The World Today: A Safer Place for All

The World Today
January 1999

A Safer Place for All

By Michael Byers

On 25 November 1998 the highest court in the United Kingdom, the Appeals Committee of the House of Lords, held that General Augusto Pinochet Ugarte had no immunity from the jurisdiction of English courts for his alleged crimes under international law. ₁ The judgement was handed down on Pinochet’s eighty-third birthday. But it was really a birthday gift for international human rights nearly fifty years after the United Nations General Assembly adopted the Universal Declaration of Human Rights on 10 December 1948.

The universal declaration detailed the obligations states and state officials owe individuals under international law. These include the obligation not to torture people — one of the very crimes of which Pinochet was accused. However, the declaration, and subsequent human rights treaties, failed to provide generally available, effective enforcement mechanisms.

Some human rights treaties have stated that the violation of certain fundamental rights gives rise to ‘universal jurisdiction’ — the right of any state to prosecute an individual who is believed to be responsible for such a violation. And some countries have incorporated these international enforcement powers in their national legal systems.

For example, in 1988 the UK Parliament adopted legislation allowing those who commit torture to be prosecuted here, regardless of where the torture was committed or of the nationality of the victims.

However, national counts have been reluctant to apply these international enforcement powers except for war crimes committed during the Second World War. This meant that many victims of serious human rights abuses were left with little more than empty words — weak protection in the face of military dictators and their henchmen.

Strong Signal

The November decision of the House of Lords changed all this, indicating that at least one particularly influential national court was prepared to recognise and apply universal jurisdiction for serious human rights violations committed during peacetime. This sent a strong signal to other national courts that it is time for them, too, to recognise and exercise these enforcement powers.

The importance of the decision extends still further. The Law Lords held that an English court could exercise universal jurisdiction even though Pinochet was a former head of state. It is this that has the most significant implications for the future of international law.

According to the traditional view of international law, states were the only relevant international actors. They were sovereign. And they were theoretically, at least — equal. It followed that one state could not be impugned before the courts of another. And, inexorably, that a head of State, or a former head of state, was entitled to claim absolute immunity from the jurisdiction of national courts, whether in criminal or civil proceedings.

Until recently, state immunity had presented an almost insurmountable barrier to the effective enforcement of international human rights by national counts, even when they might otherwise have been willing to exercise universal jurisdiction.

For centuries international law has regarded it as almost inconceivable that a former sovereign might be hauled up before the courts of another state and held to account for gross violations of human rights. Since the worst violations of human rights are often committed, or at least permitted, by heads of states, this had serious consequences for those charged with enforcing international criminal law. It also had serious consequences for victims seeking civil redress. And it was on this archaic vision of international law that Pinochet relied and prevailed in the Divisional Court, prior to the case being appealed to the House of Lords.

Traditional international law has changed profoundly since the Second World War. An alternative view has emerged which suggests that the international community comprises not only states but also individuals, peoples, non-governmental organisations, corporations and so on. These have become international actors in international discourse. And in some areas, they have been granted important rights, such as the international human rights detailed in the Universal Declaration.

However, the new view of international law now goes a crucial step further: it indicates that individuals are now able to enforce their most fundamental rights even against states and state officials. This was clearly established by the Nuremberg Tribunal, set up to try alleged war criminals after the Second World War.

More recently, the principle that no one has immunity for crimes under international law has found its way into the statutes and decisions of the International Criminal Tribunals for the former Yugoslavia and Rwanda.

And last July in Rome, 120 states adopted the statute for a Permanent International Criminal Court with jurisdiction over war crimes and crimes against humanity — including those committed in peacetime. This expressly provides that heads of state have no immunity for crimes under international law.

Competing Visions

The Pinochet Case posed in the most direct terms the conflict between these two competing visions of the international legal order. On the one hand, there was the international law of the past whereby a head of state could do what he wished and rely, for the rest of his life, on the fact that he was immune before the counts. On the other hand, there was the international law of today and tomorrow, in which a former head of state is not immune from claims brought by, or in relation to, shocking wrongs against innocent victims.

In a ruling that signals a sea-change in international law, three out of five Law Lords held that the acts of which Pinochet was accused could not be considered official acts which benefited from immunity.

Lord Steyn wrote: ‘The development of international law since the Second World War justifies the conclusion that by the time of the 1973 coup d’ état, and certainly ever since, international law condemned genocide, torture, hostage taking and crimes against humanity (during an armed conflict or in peace time) as international crimes deserving of punishment. Given this state of international law, it seems to me difficult to maintain that the commission of such high crimes may amount to acts performed in the exercise of the functions of a head of state.’

Similarly, Lord Nicholls wrote: ‘International law recognises, of course, that the functions of a head of state may include activities which are wrongful, even illegal, by the law of his own state or by the laws of other states. But international law has made plain that certain types of conduct, including torture and hostage-taking, are not acceptable conduct on the part of anyone. This applies as much to heads of state, or even more so, as it does to everyone else; the contrary conclusion would make a mockery of international law.’

This aspect of the judgement is of fundamental importance. It signals that the most basic human rights are enforceable against anyone, regardless of rules of international law that might otherwise provide immunity.

Although no other national court of final appeal has ever gone this far, the authority and influence of the House of Lords is such that the November decision will be studied closely, and in all likelihood followed, by other counts around the world.

Important questions do remain unanswered. For example, given the facts of the case, the Law Lords rightly focused on the specific question whether a former head of state benefits from immunity for crimes under international law. The structure of the relevant British statutes, the State Immunity Act 1978 and the Diplomatic Privileges Act 1964, enabled them to avoid the question whether a current head of state, or indeed those currently acting as state officials or agents, would similarly not be immune.

The reasoning of the majority judgements does suggest that, under international law, immunity would never be available for such crimes. However, the structure and language of the two domestic statutes suggests that the answer may well be different under English law. It is a well-established principle of constitutional law and statutory interpretation that, for the purposes of English law, a clear and unambiguous statutory provision prevails over contrary customary international law or international treaty obligations. Part Three of the State Immunity Act 1978 indicates that current heads of state visiting the United Kingdom benefit from all the immunities normally available to diplomats accredited here. And the Diplomatic Privileges Act clearly states that: ‘The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.’

For this reason it would seem that the November judgement in the Pinochet Case does not put current heads of state and currently accredited diplomatic agents at any risk of arrest here. Even if international law has changed to the extent suggested by the Law Lords, the full effect of those changes are unlikely to be felt in English law until Parliament legislates to amend the statutory provisions which currently apply.

Drawing the Line

A second question not fully answered by the Law Lords concerns where the line is to be drawn between those crimes which are so serious as to lead to a denial of immunity, and those crimes of lesser seriousness which do not have this result. However, the reasoning in the majority judgements is clearly directed at crimes under international law: those acts — such as torture, genocide and hostage taking — which all states have explicitly acknowledged are not only prohibited by international law, but give rise to individual responsibility as well.

Deciding whether an act is a crime under international law involves a consideration of state practice, and in particular the various treaties and statutes of international criminal tribunals adopted by states since the Second World War.

Given that international law is not a static set of rules, but rather a system which evolves gradually over time, the Law Lords were right not to specify the precise location of any line between crimes under international law, and lesser crimes. It was enough for them to indicate that at least some of the acts allegedly committed by Pinochet were clearly international crimes.

International Arena

Finally, the question arises as to the relationship between the decision of the Law Lords in the Pinochet Case and the possible existence of international jurisdiction in the form of the Permanent International Criminal Court (PICC). Despite the success of the Rome Conference, the PICC has not yet come into existence. This will not happen until sixty states have signed and ratified its statute.

However, even if the PICC were already in existence it would not have jurisdiction to try Pinochet. Its statute, and therefore its jurisdiction, does not apply retroactively.

The statute of the PICC also makes clear that, for the court to have jurisdiction in any given case, the statute must have been ratified either by the state on whose territory the conduct in question occurred, or by the state of the accused individual’s nationality. This limitation might be seen by some as also applying, at least potentially, to the Pinochet Case. It does not apply, for reasons that may well have influenced the thinking of the Law Lords in their approach to the central issues of international law.

The Spanish formal extradition request accuses Pinochet of having directed an international conspiracy to torture and assassinate opponents of his regime around the world. The crimes alleged include crimes committed in the United States, Italy and Spain. They also include crimes committed during the first day of the 1973 coup before Pinochet was declared head of the military junta and before the United Kingdom formally recognised the junta as the government of Chile.

These details were not dealt with by the Law Lords who, in the glare of the international spotlight, clearly felt that it would have been inappropriate to decide the case on the basis of what would have seemed, to many, as a technicality.

However, the existence of these additional issues confirms that the case was of a degree of seriousness not usually seen by national counts. It was alleged that the most serious of crimes had been committed, not just within one state, but squarely in the international arena.

Had the Law Lords ruled that Pinochet had immunity from prosecution for such crimes, they would have been affirming a view of international law that even many traditionalists would deny. But they refused to step back into seventeenth century concepts of sovereignty. Instead they moved boldly forwards into a new era in which ordinary individuals also have rights, and where some of those rights, unlike so much of international law, may at last be truly effective.

The judgement thus sends a clear signal to those currently active in the world of diplomatic relations. The Permanent International Criminal Court is needed to provide an uncontroversial forum where those who in future violate fundamental human rights may be tried for their crimes. The Rome Statute should be ratified promptly by all states.

Even more importantly, now, more than ever, those in positions of power need to reconsider before they violate human rights, or even turn a blind eye to such violations. International criminal law is quickly coming of age and displacing old concepts of sovereignty. And as it does so, the world might just become a safer place for all human beings, everywhere.

Endnotes

Note 1: As The World Today went to press the House of Lords decided on 17 November to re-hear the appeal by General Pinochet. This was because of concern about apparent bias on the part of one of the Law Lords who gave judgement. Back.