National Observer Home > No. 42 - Spring 1999 > Legal Notes

The Pinochet Case

I.C.F. Spry

LEGAL NOTES

It will be recalled that Augusto Pinochet became President of Chile after the left-wing regime of President Allende was evicted on 11 September 1973, and his term of office came to an end on 11 March 1990. At the time when President Allende was ousted his supporters were involved in what was generally perceived to be a communist take-over of Chile. Violent left-wing activists and revolutionaries were in the process of creating a position in which, as in Cuba, a hard-nosed communist dictatorship would obtain control. Already widespread assassination and terrorism had arisen.

After Pinochet became President the attempted communist take-over of the country was put down, and in repressing the revolutionaries and their supporters some thousands were killed or tortured. These acts were inappropriate, but it should not be forgotten that they were on a minuscule scale as against what would have taken place if Chile had been taken over by communists.

Soviet Russia and other communist states had had great hopes that a communist Chile would become an entry point to South America, and it is not surprising that for many years there has been an attempt to anathemise Pinochet (now Senator Pinochet).

Hence when Senator Pinochet came to England in 1998 for medical treatment a left-wing Spanish magistrate issued an international warrant for his arrest, and a consequential warrant was issued in London. The warrant was quashed by the Divisional Court on the basis that Senator Pinochet was entitled to state immunity. Eventually this decision was overturned on 24th March 1999 by a decision of a majority of the House of Lords. In effect it was held that there was no state immunity for torture after the coming into effect of the Extradition Act 1989, in the light of the International Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984. Hence the majority held that Senator Pinochet's immunity did not apply to any relevant acts taking place after 1988.

The reasoning of the majority depended upon questionable inferences, since nowhere was the asserted lack of immunity stated in legislation. The doubtful reasoning of the majority led to a compelling dissent by Lord Goff of Chievely, whose analysis appears more in accordance with the law than that of his colleagues.

However it has become clear on many recent occasions that when political matters come before the courts, judges may lose their objectivity and be swayed by considerations of political correctness or other non-legal considerations.

So it is of interest that, for example, the left-wing Spanish magistrate did not take action against totalitarians of the left whose undoubted actions have been much more heinous than those alleged against Senator Pinochet. Fidel Castro, for example, has been left untouched in Cuba. Conversely it is of interest that the English decision may in the future work against persons who would expect to be immune. Could extradition be required of Mr Tony Blair or President Clinton, for example, to a country where they were, rightly or wrongly, regarded as guilty of serious crimes by influencing or supporting the actions of others?

The surprising decision of the House of Lords arose in a context where the political decision whether or not to allow proceedings to continue rested with the Secretary of State, Mr. Jack Straw. Mr. Straw had himself in his earlier years taken part in vociferous street demonstrations against then President Pinochet. It might have been expected that he would hence stand aside and refer the decision in regard to Senator Pinochet to a less prejudiced colleague. However he did not do so, but insisted that the proceedings should continue.

These steps have not however seen an end to the proceedings in regard to Senator Pinochet. The majority decision of the House of Lords permitted extradition proceedings to continue, but only on the basis that it would be necessary to satisfy an English magistrate that there was sufficient evidence that, as President, Senator Pinochet had participated in or been otherwise personally responsible for any acts of torture that may have taken place.

I.C.F. Spry

National Observer No. 42 - Spring 1999