R v Bartle and the Commissioner of Police for the Metropolis and Others, ex parte Pinochet 1999 2 All ER 97

Baltazar Garzon indicted Senator Pinochet, on charges of torture committed primarily in Chile during the period when Pinochet was head of state in Chile . [immunity operates against national laws, not against international law itself] Lord Browne-Wilkinson: 2. In general, a state only exercises criminal jurisdiction over offences which occur within its geographical boundaries. If a person who is alleged to have committed a crime in Spain is found in the United Kingdom, Spain can apply to the United Kingdom to extradite him to Spain…. For the purposes of the present case, the most important requirement …. is the double criminality rule. 3. Since the Nazi atrocities and the Nuremberg trials, international law has recognised a number of offences as being international crimes. Individual states have taken jurisdiction to try some international crimes even in cases where such crimes were not committed within the geographical boundaries of such states. The most important of such international crimes for present purposes is torture which is regulated by the International Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. The obligations placed on the United Kingdom … were incorporated into the law of the United Kingdom by section 134 of the Criminal Justice Act 1988… If … the double criminality rule only requires the conduct to be criminal under U,K. law at the date of extradition the rule was satisfied in relation to all torture alleged against Senator Pinochet whether it took place before or after 1988. 8. Our job is to decide two questions of law: are there any extradition crimes and, if so, is Senator Pinochet immune from trial for committing those crimes. [after concluding that conduct before 29 September 1988, date on which section 134 came into effect, the House considered whether in relation to the surviving charges, Pinochet enjoyed sovereign immunity] 38. Apart form the law of piracy, the concept of personal liability under international law for international crimes is of comparatively modern growth... but consequent upon the war crimes trial after the 1939-45 World War, the international community came to recognise that there could be criminal liability under international law for a class of crimes such as war crimes and crimes against humanity 39 [The House quoted Prosecutor v. Furundzija Tribunal for Former Yugoslavia, Case No. 17-95-17/1-T, para 153] “Because of the importance of the values it protects, {the prohibition of torture} has involved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules” 40. The jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture where committed.

41. I have no doubt that long before the Torture Convention of 1984 state torture was an international crime in the highest sense. 42. But there was no tribunal or court to punish international crimes of torture… What was needed … was an international system which could punish those who were guilty of torture and which did not permit the evasion of punishment by the torturer moving form one state to another. The Torture Convention was agreed not in order to create an international crime which had not previously existed but to provide an international system under which the international criminal – the torturer- could find no safe haven 43. Article 1 of the Convention defines torture as the international infliction of severe pain … “inflicted by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity” 45 It became clear … that both the Republic of Chile and Senator Pinochet accepted that the acts alleged against Senator Pinochet… were acts done by a public official or person acting in an official capacity within the meaning of Article 1…. The crucial question is not whether Senator Pinochet falls within the definition of Artile 1: he plainly does. The question is whether, even so, he is procedural immune form process. 55. It is a basic principle of international law that one sovereign state (the forum state) does not adjudicate on the conduct of a foreign state. The foreign state is entitled to procedural immunity from the processes of the forum state. This immunity extends to both criminal and civil liability. State immunity probably grew form the historical immunity of the person of the monarch. In any event, such personal immunity of the head of state persist to the present day: the head of state is entitled to the same immunity as the state itself. The diplomatic representative of the foreign state in the forum state is also afforded the same immunity in recognition of the dignity of the state which he represents. This immunity enjoyed by a head of state in power of ambassador in post is a complete immunity, … rendering him immune form all actions or prosecutions whether or not they relate to matters done for the benefit of the state. Such immunity is said to be granted ratione personae. 57. In order to preserve the integrity of the activities of the foreign state during the period when he was an ambassador, it is necessary to provide that immunity is afforded to his official acts during his tenure in post [see 14.1 & 20 SIA 1978]…. The ambassador, like any other official of the state, enjoys immunity in relation to his official acts done while he was an official. This limited immunity, ratione material, is to be contrasted with the former immunity ratione personae which gave complete immunity to all activities whether public or private 61. The question then which has to be answered is whether the alleged organisation of state torture by Senator Pinochet… would constitute an act commited by [him] as part of his official functions as head of state. 65. An essential feature of the international crime of torture is that it must be committed by … person acting in an official capacity .As a result all defendants in torture cases will be state officials. Yet, it the former head of state has immunity, the man most responsible will escape liability while his inferiors … who carried his orders will be liable. I find it impossible to accept that this was the intention. 67 For these reasons… if… Senator Pinochet organised and authorised torture after 8 December 1988, he was not acting in any capacity which gives rise to immunity ratione materiae because such actions were contrary to international law