Immunity of a Former Head of State General Pinochet and the House of Lords: Part Three

Leiden Journal of International Law

Volumn 13, Issue 1, 2000, Pages 229-237

  Bröhmer, Jürgen ^a  

^a SAARLAND UNIVERSITY   (Germany)

Author keywords

diplomatic immunity; extradition; head of state immunity; human rights violations; state immunity

Indexed keywords

EID: 79951899568     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156500000169     Document Type: Article

References (17)

1. Regina v. Bow Street Stipendiary Magistrate and others, ex parte Pinochet Ugarte, (1998) All ER 897, 37 ILM 1302 (1998). See also J. BrOhmer, Diplomatic Immunity, Head of State Immunity, State Immunity: Misconceptions of a Notorious Human Rights Violator-The Case of General Pinochet and the Decision of the House of Lords, 12 LJIL 361-371 (1999); H. Fox, The First Pinochet Case: Immunity of a Former Head of State, 48 ICLQ 207-216 (1999)
2. On 17 December 1998. Written opinions delivered on 16 January 1999, In re Pinochet, 2 WLR 272 (1999), 38 ILM 430 (1999). Apparently this was the first time the House of Lords had set aside one of its own decisions, see K. Middleton & M. Mackarel, Pinochet and the House of Lords: A turning point in international human rights law?, 3 The Edinburgh Law Review (ELR) 380, at 381, note 2 (1999).
3. Regina v. Bow Street Stipendiary Magistrate and others, ex parte Pinochet Ugarte, (1998) All ER 897. The decision as it appeared at the UK Parliament Stationary Website (http://www,parliament. the-stationary-office.co.uk) is also published at 38 ILM 581 (1999). Henceforth 1 will refer to this decision as Pinochet III and cite to the-outside of the UK-more commonly available ILM publication. On Pinochet III see also A. Bianchi, Immunity versus Human Rights: The Pinochet Case, 10 EJIL 237-277 (1999); A. Bracegirdle, Re Pinochet, New Zealand Law Journal 272-274 (1999); C.A. Bradley & J.L. Goldsmith, Pinochet and International Human Rights Litigation, 97 Michigan Law Review 2129-2184 (1999); N. Bhuta, Justice without Borders? Prosecuting General Pinochet, 23 Melboume University Law Review 499-532 (1999); H. Fox, The Pinochet Case No. 3, 48 ICLQ 687-702 (1999); Middleton & Mackarel, Written opinions delivered on 16 January 1999 note 2, at 380-394; T. Rensmann, Internationale Ver-brechen und Bejreiung von staatlicher Gerichtsbarkeit (zu Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte, House of Lords, [1998] 3 WLR 1456; [1999] 2 WLR 827), IPRax 268-273 (1999); A. L. Paulus, Triumph und Tragik des Vdlkerstrafrechts, NJW 2644-2646 (1999).
4. Section 2(l)(a) of the 1989 Act refers to “conduct in the territory of a foreign state [.] which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of 12 months, or any greater punishment, and which, however described in the law of the foreign state [.] is so punishable under that law Cited after Pinochet III, 38 ILM 581, at 586 (1999).
5. 1984 Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85, 23 ILM 535, text available at http://www.unhchr.chyhtml/menu3/b/h_cat39.htm; status available at htq>;//www.un.org/Depts/Treaty/fmal/ts2/newfiles/part_boo/iv_boo/iv_9.html. The Convention was ratified by the UK on 8 December 1988.
6. For a recent treatise on the Torture Convention see Boulesbaa Ahcene, The UN Convention on Torture and the Prospects for Enforcement (1999).
7. Lord Hope, 38 ILM 581, at 619 (1999); but see Lord Millett, at 650: “For my own part, therefore, I would hold that the courts of this country already possessed extra-territorial jurisdiction in respect of torture and conspiracy to torture on the scale of the charges in the present case and did not require the authority of statute to exercise it.”
8. See Lord Millett, id., at 650; “The Convention against Torture (1984) did not create a new international crime. But it redefined it. Whereas the international community had condemned the widespread and systematic use of torture as an instrument of state policy, the Convention extended the offence to cover isolated and individual instances of torture provided that they were committed by a public official.”
9. Especially Lord Hutton, id., at 638 after a lengthy analysis, also Lord Phillips, id, at 663 with reference to Art. 3(l)(b) of the Vienna Convention (see infra note 15) which defines as a fiinction of diplomatic missions, inter alia, “protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law”.
10. See also the majority in Pinochet I (Especially Lord Hutton note 1), which denied immunity on the basis of the same argument. 15. 1961 Vienna Convention on Diplomatic Relations and Optional Protocols, 500UNTS 95.
11. As Lord Browne-Wilkinson correctly points out at 592.
12. Similarly Fox, As Lord Browne-Wilkinson correctly points out at note 3, at 694-696.
13. Lord Millet, at 644.
14. See also Bhuta, Lord Millet note 3, at 522-526, who divided the various opinions into those adhering to a ‘restrictive’, ‘narrow’ view of the limits to immunity relying mostly on the Torture Convention (Lords Browne-Wilkinson, Hope and Saville) and the ‘broader’ views which also takes into account general principles of international law not necessarily enacted in UK law (Lords Hutton, Millett and Phillips).
15. See Fox, Lord Millet note 3 note 3, at 700.
16. See Lord Millett, at 650: “Whereas previously states were entitled to take jurisdiction in respect of the offence wherever it was committed, they were now placed under an obligation to do so. Any state party in whose territory a person alleged to have committed the offence was found was bound to otter to extradite him or to initiate proceedings to prosecute him.”
17. For more detail see J. BrOhmer, State Immunity and the Violation of Human Rights, at 196 et seq. (1997).