UK-CHILE: Pinochet's come-uppence (feature)
01 November 1998
22 September 1998 was the day Augusto Pinochet Ugarte, ex-Commander-in-Chief of the Chilean armed forces, ex-head of the military junta, ex-President and now life senator, arrived in Britain on one of his regular visits. Twenty-five years to the day earlier, the British government had recognised Pinochet as head of state, just eleven days after his deployment of British Hawker Hunter jets to bombard the presidential palace in a coup d'etat which saw Salvador Allende's suicide and the beginning of a seventeen-year reign of terror. He stepped down from the presidency in 1990 after securing himself a lifetime amnesty.
Ironically, his visit to Britain turned into a blessing for international human rights and the rule of law, thanks to an indefatigable Spanish judge and some persistent human rights campaigners and Chilean exiles. There had been attempts before to bring a private prosecution against Pinochet in Britain, but the attorney-general's consent - necessary for charges of torture, genocide and hostage-taking - was not forthcoming. Without such consent, and without any police initiative to arrest him, Pinochet was untouchable.
This time, however, on 16 October the Spanish judge, Baltasar Garzon Real, sent an international warrant for Pinochet's arrest on charges of murder of Spanish citizens in Chile between 11 September 1973 and 31 December 1983. Pinochet was arrested at the London Clinic on a provisional warrant from a London stipendiary magistrate, Nicholas Evans, acting on the international warrant. Two days later a second international warrant was issued by the Spanish judge, conscious that there were legal problems with the first. This time, the allegations were of genocide and terrorism. Specific charges of torture, hostage-taking and conspiracy to murder were brought. The second Spanish warrant outlined Pinochet's plans for "the elimination, disappearance or kidnapping of thousands of people, who were also systematically subjected to torture". Seventy-nine cases were described in detail. Also outlined was Operation Condor, a collaboration between the Chilean junta and the governments of Argentina, Paraguay, Spain and Portugal to abduct or assassinate opponents abroad. On 22 October, another stipendiary magistrate issued a second provisional extradition warrant against Pinochet, as his lawyers prepared a habeas corpus application for the High Court. They claimed defects in the first warrant, procedural irregularities in the issue of the second, and state immunity. They also sought judicial review against the Home Secretary for his failure to intervene to cancel the provisional warrants.
On 28 October, after two tense days of legal argument, the Divisional Court, led by Lord Chief Justice Thomas Bingham, acceded to Pinochet's counsel's arguments of state immunity. They accepted that, but for state immunity, Pinochet could be extradited for crimes of torture, genocide and hostage-taking committed in Chile and elsewhere, since these were all crimes of universal jurisdiction in international and domestic law. But the combined effect of the 1978 State Immunity Act and the 1964 Diplomatic Privileges Act meant that a head of state was immune from any legal action, and a former head of state retained immunity for acts he had done as head of state. Pinochet's crimes, the judges said, were committed as head of state and so he could not be brought before a court in Britain. Torture and extermination of enemies were regrettably what states and their heads did. The judgment was a frank and defeatist manifestation of the executive-friendly doctrine of "judicial restraint"; a judicial shrug of bent shoulders.
The Divisional Court agreed that their decision turned on a point of law of general public importance which needed final endorsement by the House of Lords. They asked the Law Lords what was "the proper interpretation and scope of the immunity enjoyed by a former head of state from arrest and extradition pr