Both the anti-Pinochet crowd that had gathered outside the House of Lords in London and the Pinochet supporters at the Pinochet Foundation in Santiago, Chile, cheered and celebrated soon after the seven Law Lords gave the gist of their judgments live on radio and television. Both pro-Pinochet and anti-Pinochet groups have claimed “victory” when they commented on the third — not necessarily the last — judgment the Law Lords have given in less than four months regarding Pinochet. What in the name of the (Law) Lord(s) does this latest decision signify?
On Nov. 25, 1998, a panel of the judicial committee of Britain’s House of Lords, by a 3-2 vote, decided that Gen. Augusto Pinochet, as a former Chilean head of state, did not have “sovereign immunity” from the British and Spanish judicial processes.
Soon after this landmark decision, Pinochet’s lawyers appealed to another committee of the Law Lords arguing that the decision should be vacated because one of the Law Lords in the majority in the first case, Lord Hoffman, was an unpaid director of Amnesty International. Amnesty had made representations to the first panel of Law Lords, arguing that Pinochet should not be accorded sovereign immunity. Pinochet’s lawyers argued that the judgment in Pinochet I — in which Lord Hoffman was in the majority — was tainted by the appearance of bias and should therefore be vacated. On Jan. 15, a panel of five Law Lords unanimously set aside the the decision and a fresh hearing took place before an entirely new panel of Law Lords.
A brief observation is pertinent at this point. The unprecedented setting aside of the earlier decision was based on a cardinal principle of administrative law: No man shall be a judge in his own cause. It is one of the twin founding principles of natural justice. (The other is “hear the other party.”) Pinochet never accorded any “natural justice” to the thousands of his victims when his security forces who, allegedly on his direct orders, kidnapped, killed and tortured them. Yet the general had his “second bite of the cherry.” I mention this, not to challenge the decision to vacate the earlier judgment, but to illustrate how ironically different was the treatment accorded by Pinochet to his victims from that which British law afforded him.
On March 24, the long-awaited Pinochet III decision was announced. It was arguably Solomonic in nature. Five of the seven Law Lords held, in effect, that Pinochet had no immunity in relation to events that occurred after Sept. 29, 1988. The reason, according to the majority, was that it was on that date Britain ratified the international convention on torture. Hence only three out of the 33 original charges — including that of torture, hostage-taking and other crimes against humanity — can be considered by a British court if and when it hears the extradition request by Spain. (This is contingent on the British Home Secretary Jack Straw allowing the proceedings to go ahead.)
Strictly speaking, it would be more appropriate to say that there is a plurality of opinions in Pinochet III. First, there is the dissenting opinion of Lord Goff of Chieveley that Pinochet had absolute immunity before and after Sept. 29, 1988. Second, there is the majority opinion of five judges that even “appalling acts of barbarism”‘ (to quote Lord Browne-Wilkinson) that were committed by the direct orders of Pinochet before Sept. 29, 1988 were not extraditable offenses and only those acts that were committed after the cutoff date can become extraditable crimes under both the Torture Convention — to which Chile, Spain and Britain were state parties by that date — and Britain’s Extradition Act of 1989. Finally, there is the opinion of Lord Millett that “state immunity is not a personal right” and that “torture and conspiracy to torture wherever and whenever carried out” would not or should not be covered under the modern doctrine of state immunity.
Lord Millett also observed that “we have come a long way from . . . the classical theory of international law — a long way in a relatively short time.” It is a bit of a disappointment that the “plurality” opinion did no go “all the way” with Lord Millett (and progressive principles of contemporary international law) by endorsing his stirring enunciation of modern international legal principles. If the majority had accepted Millett’s powerful reasoning and judgment, they would have ruled that at least as far as torture is concerned, and regardless of the time and place it was carried out, a former head of state like Pinochet is not immune from legal processes under the modern doctrine of state or sovereign immunity.
But the importance and significance of the majority/plurality judgment should not be underestimated, even though it may have fallen short of the progressive principles of international law. Nine of the 12 judges from Britain’s highest judicial body who considered Pinochet’s claim of immunity in two different judicial panels, either in full or in part, ruled that at least some of the “appalling acts of barbarism that were committed during the period of the Pinochet regime” do not warrant legal protection.
And now? Every delaying tactic, legal trick and every possible political, diplomatic or other form of pressure will be used by Pinochet’s defenders and supporters to nullify, thwart or delay his extradition. Jack Straw, the home secretary, may still allow Pinochet to return to Chile on either “compassionate” or other grounds. (Some international lawyers have pointed out that the British government has, under the torture convention, a legal obligation to either extradite or prosecute an alleged torturer and if it does not do so it would be in breach of its international legal obligations.) Yet regardless of the factual outcome of the case — whether Pinochet is extradited to Spain or not — the international legal principles that emerged from the Pinochet cases as decided by the Law Lords do not — legally — provide any great comfort to Pinochet and his supporters. Pinochet’s “second bite at the cherry” may not turn out to be “sour” — since he may still go scot free — but it is by no means “sweet” as far as the legal judgment and position are concerned.
The decisions in the Pinochet I and Pinochet III cases enhance the role and position of international legal and moral principles protecting human rights.
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