CYIL 2012

PETRA BAUMRUK CYIL 3 ȍ2012Ȏ he was entitled to immunity. 42 In the first hearing of the immunity issue, at the level of the divisional court, three judges, applying a classically deferential approach to immunities, unanimously upheld Senator Pinochet’s claim and annulled the warrant. The court applied the established proposition that a former head of state “ceases to enjoy any immunity in respect of personal or private acts but continues to enjoy immunity in respect of public acts performed by him as head of state”. Since Pinochet was charged “not with personally torturing or murdering victims or causing their disappearance, but with using the power of the state of which he was head to that end”, the judges concluded that they could hardly be described as “private” acts and therefore had to be official acts. The decision of the Divisional court to quash the warrants was appealed to the House of Lords. The House of Lords on 25 November 1998 reversed the lower court’s ruling and held, by a three to two decision, that a former head of state is not entitled to immunity for such acts as torture, hostage-taking and crimes against humanity, committed while in post. 43 Nevertheless, on 17 th December 1998 the House of Lords decided to set aside its prior judgment due to the possible appearance of bias of one of the judges, who cast the deciding vote, in the first hearing, because he had some affiliations with Amnesty International, one of the intervenors. 44 At the third and final House of Lords hearing it was held by a majority of six to one that the arrest warrant was validly issued and that the immunity of a former head of state did not prevent his extradition for torture. 45 In doing so they drew a distinction between the immunity available to a serving head of state on the one hand and a former head of state on the other. Customary international law conferred on a serving head of state immunity ratione personae . A person who has immunity ratione personae enjoys immunity by reason of his person and such immunity is absolute and inviolable towards another state. The personal immunity that the House of Lords determined is confined to serving heads of state and diplomatic agents, their families and servants. Therefore, according to the House of Lords, former heads of state such as Senator Pinochet only enjoyed immunity ratione materiae . A person entitled to immunity ratione materiae or functional immunity does not enjoy absolute immunity. His immunity must be referable to his official acts on behalf of the state while in office. In other words, he cannot be charged by a foreign state for any official act he engaged in while he was head of state. The House of Lords held that commissions of acts of torture alleged to have been committed by Pinochet infringed jus cogens (a crime that infringed the 42 Andrea Bianchi: “Immunity versus Human Rights: The Pinochet Case”, p. 239-240. 43 House of Lords, case concerning R. v. Bow Street Metropolitan Stipendiary Magistrate and others ex parte Pinochet Ugarte (No. 1) [1998] 3 WLR 1546, retrieved from: http://www.parliament.the-stationery office.co.uk/pa/ld199899/ldjudgmt/jd990115/pino01.htm. 44 House of Lords, case concerning R. v. Bow Street Metropolitan Stipendiary Magistrate and others ex parte Pinochet Ugarte (No. 2 ) [1999] 2 WLR 272, retrieved from: http://www.parliament.the-stationery office.co.uk/pa/ld199899/ldjudgmt/jd990115/pino01.htm. 45 House of Lords, case concerning R. v. Bow Street Metropolitan Stipendiary Magistrate and others ex parte Pinochet Ugarte (No. 3) [1999] 2 WLR 827, retrieved from: http://www.parliament.the-stationery office.co.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm.

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