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I. The Future of Former Head of State Immunity after ex Parte Pinochet

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick ,
Dominic McGoldrick  and
J. Craig Barker
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Extract

While lacking the raw excitement of the live “penalty shoot-out” that was the announcement of the decision of the House of Lords in Reg. v. Bow Street Magistrate, ex parte Pinochet,1 the initial impression of the decision in Reg. v. Bow Street Magistrate, ex parte Pinochet (No. 3)2 was of a solid majority support for the position that Pinochet was not entitled to immunity in the United Kingdom in respect of the criminal acts he is alleged to have committed. Even as Lord Browne-Wilkinson attempted to explain the intricacies of the decision, the matter of immunity appeared settled and of secondary consideration to the “new” requirement of double criminality which alone, it seemed, had resulted in the considerable reduction in the list of crimes for which Pinochet could be extradited to Spain. Closer examination of the reasoning of their Lordships, however, quickly dispels that impression and reveals a range of opinions across a wide spectrum. What agreement there was between their Lordships on the matter of Pinochet's immunity from jurisdiction is diverse and often contradictory. In particular, the Lordships who formed the majority were equally divided on the question as to whether Pinochet was acting within his official capacity when carrying out the acts of which he is accused. Given that immunity rationae materiae appears to be available only in respect of official acts, it is difficult to see how the six could have agreed on the fact that Pinochet was not entitled to such immunity. Indeed, given the fact that Lord Goff (dissenting) was of the opinion that the alleged acts were performed in the course of Pinochet's functions as head of state, there was in fact a majority in favour of the prima facie existence of immunity rationae materiae.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 48 , Issue 4 , October 1999 , pp. 937 - 949
Copyright
Copyright © British Institute of International and Comparative Law 1999

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References

1. [1998] 3 W.L.R. 1456 (hereinafter, Pinochet No. 1).Google Scholar

2. [1999] 2 W.L.R. 827 (hereinafter, Pinochet No. 3).Google Scholar The decision in the second Pinochet case concerned the issue of bias and will not be discussed in this article. The case is reported as Reg. v. Bow Street Magistrates, ex p. Pinochet (No. 2) [1999] 2 W.L.R. 272.Google Scholar

3. Bass, “Ex-Head of State Immunity: A Proposed Statutory Tool of Foreign Policy” (1987) 97 Yale Law Journal 299, at p.303.Google Scholar

4. Mallory, , “Resolving the Confusion over Head of State Immunity. The Defined Right of Kings” (1986) 86 Columbia Law Journal 169, at p.171.CrossRefGoogle Scholar

5. Watts, , “The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers” (1994) 247 Hogue Recueil 9, at p.52.Google Scholar

6. In Re Doe 860 F.2d. 40, 44.Google Scholar The case arose out of attempts to indict former Philippine President Ferdinand Marcos and his wife on criminal charges in the United States.

7. On the restrictive theory of State immunity see generally Sinclair, , “The Law of Sovereign Immunity: Recent Developments” (1980) 167 Hague Recueil 113Google Scholar; Badr, State Immunity (1984)Google Scholar; Schreuer, , State Immunity: Some Recent Developments (1988).Google Scholar

8. On the functional approach to diplomatic immunity, see further Denza, , Diplomatic Law (2nd edn, 1998)Google Scholar and Barker, , The Abuse of Diplomatic Privileges and Immunities (1996).Google Scholar

9. Watts, , supra n.5, at p.35.Google Scholar

10. According to Oppenheim:

The basis for the special treatment accorded to Heads of State is variously ascribed, inter alia to the dignity which is a recognised quality of States as international persons …; the respect due to them as representatives of sovereign States; their personal character as sovereigns (in the case of monarchs); the equality and independence of sovereigns and sovereign States and the principle par in parem non habet imperium; the incompetence of municipal law in an essentially international relationship; the practical need to ensure the free exercise by him of his functions as the highest organ of the State; the requirements of satisfactory international intercourse; the implied licence of the State being visited; and the dictates of international comity and courtesy. At one time or another each of these considerations has to a greater or lesser degree played its part, in conjunction in particular countries with purely domestic considerations, such as the English doctrine that the Crown could not be sued in its own courts. Oppenheim's International Law, (9th edn, 1992), p. 1034.Google Scholar

11. Watts, , supra n.5, at p.40.Google Scholar

12. Ibid.

13. Idem, p.53.

14. Ibid.

15. Vienna Convention on Diplomatic Relations 1961, Art.41(1). See further Watts, , supra n.5, p.53. On the relevance of the Vienna Convention to heads of state see below, p.00.Google Scholar

16. Dinstein, , “Diplomatic Immunity from Jurisdiction Rationae Materiae” (1966) 15 I.C.L.Q. 76, at p.79.Google Scholar

17. Some confusion has arisen as to whether this is an application of the act of state doctrine in the UK. However, even though the effect may be to give immunity to States and their agents in relation to the public acts of a State this is clearly a matter of immunity rather than the provision of a defence which can only arise after jurisdiction has been established in a particular case. See further Barker, , “State Immunity, Diplomatic Immunity and Act of State: A Triple Protection Against Legal Action?” (1998) 47 I.C.L.Q. 951, at pp.957–958. See also Denza, supra n.8.Google Scholar

18. Dinstein, , supra n.15, at p.82.Google Scholar

19. Denza, , supra n.8, at p.361.Google Scholar

20. Watts, , supra n.5, at p.89.Google Scholar

21. State Immunity Act 1978, s.20(1).

22. Lord Browne-Wilkinson went so far as to say that the “correct way in which to apply Art.39(2) to former heads of state is baffling”. Pinochet No. 3, supra n.2, at p.845.Google Scholar

23. Lord Phillips took the view that “section 20 of the Act of 1978 has [no] application to a conduct of the head of state outside the United Kingdom. Such conduct remains governed by the rules of public international law.” Pinochet No. 3, supra n.2, at p.927.Google Scholar

24. Vienna Convention on Diplomatic Relations 1961, Art.39(2). The unmodified version of Art.39(2) reads as follows:

“When the functions of a person enjoying privileges and immunities have come to an end such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in the case of armed conflict. However, with respect to acts performed in the exercise of his functions as a member of the mission, immunity shall continue to subsist.”

25. Supra n.7 and accompanying text.

26. Denza, , supra n.8, at p.363.Google Scholar

27. Watts, , supra n.5, at p.56.Google Scholar

28. Part of the ratio in Pinochet No. 1 was that “the crimes of torture and hostage-taking fell outside what international law would regard as the functions of a head of state” Pinochet No. 1, p.1457.Google Scholar

29. Pinochet No. 1, supra, n.1, at p.1506.Google Scholar

30. Pinochet No. 3, supra, n.2, at p.846.Google Scholar

31. Idem, p.900.

32. Idem, p.927.

33. Pinochet No. 1, supra n.1, at p.1500.Google Scholar

34. Ibid.

35. Pinochet No. 3, supra n.2, at p.848.Google Scholar

36. Pinochet No. 1, supra n.1, at p. 1506.Google Scholar

37. Decision of Divisional Court of the Queen's Bench Division of 28 Oct. 1998. Cited by Lord Steyn, idem, p.1505.

38. Watts, , supra n.5, at p.81.Google Scholar

39. I.L.M. 1002 (1998).Google Scholar

40. Idem, Arts 5–9 (as amended).

41. See further Sarooshi, , “The Statute of the International Criminal Court” (1999) 48 I.C.L.Q. 387Google Scholar who notes that “the official capacity of a person does not constitute a bar to the court exercising jurisdiction over the person (Art.27), but some official capacities may allow a State to exempt itself from an obligation to co-operate with the Court (Art.98)”. Sarooshi continues by suggesting that the decision in Pinochet No. 1 makes it possible to argue that particular acts are not official acts in respect of former heads of state. However, this seems to override the express wording of Arts 5–9 and 27 of the ICC Statute.

42. Pinochet No. 3, supra n.2, at p.847.Google Scholar

43. Trendtex Trading Corporation v. Central Bank of Nigeria [1977] 2 W.L.R. 356.Google Scholar

44. See, in particular, Fox “The First Pinochet Case: Immunity of a Former Head of State” (1999) 48 I.C.L.Q. 207, at p.215.Google Scholar

45. As Lord Oliver made clear in J. H. Rayner (Mincing Lane) Ltd v. Department of Trade and Industry [1990] 2 A.C. 418:Google Scholar

“A rule of international law becomes a rule, whether accepted into domestic law or not, only when it is certain and is accepted generally by the body of civilised nations; and it is for those who assert the rule to demonstrate it, if necessary before the ICJ. It is certainly not for a domestic tribunal in effect to legislate into existence for the purposes of domestic law and on the basis of material that is wholly indeterminate.”

46. See Warbrick, Salgado & Goodwin, “The Pinochet Cases in The United Kingdom” International Yearbook of Humanitarian Law (forthcoming) who note that “Establishing that conduct is criminal in customary international law is beset by the uncertainties of the customary law process. This is a matter of particular concern if recourse is to be made to national courts, whose principles of legality might not he satisfied by the vagueness of the products of customary international law.”

47. North Sea Continental Shelf Cases (1969) I.C.J. Rep. 3.Google Scholar

48. See Shaw, , International Law (4th edn, 1997), p.473.Google Scholar

49. This concession was not made in Pinochet No. 1 where Lord Slynn held that Pinochet was not an official for the purposes of the Torture Convention. Pinochet No. 1, supra n.1, at p.1477.Google Scholar

50. Pinochet No. 3, supra n.2, at p.907.Google Scholar

51. Idem, p.913.

52. Idem, p.903.

53. Idem, p.881.

54. Idem, pp.849–850.

55. Lord Millett specifically referred to s.134 of the 1988 Act as the basis for the removal of immunity in respect of the crimes of torture but held that immunity did not exist for such crimes wherever and whenever carried out suggesting that it was indeed the existence of universal jurisdiction in customary international law that was the key to the removal of immunity. Idem, p.915.

56. Specifically, Lord Hope argued that “the obligations which were recognised by customary international law in the case of such serious international crimes by the date when Chile ratified the Convention are so strong as to override any objection by it on the ground of immunity rationae materiae to the exercise of jurisdiction over crimes committed after that date which the United Kingdom bad made available.” Idem, pp.886–887.

57. While their Lordships were agreed on the removal of immunity rationae materiae, the disparity of their arguments in respect of the requirements of international law in this regard can only reduce the persuasiveness of their arguments for courts outside the United Kingdom.

58. [1981] A.C. 251.Google Scholar

59. [1991] 1 All E.R. 777.Google Scholar

60. Pinochet No. 3, p.847.Google Scholar