After the Pinochet case. What is the current state of international law concerning heads of state in domestic courts for the international crime of torture

Table of Contents:

Introduction and Issue

Ruling

Application

Conclusion

Bibliography:

Introduction and Issue

The following law essay is concerned with the question of what is the current state of international law concerning heads of state in domestic courts for the international crime of torture? It will shed light on the question by discussing the Pinochet case which was in itself groundbreaking for international diplomatic law. This is because it limited the extended of the previously unchallenged functional immunity, diplomatic immunity regarding acts of torture. Furthermore, several other cases will be discussed to see the various interpretation of the current law by courts.

Since no Convention deals specifically with the status of Heads of State, their status falls into the field of “customary international law.” Conventions, in the international sphere such as the “equality of states”, are being used as a foundation to derive and to develop further this subdivision of law.¹ By and large, they are immune to the legal power, of states other than their home state, regarding undertakings as part of their professional role, which is called functional immunity. The actions of a state official carry the immunity, it is not granted by the position itself. The right can also be granted to non-state authorities, who act in the name of the government. The usage of functional immunity is more widespread in civil law proceedings than criminal ones.

Law cases are being issued in the area of the state and state authorities intend not get involved in the internal affairs of other states. Two main concepts are important for functional immunity. It offers immunity, protects those from legal persecution, because they eventually act in the name of, as a representative of their respective home state. As a result of that, it transfers the accountability to the state, away from the physical actor. This principle was applied in the Blaškić case, in which the ruling stated that state authorities are only agents of the state. It stated unambiguously that head of states can not be held accountable for the unlawful acts which were demanded of them by their state. Moreover, the court reminded the audience that, the functional immunity, itself is a deep-rooted convention of international law has been applied for over 300 years. An effect of that is that functional immunity even covers more than the coverage that states enjoy. The state authority is not going to be persecuted for acts which are covered by the immunity of his state, but on top of that, he is covered by acts in connection to authoritative yet "non-sovereign acts² "

The other main concept is that the immunity of head of states protects them from persecution that is intended to bypass the immunity of the government by legal process contra the people who act in the name of their home nation. Which was pointed out in the “Zoernsch v. Waldock” case. It said that naturally diplomatic affairs are undertaken by people and therefore, the immunity of the state transfers to the actors unlike in the case were there are "personal sovereigns". It would be false not to outspread the immunity to the actors regarding undertakings of them in the name of the state. " To sue an envoy in respect of acts done in his official capacity would be, in effect, to sue his government irrespective of whether the envoy had ceased to be ‘en poste’ at the date of his suit.³ ” From there it can be deducted that immunity is also intended to act as a legal hurdle to block courts from imposing power on other states, second handed, by the means of legal processes, persecuting foreign head of states.⁴

Within the last 25 years, the notion that non-restrictive head of state immunity can be problematic has been gaining momentum. Simultaneously, the public attention regarding the upholding of unalienable rights and crimes against humanity has been growing. These two factors in connections with the focus on ius cogens laws now give way to a different interpretation of head of state immunity in domestic courts and eventually defeat the impunity that the position of head of state brings with itself in customary international law.⁵ In the past it has been the case that crimes against humanity which were committed as part of a states policy and were conducted by state officials. Were not persecuted, because commonly, the home government does not persecute their agents. That is only the case when a different government comes in power and a process to come to terms with the past is started.⁶

Ruling

The former Chilean dictator who was in power from 1973 to 1990.⁷ Was involved in systematic human rights violations, torture and disappearance of people, during his time as a head of state.⁸

His presidency came to an end in 1990, but he got announced the Commander of the Chilean armed forces directly afterwards, he stayed in this position for eight years. Diplomatic immunity was granted in all this position, Pinochet then became Senator for Life, thereby his full impunity was maintained, even though he did not perform a diplomatic job.⁹ In 1998 when the former head of state, protected by functional immunity flew to London to get surgery an arrest warrant by the British House of Lords was announced. Due to the fact that the United Kingdom (U.K) had not ratified “the 1984 United Nation (UN) Convention on Torture into British international law until September 29, 1988.” Cases of torture which took place after the ratification date were only relevant to the case.¹⁰ Pinochet´s functional immunity in this case was lifted because, the U.K and Chile had both ratified the Torture Convention which lifted the immunity.¹¹

Systematic torture that is under taken by the government is covert by the UN Torture convention 9, it rules, as universal jurisdiction to penalise those authorities which are accountable for the human rights violation. When Pinochet, was being treated in London, he was not in the zone of prosecution safety that his homeland offered him. Spain then made use of the universal jurisdiction, and brought charge of crimes against humanity against the former leader and asked the U.K to extradite him, to a court in Madrid for trial.¹²

In mid October, 1998 briefly after he had started his treatment an “international warrant for his arrest was issued in Spain and on the same day a London magistrate issued a warrant for his arrest under section 8 of the UK Extradition Act¹³ ” The next day the former dictator got arrested. Another international warrant and 2nd British arrest warrant were expressed in the following days. The warrants indicted Pinochet for multiple case of torture, and “hostage-taking and conspiracy to murder between 1976 and 1992.¹⁴ "The majority of the crimes happened in Chile,, however various of the claims were related to offences in other countries such as Spain.¹⁵

The first court session took place between 04-12.11. 1998 and ruled that Pinochet was not eligible to state immunity in regard to the accusations made against him in court. However, this ruling was overturned because of a potential conflict of interest of one of the judges and as well the second hearing was overturned because the legal presentation of Pinochet pleaded that the crimes he was accused of had to be constituted law violations in the U.K at the point in time when they were undertaken. After the 29th September 1988 when both states had ratified the convention.¹⁶ The third and final hearing is known as the Pinochet case.

Lord Browne-Wilkinson, one of the judges, made a evident remark in regard to the case, with respect to the location of the penal action, Spain, in the potential case and the correct judicial domain of the extradite demand. “Our job is to decide two questions of law: are there any extradition crimes and, if so, is Senator Pinochet immune from the trail for committing those crimes¹⁷ ?” The entire case, its ruling comes down to these questions.

In this hearing the court for the third time ruled that the former dictator did no hold immunity from the accusations that were being held against him, crimes against humanity. Due to the cutback of the accusation in regard to the extradition the Law Lords called the Home Secretary “to exercise the statutory power he has over extradition requests”¹⁸ and in addition to that to reevaluate the Spanish extradition demand. The Home Secretary granted the extradition too. Finally, a British magistrate arrived at the conclusion that the “extradition request met the standard of dual criminality set forth in the European Convention on Extradition and England’s implementing statute”¹⁹

The ruling of the U.K was unexampled and a milestone in the evolution of international diplomatic law and with the regard to the protection of human rights. It came to the decision that the defendant did not enjoy immunity “as a former head of state from charges that he committed human rights violations while in power.”²⁰ He can be accused and convicted for crimes against humanity, such as torture in any other country than his homeland.

This ruling contradicts the traditional interpretation of the international diplomatic convention in regard to diplomatic immunity which is build on these three pillars:

1. No state will conduct legal actions against a former leader of a country or other state authorities other than their own, with respect to actions that were undertaken as part of their official scope.
2. In case of a violation of international law too, this convention is to be upheld.
3. The convention accounts for civil as well as criminal due process of law.²¹

The court ruled that the previous interpretation of diplomatic immunity in regard to crimes against humanity was too verbatim and that it is not up to date. They argued that international law now has to acknowledge a class of criminal behaviour that consist of the following features.

1. Crime is so severe that it can not only be a matter of the nation in which it takes place. It is therefore of matter to all states.
2. The crime and with it the suspect fall into the category of international law
3. There has to be a universal jurisdiction in regard to the criminal offence. From that derives by international law that every state has the right to pursue a suspect, no matter in which geographical location was committed.²²
4. “No state immunity attaches in respect of any such prosecution²³ ”

The immunity of head of states has been challenged and questioned with the Pinochet ruling. The interpretation of the state of international law with respect to heads of state in domestic courts for the international crime of torture experienced an evolution. The ruling of the existing convention has changed in several ways. Firstly, it allows the jurisdiction to persecute former head of state and thereby challenge their immunity as a result of that it limits the state sovereignty. Secondly, now the violations of international law that have been conducted by former head of states, in a country other than the location of the domestic court can be persecuted. The diplomatic immunity that is supposed to protect state officials from legal prosecution, as an extension of state sovereignty has been bursted. How to protect diplomatic immunity that has its justification in protecting state officials that are abroad and because of that are exposed to potentially unjust states and their jurisdiction and still held up humanitarian rights and the equality of states. This is seen by many experts of international law as a Gordian knot. After the Pinochet case a wind of change seemed to go through the world of international relations. The time seemed ripe to stand up for human rights, despite of the fear of harming bilateral relations. The Law Lords by considering that there can be an exception to the rule in regard to functional immunity when violations against humanity, torture in particular are committed opened the door for other cases.

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¹ Watts, Sir Arthur. "Heads of State."Max Planck Encyclopedia of Public International Law. December 2010. Accessed March 15, 2016. http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1418?prd=EPIL.

² Akande, Dapo, and Sangeeta Shah. "Immunities of State Officials, International Crimes, and Foreign Domestic Courts."The European Journal of International Law 21, no. 4 (2011): 815-52. Accessed March 20, 2016. http://www.ejil.org/pdfs/21/4/2115.pdf.

³ Ibid

⁴ Ibid

⁵ Watts, Sir Arthur. "Heads of State."Max Planck Encyclopedia of Public International Law. December 2010. Accessed March 15, 2016. http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1418?prd=EPIL.

⁶ Akande, Dapo, and Sangeeta Shah. "Immunities of State Officials, International Crimes, and Foreign Domestic Courts."The European Journal of International Law 21, no. 4 (2011): 815-52. Accessed March 20, 2016. http://www.ejil.org/pdfs/21/4/2115.pdf.

⁷ Smith, James F. "80,000 Chileans Cheer Return of Democracy in `Stadium of Pain'" Los Angles Times, March 13, 1990. October 04, 2008. Accessed March 23, 2016. http://pqasb.pqarchiver.com/latimes/doc/281015631.html?FMT=ABS&FMTS=ABS:FT&type=current&date=Mar 13, 1990&author=JAMES F. SMITH&pub=Los Angeles Times (pre-1997 Fulltext)&edition=&startpage=&desc=80,000 Chileans Cheer Return of Democracy in `Stadium of Pain'

⁸ Skidmore, Thomas. Modern Latin America. Oxford: Oxford University Press, 2004. p. 134

⁹ Henley, Kenneth. "Sovereignty, Augusto Pinochet, and Legal Positivism."Human Rights Review 8, no. 1 (October 2008): 67-77. Accessed March 11, 2016. http://link.springer.com/article/10.1007/s12142-006-1016-5. p.70

¹⁰ Macedo, Stephen. Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law. Philadelphia: University of Pennsylvania Press., 2004. p. 115

¹¹ The Arrest Warrant Case, Pinochet Case (R v Bow Street Magistrates; ex parte Pinochet Ugarte (No 3), 3 147 (House of Lords 2000).

¹² Henley, Kenneth. "Sovereignty, Augusto Pinochet, and Legal Positivism."Human Rights Review 8, no. 1 (October 2008): 67-77. Accessed March 11, 2016. http://link.springer.com/article/10.1007/s12142-006-1016-5. p.70

¹³ Cook, Helena. Ex Parte Pinochet A Discussion of the Recent Procedeedings in the House of Lords in Connection with the Proposed Extradiction of Senator Pinochet from the UK to Spain. Working paper. May 9, 1999. Accessed March 16, 2016. http://www.ichrp.org/files/papers/97/201_-_Universal_Jurisdiction_-_Ex_Parte_Pinochet_Cook__Helena__1999.pdf. p. 78

¹⁴ Ibid., 67

¹⁵ Ibid,. 68

¹⁶ Ibid,

¹⁷ Ibid,. 69

¹⁸ Ackerman, David M. PINOCHET EXTRADITION CASE: SELECTED LEGAL ISSUES. Report. March 3, 2000. Accessed March 22, 2016. http://congressionalresearch.com/RL30117/document.php?study=PINOCHET EXTRADITION CASE SELECTED LEGAL ISSUES.

¹⁹ Ibid

²⁰ Ackerman, David M. PINOCHET EXTRADITION CASE: SELECTED LEGAL ISSUES. Report. March 3, 2000. Accessed March 22, 2016. http://congressionalresearch.com/RL30117/document.php?study=PINOCHET EXTRADITION CASE SELECTED LEGAL ISSUES.

²¹ Pinochet III, 86 (House of Lords March 24, 1999).

²² Ibid

²³ Ibid