Key facts relating to the attempted prosecution of General Augusto Pinochet Ugarte, former president of the Republic of Chile:
1970 - election of Dr Salvador Allende – first ever democratically elected Marxist head of state.
1973 - military coup, which resulted in the death of President Allende and the investiture of General Augusto Pinochet Ugarte as president – supported by US Government and backed by the CIA.
In the years that followed, Pinochet’s government pursued a policy of extremism against political opposition both inside and outside Chile. Opponents in Chile were tortured, killed or simply ‘disappeared’. The ferocity of the initial purge cannot be denied.
“A vast but unknown number of people - estimates range from 5,000 to over 30,000 - have lost their lives in Chile since the military coup. Though official executions are no longer announced, disappearances continue … More than 2,000 people are now known to have been executed in custody between 11 September and the end of December 1973.”
Much of the repression was centrally organised and co-ordinated, particularly after the creation, in June 1974, of the Directorate of National Intelligence (DINA). According to one observer, “the DINA … was directly responsible for the purging of all the political opponents of the military regime. Between 1973 and 1977 the DINA was responsible for the ‘disappearance’ of over 2,000 Chileans. They were kidnapped from their homes, in the street or at their place of work, and taken to secret detention centres for interrogation under torture. Most were never heard of again.”
Lord Browne- Wilkinson in the House of Lords case involving Pinochet remarked that “There is no real dispute that during the period of the Senator Pinochet regime appalling acts of barbarism were committed in Chile …”[1] (1) R v Bow Street Metropolitan Stipendiary Magistrate, Ex p. Pinochet Ugarte (No.3) (1999) p. 833.
The collapse of the Chilean banking system in 1983 led to the emergence of mass opposition to the Pinochet regime in Chile which encompassed not only the working classes but also the Catholic church and the military.
Eventually, in October 1988, Pinochet’s proposal that he should remain in power for a further eight-year term was defeated in a plebiscite. Constitutional changes followed leading to the election as President, in December 1989, of Patricio Aylwin, leader of the moderate Christian Democratic Party.
President Aylwin formally took power in March 1990.
The first report by Ms. Concepción Escobar Hernández, Special Rapporteur to the ILC, written in 2012, provides an excellent overview of the topic, how it had been considered up to that point, and what the future prospects for the work well. It also highlights many of the key issues such as the distinction between immunity rationae personae, and immunity rationae materiae. Ms Hernandez’s Final Report from August 2020 entitled “Eighth report on immunity of State officials from foreign criminal jurisdiction”, by Concepción Escobar Hernández, Special Rapporteur. This summarises the work of the ILC on the topic but it also includes (from p. 20 onwards) the text of the Draft Article.
I would draw your attention, in particular, to Draft Article 7, which states as follows:
Draft article 7
Crimes under international law in respect of which immunity ratione materiae shall not apply
1. Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law:
(a) crime of genocide;
(b) crimes against humanity
(c) war crimes;
(d) crime of apartheid;
(e) torture;
(f) enforced disappearance.
2. For the purposes of the present draft article, the crimes under international law mentioned above are to be understood according to their definition in the treaties enumerated in the annex to the present draft articles.
Background to the Pinochet litigation in the UK
A high-level investigation into the activities of the Pinochet government had been continuing in Spain for some time under the direction of Judge-Magistrate Garzon, who eventually issued an international warrant for Pinochet’s arrest.
In 1998, Pinochet visited the United Kingdom to receive medical treatment. Judicial authorities in Spain learned of his visit to the UK and sought his extradition in order that he might stand trial in Spain for conspiracy to commit the crime of murder, torture and hostage-taking.
As a result of this action, an international arrest warrant was issued on 16 October 1998 and a provisional arrest warrant was confirmed by a London Magistrate under section 8 of the Extradition Act 1989. In pursuance of this warrant, Pinochet was arrested in a London hospital on 17 October 1998. On 22 October, a further arrest warrant was issued by Bow Street Magistrates accusing Pinochet of a range of additional offences.
Pinochet commenced proceedings for habeas corpus and sought leave for judicial review of the issuance of the two provisional arrest warrants. The matter was heard before a Divisional Court on 28 October 1998 which quashed both warrants, primarily on the basis of the immunity to which Pinochet was entitled as a former Head of State.
The Crown Prosecution Service was given leave to pursue an expedited appeal to the House of Lords, which first heard the case between 4 and 12 November 1998.
The House of Lords decision in Pinochet No. 1 by a majority of 3 to 2 found that Senator Pinochet was not entitled to immunity in relation to crimes under international law.
This decision was set aside by the House of Lords on 15 January 1999 on the ground that the Appellate Committee had not been properly constructed during the first hearing of the matter (Pinochet No. 2).
The matter was reheard before the House of Lords on 18 January 1999 which delivered its final opinion on 24 March 1999 (Pinochet No. 3).
Immunity Questions addressed in the Pinochet litigation
As we know, international law recognises two primary forms of immunity from jurisdiction - immunity rationae personae and immunity rationae materiae.
In 1998, the position of international law on the immunity of heads of state (and other high-ranking State officials), both serving and former, was unclear, and to come extent remains so today – this is apparent from the current work of the International Law Commission on the Immunity of state officials from foreign criminal jurisdiction to which we will return later
Immunity rationae personae - attaches to the person of the head of state and is analogous to diplomatic immunity. It brings with it wide immunity from the civil and administrative and criminal jurisdiction of a foreign state. It applies regardless of where the head of state is. According to Watts: “A head of state’s immunity is enjoyed in recognition of his very special status as holder of his state’s highest office … his position as head of state is one which he has erga omnes, at all times wherever he is.”
However, immunity rationae personae exists only as long as the recipient remains in office. In other words, it is not available to former heads of state.
Former heads of state are, nevertheless, entitled to some immunity in respect of the acts undertaken by them while serving as a head of state. This is the immunity rationae materiae element of head of state immunity, and attaches to the official acts of the head of state. Crucially, the acts in question are deemed not to be the personal acts of the head of state. Rather they are the acts of the state for which an individual cannot be held personally responsible.
The international law position is reflected in the United Kingdom in terms of section 20(1) of the State Immunity Act 1978 which 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.
Article 39(2) of the Vienna Convention provides that diplomatic agents are entitled to immunity after their functions have ceased but only in respect of official acts. In both Pinochet No. 1 and No. 3, it was argued on behalf of Pinochet that section 20(1) of the State Immunity Act and, as a result, Article 39(2) of the Vienna Convention could apply only to a head of state who was present in the United Kingdom, and further, it could apply only to official acts undertaken in the United Kingdom, in the same way as it would apply to diplomatic agents.
In both cases, their Lordships examined the negotiating text of the State Immunity Act and all agreed, bar one, that it had been intended that it should apply to heads of state whether or not they were, or indeed ever had been, present in the United Kingdom.
By attaching immunity to the official acts of a head of state, international law may simply be reasserting the assumption that the official or public acts of a state are beyond the jurisdiction of foreign states, if not, indeed, the jurisdiction of international law. However, there are two approaches which can be taken in order to avoid this assumption.
First, it may be possible to argue that certain acts of a head of state are not official acts and, accordingly, no immunity will attach to those acts. Alternatively international law itself recognises that certain official acts are justiciable, either before municipal courts or international tribunals.
In both situations, the development of the principle of international criminal responsibility is key (see Week 1 lecture). Both approaches are apparent in the decision of the House of Lords in Pinochet No. 3.
Thus, while, on the face of it, six of the seven judges who sat in Pinochet No. 3 agreed that Pinochet was not entitled to immunity as a former head of state in respect, at least, of the crime of torture, the majority were equally divided on the question of whether the acts in question were official acts.
International Crimes as Official Acts
Persuasive arguments to the effect that acts designated as crimes under international law cannot be official conduct and so not covered by immunity rationae materiae, had previously been put forward by the majority in Pinochet No. 1. According to Lord Steyn:
Negatively, the development of international law since the second world war justifies the conclusion that by the time of the coup d’etat, and certainly ever since, international law condemned genocide, torture, hostage-taking and crimes against humanity (during an armed conflict or in peace time) as international crimes deserving of punishment. Given this state of international law, it seems to me difficult to maintain that the commission of such high crimes may amount to acts performed in the exercise of the functions of a head of state.
Similarly, Lord Nicholls pointed out that:
International law recognises, of course, that the functions of a head of state may include activities which are wrongful, even illegal, by the law of his own state or by the laws of other states. But international law has made plain that certain types of conduct, including torture and hostage-taking are not acceptable conduct on the part of anyone. This applies as much to heads of state or even more so, as it does to everyone else; the contrary conclusion would make a mockery of international law.
In Pinochet No. 3, three of the judges, specifically, Lords Browne-Wilkinson, Hutton and Phillips agreed with that position. In particular, Lord Browne-Wilkinson posed the following question:
“Can it be said that the commission of a crime which is an international crime against humanity and jus cogens is an act done in an official capacity on behalf of the state?”
Three of the judges in the house of Lords considered that Pinochet’s acts could not have been official but the other three considered correctly, in my view, that they were torture due to the fact that the crime of torture as an international crime can only be committed by officials in acting in their official capacity – they argued, nevertheless, that the immunity was removed due to the fact that the Act that made torture a crime in the UK came after the State Immunity act 1978 and so Parliament must have intended immunity not to apply in such cases (of course it would have been nice if they had specifically said so – but they did not!)
Accordingly, it was the nature of the act, not only as a criminal act but, particularly, a crime against humanity, which was the determinative factor in the decision as to whether or not the acts were official.
The Alternative View
There are a number of problems with this approach.
First, while it is not difficult to agree with the assertion of Lord Nicholls that “it hardly needs saying that torture of his own subjects, or of aliens, would not be regarded as a function of a head of state,” a similar statement could be made in relation to the murder by a head of state of his own subjects or of aliens. Yet by this test, murder would not fall outside the functions of a head of state because murder, as such, is not recognised as an international crime. Indeed, Lord Browne-Wilkinson specifically held in Pinochet No. 3 that: “As to the charge of murder and conspiracy to murder, no one has advanced any reason why the ordinary rules of immunity should not apply and Senator Pinochet is entitled to such immunity.” Murder is not, in the words of Lord Steyn, a “high crime.” The issue becomes where to draw the line.
Such high crimes by their very nature can often only be carried out public officials. Indeed, with regard to the offence of torture, it should be noted that the offence requires that the torture be carried out by an official or with their consent or acquiescence.
See 1984 Convention Against Torture Article 1 – Torture means “any act by which severe pain or suffering … is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. Thus, to deny the official character of such offences is to fly in the face of reality. As a matter of international law they are official acts. As a matter of UK law, they are official acts. As Collins J stated in the Divisional Court, “[t]here is in my judgement no justification for reading any limitation based on the nature of the crimes committed into the immunity which exists.” Finally, and perhaps most importantly, to deny the official character of such acts would be to remove any liability which the state itself might have under international law for the acts of its officials
Appropriate forum? - Immunity does not imply impunity – the key is that immunity relates to domestic jurisdiction and not international tribunals.
Any observer of the Nuremberg and Tokyo trials or, more recently, the work of the International Criminal Tribunals for Rwanda and the former Yugoslavia, cannot deny the existence of the principle of international individual responsibility. Indeed, the International Criminal Court is premised on the very notion of such responsibility and its Statute and those of the Rwandan and Yugoslav Tribunals recognise this by expressly denying immunity attaching to the official capacity of a person accused of the relevant crime. See Article 27.
The alternative approach to providing for the individual criminal responsibility of heads of state in respect of official acts is to look for specific exclusions to immunity provided by international or domestic law. Such an exclusion will exist generally for cases brought before the International Criminal Court by virtue of Article 27 of its Statute as stated above. However Article 27 does not apply to cases brought before national courts.
Ultimately, if the acts in question were official acts Pinochet was prima facie entitled to immunity rationae materiae in respect of them. If immunity rationae materiae were to be refused there would have to be some provision of the law expressly removing immunity in respect of those acts.
Sadly there was no clear position stated by their Lordships in Pinochet No. 3.
One judge, Lord Goff, found that Pinochet’s immunity rationae materiae remained in place on the basis that there was no express removal of immunity, nor indeed was immunity impliedly removed by the terms of the Torture Convention.
The other six judges disagreed and held that Pinochet’s immunity rationae materiae could be excluded/removed. But on what basis?
As noted above, three of the judges - Lords Browne-Wilkinson, Hutton and Phillips argued that the immunity could be removed on the basis that Pinochet’s acts were not official acts and so did not attract immunity rationae materiae, Lord Millett found the express removal of immunity in the form of customary international law which provided for universal jurisdiction over the acts in question.
Lord Hope argued along the same lines but apparently required the express consent of the United Kingdom and Chile to the Torture Convention in order to “crystallise” the removal of immunity – in his case, the removal existed on the basis of an international treaty.
Lord Saville held, quite simply, that the terms of the Torture Convention had expressly removed immunity rationae materiae.
All that can be said for definite is that those judges in the majority who found that Pinochet had committed official acts, i.e. Lords Millett, Hope and Saville, were agreed that international law itself had provided an exception to Pinochet’s immunity rationae materiae in respect of torture at least.
Is Pinochet a precedent for the denial of immunity in all cases of international crimes?
In trying to understand the outcomes of the Pinochet litigation, it is important to note what the decision in Pinochet did not do.
First, the decision did not support the assertion that torture was subject to universal jurisdiction by virtue of customary international law. Lord Millett argued forcibly that the prohibition of the crime of torture had been a peremptory norm (jus cogens) since at least 1973, the year in which Pinochet had taken power in Chile, and that Pinochet could be tried anywhere on the basis of universal jurisdiction for torture offences committed at any time during his regime.
The rest of the majority were not persuaded by this analysis. They preferred the argument that the Torture Convention had conferred on the UK the right to assert jurisdiction in relation to allegations of torture as defined by the Torture Convention, and that that right had been exercised through the enactment and coming into force of the relevant provision of UK domestic law.
Crucially, the status of torture as jus cogens, or a peremptory norm of international law, did not confer on States the right to claim universal jurisdiction. Furthermore, in relation to the question of jurisdiction, the decision in Pinochet No.3 dealt only with criminal jurisdiction.
Secondly, in relation to the question of immunity from jurisdiction, the decision did not remove immunity for all State officials, serving or former. Thus, insofar as the case dealt only with a former Head of State, whose position was analogous to that of a diplomatic agent, it left open the question of the immunity of other State functionaries, as well as other individuals acting on behalf of the State, who may be entitled to immunity rationae materiae in respect of their official acts. It is worth noting that the question of the immunity of State officials from the criminal jurisdiction of foreign States remains highly controversial and is currently under consideration by the International Law Commission with a view to codification – see further below.
Finally, the decision rejected the idea that the jus cogens character of the prohibition against torture “trumped” any form of immunity from jurisdiction. This is, perhaps, the most controversial aspect of the decision and is deserving of further thought that will be provided in the lecture.
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