Leading Article: Change the law to catch a tyrant

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The Independent Culture
ENGLISH JUSTICE, in the person of the Lord Chief Justice, has spoken: the Chilean Senator-for-life, General Augusto Pinochet is "entitled to immunity as former sovereign from the criminal and civil process of the English courts". The Spanish investigating magistrate who had requested the extradition of the former dictator to face proceedings in Spain for charges of the murder, torture and kidnapping of Spanish citizens, will not get his man, after all. Nor will the Swiss, the Swedes or any of the other jurisdictions which had hoped to try Pinochet for allegations of crimes against humanity committed by the Chilean security services while he was head of state. For the moment, Senator Pinochet remains under custody, as the Law Lords will hear an appeal by the Spanish magistrate, but it is not likely they will reverse the decision arrived at by the High Court.

We cannot say that Lord Bingham was wrong in English law, but we can regret the law. Why, one might ask, should an exception made for "sovereigns" when it comes to extraditing alleged criminals? Apparently, those accused of carrying out acts of torture and political murder must take their chances in court, but those who order them to do so are immune from prosecution.

The great innovation of the Nuremberg trials of Nazi war criminals was to hold those high officials of a state who give criminal orders to be as liable to prosecution as those who carry them out. This has been one of the few hopeful signs of a new way to control rogue governments which would permit the worst atrocities to be committed upon their own citizens. For if the Pinochets and Milosevics were to fear that they might personally pay the price of the crimes committed by their administrations, they might temper their zeal to force their will upon recalcitrant populations.

If English law does not allow our courts to help further this encouraging new development, it should be changed. After all, Britain played a key role this summer in establishing a new international court for crimes against humanity. Sovereigns have had their day: in the famous words of another English judge: be you ever so high, the law is above you.