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)
------------------------------------------------------------------------

HOUSE OF LORDS
 Lord Browne-Wilkinson 
  Lord Goff of Chieveley 
  Lord Hope of Craighead
  Lord Hutton
  Lord Saville of Newdigate 
  Lord Millett  
  Lord Phillips of Worth Matravers  
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
REGINA
v.
BARTLE AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND OTHERS
(APPELLANTS)
EX PARTE PINOCHET
(RESPONDENT)
REGINA
v.
EVANS AND ANOTHER AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS AND
OTHERS
(APPELLANTS)
EX PARTE PINOCHET
(RESPONDENT)
(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)
ON 24 March 1999

LORD BROWNE-WILKINSON

My Lords,

As is well known, this case concerns an attempt by the Government of Spain
to extradite Senator Pinochet from this country to stand trial in Spain for
crimes committed (primarily in Chile) during the period when Senator
Pinochet was head of state in Chile. The interaction between the various
legal issues which arise is complex. I will therefore seek, first, to give a
short account of the legal principles which are in play in order that my
exposition of the facts will be more intelligible.
Outline of the law
In general, a state only exercises criminal jurisdiction over offences which
occur within its geographical boundaries. If a person who is alleged to have
committed a crime in Spain is found in the United Kingdom, Spain can apply
to the United Kingdom to extradite him to Spain. The power to extradite from
the United Kingdom for an "extradition crime" is now contained in the
Extradition Act 1989. That Act defines what constitutes an "extradition
crime". For the purposes of the present case, the most important requirement
is that the conduct complained of must constitute a crime under the law both
of Spain and of the United Kingdom. This is known as the double criminality
rule.
Since the Nazi atrocities and the Nuremberg trials, international law has
recognised a number of offences as being international crimes. Individual
states have taken jurisdiction to try some international crimes even in
cases where such crimes were not committed within the geographical
boundaries of such states. The most important of such international crimes
for present purposes is torture which is regulated by the International
Convention Against Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment, 1984. The obligations placed on the United Kingdom by that
Convention (and on the other 110 or more signatory states who have adopted
the Convention) were incorporated into the law of the United Kingdom by
section 134 of the Criminal Justice Act 1988. That Act came into force on 29
September 1988. Section 134 created a new crime under United Kingdom law,
the crime of torture. As required by the Torture Convention "all" torture
wherever committed world-wide was made criminal under United Kingdom law and
triable in the United Kingdom. No one has suggested that before section 134
came into effect torture committed outside the United Kingdom was a crime
under United Kingdom law. Nor is it suggested that section 134 was
retrospective so as to make torture committed outside the United Kingdom
before 29 September 1988 a United Kingdom crime. Since torture outside the
United Kingdom was not a crime under U.K. law until 29 September 1988, the
principle of double criminality which requires an Act to be a crime under
both the law of Spain and of the United Kingdom cannot be satisfied in
relation to conduct before that date if the principle of double criminality
requires the conduct to be criminal under United Kingdom law at the date it
was committed. If, on the other hand, the double criminality rule only
requires the conduct to be criminal under U.K. law at the date of
extradition  the rule was satisfied in relation to all torture alleged
against Senator Pinochet whether it took place before or after 1988. The
Spanish courts have held that they have jurisdiction over all the crimes
alleged.
In these circumstances, the first question that has to be answered is
whether or not the definition of an "extradition crime" in the Act of 1989
requires the conduct to be criminal under U.K. law at the date of commission
or only at the date of extradition.
This question, although raised, was not decided in the Divisional Court. At
the first hearing in this House it was apparently conceded that all the
matters charged against Senator Pinochet were extradition crimes. It was
only during the hearing before your Lordships that the importance of the
point became fully apparent. As will appear, in my view only a limited
number of the charges relied upon to extradite Senator Pinochet constitute
extradition crimes since most of the conduct relied upon occurred long
before 1988. In particular, I do not consider that torture committed outside
the United Kingdom before 29 September 1988 was a crime under U.K. law. It
follows that the main question discussed at the earlier stages of this
case--is a former head of state entitled to sovereign immunity from arrest
or prosecution in the U.K. for acts of torture--applies to far fewer
charges. But the question of state immunity remains a point of crucial
importance since, in my view, there is certain conduct of Senator Pinochet
(albeit a small amount) which does constitute an extradition crime and would
enable the Home Secretary (if he thought fit) to extradite Senator Pinochet
to Spain unless he is entitled to state immunity. Accordingly, having
identified which of the crimes alleged is an extradition crime, I will then
go on to consider whether Senator Pinochet is entitled to immunity in
respect of those crimes. But first I must state shortly the relevant facts.
The facts
On 11 September 1973 a right-wing coup evicted the left-wing regime of
President Allende. The coup was led by a military junta, of whom Senator
(then General) Pinochet was the leader. At some stage he became head of
state. The Pinochet regime remained in power until 11 March 1990 when
Senator Pinochet resigned.
There is no real dispute that during the period of the Senator Pinochet
regime appalling acts of barbarism were committed in Chile and elsewhere in
the world: torture, murder and the unexplained disappearance of individuals,
all on a large scale. Although it is not alleged that Senator Pinochet
himself committed any of those acts, it is alleged that they were done in
pursuance of a conspiracy to which he was a party, at his instigation and
with his knowledge. He denies these allegations. None of the conduct alleged
was committed by or against citizens of the United Kingdom or in the United
Kingdom.
In 1998 Senator Pinochet came to the United Kingdom for medical treatment.
The judicial authorities in Spain sought to extradite him in order to stand
trial in Spain on a large number of charges. Some of those charges had links
with Spain. But most of the charges had no connection with Spain. The
background to the case is that to those of left-wing political convictions
Senator Pinochet is seen as an arch-devil: to those of right-wing
persuasions he is seen as the saviour of Chile. It may well be thought that
the trial of Senator Pinochet in Spain for offences all of which related to
the state of Chile and most of which occurred in Chile is not calculated to
achieve the best justice. But I cannot emphasise too strongly that that is
no concern of your Lordships. Although others perceive our task as being to
choose between the two sides on the grounds of personal preference or
political inclination, that is an entire misconception. Our job is to decide
two questions of law: are there any extradition crimes and, if so, is
Senator Pinochet immune from trial for committing those crimes. If, as a
matter of law, there are no extradition crimes or he is entitled to immunity
in relation to whichever crimes there are, then there is no legal right to
extradite Senator Pinochet to Spain or, indeed, to stand in the way of his
return to Chile. If, on the other hand, there are extradition crimes in
relation to which Senator Pinochet is not entitled to state immunity then it
will be open to the Home Secretary to extradite him. The task of this House
is only to decide those points of law.
On 16 October 1998 an international warrant for the arrest of Senator
Pinochet was issued in Spain. On the same day, a magistrate in London issued
a provisional warrant ("the first warrant") under section 8 of the
Extradition Act 1989. He was arrested in a London hospital on 17 October
1998. On 18 October the Spanish authorities issued a second international
warrant. A further provisional warrant ("the second warrant") was issued by
the magistrate at Bow Street Magistrates Court on 22 October 1998 accusing
Senator Pinochet of:

 "(1) Between 1 January 1988 and December 1992 being a public official
intentionally inflicted severe pain or suffering on another in the
performance or purported performance of his official duties;

 (2) Between the first day of January 1988 and 31 December 1992 being a
public official, conspired with persons unknown to intentionally inflict
severe pain or suffering on another in the performance or purported
performance of his official duties;

 (3) Between the first day of January 1982 and 31 January 1992 he detained
other persons (the hostages) and in order to compel such persons to do or to
abstain from doing any act threatened to kill, injure or continue to detain
the hostages;

 (4) Between the first day of January 1982 and 31 January 1992 conspired
with persons unknown to detain other persons (the hostages) and in order to
compel such persons to do or to abstain from doing any act, threatened to
kill, injure or continue to detain the hostages.

 (5) Between January 1976 and December 1992 conspired together with persons
unknown to commit murder in a Convention country."
Senator Pinochet started proceedings for habeas corpus and for leave to move
for judicial review of both the first and the second provisional warrants.
Those proceedings came before the Divisional Court (Lord Bingham of Cornhill
C.J., Collins and Richards JJ.) which on 28 October 1998 quashed both
warrants. Nothing turns on the first warrant which was quashed since no
appeal was brought to this House. The grounds on which the Divisional Court
quashed the second warrant were that Senator Pinochet (as former head of
state) was entitled to state immunity in respect of the acts with which he
was charged. However, it had also been argued before the Divisional Court
that certain of the crimes alleged in the second warrant were not
"extradition crimes" within the meaning of the Act of 1989 because they were
not crimes under U.K. law at the date they were committed. Whilst not
determining this point directly, the Lord Chief Justice held that, in order
to be an extradition crime, it was not necessary that the conduct should be
criminal at the date of the conduct relied upon but only at the date of
request for extradition.
The Crown Prosecution Service (acting on behalf of the Government of Spain)
appealed to this House with the leave of the Divisional Court. The
Divisional Court certified the point of law of general importance as being
"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." Before the appeal
came on for hearing in this House for the first time, on 4 November 1998 the
Government of Spain submitted a formal Request for Extradition which greatly
expanded the list of crimes alleged in the second provisional warrant so as
to allege a widespread conspiracy to take over the Government of Chile by a
coup and thereafter to reduce the country to submission by committing
genocide, murder, torture and the taking of hostages, such conduct taking
place primarily in Chile but also elsewhere.
The appeal first came on for hearing before this House between 4 and 12
November 1998. The Committee heard submissions by counsel for the Crown
Prosecution Service as appellants (on behalf of the Government of Spain),
Senator Pinochet, Amnesty International as interveners and an independent
amicus curiae. Written submissions were also entertained from Human Rights
Watch. That Committee entertained argument based on the extended scope of
the case as put forward in the Request for Extradition. It is not entirely
clear to what extent the Committee heard submissions as to whether all or
some of those charges constituted "extradition crimes". There is some
suggestion in the judgments that the point was conceded. Certainly, if the
matter was argued at all it played a very minor role in that first hearing.
Judgment was given on 25 November 1998 (see [1998] 3 W.L.R. 1456). The
appeal was allowed by a majority (Lord Nicholls of Birkenhead, Lord Steyn
and Lord Hoffmann, Lord Slynn of Hadley and Lord Lloyd of Berwick
dissenting) on the grounds that Senator Pinochet was not entitled to
immunity in relation to crimes under international law. On 15 January 1998
that judgment of the House was set aside on the grounds that the Committee
was not properly constituted: see [1999] 2 W.L.R. 272. The appeal came on
again for rehearing on 18 January 1999 before your Lordships. In the
meantime the position had changed yet again. First, the Home Secretary had
issued to the magistrate authority to proceed under section 7 of the Act of
1989. In deciding to permit the extradition to Spain to go ahead he relied
in part on the decision of this House at the first hearing that Senator
Pinochet was not entitled to immunity. He did not authorise the extradition
proceedings to go ahead on the charge of genocide: accordingly no further
arguments were addressed to us on the charge of genocide which has dropped
out of the case.
Secondly, the Republic of Chile applied to intervene as a party. Up to this
point Chile had been urging that immunity should be afforded to Senator
Pinochet, but it now wished to be joined as a party. Any immunity precluding
criminal charges against Senator Pinochet is the immunity not of Senator
Pinochet but of the Republic of Chile. Leave to intervene was therefore
given to the Republic of Chile. The same amicus, Mr. Lloyd Jones, was heard
as at the first hearing as were counsel for Amnesty International. Written
representations were again put in on behalf of Human Rights Watch.
Thirdly, the ambit of the charges against Senator Pinochet had widened yet
again. Chile had put in further particulars of the charges which they wished
to advance. In order to try to bring some order to the proceedings, Mr. Alun
Jones Q.C., for the Crown Prosecution Service, prepared a schedule of the 32
U.K. criminal charges which correspond to the allegations made against
Senator Pinochet under Spanish law, save that the genocide charges are
omitted. The charges in that schedule are fully analysed and considered in
the speech of my noble and learned friend, Lord Hope of Craighead who
summarises the charges as follows:
 Charges 1, 2 and 5: conspiracy to torture between 1 January 1972 and 20
September 1973 and between 1 August 1973 and 1 January 1990;
 Charge 3: conspiracy to take hostages between 1 August 1973 and 1 January
1990;
 Charge 4: conspiracy to torture in furtherance of which murder was
committed in various countries including Italy, France, Spain and Portugal,
between 1 January 1972 and 1 January 1990.
 Charges 6 and 8: torture between 1 August 1973 and 8 August 1973 and on 11
September 1973.
 Charges 9 and 12: conspiracy to murder in Spain between 1 January 1975 and
31 December 1976 and in Italy on 6 October 1975.
 Charges 10 and 11: attempted murder in Italy on 6 October 1975.
 Charges 13-29; and 31-32: torture on various occasions between 11 September
1973 and May 1977.
 Charge 30: torture on 24 June 1989.
I turn then to consider which of those charges are extradition crimes.
Extradition Crimes
As I understand the position, at the first hearing in the House of Lords the
Crown Prosecution Service did not seek to rely on any conduct of Senator
Pinochet occurring before 11 September 1973 (the date on which the coup
occurred) or after 11 March 1990 (the date when Senator Pinochet retired as
head of state). Accordingly, as the case was then presented, if Senator
Pinochet was entitled to immunity such immunity covered the whole period of
the alleged crimes. At the second hearing before your Lordships, however,
the Crown Prosecution Service extended the period during which the crimes
were said to have been committed: for example, see charges 1 and 4 where the
conspiracies are said to have started on 1 January 1972, i.e. at a time
before Senator Pinochet was head of state and therefore could be entitled to
immunity. In consequence at the second hearing counsel for Senator Pinochet
revived the submission that certain of the charges, in particular those
relating to torture and conspiracy to torture, were not "extradition crimes"
because at the time the acts were done the acts were not criminal under the
law of the United Kingdom. Once raised, this point could not be confined
simply to the period (if any) before Senator Pinochet became head of state.
If the double criminality rule requires it to be shown that at the date of
the conduct such conduct would have been criminal under the law of the
United Kingdom, any charge based on torture or conspiracy to torture
occurring before 29 September 1988 (when section 134 of the Criminal Justice
Act came into force) could not be an "extradition crime" and therefore could
not in any event found an extradition order against Senator Pinochet.
Under section 1(1) of the Act of 1989 a person who is accused of an
"extradition crime" may be arrested and returned to the state which has
requested extradition. Section 2 defines "extradition crime" so far as
relevant as follows:

 "(1) In this Act, except in Schedule 1, 'extradition crime' means -


  (a) conduct in the territory of a foreign state, a designated Commonwealth
country or a colony which, if it occurred in the United Kingdom, would
constitute an offence punishable with imprisonment for a term of 12 months,
or any greater punishment, and which, however described in the law of the
foreign state, Commonwealth country or colony, is so punishable under that
law;
  (b) an extra-territorial offence against the law of a foreign state,
designated Commonwealth country or colony which is punishable under that law
with imprisonment for a term of 12 months, or any greater punishment, and
which satisfies -
   (i) the condition specified in subsection (2) below; or
   (ii) all the conditions specified in subsection (3) below.


 "(2) The condition mentioned in subsection (1)(b)(i) above is that in
corresponding circumstances equivalent conduct would constitute an
extra-territorial offence against the law of the United Kingdom punishable
with imprisonment for a term of 12 months, or any greater punishment.

 "(3) The conditions mentioned in subsection (1)(b)(ii) above are -


  (a) that the foreign state, Commonwealth country or colony bases its
jurisdiction on the nationality of the offender;
  (b) that the conduct constituting the offence occurred outside the United
Kingdom; and
  (c) that, if it occurred in the United Kingdom, it would constitute an
offence under the law of the United Kingdom punishable with imprisonment for
a term of 12 months, or any greater punishment."
The question is whether the references to conduct "which, if it occurred in
the United Kingdom, would constitute an offence" in section 2(1)(a) and
(3)(c) refer to a hypothetical occurrence which took place at the date of
the request for extradition ("the request date") or the date of the actual
conduct ("the conduct date"). In the Divisional Court, the Lord Chief
Justice (at p. 20 of the Transcript) held that the words required the acts
to be criminal only at the request date. He said:

 "I would however add on the retrospectivity point that the conduct alleged
against the subject of the request need not in my judgment have been
criminal here at the time the alleged crime was committed abroad. There is
nothing in section 2 which so provides. What is necessary is that at the
time of the extradition request the offence should be a criminal offence
here and that it should then be punishable with 12 months imprisonment or
more. Otherwise section 2(1)(a) would have referred to conduct which would
at the relevant time 'have constituted' an offence and section 2(3)(c) would
have said 'would have constituted'. I therefore reject this argument."
Lord Lloyd (who was the only member of the Committee to express a view on
this point at the first hearing) took the same view. He said at p. 1481:

 "But I agree with the Divisional Court that this argument is bad. It
involves a misunderstanding of section 2 of the Extradition Act 1989.
Section 2(1)(a) refers to conduct which would constitute an offence in the
United Kingdom now. It does not refer to conduct which would have
constituted an offence then."
My Lords, if the words of section 2 are construed in isolation there is room
for two possible views. I agree with the Lord Chief Justice and Lord Lloyd
that, if read in isolation, the words "if it occurred . . . would
constitute" read more easily as a reference to a hypothetical event
happening now, i.e. at the request date, than to a past hypothetical event,
i.e. at the conduct date. But in my judgment the right construction is not
clear. The word "it" in the phrase "if it occurred . . ." is a reference
back to the actual conduct of the individual abroad which, by definition, is
a past event. The question then would be "would that past event (including
the date of its occurrence) constitute an offence under the law of the
United Kingdom." The answer to that question would depend upon the United
Kingdom law at that date.
But of course it is not correct to construe these words in isolation and
your Lordships had the advantage of submissions which strongly indicate that
the relevant date is the conduct date. The starting point is that the Act of
1989 regulates at least three types of extradition.
First, extradition to a Commonwealth country, to a colony or to a foreign
country which is not a party to the European Convention on Extradition. In
this class of case (which is not the present one) the procedure under Part
III of the Act of 1989 requires the extradition request to be accompanied by
evidence sufficient to justify arrest under the Act: section 7(2)(b). The
Secretary of State then issues his authority to proceed which has to specify
the offences under U.K. law which "would be constituted by equivalent
conduct in the United Kingdom": section 7(5). Under section 8 the magistrate
is given power to issue a warrant of arrest if he is supplied with such
evidence "as would in his opinion justify the issue of a warrant for the
arrest of a person accused": section 8(3). The committal court then has to
consider, amongst other things, whether "the evidence would be sufficient to
warrant his trial if the extradition crime had taken place within
jurisdiction of the court" (emphasis added): section 9(8). In my judgment
these provisions clearly indicate that the conduct must be criminal under
the law of the United Kingdom at the conduct date and not only at the
request date. The whole process of arrest and committal leads to a position
where under section 9(8) the magistrate has to be satisfied that, under the
law of the United Kingdom, if the conduct "had occurred" the evidence was
sufficient to warrant his trial. This is a clear reference to the position
at the date when the conduct in fact occurred. Moreover, it is in my
judgment compelling that the evidence which the magistrate has to consider
has to be sufficient "to warrant his trial". Here what is under
consideration is not an abstract concept whether a hypothetical case is
criminal but of a hard practical matter--would this case in relation to this
defendant be properly committed for trial if the conduct in question had
happened in the United Kingdom? The answer to that question must be "no"
unless at that date the conduct was criminal under the law of the United
Kingdom.
The second class of case dealt with by the Act of 1989 is where extradition
is sought by a foreign state which, like Spain, is a party to the European
Extradition Convention. The requirements applicable in such a case are the
same as those I have dealt with above in relation to the first class of case
save that the requesting state does not have to present evidence to provide
the basis on which the magistrate can make his order to commit. The
requesting state merely supplies the information. But this provides no
ground for distinguishing Convention cases from the first class of case. The
double criminality requirement must be the same in both classes of case.
Finally, the third class of case consists of those cases where there is an
Order in Council in force under the Extradition Act 1870. In such cases, the
procedure is not regulated by Part III of the Act of 1989 but by Schedule I
to the Act of 1989: see section 1(3). Schedule I contains, in effect, the
relevant provisions of the Act of 1870, which subject to substantial
amendments had been in force down to the passing of the Act of 1989. The
scheme of the Act of 1870 was to define "extradition crime" as meaning "a
crime which, if committed in England . . . would be one of the crimes
described in the first schedule to this Act": section 26. The first schedule
to the Act of 1870 contains a list of crimes and is headed:

 "The following list of crimes is to be construed according to the law
existing in England . . . at the date of the alleged crime, whether by
common law or by statute made before or after the passing of this Act."
(emphasis added)
It is therefore quite clear from the words I have emphasised that under the
Act of 1870 the double criminality rule required the conduct to be criminal
under English law at the conduct date not at the request date. Paragraph 20
of Schedule 1 to the Act of 1989 provides:

 "'extradition crime', in relation to any foreign state, is to be construed
by reference to the Order in Council under section 2 of the Extradition Act
1870 applying to that state as it had effect immediately before the coming
into force of this Act and to any amendments thereafter made to that Order;"
Therefore in this class of case regulated by Schedule 1 to the Act of 1989
the same position applies as it formerly did under the Act of 1870, i.e. the
conduct has to be a crime under English law at the conduct date. It would be
extraordinary if the same Act required criminality under English law to be
shown at one date for one form of extradition and at another date for
another. But the case is stronger than that. We were taken through a trawl
of the travaux preparatoires relating to the Extradition Convention and the
departmental papers leading to the Act of 1989. They were singularly silent
as to the relevant date. But they did disclose that there was no discussion
as to changing the date on which the criminality under English law was to be
demonstrated. It seems to me impossible that the legislature can have
intended to change that date from the one which had applied for over a
hundred years under the Act of 1870 (i.e. the conduct date) by a side wind
and without investigation.
The charges which allege extradition crimes
The consequences of requiring torture to be a crime under U.K. law at the
date the torture was committed are considered in Lord Hope's speech. As he
demonstrates, the charges of torture and conspiracy to torture relating to
conduct before 29 September 1988 (the date on which section 134 came into
effect) are not extraditable, i.e. only those parts of the conspiracy to
torture alleged in charge 2 and of torture and conspiracy to torture alleged
in charge 4 which relate to the period after that date and the single act of
torture alleged in charge 30 are extradition crimes relating to torture.
Lord Hope also considers, and I agree, that the only charge relating to
hostage-taking (charge 3) does not disclose any offence under the Taking of
Hostages Act 1982. The statutory offence consists of taking and detaining a
person (the hostage), so as to compel someone who is not the hostage to do
or abstain from doing some act: section 1. But the only conduct relating to
hostages which is charged alleges that the person detained (the so-called
hostage) was to be forced to do something by reason of threats to injure
other non-hostages which is the exact converse of the offence. The hostage
charges therefore are bad and do not constitute extradition crimes.
Finally, Lord Hope's analysis shows that the charge of conspiracy in Spain
to murder in Spain (charge 9) and such conspiracies in Spain to commit
murder in Spain, and such conspiracies in Spain prior to 29 September 1988
to commit acts of torture in Spain, as can be shown to form part of the
allegations in charge 4 are extradition crimes.
I must therefore consider whether, in relation to these two surviving
categories of charge, Senator Pinochet enjoys sovereign immunity. But first
it is necessary to consider the modern law of torture.
Torture
Apart from the law of piracy, the concept of personal liability under
international law for international crimes is of comparatively modern
growth. The traditional subjects of international law are states not human
beings. But consequent upon the war crime trials after the 1939-45 World
War, the international community came to recognise that there could be
criminal liability under international law for a class of crimes such as war
crimes and crimes against humanity. Although there may be legitimate doubts
as to the legality of the Charter of the Nuremberg Tribunal, in my judgment
those doubts were stilled by the Affirmation of the Principles of
International Law recognised by the Charter of Nuremberg Tribunal adopted by
the United Nations General Assembly on 11 December 1946. That Affirmation
affirmed the principles of international law recognised by the Charter of
the Nuremberg Tribunal and the judgment of the Tribunal and directed the
Committee on the codification of international law to treat as a matter of
primary importance plans for the formulation of the principles recognised in
the Charter of the Nuremberg Tribunal. At least from that date onwards the
concept of personal liability for a crime in international law must have
been part of international law. In the early years state torture was one of
the elements of a war crime. In consequence torture, and various other
crimes against humanity, were linked to war or at least to hostilities of
some kind. But in the course of time this linkage with war fell away and
torture, divorced from war or hostilities, became an international crime on
its own: see Oppenheim's International Law (Jennings and Watts edition) vol.
1, 996; note 6 to Article 18 of the I.L.C. Draft Code of Crimes Against
Peace; Prosecutor v. Furundzija Tribunal for Former Yugoslavia, Case No.
17-95-17/1-T. Ever since 1945, torture on a large scale has featured as one
of the crimes against humanity: see, for example, U.N. General Assembly
Resolutions 3059, 3452 and 3453 passed in 1973 and 1975; Statutes of the
International Criminal Tribunals for former Yugoslavia (Article 5) and
Rwanda (Article 3).
Moreover, the Republic of Chile accepted before your Lordships that the
international law prohibiting torture has the character of jus cogens or a
peremptory norm, i.e. one of those rules of international law which have a
particular status. In Furundzija (supra) at para. 153, the Tribunal said:

 "Because of the importance of the values it protects, [the prohibition of
torture] has evolved into a peremptory norm or jus cogens, that is, a norm
that enjoys a higher rank in the international hierarchy than treaty law and
even 'ordinary' customary rules. The most conspicuous consequence of this
higher rank is that the principle at issue cannot be derogated from by
states through international treaties or local or special customs or even
general customary rules not endowed with the same normative force. . . .
Clearly, the jus cogens nature of the prohibition against torture
articulates the notion that the prohibition has now become one of the most
fundamental standards of the international community. Furthermore, this
prohibition is designed to produce a deterrent effect, in that it signals to
all members of the international community and the individuals over whom
they wield authority that the prohibition of torture is an absolute value
from which nobody must deviate." (See also the cases cited in Note 170 to
the Furundzija case.)
The jus cogens nature of the international crime of torture justifies states
in taking universal jurisdiction over torture wherever committed.
International law provides that offences jus cogens may be punished by any
state because the offenders are "common enemies of all mankind and all
nations have an equal interest in their apprehension and prosecution":
Demjanjuk v. Petrovsky (1985) 603 F. Supp. 1468; 776 F. 2d. 571.
It was suggested by Miss Montgomery, for Senator Pinochet, that although
torture was contrary to international law it was not strictly an
international crime in the highest sense. In the light of the authorities to
which I have referred (and there are many others) I have no doubt that long
before the Torture Convention of 1984 state torture was an international
crime in the highest sense.

But there was no tribunal or court to punish international crimes of 
torture. Local courts could take jurisdiction: see Demjanjuk (supra);
Attorney-General of Israel v. Eichmann (1962) 36 I.L.R.S. But the objective
was to ensure a general jurisdiction so that the torturer was not safe
wherever he went. For example, in this case it is alleged that during the
Pinochet regime torture was an official, although unacknowledged, weapon of
government and that, when the regime was about to end, it passed legislation
designed to afford an amnesty to those who had engaged in institutionalised
torture. If these allegations are true, the fact that the local court had
jurisdiction to deal with the international crime of torture was nothing to
the point so long as the totalitarian regime remained in power: a
totalitarian regime will not permit adjudication by its own courts on its
own shortcomings. Hence the demand for some international machinery to
repress state torture which is not dependent upon the local courts where the
torture was committed. In the event, over 110 states (including Chile, Spain
and the United Kingdom) became state parties to the Torture Convention. But
it is far from clear that none of them practised state torture. What was
needed therefore was an international system which could punish those who
were guilty of torture and which did not permit the evasion of punishment by
the torturer moving from one state to another. The Torture Convention was
agreed not in order to create an international crime which had not
previously existed but to provide an international system under which the
international criminal--the torturer -could find no safe haven. Burgers and
Danelius (respectively the chairman of the United Nations Working Group on
the 1984 Torture Convention and the draftsmen of its first draft) say, at p.
131, that it was "an essential purpose [of the Convention] to ensure that a
torturer does not escape the consequences of his act by going to another
country."
The Torture Convention
Article 1 of the Convention defines torture as the intentional infliction of
severe pain and of suffering with a view to achieving a wide range of
purposes "when such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiesence of a public official or other person
acting in an official capacity." Article 2(1) requires each state party to
prohibit torture on territory within its own jurisdiction and Article 4
requires each state party to ensure that "all" acts of torture are offences
under its criminal law. Article 2(3) outlaws any defence of superior orders.
Under Article 5(1) each state party has to establish its jurisdiction over
torture (a) when committed within territory under its jurisdiction (b) when
the alleged offender is a national of that state, and (c) in certain
circumstances, when the victim is a national of that state. Under Article
5(2) a state party has to take jurisdiction over any alleged offender who is
found within its territory. Article 6 contains provisions for a state in
whose territory an alleged torturer is found to detain him, inquire into the
position and notify the states referred to in Article 5(1) and to indicate
whether it intends to exercise jurisdiction. Under Article 7 the state in
whose territory the alleged torturer is found shall, if he is not extradited
to any of the states mentioned in Article 5(1), submit him to its
authorities for the purpose of prosecution. Under Article 8(1) torture is to
be treated as an extraditable offence and under Article 8(4) torture shall,
for the purposes of extradition, be treated as having been committed not
only in the place where it occurred but also in the state mentioned in
Article 5(1).
Who is an "official" for the purposes of the Torture Convention?
The first question on the Convention is to decide whether acts done by a
head of state are done by "a public official or a person acting in an
official capacity" within the meaning of Article 1. The same question arises
under section 134 of the Criminal Justice Act 1988. The answer to both
questions must be the same. In his judgment at the first hearing (at pp.
1476G-1477E) Lord Slynn held that a head of state was neither a public
official nor a person acting in an official capacity within the meaning of
Article 1: he pointed out that there are a number of international
conventions (for example the Yugoslav War Crimes Statute and the Rwanda War
Crimes Statute) which refer specifically to heads of state when they intend
to render them liable. Lord Lloyd apparently did not agree with Lord Slynn
on this point since he thought that a head of state who was a torturer could
be prosecuted in his own country, a view which could not be correct unless
such head of state had conducted himself as a public official or in an
official capacity.
It became clear during the argument that both the Republic of Chile and
Senator Pinochet accepted that the acts alleged against Senator Pinochet, if
proved, were acts done by a public official or person acting in an official
capacity within the meaning of Article 1. In my judgment these concessions
were correctly made. Unless a head of state authorising or promoting torture
is an official or acting in an official capacity within Article 1, then he
would not be guilty of the international crime of torture even within his
own state. That plainly cannot have been the intention. In my judgment it
would run completely contrary to the intention of the Convention if there
was anybody who could be exempt from guilt. The crucial question is not
whether Senator Pinochet falls within the definition in Article 1: he
plainly does. The question is whether, even so, he is procedurally immune
from process. To my mind the fact that a head of state can be guilty of the
crime casts little, if any, light on the question whether he is immune from
prosecution for that crime in a foreign state.
Universal jurisdiction
There was considerable argument before your Lordships concerning the extent
of the jurisdiction to prosecute torturers conferred on states other than
those mentioned in Article 5(1). I do not find it necessary to seek an
answer to all the points raised. It is enough that it is clear that in all
circumstances, if the Article 5(1) states do not choose to seek extradition
or to prosecute the offender, other states must do so. The purpose of the
Convention was to introduce the principle aut dedere aut punire--either you
extradite or you punish: Burgers and Danelius p. 131. Throughout the
negotiation of the Convention certain countries wished to make the exercise
of jurisdiction under Article 5(2) dependent upon the state assuming
jurisdiction having refused extradition to an Article 5(1) state. However,
at a session in 1984 all objections to the principle of aut dedere aut
punire were withdrawn. "The inclusion of universal jurisdiction in the draft
Convention was no longer opposed by any delegation": Working Group on the
Draft Convention U.N. Doc. E/CN. 4/1984/72, para. 26. If there is no
prosecution by, or extradition to, an Article 5(1) state, the state where
the alleged offender is found (which will have already taken him into
custody under Article 6) must exercise the jurisdiction under Article 5(2)
by prosecuting him under Article 7(1).
I gather the following important points from the Torture Convention:
1) Torture within the meaning of the Convention can only be committed by "a
public official or other person acting in an official capacity", but these
words include a head of state. A single act of official torture is "torture"
within the Convention;
2) Superior orders provide no defence;
3) If the states with the most obvious jurisdiction (the Article 5(1)
states) do not seek to extradite, the state where the alleged torturer is
found must prosecute or, apparently, extradite to another country, i.e.
there is universal jurisdiction.
4) There is no express provision dealing with state immunity of heads of
state, ambassadors or other officials.
5) Since Chile, Spain and the United Kingdom are all parties to the
Convention, they are bound under treaty by its provisions whether or not
such provisions would apply in the absence of treaty obligation. Chile
ratified the Convention with effect from 30 October 1988 and the United
Kingdom with effect from 8 December 1988.
State immunity
This is the point around which most of the argument turned. It is of
considerable general importance internationally since, if Senator Pinochet
is not entitled to immunity in relation to the acts of torture alleged to
have occurred after 29 September 1988, it will be the first time so far as
counsel have discovered when a local domestic court has refused to afford
immunity to a head of state or former head of state on the grounds that
there can be no immunity against prosecution for certain international
crimes.
Given the importance of the point, it is surprising how narrow is the area
of dispute. There is general agreement between the parties as to the rules
of statutory immunity and the rationale which underlies them. The issue is
whether international law grants state immunity in relation to the
international crime of torture and, if so, whether the Republic of Chile is
entitled to claim such immunity even though Chile, Spain and the United
Kingdom are all parties to the Torture Convention and therefore
"contractually" bound to give effect to its provisions from 8 December 1988
at the latest.
It is a basic principle of international law that one sovereign state (the
forum state) does not adjudicate on the conduct of a foreign state. The
foreign state is entitled to procedural immunity from the processes of the
forum state. This immunity extends to both criminal and civil liability.
State immunity probably grew from the historical immunity of the person of
the monarch. In any event, such personal immunity of the head of state
persists to the present day: the head of state is entitled to the same
immunity as the state itself. The diplomatic representative of the foreign
state in the forum state is also afforded the same immunity in recognition
of the dignity of the state which he represents. This immunity enjoyed by a
head of state in power and an ambassador in post is a complete immunity
attaching to the person of the head of state or ambassador and rendering him
immune from all actions or prosecutions whether or not they relate to
matters done for the benefit of the state. Such immunity is said to be
granted ratione personae.
What then when the ambassador leaves his post or the head of state is
deposed? The position of the ambassador is covered by the Vienna Convention
on Diplomatic Relations, 1961. After providing for immunity from arrest
(Article 29) and from criminal and civil jurisdiction (Article 31), Article
39(1) provides that the ambassador's privileges shall be enjoyed from the
moment he takes up post; and subsection (2) provides:

 "(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 continuing partial immunity of the ambassador after leaving post is of a
different kind from that enjoyed ratione personae while he was in post.
Since he is no longer the representative of the foreign state he merits no
particular privileges or immunities as a person. However in order to
preserve the integrity of the activities of the foreign state during the
period when he was ambassador, it is necessary to provide that immunity is
afforded to his official acts during his tenure in post. If this were not
done the sovereign immunity of the state could be evaded by calling in
question acts done during the previous ambassador's time. Accordingly under
Article 39(2) the ambassador, like any other official of the state, enjoys
immunity in relation to his official acts done while he was an official.
This limited immunity, ratione materiae, is to be contrasted with the former
immunity ratione personae which gave complete immunity to all activities
whether public or private.
In my judgment at common law a former head of state enjoys similar
immunities, ratione materiae, once he ceases to be head of state. He too
loses immunity ratione personae on ceasing to be head of state: see Watts
The Legal Position in International Law of Heads of States, Heads of
Government and Foreign Ministers p. 88 and the cases there cited. He can be
sued on his private obligations: Ex-King Farouk of Egypt v. Christian Dior
(1957) 24 I.L.R. 228; Jimenez v. Aristeguieta (1962) 311 F. 2d 547. As ex
head of state he cannot be sued in respect of acts performed whilst head of
state in his public capacity: Hatch v. Baez [1876] 7 Hun. 596. Thus, at
common law, the position of the former ambassador and the former head of
state appears to be much the same: both enjoy immunity for acts done in
performance of their respective functions whilst in office.
I have belaboured this point because there is a strange feature of the
United Kingdom law which I must mention shortly. The State Immunity Act 1978
modifies the traditional complete immunity normally afforded by the common
law in claims for damages against foreign states. Such modifications are
contained in Part I of the Act. Section 16(1) provides that nothing in Part
I of the Act is to apply to criminal proceedings. Therefore Part I has no
direct application to the present case. However, Part III of the Act
contains section 20(1) which provides:

 "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) . . .
 (c) . . .
 as it applies to a head of a diplomatic mission . . ."

The correct way in which to apply Article 39(2) of the Vienna Convention to
a former head of state is baffling. To what "functions" is one to have
regard? When do they cease since the former head of state almost certainly
never arrives in this country let alone leaves it? Is a former head of
state's immunity limited to the exercise of the functions of a member of the
mission, or is that again something which is subject to "necessary
modification"? It is hard to resist the suspicion that something has gone
wrong. A search was done on the parliamentary history of the section. From
this it emerged that the original section 20(1)(a) read "a sovereign or
other head of state who is in the United Kingdom at the invitation or with
the consent of the Government of the United Kingdom." On that basis the
section would have been intelligible. However it was changed by a Government
amendment the mover of which said that the clause as introduced "leaves an
unsatisfactory doubt about the position of heads of state who are not in the
United Kingdom"; he said that the amendment was to ensure that heads of
state would be treated like heads of diplomatic missions "irrespective of
presence in the United Kingdom." The parliamentary history, therefore,
discloses no clear indication of what was intended. However, in my judgment
it does not matter unduly since Parliament cannot have intended to give
heads of state and former heads of state greater rights than they already
enjoyed under international law. Accordingly, "the necessary modifications"
which need to be made will produce the result that a former head of state
has immunity in relation to acts done as part of his official functions when
head of state. Accordingly, in my judgment, Senator Pinochet as former head
of state enjoys immunity ratione materiae in relation to acts done by him as
head of state as part of his official functions as head of state.
The question then which has to be answered is whether the alleged
organisation of state torture by Senator Pinochet (if proved) would
constitute an act committed by Senator Pinochet as part of his official
functions as head of state. It is not enough to say that it cannot be part
of the functions of the head of state to commit a crime. Actions which are
criminal under the local law can still have been done officially and
therefore give rise to immunity ratione materiae. The case needs to be
analysed more closely.
Can it be said that the commission of a crime which is an international
crime against humanity and jus cogens is an act done in an official capacity
on behalf of the state? I believe there to be strong ground for saying that
the implementation of torture as defined by the Torture Convention cannot be
a state function. This is the view taken by Sir Arthur Watts (supra) who
said (at p. 82):

 "While generally international law . . . does not directly involve
obligations on individuals personally, that is not always appropriate,
particularly for acts of such seriousness that they constitute not merely
international wrongs (in the broad sense of a civil wrong) but rather
international crimes which offend against the public order of the
international community. States are artificial legal persons: they can only
act through the institutions and agencies of the state, which means,
ultimately through its officials and other individuals acting on behalf of
the state. For international conduct which is so serious as to be tainted
with criminality to be regarded as attributable only to the impersonal state
and not to the individuals who ordered or perpetrated it is both unrealistic
and offensive to common notions of justice.

 "The idea that individuals who commit international crimes are
internationally accountable for them has now become an accepted part of
international law. Problems in this area--such as the non-existence of any
standing international tribunal to have jurisdiction over such crimes, and
the lack of agreement as to what acts are internationally criminal for this
purpose--have not affected the general acceptance of the principle of
individual responsibility for international criminal conduct."
Later, at p. 84, he said:

 "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."
It can be objected that Sir Arthur was looking at those cases where the
international community has established an international tribunal in
relation to which the regulating document expressly makes the head of state
subject to the tribunal's jurisdiction: see, for example, the Nuremberg
Charter Article 7; the Statute of the International Tribunal for former
Yugoslavia; the Statute of the International Tribunal for Rwanda and the
Statute of the International Criminal Court. It is true that in these cases
it is expressly said that the head of state or former head of state is
subject to the court's jurisdiction. But those are cases in which a new
court with no existing jurisdiction is being established. The jurisdiction
being established by the Torture Convention and the Hostages Convention is
one where existing domestic courts of all the countries are being authorised
and required to take jurisdiction internationally. The question is whether,
in this new type of jurisdiction, the only possible view is that those made
subject to the jurisdiction of each of the state courts of the world in
relation to torture are not entitled to claim immunity.
I have doubts whether, before the coming into force of the Torture
Convention, the existence of the international crime of torture as jus
cogens was enough to justify the conclusion that the organisation of state
torture could not rank for immunity purposes as performance of an official
function. At that stage there was no international tribunal to punish
torture and no general jurisdiction to permit or require its punishment in
domestic courts. Not until there was some form of universal jurisdiction for
the punishment of the crime of torture could it really be talked about as a
fully constituted international crime. But in my judgment the Torture
Convention did provide what was missing: a worldwide universal jurisdiction.
Further, it required all member states to ban and outlaw torture: Article 2.
How can it be for international law purposes an official function to do
something which international law itself prohibits and criminalises?
Thirdly, an essential feature of the international crime of torture is that
it must be committed "by or with the acquiesence of a public official or
other person acting in an official capacity." As a result all defendants in
torture cases will be state officials. Yet, if the former head of state has
immunity, the man most responsible will escape liability while his inferiors
(the chiefs of police, junior army officers) who carried out his orders will
be liable. I find it impossible to accept that this was the intention.
Finally, and to my mind decisively, if the implementation of a torture
regime is a public function giving rise to immunity ratione materiae, this
produces bizarre results. Immunity ratione materiae applies not only to
ex-heads of state and ex-ambassadors but to all state officials who have
been involved in carrying out the functions of the state. Such immunity is
necessary in order to prevent state immunity being circumvented by
prosecuting or suing the official who, for example, actually carried out the
torture when a claim against the head of state would be precluded by the
doctrine of immunity. If that applied to the present case, and if the
implementation of the torture regime is to be treated as official business
sufficient to found an immunity for the former head of state, it must also
be official business sufficient to justify immunity for his inferiors who
actually did the torturing. Under the Convention the international crime of
torture can only be committed by an official or someone in an official
capacity. They would all be entitled to immunity. It would follow that there
can be no case outside Chile in which a successful prosecution for torture
can be brought unless the State of Chile is prepared to waive its right to
its officials immunity. Therefore the whole elaborate structure of universal
jurisdiction over torture committed by officials is rendered abortive and
one of the main objectives of the Torture Convention--to provide a system
under which there is no safe haven for torturers--will have been frustrated.
In my judgment all these factors together demonstrate that the notion of
continued immunity for ex-heads of state is inconsistent with the provisions
of the Torture Convention.
For these reasons in my judgment if, as alleged, Senator Pinochet organised
and authorised torture after 8 December 1988, he was not acting in any
capacity which gives rise to immunity ratione materiae because such actions
were contrary to international law, Chile had agreed to outlaw such conduct
and Chile had agreed with the other parties to the Torture Convention that
all signatory states should have jurisdiction to try official torture (as
defined in the Convention) even if such torture were committed in Chile.
As to the charges of murder and conspiracy to murder, no one has advanced
any reason why the ordinary rules of immunity should not apply and Senator
Pinochet is entitled to such immunity.
For these reasons, I would allow the appeal so as to permit the extradition
proceedings to proceed on the allegation that torture in pursuance of a
conspiracy to commit 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.
In issuing to the magistrate an authority to proceed under section 7 of the
Extradition Act 1989, the Secretary of State proceeded on the basis that the
whole range of torture charges and murder charges against Senator Pinochet
would be the subject matter of the extradition proceedings. Your Lordships'
decision excluding from consideration a very large number of those charges
constitutes a substantial change in the circumstances. This will obviously
require the Secretary of State to reconsider his decision under section 7 in
the light of the changed circumstances.

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  Lord Browne-Wilkinson 
  Lord Goff of Chieveley 
  Lord Hope of Craighead
  Lord Hutton
  Lord Saville of Newdigate 
  Lord Millett  
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