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On 11 September 1973, General Augusto Pinochet Ugarte assumed power in Chile as a result of a military coup that overthrew the then government of President Allende. Pinochet was the Commander in Chief of the Chilean Army until 1974 when he assumed the title of President of the Republic. His presidency lasted until 1990 and his role as Commander in Chief until 1998. His regime was known for its systematic and widespread violations of human rights, with allegations of murder, torture and hostage taking of political opponents.

In 1998, during a visit to the United Kingdom for medical treatment, Pinochet was arrested by the English authorities with a view to extraditing him to Spain where a Spanish judge had issued an international arrest warrant. His extradition was, however, not to proceed smoothly as Pinochet applied to have the arrest warrant quashed on the grounds that as a former Head of State he enjoyed immunity from criminal proceedings.

By the present decision, the High Court of Justice quashed the arrest warrant on the grounds that Pinochet enjoyed immunity from criminal proceedings under the 1978 State Immunity Act. However, the Court delayed the effect of the quashing until such time as the matter had been decided on appeal to the House of Lords. 

On 11 September 1973, General Augusto Pinochet Ugarte assumed power in Chile as a result of a military coup that overthrew the then government of President Allende. Pinochet was the Commander in Chief of the Chilean Army until 1974 when he assumed the title of President of the Republic. His presidency lasted until 1990 and his role as Commander in Chief until 1998. His regime was known for its systematic and widespread violations of human rights, with allegations of murder, torture and hostage taking of political opponents.

In 1998, during a visit to the United Kingdom for medical treatment, Pinochet was arrested by the English authorities with a view to extraditing him to Spain where a Spanish judge had issued an international arrest warrant. His extradition was, however, not to proceed smoothly as Pinochet applied to have the arrest warrant quashed on the grounds that as a former Head of State he enjoyed immunity from criminal proceedings.

The present decision of 24 March 1999 by the House of Lords held that Pinochet is not entitled to immunity in respect of charges of torture and conspiracy to commit torture where such conduct was committed after 8 December 1988, the date upon which the 1984 Torture Convention entered into force in the UK. This temporal qualification significantly limited the charges for which Pinochet can be extradited to Spain as the majority of the conduct alleged was either not an extraditable offence or was committed prior to this date. Under English law, it was now for the Home Secretary, then Jack Straw, to decide whether or not to issue an authority to proceed with extradition. 

Momčilo Mandić, who was Assistant Minister of the Interior of Bosnia and Herzegovina (BiH) in April 1996, was indicted before the Court of BiH in 2006 on allegations of involvement in war crimes against civilians and crimes against humanity committed during the armed conflicts that broke out in the former Yugoslavia in 1991, and which lasted until 1995. Mandić was accused of directing the attack against the Training Centre for Personnel of the BiH Ministry of Interior – one of the events that sparked the war – and of ordering (or at least failing to take reasonable measures against) subordinates to detain and mistreat several non-Serb civilians.

Mandić was acquitted by the Court in first instance, as it could not be proved beyond reasonable doubt that he had been involved in these acts, and neither could it be established that he was, indeed, a superior with the possibility to either order such acts to be committed or to take measures against subordinates who were about to or had committed the acts. The prosecution appealed, but to no avail; on 1 September 2009, the Appellate Panel upheld the acquittal.

Ali Mahmud Ali Shafi is a Palestinian national who was spying for Israel until he moved to Israel in 1994. On his return to Palestine in 2001, he was arrested by Palestinian Authority (PA) security officers and subsequently brought to a PA security building where he was detained for several months. During that period, he was severely beaten, left without any clothes, and was not permitted to take a bath. In 2002, Ali Shafi was forced to sign a confession which was used as the basis for his conviction of killing the Palestinian leader Raed al Karmi and for spying for Israel. He was sentenced to death. However, in March 2002, Ali Shafi escaped.

In 2009, Ali Shafi brought a claim in the District Court for the District of Columbia against the PA and the Palestinian Liberation Organization. The District Court dismissed the complaint. On 14 June 2011, the Court of Appeals for the District of Columbia Circuit confirmed the decision because claims can only be brought under the Alien Tort Statute (ATS) against state actors. The defendants in this case were no state actors and therefore appellants failed to state a claim within the jurisdiction conferred by the ATS.

Hissène Habré, currently a resident of Senegal, was the President of the Republic of Chad from 1982 until 1990. During that time, he established a brutal dictatorship which, by the bias of its political police, the Bureau of Documentation and Security (Direction de la Documentation et de la Sécurité (DDS)) caused the deaths of tens of thousands of individuals.

Proceedings have commenced and failed against him in the Republic of Chad, Senegal, and most recently in Belgium. The latter State issued an international arrest warrant for Habré in 2005 for charges of crimes against humanity, war crimes, torture and serious violations of international humanitarian law. The request was never complied with; the Court of Appeal of Dakar in Senegal held that Habré enjoyed immunity and it was incompetent to rule on the validity of the arrest warrant for a former Head of State. Belgium instituted proceedings before the International Court of Justice (ICJ) alleging that Senegal was in violation of its obligation to prosecute or extradite Habré under the Convention Against Torture.

The present decision by the ICJ is the culmination of these proceedings. In its decision, the ICJ ruled that Senegal was indeed in breach of its obligations under the Convention and should proceed without further delay to the prosecution of Habré. It cannot rely on its internal law or financial difficulties to evade the implementation of this obligation.