LORD NICHOLLS
My Lords,
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:
- "A public official or person acting in an official capacity, whatever his
nationality, commits the offence of torture if in the United Kingdom or elsewhere he
intentionally inflicts severe pain or suffering on another in the performance or purported
performance of his official duties."
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:
- "A person, whatever his nationality, who, in the United Kingdom or elsewhere,
-
- (a) detains any other person ('the hostage'), and
- (b) in order to compel a State, international governmental organisation or
person to do or abstain from doing any act, threatens to kill, injure, or continue to
detain the hostage, commits an offence."
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 1 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.
State immunity
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 1 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 [1982] 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.
Fernandez (1897) 169 U.S. 456:
- "Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one country will not sit in judgment on the acts of the
government of another done within its own territory."
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.
Personal immunity
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:
- "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 "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:
- "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 in the exercise
of his functions as a head of state."
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:
- "The principle of international law which, under certain circumstance,
protects the representatives of a state cannot be applied to acts condemned as criminal by
international law. The authors of these acts cannot shelter themselves behind their
official position to be freed from punishment."
With specific reference to the laws of war, but in the context the observation was
equally applicable to crimes against humanity, the tribunal stated:
- "He who violates the laws of war cannot obtain immunity while acting in
pursuance of the authority of the state if the state in authorising action moves outside
its competence under international law."
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.
Residual immunity
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.
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Lord Slynn of Hadley Lord Lloyd of Berwick
Lord Steyn
Lord Hoffmann
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