Idi Amin and Baby Doc will think twice before a jaunt to London

We will no longer be a haven for torturers, says Marcel Berlins

ARE THEY really trembling, all those former dictators with bloodstained hands? Is Idi Amin, in his Saudi Arabian bolthole, reading Lord Steyn's judgment with ashen face? Has Baby Doc Duvalier been down to his local travel agent on the French Riviera to cancel his plans to see Oxford Street's Christmas lights?

The membership of the club of excoriated ex-rulers is not very large these days. The deaths of Pol Pot and Mobutu took two stalwarts out of circulation, and Noriega is temporarily unavailable through being in a US jail. Others have shown little penchant for foreign travel: Galtieri and Suharto still live in their own countries, Paraguay's Stroessner stays firmly in Brazil, Ethiopia's Mengitsu in Zimbabwe. A few more linger here and there. But the former heads of state directly affected by the House of Lords judgment in the Pinochet case are few - provided they stay where they are.

The Law Lords' ruling applies only to ex-heads - not current ones. All the judges agreed that the chaps in power at present do have immunity from prosecution under international law. The likes of Castro, and the newcomer Laurent Kabila of the Congolese Republic, are safe for the moment, though the Pinochet episode gives an added incentive to dictators not to give up their power - and legal immunity - too soon. To proclaim, though, that the House of Lords has sent a warning to tyrants all over the world may make good headlines, but is a little short on realism. It's nonsense to suggest that the Law Lords' decision could make it easier, say, for the Argentine government to get a warrant of extradition against Lady Thatcher over alleged atrocities committed by British troops during the Falklands War. The law analysed in the Pinochet judgment dealt only with the immunity of heads of state. The Queen is Britain's sovereign (and as a current monarch, immune); Lady Thatcher, as prime minister, was merely its head of government.

In most dictatorships, the two are the same: the sovereign - or president, as he usually is - controls the state apparatus of repression.

The House of Lords ruling is not binding on any foreign court, though the trend, in Europe at least, is in the same direction as the British courts.

But if the direct practical results of the Law Lords' judgment are modest, the psychological impact is electric. British judges have proclaimed that our law does not provide a haven for those guilty of the grossest atrocities.

The legal question, shorn of its legal complexities, was a simple one. Does a former head of state lose his immunity if the crimes he's ordered to be committed are so vile as to amount to crimes against humanity or other acts designated as international crimes - like torture and hostage- taking? An ex-ruler, says international law, has immunity "in respect of official acts performed in the exercise of his functions". But could torture and hostage-taking be considered part of a head of state's functions? A resounding no, said the majority. If it were otherwise, Lord Steyn argued vividly, "it follows that when Hitler ordered the final solution, his act must be regarded as an official act deriving from the exercise of his functions as head of state".

Almost as important as the decision itself were the tone and confidence of the judgments of Lords Nicholls and Lord Steyn. There was none of the timidity and reluctance that is often adopted when judges feel they ought to come to a decision they don't really like. Pinochet's crimes were crimes under international law, but also, as Lord Nicholls pointed out, "it cannot be stated too plainly that the acts of torture and hostage- taking with which Senator Pinochet is charged are offences under United Kingdom statute law. This country has taken extra-territorial jurisdiction for those crimes". So much for those arguing that Pinochet's crimes were committed in Chile and therefore have nothing to do with us in Britain.

The House of Lords may not have seen the last of the Pinochet affair. The process now starting with Jack Straw deciding whether to authorise extradition proceedings is open to constant legal challenge. It is quite possible that the case will once again wend its way to the Law Lords, no longer on the issue of immunity but on the legality of the extradition or on the way the Home Secretary has exercised his powers.

It's not as simple as Jack Straw balancing the Spanish extradition request on the one hand with Pinochet's frailty on the other. Under the European Convention on Extradition and our own Extradition Act, he's obliged to give the go-ahead to the extradition proceedings - there is no exception made for the state of health of the person named in the warrant, let alone for any political or commercial considerations to come into play.

If the Home Secretary tries to use Pinochet's age or condition to send him back to Chile - either before 11 December, his new deadline for making up his mind, or after the case has gone through the legal process - his decision will undoubtedly be challenged in the courts. What the Pinochet's opponents fear is that he'll be allowed to slip out of the country secretly.

Their lawyers will be approaching Straw, asking him to promise that he won't suddenly send the octogenarian home without giving them a chance to fight the decision in the courts. The Home Secretary must be ruing the random choice that threw up those five Law Lords to sit on the Pinochet appeal. Just one judge different and the decision might have gone 3-2 the other way, and Pinochet would be back in Chile now. On such throws of the dice are the fates of dictators determined.

PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
Life and Style
ebookNow available in paperback
ebooks
ebookPart of The Independent’s new eBook series The Great Composers
Arts and Entertainment
Under the skin: Sarah Kane in May 1998
theatreThe story behind a new season of Sarah Kane plays
Arts and Entertainment
Preening: Johnny Depp in 'Mortdecai'
filmMortdecai becomes actor's fifth consecutive box office bomb
Sport
Bradford City's reward for their memorable win over Chelsea is a trip to face either Sunderland or Fulham (Getty)
football
News
Lars Andersen took up archery in his mid thirties
video
Voices
Focus E15 Mothers led a protest to highlight the lack of affordable housing in London
voicesLondon’s housing crisis amounts to an abuse of human rights, says Grace Dent
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

ES Rentals

    iJobs Job Widget
    iJobs General

    Recruitment Genius: Warehouse Operations & Logistics Manager

    £38000 - £42000 per annum: Recruitment Genius: One of the UK's best performing...

    Recruitment Genius: GeoDatabase Specialist - Hazard Modelling

    £35000 - £43000 per annum: Recruitment Genius: Our award-winning client is one...

    Recruitment Genius: Compressed Air Pipework Installation Engineer

    £15000 - £21000 per annum: Recruitment Genius: This leading provider of Atlas ...

    Recruitment Genius: Operations Coordinator - Pallet Network

    £18000 - £20000 per annum: Recruitment Genius: Opportunity to join established...

    Day In a Page

    Woman who was sent to three Nazi death camps describes how she escaped the gas chamber

    Auschwitz liberation 70th anniversary

    Woman sent to three Nazi death camps describes surviving gas chamber
    DSK, Dodo the Pimp, and the Carlton Hotel

    The inside track on France's trial of the year

    Dominique Strauss-Kahn, Dodo the Pimp, and the Carlton Hotel:
    As provocative now as they ever were

    Sarah Kane season

    Why her plays are as provocative now as when they were written
    Murder of Japanese hostage has grim echoes of a killing in Iraq 11 years ago

    Murder of Japanese hostage has grim echoes of another killing

    Japanese mood was against what was seen as irresponsible trips to a vicious war zone
    Syria crisis: Celebrities call on David Cameron to take more refugees as one young mother tells of torture by Assad regime

    Celebrities call on David Cameron to take more Syrian refugees

    One young mother tells of torture by Assad regime
    The enemy within: People who hear voices in their heads are being encouraged to talk back – with promising results

    The enemy within

    People who hear voices in their heads are being encouraged to talk back
    'In Auschwitz you got used to anything'

    'In Auschwitz you got used to anything'

    Survivors of the Nazi concentration camp remember its horror, 70 years on
    Autumn/winter menswear 2015: The uniforms that make up modern life come to the fore

    Autumn/winter menswear 2015

    The uniforms that make up modern life come to the fore
    'I'm gay, and plan to fight military homophobia'

    'I'm gay, and plan to fight military homophobia'

    Army general planning to come out
    Iraq invasion 2003: The bloody warnings six wise men gave to Tony Blair as he prepared to launch poorly planned campaign

    What the six wise men told Tony Blair

    Months before the invasion of Iraq in 2003, experts sought to warn the PM about his plans. Here, four of them recall that day
    25 years of The Independent on Sunday: The stories, the writers and the changes over the last quarter of a century

    25 years of The Independent on Sunday

    The stories, the writers and the changes over the last quarter of a century
    Homeless Veterans appeal: 'Really caring is a dangerous emotion in this kind of work'

    Homeless Veterans appeal

    As head of The Soldiers' Charity, Martin Rutledge has to temper compassion with realism. He tells Chris Green how his Army career prepared him
    Wu-Tang Clan and The Sexual Objects offer fans a chance to own the only copies of their latest albums

    Smash hit go under the hammer

    It's nice to pick up a new record once in a while, but the purchasers of two latest releases can go a step further - by buying the only copy
    Geeks who rocked the world: Documentary looks back at origins of the computer-games industry

    The geeks who rocked the world

    A new documentary looks back at origins of the computer-games industry
    Belle & Sebastian interview: Stuart Murdoch reveals how the band is taking a new direction

    Belle & Sebastian is taking a new direction

    Twenty years ago, Belle & Sebastian was a fey indie band from Glasgow. It still is – except today, as prime mover Stuart Murdoch admits, it has a global cult following, from Hollywood to South Korea