¹ See Regina v. Bow St. Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3) [1999] 2 WLR 827, 833–36 (opinion of Lord Browne-Wilkinson) [hereinafter Pinochet III].

² See report on the Spanish proceedings in this issue.

³ R. v. Evans; R. v. Battle and Others, ex parte Pinochet Ugarte, The Times, Nov. 3, 1998, at 3. There were four applications: an application to move for judicial review of each of the provisional warrants and two applications for habeas corpus against the Commissioner for the Metropolitan Police.

⁴ The first warrant, covering the murder of a Spanish national in Chile, was quashed on the grounds that it covered no extraditable crime. The United Kingdom does not generally recognize nationality of the victim as a basis for jurisdiction for extraterritorial homicide. Offenses Against the Person Act 1861, sec. 9. This decision was not appealed.

⁵ The Medical Foundation for the Care of Victims of Torture, the Redress Trust, Mary Ann Beausire, Juana Francisca Beausire, Sheila Cassidy and the Association of the Relatives of the Disappeared Detainees.

⁶ Lords Nicholls, Lloyd and Hoffmann; Lords Slynn and Steyn dissenting.

⁷ R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No. 1) (Amnesty International and Others Intervening) [1998] 3 WLR 1456, [hereinafter Pinochet I].

⁸ Section 7(4) provides:

On receipt of any such request the Secretary of State may issue an authority to proceed unless it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act. Extradition Act, 1989, ch. 33 §7(4).

⁹ Lord Hoffmann had failed to disclose that he was a Director of Amnesty International Charitable Trust Ltd. See R. v. Bow St. Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No.2), [1999] 2 WLR 272 [Pinochet II].

¹⁰ Lawrence Collins QC in oral submission on behalf of the Republic of Chile, Pinochet III, supra note 1, [1999] 2 WLR at 900 (Lord Hutton).

¹¹ They now comprised: (1) conspiracy to torture between January 1, 1972, and September 10, 1973, and between August 1, 1973, and January 1, 1990, (charges 1, 2 and 5); (2) conspiracy to take hostages between August 1, 1973, and January 1, 1990, (charge 3); (3) conspiracy to torture in furtherance of which murder was committed in third states, including Italy, France, Spain and Portugal, between January 1, 1972, and January 1, 1990, and to murder in Spain and Italy (charge 4); (4) torture between August 1, 1973, and August 8, 1973, on September 11, 1973, (charges 6 and 8); (5) conspiracy to murder in Spain between January 1, 1975, and December 31, 1976, and in Italy on October 6, 1975, (charges 9 and 12); (6) attempted murder in Italy on October 6, 1975, (charges 10 and 11); (7) torture on various dates between September 11, 1973, and May 1977, (charges 13 to 29 and 31–2); and (8) torture on June 24, 1989, (charge 30).

A preliminary question was whether the relevant charges were those set out in the second provisional warrant or the further draft charges prepared in light of further information from the Spanish judicial authorities. The need for speed in preparing the first provisional warrant, problems of translation from the Spanish, and Article 13 of the European Convention on Extradition, Dec. 13, 1957, 359 UNTS 273 (allowing supplementary information to be requested) justified regarding the new material as “explanatory of the charges which the second provisional warrant was intended to comprise.” Pinochet III, supra note, 1, [1999] 2 WLR at 869 (Lord Hope).

¹² Lords Browne-Wilkinson, Hope, Hutton, Saville, Millett and Phillips; Lord Goff dissenting.

¹³ This was the first date on which all three relevant states, Spain, Chile and the United Kingdom, were bound by the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, (Dec. 10, 1984), 23 ILM 1027 (1984), 24 ILM 535 (1985), [hereinafter Torture Convention]. Pinochet III, supra note 1 [1999] 2 WLR at 848 (Lord Browne-Wilkinson); id. at 887 (Lord Hope, who preferred October 30, 1988, when Chile became a party to the Torture Convention but was prepared to accept Lord Saville’s view); id. at 904 (Lord Saville). Lord Hutton considered the relevant date to be September 29, 1988, when the Criminal Justice Act 1988, section 134 took effect in the United Kingdom. Id. at 902.

¹⁴ Id. at 865 (Lord Goff).

¹⁵ Id. at 915 (Lord Millett). Lord Phillips agreed that the systematic use of torture is an international crime for which there could be no immunity irrespective of the date of the coming into force of the Torture Convention for the respective states. Id. at 923 (Lord Phillips).

Of the twelve judges of the House of Lords and the three judges of the Divisional Court who heard the case, six upheld absolute immunity (Lord Bingham, C.J., Collins, J., Richards, J., Lord Steyn, Lord Slynn and Lord Goff); five denied any immunity for international crimes (Lord Nicholls, Lord Lloyd, Lord Hoffmann, Lord Millett and Lord Phillips) and four denied immunity for international crimes committed at least after December 8, 1988, (Lord Browne-Wilkinson, Lord Hope, Lord Saville and Lord Hutton).

¹⁶ This section did not assert extraterritorial jurisdiction for conspiracy to torture. However English courts have jurisdiction over conspiracy to commit an offense which is itself an extraterritorial offense. Pinochet III, supra note 1, [1999] 2 WLR at 876 (Lord Hope).

¹⁷ Lord Millett concluded that torture was an international crime of universal jurisdiction before the Torture Convention and that therefore “the courts of the country already possessed extraterritorial jurisdiction … and the not require the authority of statute to exercise it.” Id. at 912.

¹⁸ The statute gives effect to the International Convention against the Taking of Hostages, Dec. 4, 1979, TIAS No. 11, 081, 1316 UNTS 205.

¹⁹ Pinochet III, supra note 1, [1999] 2 WLR at 849 (Lord Browne-Wilkinson), id. at 871–75 (Lord Hope).

²⁰ For a full analysis on this point see id. at 870–71 (Lord Hope).

²¹ See id. at 879 (Lord Hope).

²² April 18, 1961, 500 UNTS 95.

²³ State Immunity Act, 1978, ch. 33, §20(1) (Eng.).

²⁴ Vienna Convention on Diplomatic Relations, supra note 22, Art. 39(2).

²⁵ Pinochet III, supra note 1, [1999] 2 WLR at 845 (Lord Browne-Wilkinson).

²⁶ Id. at 851 (Lord Goff).

²⁷ Recourse was had to the legislative history of the Diplomatic Privileges Act. See id. at 845–46 (Lord Browne-Wilkinson), 851–52 (Lord Goff), 926 (Lord Phillips).

²⁸ Id. at 846 (Lord Browne-Wilkinson), 852 (Lord Goff), 880–81 (Lord Hope), 889 (Lord Hutton), 906 (Lord Millett), 926–27 (Lord Phillips, who preferred a narrower interpretation that limited section 20 of the State Immunity Act to conduct within the United Kingdom).

²⁹ [1999] 2 WLR at 880 (Lord Hope), 906 (Lord Millett).

³⁰ It is necessary to ask “whether the conduct was engaged in under colour of or in ostensible exercise of the head of state’s public authority.” Sir Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 Recueil Des Cours 56 (1994 III), cited in Pinochet III, supra note 1, [1999] 2 WLR 827, 852 (Lord Goff), 881 (Lord Hope).

³¹ Pinochet III, supra note 1 [1999] 2 WLR at 853 (Lord Goff).

³² Id. at 841 (Lord Browne-Wilkinson), 912 (Lord Millett). Others of their Lordships were less certain about when torture became accepted as a crime under customary international law. Lord Hope considered that this had occurred by September 29, 1988. See id. at 886. Lord Hutton considered it unnecessary to determine the position before September 29, 1988. See id. at 898.

³³ Id. at 847 (Lord Browne-Wilkinson).

³⁴ See id. at 843 (Lord Browne-Wilkinson), 853 (Lord Goff), 884 (Lord Hope), 898 (Lord Hutton), 912–13 (Lord Millett).

³⁵ With respect to the jurisdiction of international criminal tribunals, see Statute for die International Criminal Tribunal for Former Yugoslavia, Art. 7(2), SC Res. 827, May 25, 1993, Statute for the International Criminal Tribunal for Rwanda, Art. 6 (2), SC Res. 955, Nov. 8, 1994, Rome Statute for the International Criminal Court, Art. 27, Jul. 17, 1998, A/Conf.183/C.1/L.76. Article IV of the Genocide Convention provides for the liability of “constitutionally responsible rulers” which is applicable in municipal tribunals under Article VI. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277.

³⁶ This definition is repeated in the Criminal Justice Act 1988, section 134 (1).

³⁷ Pinochet III, supra note 1, [1999] 2 WLR at 843 (Lord Brown-Wilkinson). Indeed it was conceded by counsel for Chile and for Pinochet that the acts alleged against Pinochet, if proved, were committed by such a person. Id. In the first hearing Lord Slynn concluded that a head of state was neither a public official nor a person acting in an official capacity under Article 1 of the Torture Convention. Pinochet I, supra note 7, [1998] 3 WLR 1459, 1476.

³⁸ In the words of Lord Hutton:

The alleged acts of torture by Senator Pinochet were carried out under colour of his position as head of state, but 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. Pinochet III, supra note 1, [1999] 2 WLR at 899.

In similar terms Lord Saville stated:

So far as the states that are parties to the Convention are concerned, I cannot see how, so far as torture is concerned, this immunity can exist consistently with the terms of that Convention. Each state party has agreed that the other state parties can exercise jurisdiction over alleged official torturers found within their territories … and thus to my mind can hardly simultaneously claim an immunity from extradition or prosecution that is necessarily based on the official nature of the alleged torture. Pinochet III, supra note 1, [1999] 2 WLR at 903.

Lord Browne-Wilkinson thought that any other conclusion would deprive the Torture Convention of meaning: “Therefore the whole elaborate structure of universal jurisdiction over torture committed by officials [would be] rendered abortive and one of the main objectives of the Torture Convention … frustrated.” Pinochet III, supra note 1, [1999] 2 WLR at 847–8.

³⁹ The United Kingdom ratified the Convention on December 8, 1988. (Chile’s ratification took effect on October 30, 1988 and Spain’s just over a year earlier.) “[S]o far as these countries at least are concerned … from that date these states parties are in agreement with each other that the immunity ratione materiae of their former heads of state cannot be claimed in cases of official torture.” Id. at 903 (Lord Saville).

⁴⁰ For example, former heads of state would have to think twice about travelling abroad for fears of unsubstantiated allegations from states of a different political persuasion. Allegations can be maliciously or politically motivated—a matter of particular significance to powerful countries. Id. at 861 (Lord Goff).

⁴¹ Id. at 848 (Lord Brown-Wilkinson).

⁴² Id. at 887 (Lord Hope).

⁴³ On March 29 the High Court gave Pinochet leave to challenge the authority to proceed issued by the Home Secretary on December 9, 1998, on the basis that it had been issued on a misunderstanding of the law (the first decision of the House of Lords). The Court (Laws, L.J., Latham and Cresswell, JJ.) gave the Home Secretary until April 15 so he would have the opportunity to reconsider the merits of issuing a new authority to proceed “in an orderly fashion” and declined to quash the existing audiority pending that decision. See Clare Dyer, Pinochet set to challenge Straw, The Guardian, Mar. 30, 1999, at 8.

⁴⁴ It was widely reported in the English press that doctors considered that Pinochet no longer required hospitalization. See Id.

⁴⁵ Chile does of course have jurisdiction over the full range of offenses alleged by the Spanish authorities. See Pinochet III, supra note 1, [1999] 2 WLR at 879 (Lord Hope).

⁴⁶ See Alan Travis, Pinochet to face extradition court, The Guardian, Apr. 16, 1999, at 6. Despite the Government’s insistence throughout that it was allowing the law to take its course, the opposition has criticized it politically. Among Pinochet’s most strident supporters in the United Kingdom is former Prime Minister Baroness Thatcher who described Jack Straw’s second decision as a “vindictive political act.” Id.

⁴⁷ The High Court (Lord Justice Kennedy sitting with Mr. Justice Michell) formally quashed Jack Straw’s first order with the consent of all parties. R. v. Secretary of State for the Home Dep’t and another ex parte Pinochet Ugarte, No. CO/1209/99 (Q.B. Apr. 16, 1999) (Eng.) (LEXIS, Enggen Library, Cases File).

⁴⁸ See Guardian staff and agencies, Pinochet lawyers to challenge extradition ruling, The Guardian, Apr. 30, 1999, available at <>.

⁴⁹ An hour before Jack Straw’s announcement on December 9, 1998, that he was issuing an authority to proceed, Amnesty International applied for judicial review of the imminent decision and a declaration that it would be unlawful to cancel the arrest warrant if Straw did not authorize extradition to proceed. This was rejected by the High Court (Simon Brown, L.J., Askill and Dyson, J.J.), which stated that the Secretary of State has the “widest discretion” in respect of decisions under section 7(4) of the Extradition Act. Amnesty International, ex parte, The Times, December 11, 1998. It remains to be seen whether a subsequent High Court takes the same approach towards the Home Secretary’s exercise of his discretion.

⁵⁰ Karen DeYoung, Chile Asks Spain for Arbitration on Pinochet Case, Wash. Post, Aug. 9, 1999, at A20.

⁵¹ Hazel Fox, The First Pinochet Case: Immunity of a Former Head of State, 48 Int’l. & Comp. L. Q. 207, 208 (1998).

⁵² Pinochet III, supra note 1, [1999] 2 WLR at 844 (Lord Browne-Wilkinson).

⁵³ Nick Hopkins et al., Reaction: The 122-page report left both sides claiming victory but it was, The Guardian, Mar. 25, 1999, at 7 (“The Pinochet case represents a milestone for the international human rights law.” (quoting Amnesty International)). “Not even a self-proclaimed president like General Pinochet can claim immunity for torture, or give himself amnesty for his crimes.” (Advocacy Director, Human Rights Watch).

⁵⁴ “It may well be thought that the trial of Senator Pinochet in Spain … is not calculated to achieve the best justice. But I cannot emphasize too strongly that that is no concern of your Lordships.” Pinochet III, supra note 1, [1999] 2 WLR at 834 (Lord Browne-Wilkinson).

⁵⁵ On this reasoning, for example, jurisdiction would not be obtained in English courts for the alleged mass murder abroad of those pursuing their legitimate right to self-determination.

⁵⁶ 107 ILR 536 (1996).

⁵⁷ Other crimes, notably genocide, had been removed earlier in the proceeding. The Spanish authorities have responded by introducing new material relating to offenses committed within these time constraints.

⁵⁸ See Statute for the International Criminal Tribunal for Former Yugoslavia, Art. 5, supra note 33; Statute for the International Criminal Tribunal for Rwanda, Art. 3, supra note 33; Rome Statute for the International Criminal Court, Art. 7, supra note 33.

⁵⁹ Pinochet III, supra note 1, [1999] 2 WLR at 901 (Lord Hutton); see id. at 843 (Lord Browne-Wilkinson).

⁶⁰ Lord Hope acknowledged that the Torture Convention is applicable to a single crime but queried wheth er immunity for former heads of state would be inapplicable in such a case. Id. at 885. However he pointed out that the case concerns “the remnants of an allegation that he is guilty of what would now, without doubt, be regarded by customary international law as an international crime.” In his opinion the Torture Convention does not allow for immunity “in the event of allegations of systematic or widespread torture.” Id. at 886.

⁶¹ See, e.g., id. at 912 (Lord Millett).

⁶² Islam and Secretary of State for die Home Department, R. v. Immigration Appeal Tribunal and Ariodier, ex parte Shah, [1999] 2 WLR 1015. The case concerned applications for asylum by women fearing private persecution in Pakistan through emotional and physical abuse where the state offered no protection.

⁶³ Nov. 4, 1950, 213 UNTS 221.

⁶⁴ Pinochet III, supra note 1, [1999] 2 WLR at 861 (Lord Goff).

⁶⁵ Id. at 883 (Lord Hope).