A wake-up call for war-crime courts

PUBLISHED : Monday, 18 December, 2006, 12:00am
UPDATED : Monday, 18 December, 2006, 12:00am

The arrest of Augusto Pinochet in London, in October 1998, was a bolt from the blue. It can be said with near certainty that it had never crossed the minds of senior members of the British judiciary, who were soon to be landed with untangling the legal intricacies. Indeed, it was such an impossible idea that, until almost the very last moment, it never occurred to the ex-dictator himself that he could be vulnerable in the very country where his great friend and supporter Margaret Thatcher, now Lady Thatcher, was prime minister.

But when Baltazar Garzon, a senior Spanish magistrate, is on your tail you have to watch out. He went after Spanish prime minister Felipe Gonzalez for being party to the use of a police cell to assassinate leaders of ETA, the violent Basque group. He also had great success in bringing to quick justice the al-Qaeda-inspired group that blew up a railway station in Madrid on the eve of the last general election. Judge Garzon made a request to arrest Pinochet to Scotland Yard under the European Convention on Extradition.

It was a momentous turning point in the human rights struggle. The rulings, first by the High Court, then by the House of Lords, and later by a London magistrate, crystallised half a century's debate on the legal and political problems of accountability for crimes against humanity. For the first time in a high court anywhere, it was decided that sovereign immunity must not be allowed to be sovereign impunity.

For that we have to thank most of the nations of the world, including Chile, Lady Thatcher's Britain and the US of former president Ronald Reagan: in the late 1980s and 1990s, they put their signatures to the new UN Convention Against Torture, laying the legal basis for the British ruling.

It was a sad day when the government of Tony Blair - bowing to powerful influences, including the US and the Vatican - allowed Pinochet to return home on 'humanitarian grounds'. The doctors brought in by the government to examine Pinochet and pronounce on his unfitness to face trial couldn't even speak Spanish. Fortunately, court-appointed doctors in Chile found otherwise: doubtless, if Pinochet had lived a little longer, he would have faced prosecution in a Santiago courtroom.

Did Pinochet die a relieved and even a happy man? Perhaps not. But did he die a truly unhappy man? I doubt that, too. Punishing war crimes seems to be still an infant science.

Former Serbian leader Slobodan Milosevic was allowed to drag out his case interminably at The Hague tribunal for war crimes, and died before a verdict could be rendered. The Iraqi court that has tried and convicted Saddam Hussein has erred in the other direction: it moved too quickly, and rode roughshod over the defendant's rights. It is to be hoped that the recently constituted International Criminal Court is learning lessons from what has gone on over the past decade.

The law, rightly, takes the long view - and so must new courts for war crimes. Britain did law no service by allowing Pinochet to escape Spanish justice and live comfortably at home for another eight years. And the US, Russia, India and China, by refusing to ratify the treaty governing the International Criminal Court, are weakening the opportunity to deter future war criminals. Unpunished, alleged war criminals in the US and Russia today don't make the problem any easier.

Jonathan Power is a London-based journalist