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(Regina v. Evans and Another and the )Tj
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(My Lords, )Tj
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(As is well known, this case concerns an attempt by the Government of Spa\
in to extradite Senator )Tj
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(Pinochet from this country to stand trial in Spain for crimes committed \
\(primarily in Chile\) during )Tj
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(the period when Senator Pinochet was head of state in Chile. The interac\
tion between the various )Tj
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(legal issues which arise is complex. I will therefore seek, first, to gi\
ve a short account of the legal )Tj
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(principles which are in play in order that my exposition of the facts wi\
ll be more intelligible. )Tj
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(Outline of the law)Tj
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( )Tj
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(In general, a state only exercises criminal jurisdiction over offences w\
hich occur within its )Tj
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(geographical boundaries. If a person who is alleged to have committed a \
crime in Spain is found in )Tj
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(the United Kingdom, Spain can apply to the United Kingdom to extradite h\
im to Spain. The power )Tj
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(to extradite from the United Kingdom for an "extradition crime" is now c\
ontained in the )Tj
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(Extradition Act 1989. That Act defines what constitutes an "extradition \
crime". For the purposes )Tj
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(of the present case, the most important requirement is that the conduct \
complained of must )Tj
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(constitute a crime under the law both of Spain and of the United Kingdom\
. This is known as the )Tj
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(double criminality rule. )Tj
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(Since the Nazi atrocities and the Nuremberg trials, international law ha\
s recognised a number of )Tj
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(offences as being international crimes. Individual states have taken jur\
isdiction to try some )Tj
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(international crimes even in cases where such crimes were not committed \
within the geographical )Tj
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(boundaries of such states. The most important of such international crim\
es for present purposes is )Tj
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(torture which is regulated by the International Convention Against Tortu\
re and other Cruel, )Tj
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(Inhuman or Degrading Treatment or Punishment, 1984. The obligations plac\
ed on the United )Tj
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(Kingdom by that Convention \(and on the other 110 or more signatory stat\
es who have adopted the )Tj
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(Convention\) were incorporated into the law of the United Kingdom by sec\
tion 134 of the Criminal )Tj
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(Justice Act 1988. That Act came into force on 29 September 1988. Section\
134 created a new )Tj
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(crime under United Kingdom law, the crime of torture. As required by the\
Torture Convention )Tj
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("all" torture wherever committed world-wide was made criminal under Unit\
ed Kingdom law and )Tj
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(triable in the United Kingdom. No one has suggested that before section \
134 came into effect )Tj
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(torture committed outside the United Kingdom was a crime under United Ki\
ngdom law. Nor is it )Tj
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(suggested that section 134 was retrospective so as to make torture commi\
tted outside the United )Tj
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(Kingdom before 29 September 1988 a United Kingdom crime. Since torture o\
utside the United )Tj
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(Kingdom was not a crime under U.K. law until 29 September 1988, the prin\
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(criminality which requires an Act to be a crime under both the law of Sp\
ain and of the United )Tj
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(Kingdom cannot be satisfied in relation to conduct before that date if t\
he principle of double )Tj
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(criminality requires the conduct to be criminal under United Kingdom law\
)Tj
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(at the date it was )Tj
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(committed)Tj
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(. If, on the other hand, the double criminality rule only requires the c\
onduct to be )Tj
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(criminal under U.K. law )Tj
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(at the date of extradition )Tj
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(the rule was satisfied in relation to all torture )Tj
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(alleged against Senator Pinochet whether it took place before or after 1\
988. The Spanish courts )Tj
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(have held that they have jurisdiction over all the crimes alleged. )Tj
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(In these circumstances, the first question that has to be answered is wh\
ether or not the definition of )Tj
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(an "extradition crime" in the Act of 1989 requires the conduct to be cri\
minal under U.K. law at the )Tj
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(date of commission or only at the date of extradition. )Tj
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(This question, although raised, was not decided in the Divisional Court.\
At the first hearing in this )Tj
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(House it was apparently conceded that all the matters charged against Se\
nator Pinochet were )Tj
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(extradition crimes. It was only during the hearing before your Lordships\
that the importance of the )Tj
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(point became fully apparent. As will appear, in my view only a limited n\
umber of the charges )Tj
T*
(relied upon to extradite Senator Pinochet constitute extradition crimes \
since most of the conduct )Tj
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(relied upon occurred long before 1988. In particular, I do not consider \
that torture committed )Tj
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(outside the United Kingdom before 29 September 1988 was a crime under U.\
K. law. It follows )Tj
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(that the main question discussed at the earlier stages of this case--is \
a former head of state entitled )Tj
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(to sovereign immunity from arrest or prosecution in the U.K. for acts of\
torture--applies to far )Tj
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(fewer charges. But the question of state immunity remains a point of cru\
cial importance since, in )Tj
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(my view, there is certain conduct of Senator Pinochet \(albeit a small a\
mount\) which does )Tj
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(constitute an extradition crime and would enable the Home Secretary \(if\
he thought fit\) to extradite )Tj
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(Senator Pinochet to Spain unless he is entitled to state immunity. Accor\
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(which of the crimes alleged is an extradition crime, I will then go on t\
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(Pinochet is entitled to immunity in respect of those crimes. But first I\
must state shortly the )Tj
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(relevant facts. )Tj
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(The facts)Tj
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( )Tj
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(On 11 September 1973 a right-wing coup evicted the left-wing regime of P\
resident Allende. The )Tj
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(coup was led by a military junta, of whom Senator \(then General\) Pinoc\
het was the leader. At )Tj
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(some stage he became head of state. The Pinochet regime remained in powe\
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(when Senator Pinochet resigned. )Tj
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(There is no real dispute that during the period of the Senator Pinochet \
regime appalling acts of )Tj
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(barbarism were committed in Chile and elsewhere in the world: torture, m\
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(Senator Pinochet himself committed any of those acts, it is alleged that\
they were done in )Tj
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(pursuance of a conspiracy to which he was a party, at his instigation an\
d with his knowledge. He )Tj
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(denies these allegations. None of the conduct alleged was committed by o\
r against citizens of the )Tj
0 -1.2 TD
(United Kingdom or in the United Kingdom. )Tj
0 -2.557 TD
(In 1998 Senator Pinochet came to the United Kingdom for medical treatmen\
t. The judicial )Tj
0 -1.2 TD
(authorities in Spain sought to extradite him in order to stand trial in \
Spain on a large number of )Tj
T*
(charges. Some of those charges had links with Spain. But most of the cha\
rges had no connection )Tj
0 -1.2 TD
(with Spain. The background to the case is that to those of left-wing pol\
itical convictions Senator )Tj
T*
(Pinochet is seen as an arch-devil: to those of right-wing persuasions he\
is seen as the saviour of )Tj
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(Chile. It may well be thought that the trial of Senator Pinochet in Spai\
n for offences all of which )Tj
T*
(related to the state of Chile and most of which occurred in Chile is not\
calculated to achieve the )Tj
T*
(best justice. But I cannot emphasise too strongly that that is no concer\
n of your Lordships. )Tj
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(Although others perceive our task as being to choose between the two sid\
es on the grounds of )Tj
0 -1.2 TD
(personal preference or political inclination, that is an entire misconce\
ption. Our job is to decide )Tj
0 -1.2 TD
(two questions of law: are there any extradition crimes and, if so, is Se\
nator Pinochet immune from )Tj
T*
(trial for committing those crimes. If, as a matter of law, there are no \
extradition crimes or he is )Tj
T*
(entitled to immunity in relation to whichever crimes there are, then the\
re is no legal right to )Tj
T*
(extradite Senator Pinochet to Spain or, indeed, to stand in the way of h\
is return to Chile. If, on the )Tj
T*
(other hand, there are extradition crimes in relation to which Senator Pi\
nochet is not entitled to state )Tj
T*
(immunity then it will be open to the Home Secretary to extradite him. Th\
e task of this House is )Tj
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(only to decide those points of law. )Tj
2.857 -2.557 Td
(On 16 October 1998 an international warrant for the arrest of Senator Pi\
nochet was issued )Tj
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(in Spain. On the same day, a magistrate in London issued a provisional w\
arrant \("the first )Tj
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(warrant"\) under section 8 of the Extradition Act 1989. He was arrested \
in a London hospital )Tj
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(on 17 October 1998. On 18 October the Spanish authorities issued a secon\
d international )Tj
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(warrant. \205 )Tj
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( )Tj
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( )Tj
-2.857 -2.557 Td
( \205The appeal came on again for rehearing on 18 January 1999 before y\
our Lordships. In the )Tj
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(meantime the position had changed yet again. First, the Home Secretary h\
ad issued to the )Tj
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(magistrate authority to proceed under section 7 of the Act of 1989. In d\
eciding to permit the )Tj
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(extradition to Spain to go ahead he relied in part on the decision of th\
is House at the first hearing )Tj
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(that Senator Pinochet was not entitled to immunity. He did not authorise\
the extradition )Tj
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(proceedings to go ahead on the charge of genocide: accordingly no furthe\
r arguments were )Tj
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(addressed to us on the charge of genocide which has dropped out of the c\
ase. )Tj
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(Secondly, the Republic of Chile applied to intervene as a party. Up to t\
his point Chile had been )Tj
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(urging that immunity should be afforded to Senator Pinochet, but it now \
wished to be joined as a )Tj
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(party. Any immunity precluding criminal charges against Senator Pinochet\
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(Senator Pinochet but of the Republic of Chile. Leave to intervene was th\
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(Republic of Chile. The same amicus, Mr. Lloyd Jones, was heard as at the\
first hearing as were )Tj
0 -1.2 TD
(counsel for Amnesty International. Written representations were again pu\
t in on behalf of Human )Tj
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(Rights Watch. )Tj
0 -2.557 TD
(Thirdly, the ambit of the charges against Senator Pinochet had widened y\
et again. Chile had put in )Tj
0 -1.2 TD
(further particulars of the charges which they wished to advance. In orde\
r to try to bring some order )Tj
T*
(to the proceedings, Mr. Alun Jones Q.C., for the Crown Prosecution Servi\
ce, prepared a schedule )Tj
T*
(of the 32 U.K. criminal charges which correspond to the allegations made\
against Senator Pinochet )Tj
0 -1.2 TD
(under Spanish law, save that the genocide charges are omitted. The charg\
es in that schedule are )Tj
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(fully analysed and considered in the speech of my noble and learned frie\
nd, Lord Hope of )Tj
T*
(Craighead who summarises the charges as follows: )Tj
0 -2.557 TD
( Charges 1, 2 and 5: conspiracy to torture between 1 January 1972 and 20\
September 1973 and )Tj
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(between 1 August 1973 and 1 January 1990; )Tj
0 -2.557 TD
( Charge 3: conspiracy to take hostages between 1 August 1973 and 1 Janua\
ry 1990; )Tj
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( Charge 4: conspiracy to torture in furtherance of which murder was comm\
itted in various )Tj
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(countries including Italy, France, Spain and Portugal, between 1 January\
1972 and 1 January )Tj
T*
(1990. )Tj
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( Charges 6 and 8: torture between 1 August 1973 and 8 August 1973 and on\
11 September 1973. )Tj
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( Charges 9 and 12: conspiracy to murder in Spain between 1 January 1975 \
and 31 December 1976 )Tj
0 -1.2 TD
(and in Italy on 6 October 1975. )Tj
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( Charges 10 and 11: attempted murder in Italy on 6 October 1975. )Tj
T*
( Charges 13-29; and 31-32: torture on various occasions between 11 Septe\
mber 1973 and May )Tj
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(1977. )Tj
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( Charge 30: torture on 24 June 1989. )Tj
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(I turn then to consider which of those charges are extradition crimes. \
)Tj
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(\205 )Tj
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(The charges which allege extradition crimes)Tj
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(The consequences of requiring torture to be a crime under U.K. law at th\
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(As to the charges of murder and conspiracy to murder, no one has advance\
d any reason why the )Tj
0 -1.2 TD
(ordinary rules of immunity should not apply and Senator Pinochet is enti\
tled to such immunity. )Tj
0 -2.557 TD
(For these reasons, I would allow the appeal so as to permit the extradit\
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(act of torture which is alleged in charge 30, was being committed by Sen\
ator Pinochet after 8 )Tj
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(December 1988 when he lost his immunity. )Tj
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(charges against Senator Pinochet would be the subject matter of the extr\
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(Lordships' decision excluding from consideration a very large number of \
those charges constitutes )Tj
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(a substantial change in the circumstances. This will obviously require t\
he Secretary of State to )Tj
T*
(reconsider his decision under section 7 in the light of the changed circ\
umstances. )Tj
T*
( )Tj
2.857 -2.557 Td
( )Tj
ET
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(conspiracy to torture relating to conduct before 29 September 1988 \(the\
date on which section 134 )Tj
0 -1.2 TD
(came into effect\) are not extraditable, i.e. only those parts of the co\
nspiracy to torture alleged in )Tj
T*
(charge 2 and of torture and conspiracy to torture alleged in charge 4 wh\
ich relate to the period )Tj
0 -1.2 TD
(after that date and the single act of torture alleged in charge 30 are e\
xtradition crimes relating to )Tj
0 -1.2 TD
(torture. )Tj
0 -2.557 TD
(Lord Hope also considers, and I agree, that the only charge relating to \
hostage-taking \(charge 3\) )Tj
0 -1.2 TD
(does not disclose any offence under the Taking of Hostages Act 1982. The\
statutory offence )Tj
T*
(consists of taking and detaining a person \(the hostage\), so as to comp\
el someone who is not the )Tj
T*
(hostage to do or abstain from doing some act: section 1. But the only co\
nduct relating to hostages )Tj
T*
(which is charged alleges that the person detained \(the so-called hostag\
e\) was to be forced to do )Tj
T*
(something by reason of threats to injure other non-hostages which is the\
exact converse of the )Tj
T*
(offence. The hostage charges therefore are bad and do not constitute ext\
radition crimes. )Tj
0 -2.557 TD
(Finally, Lord Hope's analysis shows that the charge of conspiracy in Spa\
in to murder in Spain )Tj
0 -1.2 TD
(\(charge 9\) and such conspiracies in Spain to commit murder in Spain, a\
nd such conspiracies in )Tj
T*
(Spain prior to 29 September 1988 to commit acts of torture in Spain, as \
can be shown to form part )Tj
T*
(of the allegations in charge 4 are extradition crimes. )Tj
0 -2.557 TD
(I must therefore consider whether, in relation to these two surviving ca\
tegories of charge, Senator )Tj
0 -1.2 TD
(Pinochet enjoys sovereign immunity. But first it is necessary to conside\
r the modern law of )Tj
T*
(torture. )Tj
/T1_1 1 Tf
0 -2.557 TD
(Torture)Tj
/T1_0 1 Tf
( )Tj
T*
(Apart from the law of piracy, the concept of personal liability under in\
ternational law for )Tj
0 -1.2 TD
(international crimes is of comparatively modern growth. The traditional \
subjects of international )Tj
0 -1.2 TD
(law are states not human beings. But consequent upon the war crime trial\
s after the 1939-45 World )Tj
T*
(War, the international community came to recognise that there could be c\
riminal liability under )Tj
T*
(international law for a class of crimes such as war crimes and crimes ag\
ainst humanity. Although )Tj
T*
(there may be legitimate doubts as to the legality of the Charter of the \
Nuremberg Tribunal, in my )Tj
T*
(judgment those doubts were stilled by the Affirmation of the Principles \
of International Law )Tj
T*
(recognised by the Charter of Nuremberg Tribunal adopted by the United Na\
tions General )Tj
T*
(Assembly on 11 December 1946. That Affirmation affirmed the principles o\
f international law )Tj
T*
(recognised by the Charter of the Nuremberg Tribunal and the judgment of \
the Tribunal and )Tj
T*
(directed the Committee on the codification of international law to treat\
as a matter of primary )Tj
T*
(importance plans for the formulation of the principles recognised in the\
Charter of the Nuremberg )Tj
T*
(Tribunal. At least from that date onwards the concept of personal liabil\
ity for a crime in )Tj
T*
(international law must have been part of international law. In the early\
years state torture was one )Tj
T*
(of the elements of a war crime. In consequence torture, and various othe\
r crimes against humanity, )Tj
T*
(were linked to war or at least to hostilities of some kind. But in the c\
ourse of time this linkage with )Tj
T*
(war fell away and torture, divorced from war or hostilities, became an i\
nternational crime on its )Tj
ET
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(own: see )Tj
/T1_1 1 Tf
(Oppenheim's International Law)Tj
/T1_0 1 Tf
( \(Jennings and Watts edition\) vol. 1, 996; note 6 to )Tj
0 -1.2 TD
(Article 18 of the )Tj
/T1_1 1 Tf
(I.L.C. Draft Code of Crimes Against Peace)Tj
/T1_0 1 Tf
(; )Tj
/T1_1 1 Tf
(Prosecutor v. Furundzija)Tj
/T1_0 1 Tf
( Tribunal )Tj
T*
(for Former Yugoslavia, Case No. 17-95-17/1-T. Ever since 1945, torture o\
n a large scale has )Tj
0 -1.2 TD
(featured as one of the crimes against humanity: see, for example, U.N. G\
eneral Assembly )Tj
0 -1.2 TD
(Resolutions 3059, 3452 and 3453 passed in 1973 and 1975; Statutes of the\
International Criminal )Tj
T*
(Tribunals for former Yugoslavia \(Article 5\) and Rwanda \(Article 3\). \
)Tj
0 -2.557 TD
(Moreover, the Republic of Chile accepted before your Lordships that the \
international law )Tj
0 -1.2 TD
(prohibiting torture has the character of jus cogens or a peremptory norm\
, i.e. one of those rules of )Tj
T*
(international law which have a particular status. In )Tj
/T1_1 1 Tf
(Furundzija \(supra\))Tj
/T1_0 1 Tf
( at para. 153, the Tribunal )Tj
T*
(said: )Tj
2.857 -2.557 Td
( "Because of the importance of the values it protects, [the prohibition \
of torture] has )Tj
T*
(evolved into a peremptory norm or jus cogens, that is, a norm that enjoy\
s a higher rank in )Tj
T*
(the international hierarchy than treaty law and even 'ordinary' customar\
y rules. The most )Tj
T*
(conspicuous consequence of this higher rank is that the principle at iss\
ue cannot be )Tj
T*
(derogated from by states through international treaties or local or spec\
ial customs or even )Tj
T*
(general customary rules not endowed with the same normative force. . . .\
Clearly, the jus )Tj
T*
(cogens nature of the prohibition against torture articulates the notion \
that the prohibition )Tj
T*
(has now become one of the most fundamental standards of the internationa\
l community. )Tj
T*
(Furthermore, this prohibition is designed to produce a deterrent effect,\
in that it signals to )Tj
T*
(all members of the international community and the individuals over whom\
they wield )Tj
T*
(authority that the prohibition of torture is an absolute value from whic\
h nobody must )Tj
T*
(deviate." \(See also the cases cited in Note 170 to the )Tj
/T1_1 1 Tf
(Furundzija)Tj
/T1_0 1 Tf
( case.\) )Tj
-2.857 -2.557 Td
(The jus cogens nature of the international crime of torture justifies st\
ates in taking universal )Tj
T*
(jurisdiction over torture wherever committed. International law provides\
that offences jus cogens )Tj
T*
(may be punished by any state because the offenders are "common enemies o\
f all mankind and all )Tj
0 -1.2 TD
(nations have an equal interest in their apprehension and prosecution": )Tj
/T1_1 1 Tf
(Demjanjuk v. Petrovsky)Tj
/T1_0 1 Tf
( )Tj
T*
(\(1985\) 603 F. Supp. 1468; 776 F. 2d. 571. )Tj
0 -2.557 TD
(It was suggested by Miss Montgomery, for Senator Pinochet, that although\
torture was contrary to )Tj
0 -1.2 TD
(international law it was not strictly an international crime in the high\
est sense. In the light of the )Tj
T*
(authorities to which I have referred \(and there are many others\) I hav\
e no doubt that long before )Tj
T*
(the Torture Convention of 1984 state torture was an international crime \
in the highest sense. )Tj
0 -2.557 TD
(But there was no tribunal or court to punish international crimes of tor\
ture. Local courts could take )Tj
0 -1.2 TD
(jurisdiction: see )Tj
/T1_1 1 Tf
(Demjanjuk)Tj
/T1_0 1 Tf
( \(supra\); )Tj
/T1_1 1 Tf
(Attorney-General of Israel v. Eichmann)Tj
/T1_0 1 Tf
( \(1962\) 36 I.L.R.S. )Tj
T*
(But the objective was to ensure a general jurisdiction so that the tortu\
rer was not safe wherever he )Tj
T*
(went. For example, in this case it is alleged that during the Pinochet r\
egime torture was an official, )Tj
T*
(although unacknowledged, weapon of government and that, when the regime \
was about to end, it )Tj
T*
(passed legislation designed to afford an amnesty to those who had engage\
d in institutionalised )Tj
ET
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(torture. If these allegations are true, the fact that the local court ha\
d jurisdiction to deal with the )Tj
0 -1.2 TD
(international crime of torture was nothing to the point so long as the t\
otalitarian regime remained )Tj
T*
(in power: a totalitarian regime will not permit adjudication by its own \
courts on its own )Tj
0 -1.2 TD
(shortcomings. Hence the demand for some international machinery to repre\
ss state torture which is )Tj
0 -1.2 TD
(not dependent upon the local courts where the torture was committed. In \
the event, over 110 states )Tj
T*
(\(including Chile, Spain and the United Kingdom\) became state parties t\
o the Torture Convention. )Tj
T*
(But it is far from clear that none of them practised state torture. What\
was needed therefore was an )Tj
T*
(international system which could punish those who were guilty of torture\
and which did not permit )Tj
0 -1.2 TD
(the evasion of punishment by the torturer moving from one state to anoth\
er. The Torture )Tj
T*
(Convention was agreed not in order to create an international crime whic\
h had not previously )Tj
T*
(existed but to provide an international system under which the internati\
onal criminal--the torturer -)Tj
T*
(could find no safe haven. Burgers and Danelius \(respectively the chairm\
an of the United Nations )Tj
T*
(Working Group on the 1984 Torture Convention and the draftsmen of its fi\
rst draft\) say, at p. 131, )Tj
T*
(that it was "an essential purpose [of the Convention] to ensure that a t\
orturer does not escape the )Tj
0 -1.2 TD
(consequences of his act by going to another country." )Tj
/T1_1 1 Tf
0 -2.557 TD
(The Torture Convention)Tj
/T1_0 1 Tf
( )Tj
T*
(Article 1 of the Convention defines torture as the intentional inflictio\
n of severe pain and of )Tj
0 -1.2 TD
(suffering with a view to achieving a wide range of purposes "when such p\
ain or suffering is )Tj
T*
(inflicted by or at the instigation of or with the consent or acquiesence\
of a public official or other )Tj
T*
(person acting in an official capacity." Article 2\(1\) requires each sta\
te party to prohibit torture on )Tj
T*
(territory within its own jurisdiction and Article 4 requires each state \
party to ensure that "all" acts )Tj
T*
(of torture are offences under its criminal law. Article 2\(3\) outlaws a\
ny defence of superior orders. )Tj
T*
(Under Article 5\(1\) each state party has to establish its jurisdiction \
over torture \(a\) when committed )Tj
T*
(within territory under its jurisdiction \(b\) when the alleged offender \
is a national of that state, and )Tj
T*
(\(c\) in certain circumstances, when the victim is a national of that st\
ate. Under Article 5\(2\) a state )Tj
0 -1.2 TD
(party has to take jurisdiction over any alleged offender who is found wi\
thin its territory. Article 6 )Tj
T*
(contains provisions for a state in whose territory an alleged torturer i\
s found to detain him, inquire )Tj
T*
(into the position and notify the states referred to in Article 5\(1\) an\
d to indicate whether it intends )Tj
T*
(to exercise jurisdiction. Under Article 7 the state in whose territory t\
he alleged torturer is found )Tj
T*
(shall, if he is not extradited to any of the states mentioned in Article\
5\(1\), submit him to its )Tj
T*
(authorities for the purpose of prosecution. Under Article 8\(1\) torture\
is to be treated as an )Tj
T*
(extraditable offence and under Article 8\(4\) torture shall, for the pur\
poses of extradition, be treated )Tj
T*
(as having been committed not only in the place where it occurred but als\
o in the state mentioned in )Tj
T*
(Article 5\(1\). )Tj
/T1_1 1 Tf
0 -2.557 TD
(Who is an "official" for the purposes of the Torture Convention?)Tj
/T1_0 1 Tf
( )Tj
T*
(The first question on the Convention is to decide whether acts done by a\
head of state are done by )Tj
0 -1.2 TD
("a public official or a person acting in an official capacity" within th\
e meaning of Article 1. The )Tj
T*
(same question arises under section 134 of the Criminal Justice Act 1988.\
The answer to both )Tj
T*
(questions must be the same. In his judgment at the first hearing \(at pp\
. 1476G-1477E\) Lord Slynn )Tj
ET
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(held that a head of state was neither a public official nor a person act\
ing in an official capacity )Tj
0 -1.2 TD
(within the meaning of Article 1: he pointed out that there are a number \
of international )Tj
T*
(conventions \(for example the Yugoslav War Crimes Statute and the Rwanda\
War Crimes Statute\) )Tj
0 -1.2 TD
(which refer specifically to heads of state when they intend to render th\
em liable. Lord Lloyd )Tj
0 -1.2 TD
(apparently did not agree with Lord Slynn on this point since he thought \
that a head of state who )Tj
T*
(was a torturer could be prosecuted in his own country, a view which coul\
d not be correct unless )Tj
T*
(such head of state had conducted himself as a public official or in an o\
fficial capacity. )Tj
0 -2.557 TD
(It became clear during the argument that both the Republic of Chile and \
Senator Pinochet accepted )Tj
0 -1.2 TD
(that the acts alleged against Senator Pinochet, if proved, were acts don\
e by a public official or )Tj
T*
(person acting in an official capacity within the meaning of Article 1. I\
n my judgment these )Tj
T*
(concessions were correctly made. Unless a head of state authorising or p\
romoting torture is an )Tj
T*
(official or acting in an official capacity within Article 1, then he wou\
ld not be guilty of the )Tj
T*
(international crime of torture even within his own state. That plainly c\
annot have been the )Tj
0 -1.2 TD
(intention. In my judgment it would run completely contrary to the intent\
ion of the Convention if )Tj
0 -1.2 TD
(there was anybody who could be exempt from guilt. The crucial question i\
s not whether Senator )Tj
T*
(Pinochet falls within the definition in Article 1: he plainly does. The \
question is whether, even so, )Tj
T*
(he is procedurally immune from process. To my mind the fact that a head \
of state can be guilty of )Tj
T*
(the crime casts little, if any, light on the question whether he is immu\
ne from prosecution for that )Tj
T*
(crime in a foreign state. )Tj
/T1_1 1 Tf
0 -2.557 TD
(Universal jurisdiction)Tj
/T1_0 1 Tf
( )Tj
T*
(There was considerable argument before your Lordships concerning the ext\
ent of the jurisdiction )Tj
0 -1.2 TD
(to prosecute torturers conferred on states other than those mentioned in\
Article 5\(1\). I do not find it )Tj
T*
(necessary to seek an answer to all the points raised. It is enough that \
it is clear that in all )Tj
T*
(circumstances, if the Article 5\(1\) states do not choose to seek extrad\
ition or to prosecute the )Tj
T*
(offender, other states must do so. The purpose of the Convention was to \
introduce the principle aut )Tj
0 -1.2 TD
(dedere aut punire--either you extradite or you punish: Burgers and Danel\
ius p. 131. Throughout )Tj
T*
(the negotiation of the Convention certain countries wished to make the e\
xercise of jurisdiction )Tj
T*
(under Article 5\(2\) dependent upon the state assuming jurisdiction havi\
ng refused extradition to an )Tj
T*
(Article 5\(1\) state. However, at a session in 1984 all objections to th\
e principle of aut dedere aut )Tj
T*
(punire were withdrawn. "The inclusion of universal jurisdiction in the d\
raft Convention was no )Tj
T*
(longer opposed by any delegation": Working Group on the Draft Convention\
U.N. Doc. E/CN. )Tj
T*
(4/1984/72, para. 26. If there is no prosecution by, or extradition to, a\
n Article 5\(1\) state, the state )Tj
T*
(where the alleged offender is found \(which will have already taken him \
into custody under Article )Tj
T*
(6\) must exercise the jurisdiction under Article 5\(2\) by prosecuting h\
im under Article 7\(1\). )Tj
0 -2.557 TD
(I gather the following important points from the Torture Convention: )Tj
T*
(1\) Torture within the meaning of the Convention can only be committed b\
y "a public official or )Tj
0 -1.2 TD
(other person acting in an official capacity", but these words include a \
head of state. A single act of )Tj
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(official torture is "torture" within the Convention; )Tj
0 -2.557 TD
(2\) Superior orders provide no defence; )Tj
T*
(3\) If the states with the most obvious jurisdiction \(the Article 5\(1\)\
states\) do not seek to extradite, )Tj
0 -1.2 TD
(the state where the alleged torturer is found must prosecute or, apparen\
tly, extradite to another )Tj
T*
(country, i.e. there is universal jurisdiction. )Tj
0 -2.557 TD
(4\) There is no express provision dealing with state immunity of heads o\
f state, ambassadors or )Tj
0 -1.2 TD
(other officials. )Tj
0 -2.557 TD
(5\) Since Chile, Spain and the United Kingdom are all parties to the Con\
vention, they are bound )Tj
0 -1.2 TD
(under treaty by its provisions whether or not such provisions would appl\
y in the absence of treaty )Tj
T*
(obligation. Chile ratified the Convention with effect from 30 October 19\
88 and the United )Tj
T*
(Kingdom with effect from 8 December 1988. )Tj
/T1_1 1 Tf
0 -2.557 TD
(State immunity)Tj
/T1_0 1 Tf
( )Tj
T*
(This is the point around which most of the argument turned. It is of con\
siderable general )Tj
0 -1.2 TD
(importance internationally since, if Senator Pinochet is not entitled to\
immunity in relation to the )Tj
T*
(acts of torture alleged to have occurred after 29 September 1988, it wil\
l be the first time so far as )Tj
T*
(counsel have discovered when a local domestic court has refused to affor\
d immunity to a head of )Tj
T*
(state or former head of state on the grounds that there can be no immuni\
ty against prosecution for )Tj
T*
(certain international crimes. )Tj
0 -2.557 TD
(Given the importance of the point, it is surprising how narrow is the ar\
ea of dispute. There is )Tj
0 -1.2 TD
(general agreement between the parties as to the rules of statutory immun\
ity and the rationale )Tj
T*
(which underlies them. The issue is whether international law grants stat\
e immunity in relation to )Tj
T*
(the international crime of torture and, if so, whether the Republic of C\
hile is entitled to claim such )Tj
T*
(immunity even though Chile, Spain and the United Kingdom are all parties\
to the Torture )Tj
T*
(Convention and therefore "contractually" bound to give effect to its pro\
visions from 8 December )Tj
T*
(1988 at the latest. )Tj
0 -2.557 TD
(It is a basic principle of international law that one sovereign state \(\
the forum state\) does not )Tj
0 -1.2 TD
(adjudicate on the conduct of a foreign state. The foreign state is entit\
led to procedural immunity )Tj
T*
(from the processes of the forum state. This immunity extends to both cri\
minal and civil liability. )Tj
T*
(State immunity probably grew from the historical immunity of the person \
of the monarch. In any )Tj
T*
(event, such personal immunity of the head of state persists to the prese\
nt day: the head of state is )Tj
T*
(entitled to the same immunity as the state itself. The diplomatic repres\
entative of the foreign state )Tj
T*
(in the forum state is also afforded the same immunity in recognition of \
the dignity of the state )Tj
T*
(which he represents. This immunity enjoyed by a head of state in power a\
nd an ambassador in post )Tj
T*
(is a complete immunity attaching to the person of the head of state or a\
mbassador and rendering )Tj
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(him immune from all actions or prosecutions whether or not they relate t\
o matters done for the )Tj
0 -1.2 TD
(benefit of the state. Such immunity is said to be granted ratione person\
ae. )Tj
0 -2.557 TD
(What then when the ambassador leaves his post or the head of state is de\
posed? The position of the )Tj
0 -1.2 TD
(ambassador is covered by the Vienna Convention on Diplomatic Relations, \
1961. After providing )Tj
T*
(for immunity from arrest \(Article 29\) and from criminal and civil juri\
sdiction \(Article 31\), Article )Tj
T*
(39\(1\) provides that the ambassador's privileges shall be enjoyed from \
the moment he takes up )Tj
T*
(post; and subsection \(2\) provides: )Tj
2.857 -2.557 Td
( "\(2\) When the functions of a person enjoying privileges and immuniti\
es have come to an )Tj
0 -1.2 TD
(end, such privileges and immunities shall normally cease at the moment w\
hen he leaves the )Tj
T*
(country, or on expiry of a reasonable period in which to do so, but shal\
l subsist until that )Tj
T*
(time, even in case of armed conflict. However, with respect to acts perf\
ormed by such a )Tj
T*
(person in the exercise of his functions as a member of the mission, immu\
nity shall continue )Tj
T*
(to subsist." )Tj
-2.857 -2.557 Td
(The continuing partial immunity of the ambassador after leaving post is \
of a different kind from )Tj
T*
(that enjoyed ratione personae while he was in post. Since he is no longe\
r the representative of the )Tj
T*
(foreign state he merits no particular privileges or immunities as a pers\
on. However in order to )Tj
T*
(preserve the integrity of the activities of the foreign state during the\
period when he was )Tj
T*
(ambassador, it is necessary to provide that immunity is afforded to his \
)Tj
/T1_1 1 Tf
(official)Tj
/T1_0 1 Tf
( acts during his )Tj
T*
(tenure in post. If this were not done the sovereign immunity of the stat\
e could be evaded by calling )Tj
T*
(in question acts done during the previous ambassador's time. Accordingly\
under Article 39\(2\) the )Tj
T*
(ambassador, like any other official of the state, enjoys immunity in rel\
ation to his official acts done )Tj
T*
(while he was an official. This limited immunity, ratione materiae, is to\
be contrasted with the )Tj
T*
(former immunity ratione personae which gave complete immunity to all act\
ivities whether public )Tj
T*
(or private. )Tj
0 -2.557 TD
(In my judgment at common law a former head of state enjoys similar immun\
ities, ratione materiae, )Tj
0 -1.2 TD
(once he ceases to be head of state. He too loses immunity ratione person\
ae on ceasing to be head )Tj
T*
(of state: see Watts )Tj
/T1_1 1 Tf
(The Legal Position in International Law of Heads of States, Heads of )Tj
T*
(Government and Foreign Ministers)Tj
/T1_0 1 Tf
( p. 88 and the cases there cited. He can be sued on his private )Tj
T*
(obligations: )Tj
/T1_1 1 Tf
(Ex-King Farouk of Egypt v. Christian Dior)Tj
/T1_0 1 Tf
( \(1957\) 24 I.L.R. 228; )Tj
/T1_1 1 Tf
(Jimenez v. )Tj
T*
(Aristeguieta)Tj
/T1_0 1 Tf
( \(1962\) 311 F. 2d 547. As ex head of state he cannot be sued in respec\
t of acts )Tj
T*
(performed whilst head of state in his public capacity: )Tj
/T1_1 1 Tf
(Hatch v. Baez)Tj
/T1_0 1 Tf
( [1876] 7 Hun. 596. Thus, at )Tj
T*
(common law, the position of the former ambassador and the former head of\
state appears to be )Tj
T*
(much the same: both enjoy immunity for acts done in performance of their\
respective functions )Tj
T*
(whilst in office. )Tj
0 -2.557 TD
(I have belaboured this point because there is a strange feature of the U\
nited Kingdom law which I )Tj
0 -1.2 TD
(must mention shortly. The State Immunity Act 1978 modifies the tradition\
al complete immunity )Tj
T*
(normally afforded by the common law in claims for damages against foreig\
n states. Such )Tj
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(modifications are contained in Part I of the Act. Section 16\(1\) provid\
es that nothing in Part I of the )Tj
0 -1.2 TD
(Act is to apply to criminal proceedings. Therefore Part I has no direct \
application to the present )Tj
T*
(case. However, Part III of the Act contains section 20\(1\) which provid\
es: )Tj
2.857 -2.557 Td
( "Subject to the provisions of this section and to any necessary modific\
ations, the )Tj
0 -1.2 TD
(Diplomatic Privileges Act 1964 shall apply to - )Tj
0 -2.557 TD
( \(a\) a sovereign or other head of state; )Tj
T*
( \(b\) . . . )Tj
T*
( \(c\) . . . )Tj
T*
( as it applies to a head of a diplomatic mission . . ." )Tj
-2.857 -2.557 Td
(The correct way in which to apply Article 39\(2\) of the Vienna Conventi\
on to a former head of )Tj
0 -1.2 TD
(state is baffling. To what "functions" is one to have regard? When do th\
ey cease since the former )Tj
T*
(head of state almost certainly never arrives in this country let alone l\
eaves it? Is a former head of )Tj
T*
(state's immunity limited to the exercise of the functions of a member of\
the mission, or is that )Tj
T*
(again something which is subject to "necessary modification"? It is hard\
to resist the suspicion that )Tj
T*
(something has gone wrong. A search was done on the parliamentary history\
of the section. From )Tj
T*
(this it emerged that the original section 20\(1\)\(a\) read "a sovereign\
or other head of state )Tj
/T1_1 1 Tf
(who is in )Tj
T*
(the United Kingdom at the invitation or with the consent of the Governme\
nt of the United )Tj
T*
(Kingdom.)Tj
/T1_0 1 Tf
(" On that basis the section would have been intelligible. However it was\
changed by a )Tj
T*
(Government amendment the mover of which said that the clause as introduc\
ed "leaves an )Tj
T*
(unsatisfactory doubt about the position of heads of state who are not in\
the United Kingdom"; he )Tj
0 -1.2 TD
(said that the amendment was to ensure that heads of state would be treat\
ed like heads of )Tj
T*
(diplomatic missions "irrespective of presence in the United Kingdom." Th\
e parliamentary history, )Tj
T*
(therefore, discloses no clear indication of what was intended. However, \
in my judgment it does not )Tj
T*
(matter unduly since Parliament cannot have intended to give heads of sta\
te and former heads of )Tj
T*
(state greater rights than they already enjoyed under international law. \
Accordingly, "the necessary )Tj
T*
(modifications" which need to be made will produce the result that a form\
er head of state has )Tj
T*
(immunity in relation to acts done as part of his official functions when\
head of state. Accordingly, )Tj
T*
(in my judgment, Senator Pinochet as former head of state enjoys immunity\
ratione materiae in )Tj
T*
(relation to acts done by him as head of state as part of his official fu\
nctions as head of state. )Tj
0 -2.557 TD
(The question then which has to be answered is whether the alleged organi\
sation of state torture by )Tj
0 -1.2 TD
(Senator Pinochet \(if proved\) would constitute an act committed by Sena\
tor Pinochet as part of his )Tj
T*
(official functions as head of state. It is not enough to say that it can\
not be part of the functions of )Tj
T*
(the head of state to commit a crime. Actions which are criminal under th\
e local law can still have )Tj
T*
(been done officially and therefore give rise to immunity ratione materia\
e. The case needs to be )Tj
T*
(analysed more closely. )Tj
ET
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(Can it be said that the commission of a crime which is an international \
crime against humanity and )Tj
0 -1.2 TD
(jus cogens is an act done in an official capacity on behalf of the state\
? I believe there to be strong )Tj
T*
(ground for saying that the implementation of torture as defined by the T\
orture Convention cannot )Tj
0 -1.2 TD
(be a state function. This is the view taken by Sir Arthur Watts \(supra\)\
who said \(at p. 82\): )Tj
2.857 -2.557 Td
( "While generally international law . . . does not directly involve obli\
gations on individuals )Tj
0 -1.2 TD
(personally, that is not always appropriate, particularly for acts of suc\
h seriousness that they )Tj
T*
(constitute not merely international wrongs \(in the broad sense of a civ\
il wrong\) but rather )Tj
0 -1.2 TD
(international crimes which offend against the public order of the intern\
ational community. )Tj
T*
(States are artificial legal persons: they can only act through the insti\
tutions and agencies of )Tj
T*
(the state, which means, ultimately through its officials and other indiv\
iduals acting on )Tj
T*
(behalf of the state. For international conduct which is so serious as to\
be tainted with )Tj
T*
(criminality to be regarded as attributable only to the impersonal state \
and not to the )Tj
T*
(individuals who ordered or perpetrated it is both unrealistic and offens\
ive to common )Tj
0 -1.2 TD
(notions of justice. )Tj
0 -2.557 TD
( "The idea that individuals who commit international crimes are internat\
ionally accountable )Tj
0 -1.2 TD
(for them has now become an accepted part of international law. Problems \
in this area--such )Tj
T*
(as the non-existence of any standing international tribunal to have juri\
sdiction over such )Tj
T*
(crimes, and the lack of agreement as to what acts are internationally cr\
iminal for this )Tj
T*
(purpose--have not affected the general acceptance of the principle of in\
dividual )Tj
T*
(responsibility for international criminal conduct." )Tj
-2.857 -2.557 Td
(Later, at p. 84, he said: )Tj
2.857 -2.557 Td
( "It can no longer be doubted that as a matter of general customary inte\
rnational law a head )Tj
T*
(of state will personally be liable to be called to account if there is s\
ufficient evidence that )Tj
0 -1.2 TD
(he authorised or perpetrated such serious international crimes." )Tj
-2.857 -2.557 Td
(It can be objected that Sir Arthur was looking at those cases where the \
international community )Tj
T*
(has established an international tribunal in relation to which the regul\
ating document )Tj
/T1_1 1 Tf
(expressly)Tj
/T1_0 1 Tf
( )Tj
T*
(makes the head of state subject to the tribunal's jurisdiction: see, for\
example, the Nuremberg )Tj
T*
(Charter Article 7; the Statute of the International Tribunal for former \
Yugoslavia; the Statute of )Tj
T*
(the International Tribunal for Rwanda and the Statute of the Internation\
al Criminal Court. It is true )Tj
T*
(that in these cases it is expressly said that the head of state or forme\
r head of state is subject to the )Tj
T*
(court's jurisdiction. But those are cases in which a new court with no e\
xisting jurisdiction is being )Tj
T*
(established. The jurisdiction being established by the Torture Conventio\
n and the Hostages )Tj
T*
(Convention is one where existing domestic courts of all the countries ar\
e being authorised and )Tj
T*
(required to take jurisdiction internationally. The question is whether, \
in this new type of )Tj
T*
(jurisdiction, the only possible view is that those made subject to the j\
urisdiction of each of the state )Tj
T*
(courts of the world in relation to torture are not entitled to claim imm\
unity. )Tj
ET
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(I have doubts whether, before the coming into force of the Torture Conve\
ntion, the existence of )Tj
0 -1.2 TD
(the international crime of torture as jus cogens was enough to justify t\
he conclusion that the )Tj
T*
(organisation of state torture could not rank for immunity purposes as pe\
rformance of an official )Tj
0 -1.2 TD
(function. At that stage there was no international tribunal to punish to\
rture and no general )Tj
0 -1.2 TD
(jurisdiction to permit or require its punishment in domestic courts. Not\
until there was some form )Tj
T*
(of universal jurisdiction for the punishment of the crime of torture cou\
ld it really be talked about )Tj
T*
(as a fully constituted international crime. But in my judgment the Tortu\
re Convention did provide )Tj
T*
(what was missing: a worldwide universal jurisdiction. Further, it requir\
ed all member states to ban )Tj
0 -1.2 TD
(and outlaw torture: Article 2. How can it be for international law purpo\
ses an official function to )Tj
T*
(do something which international law itself prohibits and criminalises? \
Thirdly, an essential )Tj
T*
(feature of the international crime of torture is that it must be committ\
ed "by or with the )Tj
T*
(acquiesence of a public official or other person acting in an official c\
apacity." As a result all )Tj
T*
(defendants in torture cases will be state officials. Yet, if the former \
head of state has immunity, the )Tj
T*
(man most responsible will escape liability while his inferiors \(the chi\
efs of police, junior army )Tj
0 -1.2 TD
(officers\) who carried out his orders will be liable. I find it impossib\
le to accept that this was the )Tj
0 -1.2 TD
(intention. )Tj
0 -2.557 TD
(Finally, and to my mind decisively, if the implementation of a torture r\
egime is a public function )Tj
0 -1.2 TD
(giving rise to immunity ratione materiae, this produces bizarre results.\
Immunity ratione materiae )Tj
T*
(applies not only to ex-heads of state and ex-ambassadors but to all stat\
e officials who have been )Tj
T*
(involved in carrying out the functions of the state. Such immunity is ne\
cessary in order to prevent )Tj
T*
(state immunity being circumvented by prosecuting or suing the official w\
ho, for example, actually )Tj
T*
(carried out the torture when a claim against the head of state would be \
precluded by the doctrine of )Tj
T*
(immunity. If that applied to the present case, and if the implementation\
of the torture regime is to )Tj
T*
(be treated as official business sufficient to found an immunity for the \
former head of state, it must )Tj
T*
(also be official business sufficient to justify immunity for his inferio\
rs who actually did the )Tj
T*
(torturing. Under the Convention the international crime of torture can o\
nly be committed by an )Tj
T*
(official or someone in an official capacity. They would all be entitled \
to immunity. It would follow )Tj
0 -1.2 TD
(that there can be no case outside Chile in which a successful prosecutio\
n for torture can be brought )Tj
T*
(unless the State of Chile is prepared to waive its right to its official\
s immunity. Therefore the )Tj
T*
(whole elaborate structure of universal jurisdiction over torture committ\
ed by officials is rendered )Tj
T*
(abortive and one of the main objectives of the Torture Convention--to pr\
ovide a system under )Tj
T*
(which there is no safe haven for torturers--will have been frustrated. I\
n my judgment all these )Tj
T*
(factors together demonstrate that the notion of continued immunity for e\
x-heads of state is )Tj
T*
(inconsistent with the provisions of the Torture Convention. )Tj
0 -2.557 TD
(For these reasons in my judgment if, as alleged, Senator Pinochet organi\
sed and authorised torture )Tj
0 -1.2 TD
(after 8 December 1988, he was not acting in any capacity which gives ris\
e to immunity ratione )Tj
T*
(materiae because such actions were contrary to international law, Chile \
had agreed to outlaw such )Tj
T*
(conduct and Chile had agreed with the other parties to the Torture Conve\
ntion that all signatory )Tj
T*
(states should have jurisdiction to try official torture \(as defined in \
the Convention\) even if such )Tj
T*
(torture were committed in Chile. )Tj
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