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travaux preparatoires
relating to the 1957 European
271 [1999] 2 WLR 827.
272 For further discussion of this point, see M Birnbaum, ‘Pinochet and Double Criminality’,
Crim LR
[2000], 127.
273 [1999] 2 All ER 97, p 107.
International Criminal Law
228
Convention on Extradition and the departmental papers relating to the EA 1989 are
silent on the relevant date. The decision that criminality was to be assessed at the
conduct date and not at the request date excluded from consideration the majority of
the charges preferred against Pinochet.
In respect of the crime of torture, Lord Browne-Wilkinson observed that the
international law prohibiting torture had the character of
jus cogens,
from which
there can be no derogation. Nevertheless, in the absence of an international tribunal
to punish torture and no general jurisdiction to permit prosecution in domestic courts,
he doubted whether this was sufficient to justify the conclusion that torture ranked
as ‘a fully constituted international crime’.
274
However, in providing a universal
jurisdiction for the crime of torture, the UN Torture Convention supplied the missing
link and made State torture ‘an international crime in the highest sense’.
275
As a
consequence, there could be no safe haven for torturers. In enacting s 134 of the CJA
1988, Parliament recognised the international obligation of States in respect of the
crime of torture, and that acts of torture and conspiracy to torture committed after
the enforcement of this legislation were extraditable crimes. As a consequence of
requiring conduct to be a crime under UK law at the date it was committed, acts of
torture occurring before 29 September 1988, the date of enforcement of the CJA 1988,
could not be classed as extraditable crimes.
Lord Hope noted that prior to the enforcement of the Suppression of Terrorism
Act (STA) 1978, the presumption against the extra-territorial application of criminal
law would have precluded a prosecution for murder and conspiracy to murder. The
STA 1978 provides for the prosecution of specified offences committed in States which
are party to the European Convention on the Suppression of Terrorism, provided
the conduct would amount to an offence under UK law.
276
Murder is a specified
offence. However, the charges against Pinochet related to murders committed in
France, Portugal and the US. These could not be ‘extradition crimes’ on the ground
that the conduct took place prior to the enforcement of the STA 1978. Hostage taking
was also excluded from the extradition proceedings on the ground that the only
charge relating to this offence did not disclose any offence under the Taking of
Hostages Act 1982.
It is a basic principle of international law that one sovereign State does not
adjudicate on the conduct of another and, as a consequence, the Head of a foreign
State is entitled to personal immunity in respect of criminal and civil liability. This
immunity is said to be granted
ratione personae
. Lord Browne-Wilkinson observed
that no other domestic court had refused to afford immunity to a Head of State on
the grounds that there can be no immunity against prosecution for certain
international crimes. He was of the opinion that whilst the State Immunity Act 1978
made some modifications to the complete immunity afforded by the common law, a
former Head of State remained immune from prosecution in relation to acts
performed in his capacity as Head of State. However, he believed there to be strong
ground for concluding that State torture, which is an international crime against
humanity, could not be considered to be an act done in an official capacity. Observing
274 [1999] 2 All ER 97, p 114.
275
Ibid,
p 109.
276 STA 1978, s 4.
Chapter 8: Extradition and Abduction
229
that the Torture Convention requires all Member States to ban torture, he considered
that it could not be an official function to do something which international law
prohibits. Accordingly, if Pinochet authorised acts of torture he was acting contrary
to international law and his actions did not give rise to immunity
ratione personae
.
Their Lordships’ decision with respect to the double criminality principle required
Pinochet to claim immunity only in relation to charges of torture and conspiracy to
torture committed after 29 September 1988 and conspiracy to murder in Spain and
murder in Spain. Immunity was raised successfully with respect to the charges of
murder and conspiracy to murder. Accordingly, extradition proceedings were
allowed to proceed solely in respect of the allegation that Pinochet organised and
authorised torture after 8 December 1988, the date at which the House of Lords held
that he was not acting in any capacity which gave rise to immunity because his
actions were contrary to international law. This decision illustrates some of the
problems that arise when domestic courts are called upon to deal with matters
involving serious human rights violations, and demonstrates the advantages of
having recourse to the International Criminal Court.
CHAPTER 9
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