In Pursuit of Pinochet

Michael Byers

The arrest of Augusto Pinochet in London last October, at the request of a Spanish magistrate, marked the beginning of a saga that has already had a significant effect on international law and the British Constiution. At the same time it has exposed a profound uncertainty in the British Government’s commitment to ethics, human rights and international law in the making of foreign policy.

Pinochet is accused of having authorised, or at least knowingly permitted, the torture, disappearance and taking hostage of thousands of people in the decades following his violent overthrow of Salvador Allende in 1973. His victims included not only Chilean citizens, but also citizens of other countries, including the UK and Spain. His crimes are alleged to have formed part of an international conspiracy to track down and murder his opponents in Chile and elsewhere. They are ‘crimes under international law’, giving all states the right to prosecute the perpetrator regardless of his nationality, the nationality of his victims, or the country in which the acts were committed. At the time of Pinochet’s arrest there was thus no apparent obstacle to his extradition, or indeed to his prosecution here under Section 134 of the Criminal Justice Act 1988, which gives British courts ‘universal jurisdiction’ to prosecute those accused of having committed torture.

Lawyers acting for Pinochet, however, seized on the fact that he had been the Chilean head of state during the time the alleged crimes were committed. They argued that he therefore had immunity from the jurisdiction of the British courts, including from extradition procedures. By doing so, they forced British judges, first in the Divisional Court and then in the House of Lords, to choose between two very different views of international law.

According to the traditional view, the only relevant actors in international law are states. They are sovereign and (theoretically, at least) equal. It follows that one state cannot be impugned before the courts of another and, inexorably, that a head of state, or a former head of state, is entitled to claim absolute immunity from the jurisdiction of national courts, whether in criminal or civil proceedings. Until recently, state immunity presented an almost insurmountable barrier to the effective enforcement of human rights by national courts, even when those courts might otherwise have been willing to exercise universal jurisdiction. Under conceptions of international law which have existed for centuries, the idea that a former sovereign might be hauled before the courts of another state and held to account for gross violations of human rights is almost inconceivable. Since the worst violations of human rights are often committed, or at least permitted, by heads of state, this has had serious consequences for authorities charged with enforcing international criminal law.

Since the Second World War, an alternative view of international law has emerged, which posits that the international community comprises, not only states, but also individuals, peoples, non-governmental organisations, corporations and so on. These have emerged as international actors engaged in international discourse and, in some areas, have been granted important rights, such as the right of individuals not to be tortured. This new view of international law also goes a crucial step further: it holds that individuals are able to enforce their most fundamental rights even against states and state officials. This was clearly established by the Nuremberg Tribunal. More recently, the principle that there is no immunity for anyone in respect of crimes under international law has found its way into the statutes and decisions of the International Criminal Tribunals for the former Yugoslavia and for Rwanda. And last July in Rome, 120 states adopted a statute for a Permanent International Criminal Court with jurisdiction over war crimes and crimes against humanity – including those committed in peacetime. This statute expressly provides that heads of state have no immunity in respect of crimes under international law.

The proceedings in the Pinochet case pose in the most direct terms the choice between these two competing visions of the international legal order. On 25 November 1998, the Judicial Appeals Committee of the House of Lords, the highest court in the United Kingdom, held that Pinochet had no immunity from the jurisdiction of British courts in respect of his alleged crimes under international law. The judgment, coincidentally, was handed down on Pinochet’s birthday – although it was celebrated as a birthday gift for international human rights. Three out of five Law Lords held that the acts of which Pinochet was accused could not be considered official acts which benefited from immunity. Lord Steyn wrote that the

development of international law since the Second World War justifies that conclusion that by the time of the 1973 coup d’état, and certainly ever since, international law condemned genocide, torture, hostage taking and crimes against humanity (during an armed conflict or in peacetime) as international crimes deserving of punishment. Given this state of international law, it seems to me difficult to maintain that the commission of such high crimes may amount to acts performed in the exercise of the functions of a Head of State.

The judgment was of fundamental importance, signalling that the most basic human rights are enforceable against anyone, regardless of rules of international law that might otherwise provide immunity. Although no other national court of final appeal had ever gone this far, the authority and influence of the Law Lords is such that the decision seemed destined to be studied closely, and in all likelihood followed, by other courts around the world.

Following the judgment, the focus of attention shifted to Jack Straw. As Home Secretary he was required by the Extradition Act 1989 to make a quasi-judicial decision, either to allow the extradition process to proceed, or to let Pinochet go. Considerable pressure was exerted on him, by the governments of Chile and the United States in particular, to choose the second option. Chile, it seems, was concerned about its military, which still has great influence in that country, while the United States was clearly concerned that a trial would bring to light evidence of CIA involvement in the 1973 coup. Yet to have let Pinochet go would have placed the United Kingdom in violation of international law, including its treaty obligations under the United Nations Torture Convention and the European Convention on Extradition. In addition, the Home Secretary might well have found his exercise of discretion subjected to judicial review in the British courts. On 9 December, he made the right decision, insisting that Pinochet’s extradition was a judicial matter, not a political one.

It would be foolish to think, however, that political considerations have not influenced the Government’s handling of the case, or that Straw’s decision was in any way inevitable. As a party to the initial proceedings in the Divisional Court, the Home Office explicitly chose not to take a position on the crucial issue of immunity, leaving that Court little option but to rule in favour of Pinochet on 28 October. At the same time, John Morris, the Attorney-General, refused to give his consent to the prosecution of Pinochet in the UK (such consent is required under the torture provisions of the Criminal Justice Act). The Government has, then, refused to take a position on the law concerning immunity, even though it committed itself, last July, to making it impossible in the future for even current heads of state to claim such immunity before British courts. The UK played an instrumental role in the negotiation of the Rome Statute for a Permanent International Criminal Court, but before it ratifies that statute it will have to amend Section 20 of the State Immunity Act 1978 so as to deny immunity from criminal jurisdiction to all heads of state – not just former heads of state like Pinochet – accused of crimes under international law.

The Government’s actions in the Pinochet case reflect a profound uncertainty about its commitment to human rights and international law. Our political leaders know that the UK, as a middle power, has a strong interest in the development of an effective international legal system. They also know that their political heritage demands the fullest possible commitment to international human rights. Some of them are occasionally prepared to make difficult decisions in pursuit of such goals. More often than not, they waver in their commitment, perhaps caught up in delusions of internatonal power resulting from our collective memory of an empire lost, or the transitory adrenaline rush of military command.

The Pinochet case is one example of the inconsistency of British foreign policy. The participation of British war planes in attacks on Iraq is another, taking place as it did without the express authorisation of the United Nations Security Council and in the face of protests from France, China and Russia – three of the Council’s five permanent members. The action of the US and Britain contributed to the marginalisation of the United Nations and the creation of a global situation not unlike that of previous centuries, where military force was the preferred tool of the powerful, and the less powerful sought protection through alliances of convenience rather than international organisations and international law. Most disturbingly, the system created by the UK and 50 other countries in 1945 to preserve peace and security has been seriously compromised at a time when weapons of mass destruction are being acquired by many countries, not just Iraq. The reality is that we live in an increasingly interdependent and dangerous world where the only real choice is between, on the one hand, international organisations, human rights and international law, and, on the other, the often fickle exercise of hegemony by the world’s sole surviving superpower.

Following Straw’s decision to allow the extradition process to proceed, Pinochet was required to appear before a magistrate. It seemed inevitable that he would one day face justice in Spain. At this point, his lawyers played their trump card. It was widely known in London legal circles that the wife of Lord Hoffmann, one of the judges who had ruled against Pinochet, worked for Amnesty International. Less widely known – but more important – was the fact that Hoffmann served as a director of Amnesty International Charity Ltd, the organisation’s research and educational wing. A few days before the hearings began in the Lords, Amnesty’s International Secretariat, along with two other human rights organisations and a number of Pinochet’s victims, were granted the right to make oral representations.

It was at this point that Hoffmann should have disclosed his connections with Amnesty International. Had he done so, it is unlikely that anyone would have objected to his participating in the case. Instead, he wrongly assumed either that it was sufficient that his connections were widely known, or that his high reputation as a judge somehow made him immune from any possible allegations of bias. Pinochet’s lawyers were well aware that they had to demonstrate not the existence of actual bias but the appearance of bias, and for this the legal link between Hoffmann (as a director) and Amnesty International Charity Ltd (as a company) was critical. Nobody doubts that the judgment of 25 November was made objectively, but the appearance of bias meant that it had to be overturned.

The Law Lords sit as the highest court in the United Kingdom. Never before had one of them been accused of the appearance of bias, and no procedure existed for an appeal of this kind to be heard. Fortunately, the British Constitution is not a written document, but a collection of mostly unwritten – and somewhat flexible – customs, conventions and rules. It is also based on a long tradition of the rule of law. The Law Lords were therefore able to fashion a new procedure and form a new panel to hear arguments concerning the appearance of bias. By doing so, they modified the British Constitution for the better, recognising that even Law Lords are not above the legal system they head. Whether their decisive action in this instance will insulate the court from formal reform remains an open question.

A further panel of judges will now rehear the arguments concerning head-of-state immunity, with a new judgment expected in February. The Law Lords, having decided that they themselves are not above the legal system, may well apply the same logic to Pinochet and again deny him immunity. Given the generally positive international reaction to the judgment of 25 November, and Straw’s decision to allow the extradition process to continue, any other outcome would be incongruous in the extreme.

Even if the new panel rules in favour of Pinochet, much has already changed. Three judges of a highly influential court of final appeal, in a situation involving no allegations of actual bias, have held that a former head of state is not immune in respect of crimes under international law. The new international law has arrived, with the rights of individuals at last taking their proper place among the other rules that regulate international relations. Those who resist these changes – or choose not to take a position – will find themselves left behind by a process that has become inevitable.