ESQ Legal Practice Magazine JUNE 2014 EDITION | Page 56

United Kingdom at the time
when the alleged offence was
committed and; that
extraterritorial torture did not
become a crime in the United
Kingdom until Section 134 of
the Criminal Justice Act 1988
came into effect on 29
September 1988; and that,
accordingly, all the alleged
offences of torture and
conspiracy to torture before
that date and all the alleged
offences of murder and
conspiracy to murder which
did not occur in Spain were
crimes for which the applicant
could not be extradited,
ii) Allowing the appeal in part
that, a former head of state
had immunity from the
criminal jurisdiction of the
United Kingdom for acts done
in his official capacity as head
of state pursuant to Section 20
of the State Immunity Act 1978
when read with article 39(2) of
Schedule 1 to the Diplomatic
Privileges Act 1964.
Torture was an international
crime against humanity and
jus cogens and after the
coming into effect of the
International Convention
against Torture and other
Cruel Inhumane or Degrading
Treatment or Punishment
1984, there had been a
universal jurisdiction in all the
Convention State parties to
either extradite or punish a
public official who committed
torture and in that light of
universal jurisdiction, the
State parties could not have
intended that an immunity for
ex – heads of states for official
acts of torture would survive
the ratification of the
Convention.
10] IMPLICATIONS OF
PINOCHET'S FAILURE TO
SECURE SOVEREIGN
IMMUNITY
The above court proceedings
literally changed the law and
'opened the eyes of the law'.
The decision in the Trendtex
case which disallowed
sovereign immunity from
being a shield against
commercial liability had gone
full circle to recognize that
irresponsible leadership or
leaders who traumatise,
torture, oppress and maltreat
their subjects and others can
be held accountable anywhere
in the world, even if their
government or successors seek
to protect them. For example,
torture as an act that is
condemnable globally and
where the state is involved,
the condemnation is even
louder. Even though faced

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with tough decisions in its
effort to combat terrorism, the
George W. Bush led
administration in the United
States of America could not
defend its adoption of torture
like interrogation techniques
of suspects detained at
Guantanamo Bay. The attempt
was seriously condemned
within and outside the United
States and the 1863 "famous
instruction" by President
Abraham Lincoln that
"military necessity does not
admit of cruelty" should not
be discarded. In fact the new
interrogation techniques
employed by the Bush
administration was found to
be in violation of the Geneva
Convention in the case of
Hamdan v. Runsfeld by the
United States Supreme Court.
The world has witnessed trials
of war criminals since the 2nd
World War. These include
world the indictment and
trials of persons accused of
crimes against humanity
(torture included). The world
is also now witnessing trials
and extradition of government
leaders and Heads of State,
who commit financial crimes
in their countries but seek to
find safe havens overseas. The
Trial of Pinochet has changed
the jurisprudence of sovereign
immunity. We wait to see how
far this change would go.
African leaders, particularly
Nigerian leaders should take
note as the law of sovereign
immunity is eroding fast and
they may not have a shield
when the day of reckoning
comes.
Pinochet's last years saw his
health failing rapidly. Apart
from the London Trials, in
2004 a Chilean Judge, Juan
Guzman Tapia, ruled that
Pinochet was medically fit to
stand trial and placed him
under house arrest. By the
time he died in December
2006, he had about 300
criminal charges pending
against him worldwide for
numerous human rights
violations, tax evasion and
embezzlement of over US $ 28
million of Chilean state funds.
11] CONCLUSION
I am inclined to support the
view that official corruption is
a crime against humanity.
Official corruption denies
people basic amenities such as
electricity, water, roads,
hospitals, emergency services,
security and other essentials of
life thereby leading to
unnecessary deaths, abject
poverty and suffering by the

people if a country. Official
corruption can be equated to
torture under which Pinochet
was to be extradited and
prosecuted.
I began this paper by stating
that international law and the
doctrine of sovereign
immunity is still in a
formative stage and it has
continued to witness changes
as witnessed in the Trendtex
and more significantly, the
trials of Augusto Pinochet. It is
however regrettable that
Nigerian law is yet to establish
clear principles on this
important aspect of law. While
the United Kingdom has the
State Immunity Act of 1978,
their courts have also had
occasion to pronounce on the
law in cases. Nigeria .is even
yet to participate and be a
signatory to the United
Nations Convention on
Jurisdictional Immunities of
States and their Property.
Senegal became a signatory in
2005, while Sierra Leone
became a signatory in
September 2006.
The changes in the attitude of
the law towards the notion of
Sovereign Immunity is further
confirmed by the comments
posted on page 52 of "The
Commonwealth Lawyer" Vol.
20, No1, April 2011 which is
the journal of the
Commonwealth Lawyers
Association. The journal noted
"that in the face of regional
and international
developments, former
understandings of State and
Nation and of Sovereignty
were increasingly out-dated".
It continued further: "At a
Supranational level, this idea
has already raised the sceptre
of a new legal order based on
a European super state with
the potential further to
transcend traditional views of
sovereignty and the sovereign
state.
There is thus a move towards
a gradual erosion of many
areas hitherto covered by
sovereign immunity. The
International Criminal Court
has increased the intensity of
its work over the years.
Erstwhile dictators and
strongmen are being made
accountable for their misdeeds
and sovereign immunity does
not count for much. Even
issues of International Rule of
Law are now engaging the
attention of National Courts
and domestic Judges in
different jurisdictions.
I wish to end this paper with
the words of learned author
Olasupo Shashore SAN in his

work which I referred to
earlier where he wrote at
pages 193-194.
"At present Nigerian law on
the subject و