10 years of the Pinochet principle

The arrest warrant served on the Chilean head of state in 1998 changed history and has implications for the US government now

Philippe Sands

guardian.co.uk, Thursday October 16 2008

On October 16 1998, a magistrate signed a warrant for the arrest of Senator Augusto Pinochet and changed the course of history. The former Chilean head of state was arrested a few hours later, at the request of a Spanish prosecutor who charged him with a raft of international crimes, some dating back to the early 1970s. Over the next 18 months, one dramatic development followed another. The House of Lords rendered three landmark judgments in the space of five months; home secretary Jack Straw defied expectations by giving a green light to the continuation of proceedings that could lead to Pinochet's removal to Madrid; Pinochet made a dramatic appearance in the dock at Belmarsh magistrate's court; and eventually Straw decided that Pinochet was too unhealthy to stand trial and he was returned to Chile in April 2000. For the rest of his life he was dogged by legal proceedings.

One central question lay at the heart of the whole affair: was a former head of state entitled to claim immunity before the English courts, where it was alleged that he had participated in crimes, in violation of international conventions, such as torture? This question had never before been decided. It pitted two competing views of international relations against each other: traditionalists argued that the maintenance of serene relations between states required the courts of one state to refrain from sitting in judgment over the highest officials of another; the modernists argued that no person was above the law where the most serious international crimes were involved, and that the system of human rights laws put in place after the second world war substituted a rule of immunity with a new rule against impunity.

In March 1999, the House of Lords came down strongly in favour of the modernist view. It did so carefully, and in a way that was both reasonable and sustainable. The majority ruled that Pinochet's loss of immunity arose not from some unstated general rule of international law, but rather from the terms of a treaty to which Britain, Chile and Spain were party – the 1984 convention outlawing torture – the terms of which were inconsistent with immunity for a former head of state. It is impossible to overstate the significance of that ruling, which reflected a new balance of global priorities, a shift in favour of principle over pragmatism. It has been followed by international indictments against other former heads of state – Slobodan Milosevic and Charles Taylor – and the coming into force of the international criminal court and possible proceedings against the serving president of Sudan. It has also given rise to criminal proceedings before national courts in other parts of the world. The Pinochet judgment has withstood the test of time. It has not been overruled in the court of international opinion, and it has not brought international relations to a grinding halt.

Nevertheless, it seems that Pinochet's case caused concerns at the highest levels of the Bush administration, as described in a revealing account by a former lawyer in the Bush administration, Jack Goldsmith. He describes how, during 2002, Henry Kissinger found himself on the sharp end of the Pinochet case. Reportedly livid, a rattled Kissinger complained to his old chum Donald Rumsfeld, who was already worrying about "lawfare" (the use of law to achieve operational objectives). Rumsfeld instructed the chief lawyer at the Pentagon, Jim Haynes, to address the problems posed by this "judicialisation of international politics". Haynes passed the assignment on to Goldsmith, whose memo reached the National Security Council, which also worried about the threat of foreign judges. According to Goldsmith, the NSC couldn't work out what to do about the problem.

We now know that while this was going on, Rumsfeld and Haynes and others at the Pentagon were secretly circumventing international laws like the Geneva conventions and the torture convention and removing international constraints on the interrogation of detainees at Guantánamo and in Iraq. Torture and other international crimes followed. So did the Abu Ghraib photos. Amid the welter of legal opinions received by the administration none, it seems, bothered to examine the consequences of the House of Lords judgment for senior US officials.

The legacy of the arrest warrant signed in Hampstead 10 years today, is the Pinochet principle, that no one is above the law. It may one day come to haunt the very people who sought to set it aside. If, that is, they ever dare to set foot outside the United States.