Leave Your Hat on? Head of State Immunity and Pinochet

Abstract

Pinochet represents a victory for international human rights law. Faced with the traditional doctrine of head of state immunity, jus cogens crimes have triumphed. The House of Lords has recognised that certain crimes cannot be excused, and thus marked the beginning of the end of the age of impunity. The implications of the decision extend far beyond Pinochet's trial. They include the possibility of other perpetrators of serious international crimes being brought to justice. However, the decision also heralds a new uncertainty. A broad head of state immunity has been replaced with the potential for a somewhat indeterminate and uncodifed set of jus cogens crimes being applied selectively and interpreted differently by the national courts of powerful countries. While it is easy to overstate the potential disruptive effect the decision could have on international relations, it is certainly true that it underscores the need for the new ICC, with its defined crimes, independence and jurisdiction based on the consent of states. While states may have originally viewed the ICC as an unwelcome intrusion into state sovereignty, the Pinochet decision could well change that view. States may consider it better to concede some sovereignty to the ICC than to lose even more through the enforcement of international human rights by the national courts of other states. Governments have repeatedly said that crimes such as hostage taking and torture are unacceptable and that those responsible should be called to justice. The House of Lords has given substance to that rhetoric, but national courts are a poor second choice in the prosecution of international crimes. Now it is up to governments to support the ICC and move these matters to a truly international forum.