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Pinochet Revisited

Published online by Cambridge University Press:  17 January 2008

Campbell McLachlan
Campbell McLachlan
Affiliation:
Solicitor, London.
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Extract

It is a measure of how fast International Law is moving that the International Court of Justice found itself deciding a question on immunity for international crimes just three years after Pinochet (No 3).1 Yet its decision in Congo v Belgium2 represents something of a return to conservatism in this field, and prompts a re-evaluation of Pinochet. Congo v Belgium may itself come to be seen as at least as significant for the ICJ's—divided—views on the issues which it did not decide, as for the ratio itself.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 51 , Issue 4 , October 2002 , pp. 959 - 966
Copyright
Copyright © British Institute of International and Comparative Law 2002

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References

1 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [2001] 1 AC 147Google Scholar, herein ‘Pinochet (No 3)’.

2 Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (International Court of Justice, General List No 121, 14 Feb 2002).

3 Act concerning the Punishment of Grave Breaches of International Humanitarian Law of 16 June 1993, as amended on 10 Feb 1999. English translation reproduced in 38 ILM 918 (1999).

4 Art 7.

5 Art 6.

6 Order of 8 Dec 2000.

7 Op cit n 2, para 78(c).

8 Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, para 3 (hereafter, the ‘Joint Separate Opinion’).

9 See: Watts, ‘The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers’ (1994) 247 Recueil des Cours 106–8Google Scholar. The express rules of the New York Convention on Special Missions of 8 Dec 1969 were not applicable, as the Convention was not in force between the respective states.

10 Op cit, n 2, para 53.

11 Ibid, para 54.

12 Judge Oda also dissented, but on grounds of jurisdiction and admissibility.

13 Op cit, n 1, 201–2 per Lord Browne-Wilkinson.

14 Kamminga, , ‘Lessons learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences’ (2001) 23 Human Rights Quarterly 940CrossRefGoogle Scholar catalogues a number of recent prosecutions.

15 ‘Kissinger rejects demands for his arrest and trial’ (The Times, 25 Apr 2002).

16 The test propounded in the English Courts by Robert, Goff J in I Congreso del Partido [1978] QB 500, at 528Google Scholar, approved by Lord Wilberforce [1983] 1 AC 244, at 269; applied in Kuwait Airways Corporation v Iraqi Airways Co [1995] WLR 1147. On the true nature of this form of immunity see the case note by Fox, Ldy on Pinochet (No 3) (1999) 48 ICLQ 687.Google Scholar

17 Op cit, n 2, para 61.

18 See, eg, Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment 1984, Art 1.

19 Op cit, n 1, at 205 per Lord Browne-Wilkinson

20 Ibid, at 223 per Lord Goff of Chieveley. The rule that waiver of immunity by treaty must always be express is well established in international law. See: Jennings and Watts (eds), Oppenheim's International Law, vol 1, 351; and Argentine Republic v Amerada Hess Shipping Corporation (1989) 109 S Ct 683.

21 Op cit, n 2, para 59.

22 Op cit, n 2, Joint Separate Opinion, para 85.

23 Rome Statute of the International Criminal Court, Art 7.

24 Op cit, n 1, at 268.

25 In the UK found in section 5 State Immunity Act 1978. See Bianchi, , ‘Denying State Immunity to Violators of Human Rights’ (1994) 46 Austrian JPIL 195.Google Scholar

26 See the comments of Fox (1999) 48 ICLQ 687.

27 To adopt the phrase of the Privy Council from In re Piracy Jure Gentium [1934] AC 586, 592.

28 In Qadaffi, the French Cour de Cassation decided that, if there were an exception to immunity for a serving Head of State, it did not extend to the crime of terrorism (Cass Criminelle 13 March 2001 no 00–87.215, publié au bulletin criminel); in Bouterse, the Dutch Supreme Court decided that the jurisdiction of the Dutch courts in a criminal investigation for torture against a person not present in the Netherlands was limited to the grounds specified in the Torture Convention (18 Sept 2001); in Al-Adsani v United Kingdom, the European Court of Human Rights decided (by a 9:8 majority) that the UK was not in breach of its human rights obligations in according immunity to the Kingdom of Saudi Arabia in a civil claim of torture (2002) 34 EHRR 11. Semble its view may have been different in a criminal case against an individual.

29 East Timor Case (Portugal v Australia) 1995 ICJ Rep 90, para 29.

30 Art 27.

31 Art 98 of the Rome Statute specifically confirms that: ‘The Court may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligations under international law with respect to the state or diplomatic immunity of a person or property of a third state, unless the Court can first obtain the co-operation of that third state for the waiver of the immunity.’ See: Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court, 1131.

32 Exchange of diplomatic letters between the Republic of Chile and the Kingdom of Spain, 3 and 13 Sept 1999.

33 The ad hoc judges van der Wyngaert and Bula Bula were also divided.

34 An example of the model is the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment 1984, Arts 5 and 7, and see: Clark, , ‘Offences of International Concern: Multilateral State Treaty Practice in the Forty Years Since Nuremberg’ [1988] Nordic J Int Law 49.CrossRefGoogle Scholar

35 Higgins, Problems and Process: International Law and How We Use It (Oxford University Press, 1994), 64–5Google Scholar

36 Op cit, n 2, Joint Separate Opinion, para 41.

37 The preservation in many of the Conventions of other criminal jurisdiction exercised in accordance with national law (eg Art 5(3) of the Torture Convention 1984) takes the matter no further, since the question still remains as to which national claims to jurisdiction are permitted by international law.

38 Op cit, n 2, Joint Separate Opinion, para 62, emphasising the need for the acts to be ‘committed in a systematic manner or on a large scale’ to qualify as international crimes.

39 See the discussion by van der Wyngaert in her Dissenting Opinion, para 75.

40 Separate Opinion of President Guillaume, para 17.

41 Ibid, para 12.

42 Joint Separate Opinion, para 54.

43 Oppenheim, op cit n 20, at 469.

44 Op cit, n 28.

45 Cf Airbus Industrie GIE v Patel [1999] 1 AC 119 (HL) on the need for an adequate link with the forum for the court to grant an anti-suit injunction.

46 The phrase adopted by Congo in its pleadings, referred to by van der Wyngaert in her Dissenting Opinion, para 87.

47 Joint Separate Opinion, para 79.

48 See, eg the approach of the English Courts to the recognition of Public International Law, cf J H Rayner (Mining) Ltd v Department of Trade and Industry [1990] 2 AC 418Google Scholar, with Pinochet (No 3) (op cit, n 1).