It is certainly true that in Pinochet (No 1) and Pinochet (No 3) certain members of the House held that acts of torture could not be functions of a head of state or governmental or official acts. I have some doubt about the value of the judgments in Pinochet (No 1) as precedent, save to the extent that they were adopted in Pinochet (No 3), since the earlier judgment was set aside, but references may readily be found in Pinochet (No 3): see, for example, p 205 (Lord Browne-Wilkinson, pp 261-262 (Lord Hutton). I would not question the correctness of the decision reached by the majority in Pinochet (No 3). But the case was categorically different from the present, since it concerned criminal proceedings falling squarely within the universal criminal jurisdiction mandated by the Torture Convention and did not fall within Part 1 of the 1978 Act. The essential ratio of the decision, as I understand it, was that international law could not without absurdity require criminal jurisdiction to be assumed and exercised where the Torture Convention conditions were satisfied and, at the same time, require immunity to be granted to those properly charged. The Torture Convention was the mainspring of the decision, and certain members of the House expressly accepted that the grant of immunity in civil proceedings was unaffected: see p 264 (Lord Hutton), p 278 (Lord Millett) and pp 280, 281, 287 (Lord Phillips of Worth Matravers). It is, I think, difficult to accept that torture cannot be a governmental or official act, since under article 1 of the Torture Convention torture must, to qualify as such, be inflicted by or with the connivance of a public official or other person acting in an official capacity. The claimants' argument encounters the difficulty that it is founded on the Torture Convention; but to bring themselves within the Torture Convention they must show that the torture was (to paraphrase the definition) official; yet they argue that the conduct was not official in order to defeat the claim to immunity.
The claim, then, is that the Pinochet judgment decided that the torture convention implied a specific exception to the rule of state immunity in criminal proceedings only; and the Court is unprepared to, as I suggested it might, turn back on the dicta of Lords Millet and Phillips (as Lord Phillips himself did in the Court of Appeal judgment) that the state, while not impleaded in criminal cases, is indirectly so in civil proceedings and as such immunity attaches to the latter.
On this point, Lord Bingham notes the "error" of the Court of Appeal
that a civil claim against an individual torturer did not indirectly implead the state in any more objectionable respect than a criminal prosecution. A state is not criminally responsible in international or English law, and therefore cannot be directly impleaded in criminal proceedings. The prosecution of a servant or agent for an act of torture within article 1 of the Torture Convention is founded on an express exception from the general rule of immunity. It is, however, clear that a civil action against individual torturers based on acts of official torture does indirectly implead the state since their acts are attributable to it. Were these claims against the individual defendants to proceed and be upheld, the interests of the Kingdom would be obviously affected, even though it is not a named party.
1) Based on the Arrest Warrant decision of the ICJ (ICJ Rep 3 ), which held that immunity rationae personae can be claimed for a serving foreign minister accused of crimes against humanity, it is clear that the international prohibition of such norms, "having the same standing as the prohibition of torture", does not override all other rules of international law, including those on state immunity. He also cites an unreported ICJ case, Democratic Republic of Congo v. Rwanda (3rd Feb 2006) as authority for the propostion that breach of a norm of jus cogens is not itself sufficient to create jurisdiction in national courts.
2) Article 14 of the Torture Convention does not create universal civil jurisdiction. Both Lords Bingham and Hoffman (paras. 20 and 56 respectively) note the "understanding" lodged by the US at the time of its ratification of the Torture Convention to the effect that "Article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in the territory under the jurisdiction of that State Party", which received no objection from other Parties. Even though this was twenty years ago, it is unlikely that the US will have changed its mind, or that a norm of custom to the contrary will have crystallised in the intervening period.
3) The UN Immunity Convention of 2004 (signed but not yet ratified by the UK, but still held to be "the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases" - for an analysis, see here) makes no reference to an exception for torture or other jus cogens, a fact which is "wholly inimical to the claimants' contention" - also noting that many commentators have criticised the Convention and opposed ratification thereof on precisely these grounds.
4) There is no other evidence to suggest that states "have recognised or given effect to an obligation to exercise universal jurisdiction over claims arising from alleged nbreaches of peremptory norms of international law", and nor is there any doctrinal consensus on this matter.
Despite these persuasive contentions, however, I still have a lingering sense of incoherence between this judgment and that rendered in Pinochet No. 3; my own view is that the claim that the Torture Convention implied that acts of torture could not be considered "official" acts for the purposes of state immunity functioned as premise rather than dicta in at least some of the majority opinions - and this is the point on which this whole case has turned. The Law Lords here, however, have tried to separate the "essential ratio" of the earlier decision from what hey see as the dicta of some of the judges therein, as they are perfectly entitled to do. Given, however, the sheer volume of lengthy separate opinions in the case(s), and the mass of dicta that this inevitably contains, it is hard not to conclude that the Pinochet affair has left something of a jurisprudential mess.
This case goes at least some way to clearing that up. That judgment, we can now say with some confidence, should not be read as suggesting that the Torture Convention necessarily implied that acts of torture could not be "official" state acts; rather that they are official acts, but that it created a particular exception to the law of state immunity for criminal proceedings. Thus, Lord Bingham argues that (para. 30) although "A state can only act through its servants and agents; their official acts are acts of the state; and the state's immunity in respect of them is fundamental to the principle of state immunity", the international community has together recognised an exception to that principle, to be narrowly construed as applying to criminal proceedings only.
It could, of course, have been otherwise. The opposite position was defensible, as the Court of Appeal judgment shows, if the proposition that the Torture Convention had established that acts of torture could never be "official" state acts (relying on a distinction between "official capacity" and "official act" to overcome the contradiction that Lord Bingham alleges the claimants in this case are trapped by) were to be read as premise rather than dicta in the Pinochet judgment. As always in international law, it would be a mistake to look for purity in argument, that we should be compelled, rather than simply persuaded by the ratio of any decision. This being said, however, after my brief engagement with this judgment, it seems that the more persuasive legal reasons in terms of international law do indeed favour the decision reached by the Law Lords in this case. I thus recant my comments in the earlier post...