LONDON – The arrest of Augusto Pinochet in London in October, 1998, was a bolt from the blue. It can be said with near certainty that it never had crossed the mind of senior members of the British judiciary who were soon to be landed with untangling the legal intricacies. Indeed, it was such an impossible idea that until almost the very last moment it never occurred to the ex-dictator himself that he could be vulnerable in the very country where his great friend and supporter, Margaret Thatcher, had been prime minister.
But when Baltazar Garzón, a senior Spanish magistrate, is on your tail you have to watch out. He has bested Felipe González, the former socialist prime minister, for having been party to the use of a police cell to assassinate leaders of ETA , the violent Basque group. He has also had great success in bringing to quick justice the Al Qaeda-inspired group that blew up a railway station in Madrid on the eve of the last general election. Garzón had made a request to arrest Pinochet to Scotland Yard under the European Convention on Extradition.
It was a momentous turning point in the human rights struggle. The rulings, first by the High Court, then by the House of Lords, and later by a London magistrate, crystallised 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 was 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, Thatcher’s Britain and Reagan’s U.S. who in the late 1980s and 90s put their signatures to the new UN Convention Against Torture and thus laid the legal basis for the British ruling.
It was a very sad day when the government of Tony Blair, bowing to powerful influences, including the US and the Vatican, allowed Pinochet to return home on “humanitarian grounds”. The doctors brought in by the government to examine Pinochet and pronounce on his unfitness to face trial couldn’t even speak Spanish. Fortunately, court-appointed doctors in Chile found otherwise and doubtless if Pinochet had lived a little longer he would have ended up in a Santiago courtroom and prosecuted. But when you have a bank account stuffed with looted millions one is able to drag out legal cases in a way a common criminal can only envy.
Did Pinochet die a relieved and even a happy man? Perhaps not. But did he die a truly unhappy man. I doubt that too. Punishing war crimes seems to be still an infant science.
Milosevic was allowed to drag out his case interminably at the Hague tribunal for war crimes in ex-Yugoslavia and died before a verdict could be rendered. Today the court is being held to ransom by the hunger strike of another Serbian strongman. In an everyday criminal court such behaviour would not be tolerated. Moreover, as long as the two arch war criminals, Radovan Karadzvic and Ratko Mladic, are not arrested and brought before the tribunal the court’s political purpose – to frighten off would-be war criminals in other parts of the world is seriously undermined.
The Iraq court that has tried and convicted Saddam Hussein has erred in the other direction. It moved too fast and rode roughshod over the defendant’s rights. Moreover, his execution is going to harden the resolve of Sunni militants. It would have been much wiser to arraign him before an international tribunal where justice, if slower, would have been fairer.
It is to be hoped that the recently constituted International Criminal Court is learning lessons from what has gone on over the last decade. It was very important that the UN Secretary General, Kofi Annan, wrote in the International Herald Tribune last week that political pressures to make peace in war zone, as today is happening with Uganda’s war against the quite malevolent Lord’s Resistance Army, must not get in the way of pursuing justice. Otherwise “others tempted to emulate them will not be deterred…Justice has often bolstered lasting peace, by delegitimizing and driving underground those individuals who pose the gravest threat to it”.
Law, rightly, takes the long view and so must these new courts for war crimes. Britain did law no service by allowing Pinochet to escape Spanish justice and to live comfortably at home for another eight years. And the U.S., Russia, India and China, by refusing to ratify the treaty governing the International Criminal Court, which nearly every other country in the world has done, are weakening the opportunity to truly deter future war criminals. Unpunished alleged war criminals in the U.S. and Russia today don’t make the problem any easier.
