International Criminal Law
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hospital to receive medical treatment. Spanish judicial authorities sought to extradite
him in order to stand trial on a number of charges. Following a complaint filed on 15
October 1998 by the Human Rights Secretariat of Izquierda Unida, the second largest
left wing political party in Spain, the investigating court of the Audiencia Nacional
Espanola, the National Criminal Court, filed a petition in the UK requesting
Pinochet’s arrest. An international arrest warrant was issued in Spain. Although
most of the charges had no connection with Spain, the Spanish court held that they
have jurisdiction to try crimes of genocide, torture and hostage taking committed
abroad by virtue of the principle of universal jurisdiction and not merely in respect
of Spanish victims. Spain also sought to exercise jurisdiction under the nationality
principle in respect of the offences committed against Spanish nationals.
A magistrate in London issued two provisional arrest warrants under s 8 of the EA
1989. Following his arrest, Pinochet started proceedings for habeas corpus and for leave
to move for judicial review of the warrants. The Divisional Court quashed both warrants
on the ground that, as former Head of State, Pinochet was entitled to State immunity in
respect of the offences with which he was charged. The Divisional Court also considered
whether the crimes alleged in the second warrant, which were not crimes under UK law
at the date they were committed, were ‘extradition crimes’ within the meaning of the
EA 1989. Torture committed outside the UK could not be prosecuted before UK courts
until 29 September 1988, the date s 134 of the CJA 1988 entered into force. This provision,
which reflects Art 1 of the 1984 UN Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment 1984, provides that:
A public official or person acting in an official capacity, whatever his nationality,
commits the offence of torture if in the UK or elsewhere he intentionally inflicts
severe pain or suffering on another in the performance or purported performance
of his official duties.
Lord Bingham CJ was satisfied that provided the fugitive’s conduct amounted to a
crime in the UK at the date of the request for extradition, the offences amounted to
‘extradition crimes’ for the purposes of the EA 1989. Leave was given to the Crown
Prosecution Service to appeal to the House of Lords.
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