R (Pinochet Ugarte) v Bow St Metropolitan Stipendiary Magistrate

R (Pinochet Ugarte) v Bow St Metropolitan Stipendiary Magistrate is a set of three UK constitutional law judgements by the House of Lords. This landmark case involved Senator Pinochet and the legal proceedings surrounding his extradition. This case is of significant historical and legal importance, as it touches on international law, extradition, state immunity, and the principle of universal jurisdiction for crimes against humanity. Given the complexity of this case, this case law article will involve a comprehensive analysis of the legal arguments presented, the judicial reasoning applied by the courts, and the implications of the judgment on international law, particularly concerning the prosecution of former heads of state for international crimes.

This case involves the Government of Spain’s attempt to extradite Senator Pinochet from the UK to stand trial in Spain for crimes committed during his tenure as the head of state in Chile. The legal issues revolve around the application of the “double criminality rule” for extradition, which requires the conduct to constitute a crime under both Spanish and UK law, and the question of whether Pinochet, as a former head of state, is entitled to sovereign immunity from arrest or prosecution in the UK for acts of torture. The proceedings progressed from initial hearings to appeals, involving complex legal arguments about the applicability of international crimes, such as torture, to the extradition process and the scope of immunity for former heads of state.

Background of the case

On 11 September 1973, Chile witnessed a pivotal moment in its history with a right-wing coup that ousted the left-wing government of President Allende, led by a military junta under General (later Senator) Augusto Pinochet, who subsequently became head of state. This marked the beginning of Pinochet’s regime, which lasted until 11 March 1990, when he resigned. The period under Pinochet’s rule is widely recognised for its egregious human rights violations, including torture, murder, and the disappearance of individuals executed on a grand scale. While Pinochet himself was not directly accused of committing these acts, it is alleged that they were carried out under his directive and, with his knowledge, as part of a broader conspiracy he was involved in. These atrocities were not confined to Chilean citizens or territories alone.

In 1998, while in the United Kingdom for medical treatment, Pinochet became the subject of an extradition request by Spanish judicial authorities aiming to try him on numerous charges, some of which were linked to Spain, though most were not. The case stirred controversy, with opinions deeply divided along political lines, viewing Pinochet either as a villain or a saviour. The legal proceedings in the UK focused not on the moral or political dimensions of the case but strictly on legal questions regarding the existence of extradition crimes and Pinochet’s immunity from prosecution for such crimes.

An international arrest warrant was issued for Pinochet in Spain on 16 October 1998, followed by his arrest in London the next day. Initial legal challenges in the UK centred on the legitimacy of the arrest warrants and Pinochet’s claimed immunity as a former head of state. The Divisional Court initially sided with Pinochet, quashing the arrest warrants on immunity grounds. Still, this decision was challenged, leading to a complex legal battle that reached the House of Lords.

The legal discourse expanded as Spain submitted a formal extradition request, broadening the allegations against Pinochet to include a widespread conspiracy to seize power through a coup and commit various atrocities, including genocide, primarily in Chile but also internationally. The House of Lords was tasked with reevaluating Pinochet’s immunity in light of these expanded charges, leading to a nuanced legal examination of the applicability of extradition laws to the acts Pinochet was accused of, eventually impacting the decision on whether he could be extradited to Spain. The legal proceedings underscored the international dimension of human rights law and the challenges of holding former heads of state accountable for crimes committed under their leadership.

Outline of the law

The principle of criminal jurisdiction traditionally holds that a state exercises jurisdiction over offences committed within its geographical boundaries. This principle underpins the extradition process, whereby a state can request the extradition of a person from another state where the person is found, provided the offence is recognised as an “extradition crime” under the laws of both states, a concept enshrined in the Extradition Act 1989 through the double criminality rule.

The landscape of international law, particularly following the Nazi atrocities and the Nuremberg trials, evolved to recognise certain offences as international crimes, allowing states to claim jurisdiction over these crimes even when they occur beyond their geographical boundaries. A notable example is the crime of torture, which, following the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), was incorporated into UK law by the Criminal Justice Act 1988. This Act criminalised torture globally, making it prosecutable in the UK. However, it did not apply retrospectively to acts of torture committed outside the UK before 29 September 1988, raising questions about the application of the double criminality rule for extradition purposes, especially in cases involving conduct before this date.

The case involving Senator Pinochet highlighted this issue, as it raised the question of whether an “extradition crime” under the 1989 Act required the conduct to be criminal under UK law when it was committed or only at the time of the extradition request. Although initially, it appeared that all charges against Pinochet were extradition crimes, further scrutiny revealed that most of the conduct occurred before 1988, thus not meeting the double criminality rule if it required the conduct to be criminal under UK law at the time of commission. This led to a reassessment of the charges that could legitimately be considered extradition crimes under current interpretations of the law.

Furthermore, the question of whether a former head of state, such as Senator Pinochet, is entitled to sovereign immunity for acts of torture committed before the incorporation of the torture convention into UK law remains critical. While the discussion initially focused broadly on the issue of state immunity, it has since narrowed to consider only those charges that constitute extradition crimes under the current legal framework. This re-evaluation necessitates a nuanced analysis of the legal facts and the specific charges that could lead to extradition, pending the determination of Pinochet’s immunity status.

Judgement

In the first judgment concerning Pinochet (No. 1), a majority of the panel, including Lord Nicholls, Lord Hoffmann, and Lord Steyn, decided by a 3-2 vote that Pinochet was not entitled to state immunity for his actions.

Key excerpts from the judgment highlighted that developments in international law since World War II have led to the recognition of genocide, torture, hostage-taking, and crimes against humanity (whether in wartime or peacetime) as international crimes meriting punishment. This evolution in law suggests that such grave offences cannot be considered within the scope of legitimate functions of a Head of State.

Furthermore, the judgment emphasised that international law explicitly prohibits certain behaviours, such as torture and hostage-taking, by anyone, including state leaders. To argue otherwise would undermine the very essence of international law.

However, Lords Slynn and Lord Lloyd expressed their dissent from this majority decision.

In a subsequent ruling, referred to as Pinochet (No 2), the original decision was overturned by a different group of judges, including Lord Browne-Wilkinson, Lord Goff, Lord Hope, Lord Hutton, Lord Saville, Lord Millett, and Lord Phillips. This reversal was based on concerns about impartiality arising from the discovery that Lord Hoffmann, a judge in the initial case, had not disclosed his connections to Amnesty International, a party involved in the litigation against Pinochet.

Pinochet (No 3)

The Majority decision

This case brought significant issues regarding public international law to the forefront, alongside questions of interpreting domestic and international legislation. The challenge for the House of Lords was to navigate the complexities between the Convention Against Torture (CAT), as adopted by section 134 of the Criminal Justice Act 1988, and the principles of the Vienna Convention on Diplomatic Relations, integrated by the Diplomatic Privileges Act 1964 via section 20 of the State Immunity Act 1978. Lord Browne-Wilkinson elucidated in the principal judgment the critical international relevance of state immunity, especially under the circumstances that if Senator Pinochet were denied immunity for the alleged acts of torture, it would mark a historical moment where a domestic court has dismissed immunity for a (former) head of state, arguing that there can be no immunity from prosecution for certain grave international offences.

According to section 20 of the 1978 Act, the immunity granted to a diplomatic mission’s head under the Vienna Convention, and enacted by the 1964 Act, also extends to a head of state. This interpretation, shared by the majority and Lord Goff, posits that a serving head of state enjoys absolute immunity (immunity ratione personae), shielding them from legal action or prosecution. This immunity persists after leaving office, covering acts carried out in their official capacity (immunity ratione materiae).

The crux of the disagreement between Lord Goff and the majority revolved around whether the alleged torture acts by former head of state, Senator Pinochet, were part of his official duties. The majority contended that torture, even when considered under the pretext of immunity, does not constitute an official state function.

Lord Browne-Wilkinson highlighted a key argument against recognising such acts as official duties due to the “bizarre consequences” it would entail. Firstly, the CAT stipulates that torture is an act that can only be carried out by someone acting in an official capacity. Secondly, state immunity traditionally grants government officials abroad immunity in acknowledgement of their state’s sovereignty. Thus, if torture were deemed an official function, and government officials could claim absolute immunity during their tenure and functional immunity after their term, it would be impossible to prosecute any acts of torture committed outside the torturing state’s jurisdiction unless the state itself explicitly renounced immunity.

Lord Goff’s Dissenting Opinion

Lord Goff diverged in his opinion, aligning with the initial views of the Divisional Court and the dissenting perspectives of Lord Slynn of Hadley and Lord Lloyd of Berwick in Pinochet No.1, asserting that the inherently criminal aspect of an act does not strip it of its intrinsic character. He contended that the term “functions” has been traditionally understood to refer to governmental activities instead of personal actions. Hence, according to Lord Goff, if the extreme nature of torture as an international offence were to redefine this interpretation and thereby influence the relevance of state immunity as the appellants (supported by the majority) suggested, such a reinterpretation should be explicitly evident within the Convention Against Torture (CAT) itself.

Upon reviewing the CAT, Lord Goff identified no direct indication suggesting a shift in the principle of state immunity nor any hints in the preparatory works that the Convention aimed to remove state immunity. Furthermore, he found no basis for assuming such an amendment should be implicitly understood. Lord Goff underscored that, apart from this instance not meeting the stringent criteria for an implied condition under international law, there are longstanding policy justifications for maintaining state immunity, which serves as a safeguard against one sovereign entity adjudicating the actions of another. This principle, he explained, establishes the boundaries for non-interference among sovereign nations.

Lord Goff highlighted the potential repercussions of departing from this principle. He warned that the absence of state immunity could significantly hinder the duties of public officials, particularly those involving international responsibilities, as they could become targets for opportunistic legal actions by other states. He vividly illustrated this concern by contemplating the possible detention of British officials overseas, based on their perceived complicity with international offences, to underscore the practical implications of such a shift.

Therefore, the House ruled that Pinochet did not enjoy immunity from prosecution for torture.

Commentary

This judgment has been pivotal in advancing the law on prosecuting international crimes, setting a precedent for the limited scope of state immunity in cases involving crimes against humanity. However, this ruling also sparked debate on the implications for diplomatic relations and the potential for politicising the extradition process.

In addition to this, the judgment against Senator Pinochet represents a watershed moment in international law, particularly in the prosecution of former heads of state for crimes against humanity. It underscores the principle that certain crimes, such as torture, transcend national sovereignty and immunity that typically shields state officials. By ruling that Pinochet could be extradited for acts of torture, the judgment challenges traditional notions of diplomatic immunity, setting a precedent for global accountability. However, this decision also raises concerns about potential abuses of the extradition process, the politicisation of international legal proceedings, and the strain it may place on diplomatic relations. Critics argue that while the decision marks a significant step forward in human rights protection, it also opens the door to jurisdictional overreach and could complicate international cooperation. This landmark ruling thus navigates the delicate balance between pursuing justice for grave international crimes and state sovereignty and diplomatic immunity principles.

Written by Sharon C.O Uche