The Law Lords have landed us in a mess we can be proud of

Conor Gearty on the moral end achieved by the `sloppy' Pinochet decision
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The Independent Online
THE THREE Law Lords who last week decided that General Pinochet could be extradited to Spain have not only left the Home Secretary with a tricky political problem to resolve. They have also landed the law in an entirely wholesome mess, having bent some of it, ignored the rest of it and eventually swept it all to one side so as to put one over the old torturer scowling confidently at them through his array of expensive lawyers. This century is full of examples of the law being distorted by judges to defeat the left; it is glorious to see the same creatively sloppy techniques being used for a moral end.

Not since the European Commission on Human Rights found Britain guilty of torture in Northern Ireland in 1976 has there been such a dramatic judgment in such an important area. And the British courts have never in the democratic era produced a ruling to rival the Pinochet decision's moral force.

The two Law Lords who came down in favour of the general's release had much the better of the legal argument. All the judges agreed that the case depended on whether Pinochet's alleged direct involvement in torture, hostage-taking and murder could be said to have been "acts performed by him in the exercise of his functions as a head of state". Clearly they were such acts in the sense that they were not recreational killings. Nor were they at all like the kind of private drug- trafficking that had robbed Panama's Noriega of immunity before the US courts. The dissentients, Lord Slynn and Lord Lloyd, were able to point to a vast amount of legal literature which showed that the functions of a head of state did, from time to time, encompass the most unpleasant and unlawful deeds. As Lord Lloyd remarked, once it is accepted that some of these functions can be criminal, how do you draw the line to determine which crimes are serious enough to lose immunity and which are not.

The three majority judges had a ready answer. All the old law was subject to the new code of international human rights. Accord- ing to Lord Nicholls, it is now "plain that certain types of conduct, including torture and hostage-taking, are not acceptable conduct on the part of anyone". This applied to Pinochet since "the contrary conclusion would make a mockery of international law". Lord Steyn asked whether, if Pinochet were safe, Hitler would also have been secure, since ordering the "final solution" must have been one of his official acts as head of state.

This may be delightful language to see in a law report but it is little more than debating chamber rhetoric of a particularly emotional kind. As Lords Slynn and Lloyd make painfully clear in their long dissents, international law has by no means yet reached the point where it is accepted that retired monsters can be lawfully hunted down, yet the majority assumed that it had.

Even if this were not true, it was perfectly clear that the UK legislation which had brought the various international conventions on torture, genocide and hostage-taking into UK law had not been explicitly extended to former heads of state, at least with sufficient clarity to outweigh the clear immunity grant- ed such persons by other legislation. So to get the result that they desired, the majority had to glide over not only what was settled international law, but also the inconvenient laws that our supposedly sovereign parliament had chosen to enact. No wonder that reputedly the brainiest of them all, Lord Hoffman, chose merely to agree that General Pinochet could indeed be extradited without troubling to contribute a speech of his own; perhaps he could not bear to risk exposing his moral intuition in print lest his legal intelligence forced him to change sides.

Where the case leaves the law is unclear, but the wilder implications about its reach are almost certainly misjudged. Current heads of government remain absolutely immune. Former heads of state who were merely "ordinary decent criminals" will still be free to shop at Harrods and delay their demise at Harley Street. It will only be the likes of Mr Suharto from Indonesia who will be looking again at his holiday plans. It is hard to see how any democratic leader could be vulnerable, though Nixon's minion Henry Kissinger must be hoping that Cambodia is long forgotten.

The ruling will mainly affect only the handful of old killers and torturers on the loose in the West with their country's looted resources at their fingertips and the blood of their people on their hands. Why should these creatures not be worried and harassed and turned, if needs be, into international fugitives? Through unlocking the legal door behind which they have shielded for so long, and ushering state prosecutors through it, the Law Lords have sent a message to all the victims of torture and their long-suffering families that we at least have not forgotten, and nor will we allow those who have done these acts ever to do so.

There is power as well as poignancy in the Chilean representations now being made to the Home Secretary. The short answer to these is that the relevant legislation imposes what is, at this stage, a rather narrow discretion on the Home Secretary, which he is required to exercise judicially, and that therefore these representations are neither here nor there for the moment.

More generally, Chile has been caught up in the cross-fire between national and international law. It is seeking still to play the game by the old rules, while the new ones are being built around it. These new rules, so dramatically if loosely delineated by the majority of the Law Lords, require the subjugation of national interest to the rule of international law. On this view, releasing Pinochet because it hurts Chile to prosecute him would be like letting Fred West go because the town of Gloucester complained his trial was hurting local business.

Whether knowingly or not, the majority Law Lords have with this decision sought to turn nation states into the equivalent of a group of towns and counties, all subject to the same human rights law. A gang of legal guardians will now be unleashed upon the world to hunt down and opportunistically to prosecute retired dictators, regardless of who their victims were, where or when their crimes occurred or where they now happen to be.

This is just the kind of anarchy which international law grew up to prevent and it cannot be permitted to last for long. All the judges recognised that the ideal forum for cases such as these was a properly resourced international criminal court with an extensive remit and an enforcement arm. Such a body is slowly stuttering into life after months of debate in Rome earlier this year. When it is, we will know that the world has been made a safer and more civilised place.

Conor Gearty is a barrister and Professor of Human Rights Law at King's College, London

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