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 GOFF OF CHIEVELEY
My Lords,
I. Introduction
The background to the present appeal is set out, with economy and lucidity,
in the opinion of my noble and learned friend Lord Browne-Wilkinson, which I
have had the opportunity of reading in draft. I gratefully adopt his account
and, to keep my own opinion as short as reasonably possible, I do not
propose to repeat it. The central question in the appeal is whether Senator
Pinochet is entitled as former head of state to the benefit of state
immunity ratione materiae in respect of the charges advanced against him, as
set out in the schedule of charges prepared by Mr. Alun Jones Q.C. on behalf
of the Government of Spain.
II. The principal issue argued on the appeal
Before the Divisional Court, and again before the first Appellate Committee,
it was argued on behalf of the Government of Spain that Senator Pinochet was
not entitled to the benefit of state immunity basically on two grounds, viz.
first, that the crimes alleged against Senator Pinochet are so horrific that
an exception must be made to the international law principle of state
immunity; and second, that the crimes with which he is charged are crimes
against international law, in respect of which state immunity is not
available. Both arguments were rejected by the Divisional Court, but a
majority of the first Appellate Committee accepted the second argument. The
leading opinion was delivered by Lord Nicholls of Birkenhead, whose
reasoning was of great simplicity. He said (see [1998] 3 W.L.R. 1456 at p.
1500C-F):
"In my view, article 39(2) of the Vienna Convention, as modified and
applied to former heads of state by section 20 of the Act of 1978, is apt to
confer immunity in respect 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."
Lord Hoffmann agreed, and Lord Steyn delivered a concurring opinion to the
same effect.
Lord Slynn of Hadley and Lord Lloyd of Berwick, however, delivered
substantial dissenting opinions. In particular, Lord Slynn (see [1998] 3
W.L.R. 1456 at pp. 1471F-1475G) considered in detail "the developments in
international law relating to what are called international crimes." On the
basis of the material so reviewed by him, he concluded (at p. 1473C):
"It does not seem to me that it has been shown that there is any state
practice or general consensus let alone a widely supported convention that
all crimes against international law should be justiciable in national
courts on the basis of the universality of jurisdiction. Nor is there any
jus cogens in respect of such breaches of international law which requires
that a claim of state or head of state immunity, itself a well-established
principle of international law, should be overridden."
He went on to consider whether international law now recognises that some
crimes, and in particular crimes against humanity, are outwith the
protection of head of state immunity. He referred to the relevant material,
and observed at p. 1474H:
". . . except in regard to crimes in particular situations before
international tribunals these measures did not in general deal with the
question as to whether otherwise existing immunities were taken away. Nor
did they always specifically recognise the jurisdiction of, or confer
jurisdiction on, national courts to try such crimes."
He then proceeded to examine the Torture Convention of 1984, the Genocide
Convention of 1948 and the Taking of Hostages Convention of 1983, and
concluded that none of them had removed the long established immunity of
former heads of state.
I have no doubt that, in order to consider the validity of the argument
advanced on behalf of the Government of Spain on this point, it was
necessary to carry out the exercise so performed by Lord Slynn; and I am
therefore unable, with all respect, to accept the simple approach of the
majority of the first Appellate Committee. Furthermore, I wish to record my
respectful agreement with the analysis, and conclusions, of Lord Slynn set
out in the passages from his opinion to which I have referred. I intend no
disrespect to the detailed arguments advanced before your Lordships on
behalf of the appellants in this matter, when I say that in my opinion they
did not succeed in shaking the reasoning, or conclusions, of Lord Slynn
which I have set out above. However, having regard to (1) the extraordinary
impact on this case of the double criminality rule, to which I will refer in
a moment, and (2) the fact that a majority of your Lordships have formed the
view that, in respect of the very few charges (of torture or conspiracy to
torture) which survive the impact of the double criminality rule, the effect
of the Torture Convention is that in any event Senator Pinochet is not
entitled to the benefit of state immunity, the present issue has ceased to
have any direct bearing on the outcome of the case. In these circumstances,
I do not consider it necessary or appropriate to burden this opinion with a
detailed consideration of the arguments addressed to the Appellate Committee
on this issue. However, I shall return to the point when I come to consider
the topic of state immunity later in this opinion.
III The double criminality rule
During the course of the hearing before your Lordships, two new issues
emerged or acquired an importance which they had not previously enjoyed. The
first of these is the issue of double criminality, to which I now turn.
At the hearing before your Lordships Mr. Alun Jones Q.C., for the
appellants, sought to extend backwards the period during which the crimes
charged were alleged to have been committed, with the effect that some of
those crimes could be said to have taken place before the coup following
which Senator Pinochet came into power. The purpose was obviously to enable
the appellants to assert that, in respect of these crimes, no immunity as
former head of state was available to him. As a result Miss Clare Montgomery
Q.C., for Senator Pinochet, revived the submission that certain of the
charges related to crimes which were not extradition crimes because they
were not, at the time they were alleged to have been committed, criminal
under the law of this country, thus offending against the double criminality
rule. Mr. Alun Jones Q.C. replied to this argument but, for the reasons
given by my noble and learned friend Lord Browne-Wilkinson, with which I am
respectfully in complete agreement, I too am satisfied that Miss
Montgomery's submission was well-founded.
The appellants did not, however, analyse the consequences of this argument,
if successful, in order to identify the charges against Senator Pinochet
which would survive the application of the double criminality rule. That
substantial task has, however, been undertaken by my noble and learned
friend, Lord Hope of Craighead, to whom your Lordships owe a debt of
gratitude. His analysis I respectfully accept. As he truly says, the impact
upon the present case is profound. The great mass of the offences with which
Senator Pinochet is charged must be excluded, as must also be the charge of
hostage-taking which does not disclose an offence under the Taking of
Hostages Act 1982. The principal charges which survive are those which
relate to acts of torture alleged to have been committed, or conspiracies to
torture which are alleged to have been active, after 29 September 1988, the
date on which section 134 of the Criminal Justice Act 1988 (which gave
effect to the Torture Convention in this country) came into effect. These
are: charge 30, which relates to a single act of torture alleged to have
been committed on 24 June 1989; and charges 2 and 4, which allege
conspiracies to torture between 1 August 1973 and 1 January 1972
respectively, and 1 January 1990, in so far as they relate to the relatively
brief period between 29 September 1988 and 1 January 1990. In addition,
however, the charge of conspiracy to commit murder in Spain (charge 9), and
such conspiracies to commit murder in Spain as can be shown to form part of
the allegations in charge 4, also survive.
IV. State immunity
Like my noble and learned friend Lord Browne-Wilkinson, I regard the
principles of state immunity applicable in the case of heads of state and
former heads of state as being relatively non-controversial, though the
legislation on which they are now based, the State Immunity Act 1978, is in
a strange form which can only be explained by the legislative history of the
Act.
There can be no doubt, in my opinion, that the Act is intended to provide
the sole source of English law on this topic. This is because the long title
to the Act provides (inter alia) that the Act is "to make new provision with
regard to the immunities and privileges of heads of state." Since in the
present case we are concerned with immunity from criminal process, we can
ignore Part I (which does not apply to criminal proceedings) and turn
straight to Part III, and in particular to section 20. Section 20(1)
provides as follows:
"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 . . . as it applies to the head of a
diplomatic mission."
The function of the Diplomatic Privileges Act 1964 is to give effect to the
Vienna Convention on Diplomatic Relations in this country, the relevant
articles of which are scheduled to the Act. The problem is, of course, how
to identify the "necessary modifications" when applying the Vienna
Convention to heads of state. The nature of the problem is apparent when we
turn to Article 39 of the Convention, which provides:
"1. Every person entitled to privileges and immunities shall enjoy them
from the moment he enters the territory of the receiving state on proceeding
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."
At first this seems very strange, when applied to a head of state. However,
the scales fall from our eyes when we discover from the legislative history
of the Act that it was originally intended to apply only to a sovereign or
other head of state in this country at the invitation or with the consent of
the government of this country, but was amended to provide also for the
position of a head of state who was not in this country--hence the form of
the long title, which was amended to apply simply to heads of state. We
have, therefore, to be robust in applying the Vienna Convention to heads of
state "with the necessary modifications". In the case of a head of state,
there can be no question of tying Article 39(1) or (2) to the territory of
the receiving state, as was suggested on behalf of the appellants. Once that
is realised, there seems to be no reason why the immunity of a head of state
under the Act should not be construed as far as possible to accord with his
immunity at customary international law, which provides the background
against which this statute is set: see Alcom Ltd. v. Republic of Colombia
[1984] 1 A.C. 580, 597G, per Lord Diplock. The effect is that a head of
state will, under the statute as at international law, enjoy state immunity
ratione personae so long as he is in office, and after he ceases to hold
office will enjoy the concomitant immunity ratione materiae "in respect of
acts performed [by him] in the exercise of his functions [as head of
state]", the critical question being "whether the conduct was engaged in
under colour of or in ostensible exercise of the head of state's public
authority" (see The Legal Position in International Law of Heads of States,
Heads of Governments and Foreign Ministers by Sir Arthur Watts, Recueil des
Cours, vol. 247 (1994-III), at p. 56). In this context, the contrast is
drawn between governmental acts, which are functions of the head of state,
and private acts, which are not.
There can be no doubt that the immunity of a head of state, whether ratione
personae or ratione materiae, applies to both civil and criminal
proceedings. This is because the immunity applies to any form of legal
process. The principle of state immunity is expressed in the Latin maxim par
in parem non habet imperium, the effect of which is that one sovereign state
does not adjudicate on the conduct of another. This principle applies as
between states, and the head of a state is entitled to the same immunity as
the state itself, as are the diplomatic representatives of the state. That
the principle applies in criminal proceedings is reflected in the Act of
1978, in that there is no equivalent provision in Part III of the Act to
section 16(4) which provides that Part I does not apply to criminal
proceedings.
However, a question arises whether any limit is placed on the immunity in
respect of criminal offences. Obviously the mere fact that the conduct is
criminal does not of itself exclude the immunity, otherwise there would be
little point in the immunity from criminal process; and this is so even
where the crime is of a serious character. It follows, in my opinion, that
the mere fact that the crime in question is torture does not exclude state
immunity. It has however been stated by Sir Arthur Watts (op. cit. at pp.
81-84) that a head of state may be personally responsible:
"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."
He then referred to a number of instruments, including the Charter of the
Nuremberg Tribunal (1946), the Charter of the Tokyo Tribunal (1948), the
International Law Commission's Draft Code of Crimes Against the Peace and
Security of Mankind (provisionally adopted in 1988), and the Statute of the
War Crimes Tribunal for former Yugoslavia (1993), all of which expressly
provide for the responsibility of heads of state, apart from the Charter of
the Tokyo Tribunal which contains a similar provision regarding the official
position of the accused. He concluded, at p. 84, that:
"It can no longer be doubted that as a matter of general customary
international law a head of state will personally be liable to be called to
account if there is sufficient evidence that he authorised or perpetrated
such serious international crimes."
So far as torture is concerned, however, there are two points to be made.
The first is that it is evident from this passage that Sir Arthur is
referring not just to a specific crime as such, but to a crime which offends
against the public order of the international community, for which a head of
state may be internationally (his emphasis) accountable. The instruments
cited by him show that he is concerned here with crimes against peace, war
crimes and crimes against humanity. Originally these were limited to crimes
committed in the context of armed conflict, as in the case of the Nuremberg
and Tokyo Charters, and still in the case of the Yugoslavia Statute, though
there it is provided that the conflict can be international or internal in
character. Subsequently, the context has been widened to include (inter
alia) torture "when committed as part of a widespread or systematic attack
against a civilian population" on specified grounds. A provision to this
effect appeared in the International Law Commission's Draft Code of Crimes
of 1996 (which was, I understand, provisionally adopted in 1988), and also
appeared in the Statute of the International Tribunal for Rwanda (1994), and
in the Rome Statute of the International Court (adopted in 1998); and see
also the view expressed obiter by the U.S. Court of Appeals in Siderman de
Blake v. Republic of Argentina (1992) 965 F. 2d 699 at p. 716. I should add
that these developments were foreshadowed in the International Law
Commission's Draft Code of Crimes of 1954; but this was not adopted, and
there followed a long gap of about 35 years before the developments in the
1990s to which I have referred. It follows that these provisions are not
capable of evidencing any settled practice in respect of torture outside the
context of armed conflict until well after 1989 which is the latest date
with which we are concerned in the present case. The second point is that
these instruments are all concerned with international responsibility before
international tribunals, and not with the exclusion of state immunity in
criminal proceedings before national courts. This supports the conclusion of
Lord Slynn ( [1998] 3 W.L.R. 1456 at p. 1474H) that "except in regard to
crimes in particular situations before international tribunals these
measures did not in general deal with the question whether otherwise
existing immunities were taken away", with which I have already expressed my
respectful agreement.
It follows that, if state immunity in respect of crimes of torture has been
excluded at all in the present case, this can only have been done by the
Torture Convention itself.
V. Torture Convention
I turn now to the Torture Convention of 1984, which lies at the heart of the
present case. This is concerned with the jurisdiction of national courts,
but its "essential purpose" is to ensure that a torturer does not escape the
consequences of his act by going to another country: see the Handbook on the
Convention by Burgers (the Chairman-Rapporteur of the Convention) and
Danelius at p. 131. The Articles of the Convention proceed in a logical
order. Article 1 contains a very broad definition of torture. For present
purposes, it is important that torture has to be "inflicted by or at the
instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity." Article 2 imposes an
obligation on each state party to take effective measures to prevent acts of
torture in any territory under its jurisdiction. Article 3 precludes
refoulement of persons to another state where there are substantial grounds
for believing that he would be in danger of being subjected to torture.
Article 4 provides for the criminalisation of torture by each state party.
Article 5 is concerned with jurisdiction. Each state party is required to
establish its jurisdiction over the offences referred to in Article 4 in the
following cases:
"(a) when the offences are committed in any territory under its
jurisdiction . . .;
(b) when the alleged offender is a national of that state;
(c) when the victim is a national of that state if that state considers it
appropriate"
and also "over such offences in cases where the alleged offender is present
in any territory under its jurisdiction and it does not extradite him. . .
."
Article 7 is concerned with the exercise of jurisdiction. Article 7(1)
provides:
"The state party in territory under whose jurisdiction a person alleged to
have committed any offence referred to in Article 4 is found, shall in the
cases contemplated in Article 5, if it does not extradite him, submit the
case to its competent authorities for the purpose of prosecution."
This provision reflects the principle aut dedere aut punire, designed to
ensure that torturers do not escape by going to another country.
I wish at this stage to consider briefly the question whether a head of
state, if not a public official, is at least a "person acting in a public
capacity" within Article 1(1) of the Torture Convention. It was my first
reaction that he is not, on the ground that no one would ordinarily describe
a head of state such as a monarch or the president of a republic as a
"public official", and the subsidiary words "other person acting in a public
capacity" appeared to be intended to catch a person who, while not a public
official, has fulfilled the role of a public official, for example, on a
temporary or ad hoc basis. Miss Montgomery, for Senator Pinochet, submitted
that the words were not apt to include a head of state relying in particular
on the fact that in a number of earlier conventions heads of state are
expressly mentioned in this context in addition to responsible government
officials. However, Dr. Collins for the Republic of Chile conceded that, in
the Torture Convention, heads of state must be regarded as falling within
the category of "other person acting in a public capacity"; and in these
circumstances I am content to proceed on that basis. The effect of Dr.
Collins' concession is that a head of state could be held responsible for
torture committed during his term of office, although (as Dr. Collins
submitted) the state of which he was head would be able to invoke the
principle of state immunity, ratione personae or materiae, in proceedings
brought against him in another national jurisdiction if it thought right to
do so. Accordingly, on the argument now under consideration, the crucial
question relates to the availability of state immunity.
It is to be observed that no mention is made of state immunity in the
Convention. Had it been intended to exclude state immunity, it is reasonable
to assume that this would have been the subject either of a separate
article, or of a separate paragraph in Article 7, introduced to provide for
that particular matter. This would have been consistent with the logical
framework of the Convention, under which separate provision is made for each
topic, introduced in logical order.
VI. The issue whether immunity ratione materiae has been excluded under the
Torture Convention
(a) The argument
I now come to the second of the two issues which were raised during the
hearing of the appeal, viz. whether the Torture Convention has the effect
that state parties to the Convention have agreed to exclude reliance on
state immunity ratione materiae in relation to proceedings brought against
their public officials, or other persons acting in an official capacity, in
respect of torture contrary to the Convention. In broad terms I understand
the argument to be that, since torture contrary to the Convention can only
be committed by a public official or other person acting in an official
capacity, and since it is in respect of the acts of these very persons that
states can assert state immunity ratione materiae, it would be inconsistent
with the obligations of state parties under the Convention for them to be
able to invoke state immunity ratione materiae in cases of torture contrary
to the Convention. In the case of heads of state this objective could be
achieved on the basis that torture contrary to the Convention would not be
regarded as falling within the functions of a head of state while in office,
so that although he would be protected by immunity ratione personae while in
office as head of state, no immunity ratione materiae would protect him in
respect of allegations of such torture after he ceased to hold office. There
can, however, be no doubt that, before the Torture Convention, torture by
public officials could be the subject of state immunity. Since therefore
exclusion of immunity is said to result from the Torture Convention and
there is no express term of the Convention to this effect, the argument has,
in my opinion, to be formulated as dependent upon an implied term in the
Convention. It is a matter of comment that, for reasons which will appear in
a moment, the proposed implied term has not been precisely formulated; it
has not therefore been exposed to that valuable discipline which is always
required in the case of terms alleged to be implied in ordinary contracts.
In any event, this is a different argument from that which was advanced to
your Lordships by the appellants and those supporting them, which was that
both torture contrary to the Torture Convention, and hostage-taking contrary
to the Taking of Hostages Convention, constituted crimes under international
law, and that such crimes cannot be part of the functions of a head of state
as a matter of international law.
The argument now under consideration was not advanced before the Divisional
Court; nor can it have been advanced before the first Appellate Committee,
or it would have been considered by both Lord Slynn of Hadley and Lord Lloyd
of Berwick in their dissenting opinions. It was not advanced before your
Lordships by the appellants and those supporting them, either in their
written cases, or in their opening submissions. In fact, it was introduced
into the present case as a result of interventions by members of the
Appellate Committee in the course of the argument. This they were, of
course, fully entitled to do; and subsequently the point was very fairly put
both to Miss Montgomery for Senator Pinochet and to Dr. Collins for the
Government of Chile. It was subsequently adopted by Mr. Lloyd Jones, the
amicus curiae, in his oral submissions to the Committee. The appellants, in
their written submissions in reply, restricted themselves to submitting that
"The conduct alleged in the present case is not conduct which amounts to
official acts performed by the respondent in the exercise of his functions
as head of state . . .": see paragraph 11 of their written submissions. They
did not at that stage go so far as to submit that any torture contrary to
the Torture Convention would not amount to such an official act. However,
when he came to make his final oral submissions on behalf of the appellants,
Professor Greenwood, following the lead of Mr. Lloyd Jones, and perhaps
prompted by observations from the Committee to the effect that this was the
main point in the case, went beyond his clients' written submissions in
reply and submitted that, when an offence of torture is committed by an
official within the meaning of section 134 of the Criminal Justice Act and
Article 1 of the Torture Convention, no immunity ratione materiae can attach
in respect of that act.
It is surprising that an important argument of this character, if valid,
should previously have been overlooked by the fourteen counsel (including
three distinguished Professors of International Law) acting for the
appellants, and for Amnesty International and Human Rights Watch which are
supporting the appellants in this litigation. The concern thereby induced as
to the validity of the argument is reinforced by the fact that it receives
no support from the literature on the subject and, on the material before
your Lordships, appears never to have been advanced before. At all events,
having given the matter the most careful consideration, I am satisfied that
it must be rejected as contrary to principle and authority, and indeed
contrary to common sense.
(b) Waiver of immunity by treaty must be express
On behalf of the Government of Chile Dr. Collins' first submission was that
a state's waiver of its immunity by treaty must always be express. With that
submission, I agree.
I turn first to Oppenheim's International Law. The question of waiver of
state immunity is considered at pp. 351-355 of the 9th edition, from which I
quote the following passage:
"A state, although in principle entitled to immunity, may waive its
immunity. It may do so by expressly submitting to the jurisdiction of the
court before which it is sued, either by express consent given in the
context of a particular dispute which has already arisen, or by consent
given in advance in a contract or an international agreement . . . A state
may also be considered to have waived its immunity by implication, as by
instituting or intervening in proceedings, or taking any steps in the
proceedings relating to the merits of the case . . ."
It is significant that, in this passage, the only examples given of implied
waiver of immunity relate to actual submission by a state to the
jurisdiction of a court or tribunal by instituting or intervening in
proceedings, or by taking a step in proceedings.
A similar approach is to be found in the Report of the International Law
Commission on the Jurisdictional Immunities of States and their Property
reported in 1991 Yb.I.L.C., vol. II, Part 2, in which a fuller exposition of
the subject is to be found. Article 7 of the Commission's Draft Articles on
this subject is entitled Express consent to exercise of jurisdiction.
Article 7(1) provides as follows:
"1. A state cannot invoke immunity from jurisdiction in a proceeding before
a court of another state with regard to a matter or case if it has expressly
consented to the exercise of jurisdiction by the court with regard to the
matter or case:
(a) by international agreement;
(b) in a written contract; or
(c) by a declaration before the court or by a written communication in a
specific proceeding."
I turn to the commentary on Article 7(1), from which I quote paragraph (8)
in full:
"In the circumstances under consideration, that is, in the context of the
state against which legal proceedings have been brought, there appear to be
several recognisable methods of expressing or signifying consent. In this
particular connection, the consent should not be taken for granted, nor
readily implied. Any theory of 'implied consent' as a possible exception to
the general principles of state immunities outlined in this part should be
viewed not as an exception in itself, but rather as an added explanation or
justification for an otherwise valid and generally recognised exception.
There is therefore no room for implying the consent of an unwilling state
which has not expressed its consent in a clear and recognisable manner,
including by the means provided in Article 8 [which is concerned with the
effect of participation in a proceeding before a court]. It remains to be
seen how consent would be given or expressed so as to remove the obligation
of the court of another state to refrain from the exercise of its
jurisdiction against an equally sovereign state."
The two examples then provided of how such consent would be given or
expressed are (i) Consent given in a written contract, or by a declaration
or a written communication in a specific proceeding, and (ii) Consent given
in advance by international agreement. In respect of the latter, reference
is made (in paragraph (10) to such consent being expressed in a provision of
a treaty concluded by states; there is no reference to such consent being
implied.
The general effect of these passages is that, in a treaty concluded between
states, consent by a state party to the exercise of jurisdiction against it
must, as Dr. Collins submitted, be express. In general, moreover, implied
consent to the exercise of such jurisdiction is to be regarded only as an
added explanation or justification for an otherwise valid and recognised
exception, of which the only example given is actual submission to the
jurisdiction of the courts of another state.
The decision of the Supreme Court of the United States in Argentine Republic
v. Amerada Hess Shipping Corporation (1989) 109 S.Ct. 683 is consistent with
the foregoing approach. In an action brought by a shipowner against the
Argentine Republic for the loss of a ship through an attack by aircraft of
the Argentine Air Force, the defendant relied upon state immunity. Among
other arguments the plaintiff suggested that the defendant had waived its
immunity under certain international agreements to which the United States
was party. For this purpose, the plaintiff invoked para. 1605(a)(1) of the
Foreign Sovereign Immunities Act 1976, which specifies, as one of a number
of exceptions to immunity of foreign states, a case in which the foreign
state has waived its immunity either explicitly or by implication. It was
the plaintiff's contention that there was an implicit waiver in the relevant
international agreements. This submission was tersely rejected by Rehnquist
C.J., who delivered the judgment of the court, in the following words, at p.
693:
"Nor do we see how a foreign state can waive its immunity under para.
1605(a)(1) by signing an international agreement that contains no mention of
a waiver of immunity to suit in United States courts . . ."
Once again, the emphasis is on the need for an express waiver of immunity in
an international agreement. This cannot be explained away as due to the
provisions of the United States Act. On the contrary, the Act contemplates
the possibility of waiver by implication; but in the context of a treaty the
Supreme Court was only prepared to contemplate express waiver.
I turn next to the State Immunity Act 1978, the provisions of which are also
consistent with the principles which I have already described. In Part I of
the Act (which does not apply to criminal proceedings--see section 16(4)),
it is provided by section 1(1) that "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." For the present purposes, the two
relevant provisions are section 2, concerned with submission to the
jurisdiction, and section 9, concerned with submissions to arbitration by an
agreement in writing. Section 2(2) recognises that a state may submit to the
jurisdiction by a prior written agreement, which I read as referring to an
express agreement to submit. There is no suggestion in the Act that an
implied agreement to submit would be sufficient, except in so far as an
actual submission to the jurisdiction of a court of this country, may be
regarded as an implied waiver of immunity; but my reading of the Act leads
me to understand that such a submission to the jurisdiction is here regarded
as an express rather than an implied waiver of immunity or agreement to
submit to the jurisdiction. This is consistent with Part III of the Act,
which by section 20 provides that, subject to the provisions of that section
and to any necessary modifications, the Diplomatic Privileges Act 1964 shall
apply to a sovereign or other head of state. Among the Articles of the
Vienna Convention on Diplomatic Relations so rendered applicable by section
2 of the Act of 1964 is Article 32 concerned with waiver of immunity,
paragraph 2 of which provides that such waiver must always be express, which
I read as including an actual submission to the jurisdiction, as well as an
express agreement in advance to submit. Once again, there is no provision
for an implied agreement.
In the light of the foregoing it appears to me to be clear that, in
accordance both with international law, and with the law of this country
which on this point reflects international law, a state's waiver of its
immunity by treaty must, as Dr. Collins submitted, always be express.
Indeed, if this was not so, there could well be international chaos as the
courts of different state parties to a treaty reach different conclusions on
the question whether a waiver of immunity was to be implied.
(c) The functions of public officials and others acting in an official
capacity.
However it is, as I understand it, suggested that this well-established
principle can be circumvented in the present case on the basis that it is
not proposed that state parties to the Torture Convention have agreed to
waive their state immunity in proceedings brought in the states of other
parties in respect of allegations of torture within the Convention. It is
rather that, for the purposes of the Convention, such torture does not form
part of the functions of public officials or others acting in an official
capacity including, in particular, a head of state. Moreover since state
immunity ratione materiae can only be claimed in respect of acts done by an
official in the exercise of his functions as such, it would follow, for
example, that the effect is that a former head of state does not enjoy the
benefit of immunity ratione materiae in respect of such torture after he has
ceased to hold office.
In my opinion, the principle which I have described cannot be circumvented
in this way. I observe first that the meaning of the word "functions" as
used in this context is well established. The functions of, for example, a
head of state are governmental functions, as opposed to private acts; and
the fact that the head of state performs an act, other than a private act,
which is criminal does not deprive it of its governmental character. This is
as true of a serious crime, such as murder or torture, as it is of a lesser
crime. As the Lord Chief Justice said in the Divisional Court:
". . . a former head of state is clearly entitled to immunity in relation
to criminal acts performed in the course of exercising public functions. One
cannot therefore hold that any deviation from good democratic practice is
outside the pale of immunity. If the former sovereign is immune from process
in respect of some crimes, where does one draw the line?"
It was in answer to that question that the appellants advanced the theory
that one draws the line at crimes which may be called "international
crimes". If, however, a limit is to be placed on governmental functions so
as to exclude from them acts of torture within the Torture Convention, this
can only be done by means of an implication arising from the Convention
itself. Moreover, as I understand it, the only purpose of the proposed
implied limitation upon the functions of public officials is to deprive
them, or as in the present case a former head of state, of the benefit of
state immunity; and in my opinion the policy which requires that such a
result can only be achieved in a treaty by express agreement, with the
effect that it cannot be so achieved by implication, renders it equally
unacceptable that it should be achieved indirectly by means of an
implication such as that now proposed.
(d) An implication must in any event be rejected.
In any event, however, even if it were possible for such a result to be
achieved by means of an implied term, there are, in my opinion, strong
reasons why any such implication should be rejected.
I recognise that a term may be implied into a treaty, if the circumstances
are such that "the parties must have intended to contract on the basis of
the inclusion in the treaty of a provision whose effect can be stated with
reasonable precision"; see Oppenheim's International Law, 9th ed., p. 1271,
n.4. It would, however, be wrong to assume that a term may be implied into a
treaty on the same basis as a term may be implied into an ordinary
commercial contract, for example to give the contract business efficacy (as
to which see Treitel on Contract, 9th ed., pp. 185 et seq.). This is because
treaties are different in origin, and serve a different purpose. Treaties
are the fruit of long negotiation, the purpose being to produce a draft
which is acceptable to a number, often a substantial number, of state
parties. The negotiation of a treaty may well take a long time, running into
years. Draft after draft is produced of individual articles, which are
considered in depth by national representatives, and are the subject of
detailed comment and consideration. The agreed terms may well be the fruit
of "horse-trading" in order to achieve general agreement, and proposed
articles may be amended, or even omitted in whole or in part, to accommodate
the wishes or anxieties of some of the negotiating parties. In circumstances
such as these, it is the text of the treaty itself which provides the only
safe guide to its terms, though reference may be made, where appropriate, to
the travaux preparatoires. But implied terms cannot, except in the most
obvious cases, be relied on as binding the state parties who ultimately sign
the treaty, who will in all probability include those who were not involved
in the preliminary negotiations.
In this connection, however, I wish first to observe that the assumption
underlying the present argument, viz. that the continued availability of
state immunity is inconsistent with the obligations of state parties to the
Convention, is in my opinion not justified. I have already summarised the
principal articles of the Convention; and at this stage I need only refer to
Article 7 which requires that a state party under whose jurisdiction a
person alleged to have committed torture is found shall, in the cases
contemplated in Article 5, if it does not extradite him, submit the case to
its competent authorities for the purpose of prosecution. I wish to make
certain observations on these provisions. First of all, in the majority of
cases which may arise under the Convention, no question of state immunity
will arise at all, because the public official concerned is likely to be
present in his own country. Even when such a question does arise, there is
no reason to assume that state immunity will be asserted by the state of
which the alleged torturer is a public official; on the contrary, it is only
in unusual cases, such as the present, that this is likely to be done. In
any event, however, not only is there no mention of state immunity in the
Convention, but in my opinion it is not inconsistent with its express
provisions that, if steps are taken to extradite him or to submit his case
to the authorities for the purpose of prosecution, the appropriate state
should be entitled to assert state immunity. In this connection, I comment
that it is not suggested that it is inconsistent with the Convention that
immunity ratione personae should be asserted; if so, I find it difficult to
see why it should be inconsistent to assert immunity ratione materiae.
The danger of introducing the proposed implied term in the present case is
underlined by the fact that there is, as Dr. Collins stressed to your
Lordships, nothing in the negotiating history of the Torture Convention
which throws any light on the proposed implied term. Certainly the travaux
preparatoires shown to your Lordships reveal no trace of any consideration
being given to waiver of state immunity. They do however show that work on
the draft Convention was on foot as long ago as 1979, five years before the
date of the Convention itself. It is surely most unlikely that during the
years in which the draft was under consideration no thought was given to the
possibility of the state parties to the Convention waiving state immunity.
Furthermore, if agreement had been reached that there should be such a
waiver, express provision would inevitably have been made in the Convention
to that effect. Plainly, however, no such agreement was reached. There may
have been recognition at an early stage that so many states would not be
prepared to waive their immunity that the matter was not worth pursuing; if
so, this could explain why the topic does not surface in the travaux
preparatoires. In this connection it must not be overlooked that there are
many reasons why states, although recognising that in certain circumstances
jurisdiction should be vested in another national court in respect of acts
of torture committed by public officials within their own jurisdiction, may
nevertheless have considered it imperative that they should be able, if
necessary, to assert state immunity. The Torture Convention applies not only
to a series of acts of systematic torture, but to the commission of, even
acquiescence in, a single act of physical or mental torture. Extradition can
nowadays be sought, in some parts of the world, on the basis of a simple
allegation unsupported by prima facie evidence. In certain circumstances
torture may, for compelling political reasons, be the subject of an amnesty,
or some other form of settlement, in the state where it has been, or is
alleged to have been, committed.
Furthermore, if immunity ratione materiae was excluded, former heads of
state and senior public officials would have to think twice about travelling
abroad, for fear of being the subject of unfounded allegations emanating
from states of a different political persuasion. In this connection, it is a
mistake to assume that state parties to the Convention would only wish to
preserve state immunity in cases of torture in order to shield public
officials guilty of torture from prosecution elsewhere in the world. Such an
assumption is based on a misunderstanding of the nature and function of
state immunity, which is a rule of international law restraining one
sovereign state from sitting in judgment on the sovereign behaviour of
another. As Lord Wilbeforce said in I Congreso del Partido [1983] 1 A.C.
244, 272, "The whole purpose of the doctrine of state immunity is to prevent
such issues being canvassed in the courts of one state as to the acts of
another." State immunity ratione materiae operates therefore to protect
former heads of state, and (where immunity is asserted) public officials,
even minor public officials, from legal process in foreign countries in
respect of acts done in the exercise of their functions as such, including
accusation and arrest in respect of alleged crimes. It can therefore be
effective to preclude any such process in respect of alleged crimes,
including allegations which are misguided or even malicious--a matter which
can be of great significance where, for example, a former head of state is
concerned and political passions are aroused. Preservation of state immunity
is therefore a matter of particular importance to powerful countries whose
heads of state perform an executive role, and who may therefore be regarded
as possible targets by governments of states which, for deeply felt
political reasons, deplore their actions while in office. But, to bring the
matter nearer home, we must not overlook the fact that it is not only in the
United States of America that a substantial body of opinion supports the
campaign of the I.R.A. to overthrow the democratic government of Northern
Ireland. It is not beyond the bounds of possibility that a state whose
government is imbued with this opinion might seek to extradite from a third
country, where he or she happens to be, a responsible Minister of the Crown,
or even a more humble public official such as a police inspector, on the
ground that he or she has acquiesced in a single act of physical or mental
torture in Northern Ireland. The well-known case of The Republic of Ireland
v. The United Kingdom (1978) 2 E.H.R.R. 25 provides an indication of
circumstances in which this might come about.
Reasons such as these may well have persuaded possible state parties to the
Torture Convention that it would be unwise to give up the valuable
protection afforded by state immunity. Indeed, it would be strange if state
parties had given up the immunity ratione materiae of a head of state which
is regarded as an essential support for his immunity ratione personae. In
the result, the subject of waiver of state immunity could well not have been
pursued, on the basis that to press for its adoption would only imperil the
very substantial advantages which could be achieved by the Convention even
if no waiver of state immunity was included in it. As I have already
explained, in cases arising under the Convention, state immunity can only be
relevant in a limited number of cases. This is because the offence is
normally committed in the state to which the official belongs. There he is
unprotected by immunity, and under the Convention the state has simply to
submit the case to the competent authorities. In practice state immunity is
relevant in only two cases--where the offender is present in a third state,
or where the offender is present in a state one of whose nationals was the
victim, that state being different from the state where the offence was
committed. A case such as the present must be regarded as most unusual.
Having regard to considerations such as these, not to press for exclusion of
state immunity as a provision of the Convention must have appeared to be a
relatively small price to pay for the major achievement of widespread
agreement among states (your Lordships were informed that 116 states had
signed the Convention) in respect of all the other benefits which the
Convention conferred. After all, even where it was possible for a state to
assert state immunity, in many cases it would not wish to expose itself to
the opprobrium which such a course would provoke; and in such cases
considerable diplomatic or moral pressure could be exerted upon it to
desist.
I wish to stress the implications of the fact that there is no trace in the
travaux preparatoires of any intention in the Convention to exclude state
immunity. It must follow, if the present argument is correct, first that it
was so obvious that it was the intention that immunity should be excluded
that a term could be implied in the Convention to that effect, and second
that, despite that fact, during the negotiating process none of the states
involved thought it right to raise the matter for discussion. This is
remarkable. Moreover, it would have been the duty of the responsible senior
civil servants in the various states concerned to draw the attention of
their Governments to the consequences of this obvious implication, so that
they could decide whether to sign a Convention in this form. Yet nothing
appears to have happened. There is no evidence of any question being raised,
still less of any protest being made, by a single state party. The
conclusion follows either that every state party was content without
question that state immunity should be excluded sub silentio, or that the
responsible civil servants in all these states, including the United
Kingdom, failed in their duty to draw this very important matter to the
attention of their Governments. It is difficult to imagine that either of
these propositions can be correct. In particular it cannot, I suspect, have
crossed the minds of the responsible civil servants that state immunity was
excluded sub silentio in the Convention.
The cumulative effect of all these considerations is, in my opinion, to
demonstrate the grave difficulty of recognising an implied term, whatever
its form, on the basis that it must have been agreed by all the state
parties to the Convention that state immunity should be excluded. In this
connection it is particularly striking that, in the Handbook on the Torture
Convention by Burgers and Danelius, it is recognised that the obligation of
a state party, under Article 5(1) of the Convention, to establish
jurisdiction over offences of torture committed within its territory, is
subject to an exception in the case of those benefiting from special
immunities, including foreign diplomats. It is true that this statement
could in theory be read as limited to immunity ratione personae; but in the
absence of explanation it should surely be read in the ordinary way as
applicable both to immunity ratione personae and its concomitant immunity
ratione materiae, and in any event the total silence in this passage on the
subject of waiver makes it highly improbable that there was any intention
that immunity ratione materiae should be regarded as having been implicitly
excluded by the Convention. Had there been such an intention, the authors
would have been bound to refer to it. They do not do so.
The background against which the Torture Convention is set adds to the
improbability of the proposition that the state parties to the Convention
must have intended, directly or indirectly, to exclude state immunity
ratione materiae. Earlier Conventions made provision for an international
tribunal. In the case of such Conventions, no question of par in parem non
habet imperium arose; but heads of state were expressly mentioned, so
ensuring that they are subject to the jurisdiction of the international
tribunal. In the case of the Taking of Hostages Convention and the Torture
Convention, jurisdiction was vested in the national courts of state parties
to the Convention. Here, therefore, for the first time the question of
waiver of state immunity arose in an acute form. Curiously, the suggestion
appears to be that state immunity was waived only in the case of the Torture
Convention. Apart from that curiosity, however, for state parties to exclude
state immunity in a Convention of this kind would be a remarkable surrender
of the basic protection afforded by international law to all sovereign
states, which underlines the necessity for immunity to be waived in a
treaty, if at all, by express provision; and, having regard in particular to
the express reference to heads of state in earlier Conventions, state
parties would have expected to find an express provision in the Torture
Convention if it had been agreed that state immunity was excluded. That it
should be done by implication in the Torture Convention seems, in these
circumstances, to be most improbable.
I add that the fact that 116 states have become party to the Torture
Convention reinforces the strong impression that none of them appreciated
that, by signing the Convention, each of them would silently agree to the
exclusion of state immunity ratione materiae. Had it been appreciated that
this was so, I strongly suspect that the number of signatories would have
been far smaller. It should not be forgotten that national representatives
involved in the preliminary discussions would have had to report back to
their governments about the negotiation of an important international
convention of this kind. Had such a representative, or indeed a senior civil
servant in a country whose government was considering whether the country
should become a party to the Convention, been asked by his Secretary of
State the question whether state immunity would be preserved, it is unlikely
that a point would have occurred to him which had been overlooked by all the
fourteen counsel (including, as I have said, three distinguished professors
of international law) appearing for the appellants and their supporters in
the present case. It is far more probable that he would have had in mind the
clear and simple words of the Chief Justice of the United States in the
Amerada Hess and have answered that, since there was no mention of state
immunity in the Convention, it could not have been affected. This
demonstrates how extraordinary it would be, and indeed what a trap would be
created for the unwary, if state immunity could be waived in a treaty sub
silentio. Common sense therefore supports the conclusion reached by
principle and authority that this cannot be done.
(e) Conclusion.
For these reasons I am of the opinion that the proposed implication must be
rejected not only as contrary to principle and authority, but also as
contrary to common sense.
VII. The conclusion of Lord Hope of Craighead
My noble and learned friend Lord Hope of Craighead, having concluded that,
so far as torture is concerned, only charges 2 and 4 (insofar as they apply
to the period after 29 September 1988) and charge 30 survive the application
of the double criminality point, has nevertheless concluded that the benefit
of state immunity is not available to Senator Pinochet in respect of these
three charges. He has reached this conclusion on the basis that (1) the two
conspiracy charges, having regard to paragraph 9(3) of the Extradition
Request, reveal charges that Senator Pinochet was party to a conspiracy to
carry out a systematic, if not a widespread, attack on a section of the
civil population, i.e. to torture those who opposed or might oppose his
government, which would constitute a crime against humanity (see, e.g.,
Article 7(1) of the Rome Convention of 1998); and (2) the single act of
torture alleged in charge 30 shows that an alleged earlier conspiracy to
carry out such torture, constituting a crime against humanity, was still
alive when that act was perpetrated after 29 September 1988. Furthermore,
although he is (as I understand the position) in general agreement with Lord
Slynn of Hadley's analysis, he considers that such a crime against humanity,
or a conspiracy to commit such a crime, cannot be the subject of a claim to
state immunity in a national court, even where it is alleged to have taken
place before 1 January 1990.
I must first point out that, apart from the single act of torture alleged in
charge 30, the only other cases of torture alleged to have occurred since 29
September 1988 are two cases, referred to in the Extradition Request but not
made the subject of charges, which are alleged to have taken place in
October 1988. Before that, there is one case alleged in 1984, before which
it is necessary to go as far back as 1977. In these circumstances I find it
very difficult to see how, after 29 September 1988, it could be said that
there was any systematic or widespread campaign of torture, constituting an
attack on the civilian population, so as to amount to a crime against
humanity. Furthermore, insofar as it is suggested that the single act of
torture alleged in charge 30 represents the last remnant of a campaign which
existed in the 1970s, there is, quite apart from the factual difficulty of
relating the single act to a campaign which is alleged to have been in
existence so long ago, the question whether it would be permissible, in the
context of extradition, to have regard to the earlier charges of torture,
excluded under the double criminality rule, in order to establish that the
single act of torture was part of a campaign of systematic torture which was
still continuing in June 1989. This raises a question under section 6(4)(b)
and (5) of the Extradition Act 1989, provisions which are by no means clear
in themselves or easy to apply in the unusual circumstances of the present
case.
In truth, however, the real problem is that, since the appellants did not
consider the position which would arise if they lost the argument on the
double criminality point, they did not address questions of this kind. If
they had done so, the matter would have been argued out before the Appellate
Committee, and Miss Montgomery and Dr. Collins, would have had an
opportunity to reply and would no doubt have had a good deal to say on the
subject. This is after all a criminal matter, and it is no part of the
function of the court to help the prosecution to improve their case. In
these circumstances it would not, in my opinion, be right to assist the
prosecution by now taking such a point as this, when they have failed to do
so at the hearing, in order to decide whether or not this is a case in which
it would be lawful for extradition to take place.
I wish to add that, in any event, for the reasons given by Lord Slynn of
Hadley to which I have already referred, I am of the opinion that in 1989
there was no settled practice that state immunity ratione materiae was not
available in criminal proceedings before a national court concerned with an
alleged crime against humanity, or indeed as to what constituted a crime
against humanity (see [1998] 3 W.L.R. 1456 at pp. 1473C-D and 1474C-1475B).
This is a matter which I have already considered in Part IV of this opinion.
For all these reasons I am, with great respect, unable to accompany the
reasoning of my noble and learned friend on these particular points.
VIII. Conclusion
For the above reasons, I am of the opinion that by far the greater part of
the charges against Senator Pinochet must be excluded as offending against
the double criminality rule; and that, in respect of the surviving
charges--charge 9, charge 30 and charges 2 and 4 (insofar as they can be
said to survive the double criminality rule)--Senator Pinochet is entitled
to the benefit of state immunity ratione materiae as a former head of state.
I would therefore dismiss the appeal of the Government of Spain from the
decision of the Divisional Court.
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Lord Browne-Wilkinson
Lord Goff of Chieveley -for Pinochet
Lord Hope of Craighead
Lord Hutton
Lord Saville of Newdigate
Lord Millett
Lord Phillips of Worth Matravers
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