Section 2: The Pinochet Case

A bitter pill for Pinochet.

For 83-year old General Augusto Pinochet, his regular trip to London is this year turning into a nightmare. First an aching back forces him to seek medical treatment. Then, as he lies still groggy after surgery, a squad of London policemen barge into his hospital room to deliver an arrest warrant at the behest of some Spanish magistrate. The British government ignores his claim of diplomatic immunity. A respite comes when Thomas Bigham, England's Lord Chief Justice, A bitter pill for Pinochet rules that the general enjoys legal immunity as a former head of state. Then, after weeks of legal argument, the judicial committee of the House of Lords, Britain's highest court, overruled Lord Bigham and declared that the general could be extradited to Spain after all.

In what will become a landmark case in both British and international law, the five Law Lords ruled in a 3–2 split decision that murder, torture and hostage-taking are not the functions of a head of state, and so do not enjoy immunity from prosecution.

Then Jack Straw, Britain's home secretary, took the decision to extradite the general to Spain to face charges of crimes against humanity. The High Court granted the general the right to appeal the home secretary's decision. The three-judge panel delayed the appeal hearing until after April 15. In the meantime Pinochet must remain in custody, the judges ruled, denying a request from his lawyers that he be «set at liberty and returned to Chile».

Whatever General Pinochet's fate, the Law Lords' ruling is a giant step towards establishing the rule of international law. Over the past 50 years, nations have agreed a range of treaties outlawing the systematic murder, torture and arbitrary imprisonment perpetrated by General Pinochet and his sort. Many of these treaties explicitly rule out immunity for any official, including a former head of state. But these provisions have rarely been translated into national laws or applied by national courts. The perverse result has been that anyone who commanded the murder of thousands had nothing to fear from the law, while the murderer of a single person could be pursued to the ends of the earth.

In General Pinochet's case, individual countries have also shown themselves more willing than ever before to put a tyrant on trial. Relatives of victims and survivors of General Pinochet's brutal regime are scattered throughout Europe. At their urging, prosecutors across the continent have launched proceedings. France, Switzerland and Belgium are now also seeking the general's extradition. Authorities are pursuing investigations against him in Germany, Luxemburg, Sweden and Italy as well.

Nevertheless, the attempt to bring the world's greatest criminals to justice is only just beginning. It may be years before the planned permanent international criminal court is established. As the close decision by the Law Lords makes clear, much also remains to be done to give national judges the tools to apply international law.

As the Pinochet case has shown, mounting an international prosecution is enormously difficult even when there is plenty of evidence of wrongdoing. What's more, international arrests and extraditions remain as much a political as a legal proceeding. Courts can only rule whether they are legal. Political leaders everywhere have the final say about whether they go ahead.

§ Vocabulary notes