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 BARTLE AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS
AND OTHERS
(APPELLANTS)
EX PARTE PINOCHET
(RESPONDENT) 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) 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.
(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. | 
