Immunity Versus Human Rights: The Pinochet Case

Abstract

In the Pinochet case the former head of state of a foreign country has been held accountable for the first time before a municipal court for acts of torture allegedly committed while he was in his post. The unprecedented character of the case causes one to ask whether municipal courts may properly complement international tribunals in the enforcement of international criminal law, and, if so, to what extent a plea of immunity or non-justiciability may be available. The divide within the House of Lords on the interpretation of the scope of application of jurisdictional immunities to foreign heads of state as regards crimes of international law hardly hides a more profound conflict based on the different perception of what values and interests should be accorded priority in contemporary international law. This article argues that neither jurisdictional immunities nor act of state and other doctrines of judicial self-restraint are consistent with the notion of crimes of international law and that the quest for normative coherence should induce a reappraisal of the relationship between human rights and the law of jurisdictional immunities.