When impunity is a human right

By Gavin Bowd

When the Spanish investigating judge, Baltasar Garzon, obtained the arrest of the former dictator, in a London clinic, for 'torture, terrorism and murder', the news was greeted with enthusiasm by the Labour Party, Amnesty International and Chilean exiles everywhere. However, the government was soon embarrassed by the virulent reaction of the Chilean Foreign Ministry: Labour ministers were instructed to comment on the affair as a purely judicial process in which they bore no responsibility. The home secretary, Jack Straw, once a student campaigner against the Pinochet regime, suggested a possible release of the dictator on 'humanitarian' grounds.

The ruling by the Lord Chief Justice goes a long way towards solving the government's problem. According to Lord Bingham, Pinochet enjoys 'sovereign immunity', meaning that he cannot be prosecuted for acts committed as head of state in his own country. This is based on a concept peculiar to the United Kingdom: the law protects the monarchy by shrouding it in a notion of divine, hereditary power, which explains why this protection extends beyond the period one is in power. It is under this peculiar law that the English judges are granting Pinochet immunity from prosecution. Such a judgment would be impossible in other countries. In France, for example, 'sovereign immunity' can only be invoked while one is actually in power. Tragically for Pinochet's opponents, the dictator went to a clinic in London only after the left-wing government in Paris refused him entry.

For the time being then, this is another triumph for the man who enriched the sinister vocabulary of the twentieth century with the term desaparacidos (disappeared), just as Radovan Karadjic later brought us 'ethnic cleansing'. In his last interview before his arrest, Pinochet told The New Yorker that he had no regrets and considered himself to be Chile's answer to the Caudillo Franco. He was well aware, however, of the many enemies seeking his downfall: "It's lamentable. Almost everyone is Marxist nowadays," he said. And his wife Lucia complained to the journalist that young Chileans "prefer to admire Fidel Castro and Che Guevara".

But if news of his arrest was greeted with enthusiasm by left-wing parties in Chile, considerable support for the ex-dictator was also manifested, with right-wing politicians threatening to make the country 'ungovernable' if he was not released. In Britain, there have been astonishingly frank gestures of solidarity with a man widely believed to have ordered the deaths of 4,000 people. Margaret Thatcher spoke proudly of their friendship and of his role as ally in the Falklands War against Argentina. Conservative politicians and journalists praised Pinochet for 'saving' Chile from Marxist 'dictatorship' and paving the way for 'prosperity'.

The Labour government itself had reason to keep silent: the Chilean military were threatening to cancel warplane orders from Britain. After all, it had been with British air technology that Pinochet had pounded Salvador Allende's last redoubt, the La Moneda Palace, in 1973.

Last week, Tony Blair played host to the Argentine premier, Carlos Menem. If they skirted gingerly around the issue of the Falkland Islands, there was no mention of the Argentine 'disappeared' during the 70s campaign which Pinochet 'mentored'.

This week an appeal against Lord Bingham's ruling will come before the House of Lords. If the sovereignty ruling stands, then the warrants issued by Sweden, Switzerland, France and Spain will fail. However, given the political will, Pinochet could still be brought to justice. No international law guarantees the immunity of heads of state. Indeed, even if 'genocide' cannot be proved, a person suspected of torture can be brought to trial under international convention. Therefore, an international arrest warrant, perhaps emanating from Paris, could stop Pinochet returning safely to Chile. If not, then on the 50th anniversary of the Universal Declaration of the Rights of Man, London will remain a safe haven for dictators and terrorist groups, and General Augusto Pinochet, despite his advancing years, can savour again his favourite London delights: a visit to the Chamber of Horrors at Madame Tussaud's, and tea and cake with Margaret Thatcher.