Judgment - Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet
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)

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This definition is so broadly framed as to suggest on the one hand that heads of state must have been contemplated by its concluding words, but to raise the question on the other hand whether it was also contemplated that they would by necessary implication be deprived of their immunity. The words "public official" might be thought to refer to someone of lower rank than the head of state. Other international instruments suggest that where the intention is to include persons such as the head of state or diplomats they are mentioned expressly in the instrument: see Article 27 of the Rome Statute of the International Criminal Court which was adopted on 17 July 1998. But a head of state who resorted to conduct of the kind described in the exercise of his function would clearly be "acting in an official capacity". It would also be a strange result if the provisions of the Convention could not be applied to heads of state who, because they themselves inflicted torture or had instigated the carrying out of acts of torture by their officials, were the persons primarily responsible for the perpetration of these acts.

Yet the idea that the framing of the definition in these terms in itself was sufficient to remove the immunity from prosecution for all acts of torture is also not without difficulty. The jus cogens character of the immunity enjoyed by serving heads of state ratione personae suggests that, on any view, that immunity was not intended to be affected by the Convention. But once one immunity is conceded it becomes harder, in the absence of an express provision, to justify the removal of the other immunities. It may also be noted that Burgers and Danelius, in their Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, at p. 131, make this comment on Article 5.1 of the Convention, which sets out the measures which each state party is required to take to establish its jurisdiction over the offences of torture which it is required by Article 4 to make punishable under its own criminal law:

     "This means, first of all, that the state shall have jurisdiction over the offence when it has been committed in its territory. Under international or national law, there may be certain limited exceptions to this rule, e.g. in regard to foreign diplomats, foreign troops, parliament members or other categories benefiting from special immunities, and such immunities may be accepted insofar as they apply to criminal acts in general and are not unduly extensive."

These observations, although of undoubted weight as Jan Herman Burgers of the Netherlands was a Chairman/Rapporteur to the Convention, may be thought to be so cryptic as to defy close analysis. But two points are worth making about them. The first is that they recognise that the provisions of the Convention are not inconsistent with at least some of the immunities in customary international law. The second is that they make no mention of any exception which would deprive heads of state or former heads of state of their customary international law immunities. The absence of any reference to this matter suggests that the framers of the Convention did not consider it. The Reports of the Working Group on the Draft Convention to the Economic and Social Council of the Commission on Human Rights show that many meetings were held to complete its work. These extended over several years, and many issues were raised and discussed before the various delegations were content with its terms. If the issue of head of state and former head of state immunity was discussed at any of these meetings, it would without doubt have been mentioned in the reports. The issue would have been recognised as an important one on which the delegations would have to take instructions from their respective governments. But there is no sign of this in any of the reports which have been shown to us.

The absence of any discussion of the issue is not surprising, once it is appreciated that the purpose of the Convention was to put in place as widely as possible the machinery which was needed to make the struggle against torture more effective throughout the world. There was clearly much to be done, as the several years of discussion amply demonstrate. According to Burgers and Danelius, p. 1, the principal aim was to strengthen the existing position by a number of supportive measures. A basis had to be laid down for legislation to be enacted by the contracting states. An agreed definition of torture, including mental torture, had to be arrived at for the adoption by states into their own criminal law. Provisions had to be agreed for the taking of extra-territorial jurisdiction to deal with these offences and for the extradition of offenders to states which were seeking to prosecute them. As many states do not extradite their own citizens and the Convention does not oblige states to extradite, they had to undertake to take such measures as might be necessary to establish jurisdiction over these offences in cases where the alleged offender was present within their territory but was not to be extradited. For many, if not all, states these arrangements were innovations upon their domestic law. Waiver of immunities was not mentioned. But, as Yoram Dinstein, Diplomatic Immunity from Jurisdiction Ratione Materiae (1966) International and Comparative Law Quarterly, 76, 80 had already pointed out, it would be entirely meaningless to waive the immunity unless local courts were able, as a consequence, to try the offender.

These considerations suggest strongly that it would be wrong to regard the Torture Convention as having by necessary implication removed the immunity ratione materiae from former heads of state in regard to every act of torture of any kind which might be alleged against him falling within the scope of Article 1. In Siderman de Blake v. Republic of Argentina (1992) 965 F.2d 699, 714-717 it was held that the alleged acts of official torture, which were committed in 1976 before the making of the Torture Convention, violated international law under which the prohibition of official torture had acquired the status of jus cogens. Cruel acts had been perpetrated over a period of seven days by men acting under the direction of the military governor. Argentina was being ruled by an anti-semitic military junta, and epithets were used by those who tortured him which indicated that Jose Siderman was being tortured because of his Jewish faith. But the definition in Article 1 is so wide that any act of official torture, so long as it involved "severe" pain or suffering, would be covered by it.

As Burgers and Danelius point out at p. 122, although the definition of torture in Article 1 may give the impression of being a very precise and detailed one, the concept of "severe pain and suffering" is in fact rather a vague concept, on the application of which to a specific case there may be very different views. There is no requirement that it should have been perpetrated on such a scale as to constitute an international crime in the sense described by Sir Arthur Watts in his Hague Lectures at p. 82, that is to say a crime which offends against the public order of the international community. A single act of torture by an official against a national of his state within that state's borders will do. The risks to which former heads of state would be exposed on leaving office of being detained in foreign states upon an allegation that they had acquiesced in an act of official torture would have been so obvious to governments that it is hard to believe that they would ever have agreed to this. Moreover, even if your Lordships were to hold that this was its effect, there are good reasons for doubting whether the courts of other states would take the same view. An express provision would have removed this uncertainty.

Nevertheless there remains the question whether the immunity can survive Chile's agreement to the Torture Convention if the torture which is alleged was of such a kind or on such a scale as to amount to an international crime. Sir Arthur Watts in his Hague Lectures, p. 82 states that the idea that individuals who commit international crimes are internationally accountable for them has now become an accepted part of international law. The international agreements to which states have been striving in order to deal with this problem in international criminal courts have been careful to set a threshold for such crimes below which the jurisdiction of those courts will not be available. The Statute of the International Tribunal for the Former Yugoslavia (1993) includes torture in article 5 as one of the crimes against humanity. In paragraph 48 of his Report to the United Nations the Secretary-General explained that crimes against humanity refer to inhuman acts of a very serious nature, such as wilful killing, torture or rape, committed as part of a widespread or systematic attack against any civilian population. Similar observations appear in paragraphs 131 to 135 of the Secretary-General's Report of 9 December 1994 on the Rwanda conflict. Article 3 of the Statute of the International Tribunal for Rwanda (1994) included torture as one of the crimes against humanity "when committed as part of a widespread or systematic attack against any civilian population" on national, political, ethnic or other grounds. Article 7 of the Rome Statute contains a similar limitation to acts of widespread or systematic torture.

The allegations which the Spanish judicial authorities have made against Senator Pinochet fall into that category. As I sought to make clear in my analysis of the draft charges, we are not dealing in this case - even upon the restricted basis of those charges on which Senator Pinochet could lawfully be extradited if he has no immunity - with isolated acts of official torture. We are dealing with the remnants of an allegation that he is guilty of what would now, without doubt, be regarded by customary international law as an international crime. This is because he is said to have been involved in acts of torture which were committed in pursuance of a policy to commit systematic torture within Chile and elsewhere as an instrument of government. On the other hand it is said that, for him to lose his immunity, it would have to be established that there was a settled practice for crime of this nature to be so regarded by customary international law at the time when they were committed. I would find it hard to say that it has been shown that any such settled practice had been established by 29 September 1988. But we must be careful not to attach too much importance to this point, as the opportunity for prosecuting such crimes seldom presents itself.

Despite the difficulties which I have mentioned, I think that there are sufficient signs that the necessary developments in international law were in place by that date. The careful discussion of the jus cogens and erga omnes rules in regard to allegations of official torture in Siderman de Blake v. Republic of Argentina (1992) 26 F.2d 1166, pp. 714-718, which I regard as persuasive on this point, shows that there was already widespread agreement that the prohibition against official torture had achieved the status of a jus cogens norm. Articles which were published in 1988 and 1989 are referred to at p. 717 in support of this view. So I think that we can take it that that was the position by 29 September 1988. Then there is the Torture Convention of 10 December 1984. Having secured a sufficient number of signatories, it entered into force on 26 June 1987. In my opinion, once the machinery which it provides was put in place to enable jurisdiction over such crimes to be exercised in the courts of a foreign state, it was no longer open to any state which was a signatory to the Convention to invoke the immunity ratione materiae in the event of allegations of systematic or widespread torture committed after that date being made in the courts of that state against its officials or any other person acting in an official capacity.

As Sir Arthur Watts, Q.C. has explained in his Hague Lectures (1994) at p. 82, the general principle in such cases is that of individual responsibility for international criminal conduct. After a review of various general international instruments relating mainly but not exclusively to war crimes, of which the most recent was the International Law Commission's draft Code of Crimes against the Peace and Security of Mankind of 1988, he concludes at p. 84 that it can no longer be doubted that as a matter of general customary international law a head of state will personally be liable to be called to account if there is sufficient evidence that he authorised or perpetrated such serious international crimes. A head of state is still protected while in office by the immunity ratione personae, but the immunity ratione materiae on which he would have to rely on leaving office must be denied to him.

I would not regard this as a case of waiver. Nor would I accept that it was an implied term of the Torture Convention that former heads of state were to be deprived of their immunity ratione materiae with respect to all acts of official torture as defined in article 1. It is just that the obligations which were recognised by customary international law in the case of such serious international crimes by the date when Chile ratified the Convention are so strong as to override any objection by it on the ground of immunity ratione materiae to the exercise of the jurisdiction over crimes committed after that date which the United Kingdom had made available.

I consider that the date as from which the immunity ratione materiae was lost was 30 October 1988, which was the date when Chile's ratification of the Torture Convention on 30 September 1988 took effect. Spain had already ratified the Convention. It did so on 21 October 1987. The Convention was ratified by the United Kingdom on 8 December 1988 following the coming into force of section 134 of the Criminal Justice Act 1988. On the approach which I would take to this question the immunity ratione materiae was lost when Chile, having ratified the Convention to which section 134 gave effect and which Spain had already ratified, was deprived of the right to object to the extra-territorial jurisdiction which the United Kingdom was able to assert over these offences when the section came into force. But I am content to accept the view of my noble and learned friend Lord Saville of Newdigate that Senator Pinochet continued to have immunity until 8 December 1988 when the United Kingdom ratified the Convention.


It follows that I would hold that, while Senator Pinochet has immunity ratione materiae from prosecution for the conspiracy in Spain to murder in Spain which is alleged in charge 9 and for such conspiracies in Spain to murder in Spain and such conspiracies in Spain prior to 8 December 1988 to commit acts of torture in Spain as could be shown to be part of the allegations in charge 4, he has no immunity from prosecution for the charges of torture and of conspiracy to torture which relate to the period after that date. None of the other charges which are made against him are extradition crimes for which, even if he had no immunity, he could be extradited. On this basis only I too would allow the appeal, to the extent necessary to permit the extradition to proceed on the charges of torture and conspiracy to torture relating to the period after 8 December 1988.

The profound change in the scope of the case which can now be made for the extradition to Spain of Senator Pinochet will require the Secretary of State to reconsider his decision to give authority to proceed with the extradition process under section 7(4) of the Extradition Act 1989 and, if he decides to renew that authority, with respect to which of the alleged crimes the extradition should be authorised. It will also make it necessary for the magistrate, if renewed authority to proceed is given, to pay very careful attention to the question whether the information which is laid before him under section 9(8) of the Act supports the allegation that torture in pursuance of a conspiracy to commit systematic torture, including the single act of torture which is alleged in charge 30, was being committed by Senator Pinochet after 8 December 1988 when he lost his immunity.


My Lords,

The rehearing of this appeal has raised a number of separate issues which have been fully considered in the speech of my noble and learned friend Lord Browne-Wilkinson which I have had the benefit of reading in draft. I am in agreement with his reasoning and conclusion that the definition of an "extradition crime" in the Extradition Act 1989 requires the conduct to be criminal under United Kingdom law at the date of commission. I am also in agreement with the analysis and conclusions of my noble and learned friend Lord Hope of Craighead as to the alleged crimes in respect of which Senator Pinochet could be extradited apart from any issue of immunity. I further agree with the view of Lord Browne-Wilkinson that Senator Pinochet is entitled to immunity in respect of charges of murder and conspiracy to murder, but I wish to make some observations on the issue of immunity claimed by Senator Pinochet in respect of charges of torture and conspiracy to torture.

Senator Pinochet ceased to be head of state of Chile on 11 March 1990, and he claims immunity as a former head of state. The distinction between the immunity of a serving head of state and the immunity of a former head of state is discussed by Sir Arthur Watts K.C.M.G., Q.C. in his monograph, "The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers". He states at pp. 53, 88 and 89:

     "It is well established that, put broadly, a head of state enjoys a wide immunity from the criminal, civil and administrative jurisdiction of other states. This immunity--to the extent that it exists--becomes effective upon his assumption of office, even in respect of events occurring earlier. . .

     "A head of state's immunity is enjoyed in recognition of his very special status as a holder of his state's highest office . . .

     "A former head of state is entitled under international law to none of the facilities, immunities and privileges which international law accords to heads of states in office. . .

     "After his loss of office he may be sued in relation to his private activities, both those taking place while he was still head of state, as well as those occurring before becoming head of state or since ceasing to be head of state. . .

     "A head of state's official acts, performed in his public capacity as head of state, are however subject to different considerations. Such acts are acts of the state rather than the head of state's personal acts, and he cannot be sued for them even after he has ceased to be head of state. The position is similar to that of acts performed by an ambassador in the exercise of his functions for which immunity continues to subsist even after the ambassador's appointment has come to an end."

Section 20 in Part III of the State Immunity Act 1978 provides that, subject to any necessary modifications, the Diplomatic Privileges Act 1964 shall apply to a sovereign or other head of state, and section 2 of the Act of 1964 provides that the Articles of the Vienna Convention on Diplomatic Relations set out in Schedule 1 to the Act shall have the force of law in the United Kingdom. The Articles set out in Schedule 1 include Articles 29, 31 and 39. Article 29 provides:

     "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention."

Article 31 provides:

     "1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state."

Article 39 provides:

     "1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving state on proceedings to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.

     "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."

One of the issues raised before your Lordships is whether section 20 of the State Immunity Act relates only to the functions carried out by a foreign head of state when he is present within the United Kingdom, or whether it also applies to his actions in his own state or in another country. Section 20 is a difficult section to construe, but I am of opinion that, with the necessary modifications, the section applies the provisions of the Diplomatic Privileges Act, and therefore the Articles of the Vienna Convention, to the actions of a head of state in his own country or elsewhere, so that, adopting the formulation of Lord Nicholls of Birkenhead in the earlier hearing [1998] 3 W.L.R. 1456, 1499E, with the addition of seven words, the effect of section 20 of the Act of 1978, section 2 of the Diplomatic Privileges Act and of the Articles of the Vienna Convention is that:

     "a former head of state shall continue to enjoy immunity from the criminal jurisdiction of the United Kingdom with respect to acts performed by him, whether in his own country or elsewhere, in the exercise of his functions as a head of state."

I consider, however, that section 20 did not change the law in relation to the immunity from criminal jurisdiction to which a former head of state was entitled in the United Kingdom but gave statutory form to the relevant principle of international law which was part of the common law.

Therefore the crucial question for decision is whether, if committed, the acts of torture (in which term I include acts of torture and conspiracy to commit torture) alleged against Senator Pinochet were carried out by him in the performance of his functions as head of state. I say "if committed" because it is not the function of your Lordships in this appeal to decide whether there is evidence to substantiate the allegations and Senator Pinochet denies them. Your Lordships had the advantage of very learned and detailed submissions from counsel for the parties and the interveners and from the amicus curiae (to which submissions I would wish to pay tribute) and numerous authorities from many jurisdictions were cited.

It is clear that the acts of torture which Senator Pinochet is alleged to have committed were not acts carried out in his private capacity for his personal gratification. If that had been the case they would have been private acts and it is not disputed that Senator Pinochet, once he had ceased to be head of state, would not be entitled to claim immunity in respect of them. It was submitted on his behalf that the acts of torture were carried out for the purposes of protecting the state and advancing its interests, as Senator Pinochet saw them, and were therefore governmental functions and were accordingly performed as functions of the head of state. It was further submitted that the immunity which Senator Pinochet claimed was the immunity of the state of Chile itself. In the present proceedings Chile intervened on behalf of Senator Pinochet and in paragraph 10 of its written case Chile submitted:

     " . . . the immunity of a head of state (or former head of state) is an aspect of state immunity . . . Immunity of a head of state in his public capacity is equated with state immunity in international law . . . Actions against representatives of a foreign government in respect of their governmental or official acts are in substance proceedings against the state which they represent, and the immunity is for the benefit of the state."

Moreover, it was submitted that a number of authorities established that the immunity which a state is entitled to claim in respect of the acts of its former head of state or other public officials applies to acts which are unlawful and criminal.

My Lords, in considering the authorities it is necessary to have regard to a number of matters. First, it is a principle of international law that a state may not be sued in the courts of another state without its consent (although this principle is now subject to exceptions--the exceptions in the law of the United Kingdom being set out in the State Immunity Act 1978). Halsbury's Laws of England 4th ed. published in 1977 vol. 18 para 1548 stated:

     "An independent sovereign state may not be sued in the English courts against its will and without its consent. This immunity from the jurisdiction is derived from the rules of international law, which in this respect have become part of the law of England. It is accorded upon the grounds that the exercise of jurisdiction would be incompatible with the dignity and independence of any superior authority enjoyed by every sovereign state. The principle involved is not founded upon any technical rules of law, but upon broad considerations of public policy, international law and comity."

Secondly, many of the authorities cited by counsel were cases where an action in tort for damages was brought against a state. Thirdly, a state is responsible for the actions of its officials carried out in the ostensible performance of their official functions notwithstanding that the acts are performed in excess of their proper functions. Oppenheim's International Law, 9th ed., states at page 545:

     "In addition to the international responsibility which a state clearly bears for the official and authorised acts of its administrative officials and members of its armed forces, a state also bears responsibility for internationally injurious acts committed by such persons in the ostensible exercise of their official functions but without that state's command or authorisation, or in excess of their competence according to the internal law of the state, or in mistaken, ill-judged or reckless execution of their official duties. A state's administrative officials and members of its armed forces are under its disciplinary control, and all acts of such persons in the apparent exercise of their official functions or invoking powers appropriate to their official character are prima facie attributable to the state. It is not always easy in practice to draw a clear distinction between unauthorised acts of officials and acts committed by them in their private capacity and for which the state is not directly responsible. With regard to members of armed forces the state will usually be held responsible for their acts if they have been committed in the line of duty, or in the presence of and under the orders of an official superior."

Fourthly, in respect of the jurisdiction of the courts of the United Kingdom, foreign states are now expressly given immunity in civil proceedings (subject to certain express exceptions) by statute. Part I of the State Immunity Act 1978 relating to civil proceedings provides in section 1(1):

     "A state is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this part of this Act."

But Part I of the Act has no application to criminal jurisdiction and section 16(4) in Part I provides:

     "This Part of this Act does not apply to criminal proceedings."

In the United States of America section 1604 of the Foreign Sovereign Immunities Act 1976 provides:

     "Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the states except as provided in sections 1605 to 1607 of this chapter."

Counsel for Senator Pinochet and for Chile relied on the decision of the Court of Appeal in Al-Adsani v. Government of Kuwait (1996) 107 I.L.R. 536 where the plaintiff brought an action for damages in tort against the government of Kuwait claiming that he had been tortured in Kuwait by officials of that government. The Court of Appeal upheld a claim by the government of Kuwait that it was entitled to immunity. Counsel for the plaintiff submitted that the rule of international law prohibiting torture is so fundamental that it is jus cogens which overrides all other principles of international law, including the principle of sovereign immunity. This submission was rejected by the Court of Appeal on the ground that immunity was given by section 1 of the State Immunity Act 1978 and that the immunity was not subject to an overriding qualification in respect of torture or other acts contrary to international law which did not fall within one of the express exceptions contained in the succeeding sections of the Act. Ward L.J. stated at p. 549:

     "Unfortunately, the Act is as plain as plain can be. A foreign state enjoys no immunity for acts causing personal injury committed in the United Kingdom and if that is expressly provided for the conclusion is impossible to escape that state immunity is afforded in respect of acts of torture committed outside this jurisdiction."

A similar decision was given by the United States Court of Appeals, Ninth Circuit, in Siderman de Blake v. Republic of Argentina (1992) 965 F.2d 699 where an Argentine family brought an action for damages in tort against Argentina and one of its provinces for acts of torture by military officials. Argentina claimed that it was entitled to immunity under the Foreign Sovereign Immunities Act and the Court of Appeals, with reluctance, upheld this claim. The argument advanced on behalf of the plaintiffs was similar to that advanced in the Al-Adsani case, but the court ruled that it was obliged to reject it because of the express provisions of the Foreign Sovereign Immunities Act, stating at p. 718:

     "The Sidermans argue that since sovereign immunity itself is a principle of international law, it is trumped by jus cogens. In short, they argue that when a state violates jus cogens, the cloak of immunity provided by international law falls away, leaving the state amenable to suit.

     "As a matter of international law, the Sidermans' argument carries much force.

     . . .

     "Unfortunately, we do not write on a clean slate. We deal not only with customary international law, but with an affirmative Act of Congress, the FSIA. We must interpret the FSIA through the prism of Amerada Hess. Nothing in the text or legislative history of the FSIA explicitly addresses the effect violations of jus cogens might have on the FSIA's cloak of immunity. Argentina contends that the Supreme Court's statement in Amerada Hess that the FSIA grants immunity 'in those cases involving alleged violations of international law that do not come within one of the FSIA's exceptions', 488 U.S. at 436, 109 S.Ct. at 688, precludes the Sidermans' reliance on jus cogens in this case. Clearly, the FSIA does not specifically provide for an exception to sovereign immunity based on jus cogens. In Amerada Hess, the court had no occasion to consider acts of torture or other violations of the peremptory norms of international law, and such violations admittedly differ in kind from transgressions of jus dispositivum, the norms derived from international agreements or customary international law with which the Amerada Hess court dealt. However, the court was so emphatic in its pronouncement 'that immunity is granted in those cases involving alleged violations of international law that do not come within one of the FSIA's exceptions,' Amerada Hess, 488 U.S. at 436, 109 S. Ct. at 688, and so specific in its formulation and method of approach, id. at 439, 109 S.Ct. at 690 ('Having determined that the FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court, we turn to whether any of the exceptions enumerated in the Act apply here'), we conclude that if violations of jus cogens committed outside the United States are to be exceptions to immunity, Congress must make them so. The fact that there has been a violation of jus cogens does not confer jurisdiction under the FSIA."

It has also been decided that where an action for damages in tort is brought against officials of a foreign state for actions carried out by them in ostensible exercise of their governmental functions, they can claim state immunity, notwithstanding that their actions were illegal. The state itself, if sued directly for damages in respect of their actions would be entitled to immunity and this immunity would be impaired if damages were awarded against the officials and then the state was obliged to indemnify them. In Jaffe v. Miller [1993] I.L.R. 446, government officials were sued in tort for laying false criminal charges and for conspiracy for kidnap, and it was held that they were entitled to claim immunity. Finlayson J.A., delivering the judgment of the Ontario Court of Appeal, stated at pp. 458-459:

     "I also agree with the reasoning on this issue put forward by counsel for the respondents. Counsel submitted that to confer immunity on a government department of a foreign state but to deny immunity to the functionaries, who in the course of their duties performed the acts, would render the State Immunity Act ineffective. To avoid having its action dismissed on the ground of state immunity, a plaintiff would have only to sue the functionaries who performed the acts. In the event that the plaintiff recovered judgment, the foreign state would have to respond to it by indemnifying its functionaries, thus, through this indirect route, losing the immunity conferred on it by the Act. Counsel submitted that when functionaries are acting within the scope of their official duties, as in the present case, they come within the definition of 'foreign state'."

In my opinion these authorities and similar authorities relating to claims for damages in tort against states and government officials do not support the claim of Senator Pinochet to immunity from criminal proceedings in the United Kingdom because the immunity given by Part I of the State Immunity Act 1978 does not apply to criminal proceedings.

Counsel for Senator Pinochet and for Chile further submitted that under the rules of international law courts recognise the immunity of a former head of state in respect of criminal acts committed by him in the purported exercise of governmental authority. In Marcos and Marcos v. Federal Department of Police (1989) 102 I.L.R. 198 the United States instituted criminal proceedings against Ferdinard Marcos, the former President of the Philippines, and his wife, who had been a Minister in the Philippine Government. They were accused of having abused their positions to acquire for themselves public funds and works of art. The United States authorities sought legal assistance from the Swiss authorities to obtain banking and other documents in order to clarify the nature of certain transactions which were the subject of investigation. Mr. Marcos and his wife claimed immunity as the former leaders of a foreign state. In its judgment the Swiss federal tribunal stated at p. 203:

     "The immunity in relation to their functions which the appellants enjoyed therefore subsisted for those criminal acts which were allegedly committed while they were still exercising their powers in the Republic of the Philippines. The proceedings brought against them before the United States courts could therefore only be pursued pursuant to an express waiver by the State of the Philippines of the immunity which public international law grants them not as a personal advantage but for the benefit of the state over which they ruled."

The tribunal then held that the immunity could not be claimed by Mr. & Mrs Marcos in Switzerland because there had been an express waiver by the State of the Philippines. However I would observe that in that case Mr. and Mrs Marcos were not accused of violating a rule of international law which had achieved the status of jus cogens.

Counsel also relied on the decision of the Federal Constitutional Court of the Federal Republic of Germany In re Former Syrian Ambassador to the German Democratic Republic (unreported) 10 June 1997. In that case the former Syrian ambassador to the German Democratic Republic was alleged to have failed to prevent a terrorist group from removing a bag of explosives from the Syrian Embassy, and a few hours later the explosives were used in an attack which left one person dead and more than 20 persons seriously injured. Following German unification and the demise of the German Democratic Republic in 1990 a District Court in Berlin issued an arrest warrant against the former ambassador for complicity in murder and the causing of an explosion. The Provincial Court quashed the warrant but the Court of Appeal overruled the decision of the Provincial Court and restored the validity of the warrant, holding that "The complainant was held to have contributed to the attack by omission. He had done nothing to prevent the explosives stored at the embassy building from being removed." The former ambassador then lodged a constitutional complaint claiming that he was entitled to diplomatic immunity.

The Constitutional Court rejected the complaint and held that the obligation limited to the former German Democratic Republic to recognise the continuing immunity of the complainant, according to Article 39(2) of the Vienna Convention, was not transferred to the Federal Republic of Germany by the international law of state succession.

Counsel for Senator Pinochet and for Chile relied on the following passage in the judgment of the constitutional court:

     "For the categorization as an official act, it is irrelevant whether the conduct is legal according to the legal order of the Federal Republic of Germany (see above B.II.2.a)bb)) and whether it fulfilled diplomatic functions in the sense of Article 3 of the VCDR (see also the position taken by the [Swiss] Federal Political Department on 12 May [82] 1961, Schweizerisches Jahrbuch für internationles Recht (SJIR) 21 [1964] p. 171; however, a different position was taken by the Federal Political Department on 31 January 1979, reproduced in SJIR 36 (1980), p. 210 at 211 f.). The commission of criminal acts does not simply concern the functions of the mission. If a criminal act was never considered as official, there would be no substance to continuing immunity.

     "In addition, there is no relevant customary international law exception from diplomatic immunity here (see Preamble to the VCDR, 5th paragraph) . . . .

     "Diplomatic immunity from criminal prosecution basically knows no exception for particularly serious violations of law. The diplomat can in such situations only be declared persona non grata."