British Lords Void Denial of Immunity for Pinochet
Washington Post Foreign Service
Friday, December 18, 1998; Page A63
Former Chilean president Augusto Pinochet won a round today in his vigorous fight for freedom as Britain's House of Lords voided a precedent-setting decision that he is not immune from prosecution.
A committee of Law Lords said that the decision last month cannot stand because one of the judges hearing the case failed to disclose his connections to Amnesty International, the human rights group. Amnesty had argued as an intervenor in the case, supporting the movement to bring Pinochet to trial on charges of murder, torture and kidnapping during his 17 years as Chile's unelected ruler.
Today's reversal gives Pinochet's lawyers another chance to argue that he is immune from legal action here for any crimes he may have committed as head of state. A rehearing of the immunity claim, before a different appellate panel, will probably occur in mid-January. The 83-year-old former president will remain under house arrest here in the interim.
Pinochet insists that British law has no authority over him, but he sparked an ethical storm in British legal circles with his argument that a senior jurist had a conflict of interest in a case that drew global attention.
Responding to this embarrassment, Lord Chancellor Derry Irvine -- the government official who oversees the nation's courts -- wrote to the senior Law Lord Wednesday demanding new ethical rules for appellate judges.
Irvine said British judges must be required to disclose any affiliation "that might appear to be a conflict of interest." Formal disclosure requirements are standard operating procedure for most U.S. judges, but until now British judges have been trusted to make their own ethical decisions about disclosure and recusal.
Pinochet has been under arrest here for two months pending a motion for extradition to Spain. A Spanish magistrate wants to put the Chilean on trial in connection with the killing of Spanish nationals and other human rights abuses.
Pinochet challenged his arrest, and the Spanish extradition warrant, under the ancient legal doctrine of "sovereign immunity," which says a head of state cannot be put on trial.
On Nov. 25, a panel of Law Lords ruled 3 to 2 that "sovereign immunity," does not apply in the case of a former head of state who is charged with crimes banned by international convention, such as torture and kidnapping. The ruling was hailed as a watershed in the evolving field of human rights law. But it could turn out to be one of the shortest-lived watersheds in legal annals.
Because the Law Lords compose Britain's highest legal body, Pinochet could not challenge the decision. So the former general, who described himself recently as "a soldier who fights to the end," challenged the deciders. He focused on Lord Hoffmann, who joined the three-member majority that denied Pinochet's immunity claim.
Pinochet's lawyers pointed out that Hoffmann had worked for years as a volunteer fund-raiser for Amnesty International. They noted that the judge's wife has worked at the organization's world headquarters here for two decades.
A key piece of evidence against Hoffmann was that he had chaired a fund-raising drive to build Amnesty International a new headquarters building. Another prominent British jurist, Lord Chief Justice Bingham, was also active in that Amnesty campaign, and took part in the Pinochet case at an earlier stage. He supported Pinochet's claim for immunity; Pinochet's lawyers did not challenge him.
There have been countless cases in British law where a decision was challenged on grounds of judicial bias. But Pinochet was apparently the first appellant to bring such a claim against one of the 12 Law Lords, Britain's equivalent of the U.S. Supreme Court.
During arguments on the conflict-of-interest claim this week, the senior Law Lord, Nicolas Browne-Wilkinson, noted that such issues have always been handled informally among the lords. If a jurist were accused of bias, Browne-Wilkinson said, "the judges who know him would say something like, 'Old Snoops would never do such a thing.' "
But Pinochet was not the type to settle for traditional ways of doing things. In the conflict-of-interest claim, his lawyers said that Hoffmann's connections with Amnesty created "a real danger of bias," and that the jurist made things worse by failing to disclose his relationship with the organization when Amnesty intervened in the case.
Browne-Wilkinson agreed. He said Hoffmann must be "disqualified" from the case because of failure to disclose his connections.
The Chilean exiles who have been demonstrating in the streets of London for the past two months reacted calmly to today's ruling. "This does not set Pinochet free," noted Vincente Alegria, who carried a photo of a relative he says was murdered by the Pinochet government. "It really means a man who never recognized the rule of law in his own country will get a lesson in democracy and fairness."
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