"Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity,
"Recognizing that such grave crimes threaten the peace, security and well-being of the world,
"Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,
"Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,
"Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole.
"Emphasising that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions.
"Resolved to guarantee lasting respect for the enforcement of international justice,
"Have agreed as follows:"
Article 5 of the Statute provides that jurisdiction of the court shall be limited to the most serious crimes of concern to the international community as a whole which include crimes against humanity. Article 7 states that "crime against humanity" means a number of acts including murder and torture when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.
Article 27 provides:
"1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a head of state or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
"2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the court from exercising its jurisdiction over such a person."
Therefore since the end of the second world war there has been a clear recognition by the international community that certain crimes are so grave and so inhuman that they constitute crimes against international law and that the international community is under a duty to bring to justice a person who commits such crimes. Torture has been recognised as such a crime. The preamble to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 ("the Torture Convention), which has been signed by the United Kingdom, Spain and Chile and by over one hundred other nations, states:
"Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
"Recognizing that those rights derive from the inherent dignity of the human person,
"Considering the obligation of states under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,
"Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,
"Having regard also to the Declaration on Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly on 9 December 1975
"Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,
"Have agreed as follows:"
Article 1 defines "torture" as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes specified in the Article such as punishment or intimidation or obtaining information or a confession, and such pain and suffering is inflicted "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
The Convention then contains a number of Articles designed to make the measures against public officials who commit acts of torture more effective. In their handbook on the Convention, Burgers and Danelius stated at p. 1:
"It is expedient to redress at the outset a widespread misunderstanding as to the objective of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly of the United Nations in 1984. Many people assume that the Convention's principal aim is to outlaw torture and other cruel, inhuman or degrading treatment or punishment. This assumption is not correct insofar as it would imply that the prohibition of these practices is established under international law by the Convention only and that this prohibition will be binding as a rule of international law only for those states which have become parties to the Convention. On the contrary, the Convention is based upon the recognition that the above-mentioned practices are already outlawed under international law. The principal aim of the Convention is to strengthen the existing prohibition of such practices by a number of supportive measures."
As your Lordships hold that there is no jurisdiction to extradite Senator Pinochet for acts of torture prior to 29 September 1988, which was the date on which section 134 of the Criminal Justice Act 1988 came into operation, it is unnecessary to decide when torture became a crime against international law prior to that date, but I am of opinion that acts of torture were clearly crimes against international law and that the prohibition of torture had required the status of ius cogens by that date.
The appellants accepted that in English courts a serving head of state is entitled (ratione personae) to immunity in respect of acts of torture which he has committed. Burgers and Danelius, referring to the obligation of a state party to the convention to establish its jurisdiction over offences of torture, recognise that some special immunities may exist in respect of acts of torture and state at p. 131:
"under international or national law, there may be certain limited exceptions to this rule, e.g. in relation to foreign diplomats, foreign troops, parliament members or other categories benefiting from special immunities, and such immunities may be accepted insofar as they apply to criminal acts in general and are not unduly extensive."
It is also relevant to note that article 98 of the Rome Statute establishing the International Criminal Court provides:
"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 cooperation of that third state for the waiver of the immunity."
But the issue in the present case is whether Senator Pinochet, as a former head of state, can claim immunity (ratione materiae) on the grounds that acts of torture committed by him when he was head of state were done by him in exercise of his functions as head of state. In my opinion he is not entitled to claim such immunity. The Torture Convention makes it clear that no state is to tolerate torture by its public officials or by persons acting in an official capacity and Article 2 requires that:
"1. Each state party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."
Article 2 further provides that:
"2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."
Article 4 provides:
"1. Each state party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture."
"2. Each state party shall make these offences punishable by appropriate penalties which take into account their grave nature."
Article 7 provides:
"1. The state party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution."
I do not accept the argument advanced by counsel on behalf of Senator Pinochet that the provisions of the Convention were designed to give one state jurisdiction to prosecute a public official of another state in the event of that state deciding to waive state immunity. I consider that the clear intent of the provisions is that an official of one state who has committed torture should be prosecuted if he is present in another state.
Therefore having regard to the provisions of the Torture Convention, I do not consider that Senator Pinochet or Chile can claim that the commission of acts of torture after 29 September 1988 were functions of the head of state. 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. It is relevant to observe that in 1996 the military government of Chile informed a United Nations working group on human rights violations in Chile that torture was unconditionally prohibited in Chile, that the Constitutional prohibition against torture was fully enforced and that:
"It is therefore apparent that the practice of inflicting unlawful ill-treatment has not been instituted in our country as is implied by the resolution [a UN resolution critical of Chile] and that such ill-treatment is not tolerated; on the contrary, a serious, comprehensive and coherent body of provisions exist to prevent the occurrence of such ill-treatment and to punish those responsible for any type of abuse."
It is also relevant to note that in his opening oral submissions on behalf of Chile Dr. Lawrence Collins Q.C. stated:
"the Government of Chile, several of whose present members were in prison or exile during those years, deplores the fact that the governmental authorities of the period of the dictatorship committed major violations of human rights in Chile. It reaffirms its commitment to human rights, including the prohibition of torture."
In its written submissions (which were repeated by Dr. Collins in his oral submissions) Chile stated:
"The Republic intervenes to assert its own interest and right to have these matters dealt with in Chile. The purpose of the intervention is not to defend the actions of Senator Pinochet whilst he was head of state. Nor is the purpose to prevent him from being investigated and tried for any crime he is alleged to have committed whilst in office, provided that any investigation and trial takes place in the only appropriate courts, namely those of Chile. The democratically elected Government of the Republic of Chile upholds the commitment of the Republic under international conventions to the maintenance and promotion of human rights. The position of the Chilean Government on state immunity is not intended as a personal shield for Senator Pinochet, but is intended to defend Chilean national sovereignty, in accordance with generally accepted principles of international law. Its plea, therefore, does not absolve Senator Pinochet from responsibility in Chile if the acts alleged against him are proved."
My Lords, the position taken by the democratically elected Government of Chile that it desires to defend Chilean national sovereignty and considers that any investigation and trial of Senator Pinochet should take place in Chile is understandable. But in my opinion that is not the issue which is before your Lordships; the issue is whether the commission of acts of torture taking place after 29 September 1988 was a function of the head of state of Chile under international law. For the reasons which I have given I consider that it was not.
Article 32(2) of the Vienna Convention set out in Schedule 1 to the Diplomatic Privileges Act 1964 provides that: "waiver must always be express." I consider, with respect, that the conclusion that after 29 September 1988 the commission of acts of torture was not under international law a function of the head of state of Chile does not involve the view that Chile is to be taken as having impliedly waived the immunity of a former head of state. In my opinion there has been no waiver of the immunity of a former head of state in respect of his functions as head of state. My conclusion that Senator Pinochet is not entitled to immunity is based on the view that the commission of acts of torture is not a function of a head of state, and therefore in this case the immunity to which Senator Pinochet is entitled as a former head of state does not arise in relation to, and does not attach to, acts of torture.
A number of international instruments define a crime against humanity as one which is committed on a large scale. Article 18 of the Draft Code of Crimes against the Peace and Security of Mankind 1996 provides:
"A crime against humanity means any of the following acts, when committed in a systematic manner on a large scale or instigated or directed by a Government or any organisation or a group:
(c) Torture . . ."
And article 7 of the 1998 Rome Statute of the International Criminal Court provides:
"For the purposes of this Statute, 'crime against humanity' means any of the following acts when committed as part of a wide spread or systematic attack directed against any civilian population, with knowledge of the attack:
. . .
. . ."
However, article 4 of the Torture Convention provides that:
"Each state party shall ensure that all acts of torture are offences under its criminal law." (emphasis added)
Therefore I consider that a single act of torture carried out or instigated by a public official or other person acting in a official capacity constitutes a crime against international law, and that torture does not become an international crime only when it is committed or instigated on a large scale. Accordingly I am of opinion that Senator Pinochet cannot claim that a single act of torture or a small number of acts of torture carried out by him did not constitute international crimes and did not constitute acts committed outside the ambit of his functions as head of state.
For the reasons given by Oppenheim at p. 545, which I have cited in an earlier part of this judgment, I consider that under international law Chile is responsible for acts of torture carried out by Senator Pinochet, but could claim state immunity if sued for damages for such acts in a court in the United Kingdom. Senator Pinochet could also claim immunity if sued in civil proceedings for damages under the principle stated in Jaffe v. Miller. But I am of opinion that there is no inconsistency between Chile and Senator Pinochet's entitlement to claim immunity if sued in civil proceedings for damages and Senator Pinochet's lack of entitlement to claim immunity in criminal proceedings for torture brought against him personally. This distinction between the responsibility of the state for the improper and unauthorised acts of a state official outside the scope of his functions and the individual responsibility of that official in criminal proceedings for an international crime is recognised in Article 4 and the commentary thereon in the 1996 draft Report of the International Law Commission:
"Responsibility of States
The fact that the present Code provides for the responsibility of individuals for crimes against the peace and security of mankind is without prejudice to any question of the responsibility of states under international law.
(1) Although, as made clear by article 2, the present Code addresses matters relating to the responsibility of individuals for the crimes set out in Part II, it is possible, indeed likely, as pointed out in the commentary to article 2, that an individual may commit a crime against the peace and security of mankind as an 'agent of the State', 'on behalf of the State', 'in the name of the State' or even in a de facto relationship with the state, without being vested with any legal power.
(2) The 'without prejudice' clause contained in article 4 indicates that the present Code is without prejudice to any question of the responsibility of a state under international law for a crime committed by one of its agents. As the commission already emphasised in the commentary to article 19 of the draft articles on state responsibility, the punishment of individuals who are organs of the state 'certainly does not exhaust the prosecution of the international responsibility incumbent upon the state for internationally wrongful acts which are attributed to it in such cases by reason of the conduct of its organs'. The state may thus remain responsible and be unable to exonerate itself from responsibility by invoking the prosecution or punishment of the individuals who committed the crime."
Therefore for the reasons which I have given I am of opinion that Senator Pinochet is not entitled to claim immunity in the extradition proceedings in respect of conspiracy to torture and acts of torture alleged to have been committed by him after 29 September 1988 and to that extent I would allow the appeal. However I am in agreement with the view of Lord Browne-Wilkinson that the Secretary of State should reconsider his decision under section 7 of the Extradition Act 1989 in the light of the changed circumstances arising from your Lordships' decision.
LORD SAVILLE OF NEWDIGATE
In this case the Government of Spain seeks the extradition of Senator Pinochet (the former head of state of Chile) to stand trial in Spain for a number of alleged crimes. On this appeal two questions of law arise.
Senator Pinochet can only be extradited for what in the Extradition Act 1989 is called an extradition crime. Thus the first question of law is whether any of the crimes of which he stands accused in Spain is an extradition crime within the meaning of that Act.
As to this, I am in agreement with the reasoning and conclusions in the speech of my noble and learned friend Lord Browne-Wilkinson. I am also in agreement with the reasons given by my noble and learned friend Lord Hope of Craighead in his speech for concluding that only those few allegations that he identifies amount to extradition crimes.
These extradition crimes all relate to what Senator Pinochet is said to have done while he was head of state of Chile. The second question of law is whether, in respect of these extradition crimes, Senator Pinochet can resist the extradition proceedings brought against him on the grounds that he enjoys immunity from these proceedings.
In general, under customary international law serving heads of state enjoy immunity from criminal proceedings in other countries by virtue of holding that office. This form of immunity is known as immunity ratione personae. It covers all conduct of the head of state while the person concerned holds that office and thus draws no distinction between what the head of state does in his official capacity (i.e. what he does as head of state for state purposes) and what he does in his private capacity.
Former heads of state do not enjoy this form of immunity. However, in general under customary international law a former head of state does enjoy immunity from criminal proceedings in other countries in respect of what he did in his official capacity as head of state. This form of immunity is known as immunity ratione materiae.
These immunities belong not to the individual but to the state in question. They exist in order to protect the sovereignty of that state from interference by other states. They can, of course, be modified or removed by agreement between states or waived by the state in question.
In my judgment the effect of Section 20(1)(a) of the State Immunity Act 1978 is to give statutory force to these international law immunities.
The relevant allegations against Senator Pinochet concern not his private activities but what he is said to have done in his official capacity when he was head of state of Chile. It is accepted that the extradition proceedings against him are criminal proceedings. It follows that unless there exists, by agreement or otherwise, any relevant qualification or exception to the general rule of immunity ratione materiae, Senator Pinochet is immune from this extradition process.
The only possible relevant qualification or exception in the circumstances of this case relates to torture.
I am not persuaded that before the Torture Convention there was any such qualification or exception. Although the systematic or widespread use of torture became universally condemned as an international crime, it does not follow that a former head of state, who as head of state used torture for state purposes, could under international law be prosecuted for torture in other countries where previously under that law he would have enjoyed immunity ratione materiae.
The Torture Convention set up a scheme under which each state becoming a party was in effect obliged either to extradite alleged torturers found within its jurisdiction or to refer the case to its appropriate authorities for the purpose of prosecution. Thus as between the states who are parties to the Convention, there is now an agreement that each state party will establish and have this jurisdiction over alleged torturers from other state parties.
This country has established this jurisdiction through a combination of Section 134 of the Administration of Justice Act 1988 and the Extradition Act 1989. It ratified the Torture Convention on 8 December 1988. Chile's ratification of the Convention took effect on 30 October 1988 and that of Spain just over a year earlier.
It is important to bear in mind that the Convention applies (and only applies) to any act of torture "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." It thus covers what can be described as official torture and must therefore include torture carried out for state purposes. The words used are wide enough to cover not only the public officials or persons acting in an official capacity who themselves inflict torture but also (where torture results) those who order others to torture or who conspire with others to torture.
To my mind it must follow in turn that a head of state, who for state purposes resorts to torture, would be a person acting in an official capacity within the meaning of this Convention. He would indeed to my mind be a prime example of an official torturer.
It does not follow from this that the immunity enjoyed by a serving head of state, which is entirely unrelated to whether or not he was acting in an official capacity, is thereby removed in cases of torture. In my view it is not, since immunity ratione personae attaches to the office and not to any particular conduct of the office holder.
On the other hand, the immunity of a former head of state does attach to his conduct whilst in office and is wholly related to what he did in his official capacity.
So far as the states that are parties to the Convention are concerned, I cannot see how, so far as torture is concerned, this immunity can exist consistently with the terms of that Convention. Each state party has agreed that the other state parties can exercise jurisdiction over alleged official torturers found within their territories, by extraditing them or referring them to their own appropriate authorities for prosecution; and thus to my mind can hardly simultaneously claim an immunity from extradition or prosecution that is necessarily based on the official nature of the alleged torture.
Since 8 December 1988 Chile, Spain and this country have all been parties to the Torture Convention. So far as these countries at least are concerned it seems to me that from that date these state parties are in agreement with each other that the immunity ratione materiae of their former heads of state cannot be claimed in cases of alleged official torture. In other words, so far as the allegations of official torture against Senator Pinochet are concerned, there is now by this agreement an exception or qualification to the general rule of immunity ratione materiae.
I do not reach this conclusion by implying terms into the Torture Convention, but simply by applying its express terms. A former head of state who it is alleged resorted to torture for state purposes falls in my view fairly and squarely within those terms and on the face of it should be dealt with in accordance with them. Indeed it seems to me that it is those who would seek to remove such alleged official torturers from the machinery of the Convention who in truth have to assert that by some process of implication or otherwise the clear words of the Convention should be treated as inapplicable to a former head of state, notwithstanding he is properly described as a person who was "acting in an official capacity".
I can see no valid basis for such an assertion. It is said that if it had been intended to remove immunity for alleged official torture from former heads of state there would inevitably have been some discussion of the point in the negotiations leading to the treaty. I am not persuaded that the apparent absence of any such discussions takes the matter any further. If there were states that wished to preserve such immunity in the face of universal condemnation of official torture, it is perhaps not surprising that they kept quiet about it.
It is also said that any waiver by states of immunities must be express, or at least unequivocal. I would not dissent from this as a general proposition, but it seems to me that the express and unequivocal terms of the Torture Convention fulfil any such requirement. To my mind these terms demonstrate that the states who have become parties have clearly and unambiguously agreed that official torture should now be dealt with in a way which would otherwise amount to an interference in their sovereignty.
For the same reasons it seems to me that the wider arguments based on Act of State or non-justiciability must also fail, since they are equally inconsistent with the terms of the Convention agreed by these state parties.
I would accordingly allow this appeal to the extent necessary to permit the extradition proceedings to continue in respect of the crimes of torture and (where it is alleged that torture resulted) of conspiracy to torture, allegedly committed by Senator Pinochet after 8 December 1988. I would add that I agree with what my noble and learned friend Lord Hope of Craighead has said at the end of his speech with regard to the need for the Secretary of State to reconsider his decision and (if renewed authority to proceed is given) the very careful attention the magistrate must pay to the information laid before him.