Case Digest: Regina v. Bartle and the Commissioner of Police (The Pinochet Case)

 Public International Law | Immunity of Head of State

Facts: 

  • In 1973, General Augusto Pinochet led a military coup that overthrew  democratically-elected Chilean President Salvador Allende in Chile.
  • A truth and reconciliation commission reported 3,196 deaths and disappearances, with thousands tortured or exiled during Pinochet's 17-year dictatorship.
  • In 1998, Pinochet was detained in London on a Spanish arrest warrant for charges of genocide, terrorism, and torture during his dictatorship.
  • Initially, British law lords ruled he lacked immunity and could be extradited to Spain, but this decision was later set aside due to a judge's ties to Amnesty International.
  • In a subsequent appeal in March 1999, a larger panel of law lords reaffirmed (6-1) that Pinochet could be extradited.
Issue:
  • Whether Pinochet, as a former head of state, enjoys immunity for alleged acts of torture carried out during his tenure as head of state.
Ruling (Lord Brown-Wilkinson):
  • Senator Pinochet as former head of state enjoys immunity ratione materiae in relation to acts done by him as head of state as part of his official functions as head of state.
  • The question then which has to be answered is whether the  alleged organisation of state torture by Senator Pinochet (if proved) would constitute an act committed by Senator Pinochet as part of his official functions as head of state....
  • Can it be said that the commission of a crime which is an international crime against humanity and jus cogens is an act done in  an official capacity on behalf of the state? I believe there to be strong  ground for saying that the implementation of torture as defined by the  Torture Convention cannot be a state function. This is the view taken  by Sir Arthur Watts (supra) who said:
    • “The idea that individuals who commit international crimes are internationally accountable for them has now become an accepted part of international law. Problems in this area — such as the non-existence of any standing international tribunal to have jurisdiction over such crimes, and the lack of agreement as to what acts are internationally criminal for this purpose— have not affected the general acceptance of the principle of individual responsibility for international criminal conduct.”
    •  “It can no longer be doubted that as a matter of general customary international law a head of state will personally be liable to be called to account if there is sufficient evidence that he authorized or perpetrated such serious international crimes.”
  • Finally, and to my mind decisively, if the implementation of a torture regime is a public function giving rise to immunity ratione materiae, this produces bizarre results. 
  • Immunity ratione materiae applies not only to ex-heads of state and ex-ambassadors but to all state officials who have been involved in carrying out the functions of the state. Such immunity is necessary in order to prevent state immunity being circumvented by prosecuting or suing the official who, for example, actually carried out the torture when a claim against the head of state would be precluded by the doctrine of immunity. If that applied to the present case, and if the implementation of the torture regime is to be treated as official business sufficient to found an immunity for the former head of state, it must also be official business sufficient to justify immunity for his inferiors who actually did the torturing. 
  • Under the [Torture] Convention the international crime of torture can only be committed by an official or someone in an official capacity. They would all be entitled to immunity.... Therefore, the whole elaborate structure of universal jurisdiction over torture committed by officials is rendered abortive and one of the main objectives of the Torture Convention — to provide a system under which there is no safe haven for torturers — will have been frustrated. 
  • In my judgment, all these factors together demonstrate that the notion of continued immunity for ex-heads of state is inconsistent with the provisions of the Torture Convention. For these reasons in my judgment if, as alleged, Senator Pinochet organized and authorized torture after 8 December 1988, he was not acting in any capacity which gives rise to immunity ratione materiae because such actions were contrary to international law ..
  • [The Chilean government and other extradition opponents then urged the British government to send the former dictator back to Chile on medical grounds. Despite the protests of legal and medical experts from several countries, British Home Secretary Jack Straw released Pinochet on March 2,2000, ostensibly on health grounds.]

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