PUBLIC INTERNATIONAL LAW
PINOCHET
A former head of state only has immunity with regard to his acts as a
head of state but not with regard to acts which fall outside his role as
head of state. A head of state may be treated as the state itself and
entitled to the same immunities.
A former head of state cannot have immunity for acts of murder
committed outside his own territory. International law recognizes
crimes against humanity and the Torture Convention says that no
circumstances can be invoked as justification for torture. Therefore it
cannot be a part of the function of a head of state under international
law to commit those crimes.
There is general agreement between the parties as to the rules of
statutory immunity and the rationale which underlies them. The issue
is whether international law grants state immunity in relation to the
international crime of torture and, if so, whether the Republic of Chile
is entitled to claim such immunity even though Chile, Spain and the
United Kingdom are all parties to the Torture Convention and
therefore contractually bound to give effect to its provisions from 8
December 1988 at the latest.
CURRENT HEAD OF STATE
It is a basic principle of international law that one sovereign state (the
forum state) does not adjudicate on the conduct of a foreign state.
The foreign state is entitled to procedural immunity from the
processes of the forum state. This immunity extends to both criminal
and civil liability. State immunity probably grew from the historical
immunity of the person of the monarch. In any event, such personal
immunity of the head of state persists to the present day: the head of
state is entitled to the same immunity as the state itself. The
diplomatic representative of the foreign state in the forum state is
also afforded the same immunity in recognition of the dignity of the
state which he represents. This immunity enjoyed by a head of state
in power and an ambassador in post is a complete immunity attaching
to the person of the head of state or ambassador and rendering him
immune from all actions or prosecutions whether or not they relate to
matters done for the benefit of the state. Such immunity is said to be
AL Ilagan-Malipol, AB, MD
Immunity from Jurisdiction
granted ratione personae.
FORMER HEAD OF STATE
What then when the ambassador leaves his post or the head of state
is deposed? The position of the ambassador is covered by the Vienna
Convention on Diplomatic Relations (1961). After providing for
immunity from arrest (article 29) and from criminal and civil
jurisdiction (article 31), article 39(1) provides that the ambassadors
privileges shall be enjoyed from the moment he takes up post; and
paragraph (2) provides:
When the functions of a person enjoying privileges and immunities
have come to an end, such privileges and immunities shall normally
cease at the moment when he leaves the country, or on expiry of a
reasonable period in which to do so, but shall subsist until that time,
even in case of armed conflict. However, with respect to acts
performed by such a person in the exercise of his functions as a
member of the mission, immunity shall continue to subsist.
The continuing partial immunity of the ambassador after leaving post
is of a different kind from that enjoyed ratione personae while he was
in post. Since he is no longer the representative of the foreign state
he merits no particular privileges or immunities as a person. However
in order to preserve the integrity of the activities of the foreign state
during the period when he was ambassador, it is necessary to provide
that immunity is afforded to his official acts during his tenure in post.
If this were not done the sovereign immunity of the state could be
evaded by calling in question acts done during the previous
ambassadors time. Accordingly under article 39(2) the ambassador,
like any other official of the state, enjoys immunity in relation to his
official acts done while he was an official. This limited immunity,
ratione materiae, is to be contrasted with the former immunity ratione
personae which gave complete immunity to all activities whether
public or private.
In my judgment at common law a former head of state enjoys similar
immunities, ratione materiae, once he ceases to be head of state. He
too loses immunity ratione personae on ceasing to be head of state:
see Sir Arthur Watts Q.C., Hague Lectures, The Legal Position in
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PUBLIC INTERNATIONAL LAW
International Law of Heads of States, Heads of Government and
Foreign Ministers 1994-III 247 Recueil des cours, p. 88 and the cases
there cited. He can be sued on his private obligations: Ex-King Farouk
of Egypt v. Christian Dior (1957) 24 I.L.R. 228; Jimenez v.
Aristeguieta (1962) 311 F.2d 547. As ex-head of state he cannot be
sued in respect of acts performed whilst head of state in his public
capacity: Hatch v. Baez (1876) 7 Hun 596. Thus, at common law, the
position of the former ambassador and the former head of state
appears to be much the same: both enjoy immunity for acts done in
performance of their respective functions whilst in office.
The question then which has to be answered is whether the alleged
organisation of state torture by Senator Pinochet (if proved) would
constitute an act committed by Senator Pinochet as part of his official
functions as head of state. It is not enough to say that it cannot be
part of the functions of the head of state to commit a crime. Actions
which are criminal under the local law can still have been done
officially and therefore give rise to immunity ratione materiae. The
case needs to be analysed more closely.
Can it be said that the commission of a crime which is an international
crime against humanity and jus cogens is an act done in an official
capacity on behalf of the state? I believe there to be strong ground
for saying that the implementation of torture as defined by the
Torture Convention cannot be a state function. This is the view taken
by Sir Arthur Watts Q.C. in his Hague Lecture who said, at p. 82:
[*204]
While generally international law does not directly involve
obligations on individuals personally, that is not always appropriate,
particularly for acts of such seriousness that they constitute not
merely international wrongs (in the broad sense of a civil wrong) but
rather international crimes which offend against the public order of
the international community. States are artificial legal persons: they
can only act through the institutions and agencies of the state, which
means, ultimately, through its officials and other individuals acting on
behalf of the state. For international conduct which is so serious as to
be tainted with criminality to be regarded as attributable only to the
impersonal state and not to the individuals who ordered or
perpetrated it is both unrealistic and offensive to common notions of
AL Ilagan-Malipol, AB, MD
Immunity from Jurisdiction
justice. The idea that individuals who commit international crimes are
internationally accountable for them has now become an accepted
part of international law. Problems in this area such as the non-
existence of any standing international tribunal to have jurisdiction
over such crimes, and the lack of agreement as to what acts are
internationally criminal for this purpose have not affected the
general acceptance of the principle of individual responsibility for
international criminal conduct.
Later he said, at p. 84: It can no longer be doubted that as a matter
of general customary international law a head of state will personally
be liable to be called to account if there is sufficient evidence that he
authorised or perpetrated such serious international crimes.
It can be objected that Sir Arthur was looking at those cases where
the international community has established an international tribunal
in relation to which the regulating document expressly makes the
head of state subject to the tribunals jurisdiction: see, for example,
the Nuremberg Charter, article 7; the Statute of the International
Criminal Tribunal for Former Yugoslavia; the Statute of the
International Criminal Tribunal for Rwanda and the Statute of the
International Criminal Court. It is true that in these cases it is
expressly said that the head of state or former head of state is
subject to the courts jurisdiction. But those are cases in which a new
court with no existing jurisdiction is being established. The jurisdiction
being established by the Torture Convention and the Hostages
Convention is one where existing domestic courts of all the countries
are being authorised and required to take jurisdiction internationally.
The question is whether, in this new type of jurisdiction, the only
possible view is that those made subject to the jurisdiction of each of
the state courts of the world in relation to torture are not entitled to
claim immunity.
I have doubts whether, before the coming into force of the Torture
Convention, the existence of the international crime of torture as jus
cogens was enough to justify the conclusion that the organisation of
state torture could not rank for immunity purposes as performance of
an official function. At that stage there was no international tribunal
to punish torture and no general jurisdiction to permit or require its
punishment in domestic courts. Not until there was some form of
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PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction
universal jurisdiction for the punishment of the crime of torture could state is inconsistent with the provisions of the Torture Convention.
it really be talked about as a fully constituted international crime. But
in my judgment [*205] the Torture Convention did provide what was For these reasons in my judgment if, as alleged, Senator Pinochet
missing: a worldwide universal jurisdiction. Further, it required all organised and authorised torture after 8 December 1988, he was not
member states to ban and outlaw torture: article 2. How can it be for acting in any capacity which gives rise to immunity ratione materiae
international law purposes an official function to do something which because such actions were contrary to international law, Chile had
international law itself prohibits and criminalises? Thirdly, an essential agreed to outlaw such conduct and Chile had agreed with the other
feature of the international crime of torture is that it must be parties to the Torture Convention that all signatory states should have
committed by or with the acquiesence of a public official or other jurisdiction to try official torture (as defined in the Convention) even if
person acting in an official capacity. As a result all defendants in such torture were committed in Chile.
torture cases will be state officials. Yet, if the former head of state has
immunity, the man most responsible will escape liability while his As to the charges of murder and conspiracy to murder, no one has
inferiors (the chiefs of police, junior army officers) who carried out his advanced any reason why the ordinary rules of immunity should not
orders will be liable. I find it impossible to accept that this was the apply and Senator Pinochet is entitled to such immunity.
intention.
For these reasons, I would allow the appeal so as to permit the
Finally, and to my mind decisively, if the implementation of a torture extradition proceedings to proceed on the allegation that torture in
regime is a public function giving rise to immunity ratione materiae, pursuance of a conspiracy to commit torture, including the single act
this produces bizarre results. Immunity ratione materiae applies not of [*206] torture which is alleged in charge 30, was being committed
only to ex-heads of state and ex-ambassadors but to all state officials by Senator Pinochet after 8 December 1988 when he lost his
who have been involved in carrying out the functions of the state. immunity.
Such immunity is necessary in order to prevent state immunity being
circumvented by prosecuting or suing the official who, for example,
actually carried out the torture when a claim against the head of state
would be precluded by the doctrine of immunity. If that applied to the
present case, and if the implementation of the torture regime is to be
treated as official business sufficient to found an immunity for the
former head of state, it must also be official business sufficient to
justify immunity for his inferiors who actually did the torturing. Under
the Convention the international crime of torture can only be
committed by an official or someone in an official capacity. They
would all be entitled to immunity. It would follow that there can be no
case outside Chile in which a successful prosecution for torture can be
brought unless the State of Chile is prepared to waive its right to its
officials immunity. Therefore the whole elaborate structure of
universal jurisdiction over torture committed by officials is rendered
abortive and one of the main objectives of the Torture Convention
to provide a system under which there is no safe haven for torturers
will have been frustrated. In my judgment all these factors together
demonstrate that the notion of continued immunity for ex-heads of

AL Ilagan-Malipol, AB, MD 3
PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction
REGINA vs BARTLE AND THE COMMISSIONER OF POLICE

Brief Fact Summary. Siting his status as a former head of state, Pinochet
(D) claimed that he was immune from prosecution.

Synopsis of Rule of Law. The provision of the Torture Convention is not

consistent with the notion of continued immunity for former head of states.

Facts. Pinochet (D), the former head of state of Chile, was considered
by the House of Lords (P) to have contravened the provisions of the
Torture Convention. This convention became law on the 8th of
December 1988 and Chile, Spain and the United Kingdom were all
parties to it. But Pinochet (D), siting the fact that he was a former
head of state, he was immune under the principle of international law.

Issue. Is the provision of the Torture Convention consistent with the

notion of continued immunity for former head of states?

Held. Yes. The provision of the Torture Convention is not consistent

with the notion of continued immunity for former head of states.
Pinochet (D) was not acting in any capacity that gives rise to
immunity if as alleged; he masterminded and authorized torture after
the 8th of December 1988 because these acts clearly contravene
international law. Hence, the torture proceedings brought against the
defendant should only continue on the allegation that torture in
pursuance of a conspiracy to commit torture was being committed by
the defendant after he lost his immunity in December 1988.

Discussion. Under common law, a former head of state enjoys

immunity for official acts done while in office, this implies that the
court also took cognizance of common law in this case. Ensuring that
no safe haven is available to torturers is the primary aim of the
Torture Convention.

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PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction

Regina v. Bartle and the Commissioner of Police for the Chile

Metropolis and others ex parte PINOCHET / Regina v. Evans
and another and the Commissioner of Police for the Metropolis Spain
and others ex parte PINOCHET

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Court House of Lords, Great Britain (UK)
Summary

Opinions of the Lords of Appeal for On 11 September 1973, General Augusto Pinochet Ugarte assumed
Decision title power in Chile as a result of a military coup that overthrew the then
Judgement in the Cause
government of President Allende. Pinochet was the Commander in
Chief of the Chilean Army until 1974 when he assumed the title of
Decision date 25 November 1998 President of the Republic. His presidency lasted until 1990 and his
Crown Prosecution Service role as Commander in Chief until 1998. His regime was known for its
systematic and widespread violations of human rights, with
allegations of murder, torture and hostage taking of political
Nicholas Evans
opponents.
Parties
Ronald Bartle
In 1998, during a visit to the United Kingdom for medical treatment,
Pinochet was arrested by the English authorities with a view to
Augusto Pinochet Ugarte
extraditing him to Spain where a Spanish judge had issued an
international arrest warrant. His extradition was, however, not to
Other names Pinochet I proceed smoothly as Pinochet applied to have the arrest warrant
quashed on the grounds that as a former Head of State he enjoyed
immunity from criminal proceedings. By a decision of 25 November
Categories Genocide 1998, the House of Lords in a 3:2 majority held that Pinochet was not
entitled to immunity from criminal proceedings and could therefore be
extradited.
genocide, hostage, immunity, jurisdiction,
Keywords
Murder, torture
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Opinions of the Lords of Appeal for Judgement Procedural history

Links
in the Cause
On 16 October 1998, a Spanish judge issued an international arrest
Belgium warrant for the Respondent, Augusto Pinochet Ugarte. In order to
Other countries involved respond to the need to execute the international arrest warrant as the
Respondent was at the time in England on a medical visit and due to
depart to Chile the following day, a Metropolitan Magistrate issued a
AL Ilagan-Malipol, AB, MD 5
PUBLIC INTERNATIONAL LAW
provisional arrest warranton the grounds that between 1973 and 1983
he murdered Spanish citizens in Chile.
This arrest warrant was deficient as the offence on which it was based
was not an extraditable offence. Consequently, on 18 October 1998,
the Spanish judge issued a second international arrest warrant for the
Respondent (see here in Spanish only).
That same day, a second provisional arrest warrant was issued by
another Metropolitan Magistrate on the grounds that between 1988
and 1992 the Respondent committed, inter alia, acts of torture and
hostage taking. On 23 October 1998, the Respondent was arrested in
England. On 22 and 26 October, the Respondent applied to quash the
first and second provisional arrest warrants respectively.
On 28 October 1998, the High Court granted the Respondent leave to
apply for a writ of certiorari. At the same time, the first arrest warrant
was quashed. The quashing of the second arrest warrant was stayed
pending an appeal to the House of Lords, the highest court in
England.
Hearings before the House of Lords were heard on 4, 5 and 9 to 12
November 1998.
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Related developments
Pinochet petitioned the House of Lords to set aside its decision of 25
November 1998 on the grounds of an appearance of bias between one
of the members of the Appellate Committee, Lord Hoffmann, and
Amnesty International, the human rights organisation who was
admitted as intervener in the appeal.
By a decision of 17 December 1998, the decision of 25 November 1998
was set aside (see also 'The Law Lords and the General', The Economist,
17 December 1998). Pinochet was therefore entitled to a new hearing
on his original immunity claim.
AL Ilagan-Malipol, AB, MD
Immunity from Jurisdiction
By a decision of 24 March 1999, the House of Lords held that Pinochet
does not enjoy immunity in respect of acts of torture committed after
the entry into force of the 1984 Torture Convention for the UK, that is
after 8 December 1988.
In response to questions about the Respondents allegedly fragile
state of health, the Home Secretary ruled in January 2000 that the
Respondent should not be extradited. Accordingly, by a decision of 2
March 2000, the Home Secretary ordered the release of the
Respondent who returned to Chile (see ' Pinochet Set Free', BBC News,
2 March 2000).
On 8 August 2000, the Supreme Court of Chile voted to strip Pinochet
of the immunity he enjoyed by virtue of his parliamentary position.
On 1 December 2000, Pinochet was indicted for the kidnapping of 75
political opponents (see 'Pinochet Charged with Kidnapping', BBC News,
1 December 2000
On 11 December 2000, the Court of Appeal of Santiago halted the
proceedings for medical reasons.
On 30 January 2001, the judge reissued the arrest warrant for
Pinochet but proceedings were again halted for medical reasons. In
July 2002, the Supreme Court of Chile dismissed Pinochets
indictment in the various cases against him for medical reasons (see
'Pinochet Arrest Ordered', BBC News, 30 January 2001).
Shortly after the decision, Pinochet resigned from the Senate but
continued to enjoy immunity from prosecution by virtue of a
constitutional amendment that was brought about in 2000.
On 8 September 2006, the Supreme Court of Chile stripped Pinochet
of his immunity (see 'Court Lifts Pinochet Immunity, BBC News, 8
September 2006). On 30 October 2006, Pinochet was charged with 36
counts of kidnapping, 23 counts of torture, and one of murder for the
torture and disappearance of opponents of his regime at Villa Grimaldi
(see Human Rights Watch, 'Chile: Pinochet Finally Faces Torture
Charges').
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PUBLIC INTERNATIONAL LAW
On 28 November 2006, Pinochet was placed under house arrest; he
died twelve days later, on 10 December 2006.
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Legally relevant facts
On 11 September 1973, General Augusto Pinochet Ugarte assumed
power in Chile after a military coup. He was appointed president of
the governing military junta on the same day.On 22 September 1973,
the new regime was recognised by the British government. By a
decree of 11 December 1974, General Pinochet assumed the title of
President of the Republic. Following democratic elections in December
1989, General Pinochet handed over power to President Aylwin on 11
March 1990 (p. 24).
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Core legal questions
Is the Respondent entitled to immunity either by virtue of State
immunity or Head of State immunity?
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Specific legal rules and provisions
Articles 4 and 6 of the Convention on the Prevention and Punishment
of the Crime of Genocide.
Articles 28, 29 and 31 of the Vienna Convention on Diplomatic
Relations.
International Convention against the Taking of Hostages.
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.
Section 134(1) of the 1988 UK Criminal Justice Act.
AL Ilagan-Malipol, AB, MD
Immunity from Jurisdiction
Sections 2(1)(b) and 8(1)(b) of the 1989 UK Extradition Act.
Sections 1, 14, 16(4), 20(1) and (5) of the UK State Immunity Act.
UK Diplomatic Privileges Act.
Uk Taking Hostages Act.
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Court's holding and analysis
It is necessary to distinguish between three different principles. First,
State immunity, as codified in Part I of 1978 State Immunity Act.
Second, personal immunity of Heads of State, codified in Part II of the
same Act. Third, the act of State doctrine, which remains a common
law matter (p. 43).
Although State immunity under Part I extends to Heads of State, it
does not apply in respect of criminal proceedings (p. 44).
The act of State doctrine is inapplicable in the present instance as
Parliament has shown that the conduct with which the Respondent is
charged is a justiciable matter before the English courts by enacting
section 134(1) of the 1988 Criminal Justice Act defining torture and
section 1(1) of the 1982 Taking Hostages Act (p. 45).
With respect to personal immunity, section 20 of the 1978 State
Immunity Act confers immunity from criminal proceedings upon
Heads of State. Following an interpretation of Article 39(2) of 1961
Vienna Convention on Diplomatic Relations, incorporated by
reference, this immunity extends to former Heads of State in respect
of official acts (p. 46). Official acts are those recognised by
international law as functions of a Head of State, irrespective of the
terms of individuals domestic constitution. Accordingly, acts of torture
and hostage taking are not functions of a Head of State and therefore
no immunity can attach to them in respect of criminal proceedings (p.
47).
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PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction
By a majority of 3:2 (Lords Hoffman, Nicholls and Steyn), their
Lordships allowed the appeal and held that the Respondent was not
entitled to immunity (pp. 49, 56).

AL Ilagan-Malipol, AB, MD 8
PUBLIC INTERNATIONAL LAW
Republic of Indonesia vs Vinzon This entry was pos
ted in Constitutional Law 1 Doctrine of Immunity from Suit and
tagged Political Law 1 on November 2, 2014 by Morrie26
Republic of Indonesia vs Vinzon doctrine of sovereign
immunity
REPUBLIC OF INDONESIA VS VINZON G.R. No. 154705 405
SCRA 126 June 26, 2003
THE REPUBLIC OF INDONESIA, HIS EXCELLENCY AMBASSADOR
SOERATMIN, and MINISTER COUNSELLOR AZHARI KASIM,
petitioners, vs. JAMES VINZON, doing business under the
name and style of VINZON TRADE AND SERVICES, respondent.
Facts: This is a petition for review of the decision made by Court of
Appeals in ruling that the Republic of Indonesia gave its consent to be
sued and voluntarily submitted itself to the laws and jurisdiction of
Philippine courts and that petitioners Ambassador Soeratmin and
Minister Counsellor Kasim waived their immunity from suit. Petitioner,
Republic of Indonesia, represented by its Counsellor, Siti Partinah,
entered into a Maintenance Agreement with respondent James
Vinzon, sole proprietor of Vinzon Trade and Services. The equipment
covered by the Maintenance Agreement are air conditioning units and
was to take effect in a period of four years. When Indonesian Minister
Counsellor Kasim assumed the position of Chief of Administration, he
allegedly found respondents work and services unsatisfactory and not
in compliance with the standards set in the Maintenance Agreement.
Hence, the Indonesian Embassy terminated the agreement. The
respondent claims that the aforesaid termination was arbitrary and
unlawful. Hence, he filed a complaint against the petitioners which
opposed by invoking immunity from suit.
Issues:
Whether or not the Republic of Indonesia can invoke the doctrine of
sovereign immunity from suit.
Whether or not petitioners Ambassador Soeratmin and Minister
Counsellor Kasim may be sued herein in their private capacities.
Discussions: The rule that a State may not be sued without its
AL Ilagan-Malipol, AB, MD
Immunity from Jurisdiction
consent is a necessary consequence of the principles of independence
and equality of States. The practical justification for the doctrine of
sovereign immunity is that there can be no legal right against the
authority that makes the law on which the right depends. In the case
of foreign States, the rule is derived from the principle of the
sovereign equality of States, as expressed in the maxim par in parem
non habet imperium. All states are sovereign equals and cannot
assert jurisdiction over one another.] A contrary attitude would
unduly vex the peace of nations. The rules of International Law,
however, are not unbending or immune to change. The increasing
need of sovereign States to enter into purely commercial activities
remotely connected with the discharge of their governmental
functions brought about a new concept of sovereign immunity. This
concept, the restrictive theory, holds that the immunity of the
sovereign is recognized only with regard to public acts or acts jure
imperii (public acts of the government of a state), but not with regard
to private acts or acts jure gestionis (the commercial activities of a
state.)
Rulings: The Supreme Court ruled that the republic of Indonesia
cannot be deemed to have waived its immunity to suit. The mere
entering into a contract by a foreign state with a private party cannot
be construed as the ultimate test of whether or not it is an act juri
imperii or juri gestionis. Such act is only the start of the inquiry.
There is no dispute that the establishment of a diplomatic mission is
an act juri imperii. The state may enter into contracts with private
entities to maintain the premises, furnishings and equipment of the
embassy.
The Republic of Indonesia is acting in pursuit of a sovereign activity
when it entered into a contract with the respondent. The maintenance
agreement was entered into by the Republic of Indonesia in the
discharge of its governmental functions. It cannot be deemed to have
waived its immunity from suit. Article 31 of the Vienna Convention on
Diplomatic Relations provides that a diplomatic agent shall enjoy
immunity from the criminal jurisidiction of the receiving State. He
shall also enjoy immunity from its civil and administrative jurisdiction,
except in the case of: a real action relating to private immovable
property situated in the territory of the receiving State, unless he
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PUBLIC INTERNATIONAL LAW Immunity from Jurisdiction
holds it on behalf of the sending State for the purposes of the
mission; an action relating to succession in which the diplomatic
agent is involved as executor, administrator, heir or legatee as a
private person and not on behalf of the sending State; an action
relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions.
The Solicitor General believes that said act may fall under
subparagraph (c) thereof, but said provision clearly applies only to a
situation where the diplomatic agent engages in any professional or
commercial activity outside official functions, which is not the case
herein.

AL Ilagan-Malipol, AB, MD 10