Immunity, Individuals and International Law. Elizabeth Helen Franey A
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Immunity, Individuals and International Law. Which Individuals are Immune from the Jurisdiction of National Courts under International Law? Elizabeth Helen Franey A thesis submitted to the Department of Law of the London School of Economics for the degree of Doctor of Philosophy, London, June 2009 1 Declaration I certify that the thesis I have presented for examination for the PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without the prior written consent of the author. I warrant that this authorization does not, to the best of my belief, infringe the rights of any third party. 2 Abstract. State immunity under international law extends to protect some individuals from criminal prosecution before national courts. This thesis aims to identify which individuals are immune from prosecution before the English courts, for what conduct, and for what period. The justifications for immunity are examined, and the extent of immunity ratione personae and immunity ratione materiae are explored. This thesis argues that immunity ratione personae is only narrowly available to high state officials, and that the immunity accorded, by consent, to special missions is sufficient to cover other official visits. In Pinochet (No 3) all seven judges agreed: 1. An ex-head of state is immune from prosecution for murder and conspiracy to murder alleged to have been committed in the forum state. 2. All state officials no matter how minor are entitled to continuing immunity This thesis analyses state practice in arresting or prosecuting foreign state officials, and argues that both of these statements are incorrect. This thesis argues that immunity does not attach to conduct alone, for a person to have continuing immunity ratione materiae they must have had immunity ratione personae. The forum state must have agreed to the official being present on its territory, and agreed to the purpose of the visit. Those officials present on the territory of a foreign state with the consent of that state who have immunity ratione personae have continuing immunity ratione materiae only for official conduct, acta jure imperii. This does not extend to acts of violence. Finally the development of the regime for the prosecution and punishment of international crimes by national courts is considered. The conflict with immunity is examined, and a possible reconciliation between the two principles is suggested by using the complementarity principle in the statute of the International Criminal Court. 3 Prologue. On 16 October 1998 I was Deputy Chief Clerk at Bow Street Magistrates Court, and I was the clerk responsible for advising Metropolitan Stipendiary Magistrate Nicholas Evans and preparing the provisional warrant issued for the arrest of Senator Pinochet Ugarte. I was also the clerk during the committal proceedings heard by Metropolitan Stipendiary Magistrate Ronald Bartle in October 1998. The arrest of Pinochet and the litigation thereafter introduced me to an area of law hitherto unknown to me, and started me on a path of study which has led eventually to this thesis. During the decade that has passed many things have changed. Bow Street Court has closed, and Metropolitan Stipendiary Magistrates are now District Judges. Magistrates’ Courts are no longer small independent organisations as Her Majesty’s Court Service has been created as part of the Ministry of Justice and I am now a civil servant. My role remains substantially the same despite all the changes, and I continue to encounter challenging cases and applications, some of which are material used in this thesis. All of the cases quoted in this thesis from Bow Street and City of Westminster Magistrates’ Court were heard in open court and are in the public domain. I wish to thank the District Judges at the City of Westminster Court and in particular the Senior District Judge (Chief Magistrate) Tim Workman for his kindness and support. I wish to thank Professor Greenwood, who was my supervisor until February 2009 when he was appointed as a judge at the International Court of Justice, for his generous patience and his continued gentle guidance. I also say thank you to my family, my children Thomas and Katherine, and my husband James without whose continued assistance and encouragement this thesis would never have been completed. 4 Immunity, Individuals and International Law. Which Individuals are Immune from the Jurisdiction of National Courts under International Law? Contents Page Number Introduction 9 Immunity from Criminal Prosecution 17 The Immunity of Individuals is Considered Important by States. 25 The Extent of Immunity needs to be Clear. 26 Determining Immunity is Important for International Relations. 27 Determining Immunity is Important to Individuals. 30 Does Immunity mean Impunity? 32 What this Thesis is not Considering. 34 The structure of this thesis. 35 Chapter 1 Immunity Before National Courts. 38 A Question of International Law as Interpreted by National Law. English law and International Law. 39 International Law on Immunity Incorporated into English Law. 45 Customary International Law Relating to Immunity from Prosecution. 49 5 Chapter 2 Why should Individuals be Immune under International Law from Criminal 54 Jurisdiction? What is the Justification for Immunity? Sovereignty and Equality. “L’Etat C’est Moi.” 55 All States are Equal. Par in Parem Non Habet Imperium. 59 The Efficient Performance of Functions. 61 To Promote International Relations. 73 Conclusion. 75 Chapter 3 Immunity Ratione Personae 77 Head of State. 77 Must be the Head of a State. 83 The Head of Government. 93 The Foreign Minister. 97 Other Ministers of State. 108 Special Missions. 116 Must be a High Official of a State. 128 Conclusion 132 Chapter 4. Immunity Ratione Materiae 134 The Doctrine of Restrictive Immunity. Acta Jure Imperii and Acta Jure 136 Gestionis Immunity for acta jure imperii applies to individuals. 139 Continuing Immunity. 152 6 What Conduct is “Official” and carries with it Immunity? 156 Pinochet, An Ex-Head of State had continuing Immunity for what Conduct? 158 Are Other Officials Entitled to Immunity Ratione Materiae? Does “Conduct” 167 carry Immunity? Diplomats and Consuls: Performance of Duties. 197 The Waiver of Immunity. 204 States Requesting Immunity. 206 Prosecutions for Serious Crimes Committed by State Agents. Terrorism 207 Terrorism by Disguised Members of Armed Forces 211 Assassination 212 Kidnapping 218 Prosecution for Passport Offences. 222 Prosecutions for Trespassing. 223 Prosecutions for Collecting Information. 225 Efforts to Retrieve Agents. 235 Conduct not on the Territory of the Forum State. 239 Conclusion. 241 Chapter 5. Immunity and Impunity. Is there a conflict in International Law? 243 Human Rights, Individual Responsibility and the Duty to Prosecute. 245 Human Rights Conventions. 245 The Genocide Convention 1948. 246 The Geneva Conventions 1949. 248 7 The Torture Convention 1984. 249 Individual Responsibility 252 The Duty to Prosecute. 254 The Pinochet Case. 256 The Decision of the Divisional Court. 257 The First Decision of the House of Lords. 257 The First Decision of the House of Lords set aside: 259 The Final Decision of the House of Lords. After Pinochet. 265 The International Criminal Court. 266 The Arrest Warrant Case. 271 Conclusion. 280 Bibliography 289 8 Introduction “Henceforth, all former heads of government are potentially at risk”.1 On the sixteenth of October 1998 a warrant was issued for the arrest of Senator Augusto Pinochet Ugarte, a Chilean national and former head of state. Pinochet was in hospital in London for medical treatment. The warrant was issued in Spain, alleging that Pinochet had committed genocide in Chile, and asserting that Spain had jurisdiction to try Pinochet for that conduct. At that time Spain and the United Kingdom (UK) were both parties to a multi-lateral extradition treaty, the European Convention on Extradition (1957), and had agreed to extradite persons accused of serious criminal conduct. In cases of urgency a warrant, known as a provisional warrant, could be issued for the arrest of a person before the receipt of the formal request for extradition. In such cases the requesting State would have 40 days from the arrest to submit the formal request for extradition. The judicial authority in Spain asked the English authorities to arrest Pinochet for extradition to Spain. The Metropolitan Police, who believed that Pinochet was due to leave the UK, made an application for a provisional warrant. Shortly before 9 pm on Friday 16 October 1998 Metropolitan Stipendiary Magistrate, Nicholas Evans issued such a warrant alleging murder of Spanish citizens in Chile.2 Pinochet was arrested later that evening. Although it was not apparent on the face of the warrant, the allegation was that Pinochet committed the offences as commander of the army, and later as head of state, using the apparatus of the state. He was President of the Government Junta of Chile from 11 September 1973 until 26 June 1974, and Head of State of the Republic of Chile from 26 June 1974 until 11 March 1990. At the time of his arrest he was a Life Senator. 1 Margaret Thatcher Lords Hansard Home Page. 6 Jul 1999. Column 800 & 801. http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldhansrd/vo990706/text/90706-20.htm 2 The English warrant did not allege genocide as an extradition crime as was alleged in the Spanish warrant. As the definition of genocide in English law was narrower than the Spanish definition of the offence, as it did not include the extermination of a political group, and at that time was restricted to offences which occurred in the United Kingdom.