97 at 137.
79. (1999) 2 All ER 97 at 107.
80. (1999) 2 All ER 97 at 111.
81. (1999) 2 All ER 97 at 130.
82. Cf Marcos v Federal Department of Police (1990) 102 ILR 198, in which the Swiss Federal Tribunal withheld immunity from the former President of the Philippines and his wife in view of the express waiver of their immunity by the Philippine government. This confirms the view that immunity ratione personae attaches to the office and not the office-holder.
83. Pinochet (No 3) (1999) 2 All ER 97 at 122–130.
84. See text to n 47 above.
85. Pinochet (No 3) (1999) 2 All ER 97 at 128.
86. (1999) 2 All ER 97 at 114.
87. (1999) 2 All ER 97 at 114.
88. (1999) 2 All ER 97 at 115.
89. (1999) 2 All ER 97 at 169.
90. (1999) 2 All ER 97 at 189–190.
91. Cf Siderman de Blake v Republic of Argentina (1992) 965 F 2d 699 at 714–718 (US Court of Appeals for the 9th Circuit). A transcript of the judgment is available on LEXIS.
92. Pinochet (No 3) (1999) 2 AII ER 97 at 165.
93. (1977) QB 529.
94. In addition to various treaty provisions, Lord Millett also referred to the vindication of universal jurisdiction by Israeli and US domestic courts in A-G of Israel v Eichmann (1961) 36 ILR 5 and Demjanjuk v Petrovsky (1985) 603 F Supp 1468 (US District Court for the Northern District of Ohio – transcript available on LEXIS), and to the ICTY's decision that torture, as a consequence of the jus cogens character of its prohibition, is subject to universal jurisdiction: The Prosecutor v Anto Furundija (1998) 38 ILM 317 at 349–350.
95. Pinocher (No 3) (1999) 2 AII ER 97 at 177 (emphasis added).
96. Hansard HC Debs (Written Answers), 15 April 1999, cols 311–316.
97. Kingdom of Spain v Pinochet Ugarte (8 October 1999, available on the Internet at http://www.open.gov.uk/lcd/magist/pinochet.htm.)
98. Hunsard HC Debs, 12 January 2000, cols 277–278.
99. R v Secretary of State for the Home Department, exp Kingdom of Belgium, Amnesty International and others (15 February 2000, QBD): transcript available on the Internet at http://wood.ccta.gov.uk/courtser/judgements.nsf.
100. Hansard, HC Debs, 2 March 2000, cols 57 1–575.
101. Ibid, cols 589–592.
102. Agence France Presse report, 26 April 2000.
103. It is submitted that the decision in Pinochet (No 1), although set aside by Pinochet (No 2), remains an authoritative decision on questions of law – it was set aside in relation to the merits of Pinochet's case, but the opinions of Lord Nicholls and Lord Steyn are still profoundly important from a doctrinal point of view and will surely continue to be viewed as influential authorities, at the very least.
104. Pinochet (No 3) (1999) 2 AII ER 97 at 111 (per Lord Browne-Wilkinson).
105. Hansard HC Debs, 2 March 2000, col 585.
106. The Prosecutor v Anto Furund·ija (1998) 38 ILM 317.
107. The term ‘Pinochet Syndrome’ was first used in a report in the American media of an attempt in Austria to prosecute Izzat Ibrahim al-Douri, a senior member of Saddam Hussein's Iraqi regime, on charges of mass murder and torture; he had been in Vienna for medical treatment. The same report mentioned the reluctance of ex-President Suharto of Indonesia to travel to Germany for medical treatment, as he has done in the past: The New York Times, 22 August 1999. For details on the al-Douri case, see also The Independent, 19 August 1999; on Suharto's predicament and the Portuguese interest in seeking his extradition, see The Daily Telegraph, 17 August 1999. Charges have also been filed in the Belgian and French courts against surviving Khmer Rouge leaders Ta Mok, Khieu Samphan and Ieng Sary: Associated Press report, 5 April 1999. These developments bear out the fears voiced by Lord Goff (text to n 85, above).
108. The New York Times, 11 February 2000.
109. The New York Times, 21 July 2000.
110. See D Sarooshi ‘The Statute of the International Criminal Court’ (1999) 48 ICLQ 387 at 392–393; also, generally, D McGoldrick ‘The Permanent International Criminal Court: an end to the culture of impunity?’ (1999) Crim LR 627.
111. See Human Rights Watch Press Release, 24 March 1999. BBC World reported on 18 June 1999 that Judge Garzon sought to reduce the effect of the third House of Lords judgment in Pinochet's case by adding 36 new charges to the indictment, all relating to acts allegedly committed after 29 September 1988: see http://news.bbc.co.uk/low/english/world/newsid_372000/372396.stm.
112. Cf the indictment of the current President of the Federal Republic of Yugoslavia by the ICTY: above n 3 and accompanying text. This, however, has been done by an international tribunal rather than a municipal court.
113. SI 1996/716.