The most remarkable aspect of the Pinochet judgment was the media’s failure to grasp what it means – and what it does not mean. Their errors seriously misled the public and clouded understanding of why the law must take its course in respect of General Pinochet.
The rationale of the Law Lords’ decision (by a majority of three to two, that Pincohet does not enjoy immunity from extradition) was very simple: first, all heads of state enjoy absolute immunity from criminal or civil proceedings; second, former heads of state will lose that immunity only if a court holds that there is solid evidence that they have personally ordered or masterminded a “crime against humanity”. And finally, this crime is narrowly defined. It is limited to genocide or to personally ordering widespread and systematic torture, hostage-taking and summary executions.
Responses to this utterly sensible decision verged on the hysterical. “If Pinochet is guilty so is HM the Queen,” screamed a headline in the Sunday Telegraph. “Her Majesty is especially vulnerable,” warned one columnist. Yet the Queen, as head of state, has absolute immunity and, if she ever retires and travels abroad, she could never be shown personally to have ordered any crime, let alone widespread and systematic executions.
In the same paper another commentator announced “the Spanish could also seek the extradition of Baroness Thatcher for her part in the sinking of the Belgrano“. Since Margaret Thatcher has never actually been head of state, and the sinking of the Belgrano was not a “widespread and systematic” crime against humanity but a matter of judgement during a declared war, the journalist was peddling another fantasy. So was the Independent commentator who feared that Edward Heath might be extradited to Dublin because “the in-depth interrogation” briefly practised by the British army amounted to torture. Since the European Court has held, definitely, that it did not, his premise was wrong.
Many other commentators, and even editorials, suggested that the decision turned on two judges being born in South Africa, and being also (in some undefined way) “liberal”. This was ridiculous. None of the three judges who decided against Pinochet’s immunity had any background in civil liberties at all: they were chancery and commercial lawyers, from the “black-letter” bar. It is ignorant to describe Lord Hoffmann, one of those three, as a “liberal” and Lord Slynn (a dissenter) as “conservative” – in terms of their approach to legal theory (for example, in death-sentence cases from Jamaica), the opposite is true.
Another howler from the pundits is that the “crime against humanity” was an invention of idle academics and human rights activists. Not so. It was first described, in words that made the world weep, by Richard Dimbleby, as he surveyed the scene at Belsen on its liberation by British forces in May 1945. (“This day at Belsen is the most horrible day of my life.”) Crimes of this level of iniquity are “against humanity” because the very fact that they can be conceived and ordered by a fellow human diminishes us all.
This was clearly understood by the lawyers who drafted article 7 of the Nuremburg Charter: “The official position of defendants as heads of state . . . shall not be considered as freeing them from responsibility or mitigating punishment.”
This principle – that heads of state are not immune from crimes against humanity – is found in binding treaties signed by both Chile and Britain: the Conventions against Genocide and Torture and Hostage-Taking (signed and ratified by the Thatcher government); the Statute of the Tribunals established in 1993 to try war crimes in former Yugoslavia and Rwanda; and the Statute of the International Criminal Court agreed by 120 nations in Rome in July. It is this principle that the Law Lords brought home to British law last week.
The media have not been clear about the legal position of the Home Secretary. All he has to decide at this point is whether the extradition request should go ahead. The court then has wide powers to discharge Pinochet, if the former Chilean dictator can show that it would be “unjust or oppressive” to send him to Spain. If he fails, then and only then does the case come back to the Home Secretary with his special power to disagree with the court and free the defendant. The only reason that should stay Jack Straw’s hand next week is if he is presented with convincing medical evidence that Pinochet is terminally ill, genuinely suicidal or too mentally unbalanced to give coherent instructions to his lawyers.
The Chilean government says it would be prepared to put him on trial, but no one who has honestly looked at the legal position believes this will be possible. Pinochet comes within the “amnesty” he gave to the death squads in 1978; he extracted a wider amnesty as the price of allowing democracy in 1990; this year he became “senator for life” which bestows further immunity from prosecution. The British government would look a lot of chumps if they swallowed Chile’s offer and sent him back for his hero’s welcome.
Straw should consider the case of Manuel Contreras, the former head of the DINA, Chile’s secret police, convicted of ordering the 1976 Letelier bombing in Washington. At American insistence, this was the one crime committed by the regime that was not “amnestied”. So why was Pinochet not prosecuted for approving it? Because Pinochet will never be prosecuted in Chile. And what happened to Contreras after he was jailed in 1995? Why, Pinochet spirited his old henchman away to a hospital on a military base.
For all these reasons, it would damage the rule of law in Britain if the Home Secretary at this stage made a political intervention in the legal process.
There is one proper basis upon which Straw might intervene, with the consent of the Spanish government, and that is if Britain decided to set up an international tribunal to hear his case. Britain could request the Security Council to extend the remit of the Hague tribunal, which is already in place to try allegations of crimes against humanity in Bosnia. That would mean despatching Pinochet to Amsterdam for a televised trial in front of distinguished international judges, at present twiddling their thumbs while Nato fails to arrest Radovan Karadzic and Ratko Mladic.
The starkest fact about the Pinochet case is that the general admits doing the acts which constitute the crime against humanity. He does not dispute the orders to set up the torture centres or put the DINA in charge of “disappearances”. His defence can be only that he gave those orders out of military necessity – that it was necessary to torture 80,000 and to kill 4,000 in order to save more lives. It is a defence that must be told to a judge.
Meanwhile, the Law Lords’ decision does mean that a handful of former heads of state can be brought to trial. The Foreign Office should now be preparing the extradition request for Idi Amin, currently in retirement in Saudi Arabia after killing an estimated 73,000, quite a few of them British citizens. And there is Mengistu Haile Mariam, the mass-murdering Ethiopian Marxist, who is, disgracefully, being sheltered by Robert Mugabe.
The media have all assumed that Pinochet’s arrest gives Straw a major problem, that he is “on the hook”. Really? He does not have a problem, although he has a privilege. It is the privilege of pulling a legal lever that will put Pinochet in the dock of Bow Street Magistrates’ Court on 11 December 1998, 50 years, virtually to the day, after the Declaration of Human Rights. What happens afterwards does not matter – the message will go out to the tyrants of the 21st century: you can hide, but you cannot run.
Geoffrey Robertson, QC, is the author of “The Justice Game” and the forthcoming “Crimes against Humanity”