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CIAO DATE: 04/05/07
The Extradition Question: Immunity and the Head of State
by Sara Criscitelli
In 1999 the United Kingdom’s House of Lords justified the possible extradition of Augusto Pinochet, Chile’s former head of state, to Spain for prosecution on torture-related charges. Its decision in Regina v Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet recognized that heads of state generally enjoy immunity under international law; a British statute also confers immunity upon them. Nonetheless, it concluded, in the narrow circumstances presented in that case, that the UN Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment (the Torture Convention) and British domestic legislation trumped Pinochet’s head of state immunity.1 Human rights advocates hoped the decision would impel other nations to bring heads of state to justice who commit atrocities in their official capacities and presume impunity.2
Despite international pressure to follow the House of Lords’ lead in Pinochet, the extradition of a sitting head of state remains virtually unthinkable. Although the decision was significant, it has not substantially enabled national prosecutions of foreign heads of state or actually eroded head of state immunity. Indeed, the decision affirmed the immunity’s viability by find ing that it may be overridden only in narrow circumstances. Moreover, Pinochet has not inspired any other state to extradite a sitting or former head of state to answer criminal charges. In 2002 the International Court of Justice (ICJ) ordered that an arrest warrant issued by Belgium for another country’s serving minister of justice be quashed on grounds of head of state immunity. The Court stated that “in international law, it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.”3
When a state brings criminal charges against someone outside its territory, it often looks to extradition as the process for acquiring in personam jurisdiction over the defendant; and when that defendant is a present or former head of another state, additional and sometimes disabling complications ensue. The extradition request often triggers a clash between the existing protection of head of state immunity and the treaty-based obligations of the requested state to extradite persons located within its territories. The Pinochet decision may support the princi ple that it can be acceptable under inter national law to extradite a former head of state, but it clearly does not guarantee that any state will deny the extradition of the former head of another state in response to a treaty request. Liability of State Actors: Historical Precedence. Head of state immunity has long been accepted in international law, though its justification and contours have been varied and imprecise. The ICJ’s own observation regarding head of state immunity echoes the view of many international law authorities that there exists a tradition of absolute immunity of a sitting head of state from the criminal jurisdiction of other states.4 Head of state immunity is also not formally provided for in inter national agreements and is furthermore not based on any single commonly accepted principle. Nevertheless, over the last sixty years, the once absolute immunity of heads of state has eroded with respect to a narrow class of universally condemned acts.
Sara Criscitelli served as Assistant Director in the Office of International Affairs at the U.S. Department of Justice.