(Lord Lloyd of Berwick -4)
The same conclusion has been reached in the United States. In Siderman
de Blake v. Republic of Argentina (1992) 965F 2d 699 the plaintiff brought civil
proceedings for alleged acts of torture against the Government of Argentina. It was held
by the 9th Circuit Court of Appeals that although prohibition against torture has attained
the status of jus cogens in international law (citing Filartiga v. Pena-Irala
(1980) 630F 2d 876) it did not deprive the defendant state of immunity under the Foreign
Sovereign Immunity Act.
Admittedly these cases were civil cases, and they turned on the
terms of the Sovereign Immunity Act in England and the Foreign Sovereign Immunity Act in
the United States. But they lend no support to the view that an allegation of torture
"trumps" a plea of immunity. I return later to the suggestion that an allegation
of torture excludes the principle of non-justiciability.
Further light is shed on state practice by the widespread
adoption of amnesties for those who have committed crimes against humanity including
torture. Chile was not the first in the field. There was an amnesty at the end of the
Franco-Algerian War in 1962. In 1971 India and Bangladesh agreed not to pursue charges of
genocide against Pakistan troops accused of killing about 1 million East Pakistanis.
General amnesties have also become common in recent years, especially in South America,
covering members of former regimes accused of torture and other atrocities. Some of these
have had the blessing of the United Nations, as a means of restoring peace and democratic
government.
In some cases the validity of these amnesties has been
questioned. For example, the Committee against Torture (the body established to implement
the Torture Convention under article 17) reported on the Argentine amnesty in 1990. In
1996 the Inter-American Commission investigated and reported on the Chilean amnesty. It
has not been argued that these amnesties are as such contrary to international law by
reason of the failure to prosecute the individual perpetrators. Notwithstanding the wide
terms of the Torture Convention and the Taking of Hostages Convention, state practice does
not at present support an obligation to extradite or prosecute in all cases. Professor
David Lloyd Jones (to whom we are all much indebted for his help as amicus) put the matter
as follows:
- "It is submitted that while there is some support for the view that generally
applicable rules of state immunity should be displaced in cases concerning infringements
of jus cogens, e.g. cases of torture, this does not yet constitute a rule of public
international law. In particular it must be particularly doubtful whether there exists a
rule of public international law requiring states not to accord immunity in such
circumstances. Such a rule would be inconsistent with the practice of many states."
Professor Greenwood took us back to the charter of the
International Military Tribunal for the trial of war criminals at Nuremburg, and drew
attention to article 7, which provides:
- "The official position of defendants, whether as heads of state or
responsible officials in government departments, shall not be considered as freeing them
from responsibility or mitigating punishment."
One finds the same provision in almost identical language in article 7(2) of the
Statute of the International Tribunal for the Former Yugoslavia (1993), article 6(2) of
the Statue of the International Tribunal for Rwanda (1994) and most recently in article 27
of the Statute of the International Criminal Court (1998). Like the Divisional Court, I
regard this as an argument more against the appellants than in their favour. The setting
up of these special international tribunals for the trial of those accused of genocide and
other crimes against humanity, including torture, shows that such crimes, when committed
by heads of state or other responsible government officials cannot be tried in the
ordinary courts of other states. If they could, there would be little need for the
international tribunal.
Professor Greenwood's reference to these tribunals also
provides the answer to those who say, with reason, that there must be a means of bringing
such men as Senator Pinochet to justice. There is. He may be tried (1) in his own country,
or (2) in any other country that can assert jurisdiction, provided his own country waives
state immunity, or (3) before the International Criminal Court when it is established, or
(4) before a specially constituted international court, such as those to which Professor
Greenwood referred. But in the absence of waiver he cannot be tried in the municipal
courts of other states.
On the first issue I would hold that Senator Pinochet is
entitled to immunity as former head of state in respect of the crimes alleged against him
on well established principles of customary international law, which principles form part
of the common law of England.
Issue two: Immunity under part 1 of the State Immunity Act 1978
The long title of the State Immunity Act 1978 states as its
first purpose the making of new provision with respect to proceedings in the United
Kingdom by or against other states. Other purposes include the making of new
provision with respect to immunities and privileges of heads of state. It is common ground
that the Act of 1978 must be read against the background of customary international law
current in 1978; for it is highly unlikely, as Lord Diplock said in Alcom Ltd. v.
Republic of Columbia [1984] 4 A.C. 580 at p. 600 that Parliament intended to require
United Kingdom courts to act contrary to international law unless the clear language of
the statute compels such a conclusion. It is for this reason that it made sense to start
with customary international law before coming to the statute.
The relevant sections are as follows:
- "1. General immunity from jurisdiction
- (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.
- (2) A court shall give effect to the immunity conferred by this section even
though the state does not appear in the proceedings in question.
- "14. States entitled to immunities and privileges
- "(1) The immunities and privileges conferred by this Part of this Act
apply to any foreign or commonwealth state other than the United Kingdom; and references
to a state include references to -
- (a) the sovereign or other head of that state in his public capacity;
- (b) the government of that state; and
- (c) any department of that government,
- but not to any entity (hereafter referred to as a 'separate entity') which is
distinct from the executive organs of the government of the state and capable of suing or
being sued.
- (2) A separate entity is immune from the jurisdiction of the courts of the
United Kingdom if, and only if -
- (a) the proceedings relate to anything done by it in the exercise of
sovereign authority; . . .
- (1) This Part of this Act does not affect any immunity or privilege conferred
by the Diplomatic Privileges Act 1964 . . .
- (4) This Part of this Act does not apply to criminal proceedings."
Mr. Nichols drew attention to the width of section 1(1) of the
Act. He submitted that it confirms the rule of absolute immunity at common law, subject to
the exceptions contained in sections 2-11, and that the immunity covers criminal as well
as civil proceedings. Faced with the objection that part 1 of the Act is stated not to
apply to criminal proceedings by virtue of the exclusion in section 16(4), he argues that
the exclusion applies only to sections 2-11. In other words section 16(4) is an exception
on an exception. It does not touch section 1. This was a bold argument, and I cannot
accept it. It seems clear that the exclusions in section 16(2)(3) and (5) all apply to
part 1 as a whole, including section 1(1). I can see no reason why section 16(4) should
not also apply to section 1(1). Mr. Nichols referred us to an observation of the Lord
Chancellor in moving the Second Reading of the Bill in the House of Lords: Hansard 17
January 1978 col. 52. In relation to part 1 of the Bill he said "immunity from
criminal jurisdiction is not affected, and that will remain." I do not see how this
helps Mr. Nicholls. It confirms that the purpose of part 1 was to enact the restrictive
theory of sovereign immunity in relation to commercial transactions and other matters of a
civil nature. It was not intended to affect immunity in criminal proceedings.
The remaining question under this head is whether the express
exclusion of criminal proceedings from part 1 of the Act, including section 1(1), means
that the immunity in respect of criminal proceedings which exists at common law has been
abolished. In Al Adsani v. Government of Kuwait 107 I.L.R. 536 at 542 Stuart Smith
L.J. referred to the State Immunity Act as providing a "comprehensive code." So
indeed it does. But obviously it does not provide a code in respect of matters which it
does not purport to cover. In my opinion the immunity of a former head of state in respect
of criminal acts committed by him in exercise of sovereign power is untouched by part 1 of
the Act.
Issue 3: Immunity under part 3 of the State Immunity Act
The relevant provision is section 20 which reads:
- "(1) Subject to the provisions of this section and to any necessary
modifications, the Diplomatic Privileges Act 1964 shall apply to -
- (a) a sovereign or other head of State;
- (b) members of his family forming part of his household; and
- (c) his private servants,
- as it applies to the head of a diplomatic mission, to members of his family
forming part of his household and to his private servants. . . .
- "(5) This section applies to the sovereign or other head of any state on
which immunities and privileges are conferred by Part I of this Act and is without
prejudice to the application of that Part to any such sovereign or head of state in his
public capacity."
The Diplomatic Privileges Act 1964 was enacted to give force to the Vienna Convention
on diplomatic privileges. Section 1 provides that the Act is to have effect in substitution
for any previous enactment or rule of law.
So again the question arises whether the common law immunities
have been abolished by statute. So far as the immunities and privileges of diplomats are
concerned, this may well be the case. Whether the same applies to heads of state is more
debatable. But it does not matter. For in my view the immunities to which Senator Pinochet
is entitled under section 20 of the State Immunity Act are identical to the immunities
which he enjoys at common law.
The Vienna Convention provides as follows:
- "Article 29: The person of a diplomatic agent shall be inviolable. He shall
not be liable to any form of arrest or detention. . . .
- "Article 31: A diplomatic agent shall enjoy immunity from the criminal
jurisdiction of the receiving state. . . .
- "Article 39(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.
The critical provision is the second sentence of article 39(2). How is this sentence to
be applied (as it must) to a head of state? What are the "necessary
modifications" which are required under section 20 of the State Immunity Act? It is a
matter of regret that in such an important sphere of international law as the immunity of
heads of state from the jurisdiction of our courts Parliament should have legislated in
such a round-about way. But we must do our best.
The most extreme view, advanced only, I think, by Professor
Brownlie for the Interveners and soon abandoned, is that the immunity extends only to acts
performed by a visiting head of state while within the United Kingdom. I would reject this
submission. Article 39(2) is not expressly confined to acts performed in the United
Kingdom, and it is difficult to see what functions a visiting heads of state would be able
to exercise in the United Kingdom as head of state other than purely ceremonial functions.
A less extensive view was advanced by Mr. Alun Jones as his
first submission in reply. This was that the immunity only applies to the acts of heads of
state in the exercise of their external functions, that is to say, in the conduct of
international relations and foreign affairs generally. But in making the "necessary
modifications" to article 39 to fit a head of state, I see no reason to read
"functions" as meaning "external functions." It is true that diplomats
operate in foreign countries as members of a mission. But heads of state do not. The
normal sphere of a head of state's operations is his own country. So I would reject Mr.
Alun Jones's first submission.
Mr. Alun Jones's alternative submission in reply was as
follows:
- "However, if this interpretation is wrong, and Parliament's intention in
section 20(1)(a) of the State Immunity Act was to confer immunity in respect of the
exercise of the internal, as well as the external, functions of the head of state, then
the second sentence of article 39(2) must be read as if it said: 'with respect
to official acts performed by a head of state in the exercise of his functions as head of
state, immunity shall continue to subsist.'"
Here Mr. Alun Jones hits the mark. His formulation was accepted as correct by Mr.
Nicholls and Miss Clare Montgomery on behalf of the respondents, and by Mr. David Lloyd
Jones as amicus curiae.
So the question on his alternative submission is whether the
acts of which Senator Pinochet is accused were "official acts performed by him in the
exercise of his functions as head of state." For the reasons given in answer to issue
1, the answer must be that they were.
So the answer is the same whether at common law or under the
statute. And the rationale is the same. The former head of state enjoys continuing
immunity in respect of governmental acts which he performed as head of state because in
both cases the acts are attributed to the state itself.
Issue 4--non-justiciability
If I am right that Senator Pinochet is entitled to immunity at
common law, and under the statute, then the question of non-justiciability does not arise.
But I regard it as a question of overriding importance in the present context, so I intend
to say something about it.
The principle of non-justiciability may be traced back to the
same source as head of state immunity, namely, the Duke of Brunswick v. The King of
Hanover. Since then the principles have developed separately; but they frequently
overlap, and are sometimes confused. The authoritative expression of the modern doctrine
of non-justiciability is to be found in the speech of Lord Wilberforce in Buttes Gas
and Oil Co. v. Hammer [1982] A.C. 888. One of the questions in that case was whether
there exists in English law a general principle that the courts will not adjudicate upon
the transactions of foreign sovereign states. Lord Wilberforce answered the question in
the affirmative. At 932 he said:
- "In my opinion there is, and for long has been, such a general
principle, starting in English law, adopted and generalised in the law of the United
States of America which is effective and compelling in English courts. This principle is
not one of discretion, but is inherent in the very nature of the judicial process."
Lord Wilberforce traces the principle from Duke of Brunswick v. King of Hanover
through numerous decisions of the Supreme Court of the United States including Underhill
v. Hernandez, Oetjen v. Central Leather Co. (1918) 246 U.S. 297 and Banco
Nacional de Cuba v. Sabbatino (1964) 376 U.S. 398. In the latter case Lord Wilberforce
detected a more flexible use of the principle on a case-by-case basis. This is borne out
by the most recent decision of the Supreme Court in W.S. Kirkpatrick & Co. Inc. v.
Environmental Tectonics Corporation International (1990) 493 U.S. 400. These and other
cases are analysed in depth by Mance J. in his judgment in Kuwait Airways Corporation
v. Iraqi Airways Co. (unreported) 29 July 1998, from which I have derived much
assistance. In the event Mance J. held that judicial restraint was not required on the
facts of that case. The question is whether it is required (or would be required if head
of state immunity were not a sufficient answer) on the facts of the present case. In my
opinion there are compelling reasons for regarding the present case as falling within the
non-justiciability principle.
In the Buttes Gas case the court was being asked
"to review transactions in which four sovereign states were involved, which they had
brought to a precarious settlement, after diplomacy and the use of force, and to say that
at least part of these were 'unlawful' under international law." Lord Wilberforce
concluded that the case raised issues upon which a municipal court could not pass. In the
present case the State of Spain is claiming the right to try Senator Pinochet, a former
head of state, for crimes committed in Chile, some of which are said to be in breach of
international law. They have requested his extradition. Other states have also requested
extradition. Meanwhile Chile is demanding the return of Senator Pinochet on the ground
that the crimes alleged against him are crimes for which Chile is entitled to claim state
immunity under international law. These crimes were the subject of a general amnesty in
1978, and subsequent scrutiny by the Commission of Truth and Reconciliation in 1990. The
Supreme Court in Chile has ruled that in respect of at least some of these crimes the 1978
amnesty does not apply. It is obvious, therefore, that issues of great sensitivity have
arisen between Spain and Chile. The United Kingdom is caught in the crossfire. In addition
there are allegations that Chile was collaborating with other states in South America, and
in particular with Argentina, in execution of Plan Condor.
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.
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Lord Slynn of Hadley Lord Nicholls of Birkenhead
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