IMMUNITY FROM JURISDICTION

The Pinochet Case

On Friday 16 October 1998, General Augusto Pinochet Ugarte, Chilean senator and ex-president, was arrested in London at a private clinic where he was recuperating from surgery. The provisional warrant for his arrest, signed by metropolitan magistrate Nicholas Evans on behalf of Spanish judge Baltasar Garzon, requested his extradition to Spain under Section 8(l)b of the 1989 Extradition Act, alleging the murder of Spanish nationals in Chile between II September 1973 and 31 December 1983. A second warrant issued on 22 October accused Pinochet of torture, hostage-taking and conspiracy to commit such crimes at various times between January 1976 and December 1992. His arrest marked the start of a remarkable case which was fought out for 17 months in the UK courts and which raised myriad issues, both legal and political, of international significance. The case involved several hearings in the High Court and three lords' rulings. The last of these, in deciding that Pinochet could be extradited to Spain to answer charges for alleged crimes committed after 8 December 1988, set a precedent of critical importance for the future development of international human rights law. In the event, however, Home Secretary Jack Straw chose to exercise his substantial powers of discretion in applying extradition law and freed Pinochet on the grounds that he was unfit to stand trial. On 3 March 2000 Pinochet left the rented house in Surrey where he had remained on bail and under police guard since December 1998 and was flown back to Santiago in a Chilean military jet. Hopes expressed by his family and supporters that the matter would end there were frustrated, however. Criminal charges filed against him in Chile before, during and after his detention in the UK (numbering over 170 at the time of writing) are being investigated. On 23 May 2000 the Santiago Court of Appeal voted in favour of a petition to strip Pinochet of the immunity from criminal prosecution afforded him by his self-appointed status as senator for life, and on 8 August this decision was upheld by the Chilean Supreme Court.

Worldwide interest in the progress of the Pinochet case was intense and news coverage extensive. It was immediately clear that the case had enormous potential significance for the development and practice of international law. The House of Lords' rulings of November 1998 and March 1999 were greeted by human rights campaigners as a groundbreaking acknowledgment of the principle of universal jurisdiction for crimes against humanity, and already the 'Pinochet effect' has led to the issue of a number of international arrest warrants for other former heads of state or suspected war criminals, including the former dictator of Chad, Hissene Habre, and Rwandan war crimes suspect, Tharcisse Muvunyi. The fallout from the Pinochet case has greatly increased pressure for the establishment of an international criminal court to investigate and hear such cases, albeit in the context of continuing uncertainty about precisely what the jurisdictional remit of such a court might be. The involvement in the case of judicial actors from a number of different countries, and the very active role of the Spanish judiciary in particular, has heightened debate over a phenomenon known as the judicialisation' of politics, with national as well as international manifestations.

In addition to its potentially far-reaching implications for the theory and practice of international law the case raises issues of critical significance for a number of Latin American countries apart from Chile. While the proceedings against Pinochet in the UK courts since late 1998 attracted worldwide media interest, it is much less well known (at least in the English-speaking world) that these proceedings have been only one part of a much broader investigative process. Begun in Spain in 1996, this first concerned the death, torture and disappearance of Spanish and non-Spanish nationals under the 1970s military dictatorships of Argentina and Chile, but during the course of the Pinochet affair it has expanded to encompass allegations and charges against former military rulers and personnel in Bolivia, Paraguay and Guatemala. Investigations have been assisted by the increased availability of documentary evidence concerning human rights abuses in the Southern Cone since the discovery of the so-called Terror Archive' in Asuncion, Paraguay, in 1992, as well as by new revelations concerning the United States' involvement as the CIA opens its files (this a direct result of the Spanish investigation). Widespread military impunity, largely accepted as a condition of the re-establishment of civilian rule and formally democratic institutions in many Latin American countries in recent years, is thus being challenged in a new context, and this in turn must renew debate about the nature of, and requirements for, the consolidation and legitimisa- tion of recendy-established democratic regimes.

Scholarly treatments of the issues at play in the Pinochet affair are only beginning to emerge, and given the significance of the issues there is clearly a need for sustained and rigorous research. The present paper is in- tended to provide a synthesis of events so far and some tentative pointers for further work. In form it is divided into two parts. The first is an essay which attempts both to explain the origins and progress of the Pinochet case and then to offer an initial, and brief, review of some of the issues raised and their potential implications. The second part is in the form of a detailed chronology of the case since Pinochet's arrest, compiled primarily from press sources, but also drawing on scholarly research. This is intended to provide both the factual detail and chronological narrative absent from the essay.

Part One: The case Origins and context in SpainThe Spanish criminal process against Pinochet was first set in motion on 4 July 1996, more than two years before his arrest, when charges of genocideand terrorism were filed in a Valencia court against him and three other members of the military junta which ruled Chile after the overthrow of socialist President Salvador Allende in 1973.1 The accusation was presented by Miguel Miravet Hombrados, head prosecutor of the Superior Court of Valencia and president of the Progressive Union of Prosecutors of Spain (Union Progresista de Fiscales; UPF). It was one result of a collaboration between human rights activists, lawyers and victims of Chilean and Argentine military repression which had begun some months previously and which took as its example earlier attempts by Italian prosecutors to bring Argentine repressors to justice abroad.2 Charges of genocide and terrorism had already been filed in March 1996 by the UPF against a number of Argentine military leaders and officers.3 On 10 June 1996 Judge Baltasar Garz6n Real of the Fifth Central Instructing Court of Madrid's Audiencia Nacional (National Court) took on the Argentine case, and on 28 June he ruled that the court had jurisdiction to investigate the charges and prosecute those responsible. The following month Judge Manuel Garcia Castellon, of the Sixth Central Instructing Court, accepted the Chilean case. The two cases thus began separately, although they were later to be linked together.The proceedings were facilitated by some particular features of the post-Franco legal system. After the UPF's actions had begun the criminal proceedings, lawyers for the victims involved took over the private prosecutions using a device called 'action popular', which allows any Spanish citizen, whether an injured party or not, to file charges in the public interest without cost and without (during the investigative stage) the support of the public prosecutor.4 Chilean victims were further assisted by a 1958 Spanish-Chilean convention on dual citizenship that allows any Chilean national to file charges in a Spanish court with the same rights as a Spanish national. The prosecutions were also facilitated by the special character of the Audiencia Nacional, a Madrid court set up in 1977 and vested under Spanish law with jurisdiction over a number of international crimes.5 It is these provisions within Spanish law which have allowed the lawyers and others involved to pursue the cases so determinedly despite the opposition (though this was not manifested immediately) of the Spanish public prosecutor.

a) Rationale for Spanish jurisdictionAn essential issue in the investigations has been whether Spain has jurisdiction over crimes committed abroad by foreign military personnel against non-Spanish as well as Spanish nationals. Originally the charges in both Argentine and Chilean complaints related only to victims of Spanish nationality, but these were subsequently expanded to include a much larger number of non-Spanish citizens so that the issue of universal jurisdiction became central. During the course of the proceedings Garzon claimed such jurisdiction in a series of rulings, but it was not until after Pinochet's arrest upon the judge's orders that the arguments were fully tested in Spain's Audiencia Nacional, in response to a challenge launched by the public prosecutor on 22 October 1998. Spanish jurisdiction was upheld by the Audiencia Nacional in two unappealable decisions, issued on 4 and 5 November 1998, relating to the Argentine and Chilean prosecutions respectively. The basis on which the Audiencia Nacional upheld Spanish jurisdiction was slightly different from that upon which Garzon had originally claimed it.6 However, key to both was the finding that Spanish domestic law grants its courts universal jurisdiction over offences 'committed by Spanish or foreign persons outside national territory and capable of being proven under Spanish law', including, amongst others, genocide, terrorism and 'any other [crime] which under international treaties or conventions, should be pursued in Spain'.7

Garzon and the Audiencia Nacional also had to consider whether the crimes alleged against Latin American military personnel fell within the definition of genocide, terrorism and torture as provided by Spanish law. Similar issues were later to be rehearsed repeatedly in the UK court proceedings, with Pinochet's lawyers contesting Garzon's definition of these crimes in the context of Spanish, UK and international law. The Spanish Audiencia National's initial reasoning, however, was clear and straightforward. Since this reasoning will continue to have profound implications as Spain continues to play an active role in investigations and prosecutions of Latin American military personnel, it is worth summarizing here.

In respect of the crime of genocide, the public prosecutor argued that the repression which occurred in Argentina and Chile was politically motivated and thus fell outside Spanish law's definition of genocide, which could only be committed against a national, ethnic, racial or religious group. The Audiencia Nacional, however, chose to take a broad interpretation of the concept of 'national group' as 'simply a national human group, a differentiated human group, characterized by something, integrated into a larger collectivity'. It therefore found that since repression was targeted at a group composed of citizens 'who did not correspond to the type pre-judged by the promoters of the repression as necessary for the new order ... citizens who opposed the understanding of the national identity, of the national values, sustained by the new governors',8 the acts alleged did constitute genocide. In respect of terrorism, the major objection mounted by the prosecutor was that the crimes alleged in connection with the charge (kidnapping, injuring or murder of people) had not been committed by people 'acting in service or collaborating with armed bands, organizations or groups',9 as Spanish law requires, since the state and its armed forces cannot be considered as such. Garzon had disposed of this objection in earlier rulings by pointing out that it was not the state itself, but individuals that were being charged with personal responsibility. For its part, the Audiencia Nacional found that as the crimes alleged were clandestinely committed by persons acting in a way characteristic of armed bands and independently of any institutional functions held by them, the charge of terrorism was applicable.10 The crime of torture, though included by Garzon in his charges, was subsumed within the crimes of genocide and terrorism and thus did not form a major basis of his claim for jurisdiction, although it was used by Garcia Castellon as one of the grounds for jurisdiction in the Chilean case. The issue is complicated because the crime was only incorporated into Spanish law in 1978, and the Torture Convention was not ratified by Spain until October 1987. However, neither Garcia Castellon nor the Audiencia Nacional sought to establish the effective date from which Spanish jurisdiction over torture could be claimed, and the Audiencia Nacional, in its ruling, simply stated that as torture formed part of the larger crimes of genocide and terrorism, over which jurisdiction had already been established, there was no need to consider it in detail.

The rulings of the Audiencia Nacional also disposed of the prosecutors' objection that the offences alleged could not be tried in Spain because they were already being adjudicated by other courts or had been pardoned. Key here was the court's rejection of domestic amnesties in Chile and Argentina as a bar to prosecution in Spain, made on the grounds that those amnesties violated international human rights treaties and norms, and 'de-penalized' the conduct complained of." In respect of Chile, the court noted that in the cases that the prosecutor claimed had already been dealt with by the Chilean courts, the 1978 amnesty law had been applied, and therefore these cases could not be considered to have been adjudicated in Chile.

b) Organization and scope of the investigationsSince the initiation of the cases in 1996 an enormous body of evidence and testimony has been amassed and a large number of individuals and organisations have been involved. The most important of the latter are the Salvador Allende Foundation, directed by Joan Garces, a Madrid lawyer and former Allende aide, which coordinates the Chilean action, and the Human Rights Secretariat of the Spanish left wing political party Izquierda Unida (IU United Left), coordinator of the Argentine litigation. Additionally a number of human rights NGOs in various countries have provided assistance, including inter alia the Spanish Section of Amnesty International (AI), Servicio de Paz y Justicia (SERPAJ Peace and Justice Service) which operates in both Chile and Argentina, and the Chilean Corporacion de Promotion y Defensa de Derechos del Pueblo (CODEPU Corporation for the Promotion and Defence of People's Rights). The very high media profile that the Spanish litigation has enjoyed in Latin America and Spain helped to publicize and broaden the investigations and encouraged witnesses to come forward.12 Hundreds of people, including survivors of the repression, relatives of victims, politicians and ex-military have testified before Garzon's and Garcia Castellon's courts, and a very large volume of documentation, some of it previously filed with Argentine courts, has been transferred to Garzon's. In scope and scale, the Spanish investigation is the most comprehensive to have taken place to date into the human rights abuses of the Southern Cone military regimes.There is no room here to detail the evidence on which the charges against Pinochet and others are based, but it is perhaps useful to give a brief indication of its nature and extent. In both the Argentine and Chilean prosecutions, extensive use was made by the Spanish lawyers of the findings of those two countries' truth commissions. In Chile, the Comision Nacional de Verdad y Reconciliation (National Commission for Truth and Reconciliation) and its successor the Corporacion Nacional de Reparation y Reconciliation (National Commission for Reparation and Reconciliation) had documented the deaths of 3,197 individuals during the Pinochet dictatorship.13 In Argentina the report of the Comision Na- cional sobre la Desaparicion de Personas (National Commission on the Disappearance of Persons CONADEP), entided Nunca Mas (Never Again), investigated and confirmed the disappearance of almost 9,000 people during the period of military rule.14 Many of these cases were taken up or amplified by the Spanish investigations. The Spanish judges also heard a large volume of new or additional testimony. Particularly sig- nificant were the statements given by ex-military personnel themselves, such as that of retired Argentine Navy Captain Adolfo Scilingo, who gave evidence before Garzon in late 1997,15 of retired Chilean General Joaquin Lagos Osorio, who offered earlier testimony given in Chile to the Spanish inquiry,16 and of retired Chilean General Sergio Poblete Garces, who came forward to testify in the Spanish proceedings in early 1998.17 The defec- tion of senior military personnel from the conspiracy of silence sur- rounding human rights crimes, and their incrimination of superiors, including Pinochet, made an important contribution to the evidence, cor- roborating that already offered by victims and other witnesses.

Particularly critical to the case against Pinochet was evidence amassed by Garzon in relation to a number of murders committed in the 1970s outside Chile but believed to have been organised by the Chilean Direc- tion de Inteligencia Nacional (DINA, Directorate of National Intelli- gence) in its capacity as coordinator of 'Operation Condor*. Although Garzon was originally investigating the Argentine case, his interest in Operation Condor had the effect of broadening his remit considerably, and was the reason why it was he, rather than Garcia Castellon, who is- sued the October 1998 arrest warrants for the Chilean ex-dictator. Op- eration Condor was an intelligence-sharing operation organised by the DINA as a way for the military regimes of Argentina, Chile, Uruguay, Paraguay and, to a lesser extent, Brazil, Bolivia and Peru, to collect and xchange information on suspected subversives or leftists. It also in- volved cooperation and mutual aid in the execution of repression fu- gitives from one country could be captured in another, and either handed back or tortured, killed or 'disappeared' where they were, while special task forces could be despatched to countries party to the agree- ment to eliminate opposition politicians or suspected subversives. The discovery in Asuncion, Paraguay, in 1992 of the Terror Archive' some two tonnes of documents relating to the detention and treatment of political prisoners and including intelligence memoranda and reports on multi-lateral 'security conferences' has greatly assisted attempts to prove the existence of Operation Condor and investigate its crimes.18 Garzon's investigation of Operation Condor led him to visit the archive in early 1998 and also eventually to take over the investigation of the Chilean case from Garcia Castellon on 20 October 1998.

One atrocity in particular was vital in turning up evidence linking Pi- nochet directly to Operation Condor. This was the murder of former Chilean ambassador Orlando Letelier and his US associate Ronni Moffitt in a 1976 car bombing in Washington. The case had already been tried in Chile, a special exception to the 1978 amnesty law having been granted under US pressure, and had resulted in the imprisonment of Manuel Contreras, former head of the DINA, for his part in ordering the assassi- nations. In 1997, seeking his release from prison, Contreras testified to the Chilean Supreme Court that he had only retained his position as DINA chief by direct delegation from Pinochet himself and furthermore that he had always taken orders directly from Pinochet, who had full knowledge of the DINA's operations. A summary of this testimony was in- cluded by Garzon in his criminal indictment of Pinochet and forms a cru- cial plank of the evidence implicating him personally in the crimes of which he is accused. Contreras's assertions were also corroborated by tes- timony given before Garzon by Lawrence Barcella, former federal prose- cutor of the District of Columbia. Increasingly, testimony and documentation from the United States has formed a valuable evidentiary element in the proceedings against Pinochet and others, and its increased availability is itself a result of the Spanish investigations. Garcia Castellon travelled to the United States to hear evidence and the Spanish judges also submitted requests to the US government which have resulted in thedeclassification of a large number of CIA and State Department docu- ments. Some 7,500 documents have been released so far, confirming much of what was already suspected about the extent of CIA and US in- volvement in the preparation and execution of the coup which ousted Al- lende, in assisting the DINA in setting up interrogation and torture centres during the dictatorship and in the planning and execution of other crimes, including some associated with Operation Condor.19 The above gives only a very selective account of the scope and range of the Spanish investigations, included here in order to place in a broader context the specific allegations upon the basis of which Pinochet was arrested and charged. It must be emphasised that the evidence col- lected during the course of the Spanish proceedings provides ample grounds for charges to be made not only against Pinochet but against hundreds of other people (mainly, but not exclusively, ex-military per- sonnel) involved in human rights violations committed on the orders of the military regimes of the Southern Cone. Some of the wider regionalimplications of the investigations will be discussed later in this paper.

c) The arrest warrants against PinochetIt will be evident from the foregoing that the case outlined in the Spanish order for Pinochet's arrest in London had been painstakingly compiled and was not opportunistically or hastily put together. However, Pinochet's visit to London provided an opportunity to act which had to be seized quickly. Izquierda Unida, coordinator of the popular action litigation in the Argen- tine case, upon learning of Pinochet's presence in London, requested that Garzon's court submit a request for his interrogation in relation to his role in Operation Condor and in connection with the kidnapping and disap- pearance of named individuals. Simultaneously, the Agrupacion de Famili- ares de Detenidos y Desaparecidos de Chile (Association of Families of the Detained and Disappeared of Chile) asked that Pinochet and named associ- ates be charged with genocide, terrorism and torture. Garzon accepted the requests, and on 16 October 1998 Pinochet was arrested on a provisional warrant signed by a London magistrate on behalf of Garzon. This initial warrant seems to have been compiled in haste, possibly to secure Pinochet's detention while fuller charges could be prepared, and alleged the murders only of Spanish nationals in Chile between 1973 and 1983. It was later ruled bad in law by the UK High Court, on the grounds that the murder of Spanish nationals abroad was not an Extradition crime' under UK law. A second and much fuller warrant issued by Garzon on 18 October expanded the charges to encompass allegations of genocide, terrorism and torture of 94 people, including individuals of Argentine, US and British nationality. All the 94 people named in the second warrant had died or disappeared as a result of the activities of Operation Condor or the DINA. In support of his order Garzon cited a number of international legal norms, including, inter alia: the 1943 Moscow Declaration concerning crimes against humanity; the 1945 Statute of the Nuremberg Tribunal; the 1948 UN Convention Against Genocide; the 1984 UN Torture Convention; and the 1992 Declaration of the UN General Assembly on the forced disappearance of persons.

The case in the UKThe Spanish investigations into Chilean and Argentine military repres- sion had been reported in the Chilean press long before Pinochet trav- elled to London in September 1998. Nevertheless, neither Pinochet nor the Chilean government appear seriously to have countenanced the pos- sibility that he could be arrested during his trip.20 Travelling on a diplo- matic passport, he was accorded a diplomatic welcome upon his arrival at Heathrow, and though forced by illness to curtail somewhat his usual London activities, he still found time to visit his favourite museums and shops and to take tea with Margaret Thatcher. On 25 September he was photographed for The New Yorker at the Park Lane hotel where he was staying. Some two weeks later he underwent surgery at a private clinic, and it was while he was recuperating that he was placed under arrest.

Responses to his arrest were dramatic. Pro- and anti-Pinochet dem- onstrators made their feelings known in both London and Santiago, human rights groups worldwide were vociferous in calling for his trial, politicians of the British and Chilean right equally so in demanding his swift release. France and Switzerland followed up the Spanish action by issuing extradition warrants of their own. The Chilean centre-left Con- certacion government under Christian Democrat President Eduardo Frei immediately requested that Pinochet be freed, claiming that his passport afforded him diplomatic immunity.21 This argument was quickly disposed of by the Foreign Office, which pointed out that since Pinochet was neither a serving head of state nor an accredited diplomat he had no automatic immunity from arrest. With the Labour govern- ment insisting that the matter was purely judicial, not political, it became clear that there would be no quick political solution and that the issues would have to be tested in court. Pinochet engaged lawyers from the London firm Kingsley Napley to act on his behalf and was moved to the Grovelands Priory Hospital in North London where he was granted bail while he awaited the first hearing in the case. He could hardly have ex- pected at this point that his detention would last 17 months.

a) Progress of the case: a summary of eventsThe tortuous progress of the case through the UK courts demonstrated the complex interplay in English extradition law between judicial and executive power. It falls to the Home Secretary to take the initial decision to begin ex- tradition proceedings in the courts and, at the end of the court proceedings, to take the final decision on whether or not to extradite. In taking these deci- sions the Home Secretary may consider grounds for compassionate action, and at both stages his decision may be challenged by way ofjudicial review. Legal rulings at every stage are, of course, appealable, and the Pinochet case went to the highest court, the Appellate Committee of the House of Lords, three times. However, the eventual decision to free Pinochet resulted from the exercise of Jack Straw's discretionary powers and was clearly influenced by political, as well as legal, considerations.

The second arrest warrant issued by London Magistrate Bartle on 22 October alleged torture, hostage-taking and conspiracy to commit such crimes. The main issue considered by the High Court in making the first ruling on the case, on 28 October 1998, was whether Pinochet was entitled to claim sovereign immunity from prosecution or arrest for the crimes alleged. After a two-day hearing the court ruled that Pinochet had immunity from prosecution and arrest on the grounds that the Spanish charges related to acts performed in the exercise of his function as head of state. Lord Bing- ham's judgement dismissed the arguments of the Crown Prosecution Service (CPS, acting for Spain) that such heinous crimes could not be considered a proper function of a head of state, going so far as to assert that there was nothing in international law which could invalidate the principle that 'one sovereign state will not impugn another in relation to its sovereign acts'. The 16 October warrant was quashed, but the order to quash the second warrant was stayed pending appeal to the law lords, in recognition of the importance of the case. During the time which elapsed between this and the subsequent hearing, Garzon submitted his formal extradition order, which in over 300 pages substantiated his allegations of genocide, terrorism and torture and at- tributed to Pinochet responsibility for an international criminal organisation which caused the deaths or disappearance of over 3,000 individuals.The five law lords (Steyn, Lloyd, Slynn, Nicholls and Hoffman) who heard the appeal between 4 and 12 November 1998 took a different view on the issue of immunity than had the High Court. On 25 Novem- ber, Pinochet's 83rd birthday, they ruled by a 3:2 majority that he was not immune from prosecution because international law does not recog- nise immunity for crimes such as torture and genocide, whether com- mitted as head of state or otherwise.22 However, the lords' ruling was challenged by Pinochet's lawyers on the grounds that one of the lords who had heard the appeal, Lord Hoffman, had links with Amnesty International, which had intervened in the appeal. A new panel of five law lords was convened to hear the petition from Pinochet's lawyers, which, in an unprecedented move, unanimously set aside the original lords ruling. The lords judged that Hoffman's position as an unpaid director of Amnesty International Charity Ltd was an automatic disqualification to his sitting on the appeal panel.The overturning of the 25 November lords'judgement resulted in the ap- peal having to be reheard, this time before a larger panel of seven law lords. Chile and human rights organisations were allowed to participate in the 12-day hearing in January 1999. In a complex ruling delivered on 24 March, a six to one majority allowed the appeal, judging that Pinochet could be extradited to Spain, but only in relation to crimes of torture and conspiracy to torture com- mitted after 8 December 1988, the date by which all three countries concerned, Spain, Chile and the UK, had ratified the Convention Against Torture in their domestic law. This judgement reduced the number of extraditable offences from 31 to three one of torture and two of conspiracy to torture. Neverthe- less, Jack Straw issued a second authority to proceed with extradition, and over the summer a preliminary hearing set 27 September as the date for the start of extradition committal hearings.In this space of time Judge Garzon added some 33 further charges to his original extradition request, all concerning offences committed after 8 December 1988. When the formal committal hearing began lawyers for Pinochet argued that these should not be considered, however Ronald Bartle, the Bow Street magistrate in charge of the committal proceedings, judged the extra charges admissible and in his ruling of 8 October com- mitted Pinochet to await Straw's final decision on extradition. The fol- lowing week the Chilean government issued a formal request, accompanied by medical reports, to the British authorities for Pinochet's release on humanitarian grounds. In fact, the Chileans had decided some time before that their best hope of securing Pinochet's release was on compassionate grounds. During the summer of 1999 a series of private meetings took place between the Chilean, Spanish and British foreign ministers, Juan Gabriel Valdes, Abel Matutes and Robin Cook, respec- tively. Although the Spanish and UK governments continued to insist that the judicial process would be allowed to run its course, it is difficult to re- sist the conclusion that these diplomatic contacts had a considerable im- pact on the way the case was handled subsequently, setting the scene for the eventual freeing of Pinochet on compassionate grounds.

A few weeks after Valdes had met both Matutes and Cook (separately) during a summit in Rio de Janeiro in late June 1999, Chile proposed to Spain that the case be resolved by some form of bilateral arbitration and at the same time sent to the UK government medical reports which claimed that Pino- chet's health was declining. Garzon and the Spanish left reacted angrily to the agreement by Jose Maria Aznar's centre-right Partido Popular government to consider the arbitration route and it was ultimately rejected as unviable.However, this was not the first or the last time that the Spanish government, despite its public protestations of neutrality in the affair, sought to frustrate Garzon's investigation.23 A few days before the 8 October ruling by magistrate Bartle, two Spanish diplomats visited an official of the British CPS (which acted for Spain in the legal proceedings). They told the CPS that Spain had not yet decided whether or not to mount an appeal should the decision go against Pinochet, thus appearing to countermand the instruction to appeal already given by Garzon. A request for clarification from the CPS brought the affair out into the open and resulted in the Spanish government issuing an unconvincing denial of any intention to sabotage thejudicial process.

Almost as soon as Bartle's ruling had been delivered, Valdes an- nounced to the Chilean press that henceforth he would concentrate on pressing the humanitarian case for Pinochet's release (though informally such pressure had been mounting for some months), and swiftly followed this up with his formal request of 14 October. No doubt hoping for a fa- vourable response, Pinochet's lawyers delayed their decision to appeal against Bartle's ruling as long as possible, while for its part the Spanish government let it be known that it would not seek to appeal should Straw eventually decide to release Pinochet on compassionate grounds (thus re- igniting a row over judicial versus political responsibilities in Spain). Straw responded to the Chilean petition by requesting on 5 November that Pi- nochet undergo independent medical tests to determine whether his health was good enough to allow him to stand trial, offering the ex- dictator (it emerged later) a promise that the findings of the examinations would remain confidential. The tests were carried out on 5 January by a team of five doctors appointed by Straw, and six days later, a few weeks before the second round of Chilean presidential elections, Straw issued a statement saying that he was 'minded' to halt the extradition proceedings on the grounds that Pinochet was unfit to stand trial following deteriora- tion in his health. He did, however, grant interested parties (principally human rights organisations and the Spanish government) seven days in which to make representations before taking a final decision.Straw's decision to exercise discretionary power narrowed the options for those who wished to see the ex-dictator extradited. Under UK law any final decision to refuse extradition is subject to challenge by way ofjudicial review, which requires the appellant to demonstrate that the Home Secretary has acted improperly or unfairly. Representations from human rights organisa- tions and Garzon (the latter reluctantly passed on by the Spanish govern- ment) therefore argued that by refusing to disclose the medical report to interested parties Straw was flouting natural justice and demanded that fresh medical tests be carried out. Garzon also argued that it ought to have been

THE PINOCHET CASE25 November 1998 House of Lords

FACTS

On 11 September 1973 General Augusto Pinochet Ugarte assumed power in Chile after a military coup. He was appointed president of the Governing Junta the same day. On 22 September the new regime was recognised by Her Majesty's Government. By a decree dated 11 December 1974 General Pinochet assumed the title of President of the Republic. In 1980 a new constitution came into force in Chile, approved by a national referendum. It provided for executive power in Chile to be exercised by the President of the Republic as head of state. Democratic elections were held in December 1989. As a result, General Pinochet handed over power to President Aylwin on 11 March 1990.

On 19 April 1978, while General Pinochet was still head of state, the senate passed a decree granting an amnesty to all persons involved in criminal acts (with certain exceptions) between 11 September 1973 and 10 March 1978. The purpose of the amnesty was stated to be for the "general tranquillity, peace and order" of the nation. After General Pinochet fell from power, the new democratic government appointed a Commission for Truth and Reconciliation, thus foreshadowing the appointment of a similar commission in South Africa. The Commission consisted of eight civilians of varying political viewpoints under the chairmanship of Don Raul Rettig. Their terms of reference were to investigate all violations of human rights between 1973 and 1990, and to make recommendations. The Commission reported on 9 February 1991.

In 1994 Senator Pinochet came to the United Kingdom on a special diplomatic mission: (he had previously been appointed senator for life). He came again in 1995 and 1997. According to the evidence of Professor Walters, a former foreign minister and ambassador to the United Kingdom, Senator Pinochet was accorded normal diplomatic courtesies. The Foreign Office was informed in advance of his visit to London in September 1998, where at the age of 82 he has undergone an operation at the London Clinic.

At 11.25 p.m. on 16 October he was arrested while still at the London Clinic pursuant to a provisional warrant issued under section 8(1)(b) of the Extradition Act 1989. On 17 October the Chilean Government protested. The protest was renewed on 23 October. The purpose of the protest was to claim immunity from suit on behalf of Senator Pinochet both as a visiting diplomat and as a former head of state, and to request his immediate release. After all the events, Judge Garzon in Madrid issued a second international warrant of arrest dated 18 October, alleging crimes of genocide and terrorism. This in turn led to a second provisional warrant of arrest in England issued on this occasion by Mr. Ronald Bartle. Senator Pinochet was re-arrested in pursuance of the second warrant on 23 October.

In the Divisional Court the Lord Chief Justice summarized the position saying that the thrust of the warrant "makes it plain that the applicant is charged not with personally torturing or murdering victims or ordering their disappearance, but with using the power of the State to that end". Relying on the information contained in the request for extradition, it is necessary to expand the cryptic account of the facts in the warrant. The request alleges a systematic campaign of repression against various groups in Chile after the military coup on 11 September 1973. The case is that of the order of 4,000 individuals that were killed or simply disappeared. Such killings and disappearances mostly took place in Chile but some also took place in various countries abroad. Such acts were committed during the period from 11 September 1973 until 1990. The climax of the repression was reached in 1974 and 1975. The principal instrumentality of the oppression was the Direction de Inteligencia Nacional (DINA), the secret police. The subsequent re-naming of this organization is immaterial. The case is that agents of DINA, who were specially trained in torture techniques, tortured victims on a vast scale in secret torture chambers in Santiago and elsewhere in Chile. The torturers were invariably dressed in civilian clothes. Hooded doctors were present during torture sessions. The case is not one of interrogators acting in excess of zeal. The case goes much further. The request explains:

"The most usual method was "the grill" consisting of a metal table on which the victim was laid naked and his extremities tied and electrical shocks were applied to the lips, genitals, wounds or metal prosthesis; also two persons, relatives or friends, were placed in two metal drawers one on top of the other so that when the one above was tortured the psychological impact was felt by the other; on other occasions the victim was suspended from a bar by the wrists and/or the knees, and over a prolonged period while held in this situation electric current was applied to him, cutting wounds were inflicted or he was beaten; or the "dry submarine" method was applied, i.e. placing a bag on the head until close to suffocation, also drugs were used and boiling water was thrown on various detainees to punish them as a foretaste for the death which they would later suffer."

As the Divisional Court observed it is not alleged that General Pinochet personally committed any of these acts by his own hand. The case is, however, that agents of DINA committed the acts of torture and that DINA was directly answerable to General Pinochet rather than to the military junta. And the case is that DINA undertook and arranged the killings, disappearances and torturing of victims on the orders of General Pinochet.

ISSUE#1

Whether Senator Pinochet may be entitled to immunity as a Former Head of State.

HELD

The appellants stated in para. 26 of their written case: "No international agreement specifically provides for the immunities of a former head of state. However, under customary international law, it is accepted that a state is entitled to expect that its former head of state will not be subjected to the jurisdiction of the courts of another state for certain categories of acts performed while he was head of state unless immunity is waived by the current government of the state of which he was once the head. The immunity is accorded for the benefit not of the former head of state himself but for the state of which he was once the head and any international law obligations are owed to that state and not to the individual."

The important point to notice in this formulation of the immunity principle is that the rationale is the same for former heads of state as it is for current heads of state. In each case the obligation in international law is owed to the state, and not to the individual, though in the case of a current head of state he will have a concurrent immunity ratione personae. This rationale explains why it is the state, and the state alone, which can waive the immunity. Where, therefore, a state is seeking the extradition of its own former head of state, as has happened in a number of cases, the immunity is waived ex hypothesi. It cannot be asserted by the former head of state. But here the situation is the reverse. Chile is not waiving its immunity in respect of the acts of Senator Pinochet as former head of state. It is asserting that immunity in the strongest possible terms, both in respect of the Spanish international warrant, and also in respect of the extradition proceedings in the United Kingdom.

Decided cases support the same approach. In Hatch v. Baez (1876) 7 Hun. 596 the plaintiff complained of an injury which he sustained at the hands of the defendant when president of the Dominican Republic. After the defendant had ceased to be president, he was arrested in New York at the suit of the plaintiff. There was a full argument before what would now, I think, be called the Second Circuit Court of Appeals, with extensive citation of authority including Duke of Brunswick v. King of Hanover. The court ruled:

"The wrongs and injuries of which the plaintiff complains were inflicted upon him by the Government of St. Domingo, while he was residing in that country, and was in all respects subject to its laws. They consist of acts done by the defendant in his official capacity of president of that republic."

"The fact that the defendant has ceased to be president of St. Domingo does not destroy his immunity. That springs from the capacity in which the acts were done, and protects the individual who did them, because they emanated from a foreign and friendly government."

In Underhill v. Hernandez (1897) 168 U.S. 250 the plaintiff was an American citizen resident in Venezuela. The defendant was a general in command of revolutionary forces, which afterwards prevailed. The plaintiffs brought proceedings against the defendant in New York, alleging wrongful imprisonment during the revolution. In a celebrated passage Chief Justice Fuller said, at 252:

"Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves."

In order for the act of state doctrine to apply, the defendant must establish that his activities are 'acts of state', i.e. that they were taken on behalf of the state and not, as private acts, on behalf of the actor himself. That the acts must be public acts of the sovereign has been repeatedly affirmed. Though the distinction between the public and private acts of government officials may prove elusive, this difficulty has not prevented courts from scrutinizing the character of the conduct in question.

ISSUE#2

Whether Senator Pinochet was acting in his private capacity or in a sovereign capacity as head of state, in committing the crimes which are alleged against him.

HELD

He was acting in a sovereign capacity. It has not been suggested that he was personally guilty of any of the crimes of torture or hostage-taking in the sense that he carried them out with his own hands. What is alleged against him is that he organized the commission of such crimes, including the elimination of his political opponents, as head of the Chilean government, and that he did so in co-operation with other governments under Plan Condor, and in particular with the government of Argentina. These circumstances he cannot be treated as having acted in a private capacity.

ISSUE#3

Whether the crimes alleged against Senator Pinochet are so horrific that an exception must be made to the ordinary rule of customary international law.

HELD

The difficulty is to know where to draw the line. Torture is a horrific crime, but so is murder. It is a regrettable fact that almost all leaders of revolutionary movements are guilty of killing their political opponents in the course of coming to power, and many are guilty of murdering their political opponents thereafter in order to secure their power. Yet it is not suggested that the crime of murder puts the successful revolutionary beyond the pale of immunity in customary international law. It is strange to think of murder or torture as "official" acts or as part of the head of state's "public functions." But if for "official" one substitutes "governmental" then the true nature of the distinction between private acts and official acts becomes apparent. For reasons already mentioned there is no doubt that the crimes of which Senator Pinochet is accused, including the crime of torture, were governmental in nature. Otherwise one would get to this position: that the crimes of a head of state in the execution of his governmental authority are to be attributed to the state so long as they are not too serious. But beyond a certain (undefined) degree of seriousness the crimes cease to be attributable to the state, and are instead to be treated as his private crimes. That would not make sense.

ISSUE#4

Whether there should be an exception from the general rule of immunity in the case of crimes which have been made the subject of international conventions. (That the crimes in question are crimes against international law, and that international law cannot both condemn conduct as a breach of international law and at the same time grant immunity from prosecution. It cannot give with one hand and take away with the other.)

HELD

Whether there should be an exception from the general rule of immunity in the case of crimes which have been made the subject of international conventions, such as the International Convention against the Taking of Hostages (1980) and the Convention against Torture (1984). The purpose of these conventions, in very broad terms, was to ensure that acts of torture and hostage-taking should be made (or remain) offences under the criminal law of each of the state parties, and that each state party should take measures to establish extra-territorial jurisdiction in specified cases. Thus in the case of torture, a state party is obliged to establish extra-territorial jurisdiction when the alleged offender is a national of that state, but not where the victim is a national. In the latter case, the state has discretion: see article 5.1(b) and (c). In addition there is an obligation on a state to extradite or prosecute where a person accused of torture is found within its territory--aut dedere aut judicare: see article 7. But there is nothing in the Torture Convention which touches on state immunity. The contrast with the Convention on the Prevention and Punishment of the Crime of Genocide (1948) could not be more marked. Article 4 of the Genocide Convention provides:

"Persons committing genocide or any of the other acts enumerated in article 3 shall be punished whether they are constitutionally responsible rulers or public officials or private individuals."

There is no equivalent provision in either the Torture Convention or the Taking of Hostages Convention. Moreover, when the Genocide Convention was incorporated into English law by the Genocide Act 1969, article 4 was omitted. So Parliament must clearly have intended, or at least contemplated, that a head of state accused of genocide would be able to plead sovereign immunity. If the Torture Convention and the Taking of Hostages Convention had contained a provision equivalent to article 4 of the Genocide Convention (which they did not) it is reasonable to suppose that, as with genocide, the equivalent provisions would have been omitted when Parliament incorporated those conventions into English law. It cannot be seen any inconsistency between the purposes underlying these Conventions and the rule of international law which allows a head of state procedural immunity in respect of crimes covered by the Conventions.

Senator Pinochet was held entitled to immunity as former head of state at common law. The appeal was permitted.

Regina v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet (Mar. 24, 1999, House of Lords)

Facts:11 September 1973 - General (later Senator) Pinochet led a coup dtat and assumed power in Chile

11 March 1990 Pinochet resigned as head of state after a controversial time in office

1998 - He went to England for medical treatment during which Spain sought to extradite him on a number of charges.

Some of the charges related to the time before Senator Pinochet became head of state, most of them to the time when he was head of state, but none to the time after he ceased to be head of state. Some of those charges had links with Spain but most of the charges had none. The decision of the House of Lords on the first appeal was famously set aside on the ground that the Judicial Committee was not properly constituted because one of the lords had links with Amnesty international which intervened in the proceedings. This is the third and final ruling of the House of Lords on the Pinochet case.

Issues:(1) Are there any extradition crimes included in Spains request? and if so, (2) Is Senator Pinochet immune from trial for committing those crimes?

Ruling:1. The principle of double criminality with respect to extradition requires that "the conduct complained of must constitute a crime under the law both of the requesting state and of the United Kingdom." After examination of the legislative history of the Extradition Act 1989 and its predecessor, it was held that crimes were extradition crimes only if the acts were criminal under UK law at the time the acts were committed.

Lords delivered their ruling on the reheard appeal with a majority of 6:1 holding that Pinochet may be extradited to Spain for crimes of torture and conspiracy to torture committed after 8 December 1988, when UK ratified the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention) in its domestic law (Chile and Spain ratified the Convention at an earlier date). Section 134 of the Criminal Justice Act 1988, which came into force on 29 September 1988, incorporated the Torture Convention into UK law. It made acts of torture committed by a "public official or other person acting in an official capacity" unlawful. However, most of the charges listed in the request concerned events that happened before UK ratified the Convention. Also, the charge on conspiracy to take hostages could not be an extradition crime because it did not satisfy the conditions of the UK Taking of Hostages Act. The only charges considered to be extradition crimes were torture and conspiracy to torture committed after December 8, 1988 and the charges relating to murder and conspiracies to commit murder.

2. The charges of murder and conspiracies to commit murder were dismissed on the ground that no sound legal reasoning was advanced as to why the normal rules on immunity would not apply. However, the Lords ruled that Pinochet did not enjoy the same immunity ratione materiae for the extradition crimes of torture and conspiracy to commit torture committed after December 8, 1988 not only because implementing torture was not a function related to his official capacity as head of state, but more so because of the gravity of such crime committed against humanity as a whole. Citing Prosecutor v. Furundzija, [ICTY 1988], the "jus cogens nature of the international crime of torture" was recognized by the Court. The Torture Convention created an international regime in which "continued immunity for ex-heads of state is inconsistent with its provisions." While there was no express waiver of state immunity in the Torture Convention, the international law of torture had developed to the point that a universal jurisdiction was in place. Because the Convention applies to state officials, no claim of immunity can result for a head of state. Furthermore, Pinochet lost immunity as of the dates that UK and Chile ratified the Torture Convention because "it was no longer open to any state which was a signatory to the Convention to invoke the immunity ratione materiae in the event of allegations of systemic or widespread torture committed after that date being made in the courts against its officials or any other person acting in an official capacity." As a matter of general customary international law, a head of state will be personally liable for authorizing or perpetrating such serious international crimes

The Schooner Exchange v. MacFaddonFACTS: - October 27,1809 The Schooner Exchange, a vessel owned by John MacFaddon and William Greetham (American Citizens), left Baltimore, Maryland to begin its journey to St. Sebastian, Spain.- December 30, 1811 while lawfully and peaceably pursuing her voyage, The Schooner Exchange was violently and forcibly taken by certain persons, acting under the decrees and orders of Napoleon, Emperor of the French.-Schooner Exchange then was commissioned by and in the service of the Emperor of France as a national armed vessel (it is now named Balaou and under a new Captain, Dennis Begon)- July22, 1811 Schooner Exchange, while sailing from Europe to the Indies encountered bad weather and was compelled to enter the port of Philadelphia for refreshment and repairs. - August 24, 1811- McFaddon & Greetham, filed for libel in the District Court of the United States for the District of Pennsylvania against the SchoonerExchange,setting. - The District Court dismissed the case saying that it has no jurisdiction over the case since Schooner Exchange was a public vessel belonging to France and therefore has immunity.- MacFaddon and Greetham appealed to the Circuit Court who in turn reversed the decision of the District Court saying that they are entitled to the ship- The case was brought before the US Supreme Court

Issue: Whether or not an American citizen can assert in an American court a title to an armed national vessel found within the waters of the United States.

Ruling: No. TheExchange,being a public armed ship in the service of a foreign sovereign with whom the government of the United States is at peace, and having entered an American port open for her reception on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory under an implied promise that while necessarily within it and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country.The jurisdiction of a nation within its own territory, is exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction deriving validity from an external source would imply a diminution of its sovereignty to the extent of that restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.All exceptions to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself.A nation would justly be considered as violating its faith, although not expressly plighted, which should suddenly and without previous notice exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world.The full and absolute territorial jurisdiction being alike the attribute of every sovereignty and being incapable of conferring extraterritorial power, does not contemplate foreign sovereigns, nor their sovereign rights as its objects. One sovereign can be supposed to enter a foreign territory only under an express license or in the confidence that the immunities belonging to his independent, sovereign station, though not expressly stipulated, are reserved by implication and will be extended to him.A sovereign entering a foreign territory with the knowledge and license of its sovereign, that license, though containing no stipulation exempting his person from arrest, is universally understood to imply such stipulation.A foreign minister is considered as in the place of the sovereign he represents, and therefore not in point of law within the jurisdiction of the sovereign at whose court he resides.Where a sovereign allows the troops of a foreign prince to pass through his dominions, he waives his jurisdiction over the army to which the right of passage has been granted without any express declaration to that effect.If there be no prohibition the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports and to remain in them under the protection of the government of the place.If there be no treaty applicable to the case, and the sovereign permits his ports to remain open to the public ships of foreign friendly powers, they virtually enter by his assent. If they enter by an assent thus necessarily implied, their case cannot be distinguished from that of vessels entering by express assent.The implied license under which a public armed ship enters a friendly port ought to be construed as containing an exemption from the jurisdiction of the sovereign whose territory she enters.Arrest Warrant of 11April2000(Democratic Republic of the Congov. Belgium)Summary of the Judgment of 14February2002

History of the proceedings and submissions of the Parties(paras. 1-12)The Court recalls that on 17October2000 the Democratic Republic of the Congo (hereinafter "the Congo") filed in the Registry of the Court an Application instituting proceedings against the Kingdom of Belgium (hereinafter "Belgium") in respect of a dispute concerning an "international arrest warrant issued on 11April2000 by a Belgian investigating judge... against the Minister for Foreign Affairs in office of the Democratic Republic of the Congo, Mr.Abdulaye Yerodia Ndombasi".In that Application the Congo contended that Belgium had violated the "principle that a State may not exercise its authority on the territory of another State", the "principle of sovereign equality among all Members of the United Nations, as laid down in Article2, paragraph1, of the Charter of the United Nations", as well as "the diplomatic immunity of the Minister for Foreign Affairs of a sovereign State, as recognized by the jurisprudence of the Court and following from Article41, paragraph2, of the ViennaConvention of 18April1961 on Diplomatic Relations". In order to found the Courts jurisdiction the Congo invoked in the aforementioned Application the fact that "Belgium ha[d] accepted the jurisdiction of the Court and, in so far as may be required, the [aforementioned] Application signifie[d] acceptance of that jurisdiction by the Democratic Republic of the Congo".The Court further recalls that on the same day, the Congo also filed a request for the indication of a provisional measure; and that by an Order of 8December2000 the Court, on the one hand, rejected Belgiums request that the case be removed from the List and, on the other, held that the circumstances, as they then presented themselves to the Court, were not such as to require the exercise of its power under Article41 of the Statute to indicate provisional measures. In the same Order, the Court also held that "it [was] desirable that the issues before the Court should be determined as soon as possible" and that "it [was] therefore appropriate to ensure that a decision on the Congos Application be reached with all expedition".By Order of 13December2000, the President of the Court, taking account of the agreement of the Parties as expressed at a meeting held with their Agents on 8December2000, fixed time-limits for the filing of a Memorial by the Congo and of a Counter-Memorial by Belgium, addressing both issues of jurisdiction and admissibility and the merits. After the pleadings had been filed within the time-limits as subsequently extended, public hearings were held from 15 to 19October2001.At the oral proceedings, the following final submissions were presented by the Parties:On behalf of the Government of the Congo,"In light of the facts and arguments set out during the written and oral proceedings, the Government of the Democratic Republic of the Congo requests the Court to adjudge and declare that:1. by issuing and internationally circulating the arrest warrant of 11April2000 against Mr.AbdulayeYerodiaNdombasi, Belgium committed a violation in regard to the Democratic Republic of the Congo of the rule of customary international law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers; in so doing, it violated the principle of sovereign equality among States;2. a formal finding by the Court of the unlawfulness of that act constitutes an appropriate form of satisfaction, providing reparation for the consequent moral injury to the Democratic Republic of the Congo;3. the violations of international law underlying the issue and international circulation of the arrest warrant of 11April2000 preclude any State, including Belgium, from executing it;4. Belgium shall be required to recall and cancel the arrest warrant of 11April2000 and to inform the foreign authorities to whom the warrant was circulated that Belgium renounces its request for their co-operation in executing the unlawful warrant."On behalf of the Government of Belgium,"For the reasons stated in the Counter-Memorial of Belgium and in its oral submissions, Belgium requests the Court, as a preliminary matter, to adjudge and declare that the Court lacks jurisdiction in this case and/or that the Application by the Democratic Republic of the Congo against Belgium is inadmissible.If, contrary to the submissions of Belgium with regard to the Courts jurisdiction and the admissibility of the Application, the Court concludes that it does have jurisdiction in this case and that the Application by the Democratic Republic of the Congo is admissible, Belgium requests the Court to reject the submissions of the Democratic Republic of the Congo on the merits of the case and to dismiss the Application."Background to the case(paras. 13-21)On 11April2000 an investigating judge of the Brusselstribunal de premire instanceissued "an international arrest warrantin absentia" against Mr.AbdulayeYerodia Ndombasi, charging him, as perpetrator or co-perpetrator, with offences constituting grave breaches of the Geneva Conventions of 1949 and of the Additional Protocols thereto, and with crimes against humanity. The arrest warrant was circulated internationally through Interpol.At the time when the arrest warrant was issued Mr.Yerodia was the Minister for Foreign Affairs of the Congo.The crimes with which Mr.Yerodia was charged were punishable in Belgium under the Law of 16June1993 "concerning the Punishment of Grave Breaches of the International Geneva Conventions of 12August1949 and of ProtocolsI and II of 8June1977 Additional Thereto", as amended by the Law of 19February1999 "concerning the Punishment of Serious Violations of International Humanitarian Law" (hereinafter referred to as the "Belgian Law").On 17October2000, the Congo instituted proceedings before the International Court of Justice, requesting the Court "to declare that the Kingdom of Belgium shall annul the international arrest warrant issued on 11April2000". After the proceedings were instituted, Mr. Yerodia ceased to hold office as Minister for Foreign Affairs, and subsequently ceased to hold any ministerial office.In its Application instituting proceedings, the Congo relied on two separate legal grounds. First, it claimed that "[t]heuniversal jurisdictionthat the Belgian State attributes to itself under Article7 of the Law in question" constituted a "[v]iolation of the principle that a State may not exercise its authority on the territory of another State and of the principle of sovereign equality among all Members of the United Nations". Secondly, it claimed that "[t]he non-recognition, on the basis of Article5... of the Belgian Law, of the immunity of a Minister for Foreign Affairs in office" constituted a "[v]iolation of the diplomatic immunity of the Minister for Foreign Affairs of a sovereign State". However, the Congos Memorial and its final submissions refer only to a violation "in regard to the... Congo of the rule of customary international law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers".Objections of Belgium relating to jurisdiction, mootness and admissibility(paras. 22-44)Belgiums first objection(paras. 23-28)The Court begins by considering the first objection presented by Belgium, which reads as follows:"That, in the light of the fact that Mr.YerodiaNdombasi is no longer either Minister for Foreign Affairs of the [Congo] or a minister occupying any other position in the... Government [of the Congo], there is no longer a legal dispute between the Parties within the meaning of this term in the Optional Clause Declarations of the Parties and that the Court accordingly lacks jurisdiction in this case."The Court recalls that, according to its settled jurisprudence, its jurisdiction must be determined at the time that the act instituting proceedings was filed. Thus, if the Court has jurisdiction on the date the case is referred to it, it continues to do so regardless of subsequent events. Such events might lead to a finding that an application has subsequently become moot and to a decision not to proceed to judgment on the merits, but they cannot deprive the Court of jurisdiction.The Court then finds that, on the date that the Congos Application instituting these proceedings was filed, each of the Parties was bound by a declaration of acceptance of compulsory jurisdiction, filed in accordance with Article36, paragraph2, of the Statute of the Court: Belgium by a declaration of 17June1958 and the Congo by a declaration of 8February1989. Those declarations contained no reservation applicable to the present case. The Court further observes that it is, moreover, not contested by the Parties that at the material time there was a legal dispute between them concerning the international lawfulness of the arrest warrant of 11April2000 and the consequences to be drawn if the warrant was unlawful. The Court accordingly concludes that at the time that it was seised of the case it had jurisdiction to deal with it, and that it still has such jurisdiction, and that Belgiums first objection must therefore be rejected.Belgiums second objection(paras. 29-32)The second objection presented by Belgium is the following:"That in the light of the fact that Mr.YerodiaNdombasi is no longer either Minister for Foreign Affairs of the [Congo] or a minister occupying any other position in the... Government [of the Congo], the case is now without object and the Court should accordingly decline to proceed to judgment on the merits of the case."The Court notes that it has already affirmed on a number of occasions that events occurring subsequent to the filing of an application may render the application without object such that the Court is not called upon to give a decision thereon. However, the Court considers that this is not such a case. It finds that the change which has occurred in the situation of Mr.Yerodia has not in fact put an end to the dispute between the Parties and has not deprived the Application of its object. The Congo argues that the arrest warrant issued by the Belgian judicial authorities against Mr.Yerodia was and remains unlawful. It asks the Court to hold that the warrant is unlawful, thus providing redress for the moral injury which the warrant allegedly caused to it. The Congo also continues to seek the cancellation of the warrant. For its part, Belgium contends that it did not act in violation of international law and it disputes the Congos submissions. In the view of the Court, it follows from the foregoing that the Application of the Congo is not now without object and that accordingly the case is not moot. Belgiums second objection is accordingly rejected.Belgiums third objection(paras. 33-36)The third Belgian objection is put as follows:"That the case as it now stands is materially different to that set out in the [Congo]s Application instituting proceedings and that the Court accordingly lacks jurisdiction in the case and/or that the application is inadmissible."The Court notes that, in accordance with settled jurisprudence, it "cannot, in principle, allow a dispute brought before it by application to be transformed by amendments in the submissions into another dispute which is different in character". However, the Court considers that in the present case the facts underlying the Application have not changed in a way that produced such a transformation in the dispute brought before it. The question submitted to the Court for decision remains whether the issue and circulation of the arrest warrant by the Belgian judicial authorities against a person who was at that time the Minister for Foreign Affairs of the Congo were contrary to international law. The Congos final submissions arise "directly out of the question which is the subject-matter of that Application". In these circumstances, the Court considers that Belgium cannot validly maintain that the dispute brought before the Court was transformed in a way that affected its ability to prepare its defence, or that the requirements of the sound administration of justice were infringed. Belgiums third objection is accordingly rejected.Belgiums fourth objection(paras. 37-40)The fourth Belgian objection reads as follows:"That, in the light of the new circumstances concerning Mr.YerodiaNdombasi, the case has assumed the character of an action of diplomatic protection but one in which the individual being protected has failed to exhaust local remedies, and that the Court accordingly lacks jurisdiction in the case and/or that the application is inadmissible."The Court notes that the Congo has never sought to invoke before it Mr.Yerodias personal rights. It considers that, despite the change in professional situation of Mr.Yerodia, the character of the dispute submitted to the Court by means of the Application has not changed: the dispute still concerns the lawfulness of the arrest warrant issued on 11April2000 against a person who was at the time Minister for Foreign Affairs of the Congo, and the question whether the rights of the Congo have or have not been violated by that warrant. The Court finds that, as the Congo is not acting in the context of protection of one of its nationals, Belgium cannot rely upon the rules relating to the exhaustion of local remedies.In any event, the Court recalls that an objection based on non-exhaustion of local remedies relates to the admissibility of the application. Under settled jurisprudence, the critical date for determining the admissibility of an application is the date on which it is filed. Belgium accepts that, on the date on which the Congo filed the Application instituting proceedings, the Congo had a direct legal interest in the matter, and was asserting a claim in its own name. Belgiums fourth objection is accordingly rejected.Belgiums subsidiary argument concerning thenon ultra petitarule(paras. 41-43)As a subsidiary argument, Belgium further contends that "[i]n the event that the Court decides that it does have jurisdiction in this case and that the application is admissible,... thenonultrapetitarule operates to limit the jurisdiction of the Court to those issues that are the subject of the [Congo]s final submissions".Belgium points out that the Congo initially advanced a twofold argument, based, on the one hand, on the Belgian judges lack of jurisdiction and, on the other, on the immunity from jurisdiction enjoyed by its Minister for Foreign Affairs. According to Belgium, the Congo now confines itself to arguing the latter point, and the Court consequently cannot rule on the issue of universal jurisdiction in any decision it renders on the merits of the case.The Court recalls the well-established principle that "it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions" The Court observes that, while it is thus not entitled to decide upon questions not asked of it, thenon ultra petitarule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning. Thus in the present case the Court may not rule, in the operative part of its Judgment, on the question whether the disputed arrest warrant, issued by the Belgian investigating judge in exercise of his purported universal jurisdiction, complied in that regard with the rules and principles of international law governing the jurisdiction of national courts. This does not mean, however, that the Court may not deal with certain aspects of that question in the reasoning of its Judgment, should it deem this necessary or desirable.Merits of the case(paras. 45-71)As indicated above, in its Application instituting these proceedings, the Congo originally challenged the legality of the arrest warrant of 11April2000 on two separate grounds: on the one hand, Belgiums claim to exercise a universal jurisdiction and, on the other, the alleged violation of the immunities of the Minister for Foreign Affairs of the Congo then in office. However, in its submissions in its Memorial, and in its final submissions at the close of the oral proceedings, the Congo invokes only the latter ground.The Court observes that, as a matter of logic, the second ground should be addressed only once there has been a determination in respect of the first, since it is only where a State has jurisdiction under international law in relation to a particular matter that there can be any question of immunities in regard to the exercise of that jurisdiction. However, in the present case, and in view of the final form of the Congos submissions, the Court first addresses the question whether, assuming that it had jurisdiction under international law to issue and circulate the arrest warrant of 11April2000, Belgium in so doing violated the immunities of the then Minister for Foreign Affairs of the Congo.Immunity and inviolability of an incumbent Foreign Minister in general(paras. 47-55)The Court observes at the outset 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. For the purposes of the present case, it is only the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs that fall for the Court to consider.The Court notes that a certain number of treaty instruments were cited by the Parties in this regard, including the Vienna Convention on Diplomatic Relations of 18April1961 and the New York Convention on Special Missions of 8December1969. The Court finds that these conventions provide useful guidance on certain aspects of the question of immunities, but that they do not contain any provision specifically defining the immunities enjoyed by Ministers for Foreign Affairs. It is consequently on the basis of customary international law that the Court must decide the questions relating to the immunities of such Ministers raised in the present case.In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States. In order to determine the extent of these immunities, the Court must therefore first consider the nature of the functions exercised by a Minister for Foreign Affairs. After an examination of those functions, the Court concludes that they are such that, throughout the duration of his or her office, a Minister for Foreign Affairs when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties.The Court finds that in this respect no distinction can be drawn between acts performed by a Minister for Foreign Affairs in an "official" capacity and those claimed to have been performed in a "private capacity", or, for that matter, between acts performed before the person concerned assumed office as Minister for Foreign Affairs and acts committed during the period of office. Thus, if a Minister for Foreign Affairs is arrested in another State on a criminal charge, he or she is clearly thereby prevented from exercising the functions of his or her office. Furthermore, even the mere risk that, by travelling to or transiting another State, a Minister for Foreign Affairs might be exposing himself or herself to legal proceedings could deter the Minister from travelling internationally when required to do so for the purposes of the performance of his or her official functions.The Court then addresses Belgiums argument that immunities accorded to incumbent Ministers for Foreign Affairs can in no case protect them where they are suspected of having committed war crimes or crimes against humanity.The Court states that it has carefully examined State practice, including national legislation and those few decisions of national higher courts, such as the House of Lords in the United Kingdom or the French Court of Cassation, and that it has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity. The Court adds that it has also examined the rules concerning the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international criminal tribunals, and which are specifically applicable to the latter (see Charter of the International Military Tribunal of Nuremberg, Art.7; Charter of the International Military Tribunal of Tokyo, Art.6; Statute of the International Criminal Tribunal for the former Yugoslavia, Art.7, para.2; Statute of the International Criminal Tribunal for Rwanda, Art.6, para.2; Statute of the International Criminal Court, Art.27), and that it finds that these rules likewise do not enable it to conclude that any such exception exists in customary international law in regard to national courts. Finally, the Court observes that none of the decisions of the Nuremberg and Tokyo international military tribunals, or of the International Criminal Tribunal for the former Yugoslavia, cited by Belgium deal with the question of the immunities of incumbent Ministers for Foreign Affairs before national courts where they are accused of having committed war crimes or crimes against humanity. The Court accordingly notes that those decisions are in no way at variance with the findings it has reached above. The Court accordingly does not accept Belgiums argument in this regard.It further notes that the rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction. Thus, although various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition, thereby requiring them to extend their criminal jurisdiction, such extension of jurisdiction in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs. The Court emphasizes, however, that theimmunityfrom jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoyimpunityin respect of any crimes they might have committed, irrespective of their gravity. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility. Accordingly, the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances. The Court refers to circumstances where such persons are tried in their own countries, where the State which they represent or have represented decides to waive that immunity, where such persons no longer enjoy all of the immunities accorded by international law in other States after ceasing to hold the office of Minister for Foreign Affairs, and where such persons are subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.The issue and circulation of the arrest warrant of 11April2000(paras. 62-71)Given the conclusions it has reached above concerning the nature and scope of the rules governing the immunity from criminal jurisdiction enjoyed by incumbent Ministers for Foreign Affairs, the Court then considers whether in the present case the issue of the arrest warrant of 11April2000 and its international circulation violated those rules. The Court recalls in this regard that the Congo requests it, in its first final submission, to adjudge and declare that:"[B]y issuing and internationally circulating the arrest warrant of 11April2000 against Mr.Abdulaye Yerodia Ndombasi, Belgium committed a violation in regard to the Democratic Republic of the Congo of the rule of customary international law concerning the absolute inviolability and immunity from criminal process of incumbent foreign ministers; in so doing, it violated the principle of sovereign equality among States."After examining the terms of the arrest warrant, the Court notes that itsissuance, as such, represents an act by the Belgian judicial authorities intended to enable the arrest on Belgian territory of an incumbent Minister for Foreign Affairs on charges of war crimes and crimes against humanity. The fact that the warrant is enforceable is clearly apparent from the order given in it to "all bailiffs and agents of public authority... to execute this arrest warrant" and from the assertion in the warrant that "the position of Minister for Foreign Affairs currently held by the accused does not entail immunity from jurisdiction and enforcement". The Court notes that the warrant did admittedly make an exception for the case of an official visit by Mr.Yerodia to Belgium, and that Mr.Yerodia never suffered arrest in Belgium. The Court considers itself bound, however, to find that, given the nature and purpose of the warrant, its mere issue violated the immunity which Mr.Yerodia enjoyed as the Congos incumbent Minister for Foreign Affairs. The Court accordingly concludes that the issue of the warrant constituted a violation of an obligation of Belgium towards the Congo, in that it failed to respect the immunity of that Minister and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by him under international law.The Court also notes that Belgium admits that the purpose of the internationalcirculationof the disputed arrest warrant was "to establish a legal basis for the arrest of Mr.Yerodia... abroad and his subsequent extradition to Belgium". The Court finds that, as in the case of the warrants issue, its international circulation from June2000 by the Belgian authorities, given its nature and purpose, effectively infringed Mr.Yerodias immunity as the Congos incumbent Minister for Foreign Affairs and was furthermore liable to affect the Congos conduct of its international relations. The Court concludes that the circulation of the warrant, whether or not it significantly interfered with Mr.Yerodias diplomatic activity, constituted a violation of an obligation of Belgium towards the Congo, in that it failed to respect the immunity of the incumbent Minister for Foreign Affairs of the Congo and, more particularly, infringed the immunity from criminal jurisdiction and inviolability then enjoyed by him under international law.Remedies(paras. 72-77)The Court then addresses the issue of the remedies sought by the Congo on account of Belgiums violation of the above-mentioned rules of international law. (Cf. the second, third and fourth submissions of the Congo reproduced above).The Court observes that it has already concluded that the issue and circulation of the arrest warrant of 11April2000 by the Belgian authorities failed to respect the immunity of the incumbent Minister for Foreign Affairs of the Congo and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by Mr.Yerodia under international law. Those acts engaged Belgiums international responsibility. The Court considers that the findings so reached by it constitute a form of satisfaction which will make good the moral injury complained of by the Congo.However, the Court goes on to observe that, as the Permanent Court of International Justice stated in its Judgment of 13September1928 in the case concerning theFactory at Chorzw:"[t]he essential principle contained in the actual notion of an illegal act- a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals- is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed" (P.C.I.J., SeriesA, No.17, p.47).The Court finds that, in the present case, "the situation which would, in all probability, have existed if [the illegal act] had not been committed" cannot be re-established merely by a finding by the Court that the arrest warrant was unlawful under international law. The warrant is still extant, and remains unlawful, notwithstanding the fact that Mr.Yerodia has ceased to be Minister for Foreign Affairs. The Court accordingly considers that Belgium must, by means of its own choosing, cancel the warrant in question and so inform the authorities to whom it was circulated.The Court sees no need for any further remedy: in particular, the Court points out that it cannot, in a judgment ruling on a dispute between the Congo and Belgium, indicate what that judgments implications might be for third States, and the Court finds that it cannot therefor