Section 2: Special Cases for Extradition of Heads of State
A: Augusto Pinochet
A.4: International Crimes and Immunity Ratione Materiae
161
all defendants (state torturer) as defined in the torture Convention. Thus, according to wills and agreement of State parties to the torture Convention, for punishing all state torturers rely to immunity ratione materiae is impossible. In sum functional immunity was implicitly waived by State parties to the Torture Convention.
Pinochet no 3 is a weak precedent for functional immunity decisions in future cases regarding allegations of crimes against international law because of the reliance on the act of state immunity rule and the terms of the Torture Convention.831
However, the most important result of the case, for future cases, will be considered in below.
162
from criminal jurisdiction for crimes against international law835. But two of them -Lord Hope and -Lord Philips836- relied on the Torture Convention to establish the universal jurisdiction that makes this rule applicable to cases before national courts as well.837
Only Lord Hutton can be said to have recognized the absence of functional immunity from the jurisdiction of national courts in respect of all crimes against international law.838
Lord Hutton considered that the alleged acts of torture do not qualify for protection under the rule of functional immunity, “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”.839 Customary international law considerations alone must therefore have been sufficient for Lord Hutton to deny immunity for the torture allegations.840
The ruling of the House of Lords underscored the point that the commission of an international crime can never be characterized as an official function841. The House of Lords judgment in Pinochet provided progressive new perspectives on the scope of
835Alebeek, op-cit, p.226
836According to Lord Philips the rule of functional immunity did not apply to crimes committed outside the territory of the forum state at all and he considered therefore that the establishment of universal jurisdiction through the Torture Convention was not limited by the rule of functional immunity, In: Ibid, p.297
[According to him, “International crimes and extra-territorial jurisdiction in relation to them are both new arrivals in the field of public international law. I do not believe that state immunity ratione materiae can co-exist with them. The exercise of extra-territorial jurisdiction overrides the principle that one state will not intervene in the internal affairs of another. It does so because, where international crime is concerned, that principle cannot prevail. An international crime is as offensive, if not more offensive, to the international community when committed under colour of office. Once extra-territorial jurisdiction is established, it makes no sense to excludes from it acts done in an official capacity”. In:Lord Phillips of Worth Matravers, op-cit, p.661]
837Alebeek, op-cit, p.226
838Ibid, [Bianchi pointed out that: Only Lord Phillip went a step further in saying that no rule of international law requires that immunity be granted to individuals who have committed crimes of international law, In:
Bianchi, op-cit, p.249]
839Pinochet no3, 165, In: Alebeek, Ibid, p.236
840Ibid
841Sands, op-cit, p.46
163
immunity ratione materia; it is submitted that in light of the Pinochet judgment (and developments in international criminal law in general) immunity ratione materia cannot be applied when an individual (for instance a former head of state) is charged with serious crimes under international law.842
“This notion is based on the premise that international law provides that individual criminal liability always attaches to certain grave acts. These acts, even if accomplished by state officials, cannot be attributed solely to states. In short, there is a fundamental inconsistency between the rule providing for individual criminal responsibility and the rule on functional immunity of state officials, which aims at absolving state officials from personal liability by attributing their acts to their respective states”.843
The judgment of the House of Lords opens the door to the use of one national court to prosecute an individual -even a former Head of State- for acts occurring in another state.844
The principle of ‘irrelevance of official capacity’ (that was established by Nuremberg judgment), through the Pinochet case was developed further in relation to foreign national courts. As correctly was written by Professor Werle:
“In the case of crimes under international law, immunity ratione materiae is inapplicable not only to trials before international courts,845but also vis-à-vis state
842Kemp, op-cit, p.180,[ICJ’s dictum on ratione materiae(in the arrest warrant case)could therefore weaken or seriously dilute the practical importance of the landmark decision of the House of Lords in Pinochet and its enormous effects in the struggle against impunity, In: Gaeta Paola, Ratione Materiae Immunities of Former Head of State and International Crimes, The Hissen Habre case, 1 JICJ 2003, p.192]
843This assumption was nonetheless challenged by the ICJ in Arrest Warrant ;the Court asserted that the irrelevance of official capacity is provided for only in conventional texts or in the statutes of international criminal tribunals, thus implying that national courts should respect the functional immunity accruing to state officials accused of the most serious international crimes, In: Frulli, Taylor’s Immunity, op-cit, pp.1126-1127
844Sands, op-cit, p.47
845 See DR Congo v. Belgium, ICJ, Judgment of 14 February 2002, §61.Thus the irrelevance of functional immunity already arises from the fact that genuine supra-national jurisdiction per definitionem supersedes state governments and penal authority; see G. Dahm, J. Delbruck and R. Wolfrum, Völkerrecht, Vol. I/3, 2nd edn. (2002), p.1018; P. Robinson and G. Ghahraman, 6 JICJ 2008, p.981 at p.985. To the extent that international jurisdiction is treaty- based, such as in the case of the International Criminal Court, the parties to the treaty have partially given up state immunity; thus this does not stand in the way of prosecution before
164
judiciaries. This, too, is today anchored in customary international law. This development gained significant momentum as a result of the decisions of the British House of Lords in the Pinochet Case”.846
It is submitted that the Pinochet rule on state immunity is not only a manifestation of state practice and opinio juris but is also in accordance with the hierarchy of values of the international community.847
The Pinochet Case was momentous because -for the first time- sovereign immunity was not allowed to become sovereign impunity848. The decision to remove Pinochet’s immunity in England provided a precedent for limiting claims of immunity by former Heads of State and opened the way for future prosecutions.849
The House construed English statutes in the light of developments of international human rights law and international criminal law to draw the line against giving impunity to even a former Head of State who committed international crimes while still in office.850
the ICC. For immunities before the international Tribunals, see D. Akande, 98 AJIL 2004, p.407 at pp. 415et seq. In: Werle, ICL2009, op-cit, p.238
846During a visit to London in 1998, Augusto Pinochet was arrested on the basis of a Spanish arrest warrant and later a deportation request. On final appeal, the Law Lords found that Pinochet was not protected by immunity from arrest and deportation, see In re Augusto Pinochet Ugarte, High Court of Justice, judgment of 28 October 1998, 38 ILM (1999), pp.68 et seq.; Regina v. Bartle and Evans, ex parte Pinochet, House of Lords, judgment of 25 November 1998, 37 ILM (1998), pp.1302 et seq.; judgment of 24 March 1999, 38 ILM (1999), pp.581 et seq. For details, see A. Bianchi, 10 EJIL 1999,pp.239et seq.; M. Byers, 10 Duke Journal of Comparative and International Law (2002), pp.415 et seq.; M. Ruffert, 48 NILR (2001),p.171 at pp.178 et seq.; P. Sands, 16 LJIL (2003), p.37 at pp. 45 et seq.; J. M. Sears, 42German Yearbook of International Law (1999), pp.125 et seq. In: Werle, Ibid
847Wirth Steffen, Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Belgium Case, 13 EJIL 2002, p.888
848Robertson, op-cit, p.347
849Diana Woodhouse, The Extradition of Pinochet: A Calendar of Events, in The Pinochet Case1,1(Madeline Davis ed.,2006) In: Bernaz and Prouveze, op-cit, p.368
850Kittichaisaree, op-cit, p.59, [The principle of non-immunity applies to violations of human rights and the laws of war and genocide, to violations of the prohibitions against apartheid and denials of
self-determination, and, more specifically, to international terrorism, in: Paust J Jordan, Federal Jurisdiction Over Extraterritorial Acts, In: International Criminal Law, Cases and Materials, 1996, p.108]
165