British Law Lord Speaks About Dissenting Vote in Decision to Extradite Pinochet to Spain
A legal justification for extraditing former Chilean dictator Augusto Pinochet from Britain to Spain simply didn't exist, asserted Lord Slynn of Hadley in remarks September 6 sponsored by the J.B. Moore Society of International Law.
Lord Slynn, a member of the British House of Lords and a Law Lord (roughly equivalent to a U.S. Supreme Court Justice), was one of three dissenting voices among twelve lords who ruled on Spain's 1998 request that it be allowed to try Pinochet for the murder of Spanish citizens in Chile, but Spain later expanded the charges to include torture and other serious human rights abuses committed against Chileans. The decision ultimately allowed extradition for torture committed after 1988 when Britain became a party to the convention against torture. It was seen as a victory for human rights organizations that argued that jurisdiction over human rights crimes should be universal, in other words that any nation should be free to bring charges against violators of international human rights conventions.
"If the question was whether to send Pinochet to Chile or to an international court to be tried, then the answer was yes," Lord Slynn said. "But to Spain? No one was against human rights who said he shouldn't be sent to Spain."
British extradition procedures require that the foreign warrants be for crimes that would be crimes according English law, he explained. "For a Chilean to murder a Spaniard in Chile was not a crime in English law so out the window that [warrant] went," he said.
That left the matter of whether Pinochet, who was in Britain getting medical treatment, retained immunity from prosecution as a former head-of-state. Some Lords evidently believed that Pinochet's history made the matter simply too grave to be left to the Chileans to decide, should Pinochet be extradited there, fearing that that his countrymen might end up not doing anything to punish him.
"I took the view that that immunity had not gone," Lord Slynn said. This conclusion became the grounds of his dissenting vote. "Immunity for heads-of-state is long established and no rule or treaty exists that took it away."
In international law, states have to distinguish between heads of state and other officials over immunity, Lord Slynn explained. "Some were arguing then that there should be universal jurisdiction over crimes against humanity but that principle has not yet been established. At the end of the day, I concluded that if there was reason to send him to Spain, why not then to any other state that had asked for him -- France or Switzerland?"
"I found that there was immunity for everything, but the majority found that we can't tolerate this sort of thing any more," Lord Slynn said. "In their view it would be quite absurd to let off a head of state when the officials who were carrying out his orders could be extradited. Torture cannot be a legitimate function of a head of state, hence immunity for it does not exist. I understand the reasoning behind their decision, but I remain of the view that immunity for a head of state has nowhere been removed by an express provision of law. Some international lawyers now think the Pinochet case has established universal application of jurisdiction in human rights cases. I share the United States' view that they should be decided by international courts."
Lord Slynn said the Law Lords were indifferent to how their decision might affect Britain's political relations with Spain or Chile. Despite the House of Lords decision Pinochet eventually returned to Chile when the Home Secretary decided that he was mentally unfit to stand trial.
Lord Slynn cited two articles by Virginia law
professor Curtis Bradley on the case, agreeing with his analysis
that it set worrisome precedents.
Reported by M. Marshall