1998_11_november_leader27nov pinochet

The decision of the English House of Lords to allow the extradition proceedings against former Chilean President Augusto Pinochet will be welcomed around the world by people concerned with human rights. It means, at least as far a Britain is concerned, there is no longer immunity for former heads of state who commit gross crimes which are recognised as crimes by international law. There will be no rest for the wicked.

It may be true that humanity faces a dilemma in dealing with dictators and their henchmen. There may be some general interest in encouraging dictators who have engaged in murder, kidnappings and other breaches of human rights to voluntarily relinquish power. It may be that those dictators will only relinquish power if they feel they will be secure are they relinquish it. Otherwise they will cling to power causing a prolongation of the agony. That view suggest that it is better that one guilty dictator go free than democracy and the rule of law be postponed. There is some merit in this view. In South Africa, for example, it was made clear by the new African National Congress Government that it was more interested in truth and reconciliation than revenge and punishment. It set up the Truth and Reconciliation Commission as the vehicle to expunge the past without forgetting it, and in a way that allowed the acknowledgement of the evils of the past without necessarily punishing it. In the case of Chile, it was a case of never being able to remove military rule without a tacit agreement of immunity. In Chile their was an unwritten pact between the new forces of democracy and the rule of law on one hand and the military on the other. The pact was almost transgenerational. It meant that Chile could return to a form of democracy provided those that were responsible for atrocities in the 17-year military dictatorship were never brought to account. It meant that Chile could only become a democracy respecting the rule of law after all the criminals of the Pinochet regime died in their beds. It is easy to say that this was a contract with the Devil. But the alternative would inevitably have been a continuation of the dictatorship. Within Chile the pact may well have been worth it. Better an apprenticeship, egg-shell democracy for a decade or two than the continuation of the dictatorship.

The House of Lords could view the matter with more legalism, greater purity, less pragmatism and without the fear of jackboots returning to the streets of the nation. Ironically, the reasons the Lords were in the position to do that was because of the extraordinary arrogant of Pinochet himself. He thought that the immunity he had granted himself in Chile by force of the threat to return the nation to military dictatorship would have extraterritorial force in Britain. How apposite was it that the rule of law should render such a view invalid. How apposite that the rule of law, applied dispassionately in a nation that has long upheld it, should render null the immoral contract between the Chilean military and its necessarily compromised democrats.

The majority of the British Law Lords have made a statement of universal carriage. Lord Morris said that acts of torture and hostage-taking could never be done in the exercise of the functions of head of state. Immunity was simply not available to a former head of state for actions which were a breach of international law, irrespective of the terms of his domestic constitution.

It is a difficult question to decide whether international public interest lies more in immunity to permit a transition to democracy and rule of law in one country or in laying down a universal statement of morality and determination to make criminals accountable. The fact that the latter may act as a deterrent so the former is not necessary is enough to decide the issue. Civilised countries must make all dictators accountable for breaches of human rights.

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