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Better Late Than Never
by Troy Skeels
General Augusto Pinochet, former president and current senator for life of
Chile, awaits extradition from Britain to Spain. The General, under house
arrest at a home outside of London, was arrested on the behest of the
Spanish judiciary on October 16, 1998. Pinochet, in Britain for medical
treatment, was travelling on a diplomatic passport. His arrest sparked a
storm of controversy. Chile mounted a vociferous diplomatic protest.
Switzerland, Belgium, France, Italy, Luxembourg and Sweden subsequently
began criminal proceedings against the former dictator.
The Spanish request was based on a court finding that the general was
responsible for the murder of Spanish citizens while he had been president
of Chile. On October 22, Spanish judge Baltasar Garzon broadened his
arrest warrant to include allegations of genocide, torture and terrorism
involving 94 people of different nationalities.
The English High Court dismissed the warrant on the grounds that neither
Spain nor Britain had criminal jurisdiction. They found that under English
law, a head of state was "entitled to immunity as a former sovereign from
the criminal and civil process of the English Courts." Essentially, the
court said, by law, Pinochet and his minions can do whatever they please,
to whomever, as long as they do it in Chile.
A dissenting opinion, by Justice Collins, rejected the argument that
murder, torture and disappearance are part of the sovereign functions of a
head of state: "Unfortunately, history shows that it has indeed on
occasions been state policy to exterminate or to oppress particular
groups. One does not have to look very far back in history to see examples
of that sort of thing having happened. There is in my judgment no
justification for reading any limitation based on the nature of the crimes
committed into the immunity which exists."
Others disagreed with the court majority as well. The Law lords, members
of the House of Lords who are former High Court judges, overruled the
court and allowed the extradition process to go forward. British Home
Secretary Jack Straw made the official declaration allowing extradition
to proceed.
Information linking one of the deciding Law Lords to Amnesty International,
who had entered the case as a third party intervenor, was enough to get the
ruling thrown out. Spain and Pinochet were back before a new set of Law
Lords.
This time, the Law Lords ruled that the former President could not be
extradited for any crimes committed before December 8, 1988, when the
United Kingdom ratified the International Convention Against Torture.
The Spanish National High Court responded with a list of 42 cases of
torture or conspiracy to torture after 8 December 1988. The Law Lords
ruled in Spain's favor. Jack Straw, in April 1999, again ordered the
extradition process may proceed.
The issue is once again with the British courts. This time the question of
Pinochet's immunity has been removed. Whether the 82-year-old general
ever faces trial in Spain is anybody's guess. But the genie has gotten out
of the bottle. Heads of terror states who are not necessarily Slobodan
Milosevic or Saddam Hussein are open to prosecution in third countries.
The close ties between the U.S. and Pinochet are well known. If a Spanish
court starts digging, how deep will they have to go before they find the
U.S. government and corporations? How will our near-random accusations of
crimes against humanity look then?
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