The Extradition Question:
Immunity and the Head of State
By Sara Criscitelli
In 1999 the United Kingdom’s House of Lords justified the possible extradition of Augusto Pinochet, Chile’s former
head of state, to Spain for prosecution on torture-related
charges. Its decision in Regina v Bartle and the Commissioner of Police
for the Metropolis and Others Ex Parte Pinochet recognized that heads of
state generally enjoy immunity under international law; a
British statute also confers immunity upon them.
Nonetheless, it concluded, in the narrow circumstances presented
in that case, that the UN Convention Against Torture
or Other Cruel, Inhuman or Degrading Treatment (the
Torture Convention) and British domestic legislation
trumped Pinochet’s head of state immunity.1 Human rights
advocates hoped the decision would impel other nations to
bring heads of state to justice who commit atrocities in their
official capacities and presume impunity.2
Despite international pressure to follow the House of Lords’
lead in Pinochet, the extradition of a sitting head of state remains
virtually unthinkable. Although the decision was significant, it
has not substantially enabled national prosecutions of foreign
heads of state or actually eroded head of state immunity.
Indeed, the decision affirmed the immunity’s viability by find
ing that it may be overridden only in narrow circumstances.
Moreover, Pinochet has not inspired any other state to extradite a
sitting or former head of state to answer
criminal charges. In 2002 the
International Court of Justice (ICJ)
ordered that an arrest warrant issued by
Belgium for another country’s serving
minister of justice be quashed on grounds
of head of state immunity. The Court
stated that “in international law, it is
firmly established that, as also diplomatic
and consular agents, certain holders of
high-ranking office in a State, such as the
Head of State, Head of Government and
Minister for Foreign Affairs, enjoy
immunities from jurisdiction in other
States, both civil and criminal.”3
When a state brings criminal charges
against someone outside its territory, it
often looks to extradition as the process
for acquiring in personam jurisdiction over
the defendant; and when that defendant
is a present or former head of another
state, additional and sometimes disabling
complications ensue. The extradition
request often triggers a clash between the
existing protection of head of state
immunity and the treaty-based obligations
of the requested state to extradite
persons located within its territories. The
Pinochet decision may support the princi
ple that it can be acceptable under inter
national law to extradite a former head of
state, but it clearly does not guarantee
that any state will deny the extradition of
the former head of another state in
response to a treaty request.
Liability of State Actors:
Historical Precedence. Head of
state immunity has long been accepted in
international law, though its justification
and contours have been varied and
imprecise. The ICJ’s own observation
regarding head of state immunity echoes
the view of many international law
authorities that there exists a tradition of
absolute immunity of a sitting head of
state from the criminal jurisdiction of
other states.4 Head of state immunity is
also not formally provided for in inter
national agreements and is furthermore
not based on any single commonly
accepted principle. Nevertheless, over
the last sixty years, the once absolute
immunity of heads of state has eroded
with respect to a narrow class of universally
condemned acts.