|Judgment - Regina v. Bartle and the Commissioner of Police for the Metropolis and others EX Parte Pinochet (on appeal from a Divisional Court of the Queen's Bench Division)|
Regina v. Evans and another and the Commissioner of Police for the Metropolis and others EX Parte Pinochet (on appeal from a Divisional Court of the Queen's Bench Division) continued
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If we quash the second provisional warrant, Senator Pinochet will return to Chile, and Spain will complain that we have failed to comply with our international obligations under the European Convention on Extradition. If we do not quash the second provisional warrant, Chile will complain that Senator Pinochet has been arrested in defiance of Chile's claim for immunity, and in breach of our obligations under customary international law. In these circumstances, quite apart from any embarrassment in our foreign relations, or potential breach of comity, and quite apart from any fear that, by assuming jurisdiction, we would only serve to "imperil the amicable relations between governments and vex the peace of nations" (see Oetjen v. Central Leather Co. (1918) 246 U.S. 297 at 304) we would be entering a field in which we are simply not competent to adjudicate. We apply customary international law as part of the common law, and we give effect to our international obligations so far as they are incorporated in our statute law; but we are not an international court. For an English court to investigate and pronounce on the validity of the amnesty in Chile would be to assert jurisdiction over the internal affairs of that state at the very time when the Supreme Court in Chile is itself performing the same task. In my view this is a case in which, even if there were no valid claim to sovereign immunity, as I think there is, we should exercise judicial restraint by declining jurisdiction.
There are three arguments the other way. The first is that it is always open to the Secretary of State to refuse to make an order for the return of Senator Pinochet to Spain in the exercise of his discretion under section 12 of the Extradition Act. But so far as Chile is concerned, the damage will by then have been done. The English courts will have condoned the arrest. The Secretary of State's discretion will come too late. The fact that these proceedings were initiated by a provisional warrant under section 8(1)(b) without the Secretary of State's authority to proceed, means that the courts cannot escape responsibility for deciding now whether or not to accept jurisdiction.
Secondly it is said that by allowing the extradition request to proceed, we will not be adjudicating ourselves. That will be the task of the courts in Spain. In an obvious sense this is true. But we will be taking an essential step towards allowing the trial to take place, by upholding the validity of the arrest. It is to the taking of that step that Chile has raised objections, as much as to the trial itself.
Thirdly it is said that in the case of torture Parliament has removed any concern that the court might otherwise have by enacting section 134 of the Criminal Justice Act 1988 in which the offence of torture is defined as the intentional infliction of severe pain by "a public official or . . . person acting in an official capacity." I can see nothing in this definition to override the obligation of the court to decline jurisdiction (as Lord Wilberforce pointed out it is an obligation, and not a discretion) if the circumstances of the case so require. In some cases there will be no difficulty. Where a public official or person acting in an official capacity is accused of torture, the court will usually be competent to try the case if there is no plea of sovereign imunity, or if sovereign immunity is waived. But here the circumstances are very different. The whole thrust of Lord Wilberforce's speech was that non-justiciability is a flexible principle, depending on the circumstances of the particular case. If I had not been of the view that Senator Pinochet is entitled to immunity as a former head of state, I should have held that the principle of non-justiciability applies.
For these reasons, and the reasons given in the judgment of the Divisional Court with which I agree, I would dismiss the appeal.
This appeal concerns the scope of the immunity of a former head of state from the criminal processes of this country. It is an appeal against a judgment of the Divisional Court of the Queen's Bench Division which quashed a provisional warrant issued at the request of the Spanish Government pursuant to section 8(b)(i) of the Extradition Act 1989 for the arrest of the respondent Senator Augusto Pinochet. The warrant charged five offences, but for present purposes I need refer to only two of them. The first offence charged was committing acts of torture contrary to section 134(1) of the Criminal Justice Act 1988. The Act defines the offence as follows:
The third offence charged was hostage-taking contrary to section 1 of the Taking of Hostages Act 1982. Section 1 defines the offence in these terms:
Both these offences are punishable with imprisonment for life. It is conceded that both offences are extradition crimes within the meaning of the Extradition Act.
The Divisional Court quashed the warrant on the ground that Senator Pinochet was head of the Chilean state at the time of the alleged offences and therefore, as a former sovereign, he is entitled to immunity from the criminal processes of the English courts. The court certified, as a point of law of general public importance, "the proper interpretation and scope of the immunity enjoyed by a former head of state from arrest and extradition proceedings in the United Kingdom in respect of acts committed while he was head of state", and granted leave to appeal to your Lordships' House. On this appeal I would admit the further evidence which has been produced, setting out the up-to-date position reached in the extradition proceedings.
There is some dispute over whether Senator Pinochet was technically head of state for the whole of the period in respect of which charges are laid. There is no certificate from the Foreign and Commonwealth Office, but the evidence shows he was the ruler of Chile from 11 September 1973, when a military junta of which he was the leader overthrew the previous government of President Allende, until 11 March 1990 when he retired from the office of president. I am prepared to assume he was head of state throughout the period.
Sovereign immunity may have been a single doctrine at the time when the laws of nations did not distinguish between the personal sovereign and the state, but in modern English law it is necessary to distinguish three different principles, two of which have been codified in statutes and the third of which remains a doctrine of the common law. The first is state immunity, formerly known as sovereign immunity, now largely codified in Part I of the State Immunity Act 1978. The second is the Anglo-American common law doctrine of act of state. The third is the personal immunity of the head of state, his family and servants, which is now codified in section 20 of the State Immunity Act 1978. Miss Montgomery Q.C., in her argument for Senator Pinochet, submitted that in addition to these three principles there is a residual state immunity which protects former state officials from prosecution for crimes committed in their official capacities.
Section 1 of the State Immunity Act 1978 provides that "a State is immune from the jurisdiction of the courts of the United Kingdom", subject to exceptions set out in the following sections, of which the most important is section 3 (proceedings relating to a commercial transaction). By section 14(1) references to a state include references to the sovereign or other head of that state in his public capacity, its government and any department of its government. Thus the immunity of the state may not be circumvented by suing the head of state, or indeed, any other government official, in his official capacity.
It should be noted that the words "in his public capacity" in section 14(1), read with section 1, refer to the capacity in which the head of state is sued, rather than the capacity in which he performed the act alleged to give rise to liability. Section 1 of the Act deals with proceedings which, at the time they are started, are in form or in substance proceedings against the state, so that directly or indirectly the state will be affected by the judgment. In the traditional language of international law, it is immunity ratione personae and not ratione materiae. It protects the state as an entity. It is not concerned with the nature of the transaction alleged to give rise to liability, although this becomes important when applying the exceptions in later sections. Nor is it concerned with whether, in an action against an official or former official which is not in substance an action against the state, he can claim immunity on the ground that in doing the acts alleged he was acting in a public capacity. Immunity on that ground depends upon the other principles to which I shall come. Similarly, Part I of the Act does not apply to criminal proceedings (section 16(4)). On this section 16(4) is unambiguous. Contrary to the contentions of Mr. Nicholls Q.C., section 16(4) cannot be read as applying only to the exceptions to section 1.
In cases which fall within section 1 but not within any of the exceptions, the immunity has been held by the Court of Appeal to be absolute and not subject to further exception on the ground that the conduct in question is contrary to international law: see Al-Adsani v. Government of Kuwait (1996) 107 I.L.R. 536, where the court upheld the government's plea of state immunity in proceedings where the plaintiff alleged torture by government officials. A similar conclusion was reached by the United States Supreme Court on the interpretation of the Foreign Sovereign Immunities Act 1976 in Argentine Republic v. Amerada Hess Shipping Corporation (1989) 109 S.Ct. 683. This decision was followed by the Court of Appeals for the Ninth Circuit, perhaps with a shade of reluctance, in Siderman de Blake v. Republic of Argentina 965 F.2d 699 (9th Cir. 1992), also a case based upon allegations of torture by government officials. These decisions are not relevant in the present case, which does not concern civil proceedings against the state. So I shall say no more about them.
Act of state: non-justiciability
The act of state doctrine is a common law principle of uncertain application which prevents the English court from examining the legality of certain acts performed in the exercise of sovereign authority within a foreign country or, occasionally, outside it. Nineteenth century dicta (for example, in Duke of Brunswick v. King of Hanover (1848) 2 H.L.Cas. 1 and Underhill v. Hernandez (1897) 169 U.S. 456) suggested that it reflected a rule of international law. The modern view is that the principle is one of domestic law which reflects a recognition by the courts that certain questions of foreign affairs are not justiciable (Buttes Gas and Oil Co. v. Hammer  A.C. 888) and, particularly in the United States, that judicial intervention in foreign relations may trespass upon the province of the other two branches of government (Banco Nacional de Cuba v. Sabbatino 376 U.S. 398).
The doctrine has sometimes been stated in sweepingly wide terms; for instance, in a celebrated passage by Chief Justice Fuller in Underhill v. Hernandez (1897) 169 U.S. 456:
More recently the courts in the United States have confined the scope of the doctrine to instances where the outcome of the case requires the court to decide the legality of the sovereign acts of foreign states: W. S. Kirkpatrick & Co. Inc. v. Environmental Tectonics Corporation, International (1990) 110 S.Ct. 701.
However, it is not necessary to discuss the doctrine in any depth, because there can be no doubt that it yields to a contrary intention shown by Parliament. Where Parliament has shown that a particular issue is to be justiciable in the English courts, there can be no place for the courts to apply this self-denying principle. The definition of torture in section 134(1) of the Criminal Justice Act 1988 makes clear that prosecution will require an investigation into the conduct of officials acting in an official capacity in foreign countries. It must follow that Parliament did not intend the act of state doctrine to apply in such cases. Similarly with the taking of hostages. Although section 1(1) of the Taking of Hostages Act 1982 does not define the offence as one which can be committed only by a public official, it is really inconceivable that Parliament should be taken to have intended that such officials should be outside the reach of this offence. The Taking of Hostages Act was enacted to implement the International Convention against the Taking of Hostages, and that convention described taking hostages as a manifestation of international terrorism. The convention was opened for signature in New York in December 1979, and its immediate historical background was a number of hostage-taking incidents in which states were involved or were suspected to have been involved. These include the hostage crisis at the United States embassy in Teheran earlier in that year, several hostage-takings following the hijacking of aircraft in the 1970s, and the holding hostage of the passengers of an El-Al aircraft at Entebbe airport in June 1976.
Section 20 of the State Immunity Act 1978 confers personal immunity upon a head of state, his family and servants by reference ("with necessary modifications") to the privileges and immunities enjoyed by the head of a diplomatic mission under the Vienna Convention on Diplomatic Relations 1961, which was enacted as a schedule to the Diplomatic Privileges Act 1964. These immunities include, under article 31, "immunity from the criminal jurisdiction of the receiving state." Accordingly there can be no doubt that if Senator Pinochet had still been head of the Chilean state, he would have been entitled to immunity.
Whether he continued to enjoy immunity after ceasing to be head of state turns upon the proper interpretation of article 39.2 of the convention:
The "necessary modification" required by section 20 of the 1978 Act is to read "as a head of state" in place of "as a member of the mission" in the last sentence. Writ large, the effect of these provisions can be expressed thus:
Transferring to a former head of state in this way the continuing protection afforded to a former head of a diplomatic mission is not an altogether neat exercise, as their functions are dissimilar. Their positions are not in all respects analogous. A head of mission operates on the international plane in a foreign state where he has been received; a head of state operates principally within his own country, at both national and international levels. This raises the question whether, in the case of a former head of state, the continuing immunity embraces acts performed in exercise of any of his "functions as a head of state" or is confined to such of those acts as have an international character. I prefer the former, wider interpretation. There is no reason for cutting down the ambit of the protection, so that it will embrace only some of the functions of a head of state. (I set out below the test for determining what are the functions of a head of state.)
The question which next arises is the crucial question in the present case. It is whether the acts of torture and hostage-taking charged against Senator Pinochet were done in the exercise of his functions as head of state. The Divisional Court decided they were because, according to the allegations in the Spanish warrant which founded the issue of the provisional warrant in this country, they were committed under colour of the authority of the government of Chile. Senator Pinochet was charged, not with personally torturing victims or causing their disappearance, but with using the power of the state of which he was the head to that end. Thus the Divisional Court held that, for the purposes of article 39.2, the functions of head of state included any acts done under purported public authority in Chile. The Lord Chief Justice said the underlying rationale of the immunity accorded by article 39.2 was "a rule of international comity restraining one sovereign state from sitting in judgment on the sovereign behaviour of another." It therefore applied to all sovereign conduct within Chile.
Your Lordships have had the advantage of much fuller argument and the citation of a wider range of authorities than the Divisional Court. I respectfully suggest that, in coming to this conclusion, the Lord Chief Justice elided the domestic law doctrine of act of state, which has often been stated in the broad terms he used, with the international law obligations of this country towards foreign heads of state, which section 20 of the 1978 Act was intended to codify. In my view, article 39.2 of the Vienna Convention, as modified and applied to former heads of state by section 20 of the 1978 Act, is apt to confer immunity in respect of acts performed in the exercise of functions which international law recognises as functions of a head of state, irrespective of the terms of his domestic constitution. This formulation, and this test for determining what are the functions of a head of state for this purpose, are sound in principle and were not the subject of controversy before your Lordships. International law does not require the grant of any wider immunity. And it hardly needs saying that torture of his own subjects, or of aliens, would not be regarded by international law as a function of a head of state. All states disavow the use of torture as abhorrent, although from time to time some still resort to it. Similarly, the taking of hostages, as much as torture, has been outlawed by the international community as an offence. 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.
This was made clear long before 1973 and the events which took place in Chile then and thereafter. A few references will suffice. Under the charter of the Nurnberg International Military Tribunal (8 August 1945) crimes against humanity, committed before as well as during the second world war, were declared to be within the jurisdiction of the tribunal, and the official position of defendants, "whether as heads of state or responsible officials in government", was not to free them from responsibility (articles 6 and 7). The judgment of the tribunal included the following passage: