March 26, 1999
The Pinochet Case
There were cries of joy from supporters of the Spanish case against former Chilean President Augusto Pinochet as six of seven Law Lords ruled that Mr. Pinochet does not enjoy blanket immunity from prosecution as a former head of state. The joy was premature. For the Law Lords effectively gutted the case of Spanish magistrate Baltasar Garzon and struck a blow against the ex post facto application of law.
If there is one principle that ought to unite the world's varied justice systems, it is the idea that no individual should be tried for acts that were not illegal at the time they were committed. The Law Lords agreed, throwing out all charges relating to acts before Dec. 8, 1988. In other words, Mr. Pinochet may not be extradited to Spain to face any charges relating to Chile's bloody civil war and its aftermath.
While torture within the U.K. has long been considered a crime, torture beyond the U.K.'s borders only became punishable under British law when Britain signed the International Convention Against Torture in late 1988. The remaining extraditable offenses are thus one isolated case of alleged torture and certain alleged conspiracies to commit torture. In short, we no longer have the makings of a case of crimes against humanity, which was the kind of case Mr. Garzon wanted to bring in a Spanish court.
"The result of this decision is to eliminate most of the charges [against Mr. Pinochet]," said Lord Browne-Wilkinson, adding in a not-too-subtle manner that British Home Secretary Jack Straw really ought to reconsider whether the case against Mr. Pinochet should now proceed. That is a useful cue to end this fiasco of buck passing for an arrest of an invited VIP, an inexcusable lapse of political judgment by the British authorities.
The detention of the former president has brought new turmoil to Chilean politics by giving the country's old Castroite revolutionaries encouragement to try to refight the battles they lost in the 1970s when the Chilean people rejected them. It is the height of hypocrisy for Britain, which is currently releasing hundreds of bona fide terrorists from prison in the hopes it will help a political settlement in Northern Ireland, to deny Chile the equal right to conclude that there are sometimes considerations more important than "justice."
If Mr. Straw cannot see the logic in stopping the case now, we hope the British courts, to whom Mr. Pinochet's lawyers have already appealed against Mr. Straw's earlier decision to proceed, will see the light.
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