The Scope and Extent of the Immunity of Heads of State and Government under International Human Rights Law: A Brief Analysis of the House of Lords Judgement in the Pinochet Extradition Case

 

By Prof Dr Aboubacar Abdullah Senghore, Associate Professor of Comparative Law and Dean of the Faculty of Law at the University of The Gambia

 

Abstract

 

As international law evolves, heads of state that act with impunity and commit certain crimes while in power are no longer completely immune from prosecution. They can be held accountable for crimes that they committed while in power if they fall under the principle of universal jurisdiction. The primacy of international law should prevail in circumstances where human rights violations caused by crimes such as genocide, extra judicial executions, torture, war crimes, forced disappearances, genocide and crimes against humanity are committed to hold the perpetrators accountable for their actions. The Pinochet extradition case, which held that he was accountable for torture committed while he was a head of state, brings some hope that there is no immunity where the commission of high crimes cannot be linked to one’s position as a head of state. This milestone development in international law raises some optimism for the victims of human rights violations under some circumstances. As the “new Gambia” emerges, accountability for human rights violations discourse must occupy a prominent space, especially in the light of the Pinochet case.

 

Introduction: Nature of International Law of Human Rights

 

International law of human rights (ILHR) may be described as that branch of modern international law which is concerned with the protection of individuals and groups against violations by governments and other institutions, of their internationally recognised rights on one hand and with the promotion of these rights on the other.[1] Expressions like international human rights law, international protection of human rights and international bill of human rights are sometimes used to refer to this branch of the Law of Nations. The latter expression is however confined to major human rights treaties concluded at the level of the United Nations i.e. the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and other subsidiary conventions dealing with human rights promotion and protection.[2] ILHR has, by virtue of its definition, significantly departed from the traditional attitude of international law which is usually defined as the law governing relations between nation states exclusively binding on them in their mutual intercourse.[3]

 

Although, the scope of the definition of international law was somewhat expanded after the first world war to include some of the newly created inter-governmental organisations deemed to deserve some or certain limited rights under international law, individual human beings were still excluded and not deemed to deserve international legal rights as such. Instead, they were said to be objects rather than subjects of international law. Furthermore, the Law of Nations was in its very nature, still inapplicable to the manner in which a state treated its own people as this was entirely within the state’s domestic jurisdiction.[4] Oppenhein indicated that individuals might, under certain circumstances, be conferred rights and imposed duties of international law.[5] At this point however, this paper concludes by saying that one of the most obvious weaknesses of modern international law today is that it addresses itself mainly to state institutions rather than individuals who make up or create and run these institutions.

 

It is worth mentioning at this juncture that international human rights law is just, like any other system of law that purports to regulate human conduct, a normative order in the sense that its rules stipulate what ought and ought not to happen. As one expert puts it, “not necessarily what will or will not happen.”[6] In other words, law is naturally unable to make things happen or to prevent them from happening. Rather, it provides guidelines for right things to happen in the right manner.

 

This branch of international law, also described as a primitive law in its early stage of development, intended to govern a society which, in its collective sense, is a primitive one possessing only a few centralised legislative, judicial and executive organs.[7] Thus, ILHR has the usual normative character of law and of legal rules. In other words, just as there is no guarantee that a law will be obeyed, neither does it follow that all offenders or violators of the law will be punished. In fact, the likelihood of punishing those who violate ILHR is more remote. Notwithstanding this weakness of international law, the fact must be recognized that the validity of law does not necessarily depend on its being obeyed or on whether sanctions will be applied in the event of any disobedience. Instead, a law is valid in the juridical sense, if the system recognises its source as competent.[8]

 

ILHR Application

 

Thus, it is against the interesting background of this very complex, highly exciting and rapidly developing international legal regime and its relationship with the national laws of various nations that the House of Lords, in November 1998 sat to consider the case of R v Bow Street Metropolitan Stipendiary Magistrate: Ex parte Pinochet Ugarte (No 3) ( Pinochet case) .[9] This case raises very difficult, complex and tricky questions for modern international law and human rights to convincingly settle before a national court.

 

The Pinochet Case

 

General Augusto Pinochet was the former military ruler of Chile who seized power in a bloody coup d’état in 1973 and ruled the South American country with an iron fist. Throughout his reign stretching form 11 September 1973 until 1990 when he finally handed over power to a democratically elected government, more than 4,000 people including many Spanish nationals living in Chile were allegedly either killed, tortured or they disappeared and are unaccounted for. Pinochet is accused of having committed serious crimes against humanity which include torture, hostage taking and genocide against his political opponents. Since the general abdicated power in 1990 several law suits were brought against him in Spain, Switzerland and in other European countries.

 

Prior to handing over power to civilian rule, Pinochet introduced a new constitution by which he became a senator for life and therefore immune from prosecution before Chilean courts. For this reason, law suits brought against him in Chile could not be pursued.

 

As for the court cases against him in Spain, the Spanish Supreme Court, apparently relying on the principle of universal jurisdiction over crimes against humanity and on the fact that Spanish citizens were among his alleged victims, ruled that it had jurisdiction to try Pinochet for torture, genocide and hostage taking – each of which is an offence under international law. [10]With all this, Chilean authorities would not extradite him to Spain to stand trial because he enjoyed blanket immunity in Chile, and most importantly the crimes he is accused of were committed on Chilean soil and should therefore be tried there and nowhere else. In October 1998, General Pinochet – apparently on permission of the British government – came to London for a medical check-up. Soon after his arrival, a Spanish magistrate issued as arrest warrant to the judicial authorities in Britain and asked for Pinochet to be extradited to Spain to stand trial. Thereupon, the general was arrested under Section 8(1) of the 1989 Extradition Act. Augusto Pinochet then challenged the validity of his arrest in a divisional court of the Queen’s Bench Division – Pinochet then claiming that he was entitled to immunity from prosecution in Britain.[11]

 

 

Analysing Pinochet

 

The law Lords therefore had to set themselves the difficult task of considering the following and other related challenges: The general Pinochet was a famous head of state still enjoying substantial immunities from criminal proceedings before national courts; That the general was not a citizen of the country that requested his extradition. He was a citizen of Chile but the kingdom of Spain sought for his extradition from a third-party jurisdiction; The crimes involved were committed on Chilean soil and not on the United Kingdom; The scope and extent of the official functions of a head of states in relation to his/her immunity needed to be defined; Whether the immunity of a former head of state/government should extend to crimes against humanity. In other words, the court had to decide whether crimes against humanity should out with the protection of a former Head of States’ immunity. What does English law say about the nature and status of the offences that general Pinochet was accused of committing? Also, and most importantly, whether acts of torture, hostage taking and genocide could under any circumstances be called official functions or public acts of a head state or government.[12]

 

The Court’s Judgement

 

The High Court in London, typically representing the dualist character of the British judicial system, quashed the arrest warrant against the general and ruled that as a former head of state Pinochet was immune from prosecution in the United Kingdom and therefore no extradition could be initiated against him. Thereafter, prosecution authorities both in Britain and Spain appealed to the House of Lords, the highest judicial body in the United Kingdom. In a majority decision of 3-2 the law Lords reversed the High Court’s ruling and held that general Pinochet was not entitled to immunity from criminal proceedings, including those of extradition and that he should therefore be extradited to Spain to face trial on charges of torture, hostage taking and other crimes against humanity.

 

Significance of the Decision

 

This was a landmark decision by the law Lords, and the case has been one of the most difficult and most challenging cases of the modern times to five of the most senior judges in Britain during that period. This is because they had to cross over extremely difficult and complicated barriers before arriving at their respective conclusion. For example, Pinochet was a former Head of State, he was not a Spanish subject though Spain asked for his extradition, the crimes he is accused of were committed on Chilean soil, the scope of a Head of State’s official function had to be defined, and whether crimes against humanity should outweigh the protection of a former Head of State’s immunity. Furthermore, a determination of the nature of the offences the Pinochet was accused of committing under English Law was necessary, and whether acts of torture, hostage taking and genocide could under any circumstances be called official or public acts made by a Head of State. This was more difficult in this case, given that Pinochet was said to have ordered the commission of such acts in secret torture chambers in Santiago. A host of similar tricky legal obstacles also had to be cleared by the law Lords who knew very well that their decision could change the course of the relationship between international law and English Law, and that it could have a lasting impact on international law in general and ILHR particularly. Thus, the main question before the court was whether Pinochet was entitled to immunity as a former Head of State from arrest and extradition proceedings in the United Kingdom in respect of acts alleged to have been committed while he was a Head of State. As such, reference was made to Sections 1 and 14 of the 1978 State Immunity Act, which offer absolute immunity to states and Head of State, and to Sections 2-11 of the same Act, which provide certain exceptions to the absolute immunity. For example, activities related to commercial transactions, certain contracts of employment, injuries to persons and property caused by acts or omissions in the United Kingdom.

 

In determining what may constitute as official acts in the exercise of a Head of State’s function, the House of Lords concluded that official functions of a Head of State cannot be defined by domestic law. Rather, it must be defined by international law and that acts of torture, hostage taking and genocide cannot be regarded as official functions of a head of state under international law because they are regarded as crimes under international law.[13]

 

The court seemed to hold the view that although international law does not provide any list detailing official functions of a Heads of State in official capacity and that the Law of Nations would recognise those functions as may be attributed to him as a Head of State by domestic law – this must be subject to the rules of customary international law. Thus, the Law of Nations neither customary nor treaty rules recognise that it is one of the specific functions of a Head of State that he should commit torture, genocide, hostage taking or any other crime against humanity.

 

Lord Slynn, though he led the minority opinion, appeared to have recognised the dictum established by Lord Denning in the case of Trendex Trading Corporation V. Central Bank of Nigeria that “rules of customary international law changes from time to time and English courts must be prepared to accept and give effect to such change, and not be bound by any idea of stare decisis in international law”.

 

International Law

 

Examples of new rules introducing a change during international law are: the 1979 Convention on Hostage Taking which makes the practice of taking hostage an international criminal offence. This Convention was enacted into English law in 1982, the same principle applies to the Genocide Convention 1948 which in article 4 would implicate Heads of State for crimes of genocide. Other principles of international law holding Heads of State responsible for crimes of torture, genocide and other crimes against humanity are the principles established by both the Tokyo and Nuremberg International Military Tribunals in 1946 and the status of the international tribunals on former Yugoslavia and Rwanda. Under all these principles or statutes, individuals were held responsible in international law for committing crimes against humanity irrespective of their official positions. Thus, the High Court in London where the Pinochet case originated clearly missed this revolutionary principle governing the relationship between English Law and international law that Lord Slynn was referring to.[14]

 

Another question the law Lords had to consider was whether acts recognised as international crimes would have any effect on the immunity of a Head of State. For this issue, it was noted that there were two extreme positions with one of them arguing that there was no effect whatsoever, as such acts would have on a Head of State’s immunity. [15]It seems that this position ignores the fact that international law is not static and that the principle may be changed by state practice. The opposite extreme position argues that all crimes accepted as international crimes are outside the protection of the principle of immunity of a former Head of States. However, Lord Slynn rejected this contention.[16]

 

The law Lords seemed to have recognised or at least pointed to the birth of a rule of international law: the fact that now it has become a principle of international law that some crimes would do away with the protection of a former Head of State’s immunity. Therefore, immunity under the Law of Nations would not apply to crimes such as torture. However, the minority opinion which upheld the High Court’s decision appeared to have been influenced by different factors including absolute immunity of a former Head of State, the act of state doctrine and the fact that the provisions of article 4 of the 1948 Genocide Convention which makes constitutionally responsible rulers liable to punishment was not incorporated into the English Genocide Act 1948 which only partially incorporated the 1948 Convention.

 

The majority opinion however, had to consider another different question before finally breaking all the traditional barriers which used to prevent international law from being given effect in English courts: the Lords had to decide whether acts of torture, hostage taking or genocide with which Pinochet was accused of having committed were done in the exercise of his official functions as a Head of State. The High Court seemed to have answered this question in the affirmative when it quashed the arrest warrant and ruled that the general was immune from extradition proceedings before English courts. But the majority in the House Lords disagreed with the Lord Chief Justice.[17]

 

After a combined reading of articles 31 and 39 (2) of the Vienna Convention of Diplomatic Relations 1961 which deal with diplomatic immunities and the continuation or otherwise of such immunities after the person ceases to be a head of a diplomatic mission or a Head of State respectively, and Section 20 of the State Immunity Act 1978 which confers personal immunity upon a Head of State, Lord Nicholls who led the majority concluded that immunity is applicable only with respect to acts recognized by international law as a legitimate function of a Head of State, irrespective of the terms of his domestic constitution, and that torture of his subjects or aliens by a Head of State is not recognized by international law as forming part of a Head of State’s legitimate function. In line with articles 6 and 7 of the statute of the Nuremberg International Military Tribunal 1945 therefore, according to which crimes against humanity were offences against the Law of Nations irrespective of the official positions of defendants and the requirements of their domestic law, the majority held that the respondent Pinochet, was not free from responsibility under international law and should be extradited to answer those charges against him. The court further referred to a resolution of the United Nations adopted on 3 December 1973 according to which persons charged with crimes against humanity were not entitled to asylum or any form of protection by any state. As such, the resolution obliges states to assist each other in bringing such offenders to trial and not to take any measures – legislative or otherwise – that could be prejudicial to their international obligations to arrest, extradite, or punish such offenders. Likewise, articles 5 and 7 of the Torture Convention and articles 5 and 8 of the Convention on Hostage Taking 1979 have made it very clear that these crimes were to be punishable by courts of individual states and are obliged either to prosecute or extradite alleged offenders.

 

Another difficult legal issue that the law Lords first determined was the nature of the offences with which the general is charged under English Law. They decided that torture which is one of such offences was prohibited under English Law, in Section 134 of the Criminal Justice Act. Hostage taking contravenes Section 1 of Taking of Hostages Act 1982, which apparently incorporates the two conventions into English Law. Along the same line, the majority explained the ambiguity surrounding the principle of sovereign immunity. Lord Nicholls argued that although sovereign immunity might have been a single doctrine in the past when the Law of Nations did not distinguish between personal and state immunity, in modern English Law it is necessary to distinguish three different principles, i.e. State immunity formally known as sovereign immunity which is now largely regulated by Section 1 of the State of Immunity Act 1978, the Anglo American common Law doctrine of act of state and the personal immunity of the Head of State, his family and his servant which is codified under Section 20 of the state of Immunity Act 1978. As for the principle of State Immunity, it immunises the state, as an entity, from the jurisdiction of the courts of the United Kingdom. The court further clarified that this immunity of state cannot be circumvented by suing the Head of State in his personal capacity, i.e. the capacity with which the Head of State is sued and not the capacity in which he performed the act alleged to give rise to liability. As for the act of state doctrine, the court argued that it is subject to parliamentary control, that is, it yields to contrary intention by parliament.[18]

 

As such, any time the legislature has shown that an issue is to be justiciable in English courts the act of state will not apply to that issue. Lord Steyn in his majority opinion further clarified that the act of state doctrine will only arise if the court decides that the defendant does not have immunity. [19]Thus, acts of torture as defined under Section 134(1) of the 1988 Criminal Justice Act is precluded from the scope of act of state. So, in line with all the principles and facts explained above, General Augusto Pinochet was not immune from criminal proceedings in the United Kingdom of which extradition forms a part. The law Lords rejected the argument that if extradition proceedings could go ahead that would affect the diplomatic relations between Chile and Britain or between the latter and Spain if they were disallowed. This question – they argued – was a purely political matter to be determined by the executive alone. Similarly, the argument put forward by many was that if Pinochet was extradited to Spain, the Chilean fragile democracy and the reconciliation reached among various groups of society based on which the general agreed to relinquish power to a civilian administration would be endangered, was rejected by the majority in the House of Lords because on of such issues was justiciable.[20]

 

Finally, the majority judgment in Pinochet has established that statutory immunity of a former Head of State is not absolute, but is subject to two important requirements: that the defendant was a Head of State ratione personae and that he is charged with acts performed in the exercise of his official functions as a Head of State – ratione materiae.[21] Such functions are in line with the rules of international law.

 

Conclusion

 

The law Lords established an important principle of international law: that when it comes to human rights abuses involving crimes against humanity, primacy should lie with international law. This, perhaps, is why they rejected the argument put forward by the Chilean government that the crimes Pinochet was changed with were committed on Chilean soil, and therefore, he should be tried before Chilean courts and in accordance with Chilean on Law. The Lords have further indicated how effective the interpretive method approach can be if judges are willing and seriously prepared to employ judicial activism rather than judicial self-restraint. Thus, by decisively departing from the traditional conservatism and jurisdiction-bound character of English judges, the law Lords generously interpreted many principles and rules of international and domestic law to give judicial recognition to some of the most basic rules of the ILHR, namely, those dealing with crimes against humanity.

 

The Lords – by holding Pinochet responsible for the human rights abuses committee while he was a Head of State – have sent a powerful reminder to many former and current dictators that after or upon leaving office could be held responsible for abuses. However, the decision of the House of Lords has put the British government in a very difficult position now, not only regarding the fact that article 4 of the Genocide Convention 1948, which holds everybody including a Head of State responsible for crimes against humanity, has yet to be incorporated into English law. So now that the Lords have judicially, albeit, indirectly, done so, the British government is expected to take the necessary serious steps towards legislating article 4 and other relevant rules of the ILHR into domestic law.

 

Ultimately, the ruling of Pinochet is a landmark decision, for it has redefined the relationship between international law and English law from the perspective of the judiciary. Being the highest court of law in Britain, the law Lords have established an authoritative precedent for other English as well as Commonwealth courts of justice to follow. However, given that the first decision of the House of Lords in this case was by a majority decision of 3–2, and that earlier the High Court upheld the absolute immunity of a former Head of State even with regards to serious international crimes like torture, genocide and hostage taking, some doubts are still left in the minds of many human rights advocates as to whether the teachings established by the Lords in Pinochet will prevail. As ILHR continues to develop in increasingly globalised times, it is essential that lessons learned in the case of Pinochet are developed to progress the human rights of citizens in all nations. As the Gambia re-joins the Commonwealth, this paper anticipates the impact of the Lords’ decision in establishing this ‘New Gambia’.

 

 

 

 

 

 

 

 

 

 

 

 

 

References

 

International Treaties and Conventions

Convention on the Prevention and Punishment of the crime of Genocide Convention 1948 (adopted 9 December 1948, entry into force 12 January 1951)

International Convention on the Elimination of All forms of Racial Discrimination (21 December 1965, entry into force 4 January 1969)

The Convention on the Suppression and Punishment of the Crime of Apartheid (30 November 1973 entry into force 18 July 1976).

 

Cases

R v Bow Street Metropolitan Stipendiary Magistrate: Ex parte Pinochet Ugarte (No 3) [1999] 2 All ER 97 (HL).

 

Books

Buergenthal, T, Shelton, D, Stewart, D.P, International Human Rights in a Nutshell (GW Law Faculty Publications & Other Works, 2009)

Craven, M, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development, (Clarendom Press, Oxford 1995)

Glahn, G, Among Nations- an Introduction to Public International Law (Macmillan 1992)

Humphrey, J.P, No Distant Millennium: The International Law of Human Rights (UNESCO 989)

Jennis, R, Watts, A Oppeninhein’s International Law (Longman 1992).

 



[1] Buergenthal, International Human Rights in a Nutshell 1 (1998)

[2] Such as The Genocide Convention 1948, The U.N. Convention on the Elimination of All forms of Racial Discrimination, The Convention on the Suppression and Punishment of the Crime of Apartheid 1973 and similar instruments. See Craven, The International Covenant on Economic, Social and Cultural Rights: A perspective on its Development 7 (1995)

[3] 1 Oppeninhein’s International Law 4 (1992)

[4] Glahn, Law Among Nations- an Introduction to Public International Law, 235-236 (1992). Also see Buergenthal, International Human Rights, 2.

[5] Ibid. 4.

[6] Humphrey, No Distant Millennium- The International Law of Human Rights 15 (989)

[7] This is a reference to the United Nations and its component organs, Ibid.

[8] For Further detail about the nature of the I.L.H.R see Ibid. 15

[9]  [1999] 2 All ER 97 (HL)

[10] ibid 9

[11] ibid 9

[12] ibid 9

[13] ibid 9

[14] ibid 9

[15] ibid 9

[16] ibid 9

[17] ibid 9

[18] ibid 9

[19] ibid 9

[20]  ibid 9

[21] ibid 9