The Case of Pinochet

SPAIN BEGINS LEGAL PROCEEDINGS AGAINST GENERAL PINOCHET FOR CRIMES AGAINST HUMANITY IN OCTOBER 1988

Judge Baltasar Garzon and Judge Manuel Garcia Castellon began proceedings in the National Court of Madrid to extradite General Pinochet based on charges against the General for genocide, murder, torture, and the taking of hostages.  The crimes were alleged to have occurred between 1973 and 1990, when Pinochet ruled Chile as a dictator.  The Spanish court determined that it had jurisdiction over General Pinochet and issued an international arrest warrant.

The warrant charged five offenses.  The two most important charges are committing acts of torture, in contravention of § 134(1) of the Criminal Justice Act of 1988, and hostage-taking, contrary to § 1 of the Taking of Hostages Act of 1982.  Both offenses are punishable by imprisonment for life.

General Pinochet is arrested in England on a Spanish warrant for crimes against humanity. Chileans react with both anger and disbelief.  The General is 82 years old and was in England for medical treatment.
 

Read more: http://news.bbc.co.uk/hi/english/world/europe/newsid_195000/195413.stm

The arrest warrant is quashed in the British High Court by Lord Bingham of Cornhill, Chief Justice, and Lords Collins and Richards.  The judges reasoned that because Pinochet was the head of state at the time the alleged offenses occurred, he is therefore entitled to immunity from the criminal processes of the English courts.  According to Lord Bingham, “the applicant is entitled as a former head of state to immunity from civil and criminal proceedings in English courts.”

A five-member panel of the British Law Lords reverses the lower court and upholds the arrest in British High Court by a vote of 3-2.  The judges determine that immunity for former heads of state does not extend to crimes against humanity, persuant to sec. 8(1) of the Extradition Act of 1989, and that Pinochet can face an attempt to extradite him to Spain.

Click here to read the Law Lords’ opinion from November 25, 1998: http://www.derechoschile.com/english/impuni.htm - judicial text

Click here to read Amnesty International’s position on the case: http://www.amnesty.org.uk/news/index.html

Legal Questions before the Court:

1.  Does Pinochet have state immunity under section 1 of England’s State Immunity Act 1978, which provides for immunity of foreign head of state from prosecution in England’s courts?
2.  Does Pinochet have personal immunity under section 20 of England’s State Immunity Act 1978, which provides for immunity with respect to acts performed by a head of state in the exercise of his functions as a head of state?
3.  Does Pinochet have immunity under the common law act of state doctrine?

A panel of five British Law Lords rule that General Pinochet is entitled to a fresh hearing into whether he is immune from prosecution, setting aside the Law Lords ruling in November.

A panel of seven judges from the British House of Lords considered the case for extradition against Pinochet.  The judges determined that Pinochet could be held personally liable for crimes against humanity and that he will face

Both Chile and Amnesty International  presented their case in the British Courts.  Human Rights Watch presented written documents.

Read more: http://www.amnesty.org/news/1999/44500399.htm

Alun Jones, lawyer for the Crown Prosecution Service, quoted from the Nuremburg tribunal on war crimes in his statement supporting extradition:

   “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such offenses can the provisions of international law be enforced.”

Andy McEntee, Chairman of Amnesty International, said that Chile had no intention of putting Pinochet on trial.

“In the absence of a state putting on trial one of its own people for crimes against humanity, the obligations of the international community come into play.”

Read more: http://www.amnesty.org/ailib/aipub/1998/AMR/22201698.htm - amnesty