Lords told trial would harm Chile

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The Independent Online
EXTRADITING General Augusto Pinochet to Spain to face charges of mass murder could lead to political upheaval in Chile and affect the country's diplomatic relations with Britain, the House of Lords was told yesterday.

In deciding whether the former Chilean dictator enjoys immunity from prosecution, the Law Lords were being asked to walk a thin line between the "interest of justice and state stability", said Claire Montgomery QC, for General Pinochet.

If General Pinochet was not granted immunity from the charges of genocide, torture and kidnapping it "would only encourage the despot to maintain power until his death", counsel told the hearing.

Yesterday saw the resumption of the hearing before five Law Lords on whether General Pinochet was illegally detained by the British authorities. The case is expected to last until the end of the week and the full cost of this and subsequent hearings is expected to be more than a million pounds. General Pinochet's legal costs incurred in his High Court victory, pounds 380,000, came from public funds.

Chile had carried out a "delicate" transition from dictatorship, the Law Lords were told. And it was up to people in that country to prosecute the former dictator if they wished to do so. There were 11 cases pending against him in his homeland.

Britain had given an "implicit endorsement" of the political settlement in Chile, which included an amnesty and the appointment of General Pinochet as Senator for life, said Ms Montgomery.

The Law Lords were told that the former dictator had been to the UK four times since stepping down from power without being arrested, and his present visit was as a guest of a government agent, the Royal Ordnance.

However, the Law Lords pointed out that the Home Secretary, Jack Straw, has wideranging discretion over the matter, and may intervene if he wished to do so.

Ms Montgomery stated that although "repugnant" acts may have been carried out in Chile under General Pinochet's military junta, he was not culpable under international law because he enjoyed sovereign immunity as a former head of state.

Earlier Professor Ian Brownlie QC, appearing forsome victims of the Chilean military regime, and human rights groups including Amnesty International, told the Lords that General Pinochet was relying on an outdated legal concept in claiming immunity.

Counsel maintained that the foundations of the doctrine, that former heads of state enjoy "continuing immunity" even after leaving office, were "rather meagre".

Professor Brownlie maintained that General Pinochet could not rely on the protection of the State Immunity Act 1978 for three reasons; it does not apply to former heads of state, it excludes criminal proceedings, and it only covers an individual's conduct "in his public capacity".

Neither could the former dictator rely on diplomatic immunity provided by the Act because the protection related only to conduct carried out "in the exercise of his functions".

The Lords were told that the immunity laws stem from 1848, and were open to interpretation.