Playing the ace? Jus cogens crimes and functional immunity in national courts.

AuthorZaman, Rebecca

ABSTRACT

In Pinochet (No. 3), the UK House of Lords ruled that former Heads of State can be held accountable for the jus cogens crime of torture in foreign domestic courts, notwithstanding their pre-existing functional immunity. Since then, national courts have been seen as an avenue not only for prosecuting alleged torturers but also for seeking compensation for their victims. In a spate of cases before regional and national courts, including the House of Lords, claimants have argued that foreign States and their officials are no longer immune from private suits alleging torture. These arguments have been consistently rejected, with judicial majorities stressing that the longstanding right of State immunity from civil proceedings can only be overridden by positive law or impermissible conflict with a jus cogens norm. This article seeks to demonstrate that the international law principles and methodology the courts applied in deciding the civil claims cases are also applicable to Pinochet (No. 3) and irreconcilable with its outcome. When the way in which legal argument is framed determines the result, the real dispute is revealed to lie between competing methodologies of legal argument and competing concepts of justice and State consent in international law.

Introduction

Hostis humani generis, the torturer is a violator of a jus cogens norm of international law, a common enemy of all mankind. (1) The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ('Torture Convention'), which most States have signed or ratified, has established torture to be an international crime and provided the machinery for universal jurisdiction over the offence. (2) In Pinochet (No. 3) (3) the House of Lords held that even former Heads of State may be prosecuted for this offence before the domestic courts of another country, notwithstanding the doctrine of functional immunity. Although Pinochet (No. 3) was actually decided on a narrow point of treaty interpretation, it has been mythologised as 'a milestone in the history of international law', (4) symbol and evidence of a far broader rule: that a State agent's immunity from prosecution will no longer be recognised 'when the acts alleged constitute a crime under international law' (5) Pinochet (No. 3) seemed to strike a blow for the ability of national courts to enforce international human rights law.

It is a development that sits uneasily with States' customary right of immunity from the jurisdiction of foreign domestic courts. The argument put in Pinochet (No. 3) was that the jus cogens status of the prohibition on torture, or the enforcement provisions in the Torture Convention, or both, have 'trumped' immunity from prosecution. Most proponents of the jus cogens restriction on immunity confine their argument to the overriding of 'functional' immunity'--meaning 'former' senior officials and all other past and present officials are subject to prosecution for torture before foreign domestic courts, but holders of personal immunity (such as diplomats and current heads of state) are exempt until they leave office. The continued recognition of personal immunity from foreign domestic jurisdiction has virtually unassailable support from the practice of national courts (6) and the ICJ itself. (7)

Since Pinochet (No. 3), a growing body of civil jurisprudence from regional (8) and national courts (9) has rejected the jus cogens 'ace' altogether, ruling that the prohibition on torture has no interaction with and so no impact on State immunity. The International Court of Justice ('ICJ') has also taken a narrow view of the relationship between immunity and jus cogens prohibitions. (10) Unlike the House of Lords in Pinochet (No. 3), these later judgments have employed a formalistic approach to the normative interaction between immunity and the jus cogens status of the prohibition on torture. Court majorities have emphasised that the claimant bears the burden of establishing, through clear, 'positive' evidence of international law, that functional immunity may no longer be recognised in proceedings arising from torture.

The purpose of this article is to demonstrate that the legal principles and methodology these courts employed are applicable to Pinochet (No. 3) and irreconcilable with its outcome. Consequently, either Pinochet (No. 3) or the subsequent jurisprudence is incorrect. A Secondary aim is to show that the outcomes of both Pinochet (No. 3) and the civil claims cases were determined by the legal methodology the courts chose to use, and to highlight the real controversy underlying the debate about the relationship between functional immunity and the jus cogens prohibition on torture. This is the tension between theories of justice, expressed here by our abhorrence of torture and our desire to hold torturers accountable, and the role of State consent in legitimising international law.

  1. Uncertainty in the Jurisprudence

    A The Proceedings against General Pinochet

    Few international law cases are as well-known as the Pinochet (No. 3) proceedings before the House of Lords. (11) Formerly Chile's head of state, General Pinochet seized power in a military coup d'etat in 1973 and maintained dictatorial control for decades. During this time, his government allegedly engaged in widespread human rights abuses, including torture. In 1990, General Pinochet stepped down as President of Chile and in March 1998 relinquished military command in exchange for the freshly-minted office of Senator-for-life, an office that ostensibly gave him permanent immunity from domestic prosecution in Chile, loiter in 1998, General Pinochet entered the United Kingdom and underwent medical treatment. Meanwhile, Spain's Judge Garzon indicted Pinochet for a vast list of crimes, including torture, and requested, via Interpol, his extradition to Spain. Pinochet was arrested in London on 16 October 1998, pursuant to a warrant issued by a metropolitan magistrate. (12) On 17 October, and again on 23 October, the Chilean Government formally protested the exercise of jurisdiction over Pinochet as a violation of Chile's sovereign immunity. The British Government refrained from involving itself in the proceedings.

    In Pinochet (No. 1), in a 3:2 decision, a majority of the House of Lords rejected General Pinochet's claim to former Head of State immunity from extradition for torture, because torture, being an international crime, 'would not be regarded by international law as a function of a head of State', (13) and was therefore outside the scope of functional immunity.

    Lords Slynn and Lloyd did not accept this argument, which essentially meant that torture should be considered private act. (14) As Lord Lloyd wrote in dissent:

    Of course it is strange to think of murder or torture as "official" acts or as part of the head of state's "public functions". But if for "official" one substitutes "governmental" then the true nature of the distinction between private acts and official acts becomes apparent. (15) Pinochet (No. 1) has shaped much of the commentary on the Pinochet proceedings and many subsequent cases, although it is not good law in the United Kingdom. Pinochet (No. 1) was set aside in Pinochet (No. 2) due to apprehended bias on the part of Lord Hoffmann, who heard the case despite close links to Amnesty International (which appeared as amicus curiae and made submissions against General Pinochet). As such, the House of Lords was called upon once more to make a pronouncement on this area of international law.

    In Pinochet (No. 3), this rime with a 6:1 majority, the House of Lords again ruled that General Pinochet could not be granted immunity. The majority gave six separate judgments, however three common themes emerge from the tangle.

    First, torture 'cannot be a state function', indeed, '[h]ow can it be for international law purposes an official function to do something which international law itself prohibits and criminalises?' (16) This position received support from three of the seven Law Lords but the remaining four expressly recognised torture to be a public and official act. (17)

    Secondly, immunity from prosecution before foreign domestic courts cannot coexist with the status of torture as a jus cogens crime. This argument emerges more clearly in the later jurisprudence (examined below) but it was alluded to in the reasoning of four of the majority Law Lords. (18) The argument relied on the rejection of immunity for jus cogens crimes before international tribunals such as Nuremberg. Lord Goff, in dissent, emphasised the distinction between holding an official 'internationally' responsible and prosecuting that official before a 'national' court, arguing that there was no settled practice that functional immunity was unavailable before foreign domestic courts. (19)

    Thirdly, and unanimously across the six Law Lords in the majority, States Parties to the Torture Convention have, as a necessary implication to the operation of its provisions, consented to the overriding of functional immunity. This is the true ratio of Pinochet (No. 3).

    Lord Browne-Wilkinson held that this implication must be made to allow the Torture Convention to operate, for if it is not, 'the whole elaborate structure of universal jurisdiction over torture committed by officials is rendered abortive.' (20)

    The other Law Lords also ruled in favour of an implication to the Torture Convention but did so in order to give effect to its object and purpose rather than to avoid the inoperability of its express provisions. Lord Hutton considered that 'the clear intent of the provisions is that an official of one state who has committed torture should be prosecuted if he is present in another state'. (21) Lord Millett held that 'no rational system of criminal justice can allow an immunity which is coextensive with the offence.' (22)

    These Law Lords also rejected the argument accepted by Lord Goff in dissent, (23)...

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