The pinochet case no. 3

International and Comparative Law Quarterly

Volumn 48, Issue 3, 1999, Pages 687-702

  Fox, Hazel ^a  

^a NONE

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EID: 85008203326     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300063521     Document Type: Review

References (59)

1. R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (Amnesty International intervening) (No.3) (1999) 2 All E.R. 97, hereafter referred to as Pinochet No.3. For comment on the earlier decision
2. see Fox, “The First Pinochet Case: Immunity of a Former Head of State” (1999) 48 I.C.L.Q. 207–216.
3. I.C.L.Q., 102.
4. I.C.L.Q., 114.
5. I.C.L.Q., 115.
6. I.C.L.Q., 102.
7. R. v. Bow Street Magistrate and others, ex p. Pinochet Ugarte (Amnesty International and others intervening) (1998) 4 A.E.R. 897, hereafter Pinochet No.1.
8. R v. Bow Street Magistrate and others, ex p. Pinochet Ugarte (Amnesty International and others intervening) (1999) 1 All E.R. 577, hereafter Pinochet No.2. Lord Hoffman was a Director and Chair of Amnesty International Charity Ltd which had been incorporated to fund-raise and conduct research into purposes shared by Amnesty International. None of the Law Lords attributed bias, whether actual or apparent, to Lord Hoffman; they held, however, that the close relationship of the two organisations, one of which was a party to the proceedings, required the Court to treat the other, of which Lord Hoffman was Director, also as a party, and therefore as a matter which should have been disclosed so as to give a party an opportunity to object to Lord Hoffman hearing the case.
9. Per Lord Browne-Wilkinson, Pinochet No.3,107.
10. Lord Phillips, Pinochet No.3,185.
11. The recognition of the extraterritorial scope of the offence of conspiracy at common law Liangsiripraesert v. Govt of USA (1991) 1 A.C. 225
12. and by statute, Criminal Law Act 1977, s.1
13. Regina v. Sansom (1991) 2 Q.B. 130, also contributed to the widened extraterritorial jurisdiction of the English courts
14. Lord Hope, Pinochet No.3,138–140.
15. The United Nations Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment, 1984, HMSO (UK) Cmnd 9593. 23 ILM 1027, 24 ILM 535, hereafter the UN Torture Convention.
16. Lord Goff deplored the lack of such a review and the adoption of the majority of “the simple approach” concentrating on the UN Torture Convention, Pinochet No.31, 117.
17. The Times, 9 April 1999.
18. H.L. Debates Vol. 329 Col. 311,15 April 1999. Leave to judicially review this second authority of the Home Secretary to proceed was refused, The Times, 28 May 1999.
19. Lord Goff queried whether reliance could be placed on earlier charges of torture excluded under the double criminality rule to establish that the single act of torture alleged to have occurred on 24 June 1989 was part of a still continuing campaign. Pinochet No.3,131.
20. Pinochet No.3, 192
21. Pinochet., 113, 172.
22. Lord Hope of Craighead, Pinochet No.3, 146.
23. Jumenez v. Aristeguieta 311 F 2d 547, US Ct of Apps. (5th Cir.).
24. Hansard HL, 16 March 1978, 1538, col.l
25. The immunity of a head of state was reviewed by the International Law Commission in the course of its preparation over 20 years of a draft convention on the jurisdictional immunities of states and their properties; The Sixth Committee of the UN General Assembly is deliberating over the final draft with a view to convening a conference to achieve its adoption as a multilateral convention. Initially this draft convention included “the sovereign or head of State” in the expression “State” in the draft definition article (1980) ILCYIB vol.11, part 1, p.205, paras.36–7, 2nd report), and set out in a draft article 25 the immunities of “personal sovereigns and other heads of states” in much the same way as SIA s.20
26. 1986 ILCYB vol.1, part 1, p.5, para.10.
27. The International Law Commission after extensive review of State practice (1981 ILCYB vol.2, part 1, p.136, para.31, 3rd Report)
28. lengthy debate (1986 ILCYB vol.1, part 1, pp.4–20), deleted the phrase from the definition of “state” and the draft article 25. In the final draft convention, sent to UN, it inserted a saving clause which reads
29. “The present articles are likewise without prejudice to the privileges and immunities accorded under international law to Heads of State ratione personae” (1991 ILCYB Vol.1, part 2, p.1).
30. The commentary on this article reads: The reservation of article 3.2 refers exclusively to the private acts or personal immunities and privileges recognised and accorded in the practice of states without any suggestion that their status should in any way be affected by the present articles. The existing customary law is left untouched (1991 ILCYB vol.2, part 2, p.22).
31. See Dinstein at (1966) 15 I.C.L.Q. 76 at 88, “[the diplomatic agent] is performing official acts of State, A in the territory of State B with the latter's consent, and these acts of State deserve special consideration and immunity”.
32. Lennard's Carrying Co. Ltd v. Asiatic Petroleum Co. Ltd (1915) A.C. 707.
33. Meridian Global Funds Management Asia Ltd v. Securities Commission (1995) 2 A.C 500 at 510.
34. Pinochet No.3, 112.
35. Pinochet No.3, 171. Lord Millett's errors as to the absolute nature of the immunity from civil proceedings of the head of mission (he omits its restriction in respect of three matters specified in article 31 of the Vienna Convention on Diplomatic Relations) and his family and servants (where it is much reduced or non existent dependent on their status as administrative and technical staff, service staff or private servants) is of no significance to the case.
36. Pinochet., 169.
37. Denza, Diplomatic Law 2nd edn, 211–220, 229–230.
38. Diplomatic Law, 230–253.
39. (1964) 2 Q.B. 352.
40. Satow's Guide to Diplomatic Practice 5th edn, 131.
41. Burgers and Danelius, Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).
42. Pinochet No.3,109.
43. Pinochet., 121.
44. Pinochet., 110, 121.
45. Per Hutton, Phillips, Pinochet No.3, 165,192.
46. Per Browne-Wilkinson, Pinochet No.3, 114.
47. Per Saville, Millett, Pinochet No.3, 169, 179.
48. Per Hope, Pinochet No.3. 152.
49. Pinochet No.3,123.
50. Von Dardel v. USSR 623 F.Supp. 286 (DDC 1985).
51. Argentina v. Amerada Shipping Corp. 109 S. Ct 683 (1989) per Rehnquist CJ at 693.
52. (1812) 7 Cranch 116 (US).
53. Trendtex Trading Corporation v. Central Bank of Nigeria (1977) Q.B. 529.
54. I Congreso del Partido (1983) 1 A.C. 244.
55. A.C., per Shaw LJ at 578.
56. Pinochet No.3,127.
57. Per Lord Saville, Pinochet No.3,169.
58. Pinochet., 171.
59. Pinochet.,per Goff, 119.