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.