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PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction

PINOCHET granted ratione personae.

A former head of state only has immunity with regard to his acts as a FORMER HEAD OF STATE
head of state but not with regard to acts which fall outside his role as
head of state. A head of state may be treated as the state itself and What then when the ambassador leaves his post or the head of state
entitled to the same immunities. is deposed? The position of the ambassador is covered by the Vienna
Convention on Diplomatic Relations (1961). After providing for
A former head of state cannot have immunity for acts of murder immunity from arrest (article 29) and from criminal and civil
committed outside his own territory. International law recognizes jurisdiction (article 31), article 39(1) provides that the ambassadors
crimes against humanity and the Torture Convention says that no privileges shall be enjoyed from the moment he takes up post; and
circumstances can be invoked as justification for torture. Therefore it paragraph (2) provides:
cannot be a part of the function of a head of state under international
law to commit those crimes. When the functions of a person enjoying privileges and immunities
have come to an end, such privileges and immunities shall normally
There is general agreement between the parties as to the rules of cease at the moment when he leaves the country, or on expiry of a
statutory immunity and the rationale which underlies them. The issue reasonable period in which to do so, but shall subsist until that time,
is whether international law grants state immunity in relation to the even in case of armed conflict. However, with respect to acts
international crime of torture and, if so, whether the Republic of Chile performed by such a person in the exercise of his functions as a
is entitled to claim such immunity even though Chile, Spain and the member of the mission, immunity shall continue to subsist.
United Kingdom are all parties to the Torture Convention and
therefore contractually bound to give effect to its provisions from 8 The continuing partial immunity of the ambassador after leaving post
December 1988 at the latest. is of a different kind from that enjoyed ratione personae while he was
in post. Since he is no longer the representative of the foreign state
CURRENT HEAD OF STATE he merits no particular privileges or immunities as a person. However
in order to preserve the integrity of the activities of the foreign state
It is a basic principle of international law that one sovereign state (the during the period when he was ambassador, it is necessary to provide
forum state) does not adjudicate on the conduct of a foreign state. that immunity is afforded to his official acts during his tenure in post.
The foreign state is entitled to procedural immunity from the If this were not done the sovereign immunity of the state could be
processes of the forum state. This immunity extends to both criminal evaded by calling in question acts done during the previous
and civil liability. State immunity probably grew from the historical ambassadors time. Accordingly under article 39(2) the ambassador,
immunity of the person of the monarch. In any event, such personal like any other official of the state, enjoys immunity in relation to his
immunity of the head of state persists to the present day: the head of official acts done while he was an official. This limited immunity,
state is entitled to the same immunity as the state itself. The ratione materiae, is to be contrasted with the former immunity ratione
diplomatic representative of the foreign state in the forum state is personae which gave complete immunity to all activities whether
also afforded the same immunity in recognition of the dignity of the public or private.
state which he represents. This immunity enjoyed by a head of state
in power and an ambassador in post is a complete immunity attaching In my judgment at common law a former head of state enjoys similar
to the person of the head of state or ambassador and rendering him immunities, ratione materiae, once he ceases to be head of state. He
immune from all actions or prosecutions whether or not they relate to too loses immunity ratione personae on ceasing to be head of state:
matters done for the benefit of the state. Such immunity is said to be see Sir Arthur Watts Q.C., Hague Lectures, The Legal Position in

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PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction
International Law of Heads of States, Heads of Government and justice. The idea that individuals who commit international crimes are
Foreign Ministers 1994-III 247 Recueil des cours, p. 88 and the cases internationally accountable for them has now become an accepted
there cited. He can be sued on his private obligations: Ex-King Farouk part of international law. Problems in this area such as the non-
of Egypt v. Christian Dior (1957) 24 I.L.R. 228; Jimenez v. existence of any standing international tribunal to have jurisdiction
Aristeguieta (1962) 311 F.2d 547. As ex-head of state he cannot be over such crimes, and the lack of agreement as to what acts are
sued in respect of acts performed whilst head of state in his public internationally criminal for this purpose have not affected the
capacity: Hatch v. Baez (1876) 7 Hun 596. Thus, at common law, the general acceptance of the principle of individual responsibility for
position of the former ambassador and the former head of state international criminal conduct.
appears to be much the same: both enjoy immunity for acts done in
performance of their respective functions whilst in office. Later he said, at p. 84: It can no longer be doubted that as a matter
of general customary international law a head of state will personally
The question then which has to be answered is whether the alleged be liable to be called to account if there is sufficient evidence that he
organisation of state torture by Senator Pinochet (if proved) would authorised or perpetrated such serious international crimes.
constitute an act committed by Senator Pinochet as part of his official
functions as head of state. It is not enough to say that it cannot be It can be objected that Sir Arthur was looking at those cases where
part of the functions of the head of state to commit a crime. Actions the international community has established an international tribunal
which are criminal under the local law can still have been done in relation to which the regulating document expressly makes the
officially and therefore give rise to immunity ratione materiae. The head of state subject to the tribunals jurisdiction: see, for example,
case needs to be analysed more closely. the Nuremberg Charter, article 7; the Statute of the International
Criminal Tribunal for Former Yugoslavia; the Statute of the
Can it be said that the commission of a crime which is an international International Criminal Tribunal for Rwanda and the Statute of the
crime against humanity and jus cogens is an act done in an official International Criminal Court. It is true that in these cases it is
capacity on behalf of the state? I believe there to be strong ground expressly said that the head of state or former head of state is
for saying that the implementation of torture as defined by the subject to the courts jurisdiction. But those are cases in which a new
Torture Convention cannot be a state function. This is the view taken court with no existing jurisdiction is being established. The jurisdiction
by Sir Arthur Watts Q.C. in his Hague Lecture who said, at p. 82: being established by the Torture Convention and the Hostages
[*204] Convention is one where existing domestic courts of all the countries
are being authorised and required to take jurisdiction internationally.
While generally international law does not directly involve The question is whether, in this new type of jurisdiction, the only
obligations on individuals personally, that is not always appropriate, possible view is that those made subject to the jurisdiction of each of
particularly for acts of such seriousness that they constitute not the state courts of the world in relation to torture are not entitled to
merely international wrongs (in the broad sense of a civil wrong) but claim immunity.
rather international crimes which offend against the public order of
the international community. States are artificial legal persons: they I have doubts whether, before the coming into force of the Torture
can only act through the institutions and agencies of the state, which Convention, the existence of the international crime of torture as jus
means, ultimately, through its officials and other individuals acting on cogens was enough to justify the conclusion that the organisation of
behalf of the state. For international conduct which is so serious as to state torture could not rank for immunity purposes as performance of
be tainted with criminality to be regarded as attributable only to the an official function. At that stage there was no international tribunal
impersonal state and not to the individuals who ordered or to punish torture and no general jurisdiction to permit or require its
perpetrated it is both unrealistic and offensive to common notions of punishment in domestic courts. Not until there was some form of

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PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction
universal jurisdiction for the punishment of the crime of torture could state is inconsistent with the provisions of the Torture Convention.
it really be talked about as a fully constituted international crime. But
in my judgment [*205] the Torture Convention did provide what was For these reasons in my judgment if, as alleged, Senator Pinochet
missing: a worldwide universal jurisdiction. Further, it required all organised and authorised torture after 8 December 1988, he was not
member states to ban and outlaw torture: article 2. How can it be for acting in any capacity which gives rise to immunity ratione materiae
international law purposes an official function to do something which because such actions were contrary to international law, Chile had
international law itself prohibits and criminalises? Thirdly, an essential agreed to outlaw such conduct and Chile had agreed with the other
feature of the international crime of torture is that it must be parties to the Torture Convention that all signatory states should have
committed by or with the acquiesence of a public official or other jurisdiction to try official torture (as defined in the Convention) even if
person acting in an official capacity. As a result all defendants in such torture were committed in Chile.
torture cases will be state officials. Yet, if the former head of state has
immunity, the man most responsible will escape liability while his As to the charges of murder and conspiracy to murder, no one has
inferiors (the chiefs of police, junior army officers) who carried out his advanced any reason why the ordinary rules of immunity should not
orders will be liable. I find it impossible to accept that this was the apply and Senator Pinochet is entitled to such immunity.
intention.
For these reasons, I would allow the appeal so as to permit the
Finally, and to my mind decisively, if the implementation of a torture extradition proceedings to proceed on the allegation that torture in
regime is a public function giving rise to immunity ratione materiae, pursuance of a conspiracy to commit torture, including the single act
this produces bizarre results. Immunity ratione materiae applies not of [*206] torture which is alleged in charge 30, was being committed
only to ex-heads of state and ex-ambassadors but to all state officials by Senator Pinochet after 8 December 1988 when he lost his
who have been involved in carrying out the functions of the state. immunity.
Such immunity is necessary in order to prevent state immunity being
circumvented by prosecuting or suing the official who, for example,
actually carried out the torture when a claim against the head of state
would be precluded by the doctrine of immunity. If that applied to the
present case, and if the implementation of the torture regime is to be
treated as official business sufficient to found an immunity for the
former head of state, it must also be official business sufficient to
justify immunity for his inferiors who actually did the torturing. Under
the Convention the international crime of torture can only be
committed by an official or someone in an official capacity. They
would all be entitled to immunity. It would follow that there can be no
case outside Chile in which a successful prosecution for torture can be
brought unless the State of Chile is prepared to waive its right to its
officials immunity. Therefore the whole elaborate structure of
universal jurisdiction over torture committed by officials is rendered
abortive and one of the main objectives of the Torture Convention
to provide a system under which there is no safe haven for torturers
will have been frustrated. In my judgment all these factors together
demonstrate that the notion of continued immunity for ex-heads of

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PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction
REGINA vs BARTLE AND THE COMMISSIONER OF POLICE

Brief Fact Summary. Siting his status as a former head of state, Pinochet
(D) claimed that he was immune from prosecution.

Synopsis of Rule of Law. The provision of the Torture Convention is not


consistent with the notion of continued immunity for former head of states.

Facts. Pinochet (D), the former head of state of Chile, was considered
by the House of Lords (P) to have contravened the provisions of the
Torture Convention. This convention became law on the 8th of
December 1988 and Chile, Spain and the United Kingdom were all
parties to it. But Pinochet (D), siting the fact that he was a former
head of state, he was immune under the principle of international law.

Issue. Is the provision of the Torture Convention consistent with the


notion of continued immunity for former head of states?

Held. Yes. The provision of the Torture Convention is not consistent


with the notion of continued immunity for former head of states.
Pinochet (D) was not acting in any capacity that gives rise to
immunity if as alleged; he masterminded and authorized torture after
the 8th of December 1988 because these acts clearly contravene
international law. Hence, the torture proceedings brought against the
defendant should only continue on the allegation that torture in
pursuance of a conspiracy to commit torture was being committed by
the defendant after he lost his immunity in December 1988.

Discussion. Under common law, a former head of state enjoys


immunity for official acts done while in office, this implies that the
court also took cognizance of common law in this case. Ensuring that
no safe haven is available to torturers is the primary aim of the
Torture Convention.

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PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction

Regina v. Bartle and the Commissioner of Police for the Chile


Metropolis and others ex parte PINOCHET / Regina v. Evans
and another and the Commissioner of Police for the Metropolis Spain
and others ex parte PINOCHET

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Court House of Lords, Great Britain (UK)
Summary

Opinions of the Lords of Appeal for On 11 September 1973, General Augusto Pinochet Ugarte assumed
Decision title power in Chile as a result of a military coup that overthrew the then
Judgement in the Cause
government of President Allende. Pinochet was the Commander in
Chief of the Chilean Army until 1974 when he assumed the title of
Decision date 25 November 1998 President of the Republic. His presidency lasted until 1990 and his
Crown Prosecution Service role as Commander in Chief until 1998. His regime was known for its
systematic and widespread violations of human rights, with
allegations of murder, torture and hostage taking of political
Nicholas Evans
opponents.
Parties
Ronald Bartle
In 1998, during a visit to the United Kingdom for medical treatment,
Pinochet was arrested by the English authorities with a view to
Augusto Pinochet Ugarte
extraditing him to Spain where a Spanish judge had issued an
international arrest warrant. His extradition was, however, not to
Other names Pinochet I proceed smoothly as Pinochet applied to have the arrest warrant
quashed on the grounds that as a former Head of State he enjoyed
immunity from criminal proceedings. By a decision of 25 November
Categories Genocide 1998, the House of Lords in a 3:2 majority held that Pinochet was not
entitled to immunity from criminal proceedings and could therefore be
extradited.
genocide, hostage, immunity, jurisdiction,
Keywords
Murder, torture
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Opinions of the Lords of Appeal for Judgement Procedural history


Links
in the Cause
On 16 October 1998, a Spanish judge issued an international arrest
Belgium warrant for the Respondent, Augusto Pinochet Ugarte. In order to
Other countries involved respond to the need to execute the international arrest warrant as the
Respondent was at the time in England on a medical visit and due to
depart to Chile the following day, a Metropolitan Magistrate issued a
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PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction
provisional arrest warranton the grounds that between 1973 and 1983 By a decision of 24 March 1999, the House of Lords held that Pinochet
he murdered Spanish citizens in Chile. does not enjoy immunity in respect of acts of torture committed after
the entry into force of the 1984 Torture Convention for the UK, that is
This arrest warrant was deficient as the offence on which it was based after 8 December 1988.
was not an extraditable offence. Consequently, on 18 October 1998,
the Spanish judge issued a second international arrest warrant for the In response to questions about the Respondents allegedly fragile
Respondent (see here in Spanish only). state of health, the Home Secretary ruled in January 2000 that the
Respondent should not be extradited. Accordingly, by a decision of 2
That same day, a second provisional arrest warrant was issued by March 2000, the Home Secretary ordered the release of the
another Metropolitan Magistrate on the grounds that between 1988 Respondent who returned to Chile (see ' Pinochet Set Free', BBC News,
and 1992 the Respondent committed, inter alia, acts of torture and 2 March 2000).
hostage taking. On 23 October 1998, the Respondent was arrested in
England. On 22 and 26 October, the Respondent applied to quash the On 8 August 2000, the Supreme Court of Chile voted to strip Pinochet
first and second provisional arrest warrants respectively. of the immunity he enjoyed by virtue of his parliamentary position.

On 28 October 1998, the High Court granted the Respondent leave to On 1 December 2000, Pinochet was indicted for the kidnapping of 75
apply for a writ of certiorari. At the same time, the first arrest warrant political opponents (see 'Pinochet Charged with Kidnapping', BBC News,
was quashed. The quashing of the second arrest warrant was stayed 1 December 2000
pending an appeal to the House of Lords, the highest court in
England. On 11 December 2000, the Court of Appeal of Santiago halted the
proceedings for medical reasons.
Hearings before the House of Lords were heard on 4, 5 and 9 to 12
November 1998. On 30 January 2001, the judge reissued the arrest warrant for
Pinochet but proceedings were again halted for medical reasons. In
back to top July 2002, the Supreme Court of Chile dismissed Pinochets
indictment in the various cases against him for medical reasons (see
Related developments 'Pinochet Arrest Ordered', BBC News, 30 January 2001).

Pinochet petitioned the House of Lords to set aside its decision of 25 Shortly after the decision, Pinochet resigned from the Senate but
November 1998 on the grounds of an appearance of bias between one continued to enjoy immunity from prosecution by virtue of a
of the members of the Appellate Committee, Lord Hoffmann, and constitutional amendment that was brought about in 2000.
Amnesty International, the human rights organisation who was
admitted as intervener in the appeal. On 8 September 2006, the Supreme Court of Chile stripped Pinochet
of his immunity (see 'Court Lifts Pinochet Immunity, BBC News, 8
By a decision of 17 December 1998, the decision of 25 November 1998 September 2006). On 30 October 2006, Pinochet was charged with 36
was set aside (see also 'The Law Lords and the General', The Economist, counts of kidnapping, 23 counts of torture, and one of murder for the
17 December 1998). Pinochet was therefore entitled to a new hearing torture and disappearance of opponents of his regime at Villa Grimaldi
on his original immunity claim. (see Human Rights Watch, 'Chile: Pinochet Finally Faces Torture
Charges').
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PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction
On 28 November 2006, Pinochet was placed under house arrest; he Sections 2(1)(b) and 8(1)(b) of the 1989 UK Extradition Act.
died twelve days later, on 10 December 2006.
Sections 1, 14, 16(4), 20(1) and (5) of the UK State Immunity Act.
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UK Diplomatic Privileges Act.
Legally relevant facts
Uk Taking Hostages Act.
On 11 September 1973, General Augusto Pinochet Ugarte assumed
power in Chile after a military coup. He was appointed president of back to top
the governing military junta on the same day.On 22 September 1973,
the new regime was recognised by the British government. By a Court's holding and analysis
decree of 11 December 1974, General Pinochet assumed the title of
President of the Republic. Following democratic elections in December It is necessary to distinguish between three different principles. First,
1989, General Pinochet handed over power to President Aylwin on 11 State immunity, as codified in Part I of 1978 State Immunity Act.
March 1990 (p. 24). Second, personal immunity of Heads of State, codified in Part II of the
same Act. Third, the act of State doctrine, which remains a common
back to top law matter (p. 43).

Core legal questions Although State immunity under Part I extends to Heads of State, it
does not apply in respect of criminal proceedings (p. 44).
Is the Respondent entitled to immunity either by virtue of State
immunity or Head of State immunity? The act of State doctrine is inapplicable in the present instance as
Parliament has shown that the conduct with which the Respondent is
back to top charged is a justiciable matter before the English courts by enacting
section 134(1) of the 1988 Criminal Justice Act defining torture and
Specific legal rules and provisions section 1(1) of the 1982 Taking Hostages Act (p. 45).

Articles 4 and 6 of the Convention on the Prevention and Punishment With respect to personal immunity, section 20 of the 1978 State
of the Crime of Genocide. Immunity Act confers immunity from criminal proceedings upon
Heads of State. Following an interpretation of Article 39(2) of 1961
Articles 28, 29 and 31 of the Vienna Convention on Diplomatic Vienna Convention on Diplomatic Relations, incorporated by
Relations. reference, this immunity extends to former Heads of State in respect
of official acts (p. 46). Official acts are those recognised by
International Convention against the Taking of Hostages. international law as functions of a Head of State, irrespective of the
terms of individuals domestic constitution. Accordingly, acts of torture
and hostage taking are not functions of a Head of State and therefore
Convention against Torture and Other Cruel, Inhuman or Degrading
no immunity can attach to them in respect of criminal proceedings (p.
Treatment or Punishment.
47).
Section 134(1) of the 1988 UK Criminal Justice Act.
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PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction
By a majority of 3:2 (Lords Hoffman, Nicholls and Steyn), their
Lordships allowed the appeal and held that the Respondent was not
entitled to immunity (pp. 49, 56).

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PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction
Republic of Indonesia vs Vinzon This entry was pos consent is a necessary consequence of the principles of independence
ted in Constitutional Law 1 Doctrine of Immunity from Suit and and equality of States. The practical justification for the doctrine of
tagged Political Law 1 on November 2, 2014 by Morrie26 sovereign immunity is that there can be no legal right against the
Republic of Indonesia vs Vinzon doctrine of sovereign authority that makes the law on which the right depends. In the case
immunity of foreign States, the rule is derived from the principle of the
sovereign equality of States, as expressed in the maxim par in parem
REPUBLIC OF INDONESIA VS VINZON G.R. No. 154705 405 non habet imperium. All states are sovereign equals and cannot
SCRA 126 June 26, 2003 assert jurisdiction over one another.] A contrary attitude would
unduly vex the peace of nations. The rules of International Law,
THE REPUBLIC OF INDONESIA, HIS EXCELLENCY AMBASSADOR however, are not unbending or immune to change. The increasing
SOERATMIN, and MINISTER COUNSELLOR AZHARI KASIM, need of sovereign States to enter into purely commercial activities
petitioners, vs. JAMES VINZON, doing business under the remotely connected with the discharge of their governmental
name and style of VINZON TRADE AND SERVICES, respondent. functions brought about a new concept of sovereign immunity. This
concept, the restrictive theory, holds that the immunity of the
Facts: This is a petition for review of the decision made by Court of sovereign is recognized only with regard to public acts or acts jure
Appeals in ruling that the Republic of Indonesia gave its consent to be imperii (public acts of the government of a state), but not with regard
sued and voluntarily submitted itself to the laws and jurisdiction of to private acts or acts jure gestionis (the commercial activities of a
Philippine courts and that petitioners Ambassador Soeratmin and state.)
Minister Counsellor Kasim waived their immunity from suit. Petitioner,
Republic of Indonesia, represented by its Counsellor, Siti Partinah, Rulings: The Supreme Court ruled that the republic of Indonesia
entered into a Maintenance Agreement with respondent James cannot be deemed to have waived its immunity to suit. The mere
Vinzon, sole proprietor of Vinzon Trade and Services. The equipment entering into a contract by a foreign state with a private party cannot
covered by the Maintenance Agreement are air conditioning units and be construed as the ultimate test of whether or not it is an act juri
was to take effect in a period of four years. When Indonesian Minister imperii or juri gestionis. Such act is only the start of the inquiry.
Counsellor Kasim assumed the position of Chief of Administration, he
allegedly found respondents work and services unsatisfactory and not There is no dispute that the establishment of a diplomatic mission is
in compliance with the standards set in the Maintenance Agreement. an act juri imperii. The state may enter into contracts with private
Hence, the Indonesian Embassy terminated the agreement. The entities to maintain the premises, furnishings and equipment of the
respondent claims that the aforesaid termination was arbitrary and embassy.
unlawful. Hence, he filed a complaint against the petitioners which
opposed by invoking immunity from suit. The Republic of Indonesia is acting in pursuit of a sovereign activity
when it entered into a contract with the respondent. The maintenance
Issues: agreement was entered into by the Republic of Indonesia in the
discharge of its governmental functions. It cannot be deemed to have
Whether or not the Republic of Indonesia can invoke the doctrine of waived its immunity from suit. Article 31 of the Vienna Convention on
sovereign immunity from suit. Diplomatic Relations provides that a diplomatic agent shall enjoy
immunity from the criminal jurisidiction of the receiving State. He
Whether or not petitioners Ambassador Soeratmin and Minister shall also enjoy immunity from its civil and administrative jurisdiction,
Counsellor Kasim may be sued herein in their private capacities. except in the case of: a real action relating to private immovable
property situated in the territory of the receiving State, unless he
Discussions: The rule that a State may not be sued without its
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PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction
holds it on behalf of the sending State for the purposes of the
mission; an action relating to succession in which the diplomatic
agent is involved as executor, administrator, heir or legatee as a
private person and not on behalf of the sending State; an action
relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions.
The Solicitor General believes that said act may fall under
subparagraph (c) thereof, but said provision clearly applies only to a
situation where the diplomatic agent engages in any professional or
commercial activity outside official functions, which is not the case
herein.

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