The pinochet precedent: Don't leave home without it

Criminal Law Forum

Volumn 10, Issue 4, 1999, Pages 405-442

  Boister, Neil ^a   Burchill, Richard ^a  

^a NONE

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EID: 36549047219     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/a:1009464625361     Document Type: Article

References (134)

1. R. v. Bow Street Stipendiary Magistrate and others, exporte Pinochet U garte, [1998] 4 All ER 897, [1998] 3 WLR 1456 (H.L.) (hereinafter "Pinochet, first appeal" - all references are to the All E.R.); and R. v. Bow Street Stipendiary Magistrate and others, exparte Pinochet Ugarte (Amnesty International and others intervening) (No. 3), [1999] 2 W.L.R. 827, [1999] 2 All E.R. 97 (H.L.) (hereinafter "Pinochet, second appeal" - all references are to the W.L.R.). On the first appeal, see Hazel Fox, The First Pinochet Case: Immunity of a Former Head of State, 48 INT'L & COMP. L. Q. 207.
2. If Pinochet is tried and convicted in Spain he will not serve a jail sentence as under Spanish law no person over the age of 75 may be incarcerated, The Guardian, December 10, 1998 all.
3. As quoted in AMERICAS WATCH, CHILE IN TRANSFORMATION: HUMAN RIGHTS SINCE THE PLEBISCITE 1988-89 73 (1989).
4. G.A. Res. 3448(XXX).
5. See generally: R.J. Quinn, Will the Rule of Law End? Challenging Grants of Amnesty for the Human Rights Violations of Prior Regimes: Chile's New Model, 62 FORDHAM L. REV. 905 (1992); N. Roht-Arriaza, L. Gibson, The Developing Jurisprudence on Amnesty, 20 HUM. RTS. Q. 843 at 847-849 (1998). They note that the Commission was not permitted to identify living victims or those responsible or to recommend sanctions. According to The Economist, Nov. 28, 1998 at 23, 2,095 extra-judicial executions and deaths under torture and 1,102 disappearances were attributed to the intelligence service and the army under General Pinochet's command by Chilean government investigations, while many other deaths were never accounted for.
6. Decree Law 2191 (April 18, 1978) gives impunity for events that occurred between September 11, 1973 and March 10, 1978, the period when the bulk of crimes were committed. The Chilean amnesty has been challenged twice in the Supreme Court and both times it has been considered constitutional - Insunza Bascunan case (May-August 1990) and Roma Mena case (October 26, 1995). The Chilean amnesty has been found to be incompatible with Chile's human rights obligations under the American Convention on Human Rights by the Inter-American Commission on Human Rights, see Annual Report of the IACHR (1985/6) at 193 and more recently Report No. 25/98 (Chile), Annual Report oftheIACHR(1997) at 512.
7. See N. Roht-Ariazza and L. Gibson, supra note 5 at 848-849.
8. Garzon is already responsible for proceedings in Spain dealing with individuals accused of crimes against humanity during Argentina's 'dirty war': N. Roht-Ariazza and L. Gibson, supra note 5 at 859.
9. (1957) 359 U.N.T.S. 273.
10. An earlier request included charges of genocide as well.
11. R. v. Bartle, ex parte Pinochet, Divisional Court, Queen's Bench Division, Oct. 28, 1998, (1998) 37 I.L.M. 1302 (Bingham LCJ, Richards and Collins JJ).
12. (1961) 500 U.N.T.S. 95.
13. (1996) 107 I.L.R. 536 (CA).
14. Supra note 11 at para 80.
15. Supra Ibid., at para 130.
16. Supra Ibid., at para 88.
17. See Pinochet, first appeal, swpra note 1, per Lord Nicholls at 938g and Lord Steyn at 943g.
18. Primarily the State Immunity Act 1978 and the Diplomatic Privileges Act 1964.
19. The 1961 Vienna Convention on Diplomatic Relations (500 U.N.T.S. 95) and customary international law.
20. Pinochet (first appeal) supra note 1 at 904g-911d.
21. Pinochet (First Appeal) Supra Ibid., at913b-g.
22. Ibid., at915c-e.
23. Section 134(1) of the Criminal Justice Act 1988 reads in full "A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties."
24. Pinochet, first appeal, supra note 1 at 916h-917g.
25. (1951) 78 U.N.T.S. 277.
26. (1979) 1316 U.N.T.S. 205.
27. Pinochet, first appeal, supra note 1 at 917.
28. Ibid., at 929g.
29. Ibid., at 933h.
30. Ibid., at 934g.
31. Ibid., at 937d. He also dismissed the similar reasoning used by the United States Supreme Court m Argentina v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989). 32 Pinochet, first appeal, supra note 1 at 938a.
32. Section 134(1) of the Act incorporates the crimes of torture as set out in articles 5 and 7 of the Torture Convention.
33. The Act incorporates the offences in articles 5 and 8 of the Hostage-Taking Convention.
34. Pinochet, first appeal, supra note 1 at 938b.
35. Pinochet, First Appeal, Supra Ibid., at 939g.
36. Pinochet, First Appeal, Supra Ibid., at 939h.
37. Pinochet, First Appeal, Supra Ibid., at 941 generally.
38. Pinochet, First Appeal, Supra Ibid., at 944f.
39. Pinochet, First Appeal, Supra Ibid., at 945d-e.
40. Pinochet, First Appeal, Supra Ibid., at 945J.
41. Ibid., at 943d-e. Hazel Fox, supra note 1 at 214, points out that this finding on the facts considerably narrows the ratio of the case. It implies that personal involvement is necessary to remove the cloak of immunity and that there exist offences which are not private crimes but which can be considered part of the functions of a head of state. 43 Pinochet, first appeal, supra note 1 at 946d.
42. Ibid., at 947e-f. Here he approves of the observation in the American Law Institute's 1 Third Restatement of the Foreign Relations Law of the United States 370 (1986), except that he substitutes "generally" for "probably".
43. R. v. Bow Street Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 2), [1999] All E.R. 577 (H.L.). Lords Browne-Wilkinson, Goff, Nolan, Hope, and Hutton. See: Timothy Jones, Judicial Bias and Disqualification in the Pinochet Case, 1999 PUBLIC LAW 391.
44. Pinochet, second appeal, supra note 1. Lords Browne-Wilkinson, Goff, Hope, Phillips, Hutton and Saville required the alleged conduct be a crime in both requesting and requested state (the latter at the time the offence was carried out), while Lord Millet rejected this requirement.
45. See generally Lech Gardocki, Double Criminality in Extradition Law, 1&2 Israel L. Rev. 288(1993).
46. The issue of double criminality should properly have been raised at a further appeal from the granting of an extradition order once the sovereign immunity issue had been settled because technically the question on appeal to be answered by the House of Lords was solely whether Pinochet retained his immunity. As it was raised here, no further appeal is likely to be permitted on this ground.
47. Pinochet, second appeal, supra note 1 at 832G.
48. Lord Hope sets out the schedule in detail, ibid., at 866-889. Briefly, it included: charges 1, 2, 5 - conspiracy to torture between 1/1/1972 and 20/9/1973 and between 1/8/1973-1/1/1990; charge 3 - conspiracy to take hostages between 1/7/1973-1/1/1990; charge 4 - conspiracy to torture in furtherance of which murder was committed in various countries including Italy, France, Spain, and Portugal between 1/1/1972-1/1/1990; charges 6 and 8 - torture between 1/8/1973 and 8/8/1973 and on 11/9/1973; charges 9 and 12 conspiracy to murder in Spain between 1/1/1975-31/12/1976 and in Italy on 6/10/1975; charges 10 and 11 - attempted murder in Italy on 6/10/1975; charges 13-29 and 31-32 - torture on various occasions between 11/9/1973 and May 1977; charge 30 - torture on June 24, 1989.
49. Ibid., at 838E to 839E.
50. Ibid., at 839H-840D. According to Lord Hope, these included the parts of conspiracy to torture in charges 2 and 4 that related to actions taken after the relevant date and the whole of charge 30. Charge 3, the hostage-taking allegation, was held not to disclose an offence under the Taking of Hostages Act 1982. Charge 9 - the conspiracy in Spain to commit murder in Spain and charge 4 - the conspiracy in Spain prior to September 29, 1988 to commit acts of murder and torture in Spain - were extradition crimes.
51. Ibid., at 840-842.
52. Ibid., at 841F.
53. Ibid., at 841A. He cited in support: General Assembly Resolutions 3059, 3452 and 3453, adopted in 1973 and 1975; article 5 of the Statute of the International Criminal Tribunal for the Former Yugoslavia, U.M. Doc. S/RES/827, annex (1993); article 3 of the Statute of the International Criminal Tribunal for Rwanda, U.M. Doc. S/RES/955, annex (1994); Prosecutor v. Furundzija (Case no. IT-95-17/1-T), Judgment, Dec. 10, 1998, (1999) 38I.L.M.317.
54. Pinochet, second appeal, supra note 1 at 841B.
55. (1985) 603 RSupp. 1468, 776 R2d 571.
56. Pinochet, second appeal, supra note 1 at 841E.
57. Ibid., at 841G, citing Demjanjuk and Attorney-General of Israel v. Eichmann, (1968) 36 I.L.R. 5 (District Court, Jerusalem).
58. Pinochet, second appeal, supra note 1 at 842B.
59. Ibid., at 842H-843G. Article 1 of the Convention defines torture as the infliction or instigation of severe pain for a wide range of purposes by such a "public official".
60. Ibid., at 843G. Article 5 provides for the establishment of extra-territorial jurisdiction, article 7 for the aut dedere aut punire obligation and article 8 for extradition.
61. Ibid., at844A.
62. Ibid., at 844-845.
63. Ibid., at846B.
64. Ibid., at 846D.
65. Ibid at 846E-G, citing as authority Sir Arthur Watts, The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 R.C.A.D.I. 82 (1994-III).
66. The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 R.C.A.D.I. Ibid.
67. The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 R.C.A.D.I. Ibid., at 847C-E.
68. The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 R.C.A.D.I. Ibid., at 847G-H.
69. The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 R.C.A.D.I. Ibid., at 849H.
70. The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 R.C.A.D.I.Ibid., at 852B.
71. The Legal Position in International Law of Heads of States, Heads of Governments and Foreign Ministers, 247 R.C.A.D.I. Ibid., at 852F-853G.
72. 109 S. Ct. 683 at 693 (1989).
73. OPPENHEIM'S INTERNATIONAL LAW 351-355 (Sir Robert Jennings and Sir Arthur Watts, eds., 9th ed., 1992).
74. Yearbook...1991, Vol. II, Part. 2.
75. Pinochet, second appeal, supra note 1 at 859B-D.
76. Pinochet, Second Appeal, Supra Ibid., at 859G-860H.
77. Pinochet, Second Appeal, Supra Idbi., at 860D.
78. Pinochet, Second Appeal, Supra Ibid., at 860H-861G.
79. Pinochet, Second Appeal, Supra Ibid.,at 862G.
80. Pinochet, Second Appeal, Supra Ibid.,at 863G.
81. Further particulars were supplied in terms of article 13 of the European Convention on Extradition, supra note 9.
82. Pinochet, second appeal, supra note 1 at 868F
83. Ibid., at 870F-871G.
84. Pinochet, Second Appeal, Supra Ibid., at 881E-G.
85. Pinochet, Second Appeal, Supra Ibid., at 882A-D.
86. Pinochet, Second Appeal, Supra Ibid., at 884H-885E.
87. U.M. Doc. A/CONF.183/9, July 17, 1998.
88. Pinochet, second appeal, supra note 1 at 885G-H.
89. Pinochet, Second Appeal, Supra Ibid., at 886B.
90. Ibid F.2d 699 at 714-718.
91. Pinochet, second appeal, supra note 1 at 886E.
92. Ibid., at 886H-887C.
93. Pinochet, Second Appeal, Supra Ibid., at 897E.
94. Pinochet, Second Appeal, Supra Ibid., at 898E.
95. Pinochet, Second Appeal, Supra Ibid., at 901B.
96. Pinochet, Second Appeal, Supra Ibid., at 902G.
97. Pinochet, Second Appeal, Supra Ibid., at 903A.
98. Ibid., at 903B.
99. Ibid., at 904A-E.
100. Pinochet, Second Appeal, Supra Ibid., at 911G.
101. He referred to Schooner Exchange v. M'Faddon, (1812) 11 U.S. (7 Cranch). He cites S. Glueck, The Nuremberg Trial and Aggressive War, 59 HARV. L. REV. 396 at 426 (1946), and Hersch Lauterpacht, The Subjects of the Law of Nations, 63 L. Q. REV. 438 (1947), as being among those who believed that the judgment implied that "no member of the family of nations will order its agents to commit flagrant violations of international and criminal law".
102. Pinochet, second appeal, supra note 1 at 908A.
103. Pinochet, Second Appeal, Supra Ibid., at 908F-H.
104. Ibid., at 908H.
105. Pinochet, Second Appeal, Supra Ibid., at 909A-B.
106. Pinochet, Second Appeal, Supra Ibid., at 909D.
107. Pinochet, Second Appeal, Supra Ibid., at 909D-C.
108. Attorney-General of Israel v. Eichmann, (1968) 36 I.L.R. 5 (District Court, Jerusalem).
109. Pinochet, second appeal, supra note 1 at 909E-F.
110. Pinochet, Second Appeal, Supra Ibid., at 910A-B.
111. Pinochet, Second Appeal, Supra Ibid., at 912B.
112. Pinochet, Second Appeal, Supra Ibid., at 912E.
113. Apart from a minimum punishment of one year, all that section 2 requires is that it must be conduct in the territory of a foreign state that "would constitute an offence" under United Kingdom law or an extra-territorial offence against the law of a foreign state that "would constitute an extra-territorial offence against the law of the United Kingdom".
114. Blackburn v. Attorney General, [1971] 1 WLR 1307.
115. Treeves Case, (April 27, 1796) in Pleas of the Crown at 821 (Edward Hyde East, ed., vol.11, 1803), where the court apparently applied the laws and customs of war directly to a prosecution of the supply of unwholesome food to French prisoners of war.
116. 1977. QB 529; [1977] 2 WER 356; [1977] 1 All ER 881 (C.A.).
117. Barbuit's Case, (1737) Cas. Temp. Talbot 281.
118. It has recently been argued that in the United States customary international law is only applicable after action taken by the government, see Curtis Bradley and Jack Gold-
119. smith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997).
120. 1925. 1 KB 271 at 295.
121. An even more dismissive use of international law occurred in Ellerman Lines v. Murray, [1931] A.C. 126 at 147 where the court held that if a domestic statute enacted to give effect to an international treaty is vague or confused recourse cannot be had to the original international treaty in order to determine meaning even if it is appended to the domestic act.
122. In this the English courts are not alone. See Matthew Lippman, The Pursuit of Nazi War Criminals in the United States and other Anglo American Legal Systems, 29 CAL. W. INT'L L. J. l at 24 (1998) who points out that the Deschênes "Commission of Inquiry on War Criminals" in Canada decided that although customary international law was recognised in Canada, it constituted too unconventional a foundation upon which to base prosecution (citing Report Part I: Public 17 (1986)). A similar commission in the United Kingdom (The Hetherington and Chalmers "Report of the War Crimes Inquiry" (1989)) discounted reliance on anything except domestic legislation.
123. 1905. 2 KB 391, 407.
124. The consequence is a perpetuation of the dualist position in theory and at the practical level "a legal culture of resistance to the use of international law before domestic courts". See MURRAY HUNT, USING HUMAN RIGHTS LAW IN ENGLISH COURTS 11 (1998).
125. See Lord Steyn in Pinochet, first appeal, supra note 1 at 947e.
126. Pinochet, second appeal, supra note 1 at 833A.
127. Pinochet, Second Appeal, Supra Ibid., at 842A.
128. Pinochet, Second Appeal, Supra Ibid., at 844D.
129. Pinochet, Second Appeal, Supra Ibid., at 848B.
130. Pinochet, Second Appeal, Supra Ibid., at 903C.
131. Pinochet, Second Appeal, Supra Ibid., at 903G.
132. Pinochet, Second Appeal, Supra Ibid., at 903G.
133. Pinochet, Second Appeal, Supra Ibid., at 911E-F.
134. Pinochet, Second Appeal, Supra Ibid., at 912E.