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Wednesday, January 27, 1999 Published at 19:55 GMT


Pinochet 'tortures not crimes against humanity'

The general is fighting extradition to Spain

General Augusto Pinochet's lawyers have argued that the tortures allegedly committed under his regime were not crimes against humanity because they would not have occurred within an armed conflict.

The pinochet File
At a House of Lords hearing Clare Montgomery, QC, for the former Chilean military ruler, told a panel of seven Law Lords that when the concept of crimes against humanity emerged during World War II, they were invariably associated with the waging of international war.

That connection had since been relaxed, but even recent legal landmarks, such the international tribunals into events in Rwanda and the former Yugoslavia, suggested crimes against humanity were still connected with armed conflict, she said.

Pointing to the statutes of the International Tribunal for the Former Yugoslavia (1993), and for the International Tribunal for Rwanda (1994), Ms Montgomery said they reflected doubts as to whether crimes against humanity were freestanding crimes, committed without reference to conflict.

The conflict no longer had to be an international one but "it must be conflict, albeit an internal conflict, of an armed nature", argued Ms Montgomery.

It was not enough to talk about repression of a civilian population, she said.

Divergent reactions

Ms Montgomery's argument prompted divergent reactions from the Law Lords.

Lord Phillips responded: "It's Alice in Wonderland ... it seems to me it is much more a crime against humanity to inflict the crime against a supine population than one in arms."

Lord Millett questioned the logic of the argument, saying it suggested that torture would be criminal during an armed struggle for power, but legal when used as a means of suppression thereafter.

"You may not adopt torture to seize power, but you may to keep it?" he asked.

But Lord Saville appeared to accept the force of Ms Montgomery's argument, drawing an analogy with events in Northern Ireland. "The torture inflicted in Northern Ireland, the knee-cappings and the like - it isn't and never has been suggested to be international crimes," he said.

The argument was put forward on the seventh day of the latest hearing into whether the 83-year-old general is immune from arrest and potential extradition to Spain over human rights crimes allegedly committed during his 1973-90 rule.

The hearing was adjourned until Thursday.

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