The appeal against the decision granting former Chilean dictator Augusto Pinochet 'sovereign immunity' is expected to be completed Wednesday. Whether Pinochet will be extradited to Spain or not hinges on prosecution lawyers asserting the primacy of international law, which does not accept immunity for heads of state regarding crimes against humanity, over British law as interpreted by the High Court this month.
Several leading authorities on international law have supported this position. The International Commission of Jurists called the High Court decision on Pinochet 'profoundly wrong' and said judges had 'neglected to take into account that the organised community of nations decided long ago to pursue and prosecute the authors of crimes against humanity'. Peter Burns, the president of the United Nations Committee Against Torture, said he was 'extremely surprised' by the ruling granting Pinochet immunity.
The legal arguments of Pinochet's lawyers seek to uphold both the High Court's stance and the 'sovereignty' of Chile in determining whether he is brought to justice. But this has been backed up with implicit threats of political violence by Pinochet's right-wing supporters and the military in the event of his extradition to Spain.
Clare Montgomery, representing Pinochet, said that the Law Lords should carefully consider 'the delicate balance between the interests of justice and state stability'. Deporting Pinochet to Spain would damage Chile's new democracy and had already stoked up tensions between the left and right, she said.
Over the weekend Pinochet issued a press statement that drew attention to other examples of 'reconciliation' in Northern Ireland and South Africa where 'wise decisions have been made not to revisit the past'. Pinochet singled out Spain, where Franco's dictatorship was now 'ignored'. 'My fellow citizens have come to terms with our nation's past. They are my true judges.... I am at peace with myself, and with the Chilean people, about what happened,' he concluded.
The issues raised by Pinochet and his lawyers point to the very heart of the political dilemma facing the British establishment and the potential repercussions that may also be felt in Spain if he is extradited. Pinochet is correct to point to the similarity of the so-called transition to democracy in Chile, South Africa and Spain. All three not only provided an amnesty for the crimes committed by the outgoing right-wing regimes, but preserved the economic and political interests of the ruling elite within the new constitutional arrangements.
For this reason, continued stability in all three countries depends first of all on continued efforts to sweep unresolved historical issues under the carpet and, secondly, on ensuring that nothing is done which threatens the status quo.
An insight into the real character of Chile's 'democracy' can be found in a briefing paper, aimed at influencing the Law Lords, from former members of the Chile Solidarity Campaign. Entitled 'Why Pinochet should not go free', it explains: 'On numerous occasions since the hand-over to a civilian president in 1990, those who have suggested that General Pinochet be prosecuted, have themselves been threatened, attacked, arrested or imprisoned, and actions against human rights violators have been frustrated.'
Amongst the examples cited are the imprisonment by a military court of three journalists in 1990; the suspension of a judge by the Supreme Court in 1991 for refusing to dismiss a case relating to the disappearance of 13 people; armed soldiers threatening court proceedings, the throwing out of 14 cases of human rights violations and the citing of the Amnesty Law imposed by Pinochet in at least seven others in 1993; the arrest of a student leader in 1995 for criticising Pinochet; the imprisonment of Communist Party General Secretary Gladys for two days on charges of defamation after calling Pinochet 'a psychopath' in 1996.
Based on this record, there is no reason to doubt the warnings of Pinochet's legal team of a possible violent response by the military and right-wing elements to his prosecution.
Just as dangerous as the political destabilisation of Chile is the fact that, should Pinochet be brought to trial, questions would undoubtedly be raised as to why none of Franco's fascist supporters, or the leaders of apartheid, have met a similar fate.
The third major danger arising from Pinochet's arrest is that it has again brought to the fore the role played by the imperialist powers in his 1973 coup, most notably the United States. In an attempt to downplay the role played by the CIA in Chile at the time, and to ensure that their old ally walks free, US officials have said they have no 'hard evidence' of crimes that would make Pinochet subject to extradition to America. They even went on to deny any official discussion at the Justice Department on the issue.
Castro and Chile
Why Fidel opposes Pinochet's arrest
[5 November 1998]
Operation Condor: US holds key evidence against Pinochet
[31 October 1998]