᭧ EJIL 1999
* LL.M. (Harvard); Ph.D. (Milan). Associate Professor of International Law, Faculty of Law, University of
Parma; Professorial Lecturer in International Law, Bologna Center of the Johns Hopkins University, Paul
H. Nitze School of Advanced International Studies.
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EJIL (1999), Vol. 10 No. 2, 237–277
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Immunity versus Human
Rights: The Pinochet Case
Andrea Bianchi*
Abstract
In the Pinochet case the former head of state of a foreign country has been held accountable
for the first time before a municipal court for acts of torture allegedly committed while he was
in his post. The unprecedented character of the case causes one to ask whether municipal
courts may properly complement international tribunals in the enforcement of international
criminal law, and, if so, to what extent a plea of immunity or non-justiciability may be
available. The divide within the House of Lords on the interpretation of the scope of
application of jurisdictional immunities to foreign heads of state as regards crimes of
international law hardly hides a more profound conflict based on the different perception of
what values and interests should be accorded priority in contemporary international law.
This article argues that neither jurisdictional immunities nor act of state and other doctrines
of judicial self-restraint are consistent with the notion of crimes of international law and that
the quest for normative coherence should induce a reappraisal of the relationship between
human rights law and the law of jurisdictional immunities.
1 Introduction
Individual accountability for crimes of international law is a topic which recently has
gained considerable momentum. It should thus be of little surprise that the legal
proceedings, currently under way in the United Kingdom, for the extradition to Spain
of the former head of state of Chile, General Augusto Pinochet Duarte, have spurred a
wave of interest which goes well beyond academic circles and reaches out to the world
public opinion at large. Inevitably, the numerous legal facets of the case have been
largely overshadowed by the highly sensitive political aspects of the matter. In fact,
the Pinochet case should be a cause for international lawyers to inquire afresh whether
former heads of state and other state officials may be held responsible before the
municipal courts of a foreign state for acts, qualified as criminal under international
238 EJIL 10 (1999), 237–277
1
House of Lords, Regina v. Bartle 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); 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) (No. 3), Judgment of 24
March 1999, reported as R. v. Bow Street Stipendiary Magistrate and others, ex parte Pinochet Ugarte
(Amnesty International and others intervening) (No. 3) in [1999] 2 All E.R. 97 [hereinafter Ex Parte Pinochet
(HL 2)].
2
See, inter alia, S. R. Ratner and J. S. Abrams, Accountability for Human Rights Atrocities in International Law
(1997); L. S. Sunga, The Emerging System of International Criminal Law (1997); J. J. Paust et al.,
International Criminal Law (1996); M. C. Bassiouni, Crimes against Humanity in International Criminal Law
(1992); L. S. Sunga, Individual Responsibility in International Law for Serious Human Rights Violations
(1991).
3
See by this author, ‘Individual Accountability for Crimes Against Humanity. Reckoning with the Past,
Thinking of the Future’, 19 SAIS Review (1999), at 223 et seq.
law, which have allegedly been committed when they were in post. In essence, this is
the query around which the recent decision of the House of Lords in the Pinochet case
revolves.1
Although the Law Lords were bound to apply the relevant provisions of the State
Immunity Act, which regulates the jurisdictional immunities of foreign states and
their organs in the United Kingdom, international law played a crucial role in the
interpretation of the municipal statute. The interplay of municipal law and
international law has long secured the adjustment of the doctrine of jurisdictional
immunities to the changing demands of the international community. Recent
attempts to resort to municipal courts for the adjudication of cases involving issues of
state or individual responsibility for serious violations of international law call for a
reassessment of this interaction. In particular, due heed should be paid to the issue of
whether municipal courts may aptly complement international law enforcement
mechanisms whenever this is necessary to foster those common interests and values
which are perceived as fundamental by the international community as a whole.
Little, if any, doubt exists that the charges originally brought by Spain against
General Pinochet are of the utmost gravity. Genocide, torture, hostage-taking and
murder on a massive and systematic scale attain the status of crimes of international
law either via customary or treaty law.2
Nor is the principle of individual criminal
responsibility under international law any longer disputed.3
What remains controversial
is whether the domestic courts of a foreign state are a proper forum for
prosecuting individuals for crimes of international law and, if so, what immunity, if
any, should be granted to former heads of state. While there is a concordance of views
among scholars and many provisions can be traced in the statutes and recent practice
of international tribunals to the effect that no plea of immunity is available in case of
crimes of international law, the case law of domestic courts is scant and hardly
conclusive on the point. Most cases concern civil suits brought against individuals
whose states have either waived their immunity or even acted as plaintiffs in the
relevant legal proceedings. Also the cognate doctrine of act of state or nonjusticiability,
alternatively referred to by some Law Lords as a possible bar to criminal
proceedings against General Pinochet in the United Kingdom, is worth addressing. In
Immunity versus Human Rights: The Pinochet Case 239
4
The first provisional warrant had been issued, on the basis of the 1989 Extradition Act, by Mr Nicholas
Evans, a Metropolitan Stipendiary Magistrate on 16 October 1998. The allegations concerned the
murder of Spanish citizens in Chile, which offences were within the jurisdiction of Spain. The second
provisional arrest warrant was issued by another Stipendiary Magistrate, Mr Ronald Bartle. This time
more offences were alleged, including conspiracy to commit acts of torture, hostage-taking and
conspiracy to murder.
5
European Convention on Extradition, 1957, incorporated in the UK by the European Convention on
Extradition Order 1990 (SI 1507 of 1990) as amended.
6
The High Court of Justice, Queen’s Bench Division, Divisional Court, In the Matter of an Application for a
Writ of Habeas Corpus ad Subjicendum. Re: Augusto Pinochet Duarte, 28 October, 1998, reproduced in 38
ILM (1999) 68.
7
According to the principle of double criminality, an extradition crime is an act which is criminal in both
the requesting and the requested state. Since the murder of a British citizen by a non-British citizen
outside the United Kingdom would not constitute an offence in respect of which the UK could claim
extraterritorial jurisdiction, the murder of Spanish citizens by non-Spanish citizens in Chile cannot be
qualified as an extradition crime.
particular, the availability of a plea of non-justiciability in cases concerning the
responsibility of individuals for crimes of international law must be the object of
careful scrutiny as it may considerably restrain the role of municipal jurisdictions in
enforcing applicable rules of international law.
The remarkable impact which the decision will most likely have on the future
development of a fair and comprehensive system of international criminal law
enforcement is a cause for testing its correctness against the background of
contemporary standards of international law. The aim of this paper is to address the
legal issues, sketchily outlined above, with a view to ascertaining whether the House
of Lords was right in interpreting international law to the effect of denying immunity
to the former head of a foreign state indicted of acts of torture and crimes against
humanity, thus allowing extradition proceedings to continue. Before turning to the
relevant issues, however, a cursory account of the legal proceedings in the United
Kingdom may be apt.
2 Legal Proceedings in the UK: the Interaction of Municipal
and International Law
A The High Court Decision
As is well known, General Pinochet entered the United Kingdom in September 1997.
Just before his return to Chile, after undertaking surgery in London, he was arrested
on the basis of two provisional arrest warrants issued by UK magistrates, at the
request of Spanish courts,4
pursuant to the European Convention on Extradition.5
General Pinochet’s counsel immediately moved to have the two arrest warrants
quashed by the High Court. On 28 October the Divisional Court of the Queen’s Bench
Division ruled6
that the first arrest warrant was bad as the crimes for which
extradition had been requested by Spain were not extradition crimes under the UK
Extradition Act.7
As regards the second arrest warrant, the Lord Chief Justice held that
General Pinochet was immune from jurisdiction as the acts that he had allegedly
240 EJIL 10 (1999), 237–277
8
Part I of the SIA was deemed inapplicable to criminal proceedings under Art. 16(4), which expressly
excludes criminal proceedings from the scope of application of Part I. Also the House of Lords agreed on
this construction.
9
Decision of 12 March 1996, reported in 107 ILR 536.
10
See para. 80 of the High Court’s judgment.
11
Ibid, at para. 88.
12
House of Lords, Regina v. Bartle 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); 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), Judgment of 25 November
1998, 37 ILM (1998) 1302 [hereinafter Ex Parte Pinochet (HL 1)]. For a comment see Fox, ‘The First
Pinochet Case: Immunity of a Former Head of State’, 48 ICLQ (1999) 207. The House of Lords took into
account also the formal request of extradition transmitted by the Spanish Government on 6 November to
the UK Government. In the official request further charges were added, including genocide, mass
murders, enforced disappearances, acts of torture and terrorism.
committed were official acts performed in the exercise of his functions of head of state.
The legal basis of the decision was Section 20 of the UK State Immunity Act, which
grants to heads of states the same privileges and immunities as those conferred on the
heads of diplomatic missions under the 1961 Vienna Convention on Diplomatic
Relations, incorporated by reference into the Act and applicable ‘with necessary
modifications’ to heads of states.8
Particularly relevant to the instant case was Article
39(2) of the Vienna Convention which, with the necessary adjustments to the
position of heads of states, provides that heads of states shall continue to be immune
from the criminal jurisdiction of foreign states, once they are no longer in post, for acts
performed in the exercise of their functions as heads of state. Lord Bingham rejected
the argument that a distinction could be made, within the category of the official acts
of a head of state, between crimes of a different gravity and, consequently, upheld the
claim of immunity. In his opinion the Lord Chief Justice indirectly relied on the
decision of the English Court of Appeal (Civil Division) in Al Adsani v. Government of
Kuwait9
to state that if a state is entitled to immunity for acts of torture, it should not be
surprising that the same immunity is enjoyed by a head of state. Justice Collins,
concurring in the Lord Chief Justice’s opinion, added that ‘history shows that it has
indeed on occasions been state policy to exterminate or to oppress particular groups’
and that he could see ‘no justification for reading any limitation based on the nature of
the crimes committed into the immunity which exists’.10
The quashing of the second
warrant, however, was stayed, as the Court granted leave to appeal to the House of
Lords, certifying as a point of law of general public importance ‘the proper
interpretation and scope of the immunity enjoyed by a former head of state from arrest
and extradition proceedings in the United Kingdom in respect of acts committed while
he was head of state’.11
B The First Ruling by the House of Lords
The House of Lords on 25 November 1998 reversed the lower court’s ruling and held,
by a three to two decision, that a former head of state is not entitled to immunity for
such acts as torture, hostage-taking and crimes against humanity, committed while
he was in his post.12
Lord Nicholls, in whose opinion Lord Hoffman concurred, held
Immunity versus Human Rights: The Pinochet Case 241
The Spanish Audiencia Nacional had upheld Spanish jurisdiction over the above offences on the basis of
the Ley Organica del Poder Judicial of 1985, Art. 23 of which allows Spanish courts to exercise jurisdiction
over crimes committed by Spanish or foreign citizens outside Spain when such crimes can qualify, under
Spanish law, as genocide, terrorism or any other crime which, according to international treaties or
conventions, must be prosecuted in Spain. The ruling of the Audiencia Nacional sitting in plenary was
rendered on 30 October 1998 and the reasoning of the court was released on November 5 (the judgment
can be retrieved from the Internet at the following site: Ͻhttp://www.elpais.es/p/d/especial/auto/
chile.htmϾ (10 Nov. 1998)). The same conclusion was reached by the Audiencia Nacional as regards
prosecution in Spain of crimes committed in Argentina at the time of the military junta (the judgment can
be retrieved from the Internet at the following site: Ͻhttp://www.elpais.es/p/d/especial/auto/
argenti.htmϾ (10 Nov. 1998). The two decisions as well as Judge Garzon’s extradition order were
promptly published in Spain: El caso de España contra las dictaduras Chilena y Argentina (1998).
13
See Trendtex Trading Corp. v. Central Bank of Nigeria [1977] QB 529. It is of note that also Lord Slynn of
Hadley referred to Trendtex to state that the principle of immunity should be evaluated in the light of the
developments of international law relating to international crimes (Ex Parte Pinochet (HL 1), supra note
12, at 1311).
14
Ibid, at 1333. Lord Nicholls limited his analysis to torture and hostage-taking.The relevant international
conventions have been incorporated into the UK legal system respectively by the Criminal Justice Act
1988 and the Taking of Hostages Act 1982.
15
Ibid, at 1338.
16
Ibid, at 1309 (Lord Slynn). The latter quote is from Watts, ‘The Legal Position in International Law of
Heads of States, Heads of Governments and Foreign Ministers’, 247 RdC (1994), at 56.
17
Ibid, at 1323 (Lord Lloyd). Part of the allegations against General Pinochet concerned his coordinating, in
cooperation with other governments, the so-called ‘Operation Condor’, aimed at the systematic
repression of political opponents.
that international law, in the light of which domestic law has to be interpreted,13
‘has
made it plain that certain types of conduct . . . are not acceptable on the part of anyone’
and that ‘the contrary conclusion would make a mockery of international law’.14
In
the view of Lord Nicholls, General Pinochet was not immune under Section 20 of the
SIA, as the Act confers immunity only in respect of acts performed in the exercise of
functions ‘which international law recognises as functions of a head of state,
irrespective of the terms of his domestic constitution’. Nor was he entitled to any
customary international law doctrine of residual immunity, potentially covering all
state officials, for acts of torture and hostage-taking, ‘outlawed as they are by
international law, cannot be attributed to the state to the exclusion of personal
liability’. Finally, both the Torture and Hostage-Taking Conventions permit the
extraterritorial exercise of criminal jurisdiction by municipal courts. On a similar line
of reasoning Lord Steyn maintained that genocide, torture, hostage-taking and crimes
against humanity, condemned by international law, clearly amount to conduct
falling beyond the functions of a head of state.15
By contrast, the two dissenting Law
Lords held that it is not right to distinguish ‘between acts whose criminality and moral
obliquity is more or less great’ and that the test is ‘whether the conduct in question
was engaged under colour of or in ostensible exercise of the Head of State’s public
authority’.16
Consequently, ‘where a person is accused of organizing the commission
of crimes as the head of the government, in cooperation with other governments, and
carrying out those crimes through the agency of the police and the secret service, the
inevitable conclusion is that he was acting in a sovereign capacity’.17
Lord Lloyd
basically agreed with the construction offered by Lord Bingham that the only
242 EJIL 10 (1999), 237–277
18
Ibid, at 1313–1314 (Lord Slynn). Lord Slynn found nothing in international conventions and UK
implementing legislation which could take away immunity. Art. 4 of the Genocide Convention which
clearly does so as regards ‘constitutionally responsible leaders’ was not incorporated into UK law,
whereas neither the Torture Convention nor the Hostage-Taking Convention contain any express
exclusion of immunity for heads of states.
19
Interestingly enough, the Spanish National Audience in upholding the jurisdiction of Spanish courts over
the alleged acts of genocide had interpreted broadly the definition of the expression ‘genocide’ in the
Genocide Convention. After stating, generally, that ‘[s]in distingos, es un crimen contra la humanidad la
ejecución de acciones destinadas a exterminar a un grupo humano, sean cuales sean las caracteristícas
diferenciadoras del grupo’, the Court interpreted the Convention systematically within the broader context
of the logic of the international legal system and held that the genocide ‘no puede excluir, sin razón en la
lógica del sistema, a determinados grupos diferenciados nacionales, discriminándoles respecto de otros’.
Therefore, also acts committed against ‘aquellos ciudadanos que no respondían al tipo prefijado por los
promotores de la représion como proprio del orden nuevo a instaurar en el pays’ could be qualified as genocide
(see El caso de España, supra note 12, at 313–316).
20
The Home Secretary acted pursuant to section 7(4) of the Extradition Act 1989.
meaningful distinction for the purpose of head of state immunity is that between
private acts and official acts performed in the execution or under colour of sovereign
authority. A former head of state would be entitled to immunity for the latter acts
under both common law and statutory law, as the acts in question were clearly of a
governmental character. Lord Slynn of Hadley admitted the possibility that the
immunity ratione materiae retained by a former head of state after ceasing service
could be affected by the emerging notion of individual crimes of international law. He
added, however, that this could be so only to the extent that an international
convention clearly defines the crime and gives national courts jurisdiction over it, and
that the convention, which must, expressly or impliedly, exclude the immunity of the
head of state, is incorporated by legislation in the UK.18
On 10 December, the Home Secretary issued an authority to proceed in order to
allow the continuation of extradition proceedings. In doing so he said to have had
regard to such relevant considerations as the health of General Pinochet, the passage
of time since the commission of the alleged acts and the political stability of Chile.
While denying authority to proceed on the charge of genocide,19
the Home Secretary
stated that all the other charges alleged in the Spanish request of extradition
amounted to extradition crimes and were not of a political character.20
Immunity versus Human Rights: The Pinochet Case 243
21
Lord Hoffman chaired the charitable arm of Amnesty International in the UK (Amnesty (Charity)
International Ltd.): see The Times, 8 December 1998.
22
The Times, 18 December 1998. The opinions of the Lords of Appeal are reproduced in 38 ILM (1999) 430.
23
Ex Parte Pinochet (HL 2), supra note 1.
24
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, 10 December 1984, 23
ILM (1984) 1027, as modified 24 ILM (1985) 535.
25
Ex Parte Pinochet (High Court), Lord Bingham, at para. 44; Ex Parte Pinochet (HL 1), Lord Lloyd, at 1318.
As Lord Browne-Wilkinson stated, probably at the first hearing it was conceded that all the charges
against General Pinochet were extradition crimes.
26
Lord Browne-Wilkinson reached this conclusion via a systematic interpretation of the Extradition Act
1989, also in the light of its predecessor, the Extradition Act 1870. No other Law Lords objected to this
construction.
27
On the double criminality principle see G. Gilbert, Aspects of Extradition Law (1991) at 47 et seq. See also
M. C. Bassiouni, International Extradition. United States Law and Practice (1996), stating that for the
purpose of double criminality US and Swiss law do not require that the relevant conduct be criminal in
both the requesting and the requested state at the time the alleged crime was committed (at 391–392).
On UK extradition law see A. Jones, Jones on Extradition (1995).
C The Rehearing of the Case and the New Judgment of the House of
Lords
On 17 December 1998 the House of Lords decided to set aside its prior judgment, on
the grounds that Lord Hoffman, who cast the deciding vote, by failing to disclose his
ties to Amnesty International, which, incidentally, had been admitted as an
intervener in the proceedings,21
was disqualified from sitting.22
A new hearing before a
panel of seven Law Lords was scheduled and, eventually, on 24 March 1999, the
House of Lords rendered its decision on the case.23
By a majority of six to one, the
House of Lords in a lengthy and rather convoluted judgment held that General
Pinochet was not immune for torture and conspiracy to commit torture as regards
acts committed after 8 December 1988, when the UK ratification of the Torture
Convention, following the coming into force of section 134 of the Criminal Justice Act
1988 implementing the Convention, took effect. The second judgment of the House of
Lords profoundly differs from the previous one for the treatment given to two issues:
the qualification of extradition crimes and the role that some of the Law Lords
attributed to the Torture Convention for the purpose of denying immunity to General
Pinochet.24
On the one hand, the intertemporal law question of which critical date is
relevant for the double criminality principle was solved by interpreting the applicable
provisions of the Extradition Act to the effect of requiring that the alleged conduct
constituted an offence in both the requesting and the requested state at the date of the
actual conduct. While Lord Bingham for the Divisional Court and Lord Lloyd in the
first ruling of the House of Lords,25
had held that the critical date was the date of the
request of extradition, the large majority of the Law Lords sitting in the second
Appellate Committee agreed that the critical date was the date of the actual conduct.26
Besides being contrary to the wording of the Extradition Act and to settled practice,27
this interpretation had the effect of remarkably narrowing down the number of
244 EJIL 10 (1999), 237–277
28
A schedule of the charges against General Pinochet had been prepared by Alun Jones of the Crown
Prosecution Service. The charges are analysed and discussed in detail in Lord Hope’s opinion (Ex Parte
Pinochet (HL 2) at 132b et seq.). Only charges of torture and conspiracy to commit torture after 29
September 1988 (the date in which Section 134 of the Criminal Justice Act came into force) were thought
to be extradition crimes (charges 2 and 4 of the above schedule) as well as a single act of torture alleged in
charge 30. Also 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, were deemed to be
extradition crimes. The majority, however, held Pinochet immune for such acts. As to the charges related
to hostage-taking (charge 3), Lord Hope found them not to be within the scope of the Taking of Hostages
Act 1982, as the relevant statutory offence consists of taking and detaining a person to compel somebody
else to do or to abstain from doing something, whereas the charges alleged that the person detained was
to be forced to do something under threat to injure other parties (which is exactly the opposite of the
statutory offence). It might be worth remembering that the charges of genocide were not the object of
discussion as the Home Secretary had refused to issue an authority to proceed as regards those charges.
29
No one argued that section 134 could operate retrospectively so as to make torture committed outside the
UK before the coming into force of the Criminal Justice Act 1988 a crime under UK law.
30
Lord Millett held that the jurisdiction of English courts, although mainly statutory, is supplemented by
the common law. Therefore, ‘English courts have and always have had extraterritorial criminal
jurisdiction in respect of crimes of universal jurisdiction under customary international law’, including
‘the systematic use of torture on a large scale and as an instrument of state policy’ which had already
attained the status of an international crime of universal jurisdiction. Eventually, Lord Millett yielded to
the view of the majority and proceeded on the basis that Pinochet could not be extradited for acts of
torture committed prior to the coming into force of section 134 of the Criminal Justice Act. (Ex Parte
Pinochet (HL 2) at LI 78b–d).
31
Besides finding no trace in the travaux préparatoires of discussions concerning the waiver of state
immunity, Lord Goff’s stance against immunity heavily relied on policy considerations. The fear of
malicious allegations against heads of state, particularly of powerful countries in which they often
perform an executive role, should cause one to be cautious in ruling out immunity. By way of example,
Lord Goff cites the possibility that a Minister of the Crown or other lower public official may be sued on
allegations of acts of torture in Northern Ireland in countries supportive of the IRA. Furthermore, the
scope of the rule of state immunity would be limited to what he considers exceptional cases, such as when
the offender is found in a third state or in a state where one of its nationals was a victim, the more frequent
occurrence being that the offence is committed in the national state of the offender, in which case the
latter would have no immunity (Ex Parte Pinochet (HL 2) at 128–129a).
offences for which General Pinochet can be extradited.28
Since torture only became an
extraterritorial offence after the entry into force of section 134 of the Criminal Justice
Act 1988, alleged acts of torture and conspiracies to commit torture outside the UK
before that time did not constitute an offence under UK law.29
Therefore, they could
not be qualified as extradition crimes under the principles of double criminality. Only
Lord Millett maintained that UK courts would have jurisdiction at common law over
acts of torture from a much earlier date, when international law recognized that such
acts could be prosecuted by any state on the basis of universal jurisdiction.30
On the issue of immunity, only Lord Goff of Chieveley, entirely endorsing Lord
Slynn’s opinion in the first ruling, held that General Pinochet enjoyed immunity. In
particular, Lord Goff maintained that nothing in the Torture Convention could be
construed as an express waiver of state immunity. Nor could such a waiver be
reasonably implied.31
The other Law Lords, albeit on different grounds, found
non-immunity in the circumstances of the case. In particular, Lord Browne-
Immunity versus Human Rights: The Pinochet Case 245
32
Lord Browne-Wilkinson’s reasoning is not deprived of ambiguities. After recognizing that torture on a
large scale is a crime against humanity which has attained the status of jus cogens (relying on Prosecutor v.
Anto Furundzija, Case No. IT-95–17/1-T, Trial Chamber of the ICTY, Judgment of 10 December 1998,
reproduced in 38 ILM (1999) 317 para. 153) and which justifies states in taking jurisdiction on the basis
of the universality principle, he said that he doubted that before the entry 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 organization of state torture could not rank for immunity purposes as performance of
an official function’ (Ex Parte Pinochet (HL 2) at 114 et seq.). This reasoning is inherently flawed. If one
characterizes — as Lord Browne-Wilkinson does — the prohibition of torture on a large scale as a jus
cogens norm, the inevitable conclusion is that no other treaty or customary law rule, including the rules
on jurisdictional immunities, can derogate from it. Another aspect in Lord Browne-Wilkinson’s opinion
which remains rather unclear is what he means by saying that the crime of torture did not become ‘a fully
constituted international crime’ until the Torture Convention set up a system of ‘worldwide universal
jurisdiction’ (via the joint operation of Articles 5, 6 and 7). The tautology inherent in the argument is
apparent: on the one hand a crime against humanity would entail universal jurisdiction, on the other
only when universal jurisdiction can be established over it would an offence become an international
crime. A much more coherent argument would have been that torture on a large scale as a crime against
humanity entails universal jurisdiction, whereas single acts of torture have become a crime and are
subject to universal jurisdiction only via the Torture Convention (see the reasoning of Lord Millett). No
such distinction, however, appears in Lord Browne-Wilkinson’s opinion.
33
Among the reasons for holding that acts of torture cannot be qualified as a function of a head of state,
Lord Browne-Wilkinson mentioned the following: i) international law cannot regard as official conduct
something which international law itself prohibits and criminalizes; ii) a constituent element of the
international crime of torture is that it must be committed ‘by or with the acquiescence of a public official
or other person acting in an official capacity’. It would be unacceptable if the head of state escaped
liability on grounds of immunity while his inferiors who carried out his orders were to be held liable; iii)
immunity ratione materiae applies to all state officials who have been involved in carrying out the
functions of the state; to hold the head of state immune from suit would also make other state officials
immune, so that under the Torture Convention torture could only be punished by the national state of
the official (Ex Parte Pinochet (HL 2) at 114J–115a–e).
34
See Art. 1 of the Torture Convention. The Convention entered into force on 26 June 1987. Spain ratified
on 21 October 1987, Chile on 30 September 1988 and the UK on 8 December 1988.
Wilkinson, the presiding Law Lord, after stating that the prohibition of torture became
‘a fully constituted international crime’ only by the adoption of the Torture
Convention, which set up a ‘worldwide universal jurisdiction’,32
held that the ‘notion
of continued immunity for ex-heads of state is inconsistent with the provisions of the
Torture Convention’ and that torture, as defined in the Convention, ‘cannot be a state
function’.33
Therefore, starting from the moment in which the UK became party to the
Convention, Spain and Chile having already ratified it, all the parties involved had
agreed to exercise extraterritorial jurisdiction over acts of torture committed by or
with the acquiescence of state officials.34
On a similar line of reasoning, Lord Hope of
Craighead held that Chile had lost its right to object to the extraterritorial jurisdiction
246 EJIL 10 (1999), 237–277
35
Immunity ratione materiae would shield General Pinochet as regards the other charges. Lord Hope
qualifies as an international crime divesting a former head of state of his immunity only systematic or
widespread torture. Only such an offence would attain the status of jus cogens, compelling states to refrain
from such conduct under any circumstances and imposing an obligation erga omnes to punish this
conduct. Although state torture was already at the time of the early allegations against General Pinochet
an international crime under customary international law it was not until the Torture Convention,
which enabled states to assume jurisdiction over such offences, that ‘it was no longer open to any state
which was a signatory to the convention to invoke the immunity ratione materiae in the event of
allegations of systematic or widespread torture committed after that date being made in the courts of that
state against its officials or any other person acting in an official capacity’ (Ex Parte Pinochet (HL 2) at
152c). Lord Goff’s analysis is not entirely convincing. If one assumes, as he does, that the prohibition of
systematic torture, which most of the time requires state action, is a jus cogens rule, violations of which
every state is under an obligation to punish, it is difficult to see how such an obligation could be
discharged unless domestic courts are given the possibility of investigating, prosecuting and punishing
the individuals who have committed such heinous acts. Furthermore, it is hard to see how the distinction
between systematic torture and single instances of torture for the purpose of state immunity can be
drawn on the basis of the Torture Convention.
36
See supra note 18 and accompanying text.
37
Since the Convention prohibits so-called ‘official torture’, to Lord Saville, ‘a former head of state who it is
alleged resorted to torture for state purposes falls . . . fairly and squarely within those terms’ (Ex Parte
Pinochet (HL 2) at 169J). States parties to the Convention have clearly and unambiguously accepted, in
the view of Lord Saville, that official torture can be punished ‘in a way which would otherwise amount to
an interference in their sovereignty’ (ibid, at 170c). For the same reason, Lord Saville held that also a plea
based on act of state would fail in the circumstances of the case (ibid, at 170e).
38
(Ex Parte Pinochet (HL 2) at 166e. According to Lord Hutton, although the alleged acts were carried out
by General Pinochet ‘under colour of his position as head of state . . . they cannot be regarded as functions
of a head of state under international law when international law expressly prohibits torture as a
measure which a state can employ in any circumstances whatsoever and has made it an international
crime.’ (ibid, at 165d) Lord Huttton, while accepting the limitation inherent in the qualification of
extradition crimes under UK law, which prevents consideration of allegations of torture prior to the
coming into force of section 134 of the Criminal Justice Act, said in dictum that ‘acts of torture were clearly
crimes against international law and that the prohibition of torture had acquired the status of jus cogens
by that date’ (ibid, at 164c). He later added that not only torture committed or instigated on a large scale
but also a single act of torture qualifies as a crime of international law.
of the UK upon its ratification of the Convention, which would prevent the parties
from invoking immunity ratione materiae ‘in the event of allegations of systematic or
widespread torture’.35
Both Lord Browne-Wilkinson and Lord Hope followed Lord
Slynn’s analysis,36
their views departing from his only as regards the impact of the
Torture Convention on the rule of immunity ratione materiae. Lord Saville concurred
in holding that the provisions of the Torture Convention are inconsistent with
immunity, which, consequently, is inapplicable to the conduct in question, at least in
the reciprocal relations among the parties.37
Lord Hutton found that acts of torture,
already outlawed by international law at the time of adoption of the Torture
Convention, are not amenable within the functions of a head of state and that ‘there is
no waiver issue as the immunity to which Pinochet is entitled as a former head of state
does not arise in relation to, and does not attach to acts of torture’.38
Lord Millett’s
opinion is at variance with that of his colleagues. According to Lord Millett, universal
jurisdiction existed well before the Torture Convention over crimes committed in
violation of jus cogens and which gravity and scale could be regarded ‘as an attack on
Immunity versus Human Rights: The Pinochet Case 247
39
Ex Parte Pinochet (HL 2) at 177d. Lord Millett correctly notes that the very official or governmental
character of the offences characterizes crimes against humanity and that ‘large scale and systematic use
of torture and murder by state authorities for political ends had come to be regarded as an attack upon the
international legal order’ by the time General Pinochet seized power in 1973 (Ex Parte Pinochet (HL 2) at
177a).
40
Attorney General of the Government of Israel v. Eichmann, 36 ILR 5 (District Court of Jerusalem, 1961), aff’d
36 ILR 277 (Supreme Court of Israel, 1962); Demjanjiuk v. Petrovsky, 603 F. Supp. 1468, aff’d 776 F. 2d
571 (6th Cir. 1985).
41
The reasoning of Lord Millett is clear and straightforward. Since the offence can only be committed by or
at the instigation of or with the consent or acquiescence of a public official or other person acting in an
official capacity, ‘[t]he official or governmental nature of the act, which forms the basis of the immunity,
is an essential ingredient of the offence. No rational system of criminal justice can allow an immunity
which is co-extensive with the offence.’ (Ex Parte Pinochet (HL 2) at 179a.)
42
Ex Parte Pinochet (HL 2) at 188J and 189a–b. Lord Phillips of Matravers found that no rule of
international law requiring states to grant immunity ratione materiae for crimes of international law can
be traced in state practice. Lord Phillips was the only one to object to the construction of section 20 of the
SIA being applicable to acts of the head of state wherever committed. He held that the provision had to be
interpreted simply to the effect of equating the position of a visiting head of state with that of the head of a
diplomatic mission in the UK. In fact, other Law Lords had considered the issue but eventually found in
the light of parliamentary history that the original intent to limit section 20 to heads of state ‘in the
United Kingdom at the invitation or with the consent of the Government of the United Kingdom’ had been
superseded by an amendment of the Government. Lord Phillips maintained that the relevant statutory
provision should be interpreted against the background of international law and consequently be limited
to visiting heads of state (ibid, at 191–192).
the international legal order’.39
Relying on Eichmann and Demjianjuk,40
he said that
any state is permitted under international law to assert its jurisdiction over such
crimes and that the commission of such crimes in the course of one’s official duties as a
responsible officer of the state and in the exercise of his authority as an organ of that
state is no bar to the exercise of jurisdiction by a national court. The Torture
Convention simply expanded the cover of international crimes to single instances of
torture, imposing on states the obligation to exercise their jurisdiction over the crime.
According to Lord Millett, recognition of immunity would be ‘entirely inconsistent
with the aims and object of the Convention’.41
Finally, Lord Phillips of Worth
Matravers held that crimes of such gravity as to shock the consciousness of mankind
cannot be tolerated by the international community and that state immunity ratione
materiae cannot coexist with international crimes and the right of states to exercise
extraterritorial jurisdiction over them. While doubting that customary international
law recognizes universal jurisdiction over crimes of international law, Lord Phillips
held that on occasion states agree by way of treaty to exercise extraterritorial
jurisdiction, which, once established, should not exclude acts done in an official
capacity.42
While all the Lords agreed on the need for the Home Secretary to reconsider his
decision on allowing extradition proceedings to go ahead, in the light of the new
ruling, no one stressed that the UK has the obligation under the Torture Convention
248 EJIL 10 (1999), 237–277
43
The obligation is imposed by the joint operation of Art. 7 and Art. 5. By the end of 1998 several states,
including Switzerland, France and Belgium, had submitted requests of extradition to the UK.
44
See The Times, 16 April 1999.
45
See Alcom Ltd. v. Republic of Colombia [1984] AC 580, 597 per Lord Diplock. See also the reliance of some
Law Lords on Trendtex Trading Co. v. Central Bank of Nigeria [1977] QB 529 for the relevance of customary
international law.
either to extradite General Pinochet to Spain or to any other country that has
submitted an extradition request or to refer the case to its judicial authorities for
prosecution in the UK.43
On 15 April the Home Secretary issued an authority to
proceed, thus allowing extradition proceedings to continue with regard to the
remaining charges.44
D A Tentative Appraisal
Given the impact that the Pinochet case may have on the future development of the
law of jurisdiction and jurisdictional immunities, a tentative appraisal of the way in
which the House of Lords interpreted the relevant rules of international law
pertaining to the case may be useful. While the decision of the House of Lords turns
mainly on the application of UK law, the extensive reliance of the Law Lords on
international law arguments for construing municipal law makes such an endeavour
a legitimate exercise. Indeed, recourse to international law for interpreting domestic
law is the first noticeable feature of the case.45
The somewhat convoluted reasoning of
some of the individual opinions, the frequent lack of clarity in framing the relevant
issues as well as occasional incongruities in construing and presenting arguments
should not overshadow the willingness of the Law Lords to decide the case
consistently with international law standards. Secondly, the principle that individuals
may be held accountable for acts which are regarded as criminal at international law
was clearly asserted. Whether individual responsibility may be enforced before foreign
municipal courts was thought to be an issue to be determined in casu, depending on
the nature of the crime as well as on relevant international and municipal law
provisions concerning enforcement, but the very outcome of the case proves that this
may occur. Yet another important finding to be derived from the House of Lords
decisions is that contrary to what the High Court had held, a distinction can be aptly
drawn at international law between the wrongful acts of state organs and acts which
for their gravity can be regarded as crimes of international law. Different consequences
would be attached to the latter under international law, particularly as
regards the permissibility of the exercise of extraterritorial jurisdiction over them and
the inapplicability of immunity ratione materiae before international tribunals and,
under certain circumstances, before foreign municipal courts. Overall, the frequent
reference to such notions as jus cogens, obligations erga omnes and crimes of
international law attests to the fact that the emerging notion of an international
public order based on the primacy of certain values and common interests is making
its way into the legal culture and common practice of municipal courts.
As regards the issue of immunity more specifically, a large majority of the Law Lords
agreed that, while current heads of state are immune ratione personae from the
Immunity versus Human Rights: The Pinochet Case 249
46
See, generally, B. Conforti, International Law and the Role of Domestic Legal Systems (1993); R. A. Falk, The
Role of Domestic Courts in the International Legal Order (1964).
jurisdiction of foreign courts, both civil and criminal, a plea of immunity ratione
materiae in criminal proceedings may be of no avail to former heads of state depending
on the nature of the crime. While the majority in the first Appellate Committee held
that this is so because acts which amount to international crimes can never be
qualified as official acts performed by the head of state in the exercise of his functions,
most of the Law Lords sitting in the second Committee confined their analysis to acts of
torture. In the view of many of them, immunity would simply be incompatible with
the provisions of the Torture Convention, which clearly indicates the official or
governmental character of torture as a constituent element of the crime. Only Lord
Phillips went a step further in saying that no rule of international law requires that
immunity be granted to individuals who have committed crimes of international law
and that the very notion of immunity ratione materiae cannot coexist with the idea that
some crimes, in light of their gravity, offend against the very foundation of the
international legal system. If one were to follow strictly the reasoning of the majority
probably the plea of immunity ratione materiae could only be defeated by those crimes
of international law which presuppose or require state action. Arguably, this would
include crimes against humanity in a wider sense.
On universal jurisdiction under international law, regardless of any treaty-based
regime, Lord Browne-Wilkinson maintained that torture on a large scale is a crime
against humanity and attains the status of jus cogens, which, in turn, would justify the
taking of jurisdiction by states over acts of torture wherever committed. Lord Millett
went as far as to say that universal jurisdiction exists under customary international
law with regard to crimes which have attained the status of jus cogens and are so
serious and on such a scale as to be regarded as an attack on the international legal
order. Lord Millett added that the increasing number of international tribunals
notwithstanding, prosecution of international crimes by national courts ‘will
necessarily remain the norm’. This latter remark paves the way for broaching one of
the most important and controversial issues underlying the proceedings against
General Pinochet.
3 Are Municipal Courts a Proper Forum for Prosecuting
Individual Crimes of International Law?
A preliminary issue to be addressed concerns the long-debated issue of whether
municipal courts can be a proper forum for prosecuting crimes of international law.
This problem can be framed in the more general debate on the suitability of municipal
courts to enforce international law. As is known, some authors have argued that
municipal courts can aptly subrogate for the scant number of enforcement
mechanisms at international law.46
Others have rightly stressed that the extent to
which municipal courts can apply international law depends, especially in dualist
countries, on how international law is incorporated into the state’s domestic legal
250 EJIL 10 (1999), 237–277
47
See A. Cassese, ‘Modern Constitutions and International Law’, 192 RdC (1985-III) 331.
48
R. Higgins, Problems & Process. International Law and How We Use It (1994), at 206 et seq.
49
See Prosecutor v. Erdemovic´, Sentencing Judgment, Case No. IT-96–22-T, Trial Chamber I, 29 Nov. 1996
(108 ILR 180), defining crimes against humanity as ‘. . . inhumane acts that by their very extent and
gravity go beyond the limits tolerable to the international community, which must per force demand
their punishment. But crimes against humanity also transcend the individual because when the
individual is assaulted, humanity comes under attack and is negated. It is therefore the concept of
humanity as victim which essentially characterises crimes against humanity.’ (at 193)
50
See SC Resolutions 808 and 827 (1993) and SC Resolution 955 respectively establishing, under Chapter
VII of the UN Charter, the International Criminal Tribunal for Former Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda (ICTR). The statutes of the two tribunals are reproduced,
respectively, in 32 ILM (1993) 1192 and 33 ILM (1994) 1602.
51
Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference
of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998,
A/CONF.183/9 of 17 July 1998, reprinted in 37 ILM (1998) 999. For a comment see Arsanjani, ‘The
Rome Statute of the International Criminal Court’, 93 AJIL (1999) 22.
52
See Meron, ‘International Criminalization of Internal Atrocities’, 89 AJIL (1995) 554, at 555.
system.47
Legal culture and individual judges’ backgrounds in international law are
other factors which are relevant to explaining the more or less active role that
municipal courts can play in enforcing international law in different jurisdictions.48
Be that as it may, the case for having municipal courts adjudicate cases involving
individual crimes of international law seems compelling. Theoretical and practical
considerations mandate this solution. The very notion of crimes of international law
postulates that they constitute an attack against the international community as a
whole49
and, therefore, any state is entitled to punish them. On a more practical level,
the absence of a permanent international criminal court makes international
prosecution merely illusory. Nor can the establishment of international criminal
tribunals by way of Security Council resolutions be an effective strategy of
enforcement.50
Consensus within the Security Council may be difficult to reach and
the creation of ad hoc judicial bodies to deal with particular situations in specific
countries entails an element of selectivity in the enforcement of international criminal
law which may seriously jeopardize its consolidation and further development. Even
with the prospective entry into force of the International Criminal Court, the Statute of
which was opened for signature last year,51
it would be unrealistic to expect that
international criminal law can effectively be enforced only by international tribunals.
International tribunals may play a strong symbolic role and are more likely to be
perceived as an impartial forum, but prosecution by municipal courts will remain
crucial.52
It is of note that Article 17 of the ICC Statute somewhat defers to the
jurisdiction of municipal courts, stipulating the inadmissibility of a case when the
latter is being investigated or prosecuted by a state with jurisdiction over it or when
Immunity versus Human Rights: The Pinochet Case 251
53
The Court may determine that a state is unable or unwilling genuinely to carry out an investigation or
prosecution. Paras 2 and 3 of Art. 17 list the circumstances which the Court will take into account in
determining the unwillingness or inability of national courts to prosecute. These factors include
unjustified delays, instances in which the proceedings are not conducted independently or impartially, or
when, due to the substantial collapse or unavailability of the interested state’s judicial system, the state is
unable to carry out the proceedings.
54
In 1997 the Supreme Court of Bavaria condemned one Mr Dzajic, a former Yugoslav national, for
abetting murder in 14 cases and for attempting murder in another case during the conflict in former
Yugoslavia (Public Prosecutor v. Dzajic, No. 20/96, Supreme Court of Bavaria, 3rd Strafsenat, May 23,
1997, excerpted in 1998 Neue Juristische Wochenschrift 392, comment by Safferling in 92 AJIL (1998)
528). See also the recent case in which a Swiss military tribunal tried, on the basis of the universality
principle of jurisdiction, and eventually acquitted a former Yugoslav national, born in BosniaHerzegovina,
for having beaten and injured civilian prisoners at the prisoner-of-war camps of Omarska
and Keraterm in Bosnia (In re G., Military Tribunal, Division 1, Lausanne, Switzerland, April 18, 1997,
comment by Ziegler in 92 AJIL (1998) 78). A few years earlier in a decision of 25 November 1994, the
Danish High Court had convicted one Mr Saric for having committed violent acts against prisoners of war
in the Croat camp of Dretelj in Bosnia, in violation of the Geneva Conventions (see Maison, ‘Les premiers
cas d’application des dispositions pénales des Conventions de Gèneve par les juridictions internes’, 6 EJIL
(1995) 260).
55
Some statutes provide for universal jurisdiction over war crimes (see Articles 109–114 of the Swiss
Military Penal Code); some are limited to crimes committed during World War II (War Crimes Act, 1991,
ch. 13, para. 1(1) (UK)); War Crimes Amendment Act, 1989 Austl. Acts No. 3, para. 9(1)(Australia);
Nazi and Nazi Collaborators (Punishment) Law, 5710/1950, para. 1(a), as quoted in Attorney-General of
the Government of Israel v. Eichmann, supra note 40; some others are more general in character and cover
also crimes against humanity (see Articles 211–1 and 212–1 (amending the French Penal Code), in the
annex to ‘Lois n. 92–684 du 22 Juillet 1992 portant réforme des dispositions du Code pénal relatives à la
répression des crimes et des délits contre le personnes’, J.O., 23 Juillet, 1992, at 9875 (France)) and Sec.
6(1.91),(1.94),(1.96) of the Canadian Criminal Code permitting the prosecution of foreign persons for
crimes committed abroad against foreigners, provided that at the time of the crime Canada could exercise
its jurisdiction over that person, based on his presence in Canada, and later that person is found in
Canada.
56
See Ratner and Abrams, supra note 2, at 146 et seq. See also the current debate on the prosecution by
Cambodia of the leaders of the Khmer Rouge, who surrendered at the end of 1998, for crimes against
humanity, to which Prime Minister Hun Sen seems to have eventually consented (see Keesing’s Record of
World Events, vol. 45/1 (1999), at 42733). Under Art. VI of the Genocide Convention, to which
Cambodia is a party, there is an obligation on the part of the state in which territory the acts of genocide
took place to try the responsible persons. It should be noted that the crime of genocide is widely believed to
attract universal jurisdiction.
the accused has already been tried for the conduct which is the subject of the
complaint.53
Although the record of national prosecution of crimes of international law after the
end of World War II is far from being satisfactory, domestic courts have lately
manifested an increased activism, especially as regards the prosecution of war crimes
and violations of humanitarian law during armed conflict.54
This development has
been favoured by the enactment in several jurisdictions of statutes which expressly
allow the exercise of jurisdiction over this type of offence.55
With specific regard to
crimes against humanity, their prosecution by domestic courts has been episodic.
Despite occasional and mostly unsuccessful attempts by some countries to investigate,
prosecute and punish individuals for crimes committed under past regimes in the
same country,56
most prosecutions have been carried out by foreign courts. Besides
252 EJIL 10 (1999), 237–277
57
Attorney-General of the Government of Israel v. Eichmann, supra note 40.
58
Féderation National des Déportées et Internés Résistants et Patriots and Others v. Barbie, 78 ILR 124 (French
Cour de Cassation 1985); 100 ILR 330 (French Cour de Cassation 1988).
59
100 ILR 338 (French Cour de Cassation 1992). Touvier was convicted to life imprisonment for giving
instructions for and thereby becoming an accomplice in the shooting of seven Jews at Rillieux on 29 June
1944, as a reprisal for the assassination of the Vichy Government Minister for Propaganda.
60
Regina v. Finta, Canada, High Court of Justice, 10 July 1989, 93 ILR 424.
61
Ibid, at 426–427.
62
See Eichmann, supra note 40; In the Matter of Extradition of John Demjanjuk, 776 F. 2d 571 (6th Cir., 1985)
at 582–583, cert. denied, 457 U.S. 1016 (1986). See also the quote from the decision of the Cour d’Appel,
reported by the Cour de Cassation Chambre Criminelle, in its judgment of 6 October 1983 in Féderation
National des Déportées et Internés Résistants et Patriots and Others v. Barbie (78 ILR 128): ‘by reason of their
nature, the crimes against humanity with which Barbie is indicted do not simply fall within the scope of
French municipal law, but are subject to an international criminal order to which the notions of frontiers
and extradition rules arising therefrom are completely foreign’.
63
See, among others, P. Malanczuk, Akehurst’s Modern Introduction to International Law (7th ed., 1997), at
113; Meron, supra note 52, at 554 and 569; Randall, ‘Universal Jurisdiction Under International Law’,
66 Texas L. Rev. (1988) 785, at 814; Restatement, infra note 72, § 404.
the well-known Eichmann case,57
in which the Supreme Court of Israel convicted on
charges of war crimes, genocide and crimes against humanity the Head of the Jewish
Office of the Gestapo, who was among the principal administrators of the policy of
extermination of the Jews in Europe, French courts convicted to life imprisonment for
crimes against humanity Klaus Barbie,58
head of the Gestapo in Lyons and Paul
Touvier,59
a French national heading the French Militia in Lyons during the Vichy
regime. In another interesting case, Regina v. Finta,60
the Canadian High Court of
Justice convicted a Hungarian national for deporting Jews during the war. The latter
case is particularly interesting for it establishes that any state may exercise its
jurisdiction over an individual found in its territory, irrespective of the place where the
alleged offences took place, when such offences can be categorized as crimes against
humanity.61
While not unprecedented, the assertion of universal jurisdiction over
crimes against humanity by domestic courts is relatively rare,62
given the wide
doctrinal consensus on its applicability under general international law.63
The practice of enforcement, briefly summarized above, highlights the importance
of the Pinochet case, as one of the few cases not concerning the prosecution of crimes
committed during World War II either by Nazis or by Nazi collaborators, as if the
international community had deliberately chosen only to reckon with the atrocities
committed at that time. In fact, the prosecution of crimes committed during the war
has simply paved the way for consolidating the notion of individual accountability for
crimes of international law. Current investigations concerning crimes against
humanity and other human rights violations in Chile and Argentina by European
Immunity versus Human Rights: The Pinochet Case 253
64
See supra note 12.
65
28 U.S.C. (1994) § 1350.
66
28 U.S.C. (1994) § 1350 note.
67
630 F. 2d 876 (2nd Cir., 1980) and 577 F. Supp. 860 (EDNY, 1984).
68
Cabiri v. Assasia Gyimah, 921 F. Supp. 1189 (SDNY, 1996) (arbitrary detention and acts of torture); Kadic
v. Karadzic, 70 F. 3d 232 (2nd Cir., 1995) (genocide, war crimes, torture, summary executions); Xuncax
v. Gramajo, 886 F. Supp. 162 (DMA, 1995) (torture, arbitrary detention, summary executions and
enforced disappearance); In re, Estate of Ferdinand Marcos Human Rights Litigation, 25 F. 3d 1467 (9th
Cir., 1994) (torture, summary executions, disappearances); Trajano v. Marcos, 978 F. 2d 493 (9th Cir.,
1992) (torture); Paul v. Avril, 812 F. Supp. 207 (SD Florida, 1992) (torture, cruel, inhuman and
degrading treatment, arbitrary arrest and detention); Forti v. Suarez Mason, 672 F. Supp. 1531 (N.D. Cal.,
1987) (torture, extrajudicial killings, disappearances and prolonged arbitrary detention).
69
See Condorelli, ‘Le Tribunal Penal International pour l’Ex-Yougoslavie et sa jurisprudence’, in Bancaja
Euromediterranean, Courses of International Law, vol. I, (1997) 241, at 270. See also Paust, ‘Individual
Criminal Responsibility for Human Rights Atrocities and Sanction Strategies’, 33 Tex. Int’l L. J. (1998)
631, at 640–641.
70
See, inter alia, the 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft (2
ILM (1963) 1042); the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft
(Hijacking)(10 ILM (1971) 133); the 1971 Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation (Sabotage)(10 ILM (1971) 1151); the 1973 Convention on the Prevention and
Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents (16 ILM
(1977) 41); the 1976 European Convention on the Suppression of Terrorism (15 ILM (1976) 1272); the
1998 International Convention on the Suppression of Terrorist Bombings (37 ILM (1998) 249). As
regards specifically terrorism, whose status as an international crime remains controversial, a thorough
review of the complex network of international treaties and other instances of state practice has been
made recently by Kolb, ‘Universal Criminal Jurisdiction in Matters of International Terrorism: Some
courts further attest to the increasing activism of municipal courts in enforcing
international criminal law.64
Mention should be made also of civil remedies as a complementary means of
enforcement of international criminal law. In some jurisdictions civil redress may be
sought by plaintiffs under particular statutes. In the United States, for instance, the
Alien Tort Claims Act (ATCA)65
and the Torture Victim Protection Act (TVPA)66
provide such a remedy. Under the ATCA district courts have jurisdiction over civil
actions brought by aliens for a tort only, committed in violation of the law of nations.
On this basis, starting from the landmark case of Filartiga v. Peña Irala,67
federal courts
have been able to assert their jurisdiction over tortious conduct abroad in violation of
international law, particularly human rights abuses. The TVPA, in turn, provides a
cause of action in civil suits in the United States against individuals who, under actual
or apparent authority, or colour of law of any foreign nation, subject an individual to
torture or extrajudicial killing. The record of enforcement of the two statutes bears
witness to the willingness of municipal courts to implement the legislator’s intent that
human rights abuses be effectively punished.68
While it is arguable that customary international law requires states to punish the
perpetrators of crimes of international law,69
many treaties lay down the obligation
either to prosecute or extradite individuals who have committed certain offences of
universal concern.70
It is unfortunate that too often states fail in applying directly the
relevant treaty provisions or in enacting implementing legislation whenever this is
necessary to enforce them. This is particularly true for international criminal law
254 EJIL 10 (1999), 237–277
Reflections on Status and Trends in Contemporary International Law’, 50 Revue Hellenique de Droit
International (1997) 42–88. It is of note that terrorism does not appear in the list of crimes over which the
International Criminal Court (see supra, note 51 and accompanying text) will have jurisdiction.
71
Attention to this problem has been drawn also in the press commenting on the proceedings against
Pinochet: see The Economist, 28 Nov.–4 Dec. 1998, at 26.
72
On the rule, generally, see Conforti, ‘Cours géneral de droit international public’, 212 RdC (1988-V)
56–57. On the application of the rule in common law countries see F. A. Mann, Foreign Affairs in English
Courts (1986), at 130; Restatement (Third) of the Foreign Relations Law of the United States, 1987, § 114. In
the United States this rule of statutory construction dates back to the last century: see The Charming Betsy,
6 U.S. (2 Cranch) (1804) 132, 143. On the use of international human rights law to interpret domestic
law, see Possner, ‘Recent US and International Judicial Protection of Individual Rights: A Comparative
Legal Process Analysis and Proposed Synthesis’, 41 Hastings L. J. (1990) 824 and with specific regard to
the United Kingdom, Higgins, ‘The Role of Domestic Courts in the Enforcement of International Human
Rights: the United Kingdom’, in B. Conforti and F. Francioni (eds), Enforcing International Human Rights
Before Domestic Courts (1997) 37.
73
The complexity of the regime was hardly acknowledged by the House of Lords. In the first ruling of the
House of Lords, all the parties agreed that current heads of state enjoy an absolute immunity. The fact
that the issue was irrelevant to the case at hand may have played a role in achieving unanimity on this
point of law. In the second ruling, perhaps for not too dissimilar reasons, the immunity enjoyed by
current heads of state was deemed to be absolute and was described as an immunity ratione personae,
which pertains to the particular status of the holder. The person of the head of state is inviolable and his
conduct would be immune from the legal process of foreign courts regardless of the public or private
nature of his acts. Lord Hope went as far as to qualify this type of immunity as a jus cogens norm (Ex Parte
Pinochet (HL 2) at 149e). An immunity which is attached to the office is lost when the individual is no
longer in post. All the Law Lords agreed that after loss of office the former head of state continues to be
immune for official acts performed in the exercise of his authority as head of state. This immunity ratione
materiae is of an entirely different nature from the immunity ratione personae enjoyed by serving heads of
state. Otherwise referred to as residual or functional immunity it is meant to cover all those official
which often requires the enactment of ad hoc criminal rules. It would be desirable
indeed that states, regardless of any particular treaty obligation, exercised their
jurisdiction over acts which by the communis opinio are regarded as crimes of
international law. Since the end of World War II states have made it clear that certain
acts are attacks against the fundamental interests and values of the international
community as a whole. If their statements are to be taken as more than an exercise in
political rhetoric, then they must bring their legislation in conformity with
international law and give domestic courts the tools to enforce its rules.71
The rule of
statutory construction, widely applied in both common law and civil law jurisdictions,
whereby domestic law should be interpreted as much as possible in conformity with
international law, has a potential of application which should not be underesti-
mated.72
As the Pinochet case shows, the interpretation of domestic statutes in light of
contemporary standards of international law may, at least in principle, remedy
domestic legislation ambiguities and correctly implement the principles and rules of
international law which have a bearing on the case at hand.
4 What Immunity for Former Heads of State?
The immunity of heads of state in international law is a complex topic.73
The early
view that monarchs enjoy an absolute immunity has given way to other consider-
Immunity versus Human Rights: The Pinochet Case 255
activities performed by state organs in the exercise of their functions. Such acts would be more properly
attributed to the state rather than to the individual organs who, in principle, could not be held
accountable for them.
74
See Watts, ‘The Legal Position in International Law of Heads of States, Heads of Governments and
Foreign Ministers’, 247 RdC (1994) 9, at 21 et seq.
75
See the 1969 Convention on Special Missions. Heads of states are also included in the scope of application
of the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons.
76
See Re Honecker (80 ILR 365), in which the then Chairman of the Council of State of the GDR was held to
be immune as head of state of a foreign country from criminal proceedings brought in the FRG against
him on charges of arbitrary deprivation of liberty. See also Saltany v. Regan, 80 ILR 19, in which a US
District Court (DC) granted head of state immunity, upon the suggestion of the executive, to the Prime
Minister of the United Kingdom in an action in tort for personal injuries and damage to property brought
by civilian residents of Libya, in the aftermath of the US bombing of Libya. The Prime Minister of the UK
had allowed military bases in the UK to be used by US air forces for the operation against Libya.
Interestingly enough, head of state immunity was also granted in the US to Prince Charles as heir to the
British throne (Kilroy v. Windsor, 1978 Dig. U.S. Practice Int’l L. 641–643).
77
The UK State Immunity Act makes a distinction between civil proceedings, to which the general regime of
state immunity under Part I is applicable, and criminal proceedings covered by Part III, Section 20 of the
Act. The legislative history of Section 20 is fairly interesting. Originally devised to equate the position of a
head of state visiting the country to that of the head of the diplomatic mission within the country,
following an amendment proposed by the executive, the words which made the Act applicable to heads of
states who were ‘in the United Kingdom at the invitation or with the consent of the Government of the
United Kingdom’ were deleted (the matter is discussed in Lord Browne-Wilkinson’s opinion). Only Lord
Phillips disagreed with the majority, saying that the conduct of a head of state outside the United
Kingdom remains governed by the rules of public international law (see supra note 42).
78
See Watts, supra note 74, at 52.
ations. After the formation of modern states the position of head of state has radically
changed and nowadays it may remarkably vary depending on the constitutional
organization of the state.74
The immunity of heads of state may become relevant in
many different ways before foreign municipal courts. It may concern current heads of
state visiting officially another country or leading an official mission,75
or, regardless
of their physical presence in the forum state, it may arise in connection with acts
carried out by them in their own state.76
Moreover, the issue of immunity may vary
depending on the nature of their activities and on the type of proceedings in which
they are involved.77
As rightly noted, this is an area of the law ‘which is in many
respects still unsettled, and on which limited state practice casts an uneven light’.78
Even more troubling is the question of what, if any, immunity protects former heads
of state, once they lose their office. Are they still entitled to claim immunity? If so, on
what basis and for what acts should they be held immune? Should one distinguish
between private acts and official acts performed in the exercise of their functions? Is
the alleged criminal character of the acts committed while they were in post relevant
for the purpose of immunity? Can one distinguish between offences of a different
gravity? Last, would any such immunity apply to the conduct of heads of state in
particular or would it rather be applicable to any foreign state’s official regardless of
his rank? All these issues underlined the Pinochet case. For the first time, a former head
of state faced criminal proceedings in a foreign municipal court on charges
256 EJIL 10 (1999), 237–277
79
Duke of Brunswick v. The King of Hanover (1848) 2 H.L. Cas. 1 (action brought by the former reigning Duke
of Brunswick against his former guardian, the reigning King of Hanover, for the latter’s involvement in
removing him from his ruling position and for the maladministration of his estate): ‘A foreign Sovereign,
coming into this country cannot be made responsible here for an act done in his Sovereign character in
his own country; whether it be an act right or wrong, whether according to the constitution of that
country or not, the Courts of this country cannot sit in judgment upon an act of a Sovereign, effected by
virtue of his Sovereign authority abroad . . .’; Hatch v. Baez (1876) 7 Hun. 596 (action for injury suffered
at the hands of the former President of the Dominican Republic): ‘The wrongs and injuries of which the
plaintiff complains were inflicted upon him by the Government of St. Domingo, while he was residing in
that country, and was in all respects subject to its laws. They consist of acts done by the defendant in his
official capacity of President of that Republic. . . . The general rule, no doubt is that all persons and
property within the territorial jurisdiction of a state are amenable to the jurisdiction of its courts. But the
immunity of individuals from suits brought in foreign tribunals for acts done within their own states, in
the exercise of the sovereignty thereof, is essential to preserve the peace and harmony of nations, and has
the sanction of the most approved writers on international law’ (at 599–600); Underhill v. Hernandez
(1897) 168 U.S. 250 (action for wrongful imprisonment brought by American citizen residing in
Venezuela against the former commander of revolutionary forces which later prevailed): ‘Every
sovereign state is bound to respect the independence of every other sovereign state, and the courts of one
country will not sit in judgment on the acts of the government of another done within its own territory’
(at 252).
80
See Lord Slynn’s opinion (Ex Parte Pinochet (HL 1) at 1313), subsequently endorsed by Lord Goff (Ex Parte
Pinochet (HL 2) at 116h–j; 117a–d).
81
See Lord Millett’s opinion (Ex Parte Pinochet (HL 2) at 180a).
concerning crimes of international law allegedly committed while he was the serving
as head of state of Chile. The unique character of the case may well justify the
difficulties in framing the relevant issues in their proper legal context.
As a matter of methodology, any attempt to evaluate the content of the rules
concerning the jurisdictional immunities of heads of state should be made in the light
of contemporary standards of international law. Reliance on precedents dating back
to the last century is inherently contradictory with the asserted intention of
interpreting the SIA in the light of contemporary standards of international law. Their
many peculiarities notwithstanding, the Duke of Brunswick and Hatch cases were
decided at a time when the unfettered deference to the status of foreign sovereigns was
the obvious tribute to the indisputable principle of absolute respect for state
sovereignty.79
Nor is the argument that the slow and uncertain progress made by the
doctrine of individual crimes should yield to the long and firmly established rule of
head of state immunity particularly convincing.80
In historical perspective, the
opposite stance should be taken.81
While the development of the human rights
doctrine and the principle of individual responsibility for crimes of international law
have rapidly emerged as the fundamental tenets of the international community,
jurisdictional immunities of foreign states and their organs have been the object of a
process of steady erosion.
A closer look at recent practice shows that there is no clear-cut answer to the above
queries. Immunity for heads of state and lower state officials for acts performed in the
exercise of their functions has given rise to a scant and fairly inconclusive case law.
While some authority supports the view that former heads of state would not enjoy
Immunity versus Human Rights: The Pinochet Case 257
82
Reference was made in the Pinochet case to the following cases: Ex King Farouk of Egypt v. Christian Dior,
S.A.R.L.: (1957) 24 ILR 228; Soc. Jean Desses v. Prince Farouk (1963) 65 ILR 37; Jimenez v. Aristeguieta,
311 F. 2d 547 (5th Cir. 1962). For a complete and detailed account of the legal status of deposed heads of
state see Decaux, ‘Le Statut du Chef d’État Déchu’, 26 AFDI (1980) 101. Presumably, even the type of
criminal acts mentioned by way of example by Lord Steyn in the first ruling of the House of Lords (the
killing of the gardener in a fit of rage or the torturing of a person for his own pleasure) could be amenable
within the category of private acts.
83
Counsel for Chile made reference to the case Marcos & Marcos v. Department of Police (102 ILR 198), in
which a Swiss Federal Court held that public international law grants immunity to former heads of states,
even with regard to criminal acts allegedly committed while they were in power, unless the immunity is
waived by their state (which the Republic of the Philippines did in the case at hand). Perhaps reference
could have been made to the Honecker case, in which proceedings had been brought against the former
Chairman of the GDR State Council for homicide. Although the proceedings against him were
discontinued after the Supreme Constitutional Court of Berlin held that the continuation of proceedings
against a person who is expected to die before they come to an end is an infringement of the human
dignity of the defendant, the fact that he was standing trial for acts committed while he was in post can be
interpreted to the effect that he was not held immune for criminal acts performed in the exercise of his
functions (Honecker Prosecution Case (Case No. VerfGH 55/92), Federal Republic of Germany, Supreme
Constitutional Court (VerfGH) of Berlin, 12 January 1993, 100 ILR 393), although other considerations
concerning the unification of Germany may explain his not being granted immunity (see Watts, supra
note 74, at 89, note 201).
84
Jaffe v. Miller, [1993] 95 ILR 446, at 458–459.
85
See Bank of Credit and Commerce International (Overseas) Ltd (In Liquidation) v. Price Waterhouse (A Firm)
and Others, England, High Court, Chancery Division, 5 November 1996, reported in 111 ILR 604: ‘In so
far as the sovereign or head of state is acting in a public capacity on behalf of that state, he is clothed with
the immunity that the state has. When acting in this capacity, the head of state and the state are, to some
extent, indistinguishable. On the other hand, when acting in any other capacity, it is sensible that he
should have immunity equivalent to that enjoyed by the state’s diplomatic staff’ (at 610).
immunity for their private acts during their term of office,82
few are the cases which
deal with criminal conduct amenable within the range of official functions.83
As Lord
Phillips rightly stressed, it is difficult to provide sufficient evidence that customary
international law entitles a former head of state to immunity from criminal process in
respect of crimes committed in the exercise of his official functions. Most of the existing
case law is concerned with civil proceedings and is strongly influenced by the content
and interpretation by courts of domestic codification of state immunity and related
issues. In the recent Canadian case Jaffe v. Miller, concerning an action in tort against
a foreign state’s officials for laying false criminal charges and for conspiracy to kidnap,
the Ontario Court of Appeal found that immunity should be granted to them,
otherwise state immunity could be easily circumvented by suing state functionaries.84
In the United Kingdom, the SIA had been recently interpreted, in the context of civil
proceedings, to the effect of granting to heads of states of recognized states the same
immunity the state has when the former act in their official capacity, whereas when
they act in their private capacity they would be entitled to the immunities enjoyed by
diplomatic agents under Section 20 of the SIA.85
In the United States, the Foreign Sovereign Immunities Act (FSIA) does not
expressly include provisions on heads of state and the Act has been deemed
inapplicable by American courts to heads of states. The prevailing view seems to be
that the head of state immunity is a common law doctrine applicable to the person the
258 EJIL 10 (1999), 237–277
86
See U.S. v. Noriega, 117 F. 3d 1206 (Court of Appeals 11th Cir., 1997); Kadic v. Karadzic, 70 F. 3d 232
(2nd Cir., 1995); Alicog et al. v. Kingdom of Saudi Arabia et al., 860 F. Supp. 379 (SD Texas, Houston
Division, August 10, 1994); Lafontant v. Aristide, 844 F. Supp. 128 (EDNY January 27, 1994). See also
the interesting dictum of the court in United States v. Noriega, 746 F. Supp. 1506 (S.D. Fla, 1990), in
which the court, denying head of state immunity to General Noriega, as he had never been recognized as
the head of state of Panama, held that the grant of immunity is a privilege which the United States may
withhold from any claimant. Furthermore, the court held that had head of state immunity been granted
to Noriega ‘illegitimate dictators [would be granted] the benefit of their unscrupulous and possibly brutal
seizure of power’ (at 1521).
87
99 F. Supp. 1 (DC Columbia, 1998), in which denial of immunity to Iran, to Ayatollah Khomeini,
qualified as the Supreme Leader of the Islamic Republic of Iran, and to Mr. Rafsanjani, former president of
the Islamic Republic of Iran for providing material support and resources to the Shaqaqi faction of the
Palestinian Islamic Jihad, which caused the wrongful death of an American citizen in Israel was justified
under the recent amendment to the FSIA (see infra, note 130 and accompanying text), which expressly
provides for the denial of immunity to foreign states and their officials that facilitate terrorist activities.
The statutory provision (see infra, note 130) overrides the common law doctrine of head of state
immunity.
88
See Paul v. Avril, 812 F. Supp. 207 (SD Florida, 1993).
89
See Chuidian v. Philippine National Bank, 912 F. 2nd 1095, 1103 (9th Cir., 1990). For a comment and
comparison with English law see Whomersley, ‘Some Reflections on the Immunity of Individuals for
Official Acts’, 41 ICLQ (1992) 848.
90
The FSIA was held to be inapplicable to activities not carried out under the authority of the state: see In re
Estate of Ferdinand Marcos Human Rights Litigation, 978 F. 2d 493 (9th Cir., 1992), at 498 and In re Estate
of Ferdinand Marcos Human Rights Litigation, 25 F. 3d at 1472.
91
921 F. Supp. 1189 (SDNY, April 18, 1996).
92
886 F. Supp. 162 (DMA, April 12, 1995).
93
On issues of immunity and justiciability in the United States involving foreign heads of states see also
Paust, ‘It’s No Defense: Nullum Crimen, International Crime and the Gingerbread Man’, 60 Albany Law
Review (1997) 657, at 658 et seq. On the availability of civil remedies for grave violations of human rights
United States government acknowledges as the official head of state and that courts
defer to the executive’s determination of who qualifies as a head of state.86
This
attitude has been recently confirmed in Flatow v. Islamic Republic of Iran et al., holding
that head of state immunity, regarded by the court as more a matter of grace and
comity than of right, applies only to individuals qualified by the political branch of
government as legitimate heads of recognized states.87
Immunity would also be denied
if the foreign state has expressly waived it.88
Interestingly enough, the FSIA has been
held to apply to officials of foreign states acting in their official capacity,89
unless the
relevant acts exceed the lawful boundaries of a defendant’s authority.90
The latter
qualification was instrumental in Cabiri v. Assasie-Gyimah91
to deny immunity to the
Deputy Chief of National Security of Ghana for arbitrary detention and acts of torture
against a Ghanaian citizen. Similarly, in Xuncax v. Gramajo92
an action brought by
citizens of Guatemala against former Guatemala’s Minister of Defence for acts of
torture, arbitrary detention, summary executions and enforced disappearance was
thought not to be barred by the FSIA, which is ‘unavailable in suits against an official
arising from acts that were beyond the scope of the official’s authority’. While the
latter case law is of some relevance to our analysis for the distinction it draws between
official acts and acts which exceed the lawful boundaries of official authority, it should
be stressed that both cases relate to civil proceedings.93
Although there seems to be no
Immunity versus Human Rights: The Pinochet Case 259
see Damrosch, ‘Enforcing International Law through Non-forcible Measures’, 269 RdC (1997) 13, at
155 et seq.
94
On the uncertain status of head of state immunity in the United States see Mallory, ‘Resolving the
Confusion over Head of State Immunity: The Defined Rights of Kings’, 86 Columbia Law Review (1986)
169.
95
P. De Sena, Diritto internazionale e immunità funzionale degli organi statali (1996).
96
‘The principle of international law, which under certain circumstances, protects the representative of a
state, cannot be applied to acts which are condemned as criminal by international law. The authors of
these acts cannot shelter themselves behind their official position in order to be freed from punishment in
appropriate proceedings . . . individuals have international duties which transcend the national
obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain
immunity while acting in pursuance of the authority of the State if the State in authorizing action moves
outside its competence under international law’ (22 Trial of the Major War Criminals Before the
International Military Tribunal (1949) 466).
97
See, for instance, Art. IV of the Convention for the Prevention and Punishment of the Crime of Genocide
(1948).
98
See Art. 7 of the Nuremberg Charter (1945); Art. 2 of the Allied Control Council Law No. 10 (1945); Art.
6 of the Tokyo Charter (1946); Principle III of the Principles of Law Recognized in the Charter of the
Nuremberg Tribunal and the Judgment of the Tribunal (UN Doc. A/1316 (1950), reprinted in 4 AJIL
(1950) 126); Art. 7(2) of the Statute of the International Tribunal for Former Yugoslavia (1993); Art.
6(2) of the Statute of the International Criminal Tribunal for Rwanda (1994); Art. 7 of the UN Draft Code
of Offences against the Peace and Security of Mankind (1996) and Art. 27 of the Statute of the
International Criminal Court (1998). It is also of note that, according to the UN Secretary General’s
Report to the Security Council, pursuant to SC Res. 808 (1993), concerning the establishment of an
International Criminal Court, there was universal consensus among states that the Statute of the Court
should contain provisions providing for the personal criminal responsibility of heads of state, government
officials and other persons acting in an official capacity (UN Doc. S/25704, 3 May 1993, para. 55).
99
Top political leaders and high military commanders have been indicted by the ICTY (see Prosecutor v.
Karadzic & Mladic, No. IT-95–18-I, Indictment (14 Nov. 1995) and the former Prime Minister of Rwanda,
Kambanda, has been recently convicted to serve a life term in prison for crimes against humanity (see
Prosecutor v. Kambanda, No. ICTR-97–23-9, 4 Sept. 1998, reprinted in 37 ILM (1998) 1411).
100
Attorney General of Israel v. Eichmann, supra note 40, at 47–48.
case law on this specific point, it is fair to presume that heads of state would also be
entitled to the residual immunity provided by the FSIA.94
As recent studies purport, apart from the case of the immunity of diplomats and
consuls for their official (and authorized by the territorial state) activities, it is difficult
to establish the existence, under customary international law, of either a general
regime of residual or functional immunity for high and low rank foreign state officials
for acts performed in the exercise of their functions, or an ad hoc rule on heads of
state.95
On the other hand, considerable support can be drawn from state practice to
maintain that individuals are accountable for crimes of international law regardless of
their official position. Besides the well-known quotes from the Nuremberg judgment,96
many provisions can be traced in treaties proscribing specific crimes97
as well as in the
statutes98
and practice of international tribunals99
to the effect that no plea of
immunity is available in case of crimes of international law. The principle was
endorsed also by the Israel Supreme Court in the judgment against Eichmann.100
Most
recently, the International Criminal Tribunal for the former Yugoslavia (ICTY) in
Furundzija held that the principle that individuals are personally responsible for acts of
260 EJIL 10 (1999), 237–277
101
Prosecutor v. Anto Furundzija, supra note 32, at para 140.
102
See Watts, supra note 74, at 82.
torture, whatever their official position, even if they are heads of state or government
ministers, is ‘indisputably declaratory of customary international law’.101
Nor does
the argument that the responsibility of heads of state and other government officials
for crimes of international law can only be enforced before international tribunals
carry much force with it.102
Besides the difficulty of establishing international criminal
tribunals, it would be odd indeed, were the international normative standards to vary
depending on the court which has to apply them.
Even if one is not convinced that the above instances of state practice can be
persuasively interpreted to the effect of demonstrating the existence of a positive rule
which requires states not to grant immunity to heads of state in cases in which the
commission of crimes of international law is involved, the same conclusion could be
reached via a different reasoning. It is not infrequent that courts have to decide cases
for which there is no precedent or where no established or accepted rule comes in
handy to provide the rule of decision. In any such case, the court ought to interpret the
law systematically and in accordance with what are perceived as the basic principles
and goals of the legal system it is called upon to interpret. The more the rule of decision
is grounded on and consistent with accepted general principles, the more the decision
will be perceived as legitimate and fair. In many respects, this is the type of analysis
which several Law Lords endeavoured to carry out. The divide between the Law Lords
sitting in the first Appellate Committee is evidence of the sense of uncertainty over
which values and principles should be accorded priority in contemporary international
law. The two opposite poles of the spectrum are evident. On the one hand,
there stands the principle of sovereignty with its many corollaries including
immunity; on the other, the notion that fundamental human rights should be
respected and that particularly heinous violations, be they committed by states or
individuals, should be punished. While the first principle is the most obvious
expression and ultimate guarantee of a horizontally-organized community of equal
and independent states, the second view represents the emergence of values and
interests common to the international community as a whole which deeply cuts
across traditional precepts of state sovereignty and non-interference in the internal
affairs of other states. The two views are not mutually exclusive. Occasionally,
however, they may come to clash as the interests and values they support are
remarkably different. This is all the more likely when no established rule exists to
provide the rule of decision in a case and courts have to make recourse to general
principles to fill in the lacunae or to interpret controversial points of law.
The inconsistency of the very notion of crimes of international law with any form of
immunity which shields individuals behind the screen of their official position is
apparent. Immunity as a form of protection which international law grants, under
certain circumstances, to particular categories of individuals is incompatible with
conduct which runs counter to the fundamental principles of the international legal
system. The argument is one of logic. International law cannot grant immunity from
Immunity versus Human Rights: The Pinochet Case 261
103
Besides the well-known dicta of the Nuremberg Tribunal (see supra note 96), see also Prosecutor v.
Erdemovic´, supra note 49 in which the Trial Chamber of the ICTY characterized crimes against humanity
as crimes which ‘transcend the individual, because when the individual is assaulted, humanity comes
under attack and is negated’ (at 149).
104
Prosecutor v. Tadic´, Decision on Jurisdiction (Appeals Chamber), Judgment of 2 October 1995, 105 ILR
453, at 483.
105
While extensive reliance was placed on Sir Arthur Watts Hague Lectures on the position of heads of states
in international law, particularly where he recognizes that heads of states may be personally held
accountable for ‘international crimes which offend against the public order of the international
community’, no heed was paid to the circumstance that this statement was not confined to the position of
heads of state after loss of office.
106
See Decaux, supra note 82, at 139: ‘La moralisation du droit international trouve très vite ses limites. Se
contenter de mettre en accusation les souverains déchus, c’est oublier la responsabilité des Chefs d’Etat au pouvoir.
Seul un paradoxe permet de dire que le chef d’Etat criminel perd toutes ses immunités de juridiction parce qu’il est
criminel: il les perd parce qu’il est vaincu et detrôné. C’est le pouvoir qui le protégeait, non le droit. Et, le pouvoir
déchu, l’ancien chef d’Etat se trouve soumis à la lois du vainquer.’ Given the extreme fragmentation of the legal
position of former heads of state, Decaux expressed the need for international law to fix general standards
to direct state practice. Although sceptical, he acknowledged that agreement could be reached as regards
the punishment of crimes of international law as defined in Nuremberg (ibid).
107
See Orrego Vicuña, ‘Diplomatic and Consular Immunities and Human Rights’, 40 ICLQ (1991) 34,
holding that ‘by no standard can such acts [the violation of human rights] be considered as part of the
diplomatic function, and thus neither can be considered an official act’ (at 47).
108
This concern was expressed by Lord Goff of Chieveley in his opinion (see supra note 31).
prosecution in relation to acts which the same international law condemns as
criminal and as an attack on the interests of the international community as a whole.
Nor can the principle of sovereignty, of which immunity is clearly a derivative, be
persuasively set forth to defeat a claim based on an egregious violation of human
rights.103
As the ICTY held in Tadic´, ‘[it] would be a travesty of law and a betrayal of the
universal need for justice, should the concept of State sovereignty be allowed to be
raised successfully against human rights’.104
The compelling force of the argument
cannot be limited to cases involving the immunity ratione materiae of former heads of
state or other state officials. The alleged commission of international law crimes
should also dispose of a claim of immunity ratione personae.105
Were it not so, one
would be left with the impression that it is power more than law which protects office
holders and that no matter whether they place themselves well beyond the legitimate
boundaries of their official authority, they will be protected by law as long as they
retain their power, whereas they will be left to their fate once that power comes to an
end.106
Incidentally, the need to reassess the scope of diplomatic immunities for
violations of human rights had been signalled long before the Pinochet case.107
The objection can be raised that denial of immunity may cause misguided or even
malicious allegations to be brought against heads of state or lower state officials.108
While it would be simplistic to reject such a concern as unfounded, the point can be
made that several instruments exist to limit vexatious claims. First, immunity should
only be denied in relation to offences recognized as crimes of international law.
Secondly, such remedies as sanctions against frivolous claims and such instruments of
judicial administration as the discretionary power of prosecutors to start proceedings
262 EJIL 10 (1999), 237–277
109
See the decision of the Amsterdam Public Prosecutors Department not to initiate proceedings against
General Pinochet while on a private visit to Amsterdam. The decision, appealed by the Dutch branch of
the Chile Committee, was upheld by the Court of Appeal (see 28 Netherlands Yearbook of International Law
(1997) 363).
110
Susana Siderman de Blake et al. v. the Republic of Argentina, 965 F. 2d 699 (9th Cir., 1992), at 717. Accord
Smith v. Libya, 101 F. 3d 239 (2nd Cir., 1996), at 243.
111
See Prosecutor v. Anto Furundzija, supra note 32, discussing the consequences at both state and individual
levels of the qualification of torture as a jus cogens norm (see, esp. paras 153–157).
112
See Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’, 28 BYbIL (1951) 220.
could be aptly used at the domestic law level to reduce the alleged risk.109
In any event,
practical considerations, however important, cannot by themselves direct a change in
the interpretation of the law to the detriment of the primary value of securing respect
for some fundamental aspects of human dignity.
A last note concerns the link established in the opinion of some of the Law Lords
between immunity, crimes of international law and universality of jurisdiction. To
hold that under customary international law there can be no immunity for crimes of
international law and that the exercise of extraterritorial jurisdiction over certain
grave offences is permitted on the basis of the universality principle does not exclude
that immunity can be granted by treaty or, unilaterally, by states on the basis of either
municipal legislation or considerations of comity and international courtesy to
visiting heads of state. However, if one characterizes the prohibition of torture and,
arguably, other crimes of international law as norms of jus cogens, it becomes difficult
to argue that immunity, whatever its legal basis, can coexist with them. As was
argued in Siderman, quoted and relied upon by some Law Lords in the second ruling on
the Pinochet case, since jus cogens norms enjoy the highest status within international
law, they prevail and invalidate other rules of international law.110
It is perhaps not
unfair to speculate that some of the Law Lords, whose reasoning on the characterization
of the prohibition of torture as a jus cogens norm may have been influenced
also by the recent Furundzjia case,111
did not fully grasp the consequences of qualifying
a rule of international law as peremptory.
5 The Inconsistency between Head of State and State
Immunity
State immunity and the immunity ratione materiae enjoyed by heads of state are
closely intertwined doctrines, as a large majority of the Law Lords acknowledged.
Given such a close link, one may wonder what impact, if any, the decision of the House
of Lords will have on the future development of the law of state immunity. As is
known, foreign sovereign immunity is a doctrine of international law, whose origins
remain uncertain. While many maintain that the doctrine is grounded on the
principle of sovereign equality and independence of states, authoritative commentators
have traced its origin to heads of state immunity, at a time in which the state
and the sovereign coincided.112
With the formation of modern states, the entitlement
Immunity versus Human Rights: The Pinochet Case 263
113
The most notable exception is the so-called ‘tort exception’, which allows denying immunity to foreign
states for their illegal acts which cause death or personal injury or loss of or damage to property in the
forum state. Occasionally, this exception has been applied to cases of political assassination allegedly
committed by the foreign state in the forum: see Letelier v. Republic of Chile, 488 F. Supp. (1980) and Liu v.
Republic of China, 892 F. 2d 1419 (9th Cir., 1989).
114
The best account of the development of the international law of state immunity, with particular regard to
recent developments, remains C. H. Schreuer, State Immunity: Some Recent Developments (1988).
115
Such practice is reviewed in Bianchi, ‘Denying State Immunity to Violators of Human Rights’, 46
Austrian J. Publ. Int’l L. (1994) 195.
116
Saudi Arabia v. Nelson, 113 S. Ct. 1471 (1993), at 1480.
117
See Susana Siderman de Blake et al. v. the Republic of Argentina, supra note 110: ‘when a state violates jus
cogens, the cloak of immunity provided by international law falls away, leaving the State amenable to
suit’ (at 718). See also Smith v. Libya, supra note 110, recognizing that, as a matter of international law,
state immunity would be abrogated by jus cogens norms (at 244).
118
Al Adsani v. Government of Kuwait, England, Court of Appeal, 12 March 1996 (107 ILR 536).
119
In the United States the Supreme Court before Nelson had already authoritatively determined that
violations of international law not expressly mentioned in the FSIA are not admissible exceptions to the
general rule of immunity (see Argentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 109 S. Ct.
683, 102L. Ed. 818 (1989). For a comment see Bianchi, ‘Violazioni del diritto internazionale ed
immunità degli Stati dalla giurisdizione civile negli Stati Uniti: il caso Hercules’, 72 Rivista di diritto
internazionale (1989) 546).
to immunity was passed to the state and to its agents and instrumentalities. According
to the mainstream of legal scholarship, the jurisdictional immunity of states before
foreign municipal courts used to be absolute. Only when governments and their
agencies became frequently involved in international trade and finance did the law
change. Particularly, due to the judicial activism of some municipal courts, immunity
started being denied for private or commercial acts of the foreign state. At some point,
in order to facilitate the task of domestic courts in determining which acts of the
foreign states should be qualified as private or commercial, the law of state immunity
was codified by statute in many jurisdictions. All domestic statutes list a series of
exceptions, mainly, though not exclusively,113
concerned with private and commercial
transactions, and retain immunity as the general rule.114
When individuals started seeking redress for violations of human rights before
domestic courts against foreign states, mainly alleging acts of torture by state officers,
domestic courts were bound to apply the residual rule of immunity under their
domestic legislation. While lower courts, especially in the United States, had resorted
to a variety of interpretative devices to avoid granting state immunity to foreign
violators of human rights,115
in 1993 the Supreme Court in Nelson held that, however
monstrous, acts of torture by police officers are by definition sovereign acts and as
such they entitle the foreign state to immunity.116
The binding force of the Supreme
Court precedent has caused lower courts, although in some cases reluctantly,117
to
adjust their case law accordingly. In 1996 the English Court of Appeal (Civil Division)
reached the same conclusion in Al Adsani, concerning the torture of a dual
British/Kuwaiti national by Kuwaiti officials in Kuwait.118
In both cases the upholding
of the claim to immunity was thought to be prompted by the plain and unambiguous
text of the relevant statutes on state immunity.119
Particularly in the United Kingdom,
the rule of statutory construction, whereby Parliament cannot be presumed to have
264 EJIL 10 (1999), 237–277
120
The rule has been restated recently in R. v. Secretary of State for the Home Department ex Parte Brind [1991]
1 AC 696. As Ward LJ put it: ‘Unfortunately the Act is as plain as it can be. A foreign state enjoys no
immunity for acts causing personal injury committed in the United Kingdom and if that is expressly
provided for the conclusion is impossible to escape that state immunity is afforded in respect of acts of
torture committed outside the jurisdiction.’ (Al Adsani v. Government of Kuwait, supra note 118, at 549).
121
Ex Parte Pinochet (High Court), supra note 6, at para. 73.
122
Lord Lloyd (Ex Parte Pinochet (HL 1) at 1324) quoted Al Adsani and Siderman to hold that allegations of
torture may not trump a plea of immunity.
123
See, for example, the opinions of Lord Nicholls (Ex Parte Pinochet (HL 1) at 1331) and Lord Hutton (Ex
Parte Pinochet (HL 2) at 158c–d).
124
See Lord Phillips (Ex Parte Pinochet (HL 2) at 187f), quoting the ‘impressive, and depressing’ list of cases
in which the immunity of the foreign state has been upheld in cases concerning serious human rights
violations.
125
See the opinion of Lord Millett, Ex Parte Pinochet (HL 2) at 179f–j. Lord Millett saw nothing wrong in
drawing the distinction between civil and criminal proceedings and noted that ‘the same official or
governmental character of the acts which is necessary to found a claim to immunity ratione materiae, and
which still operates as a bar to the civil jurisdiction of national courts, was now to be the essential element
which made the acts an international crime’ (ibid, at 175a). Before the Pinochet case, the inconsistency
between allowing extraterritorial jurisdiction over acts of torture committed by individuals and
upholding immunity for acts of torture in the context of civil proceedings against foreign states had been
noticed by Marks, ‘Torture and the Jurisdictional Immunities of Foreign States’, 8 Cambridge Law Journal
(1997), at 10.
legislated contrary to the international obligations of the United Kingdom, can only be
triggered by the unclear or ambiguous character of the relevant statutory
provisions.120
The Al Adsani case was relied on by Lord Bingham in the Divisional Court to
maintain that ‘[i]f the Government there could claim immunity in relation to alleged
acts of torture, it would not seem surprising if the same immunity could be claimed by
a defendant who had at the relevant time been the ruler of that country’.121
In fact,
after the ruling of the House of Lords there should be no surprise if the argument is
reversed. The Law Lords, with a few exceptions,122
generally regarded the above case
law as irrelevant for its being concerned exclusively with civil proceedings.123
Some of
them, however, recognized, although without enthusiasm, that there is some
authority to maintain that in the field of civil litigation immunity should be granted to
state officials, regardless of the lawful character of their conduct.124
Presumably, after
the Pinochet case, while state and state officials would continue to be held immune in
civil proceedings in the United Kingdom for acts of torture and, arguably, other crimes
of international law, as regards criminal proceedings they might be held accountable
and no plea of immunity might be available to them.125
To the present writer this
creates a manifest inconsistency which ought to be remedied by denying immunity
also to state and state officials in civil proceedings.
Immunity versus Human Rights: The Pinochet Case 265
126
A particularly exhaustive account of the reasons why domestic courts should not be permitted to exercise
jurisdiction over foreign states for acts of torture in defiance of state immunity is given by Garnett, ‘The
Defence of State Immunity for Acts of Torture’, 18 Australian Yearbook of Int’l Law (1997) 97.
127
The views of this writer were expressed in Bianchi, supra note 115.
128
See also Higgins, supra note 72, at 53: ‘Acts in the exercise of sovereign authority (acta jure imperii) are
those which can only be performed by states, but not by private persons. Property deprivation might fall
in this category; torture would not.’ (footnote omitted).
The pros and cons of having domestic courts adjudicating cases involving the
international responsibility of states have been highlighted by scholars.126
It is not
within the scope of this paper to reopen that debate.127
It will suffice here to note that
the argument that the immunity ratione materiae of state officials is necessary not to
circumvent the immunity of the state can be used to maintain that once it is held that
no plea of immunity is available to state officials for crimes against international law
which presuppose or require state action, the immunity of the state can be easily
circumvented by bringing criminal proceedings against state officials. Nor is the
argument that the degree of interference would be higher if the state is directly
impleaded particularly persuasive. For such systematic and massive violations of
human rights as the ones allegedly committed by General Pinochet close and
extensive scrutiny of state policies and actions is required. Ultimately, any argument
based on state sovereignty is inherently flawed. First, external scrutiny of state action
as regards human rights is permitted under contemporary standards of international
law and sovereignty can no longer be invoked to justify human rights abuses.
Secondly, and perhaps most importantly, human rights atrocities cannot be qualified
as sovereign acts: international law cannot regard as sovereign those acts which are
not merely a violation of it, but constitute an attack against its very foundation and
predominant values.128
Finally, the characterization of the prohibition of torture and
other egregious violations of human rights as jus cogens norms should have the
consequence of trumping a plea of state immunity by states and state officials in civil
proceedings as well. As a matter of international law, there is no doubt that jus cogens
norms, because of their higher status, must prevail over other international rules,
including jurisdictional immunities.
If interpretative techniques are of no avail in securing the adjustment of domestic
law to contemporary standards of international law, it would be desirable that in
266 EJIL 10 (1999), 237–277
129
The use of the adverb is not fortuitous. It seems unlikely that at the time of enactment of the relevant
statutes, domestic legislators were aware of the possibility that foreign states would be sued for serious
violations of human rights before domestic courts. Furthermore, as rightly observed by some
commentators, the choice of leaving immunity as the residual rule of general applicability is questionable
as a matter of international law (see Sucharitkul, ‘Developments and Prospects of the Doctrine of State
Immunity. Some Aspects of the Law of Codification and Prospective Development’, 29 Netherlands Int’l L.
Rev. (1982) 252; Higgins, ‘Certain Unresolved Aspects of the Law of State Immunity’, 29 Netherlands Int’l
L. Rev. (1982), at 265 et seq.).
130
See the recent amendments to the Foreign Sovereign Immunities Act: Antiterrorism and Effective Death
Penalty Act of 1996 (Pub. L. 104–132, Title II, § 221(a), (April 24, 1996), 110 Stat. 1241, codified at 28
U.S.C.A. 1605), creating an exception to immunity ‘for personal injury or death that was caused by an
act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support
or resources . . . for such an act if such act or provision of material support is engaged in by an official,
employee, or agent of such foreign State while acting within the scope of his or her office, employment, or
agency’ (§ 1605(a)(7)). It is unfortunate that the amendment applies only to the immunity of those states
that are currently designated by the Department of State as states sponsors of terrorism (Cuba, Syria,
Iraq, Lybia, Sudan and North Korea), when the act has been committed outside the foreign state and
when the claimants and victims are US nationals. Recently a further amendment to § 1605 (a)(7)
has made punitive damages available in actions brought under the state-sponsored exception to
immunity (see Civil Liability for Acts of Terrorism (September 30, 1997), enacted as part of the 1997
Omnibus Consolidated Appropriations Act, Pub. L. 104–208, Div. A, Title I § 101(c), 110 Stat.
3009–172, reprinted at 28 U.S.C. § 1605 note). This latter amendment is known as the Flatow
Amendment. For the first judicial applications of the above amendments to the FSIA see Alejandre v. The
Republic of Cuba, 996 F. Supp. 1239 (SD Florida, 17 December 1997)(concerning Cuba Air Force’s
extrajudicial killing of pilots of civilian aircrafts flying above international waters); Flatow v. Islamic
Republic of Iran, 999 F. Supp. 1 (DC Columbia, 11 March 1998) (wrongful death of US citizen in Israel
resulting from an act of state-sponsored terrorism); Cicippio v. Islamic Republic of Iran, (DC Columbia, 27
August 1998) (tortious injuries suffered by US citizens kidnapped, imprisoned and tortured by agents of
Iran in Beirut).
131
Contra, see the submission of Iraqi Airways Co. (Mr Plender, counsel) in Kuwait Airways Corpn. v. Iraqi
Airways Co. (House of Lords), 1 WLR 1147 at 1164 ff., according to which the principle of
non-justiciability, as set forth by the House of Lords in Buttes (see infra, note 141, and accompanying text)
would be one which limits the jurisdiction of courts, rather than operating as a substantive defence.
132
See A. Watts and R. Jennings (eds), Oppenheim’s International Law (9th ed., 1992), at 369. That the act of
state doctrine is not a general rule of international law was held by the German Bundesverfassungsgericht
in the Border Guards case (100 ILM 364 at 372).
those countries where domestic laws have, perhaps inadvertently,129
had the effect of
granting immunity, the law should be amended accordingly.130
6 Crimes of International Law and Non-justiciability
Contrary to foreign sovereign immunity, act of state is a domestic law doctrine of
judicial self-restraint whereby domestic courts will abstain from passing judgment
over the acts of a foreign sovereign done in its own territory. This doctrine generally
applies to the merits of the case and can be pleaded by anyone regardless of the status
of the defendant in the instant case.131
While there might be international law
underpinnings to the doctrine, the modern view is that act of state is neither a rule of
international law nor is its application mandated by the international legal system.132
Immunity versus Human Rights: The Pinochet Case 267
133
See Conforti, supra note 46, at 20 et seq.; Weil, ‘Le contrôle par les tribuneaux nationaux de la liceité
internationale des actes des États étrangers’, Annuaire Français de Droit International (1971), at 9 et seq.; P.
Kinsch, Le fait du prince étranger (1994), esp. at 384 et seq.
134
Singer, ‘The Act of State of the United Kingdom: An Analysis with Comparison to the United States’, 75
AJIL (1981), at 283 et seq.
135
See the classical formulation of the act of state doctrine by the US Supreme Court in Underhill v. Hernandez
(168 U.S. 250 (1897) at 252): ‘Every sovereign State is bound to respect the independence of every other
sovereign State, and the courts of one country will not sit in judgment on the acts of the government of
another, done within its own territory.’ Quite curiously, the Supreme Court took almost verbatim, but
without quoting, a passage of the House of Lords in Duke of Brunswick v. King of Hanover (1848) 2 H.L.
Cas. 1, at 17 (Lord Cottenham).
136
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). The Sabbatino litigation arose from the action
brought by a Cuban state-owned bank seeking recovery of sugar delivered to a US purchaser that had
refused to pay, alleging, inter alia, that the bank lacked title to the property, as the sugar had been
expropriated by Cuba in violation of international law.
137
W.S. Kirkpatrick v. Environmental Tectonics 493 U.S. 400 (1990). The case concerned two US companies
bidding for a Nigerian defence contract. Allegedly, one bidder had paid bribes to Nigerian government
officials. The other company filed a federal antitrust and RICO action against the former successful bidder.
138
On the numerous exceptions to the application of the act of state doctrine in the United States see G. B.
Born, International Civil Litigation in United States Courts (3rd ed., 1996) at 729 et seq.
139
Restatement (Third), supra note 72, § 443, Comment c: ‘A claim arising out of an alleged violation of
fundamental human rights . . . would . . . probably not be defeated by the act of state doctrine, since the
accepted international law of human rights is well established and contemplates external scrutiny of
such acts.’
The doctrine, not unknown in civil law countries,133
has mainly developed in common
law jurisdictions. Although cross-references between the case law of their respective
courts is frequent, the doctrine has taken up different connotations in the United
States and in the United Kingdom.134
Despite early assertions of the doctrine in fairly sweeping terms,135
its scope of
application in the United States has been remarkably narrowed down over the years.
An increasing number of exceptions to its operation has been conceived since the
seminal Sabbatino case136
and, recently, the US Supreme Court in Environmental
Tectonics137
has restricted its scope of application to cases requiring courts to ascertain
the validity of the sovereign acts of foreign states. As regards more specifically human
rights, it is arguable whether a specific exception to the application of the doctrine has
emerged.138
The Restatement (Third) of the Foreign Relations Law of the United States
maintains that any plea based on act of state would probably be defeated in cases
involving violations of human rights, as human rights law permits external scrutiny
of states’ conduct.139
It is quite interesting to note that US lower courts, in order to avoid the application
of both the foreign sovereign immunity and the act of state doctrines, have drawn a
distinction between official and unofficial public acts. Certain crimes such as torture
and other clearly established violations of fundamental human rights could not be
regarded as official public acts of a foreign state. Regardless of the colour of authority
under which state organs act when committing such crimes, their acts cannot be
268 EJIL 10 (1999), 237–277
140
See, inter alia, Filartiga v. Peña Irala, 630 F. 2d 876 (2nd Cir., 1980); Forti v. Suarez Mason, 672 F Supp
1531 (ND Cal., 1987); Evans et al. v. Avril, 812 F Supp 207 (SD Florida, 1993); Kadic v. Karadzic, 70 F. 3d
232, (2nd Cir., 1995). See also Liu v. Republic of China, 892 F. 2d 1419 (9th Cir., 1989). For a similar
reasoning applied in the context of the applicability of the FSIA see Cabiri v. Assasie-Gyimah, 921 F. Supp.
1189 (SDNY, April 18, 1996) and Xuncax v. Gramajo, 886 F. Supp. 162 (DMA, April 12, 1995).
141
Buttes Gas v. Hammer (Nos. 2 & 3), [1981] 3 All ER 616 at 628; (no. 3) [1982] AC 888 at 931 et seq.
Accord, J.H. Rayner Ltd. v. Department of Trade (House of Lords) [1989] 3 WLR 969 at 1001–1002.
142
Higgins, supra note 48, at 212–213.
143
Oppenheimer v. Cattermole 1976 AC 249.
144
Ibid, at 278.
145
Ibid, at 277–278.
qualified as governmental, as foreign states are unlikely to have enacted legislation or
overtly adopted policies to direct their organs to violate human rights.140
In the United Kingdom the scope of application of the doctrine seems wider than in
the United States. The modern English version of the act of state doctrine was
formulated in fairly sweeping terms by Lord Wilberforce in the Buttes Gas case in the
early 1980s. According to Lord Wilberforce, there would be in English law a general
principle of judicial abstention, inherent in the very nature of the judicial process,
which would prevent courts from adjudicating directly on the transactions of foreign
sovereign states.141
This all-encompassing principle of non-justiciability is rather
unique as it precludes judicial scrutiny of any transactions between foreign states.
Since the doctrine applies to transactions of foreign states which have a direct bearing
on the private claims before the court, the practical effect of holding such issues
non-justiciable is to prevent the courts from discharging their natural function of
administering the law. Although the doctrine is probably a derivative of foreign
sovereign immunity in its early absolute version, its consistency could be aptly
disputed in light of the many instances in which courts are allowed to rule upon
transactions between a state and a private party. 142
From the different perspective of conflict of laws, UK courts in Oppenheimer had
refused to give effect in the forum on grounds of public policy to the 1941 Nazi decree
depriving German Jews residing abroad of German citizenship and confiscating their
properties.143
The House of Lords held that ‘so grave an infringement of human rights’
should lead to the refusal of recognition of the German decree as law.144
More
importantly for our purposes, the House of Lords, while acknowledging that judges
ought to be cautious in refusing recognition of foreign laws in matters in which the
foreign state clearly has jurisdiction — as they may not have adequate knowledge of
the circumstances in which legislation was passed and may cause embarrassment to
the executive branch of government in the field of foreign relations — unambiguously
stated to be the public policy of the United Kingdom to give effect to clearly established
rules of international law.145
While limited to defining public policy as a limit to the
operation of foreign laws in the United Kingdom, this passage from Oppenheimer seems
to imply that UK courts would generally enforce international law rules, provided that
they have been duly incorporated into the legal system and that no act of Parliament
conflicts with them. It is somewhat surprising that Lord Steyn, who stated that ‘the act
Immunity versus Human Rights: The Pinochet Case 269
146
Ex Parte Pinochet (HL 1), at 1338.
147
Ex Parte Pinochet (HL 1), at 1332 and 1338.
148
See, esp., Criminal Justice Act 1988 as regards acts of torture and Taking of Hostages Act 1982. While
the former expressly permits the scrutiny of state officials’ conduct, parliamentary intent was indirectly
inferred from the latter in the light of the type of situations the act covers.
149
Ex Parte Pinochet (HL 1), at 1338.
150
Reference can be made also to the US ‘political question doctrine’, imposing self-restraint on courts when
required to review congressional or executive acts pertaining to the conduct of foreign affairs (see D. F.
Vagts, H. J. Steiner and H. H. Koh, Transnational Legal Problems (4th ed., 1994), at 124 et seq). On the
inapplicability of the doctrine to human rights violations see Linder v. Portocarrero, 963 F. 2d 332 (11th
Cir., 1992).
151
Both reasons were set forth in Sabbatino, supra note 136, by the US Supreme Court. The idea that the
rationale of the act of state doctrine has to be traced to separation of powers concerns was restated by
Justice Scalia in Environmental Tectonics, supra note 137.
of state doctrine depends on public policy as perceived by the courts in the forum at the
time of the suit’, did not rely on Oppenheimer to support his view.146
The dicta of the Law Lords in the first Pinochet case, touching upon the
non-justiciability doctrine, proved that Buttes is the controlling precedent as far as the
application of the doctrine in the UK is concerned. The Law Lords in the majority,
while acknowledging that no justiciability issue had actually arisen in the case at
hand, held that any plea based on act of state would be defeated by parliamentary
intent.147
By enacting legislation implementing both the Convention against Torture
and the Convention on the Taking of Hostages, the British Parliament had clearly
intended that UK courts could take up jurisdiction over foreign governmental acts.148
Moreover, Lord Steyn, in language reminiscent of the recent case law developed by US
courts, added that the high crimes with which General Pinochet had been indicted
could not be regarded as official acts performed in the exercise of the functions of a
head of state and therefore could not trigger the non-justiciability doctrine.149
While
the doctrine was given less consideration in the second judgment of the House of
Lords, Lord Saville held that any plea based on act of state or non-justiciability must
fail because the parties to the Torture Convention, which expressly prohibits torture
by state officials, have accepted that foreign domestic courts may exercise jurisdiction
over the acts of their organs in violation of the Convention. Lord Millett, in turn, by
holding that the immunity ratione materiae denied to Pinochet for the acts in question
is almost indistinguishable from the act of state doctrine, indirectly agreed that the
doctrine was of no avail in the case at hand.
Neither the act of state nor other related judicial self-restraint doctrines should
stand in the way of adjudicating cases involving individual crimes of international
law.150
It is widely believed that the doctrine originates from and is grounded on
separation of powers concerns. In particular, a ruling by domestic courts on foreign
policy issues might embarrass the executive branch of government in the conduct of
foreign relations and trespass on its prerogatives. Furthermore, its application would
be required especially when international normative standards are unclear.151
In the
view of this writer there cannot be any embarrassment by the executive, nor any
prejudice to its prerogatives, when domestic courts are called upon to enforce clear
270 EJIL 10 (1999), 237–277
152
On the inapplicability of the act of state doctrine to crimes against humanity see Malanczuk, supra note
63, at 122.
153
See A Limited Bank v. B. Bank and Bank of X, England, Court of Appeal, judgment of 31 July 1996 (111 ILR
591), quoting Kerr LJ in Maclaine Watson & Co. v. International Tin Council [1988] 3 WLR 1169 at 1188.
154
Ex Parte Pinochet (HL 1), Lord Nicholls, at 1334.
155
The expression is used by Fox, supra note 12, at 207.
and unambiguous standards, which are shared by the international community as a
whole.152
To hold the contrary view would amount to an acknowledgement that the
wide support manifested by states to both human rights and international criminal
law instruments is nothing but political propaganda. Finally, even if one identifies the
rationale of the rule with the same principle of respect for the independence and
sovereign equality of foreign states which also inspires the foreign sovereign
immunity doctrine, compelling reasons exist to hold the doctrine inapplicable. To
prevent the adjudication of the merits of a case on grounds of non-justiciability, once
the jurisdictional bar of immunity has been done away with, would have the effect,
hardly justifiable as a matter of logic, of upholding the validity of the same
considerations which had been deemed inapplicable in the early stages of the
proceedings when jurisdictional issues were addressed. In fact, although the two
doctrines of foreign sovereign immunity and non-justiciability remain logically
distinct, it is hard to envisage how a court could reasonably abstain from passing
judgment on the conduct of individuals who have committed crimes of international
law, after having recognized that international law grants no immunity either
rationae personae or ratione materiae in such cases. To uphold the applicability of the act
of state doctrine after denying immunity would amount to reintroducing in the guise
of non-justiciability the immunity which had been removed.153
This is not to deny that political considerations are relevant, but — as stressed by
Lord Nicholls154
— they should be considered by the executive when deciding,
exercising its discretion within the limits of international obligations and national
legislation, whether or not to extradite.
7 The Asynchronous Development of International Law
and the Quest for Normative Coherence
To attribute the aura of controversy surrounding the proceedings against General
Pinochet solely to the highly sensitive aspects of international politics involved in the
case would be a rather simplistic exercise. In fact, most of the controversial issues
underlying the case are of a legal character. The conflicting arguments submitted by
the parties before the House of Lords go well beyond the dynamics of argumentation
strategies inherent in the judicial process. They reflect also different conceptions of
international law, which eventually have come to clash. Indeed, the Pinochet case
may well signal ‘a shift from a State-centred order of things’.155
The notion of
individual accountability for crimes against humanity, the active role of municipal
Immunity versus Human Rights: The Pinochet Case 271
156
See Bianchi, ‘Globalization of Human Rights: the Role of Non-state Actors’, in G. Teubner (ed.), Global
Law without a State (1997), at 179 et seq.
157
See Barcelona Traction Light and Power Co. Ltd., ICJ Reports (1970), at 32.
158
On obligations erga omnes see, recently, M. Ragazzi, The Concept of International Obligations Erga Omnes
(1997).
159
See Article 53 of the 1969 Vienna Convention on the Law of Treaties. Generally, on jus cogens see L.
Hannikainen, Peremptory Norms (Jus Cogens) in International Law (1988).
courts in the enforcement of international criminal law as well as the steady process of
erosion of the foreign sovereign immunity doctrine are all elements which are hardly
amenable within the traditional representation of the international legal system as a
horizontally-organized community of sovereign and independent states. The disagreement
among the Law Lords involved in the proceedings, however, attests to the fact
that the current state of evolution of international law is the object of divergent
evaluations. This discrepancy can be partly due to the asynchronous development of
different areas of international law. The emergence and relatively rapid consolidation
of both human rights and international criminal law has deeply affected, but not
decisively altered, the structure and process of international law.156
The understandable
resilience of states to accepting a moving away from a strictly ‘State-centred
order of things’ creates a strain between yet unsystematized notions of international
public order and the traditional precepts of international law, largely based on the
sovereignty paradigm. The Pinochet case is illustrative of this situation. In strictly
positivistic terms it would have been equally difficult to demonstrate conclusively on
the basis of state practice either that former heads of states enjoy immunity or that
they do not. Between two legally plausible solutions, the House of Lords faced a policy
choice in finding for or against immunity. Although one may doubt that this was
intended by the Law Lords, the House of Lords’ final finding against immunity
provided the result which best conforms with the ends and values of the international
legal system.
As noted earlier, the notion of individual accountability for crimes against
humanity can be fully grasped only in connection with the international human
rights doctrine and other recent developments in the structure and process of
international law. Particularly relevant, in this respect, is the notion of obligations
erga omnes, namely obligations which are not owed to any particular state but to the
international community.157
This, in turn, entails that every state has a legal interest
in their fulfilment. The pre-eminence of these obligations over others, in light of their
content,158
stipulates a hierarchy of values in the international legal system in which
norms concerning the protection of fundamental human rights certainly enjoy the
highest-ranking status. The persuasive force of the argument is reinforced by the
emergence of jus cogens, i.e. a set of norms from which no derogation is ever admitted
under international law. The importance of certain rules and principles to the
international community is such that any unilateral action or international
agreement which violates them is absolutely prohibited.159
Elementary logic supports
this conclusion, as the law cannot tolerate acts which run against its very foundation.
Despite scholarly disputes as to what norms qualify for the category of jus cogens, there
272 EJIL 10 (1999), 237–277
160
The list is clearly non-exhaustive and refers mainly to the charges alleged in the Pinochet case. For an
in-depth analysis of which norms in the field of human rights attain the status of jus cogens, see
Hannikainen, supra note 159, at 425 et seq. For an interesting discussion on the relationship between
non-derogable rights in human rights treaties and norms of jus cogens see Meron, ‘On a Hierarchy of
International Human Rights’, 80 AJIL (1986) 1. The Restatement, supra note 72, lists as jus cogens norms
genocide, slavery or slave trade, murder or causing the disappearance of individuals, torture or other
cruel, inhuman or degrading treatment or punishment, prolonged arbitrary detention and systematic
racial discrimination, and a consistent pattern of gross violations of internationally recognized human
rights, when practised, encouraged or condoned as a matter of state policy (§ 702 Comm. N, Reporters’
Note 11).
161
See H. Mosler, The International Society as a Legal Community (1980).
162
See Art. 19 of the Draft Articles on State Responsibility, adopted by the International Law Commission on
second reading in 1996, distinguishing between international delicts and crimes. The latter may result,
inter alia, from a serious violation on a widespread scale of an international obligation of essential
importance for safeguarding the human being.
163
See the First Report of the newly appointed Rapporteur to the International Law Commission on State
Responsibility, Professor James Crawford, proposing the deletion of Art. 19 of the Draft Articles and
separate treatment of the subject of international crimes (see UN Doc. A/CN.4/490/Add.3, para. 101, 11
May 1998); see also the articles in the Symposium on State Responsibility in this issue.
164
See Abi-Saab, ‘The Concept of “International Crimes” and its Place in Contemporary International Law’,
in J. H. H. Weiler, A. Cassese and M. Spinedi (eds), International Crimes of State: A Critical Analysis of the
ILC’s Draft Article 19 on State Responsibility (1989) 150.
is hardly any doubt that genocide, apartheid, torture and, when committed on a large
scale or as a matter of state policy, murder, arbitrary detention and enforced
disappearance of individuals can be legitimately included in the list.160
All the above developments converge in purporting the existence of an international
public order based on a commonality of core values and interests which are
regarded as fundamental by the international community as a whole.161
Inevitably,
the perceived fundamental character attached to these values and interests implies
special consequences for their violation. The rapid consolidation of the notion of
individual criminal responsibility is coupled by the attempt to introduce similar
notions of criminal responsibility at the inter-state level.162
Scholarly disputes and
political opposition by some states as to their consequences might prevent the
codification of state crimes from being included in the International Law Commission
Draft Articles on State Responsibility, but can hardly hide the widespread acceptance
by large sectors of the international community and the world public opinion of the
idea that violations of fundamental international obligations must be treated
differently from other wrongful acts.163
This implies not only attaching a sense of
opprobrium to the violation but also devising ways and means to punish effectively
the wrongdoer, possibly allowing states, other than the injured one, to react
individually or collectively to the violation.164
This novel structure of international law is slowly making its way into traditional
precepts of classical doctrine. However, still many principles, rules and doctrines of
both international and domestic law are reminiscent of an old-fashioned and no
longer viable approach to international law, which regards respect for the sovereignty
of states as the fundamental value of the international system. While state sovereignty
Immunity versus Human Rights: The Pinochet Case 273
165
For an interesting re-assessment of the role of state sovereignty in international law see Kingsbury,
‘Sovereignty and Inequality’, 9 EJIL (1998) 599.
166
On the role of coherence as a means of legal justification see MacCormick, ‘Coherence in Legal
Justification’, in Theorie der Normen. Festgabe für Ota Weinberger zum 65 Geburstag (1984) 37. On
coherence as a fundamental element for determining the legitimacy of international law rules and,
consequently, state compliance with them see T. Franck, The Power of Legitimacy among Nations (1990);
Idem, Fairness in International Law and Institutions (1995) 38 et seq. Accord, R. Dworkin, Law’s Empire
(1986), at 190–192.
167
See Bassiouni, ‘ “Crimes against Humanity”: The Need for a Specialized Convention’, 31 Columbia J. of
Transnat’l L. (1994) 457. Upon its entry into force, the ICC Statute will be the only binding international
law instrument providing a definition of crimes against humanity: see Robinson, ‘Defining “Crimes
against Humanity” at the Rome Conference’, 93 AJIL (1999) 43.
remains one of the pillars on which the system hinges,165
its actual content has
undergone a gradual process of erosion. Matters which once indisputably belonged to
the domestic jurisdiction of states, such as the way a state treats persons under its
jurisdiction, nowadays may be the object of international scrutiny.
The strain between old rules and new principles causes inconsistencies in the
international legal system which should be gradually reduced. The achievement of a
higher degree of normative coherence is going to be an important challenge for
international law in the near future. Coherence of single rules and particular regimes
with the fundamental principles and goals of the system is likely to enhance the
latter’s credibility and legitimacy.166
As regards the subject at hand, namely
individual responsibility for crimes against humanity, normative consistency would
require, in the view of this writer, a number of adjustments in international
law-making and law enforcement.
First, a comprehensive code of crimes universally accepted as crimes against
humanity should be adopted.167
Existing definitions are strongly influenced by the
particular contexts in which they were formulated and it is controversial whether
certain particular acts are amenable within the category of crimes against humanity
or rather stand in their own way. The proliferation of ad hoc treaties and attempts at
codification have not necessarily favoured uniform definitions and standards. The
issue is not deprived of practical relevance when one realizes that the characterization
of a crime as a crime against humanity is not meant merely to convey a sense of moral
reprobation but also to entail a set of specific legal consequences, including the
exercise of extraterritorial jurisdiction by any state over such offences. Also the
inapplicability of statutes of limitation and the unavailability of the superior orders
defence as an exonerating circumstance, should not be controversial elements of the
regime.
Perhaps the most astonishing example of the inconsistencies between different
areas and doctrines of international law is the one concerning consideration of the
foreign sovereign immunity doctrine and its ancillary act of state doctrine as potential
bars to judicial enforcement at the level of domestic courts. Reliance on such
obsolescent doctrines, which express an unfettered deference to the status of certain
subjects, is oblivious of contemporary standards of international law which clearly
274 EJIL 10 (1999), 237–277
168
See Henkin, ‘U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker’, 89 AJIL
(1995) 348, and Stewart, ‘U.S. Ratification of the Covenant on Civil and Political Rights: the Significance
of the Reservations, Understandings and Declarations’, 14 Human Rights L.J. (1993) 77 and the text of
the reservations, ibid, at 123–124.
condemn certain conduct as crimes against the very foundations of the international
system. Moreover, their application may hamper the adjustment of legal standards
and cultures to the new demands of the international community. There should be no
ambiguity on the fact that international law does not and cannot require any
deference to states and states’ organs, including heads of state, when they commit
crimes against humanity or other comparable human rights atrocities. Neither
should domestic courts abstain from passing judgment as a matter of comity or on the
basis of other judicial self-restraint doctrines when sufficiently clear and judicially
manageable standards exist.
Obviously, municipal courts must be given the tools to help enforce international
criminal law. Particularly, states should incorporate properly their international law
obligations in accordance with their constitutional rules. Attaching reservations to
fundamental treaty provisions or denying by statutory provision the self-executing
character of entire treaties, rather than leaving it to the courts to determine in each
particular case which provisions are self-executing in the light of their content, are
policies which may undermine any serious efforts at effectively prosecuting human
rights violators.168
Another noticeable inconsistency concerns the different treatment of crimes of war
and crimes against humanity in terms of legal entitlement to prosecution by states.
Universal jurisdiction, whose applicability to war crimes is almost uncontested,
should also be uncontroversial as regards the prosecution of crimes against humanity.
If the rationale of the principle is that of ensuring the punishment of individuals who
are regarded as hostes humani generis for committing crimes which, by their very
nature, affect the interests of all states, elementary logic seems to require that any
such crime, be it a war crime or a crime against humanity, should be subject to the
same jurisdictional regime.
The latter remark paves the way for addressing another issue of compelling interest
in setting the agenda for the future: consistent enforcement. The argument has been
made that the attempt to prosecute individuals for international law crimes is going to
be a vain effort, as their systematic prosecution is a naive expectation or utopic
ambition. Moreover, given the many practical difficulties in apprehending and
bringing to justice high-ranking state officials or top political leaders, prosecution will
only concern a scant number of individuals with minor responsibilities. First, as the
Pinochet case indicates, these allegations are not entirely founded. Secondly, even in
domestic legal systems the apprehension and prosecution of offenders is far from
systematic. What really matters is to set clear normative standards and to enforce
them consistently whenever prosecution is possible under the circumstances.
Consistent enforcement requires that no double standard be used in determining
jurisdictional and substantive rules, as is a fundamental principle of justice, common
Immunity versus Human Rights: The Pinochet Case 275
169
See the interesting decision of the Constitutional Court of South Africa of 25 July 1996, Azanian Peoples
Organization v. President of the Republic of South Africa, Case CCT 17/96, comment by Wilhelm in 91 AJIL
(1997) 360, upholding the constitutionality of the Promotion of National Unity and Reconciliation Act
of 1991.
170
See General Comment No. 20 to Art. 7 of the International Covenant on Civil and Political Rights drafted
by the Human Rights Committee in 1994, holding amnesty laws ‘generally incompatible with the duty of
States to investigate such acts, to guarantee freedom from such acts within their jurisdiction; and to
ensure that they do not occur in the future. States may not deprive individuals of the right to an effective
remedy, including compensation and such full rehabilitation as may be possible.’
171
The best analysis of the above issues is Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human
Rights Violations of a Prior Regime’, 100 Yale L. J. (1991) 2537. See also Nino, ‘The Duty to Punish Past
Abuses of Human Rights Put in Context: the Case of Argentina’, 100 Yale L. J. (1991), at 2619 et seq. and
Orentlicher’s response, 100 Yale L. J. (1991), at 2641.
172
On the fundamental importance of perceptions of legitimacy and fairness for ensuring compliance with
international principles and rules see Franck, The Power of Legitimacy, supra note 166; Idem, Fairness,
supra note 166.
173
The list of factors is somewhat reminiscent of Fuller’s requirements for the inner morality of law (see L. L.
Fuller, The Morality of Law (rev. ed., 1969)).
to all jurisdictions, that like cases should be treated alike. Over time, the risk of being
punished is likely to produce in would-be criminals a deterrent effect which should not
be underestimated.
At this point it may be noticed that some states have chosen to deal with their past of
human rights atrocities by enacting amnesty laws which have the effect of barring
proceedings against the perpetrators of such crimes, thus leaving them unpunished.
The underlying policy is meant to restore political and social stability and foster the
process of democratization of countries which have either undergone long periods of
social and political unrest or endured oppressive or dictatorial regimes.169
While it
may be argued that many treaties impose an obligation to punish certain conduct,170
it would be difficult to prove that customary international law prohibits the
enactment by states of such laws. Surely, however, there is no duty by other states to
recognize their effects. Nor would a defence based on them be likely to succeed before
an international criminal tribunal or a foreign domestic court.171
Finally, to ensure the firm rooting of the principle of accountability in the
international community, prosecution of crimes against humanity ought to be
perceived as legitimate and fair.172
This, in turn, entails the further refinement of the
principle of fairness of judicial proceedings. Defendants must be tried by an impartial
tribunal, be it national or international, on the basis of clear laws, not having a
retroactive effect, and must be in the position to effectively exercise their fundamental
rights of defence.173
In this respect, it is worthy of note that in recent practice, both
international and domestic, plenty of evidence can be traced to show that due process
requirements have been fully met and the rights of the defendants duly respected. By
way of example, one may refer to the decision of the ICTY in the Erdemovic case where,
after a long and controversial discussion among the judges, the Appeals Chamber
remitted the case to the Trial Chamber to give the opportunity to the defendant to
re-plead in full knowledge of the nature of the charges and the consequences of his
276 EJIL 10 (1999), 237–277
174
Prosecutor v. Erdemovic´ (Sentencing Appeal), Case No. IT-96–22-A, 111 ILR 298 (1998). As regards
domestic case law, see the acquittal of John Demjanjuk, indicted for serving as operator of the gas
chambers in the Treblinka extermination camp, by the Supreme Court of Israel on the basis of a
reasonable doubt concerning the real identity of the defendant: see Ivan (John) Demjanjuk v. State of Israel,
Cr. A. (Criminal Appeal) 347/88, summarized in English in 24 Israel Y.B. of Human Rights (1994) 323.
175
See supra note 104; Prosecutor v. Kanyabashi, Decision on Jurisdiction Case No. ICTR-96–15-T (18 June
1997); comment by Morris in 92 AJIL (1998) 66. In Kanyabashi, the Court referred to the Tadic´ decision
and held that in determining whether or not the Tribunal had been ‘established by law’ due account had
to be taken of the Tribunal’s keeping with the proper international standards providing all the guarantees
of fairness and justice. Furthermore, the independence of the judges would guarantee that any accused
had a fair trial in the light of the Statute and Rules of Procedure of the Tribunal (ibid, at 10).
plea.174
As regards the legitimacy of the establishment of the ICTY and the ICTR, both
tribunals have addressed allegations that they would not have been established by law
and that they would lack the necessary independence. Due consideration was given to
the objections raised by the defence, respectively in Tadic´ and Kanyabashi, and,
eventually, the arguments were rejected on legally founded and persuasive
grounds.175
The fulfilment of the three policy goals expounded above, namely normative
coherence, consistent enforcement and judicial fairness, will give further strength to
the principle of individual accountability for crimes of international law. More
generally, it would contribute to further consolidating the restructuring of the
international community on the basis of a commonality of values and interests,
respect for which must be secured by all of its members.
8 Concluding Remarks
The decision of the House of Lords in the Pinochet case is the first judgment rendered by
a municipal court in which a former head of state of a foreign country has been held
accountable at law for acts of torture committed while in post. Whether this is going to
be a landmark in the history of international criminal law depends on what
interpretation will be given to it by scholars and to what extent other courts in
different jurisdictions will follow it. While in the first ruling the Law Lords had taken a
clear, albeit conflicting, stance on the matter of immunity of a former head of state for
acts of torture and other crimes of international law, the narrow focus of the second
ruling as well as the convoluted reasoning of some of the Law Lords’ individual
opinions partly obfuscated the most relevant points of international law. In many
respects the decision is a missed opportunity to shed light on issues whose relevance
extends well beyond the boundaries of the law of jurisdiction and jurisdictional
immunities to reach out to some fundamental aspects concerning the structure and
process of contemporary international law. Presumably, scholars too will split over
the interpretation and assessment of the likely impact of the case drawing on those
parts of the judgment which best fit their beliefs. It would be desirable that they overtly
state their premises in doing so. As for this writer, he believes that the very notion of
crimes of international law is inconsistent with the application of jurisdictional
immunities and domestic doctrines of judicial abstention, particularly as regards
Immunity versus Human Rights: The Pinochet Case 277
those crimes which by their very nature either presuppose or require state action. If
immunity were granted to state officials or courts refused to adjudicate cases on the
merits, prosecution of such crimes would be impossible and the overall effectiveness of
international criminal law irremediably undermined.
The emergence and subsequent consolidation of the notions of jus cogens and
obligations erga omnes provide a solid conceptual background to justify the exercise of
jurisdiction by state over individuals, regardless of their official position, who commit
offences which are universally regarded as attacks against the common interests and
values of the international community. The majority of the Law Lords acknowledged
the non-derogable character of the rules of international law proscribing torture and
crimes against humanity, but eventually failed to draw the inevitable conclusion that
no immunity can be granted to their violators.