No. 38 of #50cases.
General Pinochet became President of Chile and Commander in Chief of its army in 1973. In the following two and a half decades, his brutal regime became infamous for its use of torture, among other human rights violations.
In 1998, Pinochet travelled to the UK for medical treatment. British authorities arrested him, hoping to force him to Spain where an international arrest warrant had been issued. But there was a problem. Heads of State traditionally are immune from criminal proceedings if they about acts they committed official capacity. The case reached highest appeal court in England and Wales, then called the House of Lords. The court had to decide whether Pinochet was immune from charges relating to torture and therefore could not be extradited to Spain.
What should the court do? On the one hand, immunity for heads of state is a cornerstone of international diplomacy. But torture is also a heinous crime, banned under international law. The Court agreed that generally, former Heads of State are entitled to immunity in relation to past official conduct. However, the Torture Convention defines ‘torture’ in relation to its use by the state, so all ‘torture’ is automatically official. To say that a former Head of State is immune from all allegations of torture would contradict the entire legal regime set up to punish its use. The court decided that Pinochet enjoyed no immunity over torture.
However, someone can only be extradited for acts that were criminal at the time they were committed. Because the Convention only became part of UK law in 1988, Pinochet could only be extradited on charges relating to conduct after that date. This greatly limited the possible charges, meaning that the Home Secretary had to consider whether to authorise the extradition. He decided against extradition, but in any case Pinochet returned to Chile and was eventually charged with 23 counts of torture.
This case is a powerful indication that individuals responsible for horrific and systematic crimes will not be able to hide behind their power and political status. Unfortunately, it also shows that there are still loopholes in international law through which criminals like Pinochet can crawl to escape justice.