LONDON- The legal pursuit of the Chilean ex-dictator Augusto Pinochet has reached a defining moment. His legal options have been whittled away, although theoretically he could still on appeal win the reversal of the London magistrate’s decision on October 8th. to allow his extradition to Spain for trial. It now seems clear that his legal team are advising him to change tactics and depend more on clemency than legal manoeuvres. Earlier this week, Chile appealed formally to Jack Straw, Home Secretary in the government of Tony Blair, to release him on the grounds of his deteriorating health. Yesterday the Spanish government, never happy with the action of magistrate Balthasar Garzon, who initiated the action against Pinochet, added its voice to Chile’s, saying it would have no objection if he were now released.
It must not happen. The rulings so far- by Britain’s highest court, the House of Lords, and by the magistrate- crystalized half a century’s debate on the legal and political problems of accountability for crimes against humanity. For the first time in a high court anywhere it has been decided that sovereign immunity must not be allowed to become sovereign impunity. For that we have to thank most of the nations of the world, including Chile, who in the late 1980s and early 1990s put their signatures to the UN Convention Against Torture and thus laid the legal basis for the British ruling.
The doctrine of immunity was first challenged successfully by chief prosecutor, U.S. Supreme Court Justice, Robert Jackson at the Nuremberg trial of Nazi leaders. But afterwards the notion appeared to lapse and, as legal expert Geoffrey Robertson writes in his new book, “Crimes Against Humanity”, “remained for decades a talking point only in university common rooms. Until the Serb and Croat bloodfeuding it had no practical application other than as a legal lasso for old Nazis like Eichmann and Barbie.”
Had Pinochet flown to New York rather than London and taken tea with Henry Kissinger rather than Margaret Thatcher, the legal net would probably never have closed. Even if he had been arrested his fate would have been determined by politics rather than law. The State Department would have probably sent the court a “suggestion of immunity”, reasoning that Chile was a friendly state and wishing to avoid the publication of embarrassing details about the U.S. role in Pinochet’s coup d’etat. Likewise, in most of Europe the issue would have been rapidly settled by the government weighing up the costs to political alliances and trade, as indeed the Spanish government has done.
But the British government, for reasons not yet totally clear- is Blair’s idealism that absolute?-has decided thus far to let the law take its course.
The pressures upon the British government to call it a day and issue a humanitarian reprieve are immense. The law has made its point, it is said. A shot has been fired across the bows of all present and future dictators and mass torturers who will know from now on that they cannot behave like this at home and expect to travel thereafter. Pinochet is very old and his ordeal has been punishment enough. And anyway if he does go to trail in Spain and is convicted, according to Spanish law he can’t be sent to jail at his age. Does a humane Britain then have to insist on the coup de grace? Enough is enough.
All this is to miss the main point. Pinochet’s crimes were no ordinary crimes of the maintenance of political authority in a time of turbulence. They continued until 1990, long after Pinochet announced in 1978 that the “communist threat” to Chile had ended. “The rituals of torture were intended to send horrific whispers throughout the populace”, says Robertson. Pinochet, the smiling, stately, grandfather figure is also the man who personally supervised the torture operations, with the boss of the torture unit, General Manuel Contreras, reporting daily and directly to him. He is also the man who on occasion joked that the “disappearances” had saved bereaved families the cost of coffins.
The determination now to be made by the British government is arguably the most important single legal ruling that will be made by any government since the decision made to execute German and Japanese war leaders. Compassion cannot properly be offered to someone who shared not one iota of compassion to victims who included children and pregnant women.To allow Pinochet his freedom now, before the line is properly drawn in history’s sands, would be fudge a major turning point in the world’s maturing understanding of jurisprudence. Seen properly to its conclusion with a trial in Spain it will lay down a marker for all time.
