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Legal lessons of Pinochet case
Pinochet escapes - but former dictators beware
By legal affairs correspondent Joshua Rozenberg
It is easy to forget that round one went to General Pinochet.
In October 1998, the Lord Chief Justice, Lord Bingham, ruled that he was "entitled to immunity as a former sovereign from the criminal and civil process of the English courts''.
In his view, and that of the two judges sitting with him in the High Court, "a former head of state is clearly entitled to immunity in relation to criminal acts performed in the course of exercising public functions".
But what were Gen Pinochet's "public functions"? They wouldn't include shooting his gardener in a fit of rage, for example. But Alun Jones QC, representing the Spanish prosecutor who was seeking the General's extradition, argued that they didn't include crimes against humanity either: offences such as genocide, torture, hostage-taking and others which were deeply repugnant to any notion of morality.
Drawing the line
Lord Bingham was prepared to admit that this argument had "some attraction". But he rejected it. Where, he asked, do you draw the line?
It is easy to forget that round one went to General Pinochet.
In October 1998, the Lord Chief Justice, Lord Bingham, ruled that he was "entitled to immunity as a former sovereign from the criminal and civil process of the English courts''.
In his view, and that of the two judges sitting with him in the High Court, "a former head of state is clearly entitled to immunity in relation to criminal acts performed in the course of exercising public functions".
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Drawing the line
Lord Bingham was prepared to admit that this argument had "some attraction". But he rejected it. Where, he asked, do you draw the line?
 Lord Bingham ruled that Pinochet was entitled to immunity
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The House of Lords supplied the answer. In November 1998, the law lords ruled by a majority of three to two that state immunity applied only to acts which international law recognised as being among the functions of a head of state. Lord Nicholls and Lord Steyn said those acts did not include torture or hostage taking.
Lord Hoffmann agreed with them. That meant General Pinochet could, after all, be extradited to face trial in Spain on those charges.
In his speech, Lord Steyn poured scorn on Lord Bingham's conclusion that there was no line to be drawn, that torture was within the official functions of a head of state. That would have meant Hitler's "final solution", his plan to exterminate European Jewry, was lawful.
Reporters wondered why Lord Hoffmann had simply expressed agreement with the other two judges instead of writing his own speech (as judgments are called in the House of Lords). One possible answer emerged a few days later.
The Hoffman affair
It turned out that the law lord was the chairman and a director of Amnesty International Charity Limited, a company with close links to the human rights organisation Amnesty International.
Lord Hoffmann agreed with them. That meant General Pinochet could, after all, be extradited to face trial in Spain on those charges.
In his speech, Lord Steyn poured scorn on Lord Bingham's conclusion that there was no line to be drawn, that torture was within the official functions of a head of state. That would have meant Hitler's "final solution", his plan to exterminate European Jewry, was lawful.
Reporters wondered why Lord Hoffmann had simply expressed agreement with the other two judges instead of writing his own speech (as judgments are called in the House of Lords). One possible answer emerged a few days later.
The Hoffman affair
It turned out that the law lord was the chairman and a director of Amnesty International Charity Limited, a company with close links to the human rights organisation Amnesty International.
 Lord Hoffman's Amnesty International connections led to a fresh hearing
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That would have been reasonable enough, except for the fact that Amnesty International had been given permission to take part in the earlier hearing before Lord Hoffmann and four other law lords. Unusually, Amnesty's barristers were allowed to address them at the hearing.
Though Amnesty's position was that people responsible for human rights violations in Chile should be brought to justice, there was no suggestion that Lord Hoffmann was actually biased against Gen Pinochet. But he had "an interest in the outcome of the proceedings" (according to Lord Goff) and he was "in effect, acting as a judge in his own cause" (according to Lord Hope).
Lord Hutton said "public confidence in the integrity of the administration of justice would be shaken if his decision were allowed to stand." The law lords agreed that Lord Hoffmann had sat while disqualified and ordered a fresh hearing.
The Hoffmann affair must have done great damage to the international reputation of the English judiciary. Lord Hoffmann never explained and never apologised.
Legal precedent set
Gen Pinochet emerged a little better off from Round Three of the legal action. The law lords decided that he could only be extradited in respect of torture charges relating to the period after 8 December, 1988.
That was when the British government had ratified an international agreement making it an offence in the United Kingdom to commit torture abroad. Since Gen Pinochet had stepped down as president of Chile in 1990 not many of the torture allegations were covered by this ruling, though others were added later.
But the principle was still as strong as ever. Gen Pinochet could not claim absolute immunity. This time by a majority of six to one, the law lords said that a former head of state could not get away with committing an international crime. And torture was an international crime wherever it may have occurred.
The word has gone round. Former dictators living in safe havens now travel abroad at their peril. Gen Pinochet may have escaped extradition but even former heads of state accused of the most serious crimes will now be called to account.
Though Amnesty's position was that people responsible for human rights violations in Chile should be brought to justice, there was no suggestion that Lord Hoffmann was actually biased against Gen Pinochet. But he had "an interest in the outcome of the proceedings" (according to Lord Goff) and he was "in effect, acting as a judge in his own cause" (according to Lord Hope).
Lord Hutton said "public confidence in the integrity of the administration of justice would be shaken if his decision were allowed to stand." The law lords agreed that Lord Hoffmann had sat while disqualified and ordered a fresh hearing.
The Hoffmann affair must have done great damage to the international reputation of the English judiciary. Lord Hoffmann never explained and never apologised.
Legal precedent set
Gen Pinochet emerged a little better off from Round Three of the legal action. The law lords decided that he could only be extradited in respect of torture charges relating to the period after 8 December, 1988.
That was when the British government had ratified an international agreement making it an offence in the United Kingdom to commit torture abroad. Since Gen Pinochet had stepped down as president of Chile in 1990 not many of the torture allegations were covered by this ruling, though others were added later.
But the principle was still as strong as ever. Gen Pinochet could not claim absolute immunity. This time by a majority of six to one, the law lords said that a former head of state could not get away with committing an international crime. And torture was an international crime wherever it may have occurred.
The word has gone round. Former dictators living in safe havens now travel abroad at their peril. Gen Pinochet may have escaped extradition but even former heads of state accused of the most serious crimes will now be called to account.
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