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The Pinochet Cases in the United Kingdom1

Published online by Cambridge University Press:  17 February 2009

Colin Warbrick ,
Elena Martin Salgado  and
Nicholas Goodwin
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Extract

The activities of the regime of General, then President, Pinochet after his military coup in Chile in September 1973 are politically, legally and, one might almost say, popularly, one of the landmarks in the development of the international regime of human rights. Pinochet, then Commander of the Armed Forces, led a coup against President Allende, which resulted in a Military Junta seizing power on 11 September 1973. Pinochet became President of Chile in 1974 and remained in that position until 11 March 1990, when democracy was restored. He continued on as Commander of the Armed Forces until March 1998, when he was made Senator for Life.

The legal significance of the reaction to events following the coup lies in the response of the United Nations to the excesses of the Pinochet government. The condemnation of Chile by the General Assembly for its policy of gross violations of human rights was the first occasion on which the Assembly had taken this step without invoking either a threat to the peace or a consideration of self-determination.

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Articles
Information
Yearbook of International Humanitarian Law , Volume 2 , December 1999 , pp. 91 - 117
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 1999

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References

5. The three judgements so far given by the House of Lords are: R v. Bow Street Metropolitan Magistrate, ex parte Pinochet Ugarte (Amnesty International and others intervening) [1998] 4 All ER 897 [hereinafter referred to as P1]; R v. Metropolitan Magistrate, ex parte Pinochet Ugarte (No. 2) 1 All ER 577 [hereinafter P2]; and R v. Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (Amnesty International and others intervening) (No. 3) 2 All ER 97 [hereinafter P3]. References to ‘the law of the United Kingdom’ are to United Kingdom law as a whole, especially from an external perspective. References to ‘English law’ are to that part of United Kingdom law applicable to the Pinochet proceedings. All of the judgements issued in the Pinochet case are available online at http://www.derechos.rg/nizkor/chile/juicio/eng.html.

6. At various stages, Pinochet has been General Pinochet, President Pinochet and Senator Pinochet. He will be referred to simply as ‘Pinochet’ in this article.

7. Constable, P. and Valenzuela, A., A Nation of Enemies: Chile under Pinochet (New York, Norton 1993)Google Scholar.

8. The date of his Presidency was not resolved by the House of Lords. In P3, Lord Browne-Wilkinson said Pinochet became President ‘at some stage’. Decree Law No. 527, 26 June 1974 described the President of the Junta as the ‘Supreme Chief of the Nation’ and Decree Law No. 806 said that the President of the Junta will be ‘President of the Republic’. As it turned out, nothing depended upon when Pinochet became President.

9. GA Res. 3448.

10. Report of United Nations Ad Hoc Working Group on Chile (1975–1978), E/CN.4/1266 (1978).

11. P3, p. 101h.

12. Pinochet issued a statement to the British media after his arrest in which he justified the coup: http://news.bbc.co.uk/hi/english/newsdi_209000/209742.stm.

13. On the amnesty law, see Mera, J., ‘Chile: Truth and Justice under the Democratic Government’, in Roth-Arriaza, N., ed., Impunity and Human Rights in International Law and Practice (New York, OUP 1995) pp. 171 at 180–183Google Scholar.

14. National Commission on Truth and Reconciliation (Rettig Report). English text published by Notre Dame University Press, 1993. The Report, which details several thousand cases of torture and disappearances involving thousands of victims, was part of the evidence on which Judge Garzón, the Spanish investigating magistrate, based his inquiries.

15. The details of the charges are in the judgment of Lord Slynn in P1, pp. 900j–901f. See also the indictment against Pinochet, reprinted in part in this volume at p. 515.

16. For a list of the orders, claims and decisions concerning Pinochet, see Correspondents' Reports at pp. 411–412 of this volume.

17. In two identical decisions: Audiencia Nacional, Sala de lo penal, Pleno Rollo de Apelación 84/98, Sumario 19/97, Juzgado Central de Instructión No Cinco, Madrid, 4 de noviembre de 1998 and Audiencia Nacional, Sala de lo penal, Pleno Rollo de Apelación 173/98, Sumario 1/98, Juzgado Central de Instrucción No Seis, Madrid, 5 de noviembre de 1998. An unofficial English translation of the decision is reprinted at p. 505 of this volume. Professor Antonio Pigrau i Solé's commentary on the decision is in Correspondents' Reports at pp. 412 et seq. of this volume.

18. European Convention on Extradition 1957, ETS No. 24.

19. The Crown Prosecution Service (CPS) conducts extradition proceedings in the English courts on behalf of a requesting state. The decision of the Divisional Court had not yet been reported. It is available online at http://wvw.deTechos.org/nizkor/chile/juicio/eng.html.

20. P1, p. 902c.

21. The judges in the majority were Lords Nicholls and Steyn, with whom Lord Hoffmann concurred. The dissenting judges were Lords Slynn and Lloyd.

22. S. 134 Criminal Justice Act 1988, see infra section 4.1.

23. 500 UNTS (1961) 95Google Scholar.

24. Dinstein, Y., ‘Diplomatic Immunity from Jurisdiction Ratione Materiae’, 15 ICLQ (1966) p. 76CrossRefGoogle Scholar.

25. P1, p. 939h.

26. P1, p. 939j.

27. P1, p. 940b–f.

28. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 1465 UNTS (1984) 85Google Scholar.

29. International Convention against the Taking of Hostages 1979, 1316 UNTS (1979) 205Google Scholar.

30. P1, p. 941c–f.

31. P1, p. 945j.

32. P1, p. 908a.

33. P1, p. 908f.

34. P1, p. 911c.

35. P1, p. 913d.

36. P1, p. 913d–e.

37. P1, p. 914d.

38. P1, p. 915d, emphasis added.

39. P1, p. 917f.

40. PI, p. 917b-e.

41. PI, p. 913b.

42. For consideration of these arguments, see Stone, J., Legal Controls of International Conflict (London, Stevens 1959) pp. 357–363Google Scholar.

43. The Prosecutor v. Dusško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT–94–1–AR72, 105 ILR 419, paras. 128–137.

44. Lord Lloyd dissented also, holding that there was an immunity for an ex-head of state under customary international law, P1, p. 930g, and under the State Immunity Act, P1, p. 933d.

45. HC Debs, Vol. 322 WA 213–217, 9 Dec 1998. The challenge duly arrived but was overtaken by the new authority to proceed issued after Pinochet3, see infra, section 6.

46. Decree Law 2.191, introduced by the military government in 1978, provides an amnesty law preventing prosecution of individuals implicated in certain criminal acts committed between September 1973 and March 1978.

47. See for instance, statement of Foreign Minister Insulza after his failed attempt to persuade the British and Spanish governments to release Pinochet, 2 December 1998, http://cnn.com/WORLD/Europe/9812/02/pinochet.01/.

48. The various charges in the provisional warrants and the extradition request, translated into corresponding English offences for the purpose of establishing extradition crimes, are set out in Lord Hope's judgment, P3, pp. 132j–135j.

49. Rendered on 24 March 1999. The judges in the majority were Lords Browne-Wilkinson, Hope, Hutton, Saville, Millett and Phillips. Lord Goff dissented.

50. (English) Law Commission Report No. 91, ‘Territorial and Extraterritorial Extent of the Criminal Law’ (1978). ‘England’ for this purpose is ‘England and Wales’. The law in Northern Ireland is the same. For Scotland, see Ferguson, P., ‘Jurisdiction and Criminal Law in Scotland and England’, Juridical Review (1987) p. 179Google Scholar.

51. van den Wyngaert, C., ‘Double Criminality as a Requirement to Jurisdiction’, in Jareborg, N., ed., Double Criminality (Uppsala, Iustus Forlag 1989) p. 43Google Scholar.

52. Mullan, G., ‘The Concept of Double Criminality in the Context of Extraterritorial Crimes’, 1 Criminal Law Review (1997)p. 17Google Scholar.

53. Genocide Act 1969, s. 1.

54. There is yet another scheme, for the return of fugitives to Ireland, the Backing of Warrants (Republic of Ireland) Act 1965.

55. Lord Browne-Wilkinson, P3, p. 106b–f.

56. See further, Lord Browne-Wilkinson, P3, pp. 104d–107d.

57. Lord Millett would have avoided the effect of the retrospectivity rule because he regarded torture as a crime by English law throughout the relevant period by reason of its criminality in customary international law, P3, p. 178b–d.

58. Lord Hope, P3, pp. 138d–141g.

59. R v. Nome Secretary, ex parte Gilmore [1998] 1 All ER 264Google Scholar.

60. P3, pp. 137a–138d.

61. Maclaine Watson & Co Ltd v. Department of Trade and Industry [1989] 3 All ER 523, 526gGoogle Scholar.

62. See infra, p. 108.

63. See infra, n. 107.

64. Lord Goff, P3, p. 127d, suggested that extraterritorial jurisdiction would be available where there is a waiver by the state of which the defendant was a public official but the remoteness of the case serves to make the opposite point.

65. The Eschersheim [1976] 1 All ER 920, 924, per Lord DiplockGoogle Scholar.

66. Fothergill v. Monarch Airlines [1981] AC 251Google Scholar.

67. Alcom v. Republic of Colombia [1984] 2 All ER 6Google Scholar.

68. HL Debs., Vol. 538, col. 1,18 March 1978.

69. For example, Lord Browne-Wilkinson, P3, p. 113e.

70. SirWatts, Arthur, ‘Legal Position in International Law of Heads of State, Heads of Governments and Foreign Ministers’, 274 Hague Receuil (1994) p. 11Google Scholar.

71. Supra n. 67.

72. Supra n. 70, p. 82, emphasis in original.

73. London Charter of the International Military Tribunal, Art. 7, UKTS No. 27 (1946)Google Scholar.

74. Statute of the International Criminal Tribunal for the Former Yugoslavia, Art. 7(2), annexed to Security Council Resolution 827; Statute of the International Criminal Tribunal for Rwanda, Art 6(2), annexed to Security Council Resolution 955.

75. Rome Statute of the International Criminal Court, Art. 27, which, uniquely has separate provisions governing responsibility, Art. 27(1), and non-immunity, Art. 27(2).

76. P3, pp. 119j–120d.

77. Lord Hutton, P3, pp. 161b–163b.

78. Fox, Lady, ‘The Pinochet Case No. 3’, 48 ICLQ (1999) p. 687CrossRefGoogle Scholar.

79. The Economist (7 03 1999) p. 34Google Scholar.

80. For instance, Lord Phillips, P3, pp. 182j–185c, including judicial decisions and ‘the writing of authors’ as sources on a par with custom and confusing the general principles of law recognised by civilised nations with the general principles of international law.

81. P3, p. 177c.

82. P3, p. 109b (Browne-Wilkinson).

83. P3, p. 147f (Hope).

84. Supra n. 82.

85. P3, p. 177d. Lord Millett relied on the decision of the ICTY in Prosecutor v. Anto Furundžija, Judgement ICTY IT–95–17/I–T, paras. 153–157 for the ius cogens quality of the prohibition of torture and on A-G for Israel v. Eichmann 36 ILR 5 for the necessity of scale to establish criminality.

86. The conclusion of the ICTY Appellate Chamber in Tadić that some conduct occurring in non-international armed conflict was criminal in international law did not, of itself, create an obligation on States to criminalise such conduct in their domestic law, Prosecutor v. Tadić, supra n.43.

87. P3, p. 108d.

88. P3, p. 151c.

89. Supra n. 81.

90. P3, p. 166j.

91. Trendtex Trading Corp Ltd v. Central Bank of Nigeria [1977] 1 All ER 881Google Scholar.

92. Lord Browne-Wilkinson, P3, p. 109g; Lord Hutton, pp. 163h–164j.

93. P3, p. 166a.

94. P3, p. 109b.

95. P3, p. 177d.

96. P3, p. 188j.

97. Lord Browne-Wilkinson, P3, p. 114f–g; by implication, Lord Hope, p. 150f; Lord Phillips, pp. 189j–190a.

98. Lord Browne-Wilkinson, P3, pp. 108d–111b. Apart from Lord Goff, the other judges agreed with his analysis.

99. P3, p. 169f–g.

100. P3, p. 170c.

101. P3, pp. 178j–179a.

102. P3, p. 190h–j.

103. P3, p. 165c.

104. P3, p. 166e.

105. P3, p. 115c.

106. Referred to by Lord Browne-Wilkinson, P3, p. 1 110g, indicating that he thought that the concession was correctly made.

107. See the quotation from Lord Millett, supra n. 101.

108. Though the actual date should have been 30 October 1998 the date the Convention was in force for Chile, Torture Convention, Art. 19.

109. Again, strictly, 8 January 1989, when the Convention was in force for the United Kingdom.

110. P3, p. 152c.

111. P3, p. 151h.

112. pp. 120c-130h.

113. P3, p. 123f.

114. P1, p. 941e.

115. The most remarkable support for this came from Lord Hope, P3, p. 149e, who described the immunity of serving heads of state as ius cogens.

116. Lord Browne-Wilkinson, P3, p. 115e.

117. 77 AJIL (1983) pp. 413, 441Google Scholar.

118. English courts have exercised jurisdiction over the criminal acts of foreign officials in England, e.g., R v. Lambeth Justices, ex parte Yusufu, Criminal Law Review (1985) p. 510Google Scholar, and a Scottish court is currently doing so in the Lockerbie case (though probably this is a case of waiver).

119. P1, p. 938c–e.

120. Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970, 860 UNTS (1971) 105Google Scholar.

121. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Preliminary Objections) ICJ Rep. (1998) 13, para. 24.

122. Statute of the International Criminal Court, Arts. 1 (jurisdiction of the ICC ‘shall be complementary to national criminal jurisdictions’), 17(1)(a) and (b) cases inadmissible unless state with jurisdiction unwilling or unable to investigate or prosecute.

123. I am grateful to Dr. Andrew Oppenheimer for a translation of the judgement which will shortly appear in the International Law Reports. The Judgment is also reproduced in an unofficial English translation at p. 475 of this volume, and is analysed in Correspondents' Reports at p. 335 of this volume. See also Furundžja, supra n. 85, para. 156 making the same arguments (except the question of domestic immunity). For details of other recent cases asserting universal jurisdiction, REDRESS, Universal Jurisdiction in Europe (London, REDRESS Trust 1999)Google Scholar.

124. Verhoven, J., Journaux des Tribunaux (1999) p. 311Google Scholar.

125. Loi du 10 février 1999 relative à la repression des violations graves du droit international humanitaire. Published in Moniteur belge (23 03 1999). Unofficial English translation reprinted at p. 539 of this volumeGoogle Scholar.

126. HC Debs Vol. 329, col. 311, 15 April 1999.

127. For a discussion of this case, see Bryan and Rowe at p. 307 of this volume.

128. See Kurt v. Turkey, ECtHRs (1998) 15/1997/799/1002, paras. 130–134.

129. EI Pais (6,7 May 1999).

130. Leave was refused on 26 May 1999.

131 Extradition Act 1989, s. 12.