There Is a
Danger that Pinochet Will Now Be Set Free on Humanitarian
Grounds
By JONATHAN
POWER
Oct. 20, 1999
LONDON- The legal pursuit of the Chilean ex-dictator
Augusto Pinochet has reached a defining moment. His legal
options have been whittled away, although theoretically he
could still on appeal win the reversal of the London
magistrate's decision on October 8th. to allow his
extradition to Spain for trial. It now seems clear that his
legal team are advising him to change tactics and depend
more on clemency than legal manoeuvres. Earlier this week,
Chile appealed formally to Jack Straw, Home Secretary in the
government of Tony Blair, to release him on the grounds of
his deteriorating health. Yesterday the Spanish government,
never happy with the action of magistrate Balthasar Garzon,
who initiated the action against Pinochet, added its voice
to Chile's, saying it would have no objection if he were now
released.
It must not happen. The rulings so far- by Britain's
highest court, the House of Lords, and by the magistrate-
crystalized half a century's debate on the legal and
political problems of accountability for crimes against
humanity. For the first time in a high court anywhere it has
been decided that sovereign immunity must not be allowed to
become sovereign impunity. For that we have to thank most of
the nations of the world, including Chile, who in the late
1980s and early 1990s put their signatures to the UN
Convention Against Torture and thus laid the legal basis for
the British ruling.
The doctrine of immunity was first challenged
successfully by chief prosecutor, U.S. Supreme Court
Justice, Robert Jackson at the Nuremberg trial of Nazi
leaders. But afterwards the notion appeared to lapse and, as
legal expert Geoffrey Robertson writes in his new book,
"Crimes Against Humanity", "remained for decades a talking
point only in university common rooms. Until the Serb and
Croat bloodfeuding it had no practical application other
than as a legal lasso for old Nazis like Eichmann and
Barbie."
Had Pinochet flown to New York rather than London and
taken tea with Henry Kissinger rather than Margaret
Thatcher, the legal net would probably never have closed.
Even if he had been arrested his fate would have been
determined by politics rather than law. The State Department
would have probably sent the court a "suggestion of
immunity", reasoning that Chile was a friendly state and
wishing to avoid the publication of embarrassing details
about the U.S. role in Pinochet's coup d'etat. Likewise, in
most of Europe the issue would have been rapidly settled by
the government weighing up the costs to political alliances
and trade, as indeed the Spanish government has done.
But the British government, for reasons not yet totally
clear- is Blair's idealism that absolute?-has decided thus
far to let the law take its course.
The pressures upon the British government to call it a
day and issue a humanitarian reprieve are immense. The law
has made its point, it is said. A shot has been fired across
the bows of all present and future dictators and mass
torturers who will know from now on that they cannot behave
like this at home and expect to travel thereafter. Pinochet
is very old and his ordeal has been punishment enough. And
anyway if he does go to trail in Spain and is convicted,
according to Spanish law he can't be sent to jail at his
age. Does a humane Britain then have to insist on the coup
de grace? Enough is enough.
All this is to miss the main point. Pinochet's crimes
were no ordinary crimes of the maintenance of political
authority in a time of turbulence. They continued until
1990, long after Pinochet announced in 1978 that the
"communist threat" to Chile had ended. "The rituals of
torture were intended to send horrific whispers throughout
the populace", says Robertson. Pinochet, the smiling,
stately, grandfather figure is also the man who personally
supervised the torture operations, with the boss of the
torture unit, General Manuel Contreras, reporting daily and
directly to him. He is also the man who on occasion joked
that the "disappearances" had saved bereaved families the
cost of coffins.
The determination now to be made by the British
government is arguably the most important single legal
ruling that will be made by any government since the
decision made to execute German and Japanese war leaders.
Compassion cannot properly be offered to someone who shared
not one iota of compassion to victims who included children
and pregnant women.To allow Pinochet his freedom now, before
the line is properly drawn in history's sands, would be
fudge a major turning point in the world's maturing
understanding of jurisprudence. Seen properly to its
conclusion with a trial in Spain it will lay down a marker
for all time.
Copyright © 1999 By JONATHAN POWER
I can be reached by phone +44 385 351172 and e-mail:
JonatPower@aol.com
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