The Pinochet Case in London, 1998-2000

[T]his sovereign authority which is a State's own right, does not at present have an absolute character, not even in the internal order, due to the international atmosphere reigning in the world. When super-states and international organizations appeared, the field of action of the State's power became more and more limited, due to agreements and treaties that are subscribed in the international arena. Multiple obligations and restrictions that nations contracted with each other and with international organizations, have left them virtually without sovereign liberty. [1]

This paragraph was writen by the 52 year old colonel Augusto Pinochet in his book Geopolitica in 1968 at a time when he was at the same time high ranking staff officer in the second division of the army in Santiago and educator on the staff officers school, Academia de Guerra, and author of this book. In 1968 he surely could never have known how these facts here outlined by himself thirty years later would be very relevant indeed for him personally.

Fragments of such »agreements and treaties«, that by 1998 had significant impact on his own, personel destiny, as he was detained in London, are rendered below:

A) The European Convention on Extradition of 1957 reads in Article 2, paragraph 1:  

Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty.

Spain ratified the convention in 1982; UK in 1991.  

B) In the Vienna Convention on Diplomatic Relations of April 18th of 1961, signed by virtually all countries in the World, Article 29 reads:  

The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

The Vienna Convention on Diplomatic Relations was ratified by the UK in 1987, by Spain in 1988 and by Chile in 1990.  

C) UK’s State Immunity Act 1978 of July 20th 1978 reads in Section 1, paragraph 1:  

A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.

In Section 14, paragraph 1 is specified:  

The immunities and privileges conferred by this Part of this Act apply to any foreign or commonwealth State other than the United Kingdom; and references to a State include references to —
a) the sovereign or other head of that State in his public capacity;
b) the government of that State; and
c) any department of that government,

but not to any entity (hereafter referred to as a “separate entity”) which is distinct from the executive organs of the government of the State and capable of suing or being sued.    

  Likewise Spanish jurisdiction will be applicable for deeds committed by Spaniards or foreigners outside national territory for legal proceedings according to Spanish law, which goes for some of the below mentioned crimes:

a) Genocide.

b) Terrorism.

c) Piracy and illegal highjacking of airplanes.

d) Counterfeiting foreign currency.

[...]

E) The UK Criminal Justice Act 1988, that came into force on September 29th 1988, reads in Sektion 134 on torture in paragraph 1:  

A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.

F) The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of December 10th 1984, ratified by Spain on October 21st 1987, by Chile on September 30th 1988 and by the UK on December 8th 1988, reads in Article 6, paragraph 1:  

Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

G) The UK Extradition Act 1989, a law of July 27th 1989 regarding extradition from the UK, reads in Part 1, Section 2, paragraph 1:  

In this Act, except in Schedule 1, “extradition crime” means —
a) conduct in the territory of a foreign state, a designated Commonwealth country or a colony which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of 12 months, or any greater punishment, and which, however described in the law of the foreign state, Commonwealth country or colony, is so punishable under that law;

Part 3, Section 7, paragraph 1 reads:  

Subject to the provisions of this Act relating to provisional warrants, a person shall not be dealt with under this Part of this Act except in pursuance of an order of the Secretary of State or the Scottish Ministers (in this Act referred to as an “authority to proceed”) issued in pursuance of a request (in this Act referred to as an “extradition request”) for the surrender of a person under this Act made to the Secretary of State — af – i) an authority in a foreign state which appears to the Secretary of State to have the function of making extradition requests in that foreign state,
[...]
and an extradition request may be made by facsimile transmission and an authority to proceed issued without waiting to receive the original.

These exerpts from different and om several cases mutually contradictory articles and paragraphs are merely small bites of some of the legislation, treaties and conventions that for 16½ months were into play in one of the most landmark events in international law in The Twentieth Century, namely while Chile's Augusto Pinochet was detained in the UK on the request of extradition from Spain on charges of some of the thousands of instances of murder and torture that had happened during the time of Pinochet's reign.

The case was however – though from a strictly legally point of view complicated enough – not only legal. As UK Home Secretary Jack Straw (b. 1946), wrote at the conclusion of the case: his »My role in the extradition act 1989 is a quasi-judicial one.«,[2]

What Jack Straw points at here was that an extradition at the end of the day was a decision at the discretion of the Home Secretary regardless of legal rulings. Furthermore it is a fact that in international cases like the one against Pinochet on torture and murder legal proceedings aren't consistently conducted in the same way as is the case in a country's criminal law, where all known offences consistently are tried in court.

As an example on this it can be mentioned, that while Pinochet was detained in London one of Iraq's Saddam Hussein's top staff, Izzat Ibrahim al-Duri (b. 1942), was in Wienna to recieve treatment for leukaemia. He is suspected of having played a key role in the chemical shelling in 1988 of resulting in the deaty of some 5000 civilians. Legal steps were taken during his stay in Austria, but the Austrian government let him leave the country.[3] Likewise Italy in November 1998 refrained from extraditing Kurdish PKK leader Abdullah Öcalan (b. 1948) on Turkish request.[4] Such choices on the part of states and governments are made to maintain good relations between countries and governments and can be made in observation of public opinion.

To forther put these conciderations into perspective Lord Browne-Wilkinson (b. 1930), could be quoted as he at the ruling of the last legal proceeding at the House of Lords’s on March 24th 1999, in some introductory remarks to his six co-judges said:  

In 1998 Senator Pinochet came to the United Kingdom for medical treatment. The judicial authorities in Spain sought to extradite him in order to stand trial in Spain on a large number of charges. Some of those e charges had links with Spain. But most of the charges had no connection with Spain. The background to the case is that to those of left-wing political convictions Senator Pinochet is seen as an arch-devil: to t hose of right-wing persuasions he is seen as the saviour of Chile. It may well be thought that the trial of Senator Pinochet in Spain for offences all of which related to the state of Chile and most of which occurred in Chile is not calculated to achieve the best justice. But I cannot emphasise too strongly that that is no concern of your Lordships. Although others perceive our task as being to choose between the two sides on the grounds of personal preference or political inclination, that is an entire misconception. Our job is to decide two questions of law: are there any extradition crimes and, if so, is Senator Pinochet immune from trial for committing those crimes. [5]

This remark – save the last, rethorical question – was repeated in the Bow Street Magistates’ Court in central London by Metropolitan Magistrate Roland David Bartle quoting Lord Browne-Wilkinson on October 1999 in order to have in his ruling some legal stringency concerning the question of the extradition, too.

To further display the political aspect an episode from Denmark can be mentioned, namely when on March 11th 1995 Cuba's Fidel Castro (b. 1926) visited Denmark and was cheered by some 3.000 Danish fans. In an article in Danish news paper Berlingske Tidende the day after it was reported:  

When the Cuban legend finally was introduced and slithered across the stage the applause would see no end. Three minutes and sixteen seconds passed with whistling, hooting and shouts of »Fidel« and »Cuba si, Yankees no«, before the word was given to the centre of applause, Fidel Castro.[6]

According to the 1998 report from Human Rights Watch on Cuba [7] there was at the time, in 1995, more that 800 political prisoners in Cuba detained under circumstances and treated in such ways that it was considered torture and violation the torture convention Cuba had ratified in 1995. An organisation like Free Society Project, Inc. and their Cuba Archive,[8] has more than 8000 documented killed under the Cuban communism – e number that should not be compared to a truth commission's final tally, but merely the number of documented deaths known to this organisation. Out of the 8000 deaths about half, more than 4000, are plain executions.

Nevertheless, and looking at the meeting in the Falkoner Center in Copenhagen in 1995 it seems totally unthinkable that it would in a similar situation have been politically opportune for any government in countries like Denmark or UK to detain the progressive youth's icon Fidel Castro with the aim of extraditing.

Actually: As Pinochet was arrested on Friday October 16th 1998 in London the Ibero-American Summit was held in Porto in Portugal in the weekend of October 17th-18th. This summit has been held every year since 1991 and in 1998 had 21 cparticipating countries (Andorra has joined later). In all these years the summit had one predominant super star, El Comandante, Cuba's leader Fidel Castro, who in 1998 ater the summit continued on the Iberian Peninsula having meetings in Spain with among others King Juan Carlos (b. 1938) and prime minister José Maria Aznar (b. 1952).

To some it may appear ironic that the initiative to pursue Pinochet legally came from Spain, or maybe rather obvious compared to other legal circumstances in Spain that are at least peculiar but - and this is explicitly being stated at this point - may not be part of any pattern at all.

It should be mentioned however that Spain distinguishes itself by not having had a legal purge after it's civil war, 1936-39, and it's subsequent more than 30 years of military dictatorship under Francisco Franco (1882-1975). Ten years to the date after Pinochet's arrest in London on the request to arrest sent from Spanish Baltasar Garzón (b. 1955) in Madrid on October 14th 1998, Gaarzón on October 16th 2008 requested an investigation into »crimes against humanity« in his own country, among these the disappearance of 114.266 people, but by November 2008 2008 had to drop the case as the Spanish judicial system questioned Garzóns jurisdiction in cases that were in some cases more than 70 years old and moreover it's perpetrators were granted amnesty in 1977.

As far as Spanish legal peculiarities go it should be noted that Spainsh courts in 2008 granted anthropoid apes – orangutans, gorillas and chimpanzees – legal rights in part on equal foot with humans. Spectacular as it may seem it was for many even more remarkable that this happened in a country where each year tens of thousands og bulls are killed in bull fighting in the Spanish corridas under heavy criticism from animal welfare activists.

Finally it should stressed that Spain distinguished itself by having this legal body in Madrid, Audiencia Nacional, with jurisdiction in entire Spain and which in 1996 claimed universal jurisdiction in cases like genocide and torture and in the 1990's appointed the two lawyers, Baltasar Garzón (b. 1955) and Manuel García Castellón (b. 1952) to persue crimes of these kinds committed during the Argentine military dictatorship, 1976-1983, and Operación Condor for Garzóns part; in Chile for Castellóns part.

Pinochet had traveled to China and Malaysia and a number og times in the 1990's to the UK he as a Chilean and porteño as described in the chapter on his childhood naturally felt a connection to. These British visits took according to various sources place in both 1991, 1992, 1994, 1995, 1996 and 1997,[9] and had durations of something like six, eight, tourteen and twentyseven days.[10] At several of the visits he took tea with La dama de hierro, »The Iron Lady«, Margaret Thatcher (b. 1925).[11] He enjoyed such things at buying neck ties in London's fashionable stores and was said to be an infatiguable costumer in the book stores of the city.[12]

On September 21st or 22nd of 1998 he took off with his entourage to what the South Americans call El Viejo Mundo, »The Old World«, on a commercial flight and the trip went from Santiago via Buenos Aires and Frankfurt to London, which was a 26 hour trip.[13] There were numerous errands on the schedule, among them finishing an interview for The New Yorker with journalist Jon Lee Anderson (b. 1957), that had already been started at home in Chile. (Anderson by the way the previous year as part of the work on a 800 page biography on Che Guevara (1928-1967) had contributed to localising Che's earthly remains in Bolivia.) A visit at the state owned weapons and ammonition plant Royal Ordnance was planned, too, and also an operation for a herniated disc in the lower back, allegedly because no military doctors back in Chile dared to perform the operation fearing what a failed operation on the former dictator would mean to their careers. A visit to France was planned, too, but was abandoned as Pinochet was declared persona non grata.[14]

On arrival in London he had a brief stay in the Heathrow Airpors VIP lounge, and then checked in on five star hotel Intercontinental in the fashionable street Park Lane under the nake »Francisco Ugarte«, but soon had to cut down on planned activities as the disc hernia caused great pains. He got to visit the wax museum Madame Tussauds, where he to the puppet of Vladimir Lenin (1870-1924) said: »You were wrong, Sir!«[15]

On October 8th he was admitted to The Clinic to have surgery the day after.[16]

Amnesty International and other organisations had each time Pinochet visited the UK tried to have him detained but with no result. In May 1997 young Labour leader Tony Blair (b. 1953) was elected UK’s prime minister after 18 years of conservative rule and that opened new and better ways for initiatives like the ones of Amnesty. In the book The Pinochet Effect it is suggested that a differently favoured UK government could have delayed the processing of the extradition request till after the offices closed on Friday 16th, whereby Pinochet for sure would have flown back home to Chile during the weekend.[17] This only stresses the above written, that a case like this is not similar to a common criminal case in which a police force or other organisation to uphold law and order by and large do so consistently in all cases.

The Spanish lawyer Juan Garcés (b. 1944) had worked with Salvador Allende as a political advisor in Allendes entire tenure and had been with the president in the presidential palace La Moneda in the last hours on September 11th 1973 and allegedly had been told by Allende to save himself in order to be able to »tell the story«. After the coup he went back to Spain and it was he who in 1996 in a so called »accion popular« – the phenomenon that every Spaniard can initiate a case of public interest af the Audiencia Nacional, for instance in cases og genocide, torture and organised crime – took the initiative to have Pinochet tried in court. According to the above mentioned division of work the case should have been run by Manuel García Castellón, but for a number of reasons it ended up being his college Baltasar Garzón's case. Among other reasons Garzón in his work with Operacion Condor had worked a lot with affairs concerning Pinochet. Another reason was that the flamboyant Garzón, having achieved the brown belt in carate, being a connoisseur of fine wines and loving tango and bull fighting allegedly would find himself more comfortable in the center of attention in a highly profiled case.[18]

By the way the public prosecutor at Audiencia Nacional, Eduardo Fungairiño (b. 1946) – who by the way suffered from tetraparesis from a car accident in 1965 and used a wheelchair – questioned his own organisation's jurisdiction in the case, but it was however confirmed in Madrid on November 5th 1998.[19] Fungairiño had as early as 1997 been in play – in Chilean news paper El Mercurio – with the view that the crimes by the military dictatorship could not lead to prosecution in Spain as he among other things did not think the actions qualified as genocide and because he did not think crimes aganist Spaniards abroad were not under Spanish jurisdiction.[20]

This heralded a general feature in the entire course concerning Pinochet's extradition: Even in purely juricial matters there was seldomly unambiguous decisions, as not unanimous decicions in the two decisions in the House of Lords (Pinochet I and Pinochet III), that were to follow. By the way it contributed to the recognition of the jurisdiction of the Audiencia Nacional, that former Army Auditor General Fernando Torres Silva, one of Pinochet's leading legal advisors during the military rule. On October 3rd he gave evidence to García Castellón in Madrid. This to testify that Pinochet and his military people generally had not been criminals, but had followed the law at the time being. This testimony however served as a recognition of the jurisdiction of the Audiencia Nacional which was a strategic error that Torres Silva later admitted to have made.[21]

Anyhow, there was intense activity in Spain in the beginning of the week that ended with Pinochet's detention on Friday. Castellón, Garzón and others gathered material with regard to detaining Pinochet for interrogation. On Wednesday 14th Scotland Yard recieved the request to question General Pinochet from Spain and now there was hefty activity in London where the police confered with various ministeries on the question on Pinochet's immunity, on whether his visit was an official or a private one, whether the Foreign Office had approved that the Pinochet entourage was armed and so forth. The request for detention referred very briefly to activities under the Operación Condor from 1975-1983, that, as the request read, »could constitute crimes of Genocide, Terrorism and Torture«

Friday afternoon – allegedly more or less on his way out of the door for the weekend Baltasar Garzón recieved a fax from London that they had not remedy to detain Pinochet and that they by the way reckoned he would leave the country the next day.[22]

In yet another legal peculiarity Garzón therefore – in what in the book The Pinochet Effect is called a »daring step into uncharted territory« – faxed an outright arrest order on Pinochet to London on Friday 16th. This arrest order in not too specific terms initially mentioned that there from 1973 in Chile and from 1976 in Argentina were military regimes committing criminal acts »under cover of the most cruel, ideological repression against the citizens and inhabitants of these countries.«.[23] There was reference to the Rettig Report and it's documentation on murder and torture, Operación Condor was mentioned and also the security force DINA. Only one specific case was mentioned, the kidnapping in 1976 of a Edgardo Enríquez Espinosa, who was taken to the camps El Olimpo, Campo de Mayo and Escuela Mecánica de la Armada in Argentina and who has been missing ever since.

In the arrest order there was reference to domestic, Spanish law, first and foremost the Articla 607 in the Spanish Código Penal concerning genocide. Also Ley Orgánica del Poder Judicial and Ley de Enjuiciamiento Criminal with regard to Spanish, universal jurisdiction in such cases.

the arrest order was approved in the Bow Street Courts in central London just before staff took off for the weekend. Metropolitan Magistrate Nicholas Evans conferred with the Home Office, that told him that Pinochet had no diplomatic immunity. Evans issued the arrest order from his home later that night with legal basis in The Extradition Act 1989, Section 8, paragraph 1 (b), saying that an arrest order can be issued immediately by any metropolitan magistrate.

At 23.25[24] Scotland Yard officers arrived at the very well renowned hospital The Clinic, established in 1932, and situated in the street Devonshire Place close to Regent Park and Madame Tussauds. Here was Pinochet after his back operation. Allegedly arms were pulled by Pinochet's two Chilean guards on one side, and Scotland Yard officers on the other. As a half-sleeping Pinochet realized that Garzón was behind the arrest he exclamated something like: »that communist!«[25]

IN Chile the news og Pinochet's arrest was recieved with vehement reactions. The relatives og the several thousand desaparecidos walked the streets with pictures of their dead relatives and a giant concert was arranged in a hurry, the mucisians being some of those who back in the day were persecuted, banned and expelled during the military regime.[26] On the pro-side there were demonstrations outside the British and the Spanish embasseys. Christian Labbé, a pro-Pinochet-mayor in the wealty part of town, Providencia, saw to it that rubbish collection was not performed on the Spanish embassey. Cristina Girardi, a mayor in Cerro Navia, a poor part of Santiago, took the rubbish away with her municipality's garbage trucks. »If you take away our garbage [Pinochet], then we will gladly take yours«, she said to the Spaniards in front of rolling cameras.[27]

From official side in Chile the reaction was to demand Pinochet released immedietely on the grounds that the detention was a violation og Chile's sovereignty. The president of Chile, christian-democrat Eduardo Frei Ruiz-Tagle (B. 1942), headed the centre-left-coalition Concertación, that has been governing since the end of the military regime in 1990. He was the second president since democracy was restored. Frei, like all other chiefs of government in the ibero-american world was at a summet in Porto in Europe, when Pinochet was arrested and his immediate reaction was to express wonder over Spain's eagerness with regard to other countries's past, when they had not had a scrutiny after the Spanish Civil War and the Franco Era.[28] The same reaction came from Foreign Secretary José Miguel Insulzas (b. 1943) from Salvador Allende's Partido Socialista. Insulza back in the day had worked in the Foreign Ministry during Allende's time in office and had since lived in exile during the military regime.[29]

By the way Frei's father, Eduardo Frei Montalva (1911-1982), was president from 1964 ot 1970, and died, probably from poisoning by security forces, during a trivial hospitalization in 1982 at a time, when he was a critic of and in opposition to the military rule.[30]

If reactions to the news of Pinochet's arrest in countries like Chile and UK were mixed, they were unanimously positive in Denmark. As a typical example the editorial in newspaper Politiken on Sunday the 18th had the headline »Hooray for Chile«, and in an exerpt it read:

Now Denmark too must support the Spanish judges with full force and use this case as a contribution to the creation of an international jurisdiction against the dirty wars of dictators against the citizens at home and abroad. But also as a countribution to the settlement with the past, that Chile must go through if the democracy, that is inhibited by the laws of Pinochet, shall develop into a real democracy. We ought to listne to the voice of one of the victims from the first wave of Pinochet-murders again: the Chilean protest singer Victor Jara's voice.[31]

On a purely judicial level problems appeared concerning the Spanish request to arrest Pinochet of October 16th. The document as noted above mentions in rather general ways torture, disappeared persons, »physical elimination« etc, but this in the period from 1976 to 1983, in other words many years prior to Spain, UK and Chile having ratified The United Nations Convention against Torture (in 1987; Chile 1988). Moreover only one specific case, the case of the disappearance of a Edgardo Enríquez Espinosa. A murder committed outside the UK by a person not being af citizen of the UK is not punishable in the UK, and thus did not qualify for extradition.[32] This last point was put forward by a team of lawyers in a letter dated October 21st 1998 to Home Secretary Jack Straw, with the request to cancel the warrant and free Pinochet. Else they apply for a writ of habeas corpus to release Pinochet from detention.

These problems led to a second request to arrest Pinochet being issued on October 22nd in Spain and thus a new provisional handwritten arrest warrant in London the same day. Now it also read that Pinochet:  

Between 1st January 1988 and December 1992 being a public official intentionally inflicted severe pain or suffering on another in the performance or purported performance of his official duties;

Aditionally that he:

2) Between the 1st day of January 1988 and 31.12.92 being a public official, conspired with persons unknown to intentionally inflict severe pain or suffering on another in the performance or purported performance of his official duties;

3) Between the 1st day of January 1982 and 31st January 1992 he detained other persons (the hostages) and in order to compel such persons to do or to abstain from doing any act threatened to kill, injure or continue to detain the hostages;

4) Between the 1st day of January 1982 and 31st January 1992 conspired with persons unknown to detain other persons (the hostages) and in order to compel such persons to do or to abstain from doing any act, threatened to kill, injure or continue to detain the hostages;

Moreover that he:

Between January 1976 and December 1992 conspired together with persons unknown to commit murder in a Convention country.

Finally it read:  

All within Spanish jurisdiction. [33]

The law firm to represent Pinochet was Kingsley Napley. It is a high profiled company founded in 1937 in central London, and can boast a history of acting for clients in the 1980s and 90s such as Jeremy Thorpe, Nick Leeson, Ian Maxwell and General Pinochet, as it reads on it's homepage. Especially the Pinochet Case is mentioned on a subpage on one of their Areas of specialisation, extradition:

We are internationally recognised for the quality of our extradition work.
[...]
The team regularly lectures to professionals in relation to the extradition process, including the Extradition Act 2003 and the European Arrest Warrant surrender proceedings. We represented Senator Pinochet in extradition proceedings which resulted in groundbreaking new law. [34]

The answer from the lawyers at Kingsley Napley to the second provisional arrest warrant – also dated October 22nd 1998, but in fact sent to Crown Prosecution Service BEFORE this second provisional arrest warrant was issued – had three objections.[35] the first was that it was not possible to issue a new arrest warrant when the first – despite request – had not been cancelled. The second objection was that the procedure for a arrest warrant could only be used once, if the time limits described in Section 9 of the UK Extradition Act 1989 and Article 16 of the European Convention on Extradition should be obeyed. The third was that »Senator Pinochet is entiteled to imunity from arrest. We have explained to the Secretary of State for the Home Dempartment how that imunity arises. In the absence of any justification for ignoring his clear prima facie claim, a further arrest warrant should not be sought or issued.« This was a reference to a letter from the day before, October 21st,[36] in which they had asked the Home Secretary to release Pinochet in pointing to the Extradiction Act 1989 and it's Section 8, Paragraph 4.

By tye way in short time also Switzerland, France and Belgium requested for the extradition of Pinochet, but the next step in tue UK was for the The High Court of Justice for England and Wales to decide on the objections from Pinochet's lawyers. Their ruling came already on October 28th. The High Court, some kind of a surpreme court for England and Wales, deals with appeals from lower courts and should thus rule on the objections from Pinochet's lawyers regarding the two arrest warrants and the lack of release from detention on the side of the Home Secretary.

At this time in the case Baltasar Garzón asked the USA to publish documents from the CIA, DIA, FBI ect. in connection to what from that side could be documented concerning Operación Condor among other things.[37] For almost two years it had been tried to ved access to these intelligence documents, but the Bill Clinton (b. 1946) government had not been too inclined to do so. Some parts ended up being published, but it was selected and did not reveal much. In a comment on that news paper The New York Times on October 26th 1998 printed a such declassified document from the DIA – Defence Intelligence Agency – that was almost fully blackened. (That document is represented on this site.) It transformed into the so-called Chile Declassification Projekt, that was the publication of chosen and edited documents from the US intelligence services from 1968 to 1991 in three stages during the period Juni 1999 to June 2000.[38]

The trial in The High Court, 28/10 1998

The legal proceedings took place in The Royal Courts of Justice on The Strand at the northern bank of river Thames in London.

While a team of lawyeres from Kingslev Napley worked behind the scenes on the Pinochet case it was the »barristers«, Clive Nicholls and Clare Montgomery who represented him on court. They were not working for Kingsley Napley. Both sere var QC, Queen’s Councel, a sort of honorary title for lawyers and barristers existing or having existed in different formt in the various countries in the Commonwealth.

On October 28th 1998 the three judges delivered their verdict.[39] It happende after a number of court sessions where Pinochets barristers among other things had put forward that a consequence of the precedent that would be created in case of a ruling to extradite Pinochet to Spain could be that the British queen some day could be »extradited from the USA to Argentina for the killing of Argentine citizens on the Falkland Islands or to Ireland for the killing of Irish citizens in Gibraltar.«[40] A jet plane from the Chilean Airforce, FACh, was on the RAF air force base Brize Norton not far from Oxford ready to fly Pinochet home to Chile.

However: The Lord Chief Justice Bingham of Cornhill (b. 1933) delivered his judgement first. His statement was – as is the case in such matters – very thorough, and there were considerations and weighing with regard to Extradiction Act 1989 and European Convention on Extradition from 1957. He put forward that in an European convention of 1990 it was specified that a custody can be brought to a halt after 18 days if the requested state has not recieved an outright request for extradition and that it cannot exceed 40 days of duration. (The 18 days were exceeded in this case, as a final request for extradition signed by Baltasar Garzón was recieved in London on November 3rd.)

With regard to the question on the two arrest warrants Lord Bingham's view was, that under normal circumstances it would be undesirable with two such concurrent. However he remarked that in this case it was two different sets of charges and that therefore he was not convinced by the arguments from the side of Kingsley Napley.

With regard to the first four charges in the second arrest warrant of October 22nd Lord Bingham refered to the fact that Pinochet's barrister Clove NOcholls himself had acknowledged that the charges in question that by their general nature qualified for extradition. With regard to some other objections against these four charges Lord Bingham plainly pointed to, that it would depend on the actual cases in a final arrest warrant whether or not they qualified for extradition. With regard to the last point, conspiracy to dommit murder, Lord Bingham conceded that the lawyers from Kingsley Napley were right, that id did not qualify for extradition in part due to the dates on which the countries involved had ratified the relevant conventions. That would however not alter the final result much, if the four other points qualified for extradition.

With regard to the question of a former head of states immunity Lord Binghams judgement was, that Pinochet had indeed immunity as far at UK’s State Immunity Act 1978 was concerned, in which case all the conciderations above were overruled. Lord Bingham also related to the Nuremberg Trials, 1945-1946 and the international tribunals in Yugoslavia and Rwanda in the early 1990's and he did so in the way, that he stressed that those were indeed internationatl tribunals; not national courts. It could thus not be concluded, that courts in London had jurisdiction over Pinochet. By the way Lord Bingham put forward that the alleved tortures, disappearences and murders were not claimed to have been committed by Pinochet personally, and that they moreover had happened in his execution of power as a head of state, which was a critical point for him.

The second judge, Lord Collins, declared he was in agreement and among other things added that with regard to the question on whether such gruesome acts as the ones in question here could be said to have been committed in the line of duty by a man in his capacity head of state, that yes – history was filled with examples of exactely that!

the third judge, Lord Richards, with his sole remark in the pronouncement of the sentence declared in agreement with his two colleges with the laconic statement: »I agree with both judgements.«[41]

Hence there were now rulings in two questions, namely firstly that the charges did actually quality for extradition, but secondly that Piniochet as a former head of state had immunity. However Lord Bingham immediately said that the question of the immunity of a former head of state would be tried in The House of Lords on grounds of the public and international interest and importance of the case. It was therefore decided that – who would remain under arrest – would not pay for the expences for the case.

The day after, on October 29th, Pinochet was transferred from The Clinic to convalescent at Grovelands Priory Hospital in the northern part of London. It is a hospital that among other things was known for alcohol- and drugs-rehabilitation of well-to-do persons, such at rock stars, and shortly before Pinochet's stay for example the football star Paul Gascoigne (b. 1967).

On October 30th it was ruled in Madrid, that the courts there could claim jurisdiction to prosecute Pinochet. 11 judges in >Audiencia Nacional were unanimous on the matter and thus overruled the prosecution authority's and the Audiencia Nacional’s own chief prosecuter, Eduardo Fungairiño’s, request to overturn a previous ruling.[42] This whole course of events Gonzalo Vial in his treatment of the matter calls »la guerra Fungairiño/Garzón«, »The war between Fungairiño and Garzón.«[43]

In the UK the intriguing situation was experienced that president og Argentina, Carlos Menem (b. 1930), as the first head of state since 1959 was visiting at that time. Menem expressed his »'absolute, complete and unequivocal support' to the Chilean government and it's objection to the Chilean ex-dictator being in arrest in Great Britain.«, as it read in Danish newspaper Aktuelt, in which it was at the same time remembered how the UK in 1977 had mediated between the two South American countries in a dispute over the Tierra del Fuego, how Chile under Pinochet in 1982 had made air bases at disposal for the UK in it's war against Argentina over the FAlkland Islands, and how the two neighbouring countries at the same time had cooporated splendidly on chasing left wing activists in the Operación Condor.[44]

The detention of Pinochet had the direct concequence that Chilean naval officers on their way to travel to Great Britain to investigate into the buying of thee frigates for the Chilean navy – a 60 million Pound deal – cancelled their journey.[45]

British author Fay Weldon (b. 1931) in connection charges against feminism as of 1998 in general and her prime minister Tony Blair, in perticular, that Blair »acted like a girl«, that Blair in connection to Pinochet by »detaining him in violation of both international law and common sense« showed that it now in contrast to earlier days now was the task for politicians »not only to rule, but also to rule with the right emotions - even if the result is completely insane.« [46]

Denmark's foreign minister, Niels Helveg Petersen (b. 1939) of the »Danish Social Liberal Party« (Det Radikale Venstre) said that the Danish coalition government (Social Democrats-Danish Social Liberal Party) in principle was an adherent to former dictators being held responsible, but that it should happen in consideration of the rule of law.[47] One of Helveg Petersen's predecessors, Uffe Elleman-Jensen (b. 1941), of »Danish Liberal Party« (Venstre) wrote in a letter in Danish newspapter Berlingske Tidende – probably as the only one in Denmark – against the extradition of Pinochet, and that solely in consideration of the risc that it would undermine future efforts to reconcile through truth and reconciliation processes, and he mentioned as examples the sucessful reconciliation in South Africa and also in Chile and he looked forward to the outcome of such a process at the time just initiated in Bosnia.[48]

Pinochet I – The House of Lords, 4-25/11 1998

Allready on November 4th 1998 court sessions began in the case called Pinochet I in the House of Lords in the British parliament, at the time the highest judicial institution in the UK. It consisted of the so called Law Lords, that were members of the House of Lords, that had considerable judicial experience and background. (By the way this is a major function of the House of Lords that it would give up by 2009 through legislation of 2005 that meant that the UK got a genuine high court. This was done in order to obtain a more clear division of the executive, legislative and judicial branches.)

By the way a number of organisations were called in as »plaintiffs«. It was Amnesty International; The Redress Trust (an organisation helping survivors from torture (Danish Inge Genefke (b. 1938) is mentioned in connection to the conception of this organisation)); The Medical Foundation, that had participated in treating victims of torture in Chile; and the Human Rights organisation Human Rights Watch.

The court sessions should – in the court's own words – rule on the question of

the proper interpretation and scope of the immunity enjoyed by a former head of state from arrest and extradition proceedings in the United Kingdom in respect of acts committed while he was head of state.[49]

As it can be seen, in these proceedings it was presupposed, that the charges in question qualified for extradition; the only question was on the matter of immunity.

From excerpts from the court hearings [50] it is seen that the public prosecutor stressed that no immunity had been claimed in a number of legal processes when it came og crimes covered by international law, war crimes for example. Among other things the Nuremberg Trials, the Tokyo Trials and the International Criminal Tribunal for the former Yugoslavia were mentioned. By the way it was – for some perhaps surprisingly – quite a major question during the hearings in what period of time Pinochet should be regarded as his country's head of state at all.

Pinochet's barristers made a point of UK's State Immunity Act 1978, and put forward the view that nothing at all overruled the absolute immunity here established. It was also put forward that they found nothing in international law that established any whatsoever universal juridsiction.

At this time there were tensions back in Chile because of the whole case. Internally in the broadly composed coalition government there were tensions between the Christian-Democrats and Salvador Allende's old Socialist Party as to whether which agendas were in play. The national security council, Consejo de Seguridad Nacional, founded in agreement with the 1989 constitution, assembled, and the armed forced held meetings at the highest level. Foreign minister José Miguel Insulza called for hisi Chilean ambassador to Spain to return to Chile for conversations, but rejected the notion that Chile was about to break off diplomatic relations with Spain.[51]

The ruling[52] of the five Law Lords came on November 25th, on Pinochet's 83rd aniversary, and the session as it unfolded has been called a judicial counterpart to penalty-kick shootout in football, and it was delivered on televison as such an event with graphics on the screen depicting the score. It will also be depicted that way here:

Lord Slynn of Hadley (b. 1930) based on the State Immunity Act 1978 came to the conclusion, that Pinochet enjoyed immunity as a former head of state with regard to the charges in the provisional arrest warrant of October 22nd.

1-0 Pinochet.

Lord Lloyd of Berwick (b. 1929) argued partly on the basis of international common law, partly on the basis of State Immunity Act 1978, that Pinochet enjoyed immunity.

2-0 Pinochet.

Lord Nicholls of Birkenhead (b. 1933) argued that torture and the taking of hostages was not internationally recognised as something performed by heads of state in their official capacity, and therefore the thought of a personal responsibility was not wiped out, and immunity could not be claimed.

2-1 Pinochet.

Lord Steyn (b. 1932), who by the way is born in South Africa, argued that the cases that Pinochet was charged of were not in principle different from if he had been charged with killing his gardener or with having tortured his opponents for fun, and so no immunityu could be clamied.

The score: 2-2

Everyone present held their breaths as the last Law Lord, Lord Hoffmann (b. 1934), also South African, was to deliver his ruling.[53] Hoffmann briefly leaned onLord Nicholl's arguments and thus supported the appeal.

Final score: 2-3 against Pinochet

the highest judicial authority had ruled that Pinochet did not enjoy immunity as a former head of state. In the court room in the British parliament soft crying was heard with faint sighs of joy from the spectators; outside a crowd roared with cheers. The limousine suppossed to take Pinochet to RAF Air Force base Brize Norton West of London had to leave empty. At Brize Norton the waiting Boeing 707 Aguila from the Chilean air force, FACh, had to take off without it's general.[54]

»It's a surprise, it's a joy, and it's bad news for dictators!«,[55] said Lionel Jospin (b. 1937), French prime minister, who since 1986 and to this day had hosted Haiti's »Bébé Doc«, Jean-Claude Duvalier (b. 1951) living rather unbothered in Paris despite Duvalier's and his father's – »Papa Doc«, François Duvaliers (1907-1971) – regime having claimed tens of thousands of deaths and tortured on the the West Indian island. Correspondingly , Jean-Bédel Bokassa (1921-1996), former emperor of the Central African Republic had lived in France till his death two years earlier without his killings, torture and alleged canibalism having raised eyebrows.

Outside the Grovelands Priory Hospital demonstrators were standing in The London Picket, a demonstration against Pinochet, that was to follow him the whole way through, now listening to the radio as the verdict was announced and the crowd roared in exultation. Pinochet was inside the hospital and had the verdict was delivered by interpreter. He broke down crying.[56]

On Danish newspaper Politiken's satirical back page, At Tænke Sig – ATS, the day after was the following item:  

BOOK OF THE WEEK

A. Pinochet: 'The Journey Goes to Spain'[57]

(The same item was printed in ATS on December 27th 1998, March 26th 1999 and December 26th 1999.)

In the press around the world too there was great joy. Headlines in Italian newspapers Il Manifesto and L'Unitá was »THANKS!« and »Today Allende's people smiles«. In French Liberation the headline read sarcastically: »Happy birthsday«.[58]

On Dedember 1st Pinochet moved from Grovelands Priory Hospital to a rented house at Wentworth Estate in Virginia Water, about 15 kilometers distant from Heathrow Airport at the fringe og Greater London. It is one of England's and Europe's most exclusive districts for wealthy people featuring gated areas with guards having or having had residents like The Sultan of Brunei (b. 1946), musician Cliff Richard (b. 1940) and a row of the world's best and most earning golfers, among them Danish Thomas Bjørn (b. 1971). The house that would be the setting for Pinochet's life for more than a year was first and foremost filled with security guards guarding him around the clock and that he would have to notify five minutes in advance if he wanted to go outside to the garden, in part so the area could be searched with dogs. All cars going in and out of the estate were searched for bombs.[59]

On November 8th Pinochet issued a press release, a message to the British people in which he in very emotional terms told of his tearful wife's message to him of his arrest, of his love to the brits, of the sense of honour and courage and his fear of a show trial.

The Labour government could have chosen a different path and stressed the diplomatic relations, Chile's own right to prosecute and try Pinochet and so forth, but in part under the influence og public opinion in the UK and Europe it was opted to let the ruling from the House of Lords speak for itself, and the formal authorisation of the court in Bow Street to let an actual consideration of the request to extradite take place was issued by Jack Straw on December 9th with reference to to the UK Act 1989 and the charges against Pinochet on torture, plans for torture, attempted murder, plans for murder, hostage taking and plans for the taking of hostages.[60]

On December 11th Pinochet therefore was forced to show up at the court building in connection to the high security prison Belmarsh in the Eastern part of London. The trip from Wentworth Estates to Belmarsh took place under great security precautions. Pinochet spoke twice in court – at first he presented himself in present tense: »I am Augusto Pinochet Ugarte. I am chief commander in the armed forces, Capitán General, president of the republic and now senator for life.« The second time he said that: »With all due respect, Mrs, I do not recognise the jurisdiction of any court outside my own country to judge me with regard to the lies that the gentlemen from Spain are accusing me of.«[61]

Pinochet II, Lord Hoffmann – The House of Lords, 15/1 1999

Few days later a problem arised with regard to the legal steps against Pinochet. After the ruling on November 25th it was reported on Chilean television, that Lord Hoffmann's wife, Lady Hoffmann, had connections to Amnesty International. After a couple of days it was known, that she since 1977 had worked in the secretary og Amnesty International and that she at the present moment worked in the media departement. Her position was solely administrative.[62] On December 7th Pinochet's lawyers from Kongsley Napley got an anonymous tip, that Lord Hoffmann himself had a position in an organisation supporting Amnesty International, nemlig Amnesty International Charity Limited, AICL, an organisation established in 1986, that Lord Hoffmann had headed and been in the bord of since 1990. Lord Bingham, who had appeared in the above mentioned court proceeding in the High Court, in 1997 had briefly been involved in raising money for a building for Amnesty. Lord Hoffmann by the way was not a member of Amnesty. All this was presented by Amnesty lawyers in a letter for Pinochet's lawyers at Kingsley Napley on December 7th.[63]

Pinochet's lawyers requested for Lord Hoffmann's vote not to count in the 3-2 ruling of November 25th og for the entire ruling to be void as it could appear that Lord Hoffmann was biased as Amnesty had been a plaintiff in court.

At this time a group of Chileans were in London making demonstrations in favour of Pinochet. Allegedly many of these Chileand had been paid to go to London. They sported banners with texts like »English pirates, give us our godfather back«, and shouted slogans like »Lords, communist faggots!«[64] According to Gonzalo Vial (1930-2009), for at short period minister of education under the military rule and a biographer of Pinochet, there was in this group of Chileans some that had lost relatives on the government side during the military rule in addition to the singer and politician Patricia Maldonado (b. 1950) plus a number of politicians.[65]

In Lord Browne-Wilkinson's (b. 1930) account in the House of Lords on December 1th – in what is called Pinochet II – it was revealed, that AICL in 1993 had published material about torture ect. in Chile.[66] Lord Browne-Wilkinson emphazised as the crux of the matter the principle, that a man cannot be a judge in his own case.[67] With the due care caracteristic for such cases Lord Browne-Wilkinson referred to cases in the House of Lords in 1852 and 1866 to find precedent for the ruling.

The five Law Lords came to the conclusion, that the ruling of November 25th should be nullified, and that a new line-up of Law Lords should be appointed for a new court process in the House of Lords.

It should be mentioned that unceartainty exists with regard to who and how many new of Lord Hoffmann's connection to Amnesty. This includes whether Pinochet's lawyers and barristers new already before the court sessions; in other words that they speculated in seing the trial through and having the ruling overturned after, in case it was not in favour of their client.[68]

Pinochet III – The House of Lords, 4-25/11 1998

The court hearings in the new trial, dubbed Pinochet III, began on January 18th 1999 and stretched till february 4th with 12 days in court. Rather extraordinarily 7 Law Lords were now appointed to rule the case. Again demonstrators for and against Pinochet lined up outside the British Parliament, and again the Chilean air force had a plane parked at RAF Brize Norton to take the general home. The same human rights organizations etc. were part of the work in court, but this time around also representatives from the Chilean state argued for Pinochet's immunity and Chile's right to try him themselves.

Since Pinochet I one year earlier what had happened was that it was now not just a hastily handwritten request for arrest to relate to, but a thoroughly prepared and detailed request for extradition of November 3rd 1998, signed by Baltasar Garzón.[69] Operación Condor – the joint operation by security forces in Chile, Argentina, Paraguay and Uruguay – was described rather detailed, and also the founding of the security force DINA, Dirección de Inteligencia Nacional, in June of 1974, that this organization was the prime responsible for murders, disapprearances and tortures in the period till it's dissolution in August of 1977 and it's succession by a new organization with the same field of operation, CNI, Central Nacional de Informaciones. CNI was, according to the request for extradition, responsible for the persecution of individuals from the two militant movements MIR, Movimiento de Izquierda Revolucionaria, and FPMR, Frente Patriótica Manuel Rodríguez. It was also describes that the main part of the 160 dead from 1978 to the end of the dictatorship in 1990 were by the hands of CNI.

A line of concrete cases of, inter alia, torture were described. One of them is rendered below as an example of the tenths of thousands of turtures. This one is, however, not the most gruesome example:

Gladys Nelida Díaz Armijo on February 20th 1975 was taken to the torture centre Villa Grimaldi, that – as it is said – some 3000 persons went through in those years and of which some 800 have not been seen or heard of since. She was at the centre for two years and three months. For the first three months she had electrical shocks applied to her in sessions of 3 to 4 hours at a time. For the first 3 days she got no food of drink. She had four ribs broken by an expert in carate, had her eardrum brokne and had internal haemorrhages. After that she was hung by her hands for a day and a half and had electical shocks while hanging. Then came three months when she had muscle paralzing poison injected og the kind the Amazon indians use in poisonous arrows, curare, and the sedative pentotal in her veins in combination with more electrical shockes. In this time she lost 15 kilograms of her bodyweight. Medically trained personel assisted in the maltreatment. For 3 months she god one nights full sleep; else two hours at a time. She was offered no means of personal hygiene; not in connection to her having her period either.[70]

As far as Pinochet in for example in an interview in The New Yorker had expressed his admiration for British civilization including British judicial culture, this admiration must be said to be just. Transcripts from the court hearings bear witness of the strictly judicial circumstances in the case in focus, but also witness of the culture reigning in the highest legal circles in London.

The dialogue rendered below, gives an insight into a highly peofessional but at the same time very direct and unpretentious – even unpretentious towards themselves – and frank mentality with the involved Lords and barristers. The examples here are exclusively included to demonstrate this aspect. Thus said Lord Browne-Wilkinson in an answer to Mr. Alun Jones on behalf of Spain having delivered a rather long account of no one being able to justifying torture, even if that meant having revealed a tettorist's bomb og having been able to help the UK in its war over the Falklands:

Mr. Jones, try and keep that stuff out, will you. We really are facing a a not very pure and rather difficult point of law, that is all. I have very well taken what you have just said. We are not concerned with policy; we are concerned with law. [71]

In an exchange where proffessor Christopher Greenwood (b. 1955) questioned whether, if not of monarchs, then at least of the absolute immunity of heads of state, had not been unclear since the early Twentieth Century, Lord Browne-Wilkinson answered:

I was afraid that this was going to happen, Professor Greenwood, but at some stage, and I am not suggesting at all that it whould be now, you are going to have to tell me when things do become part of international law and when the do not. It is a point I have never understood since I was at Oxford, but this case is going to turn, as far as I can see, more and more on that point. [72]

Clare Montgomery at a later point in an exchange with Lord Browne-Wilkinson concerning a question as to what belongs under activities in the auspices of the state:

Clare Montgomery: »I respectfully disagre, my Lord. «

Lord Browne-Wilkinson: »Now that is what I need. «[73]

As another example to illustrate the way of talking in these circles, here is an opening to a contribution from Clare Montgomery:

May I summarize before finally, no doubt to your Lordships’ relief, sitting down? [74]

David Lloyd-Jones, appearing as an »amicus curiae« (latin: »friend of the court«), that is as a councellor to the seven Law Lords, at some point:

Could I just deal with extraterritoriality briefly? [75]

Anyhow, the seven Law Lords delivered their verdicts on marth 24th. Initially their speaker, Lord Browne-Wilkinson, with a presentation of the premises of the case.[76]

Lord Browne-Wilkinson briefly stated, that Spain claimed jurisdiction in all presented cases. But that as far as extradition coming into question at all, the alleged crime had to be punishable in both the requested and the requesting country – this is what is called the principle of »double criminality«. Lord Browne-Wilkinson remarked that torture committed outside the UK had not been punishable till September 29th of 1988 at the commencement of the UK Criminal Justice Act 1988.

Another question that Lord Browne-Wilkinson raised was whether the date of the committed crimes or the date of the extradition that were the basis for the law being in force.

Finally there was the question of whether Pinochet as a former head of state had immunity from the alleged crimes, if so all the above was overruled.

Browne-Wilkinson put it this way:

Our job is to decide two questions of law: are there any extradition crimes and, if so, is Senator Pinochet immune from trial for committing those crimes. If, as a matter of law, there are no extradition crimes or he is entitled to immunity in relation to whichever crimes there are, then there is no legal right to extradite Senator Pinochet to Spain or, indeed, to stand in the way of his return to Chile. If, on the other hand, there are extradition crimes in relation to which Senator Pinochet is not entitled to state immunity then it will be open to the Home Secretary to extradite him. The task of this House is only to decide those points of law.

Ssbsequently Lord Browne-Wilkinson as the first of the seven Lords delivered his decision. In at British newspaper hed had been called »humane, liberal and charming«[77]. With regard to murder and plans of murder it was his view, that Pinochet enjoyed immunity as a former head of state. With regard to torture and plans of torture his view was, that Pinochet did not have immunity as far as cases after December 8th of 1988 goes, as this is the date when UK as the last of the three involved countries ratified the UN convention on turture. Green light for extradition.

Lord Goff of Chieveley (b. 1926) had the view that the main part of the cases would not meet the requirement of double criminality, and that as far as the remaining cases were concerned it was his opinion that had the 116 countries signing the convention known, that the thereby gave up the immunity of their heads of state, they would never have signed it.

For these reasons I am of the opinion that the proposed implication must be rejected not only as contrary to principle and authority, but also as contrary to common sense.[78]

Lord Goff of Chieveley rejected the appeal and an extradition of Pinochet.

Lord Hope of Craighead (b. 1938) said that the main part of the cases could not lead to extradition regardless of the perpetrator being head of state or not, and that Pinochet had immunity with regard to cases prior to December 8th of 1988. Looking back on his time as a magistrate he stressed that the entire case was now different from the first time it was heard in a Magistrates' Court, that only cases after December 8th of 1988 could be in question. His admonition was pointed at the Home Secretary. However that Pinochet could be extradited as far as cases after December 8th 1988 went.

Lord Hutton (b. 1932) declared that the process of extratidion could be commences for cases of torture and plans of torture after September 29th of 1988 when the UK Criminal Justice Act 1988 went into force. The same admonition as that of Lord Hope of Craighead was given. His arguments with regard to the immunity of heads of state was a rejection of the view, that that would apply to torture, as torture per definition is committed by states – private individuals possible maltreatments and mutilations of each other simply are not torture as far as the conventions are concerned.

Lord Saville of Newdigate (b. 1936) pointed to his »noble and learned friend«[79] Lord Browne-Wilkinson and ditto Lord Hope of Craighead, as far as the matter that all three countries involved as of December 8th of 1988 had ratified the convention and that extradition therefore could done for cases after this date. his comment on and assessment of the views of Lord Goff of Chieveley, that the 116 countries would not hate signed the torture convention had the known that they thereby gave up on the immunity of their former heads of state was the following:

If there were states that wished to preserve such immunity in the face of universal condemnation of official torture, it is perhaps not surprising that they kept quiet about it. [80]

Lord Millett (b. 1932) – with his jewish background perhaps not surprisingly? – drew on presedence from both the Nuremberg Trials and the case against Adolf Eichmann in Israel in 1962. His opinion was, that there could be extradited on all charges, but he very well knew that he was up against a majority of Law Lords on this one. He too expressed his admonition to the Home Secretary »in the light of the changed circumstances arising from your Lordships' decision. «

Lord Phillips of Worth Matravers (b. 1938), who had just been appointed Law Lord, presented a mainly custom law-agrumentation and did not think heads of state could have immunity in these kinds of cases at all, and therefore expressed that extradition could proceed though in consideration of double criminality. He did not indicate an exact date in this regard.

The above is just a very brief rendition of the statements from the 7 Law Lords. Even in the cases where they on the bottom line did agree their roads to these bottom lines and their reasons were in many cses rather different. In that regard is was a sort of muddy ruling. But at the end of the day the verdict was clear; the process for extraditing Pinochet could commence as far as torture and plans for torture committed after December 8th 1988 were concerned, but not as far as cases prior to this date and not as far as cases of murder and plans for murder were concerned. This however meant that the only case of turture remaining was the one of 17 year old Marcos Quezada Yañez, of whom in the truth and reconciliation commission report of 1991, the so-called »Rettig Repport« in its english version from 1993 (United States Institute of Peace) read:

On June 24, 1989, police arrested Marcos QUEZADA YAÑEZ, 17, a student who was active in the Pro-Democracy party (PPD), on the street in Curacautín, and took him to the checkpoint. A few hours later he died as a result of "shock, probably from an electric current," according to the autopsy report. Taking into account the evidence gathered, the Commission has come to the conviction that Marcos Quezada did not commit suicide--and hence it rejects the official report--but that he died as a result of torture applied by government agents in violation of his human rights. [81]

Former UK Prime Minister, Margaret Thatcher, the following day visited Pinochet at his rented house in Virginia Water under full press coverage. Thatcher's message to Pinochet was thanking him for the help during the Falkland War and additionally:

I'm very much aware that it's you who brought democracy to Chile. [82]

Other heavy weights on the political scene speaking for the release of Pinochet at this time were former conservative Chancellor of the Exchequer Norman Lamont (b. 1942) and the former US president George Bush (b. 1924) and former US Secretary of State Henry Kissinger (b. 1923).[83]

At this time the public interest in the Pinochet Case was in Denmark at least diminishing, which could be seen in the news coverage. Gone was by and large various statements of opinion in the press, and news coverate was in a more softened down tone. For example a headline in Danish progressive paper Information read »Vague Pinochet ruling«.[84]

The next step towards extradition was for the Home Secretary to give a green light to proceed further ahead, and he did so on April 14th 1999.[85] The following day, on the 15th, he – extraordinarily, in light of the importance of the matter – laid forward his conciderations with regard to letting the process of extradition advance.[86] He stressed, that he had taken a look at the case with a new approach concidering the new circumstances since November/December 1998 leaving out of account the prior rulings. He also stressed that he did not concider the case politically motivated and that he regarded the the case as being raised in an interest for justice, that he did not consider the cases too old and that he did not think there were diplomatic grounds for releasing Pinochet or national interests being at stake to give reasons for a release and finally that he did not think – as Pinochet's lawyers had proposed – that there were considerations with regard to Pinochet's age and health to be taken.

On Sunday April 18th 1999 an article with an interview with Pinochet was printed in the Sunday Telegraph. This interview plus one in the New Statesman on July 26th 1999 were later to become factors in the way that Pinochet according to the interviewers in the interviews appeared mentally and cognitively in good shape, which promted his advisors to forbid him to give more interviews to the press, as they played the health card. Thereafter he only appeared in a wheelchair.[87] In these two interviews one could read of Pinochet's 100 sit-ups every morning, of the very structured everyday constantly surrounded by police in the small house at Wentworth Estate in Virginia Water, of how Pinochet learned to use the internet to read the homepages of the Chilean newspapers, of his taste for rented videos, for example disaster movies like the contemporary hits Titanic and Deep Impact and movies with action star Jean-Claude van Damme (b. 1960), which in the articles more or less telling was juxtaposed with his dictatorial work.

From May 1999 and onwards to the end of the whole case Pinochet was having medical treatments and examinations in considerable numbers. To mention some: On May 19th at Princess Margaret Hospital in Windsor, West of London and near his residence in Virginia Water for pains in the abdominal region. On May 26th for examination of his vision. On July 2nd he – who had a pacemaker – had an electrocardiac examination performed. On September 13th he had a brain scan at Wexham Park Hospital, also West of London, in Slough. On September 23rd he again was at Princess Margaret Hospital for neurological examinations.[88]

Bow Street Magistrate’s Court – 27/9-30/9 1999

On September 27th court meetings commenced in London's Bow Street Magistrate’s Court concerning what was from the beginning, almost a whole year earlier, the heart of the matter, extradition to Spain on grounds of specific cases. There were four days in court until September 30th.

Some days prior to these days in court there were however in Madrid on September 24th 1999 for the second time a court session in the Audiencia Nacional concerning an appeal from the public prosecutor to suspend the request to the UK for an extradition af Pinochet. The appeal was however rejected as had also been the case in November the year before.[89]

All the while there was every Saturday demonstration, The London Picket, outside the estate in Virginia Water where Pinochet was detained, and according to chairman of Amnesty International in the UK, Andy McEntee, one banner hit the nail on the head: »There are 35 charges for Pinochet's extradition, and thousands of reasons why he should stand trial.«[90]

On September 29. by the way died the last remaining junta member, air force general Gustavo Leigh Guzmán (1920-1999) on the air force hospital in Santiago. He was at an early stage of the military rule in conflict with Pinochet, but had none the less voiced his objection to Pinochet's detainment in London in 1998. Leigh was in 1990 ambushed by the militant grups FPMR, Frente Patriótico Manuel Rodríguez, that sprang from the Chilean communist party's official military branch. At the ambush he was hit by five bullets, but only lost an eye. Leigh initially had been very tough in the fight against the leftwing elements in Chile and cracked hard down on them. Among other things he had been a hardliner towards air force general Alberto Bachelet (1922-1974), who had opposed the coup aganist Allende's Unidad Popular-government, and who died after torture in an air force prison in 1974. Bachelet's daughter, Michelle Bachelet (b. 1951) – likewise exposed to torture in 1975 – was to later become the president of Chile in the centre-left coalition Concertación.

It was 35 all new charges that formed the basis of the question of extradition. The cases were plans of torture and 34 concrete cases of torture, all of which Baltasar Garzón had gathered and prepared. Prosecutor Alun Jones added further details to every of the 34 cases. Concerning plans of torture he added the 1198 cases of desaparecidos, and proposed, that it was a form of mental torture of the bereaved.[91]

The defence for Pinochet argued in one case, that it could not be a case of torture, as the tortured had died after such a short while, that it had to be regared at af case of murder, which did not qualify for extradition. This was a kind of reasoning that disgusted the public.[92] It was further argued that there was a lack of connection to Pinochet in the cases, and that there were now – due to the date of December 8th 1988 being the decisive one since the Pinochet III ruling – no longer any Spanish victims, whereby the Spanish connection to Pinochet was gone, and finally they prostested that new cases had been added after the Home Secretarys April 14th decision to let the case proceed.[93]

On December 8th magistrate Ronald Bartle (b. 1929) – who had once run for election to Parliament for The Conservative party, Thatcher's conservative party, and was known to be a conservative nationalist[94] – rejected all objection from the defence and thus paved the way for Home Secretary Jack Straw could give his final yes to extradition to Spain. Bartle stressed that he solely had had to consider whether or not the actual charges were in nature qualifying for double criminality and could qualify for extradition in both countries – not whether or not the actual charges held water. Finally he opened for the possibility for cases concerning plans of torture prior to December 8th 1988 could be included, as plans for a crime is an onging crime. He reiterated that he did not take a position with regard to the concrete charges, but solely to the nature of them.[95]

Pinochet himself was not present in court, as it was some days earlier announced that he could not be present due to health issues. Purportedly he had had two minor apoplectic attacks, on September 9th and September 25th respectively.[96] It was even said that a priest had been summoned to give Pinochet his last rites.[97]

Margaret Thatcher said at the conservative party's convention in Blackpool in the same week in October as the verdict fell:

In my lifetime all our problems have come from mainland Europe and all the solutions have come from the English-speaking nations across the world.[98]

At the same event she described Pinochet as »the only political prisoner in Britain«, and elaborated:

This is a government which reckons that ageing spies, who betrayed our country to Soviet communism, should escape prosecution - yet obsessively pursues the frail 83 year-old Pinochet, who stopped the communists taking Chile. This is a government which grants amnesties to unrepentant terrorist murderers - yet overturns an amnesty in Chile, and imperils that country's young democracy.
[...]
The chance of Senator Pinochet's receiving anything resembling what we in Britain would recognise as "justice" in a Spanish court is minimal – not least because key witnesses for his defence run the risk of immediate arrest if they set foot on Spanish soil. What is planned there is a show-trial, with a pre-ordained outcome – lingering death in a foreign land.[99]

On Monday the 18th of October 1999 Denmark's Social Democratic Justice Minister, Frank Jensen (b. 1961) took contact to Spain in connection to a resident Chilean's case of torture from Chile. His lawyer, Bjørn Elmquist (b. 1938) was also the lawyer of 14 other Chileans, and attributted great importance to Danish presence in the case.[100]

On October 22nd 1999 Pinochet's lawyers appealed the ruling. The day after Danish entertainer Lotte Heise (b. 1959) wrote in her coloumn in newspaper BT under the headline Narrow-mindeded justice among other things:

But Salvador Allende's fall and death as a democratically elected president stands for many Europeans as a frightening example of just how wrong things can turn out, when CIA and nationalistic rightist forces cooperate. As the bloody, inhuman rule that Pinochet very much orchestrated was only possible for so long because only few took it seriously. Therefore it is important that the ex-dictator be tried – regardless if he's an old weekling – because he has not always been.[101]

Lotte Heise was in her youth activ in Denmarks communist party, and several have in public made ironical statements with regard to her zeal to settle accounts with the here mentioned »rightist forces« while her lack of setteling with communism and it's not inconsiderable prehistory in the business of killings, torture, handling of »democratically elected presidents« ect.[102]

Health and diplomacy

At this stage two desisive factors, that in part were intertwined, had arrived in the game about Pinochet: Diplomacy and Pinochet's health. This probably because it now seemed impossible for Pinochet to achieve his freedom in court.

A diplomatic soloution of the matter was now attempted. Shortly after the ruling in Pinochet III Chile's Foreign Minister José Insulza went to London and Madrid to meet his collegues there. Alså representatives from the Chilean Army now traveled to both Madrid and London on diplimatic missions, and Spain's Prime Minister José Maria Aznar in this fase is quoted for saying, that he did not want an extradition.[103]

In April Chilean Foreign Minister Insulza said that mediation was seeked in the case, and this was a track that his successor, Valdés, alså followed.[104]

There are reports of conversations in Rio de Janeiro in June 1999 between UK Foreign Minister Robin Cook (1946-2005) and his Spanish colleague, Abel Matutes (b. 1941). »I will not let him die in Britain«, said Robin Cook allegedly. »I will not let him come to Spain«, Matutes allegedly replied.[105]

In August Spain's Prime Minister Aznar continued negotiations with the Chilean government on establishing a panel of three judges, one appointed by Spain, one appointed by Chile and one appointed by both countries to come up with an arbitration. This however did not turn out as the suggestion was met with considerable resistance in Spain.[106] By the way the whole ambience in Spain was muddy, as for example the president og the socialist party, former Prime Minister Felipe González (b. 1942) was opposed to Spain trying to have Pinochet extradited. This is said to have been because of hostilities between González and Baltasar Garzón from earlier in the 1990’s, when they were both in the same government together.[107]

At the UN General Assembley in September 1999 in New York, Robin Cook met with Chile's new Foreign Minister since Juni 22nd Juan Gabriel Valdés (b. 1947), in the UN building. On the agenda was the possibility of a release of Pinochet on grounds of health considerations. This is reported in several newspaper articles around the world.[108]

In October 1999 the Chilean embassey officially turned to the Home Office to have Pinochet released on grounds of his aggravating health condition.[109]

At that year's Ibero-American summit on November 15th to 16th 1999 – the ninth in succession – held in Havanna in Cuba not heads of state but Foreign Ministers participated from Nicaragua, El Salvador and Costa Rica, as these countries did not have full diplomatic relations to Cuba. Likewise only Foreign Ministers from Argentina and Chile – not the resigning presidents Carlos Menem and Eduardo Frei – participated. This was to protest Spain's judicial moves against top brass from Argentina's military rule, 1976-1983, and Pinochet respectively.[110] »Dissidents, system critics and exiled were put away«,[111] wrote Danish daily newspaper Information in a report from this summit, for it should also function as a public relations venture for Fidel Castro's Cuba in the 40th year of the revolution on the Caribian island. By the way some system critics actually did succeed in meeting with some leaders from the visiting countries. Chile in occation with the Pinochet case attempted to have the matter of national sovereignty discussed, but failed in doing so.[112]

On December 9th Juan Garcés, Salvador Allende's Spanish political advisor, who had initiated the whole movement of judicial initiatives aganist Pinochet back in 1996, recieved The Right Livelihood Award in Sweden. It is some kind of an alternative Nobel Peace Price, and is awarded the day before the Nobel Prices, which are awarded on December 10th on the date of Alfred Nobel's (1833-1896) – and later Augusto Pinochet's! – death.

Anyhow, Pinochet's health condition was presumably and allegedly declining, and in any event it was not at great and desicive factor. Some of his health issues and health examinations are mentioned. During the fall og 1999 an alleged severe depression and general low moral kicked in.[113] Among other things it is in one source mentioned that a feeling of loneliness overcame him in addition to the experience of suddenly having to spend so much time with his wife, Lucía Hiriart, which was also put great strain on the former dictator![114] That the health card was not played earlier is to all appearances due to his own resistance to it, his own insisting on winning the battle via his claimed innosence and his thought, that a release on health grounds would be half a defeat. Finally his advisord succeeded in talking him into undergoing a test on the public Northwick Park Hospital in the North-West corner of the London area. It happened on January 5th 2000. Pinochet allowed the test on the basic of being promised full discretion as far as the results of the test was concerned, that it would not be published. A considerable toing and froing happened with regard to which doctors should perform the test in what language etc.

The report was immediately sent to Jack Straw who on Tuesday January 11th in a press release announced that he was »minded, subject to any representations he may receive, to take the view that no purpose would be served by continuing the present extradition proceedings and that he should therefore decide not to extradite Senator Pinochet.« However that the involved parties had seven days to object to this. Moreover that Pinochet had been asked to accept, that the repport could be forwarded to Spain and the other countries, but that he had rejected this.[115] While it can reasonably be said, that the case was pretty much settled with this press release, more toing and froing was to go on.

Sunday January 16th was election day in Chile, where the socialist candidate heading the Concertación, Ricardo Lagos (b. 1938) narrowly won over the rightist candidate Joaquín Lavín (b. 1953) til indsættelse 11. marts. Lavín ran for the party UDI, Unión Demócrata Independiente, which can be said to be the political branch or continuation of Pinochet's rule. Lagos was the first presidential candidate from Salvador Allende's socialist party, Partodo Socialista, running for president since then, and there was in European social-democratic circles a just worry that Pinochet's continued detention in London could hand the election to Lavín. For that reason there was a strategic interest in releasing Pinochet, and as the worst case scenario for his enemies was that he should die in London or for other reasons should optain martyrdom.[116]

On Tuesday January 18th a Boeing 707 Aguila from the Chilean air force landed on the Bermuda islands, the British colony, to await the go to bring home the former commander in chief.[117] The operation was militarily dubbed Operación Retorno, »Operation Return«.

Baltasar Garzón immediately asked for a copy of the healty report, but in the now relevant administrative procedure it was solely the government of Spain, that could and should make a request for this copy, and it didn't. On January 17th the Spanish ambassador to UK informed the Home Office that Spain took note of Jack Straw's decision.

Belgium together with France and Switzerland had also requested for Pinochet's extradition, and insisted on and on January 19th requested for the possibility to perform their own health examination of Pinochet.[118] In the book The Pinochet Effect it is suggested that this move on the side of the government of Belgium possibly should be seen in the light of considerations with regard to domestic policy, that the new, leftish government wanted to be seen in a progressive light; that the purpose was never really to have Pinochet extradited, but to send signals of leftishnes.[119]

Nevertheless a decision was made in The High Court of Justice for England and Wales, where on February 15th 2000 a ruling was announced with regard to the secrecy of the health report.[120] In straightforward and unpretentious terms Lord Justice Simon Brown (b. 1937) initiated his opening statement like this:  

It is sixteen months since Senator Pinochet was arrested. What should happen to him now? Should he be extradited to Spain to stand trial for the grave crimes of which he is accused? Or should he be allowed to return home to Chile? Many passionately hold one view, many the other. All, however, would surely agree upon one thing. It is high time the decision was taken: Senator Pinochet has spent quite long enough in this country. But the decision must, of course, be taken lawfully, and that is the issue now before us. [121]

The three Lord Justices unanimously came to the conclusion, that the four countries, Spain, France, Switzerland and Belgium should be allowed to see the healty report in confidentiallity, and the Home Office gave them one week to forward their comments.

Few days later two Spanish newspapers published the content of the report. It is assumed the Spanish government was involved in the leak.[122] In this case alså it is suggested that the leak was a strategic manouvre from a government to serve domestic policy purposes in Spain. The report namely did state in clear and unambiguous terms that Pinochet did suffer from a number of physic aliments and that he also suffered from some brain damage and some evident cognitive weaknesses. The three other countries did however question the report and wanted to perform their own examinations and drew attention to the fact that health considerations cannot hinder extradition

Nevertheless, Jack Straw on March 2nd 2000 announced that Pinochet could return to Chile, and a couple of hours later the Chilean Airforce Boeing 707 Aguila took off not from RAF Brize Norton, where the airplane had been standing in waiting since Saturday January 29th,[123] but from RAF Waddington a couple of hundred kilometers North of London. The plane took off from RAF Brize Norton early in the morning, hours prior to Jack Straw's final announcement in the House of Commons of Pinochet's release, and took off in pouring rain with Pinochet and his entourage aboard ten minutes late af 13.14 in the afternoon, set for Chile.[124] The plane had been specially modified for this mission with among other things complete hospitals equipement.[125] The delay was due to the small incident,that Michael Caplan on behalf of Margaret Thatcher presented Pinochet with a silver platter in memory of the victory of Sir Francis Drake's (1540-1596) victory over La Armada Invencible, the »Invincible Armada«, in 1588 – a symbol of common victory over the Spaniards.[126]

The airplane made a stopover for refuelling on the British airforce base Wideawake Airfield on the island Acensión in the South Atlantic near the Equator. In Gonzalo Vial's book it is reported how the pilot in command at a time informed: »I can inform, my general, that we at this moment pass across Chilean territory. Welcome to Chile!« Vial continues: »Pinochet's eyes were misty as he embraced his wife intensely.«[127]

In the morning of March the third the plane landed in Chiles leading airport, once called Aeropuerto de Pudahuel, since 1980 by way of decree from the military government called Aeropuerto Internacional Comodoro Arturo Merino Benítez, named after FACh’s founder and first commander, Arturo Merino Benítez (1888-1970), who as commander of the service had interveined in Chilean policy in connection with Carlos Ibañez del Campo's (1877-1960) first, semi-dictatorical presidential term from 1927 to 1931.

Despite an agreement with president-elect Ricardo Lagos to not have any reception in any real official capacity or appearance, Pinochet was greeted with red carpet, military marches and army chief Ricardo Izurieta Caffarena (b. 1943) heading it all. To underline his contempt of the international society, his own government and others, Pinochet – released on health grounds – rose from his wheelchair, once it had been lowered on a lift, raised his walking stick and wandered around and greeted the military top brass. The British tabloid press at once named the incident »the greatest comeback since Lazarus«, and Pinochet's name was altered to Pino-Cheat, – all implying that the health report was a fraud.

The Pinochet Case in perspektive

There is not question that our Capitán General – from a political, administrative and political view – is responsible for these cases. He was the top authority in the country and had absolute power. It is nescesary to add, that the direct executors of the crimes were agents for the state, and that the members of the mentioned security forces – save the specific and singular cases involving Comando Conjunto and DICOMCAR – referred to Pinochet.[128]

The above cited is – as also stated directly – is a classical, historic judgement of Pinochet after a listing of the murders, disappearances and tortures that happened during the military rule. It is written by Pinochet's Minister of Education in the 1980's, Gonzalo Vial, who cannot be said to generally have a focussed view for the misdeeds committed in Pinochet's time at the helm. It is cited here to demonstrate, that the Pinochet Case in London and the account of it here did not and does not have a moral, political or historical judgement in focus, but a judicial one, and the Pinochet Case in London and the facts of it have been treated as such.

The national laws and the international conventions and treaties laying the ground for the judicial course in the Pinochet Case had existed for years – at least ten years – prior to this case. The ground breaking in this case was, that these laws, treaties and conventions were deployed, that a precedent was made at alll. This presedent consist in, that a foreign country's former political leader no longer was immune from judicial procecution abroad when it comes to genocide and torture.

Besides a purely judicial shift it was also a mental shift that occured in London. Hence for example in Chile, where at his return in March of 2000 already were several judicial initiatives towards him going on. This had not been possible 1½ years earlier. In this regard alone the Pinochet Case had a great impact. For the survivors, having been at the mercy of the Chilean security forces, and for the bereaved, the case opened for a possible justice.

For primarily the European public other agendas were into play, plus other important aspects to relate to.

In the February 2007 issue of AMNESTY, Amnesty International's magazine for members in Denmark, the theme was »crime and punishment« with the sub-headline Did they get what they deserved? In the article on Pinochet and the case in London, titled »The immune«, Amnesty's role in the case is mentioned, regretting that he evaded sentence. In an article in the issue all the errors in the case is listed in the only partially comparable case against Iraq's former leader Saddam Hussein (1937-2006), that lead to his execution in December 2006, and the double standard it was, that the countries behind the trial only few years earlier had been Hussein's allied.

In Amnesty's US-chapters magazine from the spring of 2006 the Brit Phillipe Sands (b. 1960) wrote the article Globalizing Justice. In it he problematized not the Pinochet Case of which he was a participant on the procecuting side, but other similar cases, that is cases against Slobodan Milosevic and Saddam Hussein. He thus initially writes:  

However, the global rules provide necessary minimum standards for judging the legitimacy of international actions and mechanisms to hold states accountable. [129]

At a seminar at University of East London wednesday February 13th 2008 titled Ten years after Pinochet: The future of universal jurisdiction two men participated, who almost ten years earlier had been main actors in this historic case, namely both Michael Caplan from lawfirm Kingsley Napley and Alun Jones, who had served as public prosecutor. Michael Caplan contribution to the seminar is available in written form on the internet.[130]

He convivially opened with recounting the one day in his life, when he for once recieved more telephone calls then his teenage daughter, namely the saturday morning when he was asked to represent Pinochet regarding the request from Spain to have Pinohchet extradited.

In five points he shed a critical light on the so-called Pinochet Precedent.

Firstly he conceded how true it is, that the Pinochet Case brought as a consequence, that a line of former and present heads of state subsquently had to stay home at their »safe havens« from justified fear that they just as Pinochet could be arrested abroad. But, asked Caplan:

 ... has it really prevented those in the western world from travelling? Many would have no difficulty prosecuting robert Mugabe arising out of conditions in Zimbabwe -- what about leaders of the Russion Federation in connection with Chechnya?

Secondly he mentioned that he remembered that during Pinochet II [sic, Caplan must here have meant the so-called Pinochet III with it's proclamation of the ruling on March 24th 1999], he saw NATO bombings in Yugoslavia on television. »Any potential prosecutions under the cloak of "universal jurisdiction" of western world leaders«, asked Caplan, and added that there was never any international authorisation for the bombings and no international investigation afterwards.

Thirdly he mentioned, that all ad hoc tribunals have allways been those of the victors and allways have had a limited focus and allways have been controversial. »Name me one that hasn't been?«, asked Caplan. He then mentioned the problems with tribunals for Jugoslavia and Rwanda. He then problematized the Nuremberg Trials and referred to one of the Law Lords in the Pinochet Saga having called Nuremberg a Kangaroo court, a British expression referring to a sham legal proceeding and that may point to a kangaroo's hopping around with erratic impacts. (By the way it could well be, that it is Lors Steyn referred to, and then maybe in error: Lord Steyn has spoken of the judicial circumstances at Guantanamo, where the US sinde 2001 has detained Taliban suspects year after year ignoring common judicial principles.)

Fourthly he problematized if indeed it should be common for national courts to proclaime themselves as international policemen, like in an other example that Spain and Pinochet, when Belgium asserted universal jurisdiction to prosecute Israel's Ariel Sharon (b. 1928) for war crimes in Libanon in 1982. He also mentioned Israel's kidnapping of Adolf Eichmann (1906-1962). Caplan asked, if Israel or for that matter Western Germany could have over-ridden Argentina, if Argentina had insisted Eichmann should not stand trial. »Where would it have left international affairs if it did?«

Fifthly he wondered, why some cases under national courts at times has taken place in other countries, for example when the Scottish court operated in The Hague in 2000 in connection to the Lockerbie Case. Caplan: »Why, if was a domestic matter did it not sit in Scotland?«

Michael Caplan's conclusion after pointing out these problems with regard to the Pinochet precedent and the subsequent cases, is that there ought to be an emphasis on the ICC, the (International Criminal Court). That court with domicile in the Hague in Holland was established by at decision of the UN in Rome in 1998 by 120 countries. Seven countries voted aganist the establishment of the ICC, namely China, Israel, Iraq0, Libya, Qatar, Yemen and USA. The court should according to the treaty in Rome be in force, when 60 countries had ratified it's existence, and that was reached by 2002. The court's authority is among other things genocide, crimes aganist humanity and war crimes. The ICC is a permanent court, contraty to the ad hoc tribunals in Rwanda and Yugoslavia, which is one of the qualities, Caplan stressed. By the way countries like China, Pakistan, India, Israel, Sudan and the United States have not signed nor ratified the Rome Statute of the International Criminal Court, representing one fifth of The Worlds population. 114 countries have signed it.

US former secretary of state, Henry Kissinger (b. 1923) is egen more sceptical with regard to the Pinochet presedent created in London from 1998 to 2000. In an article from 2001, The Pitfalls of Universal Jurisdiction,[131] in the US magazine Foreign Affairs he put forward his interpretation of the Pinochet presedent. In the article he writes, that the Pinochet presedent, if applied directly and literally, for example would permit the two sides in the conflict between Israel and the Arab world to pursue it's leaders around the world with requests to arrest to be considered in the magistrate courts in random countries. Kissinger warnes aganist the element of chance alone. He at the same time mentions, that he is aware, that any sceptisism in connection to the way the Pinochet Case was handled is controversial. Nevertheless he stresses the problem, that the Pinochet presedent empowers any magistrate in the world with a weapon to prosecute anyone with his own interpretation of the Human Rights, and thus override for example national efforts to reconcile etc.:

Should any outside group dissatisfied with the reconciliation procedures of, say, South Africa be free to challenge them in their own national courts or those of third countries? [132]

Kissinger's scepsism towards the ICC springs from his realistic view on how geopolitics is performed and on which things are in play, so he sarcastically writes:

The advocates of universal jurisdiction argue that the state is the basic cause of war and cannot be trusted to deliver justice. If law replaced politics, peace and justice would prevail.[133]

The Pinochet Case can therefore not be said to have been a general crusade for human rights for the progressive Europeans. If the death and agony of Latin Americans had been the business, there would have been no way around conditions on Cuba with its more than 50 years of political repression, killings by the thousands and so forth. It was however in 1987 by the married couple of Danish politicians, social democrat ministers Mogens Lykketoft (b. 1946) and Jytte Hilden (b. 1942) in the feature called »Samba-socialism« in the Danish news paper Aktuelt called a »charming samba-socialist varity on the Soviet Communist foundation.«[138] During the same years in the late 1970’s, when Pinochet's security forces spread death by the thousands and torture by the tenths of thousands, some estimated one million were killed in Cambodia – hereof the greater part og the country's intellectual elite – killed by the hands of the communist regime, and it simply did not prompt moral torment in Europa to any much of a degree as a whole, nor with the above mentioned Lotte Heise.

The ground breaking impact of the Pinochet Case was the judicial slip in The World that happened because of the incident that it was, that a former chief of state had his immunity taken in relation to cruelty committed in his time in office. At the time of his return to Chile on March 3rd 2000 there were numerous judicial steps taken against him in his home country. That had hardly happened without this – methaforical or actual – Pinochet Precedent that had been established.


*******

[1] Duke Journal of Comparative Law 10, no. 2, 2000, »The Law and Politics of the Pinochet Case«.

[2] Brody, Reed and Rather, Michael, ed., The Pinochet Papers, 2000, p. 481.

[3] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 21.

[4] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 22.

[5] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 257-258.

[6] Berlingske Tidende, »Jubel i Castros fanklub« (Cheer in Castro's fan club), 12/3 1995.

[7] Human Rights Watch Report 1998, URL: http://www.hrw.org/worldreport/Americas-03.htm

[8] Deaths Documented To Date, URL: http://cubaarchive.org/

[9] Burbach, Roger, The Pinochet Affair, 2003, p. 101 and Roht-Arriaza, Naomi, The Pinochet Effect, 2005, s, 32 and Vial, Gonzalo, Pinochet - la biografia, 2002, s, 659.

[10] Vial, Gonzalo, Pinochet – La Biografía, 2002, p. 659.

[11] Vial, Gonzalo, Pinochet – La Biografía, 2002, p. 659.

[12] Vial, Gonzalo, Pinochet – La Biografía, 2002, p. 659.

[13] Vial, Gonzalo, Pinochet – La Biografía, 2002, p. 661.

[14] Roht-Arriaza, Naomi, The Pinochet Effect, 2005, p. 1.

[15] Vial, Gonzalo, Pinochet – La Biografía, 2002, p. 661.

[16] Vial, Gonzalo, Pinochet – La Biografía, 2002, p. 661.

[17] Roht-Arriaza, Naomi, The Pinochet Effect, 2005, p. 36.

[18] Burbach, Roger, The Pinochet Affair, 2003, p. 98.

[19] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 95-107.

[20] Vial, Gonzalo, Pinochet – La Biografía, 2002, p. 655.

[21] Roht-Arriaza, Naomi, The Pinochet Effect, 2005, p. 27.

[22] Roht-Arriaza, Naomi, The Pinochet Effect, 2005, p. 34-35.

[23] ... acontecimientos y actividades delictivas cometidas bajo el manto de la más feroz represión ideológica contra los ciudadanos y residentes de estas países.

[24] Dorffman, Ariel, Terroruddrivelse, 2003, p. 31.

[25] Burbach, Roger, The Pinochet Affair, 2003, p. 103 and Roht-Arriaza, Naomi, The Pinochet Effect, 2005, p. 35.

[26] Burbach, Roger, The Pinochet Affair, 2003, p. 104.

[27] Burbach, Roger, The Pinochet Affair, 2003, p. 105.

[28 Roht-Arriaza, Naomi, The Pinochet Effect, 2005, p. 37.

[29] Burbach, Roger, The Pinochet Affair, 2003, p. 106.

[30] La Nacion, »Frei dice que justicia aclarará muerte de su padre«, 22/1 2009.

[31] Politiken, »Hurra for Chile«, 18/10 1998.

[32] Roht-Arriaza, Naomi, The Pinochet Effect, 2005, p. 41-42.

[33] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 67-69.

[34] URL: www.kingsleynapley.co.uk.

[35] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 65-66.

[36] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 63-64.

[37] Politiken, »Be’ om Pinochet-dokumenter«, 25/10 1998.

[38] Kornbluh, Peter, The Pinochet File, 2003, p. 477-481.

[39] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 71-93.

[40] Ritzaus Bureau, »Pinochets advokater kæmper for frigivelse«, 26/10 1998.

[41] I agree with both judgements.

[42] Politiken, »Nederlag og sejr til eksdiktator Pinochet«, 31/10 1998 and Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 95-96

[43] Vial, Gonzalo, Pinochet – La Biografía, 2002, p. 676.

[44] Aktuelt, »Trekantsdrama«, 27/10 1998.

[45] Ritzaus Bureau, »Mulig afgørelse af Pinochet-sag tirsdag - fregatkøb udsat«, 27/10 1998.

[46] Weekendavisen, »Tony Blair er en pige«, 30/10 1998.

[47] Ritzaus Bureau, »Helveg: Diktatorer skal stilles til ansvar«, 30/10 1998.

[48] Berlingske Tidende, »Straf eller forsoning«, 27/10 1998.

[49] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 109.

[50] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 109-126.

[51] Berlingske Tidende, »Chile truer med modtræk i Pinochet-sag«, 12/11 1998.

[52] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 127-180.

[53] Burbach, Roger, The Pinochet Affair, 2003, p. 110.

[54] Burbach, Roger, The Pinochet Affair, 2003, p. 110.

[55] C’est une joie, c’est une mauvaise nouvelle pour les dictateurs!

[56] Aktuelt, »BØddelen græd«, 27/11 1998.

[57] Politiken, »ATS - At Tænke Sig«, 26/11 1998.

[58] Vial, Gonzalo, Pinochet – La Biografía, 2002, p. 669.

[59] Vial, Gonzalo, Pinochet – La Biografía, 2002, p. 674.

[60] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 20002, p. 181.

[61] Vial, Gonzalo, Pinochet: La Biografía, 2002, s. 670-671.
»Soy Augusto Pinochet Ugarte. Fui comandante en jefe de las Fuerzas Armadas, Capitán General, Presidente de la República y ahora senador vitalicio.« and »Con el respeto debido, señoría, no reconozco la jurisdicción de ningún tribunal, excepto en mi país, para que me juzgue de todas las mentiras de que me acusan los señores de España.«

[62] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 192.

[63] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 193.

[64] Burbach, Roger, The Pinochet Affair, 2003, p. 112-113.
»Inglesas piratas, devuelvan nos el tata« and »Lores, comunistas homosexuales«

[65] Vial, Gonzalo, Pinochet – La Biografía, 2002, p. 664.

[66] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 195.

[67] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 197.
The fundamental principle is that a man may not be a judge in his own cause.

[68] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 12.

[69] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 203-210.

[70] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 208-209.

[71] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 220.

[72] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 223.
I was afraid that this was going to happen, Professor Greenwood, but at some stage, and I am not suggesting at all that it whould be now, you are going to have to tell me when things do become part of international law and when the do not. It is a point I have never understood since I was at Oxford, but this case is going to turn, as far as I can see, more and more on that point.

[73] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 231.
I respectfully disagre, my Lord.
Now that is what I need.

[74] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 236.
May I summarize before finally, no doubt to your Lordships’ relief, sitting down?

[75] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 240.
Could I just deal with extraterritoriality briefly?

[76] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 255-273.

[77 The Independent, »Pinochet aimed for 'reign of terror'«, 19/1 1999.
Regarded as humane, liberal and charming.

[78 Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, s. 290.
For these reasons I am of the opinion that the proposed implication must be rejected not only as contrary to principle and authority, but also as contrary to common sense.

[79] ... my noble and learned friend.

[80] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 336.
If there were states that wished to preserve such immunity in the face of universal condemnation of official torture, it is perhaps not surprising that they kept quiet about it.

[81] URL: http://www.usip.org/, The United States Institute of Peace.

[82] Ekstrabladet, »Rigtige venner«, 27/3 1999.

[83] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 15.

[84] Information, »Ulden Pinochet-dom«, 25/3 1999.

[85] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 373.

[86] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 375-381.

[87] Kornbluh, Peter, The Pinochet File, 2003, p. 469.

[88] The Independent, »How the Pinochet affair has unfolded«, 2/3 2000.

[89] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 383-396.

[90] Burbach, Roger, The Pinochet Affair, 2003, p. 115-116.

[91] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 16.

[92] Burbach, Roger, The Pinochet Affair, 2003, p. 115.

[93] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p.

[94] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 16.

[95] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 397-403.

[96] The Independent, »How the Pinochet affair has unfolded«, 2/3 2000.

[97] The Guardian, »The long road from Surrey to Santiago«, 3/3 2000.

[98] Politiken, »Thatcher langer ud«, 7/10 1999.

[99] Jyllandsposten, »Thatcher: Pinochet kidnappet«, 8/10 1999.

[100] BT, »Elmquist: Tortur af værste kategori«, 29/10 1999.

[101] BT, »Snæversynet retfærdighed«, 23/10 1999.

[102] F.eks.: Jyllandsposten, »Kommunismens brutalitet«, 13/1 2009.

[103] Roht-Arriaza, Naomi, The Pinochet Effect, 2005, p. 59.

[104] Roht-Arriaza, Naomi, The Pinochet Effect, 2005, p. 59-60.

[105] The Guardian, »The long road from Surrey to Santiago«, 3/3 2000.

[106] Burbach, Roger, The Pinochet Affair, 2003, p. 119.

[107] Burbach, Roger, The Pinochet Affair, 2003, p. 118.

[108] Bl.a.: Berlingske Tidende, »Britisk velvilje over for Pinochet«, 25/9 1999.

[109] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 18.

[110] Jyllandsposten, »Opsang til Fidel Castro«, 17/11 1999.

[111] Information, »Huller i Castros potemkin-kulisser«, 19/11 1999.

[112] Politiken, »Topmøde med torne«, 12/11 1999.

[113] Burbach, Roger, The Pinochet Affair, 2003, p. 120.

[114] The Guardian, »The long road from Surrey to Santiago«, 3/3 2000.

[115] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 411-412.

[116] Roht-Arriaza, Naomi, The Pinochet Effect, 2005, p. 64.

[117] The Independent, »BMA wants release of Pinochet diagnosis«, 22/1 2000.

[118] Roht-Arriaza, Naomi, The Pinochet Effect, 2005, p. 62.

[119] Roht-Arriaza, Naomi, The Pinochet Effect, 2005, p. 62.

[120] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 417-445.

[121] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 417-418.
It is sixteen months since Senator Pinochet was arrested. What should happen to him now? Should he be extradited to Spain to stand trial for the grave crimes of which he is accused? Or should he be allowed to return home to Chile? Many passionately hold one view, many the other. All, however, would surely agree upon one thing. It is high time the decision was taken: Senator Pinochet has spent quite long enough in this country. But the decision must, of course, be taken lawfully, and that is the issue now before us.

[122] Brody, Reed and Rather, Michael, red., The Pinochet Papers, 2000, p. 20.

[123] The Independent, »Pinochet's getaway plane is waiting on tarmacs«, 31/1 2000.

[124] The Independent, »The Flight of Pinochet«, 3/3 2000.

[125] Vial, Gonzalo, Pinochet – La Biografía, 2002, p. 685.

[126] Vial, Gonzalo, Pinochet – La Biografía, 2002, p. 686.

[127] Vial, Gonzalo, Pinochet – La Biografía, 2002, s. 686.

[128] Vial, Gonzalo, Pinochet – La Biografía, 2002, p. 694-695.
No cabe duda que José - desde un ángulo político, administrativo e histórico - responde por este conjunto de hechos. Ya que él era la suprema autoridad del país, y una autoridad de poderes omnímodos. A lo cual es menester añadir que los ejecutores inmediatos de los crímenes fueron agantes del Estado, y comúnmente miembros de las agencias de seguridad citadas las cuales - salvo los casos específicos y exclusivos del Comando Conjunto y la DICOMCAR - dependían de Pinochet.

[129] Amnesty International USA, forår 2006.

[130] URL: http://www.uel.ac.uk/chrc/documents/PINOCHET-MCaplan13.2.08.pdf

[131] Foreign Affairs, »the Pitfalls of Universal Jurisdiction«, July/August 2001.

[132] Foreign Affairs, »the Pitfalls of Universal Jurisdiction«, July/August 2001.

[133] Foreign Affairs, »the Pitfalls of Universal Jurisdiction«, July/August 2001.

[134] Human Rights Quarterly, Maj 2005, s. 729-735.
... debates around the Pinochet case often generated more heat than light around these questions, attributing a much greater role to universal jurisdiction than it actually played in this case, and contributting to mounting confusion among politicians, publics and even legal actors.

[135] Macedo, Stephen, red., Universal Jurisdiction, 2006, p. 68.

[136] Macedo, Stephen, red., Universal Jurisdiction, 2006, p. 164.

[137] Politiken, »Nekrolog: Diktatorens sidste rejse«, 11/12 2006.

[138] Aktuelt, »Samba-socialismen«, 14/2 1987.

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Pinochet lands in Santiago, March 3rd 2000
This is a television clip published on Youtube, that is from the broadcast on the national TV station TVN from when Pinochet arrived at the airport in Santiago after 16 months in London.