|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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With specific reference to the laws of war, but in the context the observation was equally applicable to crimes against humanity, the tribunal stated:
By a resolution passed unanimously on 11 December 1946, the United Nations general assembly affirmed the principles of international law recognised by the charter of the Nurnberg tribunal and the judgment of the tribunal. From this time on, no head of state could have been in any doubt about his potential personal liability if he participated in acts regarded by international law as crimes against humanity. In 1973 the United Nations put some of the necessary nuts and bolts into place, for bringing persons suspected of having committed such offences to trial in the courts of individual states. States were to assist each other in bringing such persons to trial, asylum was not to be granted to such persons, and states were not to take any legislative or other measures which might be prejudicial to the international obligations assumed by them in regard to the arrest, extradition and punishment of such persons. This was in resolution 3074 adopted on 3 December 1973.
Finally I turn to the residual immunity claimed for Senator Pinochet under customary international law. I have no doubt that a current head of state is immune from criminal process under customary international law. This is reflected in section 20 of the State Immunity Act 1978. There is no authority on whether customary international law grants such immunity to a former head of state or other state official on the ground that he was acting under colour of domestic authority. Given the largely territorial nature of criminal jurisdiction, it will be seldom that the point arises.
A broad principle of international law, according former public officials a degree of personal immunity against prosecution in other states, would be consistent with the rationale underlying section 20 of the 1978 Act. It would also be consistent with changes in the way countries are governed. In times past, before the development of the concept of the state as a separate entity, the sovereign was indistinguishable from the state: l'Etat, c'est moi. It would be expected therefore that in those times a former head of state would be accorded a special personal immunity in respect of acts done by him as head of state. Such acts were indistinguishable from acts of the state itself. Methods of state governance have changed since the days of Louis XIV. The conduct of affairs of state is often in the hands of government ministers, with the head of state having a largely ceremonial role. With this change in the identity of those who act for the state, it would be attractive for personal immunity to be available to all former public officials, including a former head of state, in respect of acts which are properly attributable to the state itself. One might expect international law to develop along these lines, although the personal immunity such a principle affords would be largely covered also by the act of state doctrine.
Even such a broad principle, however, would not assist Senator Pinochet. In the same way as acts of torture and hostage-taking stand outside the limited immunity afforded to a former head of state by section 20, because those acts cannot be regarded by international law as a function of a head of state, so for a similar reason Senator Pinochet cannot bring himself within any such broad principle applicable to state officials. Acts of torture and hostage-taking, outlawed as they are by international law, cannot be attributed to the state to the exclusion of personal liability. Torture is defined in the torture convention (the Convention against torture and other cruel, inhuman or degrading treatment or punishment (1984)) and in the United Kingdom legislation (section 134 of the Criminal Justice Act 1984) as a crime committed by public officials and persons acting in a public capacity. As already noted, the Convention against the taking of hostages (1979) described hostage-taking as a manifestation of international terrorism. It is not consistent with the existence of these crimes that former officials, however senior, should be immune from prosecution outside their own jurisdictions. The two international conventions made clear that these crimes were to be punishable by courts of individual states. The torture convention, in articles 5 and 7, expressly provided that states are permitted to establish jurisdiction where the victim is one of their nationals, and that states are obliged to prosecute or extradite alleged offenders. The hostage-taking convention is to the same effect, in articles 5 and 8.
I would allow this appeal. It cannot be stated too plainly that the acts of torture and hostage-taking with which Senator Pinochet is charged are offences under United Kingdom statute law. This country has taken extra-territorial jurisdiction for these crimes. The sole question before your Lordships is whether, by reason of his status as a former head of state, Senator Pinochet is immune from the criminal processes of this country, of which extradition forms a part. Arguments about the effect on this country's diplomatic relations with Chile if extradition were allowed to proceed, or with Spain if refused, are not matters for the court. These are, par excellence, political matters for consideration by the Secretary of State in the exercise of his discretion under section 12 of the Extradition Act.
The way in which this appeal comes before the House must be kept in mind. Spain took preliminary steps under the Extradition Act 1989 to obtain the extradition of General Pinochet, the former Head of State of Chile, in respect of crimes which he allegedly committed between 11 September 1973 and March 1990 when he ceased to be the President of Chile. General Pinochet applied to the Divisional Court for a ruling that he is entitled to immunity as a former Head of State from criminal and civil process in the English courts. He obtained a ruling to that effect. If that ruling is correct, the extradition proceedings are at an end. The issues came to the Divisional Court in advance of the receipt of a particularized request for extradition by Spain. Such a request has now been received. Counsel for General Pinochet has argued that the House ought to refuse to admit the request in evidence. In my view it would be wrong to ignore the material put forward in Spain's formal request for extradition. This case ought to be decided on the basis of all the relevant materials before the House. And that involves also taking into account the further evidence lodged on behalf of General Pinochet.
In an appeal in which no fewer than 16 barristers were involved over six days it is not surprising that issues proliferated. Some of the issues do not need to be decided. For example, there was as an issue as to the date upon which General Pinochet became the Head of State of Chile. He undoubtedly became the Head of State at least by 26 June 1974; and I will assume that from the date of the coup d'etat on 11 September 1973 he was the Head of State. Rather than attempt to track down every other hare that has been started, I will concentrate my observations on three central issues, namely (1) the nature of the charges brought by Spain against General Pinochet; (2) the question whether he is entitled to former Head of State immunity under the applicable statutory provisions; (3) if he is not entitled to such immunity, the different question whether under the common law act of state doctrine the House ought to declare that the matters involved are not justiciable in our courts. This is not the order in which counsel addressed the issues but the advantage of so considering the issues is considerable. One can only properly focus on the legal issues before the House when there is clarity about the nature of the charges in respect of which General Pinochet seeks to establish immunity or seeks to rely on the act of state doctrine. Logically, immunity must be examined before act of state. The act of state issue will only arise if the court decides that the defendant does not have immunity. And I shall attempt to show that the construction of the relevant statutory provisions relating to immunity has a bearing on the answer to the separate question of act of state.
The case against General Pinochet
In the Divisional Court the Lord Chief Justice summarized the position by saying that the thrust of the warrant "makes it plain that the applicant is charged not with personally torturing or murdering victims or ordering their disappearance, but with using the power of the State to that end". Relying on the information contained in the request for extradition, it is necessary to expand the cryptic account of the facts in the warrant. The request alleges a systematic campaign of repression against various groups in Chile after the military coup on 11 September 1973. The case is that of the order of 4,000 individuals were killed or simply disappeared. Such killings and disappearances mostly took place in Chile but some also took place in various countries abroad. Such acts were committed during the period from 11 September 1973 until 1990. The climax of the repression was reached in 1974 and 1975. The principal instrumentality of the oppression was the Direction de Inteligencia Nacional (DINA), the secret police. The subsequent re-naming of this organization is immaterial. The case is that agents of DINA, who were specially trained in torture techniques, tortured victims on a vast scale in secret torture chambers in Santiago and elsewhere in Chile. The torturers were invariably dressed in civilian clothes. Hooded doctors were present during torture sessions. The case is not one of interrogators acting in excess of zeal. The case goes much further. The request explains:
As the Divisional Court observed it is not alleged that General Pinochet personally committed any of these acts by his own hand. The case is, however, that agents of DINA committed the acts of torture and that DINA was directly answerable to General Pinochet rather than to the military junta. And the case is that DINA undertook and arranged the killings, disappearances and torturing of victims on the orders of General Pinochet. In other words, what is alleged against General Pinochet is not constructive criminal responsibility. The case is that he ordered and procured the criminal acts which the warrant and request for extradition specify. óKóóKThe allegations have not been tested in a court of law. The House is not required to examine the correctness of the allegations. The House must assume the correctness of the allegations as the backcloth of the questions of law arising on this appeal.
The former Head of State immunity
It is now possible to turn to the point of general public importance involved in the Divisional Court's decision, namely "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". It is common ground that a Head of State while in office has an absolute immunity against civil or criminal proceedings in the English courts. If General Pinochet had still been Head of State of Chile, he would be immune from the present extradition proceedings. But he has ceased to be a Head of State. He claims immunity as a former Head of State. Counsel for General Pinochet relied on provisions contained in Part I of the State Immunity Act 1978. Part I does not apply to criminal proceedings: see Section 16(4). It is irrelevant to the issues arising on this appeal. The only arguable basis for such an immunity originates in Section 20 of the Act of 1978. It provides as follows:
It is therefore necessary to turn to the relevant provisions of the Diplomatic Privileges Act 1964. The relevant provisions are contained in Articles 31, 38 and 39 of the Vienna Convention on Diplomatic Relations which in part forms Schedule 1 to the Act of 1964. Article 31 provides that a diplomatic agent shall enjoy immunity from criminal jurisdiction in the receiving state. Article 38(1) reads as follows:
Article 39 so far as it is relevant reads as follows:
2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country or on expiry of a reasonable period in which to do so but shall subsist until that time even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist." (My emphasis)
Given the different roles of a member of a diplomatic mission and a Head of State, as well as the fact that a diplomat principally acts in the receiving state whereas a Head of State principally acts in his own country, the legislative technique of applying Article 39(2) to former a Head of State is somewhat confusing. How the necessary modifications required by Section 20 of the Act of 1978 are to be achieved is not entirely straightforward. Putting to one side the immunity of a serving Head of State, my view is that Section 20 of the 1978 Act, read with the relevant provisions of the schedule to the 1964 Act, should be read as providing that a former Head of State shall enjoy immunity from the criminal jurisdiction of the United Kingdom with respect to his official acts performed in the exercise of his functions as Head of State. That was the synthesis of the convoluted provisions helpfully offered by Mr Lloyd Jones, who appeared as amicus curiae. Neither counsel for General Pinochet nor counsel for the Spanish Government questioned this formulation. For my part it is the only sensible reconstruction of the legislative intent. It is therefore plain that statutory immunity in favour of a former Head of State is not absolute. It requires the coincidence of two requirements: (1) that the defendant is a former Head of State (ratione personae in the vocabulary of international law) and (2) that he is charged with official acts performed in the exercise of his functions as a Head of State (ratione materiae). In regard to the second requirement it is not sufficient that official acts are involved: the acts must also have been performed by the defendant in the exercise of his functions as Head of State.
On the assumption that the allegations of fact contained in the warrant and the request are true, the central question is whether those facts must be regarded as official acts performed in the exercise of the functions of a Head of State. The Lord Chief Justice observed that a former Head of State is clearly entitled to immunity from process in respect of some crimes. I would accept this proposition. Rhetorically, The Lord Chief Justice then posed the question: "Where does one draw the line?" After a detailed review of the case law and literature, he concluded that even in respect of acts of torture the former Head of State immunity would prevail. That amounts to saying that there is no or virtually no line to be drawn. Collins J. went further. He said:
It is inherent in this stark conclusion that there is no or virtually no line to be drawn. It follows that when Hitler ordered the "final solution" his act must be regarded as an official act deriving from the exercise of his functions as Head of State. That is where the reasoning of the Divisional Court inexorably leads. Counsel for General Pinochet submitted that this conclusion is the inescapable result of the statutory wording.
My Lords, the concept of an individual acting in his capacity as Head of State involves a rule of law which must be applied to the facts of a particular case. It invites classification of the circumstances of a case as falling on a particular side of the line. It contemplates at the very least that some acts of a Head of State may fall beyond even the most enlarged meaning of official acts performed in the exercise of the functions of a Head of State. If a Head of State kills his gardener in a fit of rage that could by no stretch of the imagination be described as an act performed in the exercise of his functions as Head of State. If a Head of State orders victims to be tortured in his presence for the sole purpose of enjoying the spectacle of the pitiful twitchings of victims dying in agony (what Montaigne described as the farthest point that cruelty can reach) that could not be described as acts undertaken by him in the exercise of his functions as a Head of State. Counsel for General Pinochet expressly, and rightly, conceded that such crimes could not be classified as official acts undertaken in the exercise of the functions of a Head of State. These examples demonstrate that there is indeed a meaningful line to be drawn.
How and where the line is to be drawn requires further examination. Is this question to be considered from the vantage point of the municipal law of Chile, where most of the acts were committed, or in the light of the principles of customary international law? Municipal law cannot be decisive as to where the line is to be drawn. If it were the determining factor, the most abhorrent municipal laws might be said to enlarge the functions of a Head of State. But I need not dwell on the point because it is conceded on behalf of General Pinochet that the distinction between official acts performed in the exercise of functions as a Head of State and acts not satisfying these requirements must depend on the rules of international law. It was at one stage argued that international law spells out no relevant criteria and is of no assistance. In my view that is not right. Negatively, the development of international law since the Second World War justifies the conclusion that by the time of the 1973 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.
The essential fragility of the claim to immunity is underlined by the insistence on behalf of General Pinochet that it is not alleged that he "personally" committed any of the crimes. That means that he did not commit the crimes by his own hand. It is apparently conceded that if he personally tortured victims the position would be different. This distinction flies in the face of an elementary principle of law, shared by all civilized legal systems, that there is no distinction to be drawn between the man who strikes, and a man who orders another to strike. It is inconceivable that in enacting the Act of 1978 Parliament would have wished to rest the statutory immunity of a former Head of State on a different basis.
On behalf of General Pinochet it was submitted that acts by police, intelligence officers and military personnel are paradigm official acts. In this absolute form I do not accept the proposition. For example, why should what was allegedly done in secret in the torture chambers of Santiago on the orders of General Pinochet be regarded as official acts? Similarly, why should the murders and disappearances allegedly perpetrated by DINA in secret on the orders of General Pinochet be regarded as official acts? But, in any event, in none of these cases is the further essential requirement satisfied, viz. that in an international law sense these acts were part of the functions of a Head of State. The normative principles of international law do not require that such high crimes should be classified as acts performed in the exercise of the functions of a Head of State. For my part I am satisfied that as a matter of construction of the relevant statutory provisions the charges brought by Spain against General Pinochet are properly to be classified as conduct falling beyond the scope of his functions as Head of State. Qualitatively, what he is alleged to have done is no more to be categorized as acts undertaken in the exercise of the functions of a Head of State than the examples already given of a Head of State murdering his gardener or arranging the torture of his opponents for the sheer spectacle of it. It follows that in my view General Pinochet has no statutory immunity.
Counsel for General Pinochet further argued that if he is not entitled to statutory immunity, he is nevertheless entitled to immunity under customary international law. International law recognizes no such wider immunity in favour of a former Head of State. In any event, if there had been such an immunity under international law Section 20, read with Article 39(2), would have overridden it. General Pinochet is not entitled to an immunity of any kind.
The act of state doctrine
Counsel for General Pinochet submitted that, even if he fails to establish the procedural bar of statutory immunity, the House ought to uphold his challenge to the validity of the warrant on the ground of the act of state doctrine. They argued that the validity of the warrant and propriety of the extradition proceedings necessarily involve an investigation by the House of governmental or official acts which largely took place in Chile. They relied on the explanation of the doctrine of act of state by Lord Wilberforce in Buttes Gas and Oil Co v. Hammer  A.C. 888. Counsel for General Pinochet further put forward wide-ranging political arguments about the consequences of the extradition proceedings, such as adverse internal consequences in Chile and damage to the relations between the United Kingdom and Chile. Plainly it is not appropriate for the House to take into account such political considerations. And the same applies to the argument suggesting past "acquiescence" by the United Kingdom government.
Concentrating on the legal arguments, I am satisfied that there are several reasons why the act of state doctrine is inapplicable. First the House is not being asked to investigate, or pass judgment on, the facts alleged in the warrant or request for extradition. The task of the House is simply to take note of the allegations and to consider and decide the legal issues of immunity and act of state. Secondly, the issue of act of state must be approached on the basis that the intent of Parliament was not to give statutory immunity to a former Head of State in respect of the systematic torture and killing of his fellow citizens. The ground of this conclusion is that such high crimes are not official acts committed in the exercise of the functions of a Head of State. In those circumstances it cannot be right for the House to enunciate an enlarged act of state doctrine, stretching far beyond anything said in Buttes Gas, to protect a former Head of State from the consequences of his private crimes. Thirdly, any act of state doctrine is displaced by Section 134(1) of the Criminal Justice Act 1988 in relation to torture and Section (1)(1) of the Taking of Hostages Act 1982 . Both Acts provide for the taking of jurisdiction over foreign governmental acts. Fourthly, and more broadly, the Spanish authorities have relied on crimes of genocide, torture, hostage taking and crimes against humanity. It has in my view been clearly established that by 1973 such acts were already condemned as high crimes by customary international law. In these circumstances it would be wrong for the English courts now to extend the act of state doctrine in a way which runs counter to the state of customary international law as it existed in 1973. Since the act of state doctrine depends on public policy as perceived by the courts in the forum at the time of the suit the developments since 1973 are also relevant and serve to reinforce my view. I would endorse the observation in the Third Restatement of The Foreign Relations Law of the United States, published in 1986 by the American Law Institute, Volume 1, at 370, to the effect that: "A claim arising out of an alleged violation of fundamental human rights--for instance, a claim on behalf of a victim of torture or genocide--would (if otherwise sustainable) probably not be defeated by the act of state doctrine, since the accepted international law of human rights is well established and contemplates external scrutiny of such acts." But in adopting this formulation I would remove the word "probably" and substitute "generally." Finally, I must make clear that my conclusion does not involve the expression of any view on the interesting arguments on universality of jurisdiction in respect of certain international crimes and related jurisdictional questions. Those matters do not arise for decision.
I conclude that the act of state doctrine is inapplicable.
My Lords, since the hearing in the Divisional Court the case has in a number of ways been transformed. The nature of the case against General Pinochet is now far clearer. And the House has the benefit of valuable submissions from distinguished international lawyers. In the light of all the material now available I have been persuaded that the conclusion of the Divisional Court was wrong. For the reasons I have given I would allow the appeal.
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead and for the reasons he gives I too would allow this appeal.
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