LORD BROWNE-WILKINSON: A former head of state has immunity in relation to acts done as part of his official functions when head of state.... The question then which has to be answered is whether the alleged organisation of state torture by Senator Pinochet (if proved) would constitute an act committed by Senator Pinochet as part of his official functions as head of state.... I believe there to be strong ground for saying that the implementation of torture as defined by the Torture Convention cannot be a state function. . . . How can it be for international law purposes an official function to do something which international law itself prohibits and criminalises? An essential feature of the international crime of torture is that it must be committed "by or with the acquiescence of a public official or other person acting in an official capacity." As a result all defendants in torture cases will be state officials. Yet, if the former head of state has immunity, the man most responsible will escape liability while his inferiors (the chiefs of police, junior army officers) who carried out his orders will be liable. I find it impossible to accept that this was the intention.

LORD MILLETT: International law has not become a crystallised code at any time, but is a living and expanding branch of the law.

LORD GOFF OF CHIEVELY [the only one of the seven Law Lords who favored immunity]: There are many reasons why states, although recognizing that in certain circumstances jurisdiction should be vested in another national court with respect of acts of torture committed by public officials within their jurisdiction, may nevertheless have considered it imperative that they should be able, if necessary, to assert state immunity. ... In certain circumstances torture may, for compelling political reasons, be the subject of an amnesty, or some other form of settlement, in the state where it has been, or is alleged to have been, committed.