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By J. Craig Barker
Part 2
B. The Implications of the Pinochet Judgment
    1. The Legal Implications of the Judgment

    It is tempting, as many have already done, to proclaim the decision of the House of Lords as a momentous step forward in the enforcement of international human rights and international law in general. However, caution is required in order to avoid overstating the impact of this decision. First, the decision serves as a legal precedent only in the United Kingdom. No other state is bound by this decision. The best that can be said is that the decision by the highest court in one of the foremost Western states is of persuasive authority for courts in other jurisdictions, particularly Commonwealth states and the United States of America which share a common legal heritage with the United Kingdom. However, even this claim may be exaggerated. Even within the United Kingdom it should be recognized that the decision is very much dependent on its facts. In particular, the fact that none of the seven judges in the case agreed entirely with one another as to the precise details of the decision is evidence of divergence of opinion which could be exploited by lawyers in subsequent cases.

    Secondly, and more generally, the decision cannot stand on its own as a precedent for international law. At best, the decision stands as evidence of the practice of the United Kingdom in relation to the application and interpretation of the Torture Convention of 1984. Certainly, as was noted above, courts in other jurisdictions will be able to refer to the decision and draw inferences therefrom. In this process, it is likely that the case will be used by those pushing for greater enforcement of the Torture Convention. If those courts choose to follow the lead of the House of Lords, it is probable that a jurisprudence will emerge which will confirm the operation of the 1984 Convention as overriding the existence of state immunity within international law. This position may eventually evolve into customary international law. However, if no such developments follow, the House of Lords decision may pass into history as an interesting but ultimately insignificant attempt to bring the perpetrator of gross violations of human rights to justice in a national court.

    It is the involvement of the national courts of both the United Kingdom and Spain in this process which gives rise to much of the interest in the decision. As has been noted previously, the law of state immunity originally developed in order to avoid courts sitting in judgment of the acts of foreign states. Even the most vehement opponents of state immunity have conceded the need for some system whereby the truly public acts of a foreign state cannot be questioned by the courts of other states. However, in determining what are the public acts of a state, the law has moved more and more towards restricting the extent of such acts. This has had considerable impact on the issue of state sovereignty.

    2. The Impact on State Sovereignty

    The realist school of international relations posits states as rational self-interested entities existing in a system of perpetual struggle for power. Within such a system the sovereignty of states is supreme, limited only by consent. Such consent is subject to revocation where the self interest of the state demands. Accordingly, for realists, international law is, at best, ephemeral, at worst, irrelevant. What realists fail to consider is that sovereignty is itself a legal concept. As such it is subject to developments in the law which have the effect of redefining sovereignty. Every time a state enters into a treaty relationship, it is both exercising its sovereignty and restricting its sovereignty. In simple bilateral relationships, the consequent effect on the power of states to act as they see fit may be slight depending on the relative power of the contracting states. However, with regard to multilateral treaties, states which enter into such relationships are giving the opportunity to many other states to challenge the subsequent actions of the state where such actions are not in conformity with the provisions of the agreement. It must be conceded that relative power is a consideration here too. However, it is much more difficult for states to act in a wholly self-interested way in relation to such matters.

    Chile had already restricted its sovereign rights by signing and ratifying the Torture Convention which... allows for the exercise of jurisdiction by Spain and the United Kingdom over Chilean officials including their former head of state.

    Where the realist challenge of international law is most justifiable is where it is directed at the enforcement of that law. As was noted above, the relative power of states is a factor in the determination of whether or not they comply with their legal obligations, whether in the form of treaties, both bilateral and multilateral, or customary international law. One way round this inherent weakness of international law is to attach liability directly to the individual or individuals most responsible for the breach of the international obligation. On first inspection, such an approach would seem to be very attractive, not least because it does not overtly challenge the sovereignty of the state. Closer inspection, however, reveals that such a challenge is there.

    Where a criminal act is committed by the official of a state, jurisdiction over that act lies primarily with the state in question. However, where universality applies, the challenge to the sovereignty of the state is not direct. Rather it is an indirect challenge of the decision not to exercise jurisdiction over a particular individual. The circumstances of the Pinochet case clearly illustrate the problem. At the end of Pinochet’s rule in Chile, the Chilean authorities took the decision, based on rational political considerations, that greater stability would be achieved internally in Chile were Pinochet to be granted immunity in respect of the alleged offenses committed by him while he was in office. Many commentators have argued that this should have been an end to the matter, arguing that Chile was best placed to decide what was in its best interests in this particular situation. In normal circumstances this should have been an end to the matter given the importance placed by international law and international relations in general of the right of states to determine their own internal matters. However in this case, Chile had already restricted its sovereign rights by signing and ratifying the Torture Convention which specifically provided for the possibility, or indeed requirement, of universality in respect of the alleged crimes and consequently allows for the exercise of jurisdiction by Spain and the United Kingdom over Chilean officials including their former head of state. However such jurisdiction can only exist in respect of crimes which occurred at the earliest after the date at which Chile entered into the regime governed by the Torture Convention, otherwise there would be a direct attack on the sovereignty of Chile.

    3. Should Such Cases be Brought in National Courts?

    Regardless of the legal implications of the decision in the Pinochet case, the political implications of that decision give rise to a further consideration in relation to the exercise of jurisdiction by national courts, that is whether such courts are indeed the appropriate forums for cases of this type. The first point to note is that enforcement of international law through national courts is extremely random and depends on many political as well as legal factors. Neither the Government of Spain nor the Government of the United Kingdom was responsible for bringing legal proceedings against Pinochet. The action was commenced by the judiciary in Spain and was responded to by the British judicial system. The UK Government did in fact have the opportunity to bring the proceedings to an end, and indeed still do. However, the political ramifications of deciding to halt the extradition proceedings may well have been more harmful to the UK Government than allowing the proceedings to go ahead given the publicity and interest which the House of Lords decisions have attracted.

    Nevertheless, the decision by Mr. Straw, the British Home Secretary, to allow the extradition proceedings against Pinochet to go ahead has had a number of serious political ramifications including the possible undermining of the political situation in Chile as well as the relations between the United Kingdom and Chile.8 Further, Lord Goff in his speech in the House of Lords, highlighted the political difficulties that might ensue if state immunity were not to exist in cases such as those involving Pinochet. He noted that:

    If immunity rationae materiae was excluded, former heads of state and senior public officials would have to think twice about traveling abroad, for fear of being subject of unfounded allegations emanating from States ofa different persuasion.

    This is a valid political consideration of the impact of the Pinochet decision. However, from a legal perspective it must fail given the fact that in the Pinochet litigation, as has already been noted, the jurisdiction which existed in respect of the limited crimes for which Pinochet can be extradited had been specifically consented to not only by the United Kingdom and Spain but also by Chile itself.

    Nevertheless, if we return to the question of whether national courts constitute the most appropriate forums, Lord Goff’s objections appear to be credible. Granted, there is at the moment no other appropriate international forum in which a case such as this could have been brought. However, it would seem that this case highlights the need for the successful creation of the International Criminal Court. The International Criminal Court was formally established in June of last year by the Rome Convention. The Statute of the Court specifically provides that there will be no immunity from the jurisdiction of the court. This reflects the fact that the Court will be an international tribunal in respect of which the doctrine of par in parem non habet imperium, the cornerstone of the doctrine of state immunity, will not apply. Once again, the key here is the consent of states who sign the Convention. Every state that signs the Rome Statute will do so in the exercise of sovereign authority which will have the effect of reducing the sovereignty of the state in respect of such matters. It is worth noting that the Rome Statute envisages that the ordinary national courts will continue to play a crucial role in dealing with breaches of international law by individuals. However, where issues of state immunity properly arise in national courts, extradition can take place to the International Criminal Court which will have jurisdiction to hear such cases without the barrier of state immunity. The hope is that the International Criminal Court will provide an impartial international forum for the hearing of such politically sensitive issues. While some states, most notably the United States of America, which has not signed the Rome Convention, may balk at the thought of any court other than its own deciding on such issues, the International Criminal Court must surely be seen as a better forum than national courts.

C. Conclusion

In conclusion, the implications of the Pinochet case should not be overstated. It is a decision which is fundamentally limited by its specific facts. On the other hand, what the case does show is that international law can be used as a means of ensuring greater compliance with international human rights obligations by providing for the liability of individuals. However, it has been argued that such developments can only take place through the direct consent of states in the form of treaties which provide for universal jurisdiction in respect of specific crimes. Further, it is submitted that where the possibility exists of a direct clash between the principles of universality and state immunity, national courts do not provide the best forum for the hearing of such cases. Consequently, the need to ensure the full establishment of the International Criminal Court becomes paramount.


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