The Pinochet case was always going to be difficult. No former head of state has ever before faced charges, or an extradition request, in a national court. No British law explicitly covers either the extent of the immunity enjoyed by former heads of state or the extent to which British courts should apply international treaties against torture and other crimes against humanity. Judicial interpretation has been necessary to decide the Pinochet case either way. Faced with this challenge, Britain’s senior judges have hardly covered themselves in glory.
First Thomas Bingham, the Lord Chief Justice, found that the general enjoyed absolute immunity for any crime. Then the first panel of five Law Lords, hearing an appeal of Lord Bingham’s decision, found by 3-2 that former heads of state did not enjoy immunity for heinous international crimes. That judgment was set aside by a second panel of Law Lords because one of the first had failed to disclose his links with Amnesty International. Hence the third, seven-strong panel.
These Law Lords have now written seven separate judgments, all of of which disagree with the others on major points of law. One Law Lord would give General Pinochet immunity for any official act. Another would make him answer for all charges of torture and murder. Yet another agrees that large-scale torture has been “an international crime in the highest sense” since the Nuremberg Tribunal in 1945 but then goes on to argue perversely that, until the 1984 Torture Convention, no court had the power to punish it. Five Law Lords have embarked on a rewriting of British extradition law, ruling that extradition can take place only if the alleged act was criminal in both Britain and Spain at the time it was committed, rather than at the time of the extradition request.
This not only clears General Pinochet, in their view, of having to answer for any acts before 1988, it also overturns decades of precedents, in Britain and elsewhere. Even two judges who earlier ruled in General Pinochet’s favour on head-of-state immunity briefly considered this extradition argument and rejected it. The rule against retrospective prosecution is a fundamental tenet of justice. But it is something for the Spanish trial court to consider, not the British judges. Because countries have passed laws against a host of white collar and other crimes at different times, the Law Lords’ ruling now offers ordinary criminals an array of new legal loopholes to escape extradition. The Lords’ first Pinochet ruling briefly made Britain a beacon of international justice. This latest one makes her a haven for criminal fugitives.
