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K. KHUTSISHVILI, SHALL PROTECTION OF SOVEREIGN IMMUNITIES SUPERSEDE PROTECTION...
consideration: Pinochet case is recognized as
the first – and precedent creating case – allowing
exercise of jurisdiction of a national
court, not having any nexus with the perpetrated
crimes and not recognizing the immunity
of a former head of state in relation to international
crimes committed by him when in office
as a head of state. The criminal action
considered by the House of Lords as the one
not fitting the list of actions over which the
sovereign immunity must still be claimed, is
torture, an international crime, an act so heinous
that punishment of a perpetrator may be
allowed under universal jurisdiction. Still, the
decision of the House of Lords was very limited
and reserved 66 . It can still be considered
as a state-centered decision, not the human
rights oriented one. “Although at first glance
it appears as though the judges did not respect
Chile’s sovereignty because they denied
immunity without any explicit waiver of immunity,
each judge was cognizant of the sovereignty
question and justified the lack of the
immunity defense on the basis that Chile had
signed it away.” 67 As argued elsewhere, “the
Pinochet decision speak[s] to the continued
ascendancy of politics and state sovereignty
in the current international legal order”. 68
At any rate, the case is interesting for the
purposes of this essay, as the majority in the
First Pinochet Case concluded that “international
law has made plain that certain types of conduct,
including torture and hostage-taking, are
not acceptable conduct on the part of anyone.
This applies as much to heads of state,
or even more so, as it does to everyone else;
the contrary conclusion would make a mockery
of international law.” 69 The six to one majority
of the House of Lords in the Third Pinochet
Case held that Pinochet could not have
claimed immunity for actions perpetrated
against the Torture Convention. 70
Peter Carter puts a question: “Can it be
said that as a result of the Pinochet decision
there has now emerged a peremptory law of
general international law inconsistent with diplomatic
immunities contained in any treaties
insofar as they might appear to extend to international
crimes against human rights” and
his answer is extremely concise: “Possibly”. 71
As Christine M. Chinkin aptly mentions,
“[d]enial of the immunity … claimed for a
former head of state for official acts of torture
represented a choice between two visions of
international law: a horizontal system based
upon the sovereign equality of states and a
vertical system that upholds norms of jus cogens
such as those guaranteeing fundamental
human rights. The choice was not easy”. 72
As the issue of sovereign immunities is a
fairly controversial issue, there are different
views on the matter as well. “Writing critically
of the Lords’ decision in the Pinochet case,
Henry Kissinger talks of the tyranny of judges
replacing that of government, of prosecutorial
discretion without accountability and warns
that ‘historically the dictatorship of the virtuous
has often led to inquisitions and witch hunts’”. 73
When discussing yet another interesting
case for our purposes – a case of Yerodia 74 ,
Yang notes that “[w]hile affirming absolute
immunity from criminal jurisdiction and inviolability
enjoyed by incumbent Ministers for
Foreign Affairs, the Court avoided taking a
position on the legality of the purported exercise
of universal jurisdiction by Belgium. However,
since the Court approached the issue of
immunity by assuming that Belgium had universal
jurisdiction under international law, the
case definitely shows that, in international law,
universal jurisdiction is circumscribed by certain
rules, notable among which is the rule of
immunity.” 75 It has also been observed that
“[t]he problemp is that there is a considerable
uncertainty as to the present international law
relating to Heads of State and Government.” 76
This uncertainty needs to be solved in favour
of human rights protection, making States to
abandon their egoistic desires to protect themselves
from prosecutions. Protection of human
rights must be given a priority and this is especially
so in relation to crimes, termed “international”.
Therefore, a principle of prosecution
for international crimes must be recognized
as a principle coexisting with universal
jurisdiction and all states must be entitled to
exercise their jurisdiction over perpetrators of
such crimes, disregarding the status of the
perpetrator or any nexus of the crime with the
prosecuting state. Unfortunately, the situation
is not like this yet 77 , and as Fox notes, “absolute
immunity from criminal jurisdiction and
personal inviolability afforded to serving Heads
of State in office … appear to be generally in
line with current state practice”. 78 Deriving from
the judgment of the ICJ, “the immunities under
customary international law, including
those of Ministers for Foreign Affairs, remain
73