Donn Carlo Servando Public International Law

2 –E Dean Sedfrey Candelaria

Regina vs. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet
Facts : On September 11 1973, a coup that was led by a military junta evicted the regime of
President Allende of Chile. The leader of the coup was General Pinochet. Pinochet subsequently
became the head of State for Chile. During his regime, Chile was met with several human rights
violations at a large scale including torture, murder, hostage-taking and unexplained disappearance
of individuals. Although it is not alleged that it was Senator Pinochet himself who committed the
atrocities, it is alleged that the violations were done with Pinochet’s knowledge, consent and that
it was done under his regime. The Pinochet regime ended on March 11 1990. Sometime in 1998,
Senator Pinochet came to London, United Kingdom for medical treatment. Meanwhile, criminal
complaints were filed against Pinochet in a Spanish Court by private citizens claiming that Spanish
citizens were killed in Chile during his regime. The Metropolitan Magistrate issued a provisional
warrant to arrest Pinochet. However, Pinochet was claiming immunity as a former head of state,
and that he cannot be held to stand for trial.
Issue : Whether or not Pinochet has state immunity and hence cannot be held to stand for trial
Held : No, Pinochet does not have state immunity. Hence, Pinochet must face trial.
Ratio : His state immunity ceased to exist when his state leadership ended. Furthermore, the acts
of murder, torture and other human rights violations cannot be held as acts that are in pursuance
to the functions of a head of state. The court explained that while in position, a head of state enjoys
immunity which attaches to his person as the head of state. However, this is not necessarily true
with a former head of state. In addition, the Court even discussed Pinochet cannot also invoke state
immunity even if he was still a head of state at the time of arrest because under customary
international law and pursuant to the Torture Convention in which Chile was a party, acts of
torture, murder ,hostage-taking and other human rights violations committed by a head of state
will not fall under the doctrine of state immunity.