Piercing the Shield of Immunity: The Augusto Pinochet Case
| Author | Diarmuid Sheridan |
| Position | Senior Sophister Law Student, Trinity College, Dublin |
| Pages | 157-183 |
PIERCING
THE
SHIELD
OF IMMUNITY:
THE
CASE
OF
AUGUSTO
PINOCHET*
DIARMUID SHERIDAN**
When we
neither punish
nor
reproach
evildoers,
we
are
not
simply
protecting
their
trivial
old
age,
we
are
thereby
ripping
the
foundations
of
justice
from
beneath
new
generations.'
Introduction
The
case last
year
concerning Senator
Augusto
Pinochet's
possible
extradition
to
Spain
has
provoked
much
controversy
and
comment
in
the
media.
Political
figures,
both
of
today
and
yesteryear,
have
expressed
either
support
for
an
'old
ally', or
have
demanded
that
the
ex-dictator
be
brought
to
justice
for
his
alleged
crimes.
The law
has
taken
its course
(albeit
circuitously),
and on
15
March
1999
the
seven
Law
Lords
of
the
Appellate Committee
of
the
House
of
Lords
in
the
case
of
Pinochet-
Ugarte
(No.
3)2
delivered
their
groundbreaking
decision.
It
was
held
by
a 6-1
majority
that
Senator Pinochet
(formerly
General Pinochet),
was
not
immune
from
prosecution
for
crimes
against
humanity
by
virtue
of
his
status
as
a
former
head
of
state.
The
entire
affair,
from
his
arrest
in
a
London hospital
to the
present
day,
has
become
the
focus
of
much
attention
and
the
decision
has
been
heralded
by
human rights
groups
as
an
end
to
immunity
in the
future.
Never
before
had
a
former
head
of
state
been
arrested
in
such
a
manner,
pursuant
to
an
international warrant alleging
grave violations
of
human
rights.
The
presence
of
hoards
of
protestors
and
supporters,
who
gathered
outside
the
Old
Bailey
during
the
trials,
bore
witness
to
the many
nationally
and
politically
charged
emotions
which
the
case
had
provoked.
It
was
against
this
background that
the
hearings
proceeded,
not
to
Winner
of
the
Reddy,
Charlton
and
McKnight
Prize
for
Best
Article,
2000.
.*
Senior
Sophister
Law
Student,
Trinity
College,
Dublin.
'Solzhenitsyn,
The
Gulag Archipelago
(Whitney translation,
Fontana,
1974),
at 178.
2
R
v.
Bow
Street
Magistrate,
ex
pare
Pinochet-Ugarte
(No.
3)
827;
97.
3
The
former East
German
dictator,
Eric
Honecker
was
sought
to be
tried
for
human
rights
abuses, but the case
was aborted;
see
In
re
Honecker
(1984)
80
ILR
36.
©
2000 Diarmuid
Sheridan and
Dublin
University
Law
Society
Trinity College
Law
Review
determine
Senator
Pinochet's
guilt
or
otherwise
of
the
crimes
alleged,
but
to decide
a
vital
question
of
international
law.
That
issue concerned:
the
proper interpretation
and
scope
of
immunity enjoyed
by
a
former
head
of
state
from
arrest
and
extradition
proceedings
...
in
respect
of
acts
committed
while
he
was
head
of
state.4
The aim
of
this
article
is
to
analyse
the
response
given
by
the House
of
Lords
(on
both
occasions
when
the
matter
was
addressed)
and to
discuss
the
significance
of
these
pronouncements
in
their
international
law
context.
The
severe
lack
of
cohesion apparent
in
the
various
opinions
renders this a
difficult
but
vitally
important
task; we
must
address
the
issue
of
where
the
case stands in
relation
to
the
development
of
culpability
for
breaches
of
fundamental
human
rights.
In
addition,
despite
the
warm
welcome
accorded
to
the case
by
human
rights
groups,
it
is
submitted
here that
the
true
effect
of
the
rulings
will
be
more
difficult
to
gauge. Briefly
I
will
begin
by
setting
out
the
historical
background
of
these
proceedings
before
continuing
to
the
major
issues
of
the case.
The Saviour
of
Chile?
The
background
to the
case
is
that
to
those
of
left-wing political
convictions
Senator
Pinochet
is
seen
as
an
arch-devil;
to
those
of
right-wing
persuasions
he
is
seen
as
the
saviour
of
Chile.
5
General
Augusto
Pinochet-Ugarte
(as
head
of
the
Chilean
armed
forces)
played
a
central
role
in
the
1973
coup which
toppled
the
left-wing
government
of
the
democratically elected President
Salvadore Allende.
What
followed
over
the
next
number
of
years
was
a
process
of
power
consolidation,
which
involved
purging
the
country
of
left-wing
opposition.
This
operation
was
carried out
both
within
Chile and
internationally,
6 with
the
collaboration
of
other
juntas
in
Latin
America,
most
notably Argentina.
As
Geoffrey
Robertson
has
observed:
4
Point
of
Law
of
General Public Importance
certified
by
the
Divisional Court
for
determination.
'
827,
at
829,
per Lord Browne
Wilkinson.
6
The
Spanish
authorities
allege
murder and
conspiracy
to
murder
in
various
countries,
including France,
Spain, Italy and
Portugal.
This
purge
of
the
opposition
was
carried out
as
part
of
Plan
Condor.
[Vol.
3
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