Texto integro de la decisión de los lores sobre la extradición de Pinochet
Judgment - Regina v. Bartle and the Commissioner
of Police for the Metropolis and Others Ex Parte
Pinochet
Regina v. Evans and Another and the
Commissioner of Police for the Metropolis and
Others Ex Parte Pinochet (On Appeal from a
Divisional Court of the Queen's Bench Division)
HOUSE OF LORDS
Lord Browne-Wilkinson Lord Goff of Chieveley
Lord Hope of Craighead Lord Hutton
Lord Saville of Newdigate Lord Millett Lord Phillips
of Worth Matravers
OPINIONS OF THE LORDS OF APPEAL FOR
JUDGMENT IN THE CAUSE
REGINA
v.
BARTLE AND THE COMMISSIONER OF POLICE
FOR THE METROPOLIS AND OTHERS
(APPELLANTS)
EX PARTE PINOCHET
(RESPONDENT)
REGINA
v.
EVANS AND ANOTHER AND THE
COMMISSIONER OF POLICE FOR THE
METROPOLIS AND OTHERS
(APPELLANTS)
EX PARTE PINOCHET
(RESPONDENT)
(ON APPEAL FROM A DIVISIONAL COURT OF
THE QUEEN'S BENCH DIVISION)
ON 24 March 1999
LORD BROWNE-WILKINSON
My Lords,
As is well known, this case concerns an attempt by the
Government of Spain to extradite Senator Pinochet from
this country to stand trial in Spain for crimes committed
(primarily in Chile) during the period when Senator
Pinochet was head of state in Chile. The interaction
between the various legal issues which arise is complex. I
will therefore seek, first, to give a short account of the
legal principles which are in play in order that my
exposition of the facts will be more intelligible.
Outline of the law
In general, a state only exercises criminal jurisdiction over
offences which occur within its geographical boundaries.
If a person who is alleged to have committed a crime in
Spain is found in the United Kingdom, Spain can apply to
the United Kingdom to extradite him to Spain. The
power to extradite from the United Kingdom for an
"extradition crime" is now contained in the Extradition Act
1989. That Act defines what constitutes an "extradition
crime". For the purposes of the present case, the most
important requirement is that the conduct complained of
must constitute a crime under the law both of Spain and
of the United Kingdom. This is known as the double
criminality rule.
Since the Nazi atrocities and the Nuremberg trials,
international law has recognised a number of offences as
being international crimes. Individual states have taken
jurisdiction to try some international crimes even in cases
where such crimes were not committed within the
geographical boundaries of such states. The most
important of such international crimes for present
purposes is torture which is regulated by the International
Convention Against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment, 1984. The
obligations placed on the United Kingdom by that
Convention (and on the other 110 or more signatory
states who have adopted the Convention) were
incorporated into the law of the United Kingdom by
section 134 of the Criminal Justice Act 1988. That Act
came into force on 29 September 1988. Section 134
created a new crime under United Kingdom law, the
crime of torture. As required by the Torture Convention
"all" torture wherever committed world-wide was made
criminal under United Kingdom law and triable in the
United Kingdom. No one has suggested that before
section 134 came into effect torture committed outside
the United Kingdom was a crime under United Kingdom
law. Nor is it suggested that section 134 was
retrospective so as to make torture committed outside the
United Kingdom before 29 September 1988 a United
Kingdom crime. Since torture outside the United
Kingdom was not a crime under U.K. law until 29
September 1988, the principle of double criminality
which requires an Act to be a crime under both the law of
Spain and of the United Kingdom cannot be satisfied in
relation to conduct before that date if the principle of
double criminality requires the conduct to be criminal
under United Kingdom law at the date it was
committed. If, on the other hand, the double criminality
rule only requires the conduct to be criminal under U.K.
law at the date of extradition the rule was satisfied in
relation to all torture alleged against Senator Pinochet
whether it took place before or after 1988. The Spanish
courts have held that they have jurisdiction over all the
crimes alleged.
In these circumstances, the first question that has to be
answered is whether or not the definition of an
"extradition crime" in the Act of 1989 requires the
conduct to be criminal under U.K. law at the date of
commission or only at the date of extradition.
This question, although raised, was not decided in the
Divisional Court. At the first hearing in this House it was
apparently conceded that all the matters charged against
Senator Pinochet were extradition crimes. It was only
during the hearing before your Lordships that the
importance of the point became fully apparent. As will
appear, in my view only a limited number of the charges
relied upon to extradite Senator Pinochet constitute
extradition crimes since most of the conduct relied upon
occurred long before 1988. In particular, I do not
consider that torture committed outside the United
Kingdom before 29 September 1988 was a crime under
U.K. law. It follows that the main question discussed at
the earlier stages of this case--is a former head of state
entitled to sovereign immunity from arrest or prosecution
in the U.K. for acts of torture--applies to far fewer
charges. But the question of state immunity remains a
point of crucial importance since, in my view, there is
certain conduct of Senator Pinochet (albeit a small
amount) which does constitute an extradition crime and
would enable the Home Secretary (if he thought fit) to
extradite Senator Pinochet to Spain unless he is entitled
to state immunity. Accordingly, having identified which of
the crimes alleged is an extradition crime, I will then go on
to consider whether Senator Pinochet is entitled to
immunity in respect of those crimes. But first I must state
shortly the relevant facts.
The facts
On 11 September 1973 a right-wing coup evicted the
left-wing regime of President Allende. The coup was led
by a military junta, of whom Senator (then General)
Pinochet was the leader. At some stage he became head
of state. The Pinochet regime remained in power until 11
March 1990 when Senator Pinochet resigned.
There is no real dispute that during the period of the
Senator Pinochet regime appalling acts of barbarism were
committed in Chile and elsewhere in the world: torture,
murder and the unexplained disappearance of individuals,
all on a large scale. Although it is not alleged that Senator
Pinochet himself committed any of those acts, it is alleged
that they were done in pursuance of a conspiracy to
which he was a party, at his instigation and with his
knowledge. He denies these allegations. None of the
conduct alleged was committed by or against citizens of
the United Kingdom or in the United Kingdom.
In 1998 Senator Pinochet came to the United Kingdom
for medical treatment. The judicial authorities in Spain
sought to extradite him in order to stand trial in Spain on
a large number of charges. Some of those charges had
links with Spain. But most of the charges had no
connection with Spain. The background to the case is
that to those of left-wing political convictions Senator
Pinochet is seen as an arch-devil: to those of right-wing
persuasions he is seen as the saviour of Chile. It may well
be thought that the trial of Senator Pinochet in Spain for
offences all of which related to the state of Chile and
most of which occurred in Chile is not calculated to
achieve the best justice. But I cannot emphasise too
strongly that that is no concern of your Lordships.
Although others perceive our task as being to choose
between the two sides on the grounds of personal
preference or political inclination, that is an entire
misconception. Our job is to decide two questions of law:
are there any extradition crimes and, if so, is Senator
Pinochet immune from trial for committing those crimes.
If, as a matter of law, there are no extradition crimes or
he is entitled to immunity in relation to whichever crimes
there are, then there is no legal right to extradite Senator
Pinochet to Spain or, indeed, to stand in the way of his
return to Chile. If, on the other hand, there are extradition
crimes in relation to which Senator Pinochet is not entitled
to state immunity then it will be open to the Home
Secretary to extradite him. The task of this House is only
to decide those points of law.
On 16 October 1998 an international warrant for the
arrest of Senator Pinochet was issued in Spain. On the
same day, a magistrate in London issued a provisional
warrant ("the first warrant") under section 8 of the
Extradition Act 1989. He was arrested in a London
hospital on 17 October 1998. On 18 October the
Spanish authorities issued a second international warrant.
A further provisional warrant ("the second warrant") was
issued by the magistrate at Bow Street Magistrates Court
on 22 October 1998 accusing Senator Pinochet of:
"(1) Between 1 January 1988 and December
1992 being a public official intentionally inflicted
severe pain or suffering on another in the
performance or purported performance of his
official duties;
(2) Between the first day of January 1988 and 31
December 1992 being a public official, conspired
with persons unknown to intentionally inflict severe
pain or suffering on another in the performance or
purported performance of his official duties;
(3) Between the first day of January 1982 and 31
January 1992 he detained other persons (the
hostages) and in order to compel such persons to
do or to abstain from doing any act threatened to
kill, injure or continue to detain the hostages;
(4) Between the first day of January 1982 and 31
January 1992 conspired with persons unknown to
detain other persons (the hostages) and in order to
compel such persons to do or to abstain from
doing any act, threatened to kill, injure or continue
to detain the hostages.
(5) Between January 1976 and December 1992
conspired together with persons unknown to
commit murder in a Convention country."
Senator Pinochet started proceedings for habeas corpus
and for leave to move for judicial review of both the first
and the second provisional warrants. Those proceedings
came before the Divisional Court (Lord Bingham of
Cornhill C.J., Collins and Richards JJ.) which on 28
October 1998 quashed both warrants. Nothing turns on
the first warrant which was quashed since no appeal was
brought to this House. The grounds on which the
Divisional Court quashed the second warrant were that
Senator Pinochet (as former head of state) was entitled to
state immunity in respect of the acts with which he was
charged. However, it had also been argued before the
Divisional Court that certain of the crimes alleged in the
second warrant were not "extradition crimes" within the
meaning of the Act of 1989 because they were not
crimes under U.K. law at the date they were committed.
Whilst not determining this point directly, the Lord Chief
Justice held that, in order to be an extradition crime, it
was not necessary that the conduct should be criminal at
the date of the conduct relied upon but only at the date of
request for extradition.
The Crown Prosecution Service (acting on behalf of the
Government of Spain) appealed to this House with the
leave of the Divisional Court. The Divisional Court
certified the point of law of general importance as being
"the proper interpretation and scope of the immunity
enjoyed by a former head of state from arrest and
extradition proceedings in the United Kingdom in respect
of acts committed while he was head of state." Before the
appeal came on for hearing in this House for the first time,
on 4 November 1998 the Government of Spain
submitted a formal Request for Extradition which greatly
expanded the list of crimes alleged in the second
provisional warrant so as to allege a widespread
conspiracy to take over the Government of Chile by a
coup and thereafter to reduce the country to submission
by committing genocide, murder, torture and the taking of
hostages, such conduct taking place primarily in Chile but
also elsewhere.
The appeal first came on for hearing before this House
between 4 and 12 November 1998. The Committee
heard submissions by counsel for the Crown Prosecution
Service as appellants (on behalf of the Government of
Spain), Senator Pinochet, Amnesty International as
interveners and an independent amicus curiae. Written
submissions were also entertained from Human Rights
Watch. That Committee entertained argument based on
the extended scope of the case as put forward in the
Request for Extradition. It is not entirely clear to what
extent the Committee heard submissions as to whether all
or some of those charges constituted "extradition crimes".
There is some suggestion in the judgments that the point
was conceded. Certainly, if the matter was argued at all it
played a very minor role in that first hearing. Judgment
was given on 25 November 1998 (see [1998] 3 W.L.R.
1456). The appeal was allowed by a majority (Lord
Nicholls of Birkenhead, Lord Steyn and Lord Hoffmann,
Lord Slynn of Hadley and Lord Lloyd of Berwick
dissenting) on the grounds that Senator Pinochet was not
entitled to immunity in relation to crimes under
international law. On 15 January 1998 that judgment of
the House was set aside on the grounds that the
Committee was not properly constituted: see [1999] 2
W.L.R. 272. The appeal came on again for rehearing on
18 January 1999 before your Lordships. In the meantime
the position had changed yet again. First, the Home
Secretary had issued to the magistrate authority to
proceed under section 7 of the Act of 1989. In deciding
to permit the extradition to Spain to go ahead he relied in
part on the decision of this House at the first hearing that
Senator Pinochet was not entitled to immunity. He did not
authorise the extradition proceedings to go ahead on the
charge of genocide: accordingly no further arguments
were addressed to us on the charge of genocide which
has dropped out of the case.
Secondly, the Republic of Chile applied to intervene as a
party. Up to this point Chile had been urging that
immunity should be afforded to Senator Pinochet, but it
now wished to be joined as a party. Any immunity
precluding criminal charges against Senator Pinochet is
the immunity not of Senator Pinochet but of the Republic
of Chile. Leave to intervene was therefore given to the
Republic of Chile. The same amicus, Mr. Lloyd Jones,
was heard as at the first hearing as were counsel for
Amnesty International. Written representations were
again put in on behalf of Human Rights Watch.
Thirdly, the ambit of the charges against Senator Pinochet
had widened yet again. Chile had put in further particulars
of the charges which they wished to advance. In order to
try to bring some order to the proceedings, Mr. Alun
Jones Q.C., for the Crown Prosecution Service,
prepared a schedule of the 32 U.K. criminal charges
which correspond to the allegations made against Senator
Pinochet under Spanish law, save that the genocide
charges are omitted. The charges in that schedule are fully
analysed and considered in the speech of my noble and
learned friend, Lord Hope of Craighead who summarises
the charges as follows:
Charges 1, 2 and 5: conspiracy to torture between 1
January 1972 and 20 September 1973 and between 1
August 1973 and 1 January 1990;
Charge 3: conspiracy to take hostages between 1
August 1973 and 1 January 1990;
Charge 4: conspiracy to torture in furtherance of which
murder was committed in various countries including
Italy, France, Spain and Portugal, between 1 January
1972 and 1 January 1990.
Charges 6 and 8: torture between 1 August 1973 and 8
August 1973 and on 11 September 1973.
Charges 9 and 12: conspiracy to murder in Spain
between 1 January 1975 and 31 December 1976 and in
Italy on 6 October 1975.
Charges 10 and 11: attempted murder in Italy on 6
October 1975.
Charges 13-29; and 31-32: torture on various occasions
between 11 September 1973 and May 1977.
Charge 30: torture on 24 June 1989.
I turn then to consider which of those charges are
extradition crimes.
Extradition Crimes
As I understand the position, at the first hearing in the
House of Lords the Crown Prosecution Service did not
seek to rely on any conduct of Senator Pinochet
occurring before 11 September 1973 (the date on which
the coup occurred) or after 11 March 1990 (the date
when Senator Pinochet retired as head of state).
Accordingly, as the case was then presented, if Senator
Pinochet was entitled to immunity such immunity covered
the whole period of the alleged crimes. At the second
hearing before your Lordships, however, the Crown
Prosecution Service extended the period during which the
crimes were said to have been committed: for example,
see charges 1 and 4 where the conspiracies are said to
have started on 1 January 1972, i.e. at a time before
Senator Pinochet was head of state and therefore could
be entitled to immunity. In consequence at the second
hearing counsel for Senator Pinochet revived the
submission that certain of the charges, in particular those
relating to torture and conspiracy to torture, were not
"extradition crimes" because at the time the acts were
done the acts were not criminal under the law of the
United Kingdom. Once raised, this point could not be
confined simply to the period (if any) before Senator
Pinochet became head of state. If the double criminality
rule requires it to be shown that at the date of the conduct
such conduct would have been criminal under the law of
the United Kingdom, any charge based on torture or
conspiracy to torture occurring before 29 September
1988 (when section 134 of the Criminal Justice Act came
into force) could not be an "extradition crime" and
therefore could not in any event found an extradition
order against Senator Pinochet.
Under section 1(1) of the Act of 1989 a person who is
accused of an "extradition crime" may be arrested and
returned to the state which has requested extradition.
Section 2 defines "extradition crime" so far as relevant as
follows:
"(1) In this Act, except in Schedule 1, 'extradition
crime' means -
(a) conduct in the territory of a foreign
state, a designated Commonwealth country
or a colony which, if it occurred in the
United Kingdom, would constitute an
offence punishable with imprisonment for a
term of 12 months, or any greater
punishment, and which, however described
in the law of the foreign state,
Commonwealth country or colony, is so
punishable under that law;
(b) an extra-territorial offence against the
law of a foreign state, designated
Commonwealth country or colony which is
punishable under that law with imprisonment
for a term of 12 months, or any greater
punishment, and which satisfies -
(i) the condition specified in subsection (2)
below; or
(ii) all the conditions specified in
subsection (3) below.
"(2) The condition mentioned in subsection
(1)(b)(i) above is that in corresponding
circumstances equivalent conduct would constitute
an extra-territorial offence against the law of the
United Kingdom punishable with imprisonment for
a term of 12 months, or any greater punishment.
"(3) The conditions mentioned in subsection
(1)(b)(ii) above are -
(a) that the foreign state, Commonwealth
country or colony bases its jurisdiction on
the nationality of the offender;
(b) that the conduct constituting the
offence occurred outside the United
Kingdom; and
(c) that, if it occurred in the United
Kingdom, it would constitute an offence
under the law of the United Kingdom
punishable with imprisonment for a term of
12 months, or any greater punishment."
The question is whether the references to conduct "which,
if it occurred in the United Kingdom, would constitute an
offence" in section 2(1)(a) and (3)(c) refer to a
hypothetical occurrence which took place at the date of
the request for extradition ("the request date") or the date
of the actual conduct ("the conduct date"). In the
Divisional Court, the Lord Chief Justice (at p. 20 of the
Transcript) held that the words required the acts to be
criminal only at the request date. He said:
"I would however add on the retrospectivity point
that the conduct alleged against the subject of the
request need not in my judgment have been
criminal here at the time the alleged crime was
committed abroad. There is nothing in section 2
which so provides. What is necessary is that at the
time of the extradition request the offence should
be a criminal offence here and that it should then
be punishable with 12 months imprisonment or
more. Otherwise section 2(1)(a) would have
referred to conduct which would at the relevant
time 'have constituted' an offence and section
2(3)(c) would have said 'would have constituted'. I
therefore reject this argument."
Lord Lloyd (who was the only member of the Committee
to express a view on this point at the first hearing) took
the same view. He said at p. 1481:
"But I agree with the Divisional Court that this
argument is bad. It involves a misunderstanding of
section 2 of the Extradition Act 1989. Section
2(1)(a) refers to conduct which would constitute
an offence in the United Kingdom now. It does not
refer to conduct which would have constituted an
offence then."
My Lords, if the words of section 2 are construed in
isolation there is room for two possible views. I agree
with the Lord Chief Justice and Lord Lloyd that, if read in
isolation, the words "if it occurred . . . would constitute"
read more easily as a reference to a hypothetical event
happening now, i.e. at the request date, than to a past
hypothetical event, i.e. at the conduct date. But in my
judgment the right construction is not clear. The word "it"
in the phrase "if it occurred . . ." is a reference back to the
actual conduct of the individual abroad which, by
definition, is a past event. The question then would be
"would that past event (including the date of its
occurrence) constitute an offence under the law of the
United Kingdom." The answer to that question would
depend upon the United Kingdom law at that date.
But of course it is not correct to construe these words in
isolation and your Lordships had the advantage of
submissions which strongly indicate that the relevant date
is the conduct date. The starting point is that the Act of
1989 regulates at least three types of extradition.
First, extradition to a Commonwealth country, to a
colony or to a foreign country which is not a party to the
European Convention on Extradition. In this class of case
(which is not the present one) the procedure under Part
III of the Act of 1989 requires the extradition request to
be accompanied by evidence sufficient to justify arrest
under the Act: section 7(2)(b). The Secretary of State
then issues his authority to proceed which has to specify
the offences under U.K. law which "would be constituted
by equivalent conduct in the United Kingdom": section
7(5). Under section 8 the magistrate is given power to
issue a warrant of arrest if he is supplied with such
evidence "as would in his opinion justify the issue of a
warrant for the arrest of a person accused": section 8(3).
The committal court then has to consider, amongst other
things, whether "the evidence would be sufficient to
warrant his trial if the extradition crime had taken place
within jurisdiction of the court" (emphasis added): section
9(8). In my judgment these provisions clearly indicate that
the conduct must be criminal under the law of the United
Kingdom at the conduct date and not only at the request
date. The whole process of arrest and committal leads to
a position where under section 9(8) the magistrate has to
be satisfied that, under the law of the United Kingdom, if
the conduct "had occurred" the evidence was sufficient to
warrant his trial. This is a clear reference to the position at
the date when the conduct in fact occurred. Moreover, it
is in my judgment compelling that the evidence which the
magistrate has to consider has to be sufficient "to warrant
his trial". Here what is under consideration is not an
abstract concept whether a hypothetical case is criminal
but of a hard practical matter--would this case in relation
to this defendant be properly committed for trial if the
conduct in question had happened in the United
Kingdom? The answer to that question must be "no"
unless at that date the conduct was criminal under the law
of the United Kingdom.
The second class of case dealt with by the Act of 1989 is
where extradition is sought by a foreign state which, like
Spain, is a party to the European Extradition Convention.
The requirements applicable in such a case are the same
as those I have dealt with above in relation to the first
class of case save that the requesting state does not have
to present evidence to provide the basis on which the
magistrate can make his order to commit. The requesting
state merely supplies the information. But this provides no
ground for distinguishing Convention cases from the first
class of case. The double criminality requirement must be
the same in both classes of case.
Finally, the third class of case consists of those cases
where there is an Order in Council in force under the
Extradition Act 1870. In such cases, the procedure is not
regulated by Part III of the Act of 1989 but by Schedule
I to the Act of 1989: see section 1(3). Schedule I
contains, in effect, the relevant provisions of the Act of
1870, which subject to substantial amendments had been
in force down to the passing of the Act of 1989. The
scheme of the Act of 1870 was to define "extradition
crime" as meaning "a crime which, if committed in
England . . . would be one of the crimes described in the
first schedule to this Act": section 26. The first schedule
to the Act of 1870 contains a list of crimes and is headed:
"The following list of crimes is to be construed
according to the law existing in England . . . at the
date of the alleged crime, whether by common
law or by statute made before or after the passing
of this Act." (emphasis added)
It is therefore quite clear from the words I have
emphasised that under the Act of 1870 the double
criminality rule required the conduct to be criminal under
English law at the conduct date not at the request date.
Paragraph 20 of Schedule 1 to the Act of 1989 provides:
"'extradition crime', in relation to any foreign state,
is to be construed by reference to the Order in
Council under section 2 of the Extradition Act
1870 applying to that state as it had effect
immediately before the coming into force of this
Act and to any amendments thereafter made to
that Order;"
Therefore in this class of case regulated by Schedule 1 to
the Act of 1989 the same position applies as it formerly
did under the Act of 1870, i.e. the conduct has to be a
crime under English law at the conduct date. It would be
extraordinary if the same Act required criminality under
English law to be shown at one date for one form of
extradition and at another date for another. But the case
is stronger than that. We were taken through a trawl of
the travaux preparatoires relating to the Extradition
Convention and the departmental papers leading to the
Act of 1989. They were singularly silent as to the relevant
date. But they did disclose that there was no discussion
as to changing the date on which the criminality under
English law was to be demonstrated. It seems to me
impossible that the legislature can have intended to
change that date from the one which had applied for over
a hundred years under the Act of 1870 (i.e. the conduct
date) by a side wind and without investigation.
The charges which allege extradition crimes
The consequences of requiring torture to be a crime
under U.K. law at the date the torture was committed are
considered in Lord Hope's speech. As he demonstrates,
the charges of torture and conspiracy to torture relating to
conduct before 29 September 1988 (the date on which
section 134 came into effect) are not extraditable, i.e.
only those parts of the conspiracy to torture alleged in
charge 2 and of torture and conspiracy to torture alleged
in charge 4 which relate to the period after that date and
the single act of torture alleged in charge 30 are
extradition crimes relating to torture.
Lord Hope also considers, and I agree, that the only
charge relating to hostage-taking (charge 3) does not
disclose any offence under the Taking of Hostages Act
1982. The statutory offence consists of taking and
detaining a person (the hostage), so as to compel
someone who is not the hostage to do or abstain from
doing some act: section 1. But the only conduct relating
to hostages which is charged alleges that the person
detained (the so-called hostage) was to be forced to do
something by reason of threats to injure other
non-hostages which is the exact converse of the offence.
The hostage charges therefore are bad and do not
constitute extradition crimes.
Finally, Lord Hope's analysis shows that the charge of
conspiracy in Spain to murder in Spain (charge 9) and
such conspiracies in Spain to commit murder in Spain,
and such conspiracies in Spain prior to 29 September
1988 to commit acts of torture in Spain, as can be shown
to form part of the allegations in charge 4 are extradition
crimes.
I must therefore consider whether, in relation to these two
surviving categories of charge, Senator Pinochet enjoys
sovereign immunity. But first it is necessary to consider
the modern law of torture.
Torture
Apart from the law of piracy, the concept of personal
liability under international law for international crimes is
of comparatively modern growth. The traditional subjects
of international law are states not human beings. But
consequent upon the war crime trials after the 1939-45
World War, the international community came to
recognise that there could be criminal liability under
international law for a class of crimes such as war crimes
and crimes against humanity. Although there may be
legitimate doubts as to the legality of the Charter of the
Nuremberg Tribunal, in my judgment those doubts were
stilled by the Affirmation of the Principles of International
Law recognised by the Charter of Nuremberg Tribunal
adopted by the United Nations General Assembly on 11
December 1946. That Affirmation affirmed the principles
of international law recognised by the Charter of the
Nuremberg Tribunal and the judgment of the Tribunal and
directed the Committee on the codification of
international law to treat as a matter of primary
importance plans for the formulation of the principles
recognised in the Charter of the Nuremberg Tribunal. At
least from that date onwards the concept of personal
liability for a crime in international law must have been
part of international law. In the early years state torture
was one of the elements of a war crime. In consequence
torture, and various other crimes against humanity, were
linked to war or at least to hostilities of some kind. But in
the course of time this linkage with war fell away and
torture, divorced from war or hostilities, became an
international crime on its own: see Oppenheim's
International Law (Jennings and Watts edition) vol. 1,
996; note 6 to Article 18 of the I.L.C. Draft Code of
Crimes Against Peace; Prosecutor v. Furundzija
Tribunal for Former Yugoslavia, Case No.
17-95-17/1-T. Ever since 1945, torture on a large scale
has featured as one of the crimes against humanity: see,
for example, U.N. General Assembly Resolutions 3059,
3452 and 3453 passed in 1973 and 1975; Statutes of the
International Criminal Tribunals for former Yugoslavia
(Article 5) and Rwanda (Article 3).
Moreover, the Republic of Chile accepted before your
Lordships that the international law prohibiting torture has
the character of jus cogens or a peremptory norm, i.e.
one of those rules of international law which have a
particular status. In Furundzija (supra) at para. 153, the
Tribunal said:
"Because of the importance of the values it
protects, [the prohibition of torture] has evolved
into a peremptory norm or jus cogens, that is, a
norm that enjoys a higher rank in the international
hierarchy than treaty law and even 'ordinary'
customary rules. The most conspicuous
consequence of this higher rank is that the principle
at issue cannot be derogated from by states
through international treaties or local or special
customs or even general customary rules not
endowed with the same normative force. . . .
Clearly, the jus cogens nature of the prohibition
against torture articulates the notion that the
prohibition has now become one of the most
fundamental standards of the international
community. Furthermore, this prohibition is
designed to produce a deterrent effect, in that it
signals to all members of the international
community and the individuals over whom they
wield authority that the prohibition of torture is an
absolute value from which nobody must deviate."
(See also the cases cited in Note 170 to the
Furundzija case.)
The jus cogens nature of the international crime of torture
justifies states in taking universal jurisdiction over torture
wherever committed. International law provides that
offences jus cogens may be punished by any state
because the offenders are "common enemies of all
mankind and all nations have an equal interest in their
apprehension and prosecution": Demjanjuk v.
Petrovsky (1985) 603 F. Supp. 1468; 776 F. 2d. 571.
It was suggested by Miss Montgomery, for Senator
Pinochet, that although torture was contrary to
international law it was not strictly an international crime
in the highest sense. In the light of the authorities to which
I have referred (and there are many others) I have no
doubt that long before the Torture Convention of 1984
state torture was an international crime in the highest
sense.