Prosecuting Tony Blair and others

SPECIAL CONTENTIONS

Contention 4:

The above two contentions fully explain, and are entirely consistent with, the various opinions of the majority of their Lordships, in the panel of seven, which heard and decided ex parte Pinochet (No.3) as recently as 1999.

Briefly in the notorious case of “Pinochet”, in so far as is relevant to present purposes, the Chilean Senator and former Head of State, Augusto Pinochet Ugarte (the sadist of Santiago), was subject of an international arrest warrant and an extradition request from the UK to Spain at the instance of the Spanish Government. They accused Pinochet of a large number and range of heinous offences, but a careful examination of the schedule of charges, as finally dealt with in the opinions of the third and final case decided by the Law Lords (1), reveals that in so far as the Senator was specifically accused of torture alone (i.e. not of murder committed in Spain, all be it in order to hide or in furtherance of a campaign of political oppression involving torture on going in Chile) then he stood accused of being complicit in the commission of that offence, as it was committed by his henchmen exclusively in Chile, effectively from the time of the coup d’etat which began his reign as Head of State (from Sept 11 1973) to Jan 1990. In his opinion, Lord Millett (2), had the following observations to make

“ Every state has jurisdiction under customary international law to exercise extra-territorial jurisdiction in respect of international crimes which satisfy the relevant criteria. Whether its courts have extra-territorial jurisdiction under its internal domestic law depends, of course, on its constitutional arrangements and the relationship between customary international law and the jurisdiction of its criminal courts. The jurisdiction of the English criminal courts is usually statutory, but it is supplemented by the common law. Customary international law is part of the common law, and accordingly I consider that the English courts have and always have had extra-territorial criminal jurisdiction in respect of crimes of universal jurisdiction under customary international law. “

However, very shortly thereafter he went on to say (3) :

“ In my opinion, the systematic use of torture on a large scale and as an instrument of state policy had joined piracy, war crimes and crimes against peace as an international crime of universal jurisdiction well before 1984. I consider that it had done so by 1973. For my own part, therefore, I would hold that the courts of this country already possessed extra-territorial jurisdiction in respect of torture and conspiracy to torture on the scale of the charges in the present case and did not require the authority of statute to exercise it. I understand, however, that your Lordships take a different view, and consider that statutory authority is required before our courts can exercise extra-territorial criminal jurisdiction even in respect of crimes of universal jurisdiction. Such authority was conferred for the first time by s.134 of the Criminal Justice Act 1988, but the section was not retrospective. I shall accordingly proceed to consider the case on the footing that Senator Pinochet cannot be extradited for any acts of torture committed prior to the coming into force of the section.”

In spite of the very careful words used by Lord Millett, it will be said by others that his concession in the latter passage, that he stood alone in his opinion re. the common law situation in this country prior to the coming into force of the Act of 1988, is evidence of the view that the majority of their Lordships in Pinochet (No.3) were instead against the contention that ‘torture’, as an offence under customary international criminal law (and prior to the ‘Torture’ Convention of 1984), whether as a constituent component of the commission of a ‘crime against humanity’ (a ‘Nuremberg’ crime) or otherwise, had been fully adopted and thus formed a part of the English common law.

Such a conclusion is, of course, quite false and simply ignores the very clear words used by Lord Millett, who specifically reports that his brethren were against him as to the claim that, prior to the Act of 1988, there was an “extra-territorial jurisdiction” in the English courts, under the common law, to deal with a crime of torture committed abroad ; not, contrariwise, that torture under customary international criminal law required a statute to incorporate it before it could become an offence ipso jure under municipal law.

The significance of the “extra-territorial jurisdiction” point was, of course, central to the ratio of the decision in Pinochet (no.3), because it was a case concerning the powers of English courts to order the extradition of a foreigner, to stand trial in another country of which he was not a national, in respect of crimes alleged to have been committed in a third.

Again it might be said by some that, pursuant to the so-called “double criminality” rule in extradition proceedings, this ignores the effect of the statutory requirement for a domestic hypothecation as to the locus delicti , namely that the extradition court, in the sending state, in this case the UK, is required to hypothesise as to the criminality of the conduct alleged, ‘as if’ it had been committed within the territory of that sending state ; not as to whether or not the sending state had the requisite domestic extra-territorial jurisdiction to deal with the matter itself, if it were to so choose. So that then the issue of an extra-territorial jurisdiction in UK courts, to have dealt with the matter here, is strictly irrelevant.

However, this ignores the plain language of the relevant UK statute, which is s.2 of the Extradition Act 1989 and which defined an “extradition crime”, at the time of Pinochet (No.3) (4), in the following manner :

"(1) In this Act, except in Schedule 1, 'extradition crime' means -

(a) conduct in the territory of a foreign state, a designated Commonwealth country or a colony which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of 12 months, or any greater punishment, and which, however described in the law of the foreign state, Commonwealth country or colony, is so punishable under that law;

(b) an extra-territorial offence against the law of a foreign state, designated Commonwealth country or colony which is punishable under that law with imprisonment for a term of 12 months, or any greater punishment, and which satisfies -

(i) the condition specified in subsection (2) below; or

(ii) all the conditions specified in subsection (3) below.

"(2) The condition mentioned in subsection (1)(b)(i) above is that in corresponding circumstances equivalent conduct would constitute an extra-territorial offence against the law of the United Kingdom punishable with imprisonment for a term of 12 months, or any greater punishment.

"(3) The conditions mentioned in subsection (1)(b)(ii) above are -

(a) that the foreign state, Commonwealth country or colony bases its jurisdiction on the nationality of the offender;

(b) that the conduct constituting the offence occurred outside the United Kingdom; and

(c) that, if it occurred in the United Kingdom, it would constitute an offence under the law of the United Kingdom punishable with imprisonment for a term of 12 months, or any greater punishment."

(my emphases added).

Accordingly, and to summarise, the scheme of s.2 (on this point) is as follows : (a) if the alleged crime took place in the requesting state a domestic hypothecation as to the locus delicti is required, as per s.2(1)(a) above. If, however, the alleged crime took place outside of the territory of the requesting state then a domestic hypothecation, as to the locus delicti, is required only if the sending state bases its extra-territorial jurisdiction “on the nationality of the offender”, as per s.2(1)(b)(ii), 2(3)(a) &(c) combined. Where, however, the alleged crime took place outside the territory of the requesting state, but that state does not base its jurisdiction upon of the nationality of the offender, then the crime is only extraditeable where “the equivalent conduct would constitute an extra-territorial offence against the law of the United Kingdom”, as per s.2(1)(b)(i) & 2(2) above.

Pinochet, a Chilean national, of course, accused by Spain, as respect torture at least, of having been complicit in the commission thereof when committed in Chile, is an example of this rare latter case, such that the “extra-territorial jurisdiction” of the UK Courts, in relation to that offence, was then very much in point in that case. If there was no such jurisdiction in the courts in this country then the case was not ‘extraditeable’

On this point Lord Browne-Wilkinson, who gave the leading opinion, said (5) :

“ No one has suggested that before section 134 came into effect torture committed outside the United Kingdom was a crime under United Kingdom law. Nor is it suggested that section 134 was retrospective so as to make torture committed outside the United Kingdom before 29 September 1988 a United Kingdom crime. Since torture outside the United Kingdom was not a crime under U.K. law until 29 September 1988, the principle of double criminality which requires an Act to be a crime under both the law of Spain and of the United Kingdom cannot be satisfied in relation to conduct before that date if the principle of double criminality requires the conduct to be criminal under United Kingdom law at the date it was committed”

(my emphasis by way of underlining added)

Of course, it is most interesting to note that a few minutes later, Lord Millett was about to suggest that very thing from the benches besides Lord Brown-Wilkinson (!) ; however, the real point to be made here is that, if Lord Brown-Wilkinson had been of the clear opinion that, prior to the Act of 1988, torture had not been a crime under English law at all, i.e. under the common law, and even as regards acts committed in this country, then why bother to make the distinction as to a crime “committed outside the United Kingdom”. The answer I submit is self evident.

Lord Hope of Craighead, who performed a quite forensic examination of the Pinochet charges in relation to their “extraditeability” had this to say (6) :

“ However none of these offences, if committed prior to the coming into force of section 134 of the Criminal Justice Act 1988, could be said to be extra-territorial offences against the law of the United Kingdom within the meaning of section 2(2) of the Extradition Act 1989 as there is no basis upon which they could have been tried extra-territorially in this country. “

Thus, I submit that the ratio of his reasoning is equally explained on the basis of his view as to the lack of any “extra-territorial jurisdiction” in UK courts prior to the coming into force of the Act of 1988 and nothing further may be properly read there in.

Finally, Lord Phillips of Worth Matravers had this to say (7) :

“ It is only recently that the criminal courts of this country acquired jurisdiction, pursuant to Section 134 of the Criminal Justice Act 1984 (SiC), to prosecute Senator Pinochet for torture committed outside the territorial jurisdiction, provided that it was committed in the performance, or purported performance, of his official duties. Section 134 was passed to give effect to the rights and obligations of this country under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, to which the United Kingdom, Spain and Chile are all signatories “

(my emphasis by way of underlining added)

Once again the same observations, as apply in relation to the opinion of Lord Brown-Wilkinson, equally apply here also. Accordingly, I therefore conclude that, whilst Lord Millett was manifestly correct to draw attention to the fact that his bold and forthright views on the extra-territorial, and indeed extra-statutory, common law jurisdiction of criminal courts in this country (as set out in the first quote from his opinion given above) stood in splendid isolation to those of his brethren ; none the less, that was solely as regards to his claims to the “extra-territorial” nature of that jurisdiction, it was most assuredly not as regards any refutation of the capacity of the common law to adopt the offence in question, from customary international criminal law, and enforce it in respect of such conduct, committed in this country, whether by British nationals or foreigners.

Naturally, and without wishing to be seen as commenting adversely, on the bold obiter observations of Lord Millett (above), as to possibility of there having been a “extra-statutory” extra-territorial jurisdiction in the criminal courts, to prosecute for torture prior to the Act of 1988, it is sufficient to point out, for present purposes, that the present Claim is not reliant, in any manner whatever, upon such a bold assertion as to the existence of such a jurisdiction. The mere fact that there is no record of such a prosecution having taken place heretofore, as regards torture committed in this Country, I respectfully submit, is testimony to the erstwhile peaceableness of this formerly competent democratic nation state, and the presumptive lawfulness of our system of government, where state torture was generally anathema ; rather than any suggestion of any lack of powers in the criminal courts of this land to deal with such barbaric and heinous outrages to the conscience of the community of the civilised world.

1. R. v. Bow Street Magistrate, ex p. Pinochet (No.3) [1999] 2 WLR 827 (HL{E})

2 ibid @ p.912A

3. ibid @ p.912 E

4. It is most instructive to note here that since the decision in ex p. Pinochet (No.3) in 1999, s.2 of the Act of 1989 (the “Extradition Act”) has been further amended by s.72 of the International Criminal Court Act, 2000 (introducing a new sus-section ss2(3A) into the Act) . The reason for this is because - whilst Parliament chose to extend the “extra-territorial jurisdiction” of the courts in this country, to capture the offences of genocide, crimes against humanity and war crimes, under that Act (the 2000 Act), when committed abroad by British nationals (etc.), it chose not to so extend it to capture such conduct by foreigners. However, it never the less accepted that, if other States, Party to the Rome Statute of 1998, were to choose to so extend the “extra-territorial jurisdiction” of their national courts, so as to be able to try crimes committed elsewhere by foreigners (ie “complete universality”); then pursuant to the obligations entered into by the Crown under that international statute, such States would be entitled to expect the UK to extradite persons so accused if so requested, notwithstanding that they could not be dealt with in the UK in “corresponding circumstances”. Accordingly, the effect of the amendment is now to entirely remove the application of the “double criminality” rule in relation to extradition sought as respects any of the crimes set out in the ICC Act, 2000.

5. ibid @ p.833

6. ibid @ p.876

7. ibid @ p.925

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