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 win on appeal the reversal of the London magistrate's decision on Oct. 8 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.
accountability
It must not happen. The rulings so far -- by Britain's highest court, the House of Lords, and by the magistrate -- crystallized 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 the chief prosecutor, US 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 US 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.
stay the course
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.
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