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III. Extradition Law Aspects of Pinochet 31

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick ,
Dominic McGoldrick  and
Coun Warbrick
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Extract

The prominence of the immunity issue in Pinochet 12 rather obscured the fact that the proceedings were ultimately about extradition. Perhaps that was how it should have been because immunity questions are recognised as preliminary matters, going to the very competence of a court to hear and determine the substantive claim. However, there can be questions which are, as it were, even more preliminary than ones about immunity. One example is where a party argues that there is no substance whatever to the right a State claims and which it is seeking to protect from adjudication by relying on one version or another of immunity.3 When the extradition aspects of the case resurfaced in Pinochet 3, the opposite, pre-preliminary situation was presented: did the extradition crimes specified in the warrants from Spain require any answer from Pinochet, such that could he avoid being handed over, without it being necessary for him to raise any claim of immunity?

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 48 , Issue 4 , October 1999 , pp. 958 - 965
Copyright
Copyright © British Institute of International and Comparative Law 1999

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References

2. [1998] 3 W.L.R. 1456.Google Scholar

3. Para.113 of Commentary on the Convention (Art.29). Art.29 is reflected in S.16(3), (4) and (5) of the Act.

4. Supra n.1, per Lord, Browne-Wilkinson, at p.836B–F.Google Scholar

5. Mullan, G., “The concept of Double Criminality in the Context of Extraterritorial Crimes,” (1997) Criminal Law Review 17.Google Scholar

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7. The practice is not quite as rigid as this might suggest, exceptions being made where only one element of the offence is committed in England, so long as it is the terminatory part, e.g. R. v. Baxter [1870] 1 W.L.R. 13Google Scholar, some elements of offences being characterised as continuing acts, capable of being committed in more than one jurisdiction, e.g. R. v. Treacy [1971] A.C. 537Google Scholar, and special rules applying to preparatory offences, e.g. R. v. Sansom [1991] 2 Q.B. 130.Google Scholar

8. Supra n.1, p.837.Google Scholar

9. In issuing his authority to proceed after the House of Lords judgment in Pinochet 1, the Home Secretary did not include charges of genocide raised by Spain, Debs, H. C., Vol.322 W.A. 213–217, 9 12 1998.Google Scholar

10. The list is taken from Lord Hope's judgment in Pinochet 3, supra n.1, p.868B–C.Google Scholar

11. Supra n.1, pp.836F–839H.Google Scholar

12. Supra n.2, p.1481.Google Scholar

13. Supra n.1, p.838E–H.Google Scholar

14. Idem, p.838H.

15. See also R. v. Home Secretary, ex parie Gilmore [1998] 2 W.L.R. 618.Google Scholar

16. Supra n.1, p.839F.Google Scholar

17. Idem, pp.869E–879E.

18. Idem, p.871G.

19. Idem, p.872D.

20. Idem, p.873C.

21. Idem, p.873H.

22. Idem, p.874C.

23. Idem, p.874H.

24. These are adapted from a less than clear statement by Lord, Hopesupra n.1, p.897F–G.Google Scholar

25. (1999) 48 I.C.L.Q. 687.Google Scholar

26. Trendtex Trading Corporation v. Central Bank of Nigeria [1977] Q.B. 529.Google Scholar

27. Supra n.1, p.912B.Google Scholar

28. Supra n.2, p.1473C.Google Scholar