"Geoffrey Robertson QC is author of The Justice Game, and the forthcoming Crimes Against Humanity"
QC is a Queen's Councillor (sp?), an eminent advocate.
Chris Burford
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Friday November 27, 1998
Straw's hands are tied. Pinochet must be treated like any terrorist suspect
Under the law, 'compassion' is no option for the Home Secretary
By Geoffrey Robertson
The delivery of the Pinochet judgment in the House of Lords must have seemed to television viewers like the legal equivalent of a World Cup penalty shoot-out, a justice game decided by Lord Hoffman's last goal. Fans at the Pinochet centre screamed obscenities, attacked British journalists and hurled imprecations at the judge's wife, while from the commentary box Harold Pinter declared a new-found faith in British justice. But the real victor was international human rights law, a doctrine which may have more shocks in store for the general.
What the judges did, simply and rigorously, was to apply to Pinochet the precedent first set at Nuremburg, and later endorsed by international conventions ratified by Britain and Chile and most other nations. It has been consistently approved by the Inter-American Court, which sits in Costa Rica to lay down law for most of Latin America. This mass of authority supports the rule that there can be no immunity for 'crimes against humanity' - crimes of such blackness that they do not admit of human forgiveness. They comprise the ordering, on a widespread and systematic basis, of kidnapping, torture or summary executions.
Pinochet does have immunity for all acts done whilst exercising the functions of a head of state. But since international law does not recognise the commission of crimes against humanity as a function of a head of state, he has no immunity in respect of orders he personally gave for the systematic kidnapping, torture and murder of thousands of suspected opponents. For this reason, Spain's application to have him extradited for trial should proceed.
Why then, has the Home Office asked the Court for a delay so that political representations may be considered? The rule in international law that there can be no immunity for crimes against humanity is designed to prevent dictators from escaping justice by the application of political pressure. The Inter-American Court has on this basis invalidated amnesties and pardons given under duress to members of juntas and death squads and the statute of the International Criminal Court (which Britain approved in July) says that crimes against humanity cannot be made the subject of immunities or time-bars.
'Compassion', equally, is no option for the Home Secretary, unless he is satisfied on medical evidence that the general is at death's door. It was irresponsible for the leader of the opposition yesterday to call on him to exercise it without such evidence. By definition, the only 'compassion' that can be shown to a perpetrator of a crime against humanity is at the behest of his victims.
That Pinochet should now be dealt with according to law is a result that follows from the Extradition Act itself. Under Section 7 (4), the Home Secretary's discretion at this stage is very limited - he should comply with the Spanish request and set proceedings in motion 'unless it appears to him that an order for the return of the person concerned could not lawfully be made'. The House of Lords has decided that an extradition order can lawfully be made (because he has no immunity) and there is no present evidence that the request is bound to fail. The section gives no power to take political considerations into account, so any decision to release Pinochet might be overturned by the High Court.
That means the general must be treated like any other terrorist suspect whose extradition is sought by a friendly European country. He will no doubt argue - all the way to the House of Lords - that his crimes are 'political' and there would be some irony if it turned out that Pinochet were protected by this defence which has, historically, provided asylum for anarchists and anti-fascists.
The law entitles the general to apply to the High Court for a discharge if he can show that it would be unjust or oppressive to send him to Spain - or if the accusation is not made in good faith or cannot fairly be tried because of the passage of time. Since it is far more suitable for these questions to be decided by judges rather than politicians, the Home Secretary would be well advised to let the proceedings take their ordinary course. The only basis for political intervention before they are completed would be if the British Government managed to secure Spain's agreement to have the trial heard by an ad hoc international tribunal. As Lord Slynn, one of the dissenting judges, was first to point out, this would be a much more satisfactory solution than returning him to face proceedings in Chile (where, because of the amnesty he extracted in 1990 as the price of allowing democracy, he will never be put in jeopardy).
It is difficult to see what purpose will be served by the Home Office request to delay the decision for a further week. This will, however, have the result that General Pinochet will stand in the dock of Bow Street Magistrates Court on December 10, 1998 - 50 years from the day when the United Nations proclaimed the Universal Declaration of Human Rights. There would be no more potent symbol of hope for the future of humankind.
Geoffrey Robertson QC is author of The Justice Game, and the forthcoming Crimes Against Humanity
© Copyright Guardian Media Group plc.1998