SUNS  4333 Friday 27 November 1998



BRITAIN: LAW LORDS REJECT PINOCHET'S IMMUNITY

London, Nov 25 (IPS/Dolores Cortes) -- Britain's highest court marked the 83rd birthday of former Chilean leader Augusto Pinochet by voting three-two to deny him immunity from arrest, Wednesday, clearing the way to his possible extradition to Spain on charges of murder and torture.
A five-member panel of judges, members of the British House of Lords, ruled that Pinochet was not entitled to 'sovereign immunity' from prosecution or extradition under British law as a former head of state.

Founded in medieval traditions of the entire members of the House of Lords (on behalf of the sovereign), hearing appeals, gradually it became one of appeals heard by a panel of Judges or Law Lords, who hear the appeals, and give their findings to the House of Lords where it is automatically accepted.

Spain wants to try Pinochet for crimes committed against Spaniards during his 17-year rule. Pressure has been building across Europe all this month for his arrest and trial.
The ruling, the first in the Lords' history to be broadcast live, was presented to the House of Lords, on Wednesday afternoon.

British Home Secretary Jack Straw now has until Dec. 2 to decide whether to move forward with extradition proceedings. The general's supporters say they will lobby Straw to release him on compassionate grounds, as he is allowed to do.

A lawyer for rights group Amnesty International, which had joined forces with other NGOs to make representations to the Law Lords, said the process becomes "very complicated" now.

"Pinochet's lawyers will of course challenge the extradition process," said Geoffrey Bindman, one Britain's top counsel. He said such an appeal will probably end up in the High Court and quite possibly back before the Law Lords again. However, he added, there was a "danger" that Straw would release Pinochet either on "humanitarian or political" grounds.

Rights groups and NGOs warn that Straw may free Pinochet, if, as the Brussels-based International Confederation of Free Trade Unions put it, "commercial interests and so-called reasons of state take precedence over international law and public morality".

If Straw decides to proceed with extradition, then a long legal process begins, starting with an extradition hearing at a magistrates court, lowest rung in the country's judicial system, possibly as soon as next week, but challenged at every turn.

[In Geneva, the Law Lords verdict was welcomed by the UN High Commissioner for Human Rights, Mary Robinson, who said that the ruling that Pinochet had no "sovereign immunity," fed hopes the former dictator will finally be brought to justice. The decision "encourages defenders of human rights all over the world," she added.]

Carlos Reyes, of the Chilean exiles' rights group Chile Democratico, while expressing delight, accepted that a long process would be underway if Straw decided to allow extradition. But he said that bringing Pinochet to justice would be "the first step towards real democracy in Chile."

Bindman said however that Britain itself had the right to bring charges against Pinochet, now that the immunity issue had been clarified. He said that pressure would be brought on the government to do just that.

The United Nations Committee Against Torture recommended last Thursday that Britain should try Pinochet itself if he is not extradited to Spain, warning that failure to even consider the option could put Britain in violation of international treaties.

The committee of 10 independent legal experts monitoring compliance with the 1987 U.N. international convention against torture, issued its recommendation after considering a report presented by the British government.

Pinochet's critics reacted with joy as they gathered outside the hospital where Pinochet is resting and outside the House of Lords itself. More than 100 Chilean exiles had marked the final hours before the verdict with an all-night vigil in a London church. Protestors outside the House of Lords held photographs of some of the dead or disappeared.

According to immunity law specialist J. Craig Barker of Britain's University of Reading, the key issue reviewed by the Lords was not Britain's right to jurisdiction but whether Pinochet had immunity from
arrest and extradition under British law.

Before 1978, Britain granted absolute immunity to heads of state. In 1978, Britain enacted the State Immunity Act to incorporate the European Convention on State Immunity which allowed restricted
immunity, with exceptions of crimes when they occurred in Britain.
Barker said that Amnesty International's lawyer Ian Brownlie had "put forward a brilliant case in a matter of days," arguing that the 1978 act (excepting crimes) should not be restricted to Britain, and that the relevant section 16.4 of the State Immunity Act did not apply to criminal proceedings.
Across Europe court cases had been brought with the aim of reinforcing the case for holding Pinochet and bringing him to trial immediately -- and some hoped, to strengthen the British Law Lords' resolve, as well as Straw's.

"The German high court ruled he does not have immunity and we hope that will have an influence on the British court," German lawyer Konstantin Thun told reporters before the Lords' ruling. "It is important Pinochet not leave Europe."

Last week the Karlsruhe based German Federal Court ruled in favour of three German citizens who have filed charges of assault and false imprisonment against Pinochet. On Tuesday, France issued its own arrest warrant for Pinochet, alleging his part in the detention and torture of two French citizens during his rule.

Belgium has also issued an international arrest warrant for the general and Switzerland and Sweden are preparing their own extradition requests citing similar crimes.

Pinochet was arrested on a Spanish warrant on Oct. 16 as he was recuperating from back surgery at a London hospital. As a senator for life in Chile's upper house of Congress, Pinochet cannot be tried in his homeland. A Chilean government report concluded that 3,197 people had been killed by Pinochet's security forces after he overthrew elected president Salvador Allende in a violent 1973 coup.

Wednesday's verdict upheld an appeal against last month's decision by Britain's High Court that Pinochet had 'sovereign immunity' against prosecution under British law as a head of state.

The British Crown Prosecution Service, acting on behalf of the Spanish judiciary, had appealed the decision, arguing that under international law there is no immunity for crimes against humanity.

But Barker says the issues of national sovereignty and international law raised by the case will not be resolved by the ruling. "We have a conflict between international law of human rights and mainstream international law, for which sovereignty is the most important aspect of the relations between the states.

"Under these circumstances human rights has taken second place to the sovereignty of states. This is changing and has been changing since the term of the century when (the legal concept of) human rights did not exist."

Since then common standards of human rights have been incorporated, first into international conventions, then into national law as those international conventions are written into domestic legislations. The prospect of a major reassessment of the fundamentals of British law now faces the British parliament and judicial system.

Barker said any ruling that effectively cited international law, which does not recognise the kind of immunity granted by the 1978 act, in order to overrule the 1978 acts would be a major precedent for British law. "Frankly there is no way the Lords can make this decision, as an Act of Parliament is the supreme law in the UK," he added.

Meanwhile, Chilean President Eduardo Frei is sending his foreign minister, Jose Miguel Insulza, to London to appeal directly to Straw for Pinochet's release on compassionate grounds, as Straw is free to do. Downing Street said it would not make any immediate comment.

According to Reed Brody, Advocacy Director of Human Rights Watch. "the next step is for the UK government.... It now has before it extradition requests from France, Spain and Switzerland.

"On the other hand the government of Chile is putting pressure on the UK government, it is even using commercial blackmail," Brody added. "We call on the UK to do what is right and resist that pressure. The UK government seeks to have an 'ethical' foreign policy -- this is the test of that policy."

In a Nov. 16 letter to the Home Secretary, Human Rights Watch noted that while Britain's extradition laws grant the Secretary discretionary powers, he must exercise them "reasonably". It would be unreasonable, to ignore "the gravity of General Pinochet's offenses, the impunity which General Pinochet would continue to enjoy on returning to Chile, and the United Kingdom's obligations under international law."

As a student Straw was a famous radical leader of the country's National Union of Students, left-wing enough to warrant investigation by Britain's own security services. As a mature man and top government minister he has taken a more traditionally conservative line, in keeping with Labour Party leader Tony Blair's wish to recreate his party as a more 'moderate' centre-left force.

Bindman said that now the immunity issue had been clarified, pressure would be brought on the government to put him on trial in Britain.

The United Nations Committee Against Torture said last Thursday that failure to even consider the option could put Britain in violation of international treaties.

But Britain's chief prosecuting Attorney General is reluctant to press such a case, said Carroll. "We have presented a number of cases on four separate occasions to the Attorney General, each time with new evidence, and each time he has said 'No go'.

While Pinochet, is immune from prosecution, a Chilean government report concluded that 3,197 people had been killed by Pinochet's security forces after he overthrew elected president Salvador Allende in a violent 1973 coup. As long ago as 1975 the United Nations recognised a deliberate policy of torture, and in 1976 resolved that such cases should be prosecuted as crimes against humanity.

Chile's ambassador to Britain, Mario Artaza, told BBC TV that the general was entitled to diplomatic immunity. "We will use all the instruments, using all diplomatic, political and all other arguments
that exist to defend our principle.... We are not here to protect a dictator of yesterday, we are here to protect and defend our transition to democracy."

IPS adds from Geneva, Madrid and Santiago

In a lengthy statement distributed by her office in Geneva, Mary Robinson said the British Law Lords' decision "would have been unimaginable just a short time ago." It had been made possible by a reversal in the tendencies of international law, as was seen this year when a conference in Rome approved the formation of an International Criminal Court, Robinson said. This treaty tended toward barring impunity for extreme violations of human rights and international human rights law.

It was inspired by the founding principles, sealed in the ancient rights and customs of cultures all over the world, and "these basic principles state all individuals, irrespective of their class or official rank, are legally constrained to abstain from committing crimes like genocide, war crimes and those against humanity," Robinson said.

The Pinochet case ably illustrated the principle of one of the oldest and most sacred of international law, that of "aut dedere aut judicare" - the obligation to judge or concede extradition, she said. Several international legal instruments, including the UN convention against torture, which oblige States to establish jurisdiction over these crimes. All States accepting these conventions must either extradite criminals or try them. The States explicitly state in these treaties that State immunity is no valid defence.

Robinson declared the consequences of the Pinochet case reinforced the need for States to ratify the International Criminal Court statute. This Court would prepare the way for coherent, general and universal trial and punishment for international crimes.

Without specifically mentioning Chile or Britain, Robinson stressed the international court would help governments and national courts caught up in difficulties derived from diplomatic relations.

The British Law Lords' decision to deny Pinochet immunity was greeted with a mixture of jubilation, caution and fury either side of the Atlantic Wednesday.

Chile's human rights movement celebrated Pinochet's probable trial in Spain for crimes against humanity while his supporters fumed, and in Spain the news provoked demonstrations of joy and public statements condemning the dictatorships.

Back home in Chile, Pinochet's supporters classed the verdict as "aberrant and arbitrary," threatening members of the press and telling the Eduardo Frei administration it should defend the nation's violated national sovereignty if it wanted to keep the peace.

The Frei administration, meanwhile, expressed its hope the General would be repatriated to Chile - a slim possibility given his advanced age - adding, however, that at some point the human rights violations of the dictatorship would have to be subjected to justice.

At the moment, Pinochet is protected from prosecution in Chile by an amnesty law that his own government passed in 1978, and by the strong military influence over civil power.

However, none of this could dampen spirits amongst the dictatorship victim support groups.

"Justice has triumphed today. This is a transcendental moment for humanity," declared Sola Sierra, head of the Group of Relatives of the Detained-Disappeared (AFDD) to Chile's National TV service in London.

Meanwhile, Spain's deputies unanimously approved a declaration calling on the Government to give all possible support to the legal handling of the Pinochet case. They also called for rapid implementation of the International Criminal Court - approved in a United Nations conference in Rome in July - to rule on serious human rights violations.

The Spanish Prime Minister, Jose Maria Aznar, told a press conference he respected legal freedom and the Chilean democracy, adding this case would not affect cooperation and relations with Chile.

Meanwhile, Chile's Foreign Minister, Abel Matutes, said there would be no problem for Spanish citizens and interests in the Latin American nation, calling for caution in order to avoid conflict of any type.

Chilean socialist deputy, Isabel Allende said in Madrid that the Pinochet trial shows humanity is reacting to the violation of human rights and that this is strengthening awareness that these crimes must not go unpunished in any country. "There will be a sharp definition between the before and after of this trial," said Allende, daughter of Salvador Allende, President of Chile killed by the coup Pinochet implemented on October 23, 1973.

The Salvador Allende Centre expressed "profound satisfaction" stressing the Lords' decision was "an historic benchmark in international justice and the defence of human rights."

Argentine lawyer, Carlos Slepoy, leading the prosecution of the former dictator, said the trial was "a turning point for humanity... showing there is world solidarity and that crimes against humanity know no frontiers, and nor does justice." He added that citizens and human rights groups must not let up pressure now, as the extradition process can be long and complex.

Head of Spain's Human Rights Commission, Juan Serraller, said that predictions of internal problems in Chile are simple manoeuvring by the far-right. "The Chilean people have already showed, in a plebiscite, that they do not support Pinochet, and they have shown it again every
time they have been called to vote, with most voting for the democratic parties," he concluded.