Law Lords ruling on Pinochet reverberates around the world

By Chris Marsden and Julie Hyland
28 November 1998

The House of Lords ruling on Wednesday to allow a Spanish warrant for the extradition of former Chilean dictator General Augusto Pinochet to proceed has created a political and legal minefield. Whatever happens in the next days, weeks and months, the fallout from the Law Lords legal finding will reverberate around the world.

The judgement has brought into sharp focus the political and social divisions between broad masses of people internationally who want Pinochet brought to justice, and his right-wing supporters. Ecstatic demonstrations broke out in London, throughout Spain and in Chile itself, often led by victims of the general's military regime and relatives of the disappeared. In contrast, at the Pinochet Foundation in Chile's capital Santiago, right-wingers howled in protest and denounced the Law Lords as "Communists" and "poofs". Pinochet supporters kicked and punched a BBC crew.

The coalition government of Christian Democrat Eduardo Frei has pledged to do everything to secure Pinochet's return. Chilean Foreign Minister Jose Miguel Insulza has arrived in Europe to oppose the Lord's decision. Several days and nights of demonstrations and clashes between pro and anti-Pinochet supporters and police have since rocked the country. More than 100 people have been arrested. Ominously, Chile's Army, Air Force and Navy, organised in the National Security Council, have demanded reprisals against Britain and Spain. Frei was forced to caution against, "abrupt reactions from some sectors", singling out the country's "institutions", a euphemism for the military.

Three of the five Law Lords hearing the appeal by the Crown Prosecution Service and the Spanish authorities rejected an earlier High Court ruling that the general enjoys "sovereign immunity" as a former head of state.

The first two to speak--Lords Lloyd and Slynn--supported the earlier ruling. The chairman of the panel, Slynn, said: "I would hold that the respondent as a former head of state is immune from arrest." Lord Lloyd agreed that: "In my opinion the state of Chile is entitled to claim immunity for Senator Pinochet under the State Immunity Act 1978. I therefore dismiss the appeal."

The three following Law Lords, however, rejected this argument. They said it flouted a battery of international legislation on human rights abuses to which Britain is a signatory and, secondly, it would have meant endorsing the arguments of Pinochet's legal team that British law would have protected even Adolf Hitler.

Lord Nicholls said: "International law has made plain that certain types of conduct, including torture and hostage-taking, are not acceptable conduct on the part of anyone. This applies as much to heads of state, or even more so, as it does to everyone else. The contrary conclusion would make a mockery of international law."

Lord Steyn said if no lines were drawn, this would mean, "that when Hitler ordered 'the final solution' his act must be regarded as an official act deriving from the exercise of his functions as head of state."

Lord Hoffman concurred with his two colleagues.

In making this decision, the Law Lords have handed the final say on whether Pinochet is extradited to Spain to Jack Straw, Britain's Home Secretary. A significant consideration is that Straw, unlike the judiciary, is able to take political criteria into account. Lord Nicholls acknowledged this, saying, "Arguments about the effect on this country's diplomatic relations with Chile if extradition were allowed to proceed, or with Spain if refused, are not matters for this court. These are, par excellence, political matters for consideration by the Secretary of State."

The Law Lords had been widely expected to uphold the High Court judgement. As they began delivering their verdict, an ambulance was standing by to speed Pinochet to a Chilean jet on the tarmac at RAF Brize Norton. Subject to Straw's intervention, the former dictator will now have to appear before London magistrates next week.

The ruling is a cause of concern for the imperialist powers. Almost immediately, demands were made for the prosecution of other dictators who have functioned as their clients. On Tuesday, Congolese exiles demonstrated in Brussels calling for action to be taken against the country's President Laurent Kabila for human rights abuses.

The British government is privately dismayed at the turn of events. A Chilean boycott is costing British companies millions of pounds. The country is Britain's third largest market in Latin America.

Politically, the situation is even worse. Britain's support for Pinochet's coup has been brought to public scrutiny. The Law Lords noted that Pinochet had "signed the letters of credential presented to the Queen by the Chilean Ambassador to the United Kingdom on 26 October 1973", proving that recognition was extended almost immediately after the September 11 coup. Pinochet maintained close links with Britain. He regularly visited Conservative Prime Minister Margaret Thatcher and was treated as an honoured guest. The Blair government thought it could continue these relations. In the last weeks it has been forced to admit having entertained Pinochet once before, in October 1997, just after Labour's election victory--a fact it had previously concealed. On the general's recent visit--solicited by British arms manufacturers--the government even provided an official hospitality suite.

The extradition warrant sent by Spanish Judge Baltazar Garzon, however, showed that Labour misjudged the public mood. The defeat of right-wing governments in Europe, including the Tories in Britain, and the election of social democratic parties like Blair's, has expressed a shift among working people. Many workers expected Blair's government to act against Pinochet, after years of the Labour Party proclaiming opposition to the military regime in Chile.

Blair had hoped that the judiciary would get him off the hook, but the only way a trial can now be prevented is for Labour to come openly to Pinochet's defence. Straw has said only that he "shall make any decisions, which fall to me to make in accordance with the law and the timetable, which the law lays down." To release Pinochet, Straw must cite "compassionate grounds" such as ill health and old age. An extradition can also be rejected if the alleged offences are not extraditable, if they were political in nature, or if the papers in the case are not in order. None of these are realistic options.

Pinochet's legal team has let it be known that he has been assessed by a leading psychiatrist in an attempt to prove a stress-related disorder and have him declared mentally unfit to stand trial.

The Conservative Opposition is lobbying for this outcome. Tory leader, William Hague said: "It is damaging relations with Chile, a long-standing ally of our country, and causing instability in a country that is now democratic. The right and sensible decision would be for the Home Secretary to use his discretion and allow Senator Pinochet to return to his home country." This is supported by the Confederation of British Industry.

In a variant of this pro-Pinochet line, the Financial Times called for the dictator to be returned home, to allow "Chilean justice" to take its course. There is little possibility of the General being brought to justice in Chile, where he is still recognised as a "Senator for life", but the claim to the contrary offers a way out for the British establishment.

Straw has requested an extension beyond the December 2 deadline for his decision to be made, set by Bow Street Magistrates Court, which hears all extradition cases. If he decides to release Pinochet, human rights groups have pledged to mount a legal challenge.

Officially, the Spanish government has taken a neutral stance, with Popular Party Prime Minister Jose Maria Aznar stating that his administration would not interfere in a "judicial matter". However, by Thursday afternoon, government sources let it be known that they hoped Britain would act to block Pinochet's extradition. The unnamed sources stated: "The Spanish administration is quietly praying that Britain will act on humanitarian grounds--that of Pinochet's advanced age--and put him on a plane back to Chile".

Washington's response to the ruling was decidedly cool. National Security Council spokesman David Leavy commented, "this is a matter for the courts of the UK and Spain to work through". The US is far from neutral, however. It has refused to call for Pinochet's extradition to America, despite claims that he ordered the 1976 assassination of former Chilean Foreign Minister Orlando Letelier and Ronni Moffit, a US citizen, just outside Washington.

The US has also rejected repeated requests to release documents in its possession. This includes many still-classified reports surrounding Pinochet's 1973 coup, Letelier's assassination and Operation Condor--in which leftists were arrested, tortured and killed throughout Latin America.

The Spanish warrant for the dictator's arrest charges that Operation Condor was the result of "co-ordinated actions at international level" which involved "co-operation with other governments". Its objective was the "systematic elimination" of "any ideological dispute and [to] purify the Chilean way of life through the disappearance and death of the most prominent leaders and other elements which defended Socialist, Communist (Marxist) positions, or who simply disagreed".

See Also:
An answer to Pinochet's defenders
[17 November 1998]
Pinochet's counsel argues that British law would protect Hitler
[13 November 1998]
Political lessons of the Chilean coup: Statement issued by the Fourth International on September 18, 1973