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The First Pinochet Case: Immunity of a Former Head of State

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick ,
Dominic McGoldrick  and
Hazel Fox
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Extract

The case of Pinochet has aroused enormous interest, both political and legal. The spectacle of the General, whose regime sent so many to their deaths, himself under arrest and standing trial has stirred the hopes of the oppressed. His reversal of fortune, loss of liberty with a policeman, on the door, has been heralded by organisations for the protection of human rights as one small step on the long road to justice. For lawyers generally, the House of Lords' majority decision of 1998 that General Pinochet enjoyed no immunity signalled a shift from a State-centred order of things.1 It suggested that the process of restriction of State immunity, so effectively begun with the removal of commercial transactions from its protection, might now extend some way into the field of criminal proceedings. And it further posed the intriguing question whether an act categorised as within the exercise of sovereign power, so as to relieve the individual official of liability in civil proceedings, may at the same time, as well as subsequent to his retirement, attract parallel personal criminal liability.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 48 , Issue 1 , January 1999 , pp. 207 - 216
Copyright
Copyright © British Institute of International and Comparative Law 1999

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References

1. R. v. Bow Street Stipendiary Magistrate and others, ex p. Pinochet Ugarte (Amnesty International and others intervening) (1998) 4 All E.R. 897.Google Scholar

2. See addendum. Lord Hoffmann gave no separate judgment. After the hearing it was reported that he was a Director of Amnesty (Charity) International Ltd: The Times, 8 12 1998.Google Scholar

3. The Court held that it was not the duty of the Home Secretary to review the legal validity of a provisional warrant and that he was entitled to take no action and await developments.

4. The Court heard 6 days of argument; 16 barristers appeared; Amnesty International and representatives of victims were given leave to intervene and Ian Brownlie QC made oral submissions on their behalf. At the request of the Court, the Attorney General appointed an amicus curiae to assist with submissions. Judgment was reserved.

5. The Court also held bad the fifth count of the second warrant which alleged murder contrary to the Suppression of Terrorism Act. At the time of the alleged commission of the offence neither Spain nor Chile was party to the Convention, and consequently no murder was committed in a convention country.

6. By order of 5 Nov. 1998 the Spanish Court, Criminal Division sitting in plenary, held that Spain had jurisdiction to try crimes of terrorism, genocide where committed abroad, including crimes of torture as an aspect of genocide and in respect of victims of non-Spanish nationality.

7. Pinochet, supra n.1, at p.947f.Google Scholar

8. On the basis that on 26 Oct. 1973 General Pinochet signed the letters of credential presented to the Queen by the Chilean Ambassador to the UK, and the Spanish government's reference to him as head of State in its request for extradition, Lord Slynn of Hadley was prepared to find that the General had acted as the head of State: idem, p.904a–e.

9. Idem, p.936e.

10. US cases cited included Hatch v. Baez (1976) 7 Hun. 596Google Scholar; USA v. Noriega (1990) 746 F.Supp. 1506Google Scholar; Jimenez v. Aristeguieta (1962) 311 F.2d 547Google Scholar; Hilao v. Marcos (1994) 25 F.3d 1467.Google Scholar

11. Pinochet, supra n.1, at p.940h.Google Scholar

12. Idem, p.943f.

13. Cases cited included Duke of Brunswick v. The King of Hanover (1848) 2 H.L.Cas. 1Google Scholar: Underhill v. Fernandez (1897) 169 U.S. 456Google Scholar; Buttes Gas and Oil Co. v. Hammer (1982) A.C. 888Google Scholar; W.S. Kirkpatrick & Co. Inc. v. Environmental Tectonics Corp. Int. (1990) 493 U.S. 4000Google Scholar; Kuwait Airways Corp. v. Iraqi Airways Co. (Mance, J, unrep. 29 07 1998).Google Scholar

14. Pinochet, supra n. 1, at 938h.Google Scholar

15. Lord Nicholls referred to hostage-taking at the US embassy in Teheran in 1979, in aircraft hijackings in the 1970s, and the holding hostage of passengers of an El Al aircraft at Entebbe in June 1979; idem, p.938d.

16. Idem, p.934e–g.

17. Idem, p.919e.

18. Idem, p.918a–b.

19. Idem, pp.941 h (Nicholls), 906h (Steyn).

20. Idem, p.931h. A further argument that the exclusion in s.16(4) means that the immunity in respect of criminal proceedings which exists at common law is abolished was dismissed by Lord Lloyd; Stuart-Smith LJ's reference to the State Immunity Act as “a comprehensive code” in Al Adsani v. Government of Kuwait and others 1071.L.R. 536, 542, did not provide a code in respect of matters which it did not purport to cover.

21. In the Divisional Court Lord Bingham CJ concluded that Part II of the State Immunity Act, which contains s.20, applies to proceedings in respect of matters before the coming into force of the Act; the retrospectivity of s.20 was accepted without argument in the Lords.

22. Pinochet, supra n.1, at p.944d.Google Scholar

23. Idem, p.939b.

24. Idem, p.932j.

25. Idem, p.907f.

26. Idem, p.908f.

27. Idem, p.926j.

28. Idem, p.927j.

29. Idem, p.929a.

30. At p.28 of the Divisional Court's judgment.

31. Pinochet, supra n. 1, at p.939g.Google Scholar

31 Idem, p.940a (Nicholls).

33. Idem, p.945h.

34. Idem, p.946d.

35. Idem, p.943d.

36. Idem, p.945b.

37. Idem, p.941e.

38. “the fact that in carrying out other functions, a Head of State commits an illegal act does not mean that he is no longer to be regarded as carrying out one of his functions. If it did, the immunity in respect of criminal acts would be deprived of much of its content”: idem, p.908a.

39. Idem, p.910h, referring to Sir Arthur Watts, “Legal Position in International Law of Heads of State, Heads of Government and Foreign Ministers” (1994) 247 Hag.Rec. 88–89.Google Scholar

40. Pinochet, idem, p.915c–e.

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

42. The Court of Appeal, Amsterdam, dismissed a claim brought against the Public Prosecutor for failure to prosecute Pinochet when on a visit to Amsterdam in 1995 stating that “It was evident that prosecution of Pinochet … could encounter so many legal and practical problems that the Public Prosecutor was perfectly within his rights not to prosecute”. (Chili Komitee Nederland v. Public Prosecutor 28 (1997) N.Y.I.L. 363–365).Google Scholar

43. Parliamentary Written Answers, 9 12 1998, Vol.322, cols.213–217.Google Scholar

44. The Times, 18 12 1998.Google Scholar