Lawyers Aim New Charges at Pinochet

Former Chilean dictator Augusto Pinochet is not immune from prosecution as a former head of state because he committed many crimes before he seized power, lawyers for the British and Spanish governments told Britain’s highest court Monday.

The lawyers, seeking Pinochet’s extradition to Spain on charges of murder, torture and kidnapping, made the argument on the opening day of an unprecedented rehearing of the court’s own case.

Pinochet, 83, remains under police guard in a rented mansion west of London and was not present for the hearing. However, Spanish Judge Baltasar Garzon, who set the whole process in motion last fall, made his first appearance in a British court in connection with the case.

The Pinochet case has been a roller coaster since it began Oct. 16 with the retired general’s arrest, on Garzon’s warrant, at a private London hospital.

Later that month, London’s High Court ruled that Pinochet was immune because he was head of state when the alleged crimes against humanity were committed. That decision was overturned in November when five judges in the House of Lords--Britain’s highest court--ruled 3 to 2 that Pinochet was not entitled to immunity for such heinous crimes.

International human rights lawyers hailed the Law Lords’ decision as groundbreaking.

But in December, another panel of Law Lords took the unprecedented step of setting aside the ruling after lawyers for Pinochet complained that the judge who cast the deciding vote against the retired dictator, Lord Hoffmann, had failed to disclose his close ties with Amnesty International. The human rights organization supported the case against Pinochet.

Now, reflecting the weight of the case and a hope of avoiding further embarrassment to the House of Lords, the panel has been increased to seven judges. It is led by the most senior serving Law Lord, Nicolas Browne-Wilkinson, a respected moderate.

As with the first round, the hearing has fired emotions in the pro- and anti-Pinochet camps, with both sides holding demonstrations outside the Palace of Westminster. There has been at least one scuffle.

According to official Chilean figures, more than 3,000 people were killed or disappeared after Pinochet overthrew an elected Socialist president, Salvador Allende, in September 1973. Many other people were tortured and forced into exile.

In the opening session Monday, attorney Alun Jones reiterated earlier arguments on behalf of Spain and Britain that crimes against humanity committed on orders of any nation’s leader should never be protected by immunity.

The alleged abuses included crushed bones and sexual assault, as well as attempts by Chilean security forces to kill people in several foreign countries.

“The sheer depravity of the tortures alleged . . . makes it impossible to argue that they could be done in furtherance of the functions of head of state,” Jones said.

But he also broadened the case by asking the Law Lords to consider all crimes listed in the Spanish case and not just those mentioned in the original arrest warrant. The former would include crimes allegedly committed before the coup, which would render the immunity issue irrelevant.

Jones claimed there is evidence that before the military coup, Pinochet conspired with other senior military officers to plan a campaign of torture of their political enemies.

He also said there was a question of when Pinochet officially became a head of state--on the day of the coup, Sept. 11, 1973, when he was named head of the junta, or nine months later, on June 26, 1974, when he was declared head of state.

Many of the alleged crimes took place in the first months after the coup. Jones claimed that the government of Chile, in its written submissions to the court, had effectively conceded the latter date.

“The government of Chile is offering evidence in carefully chosen words that the defendant was not head of state until June 1974, and they are only asserting immunity in respect of acts taken as head of state,” Jones said.

Browne-Wilkinson said the question of when Pinochet became head of state will have to be resolved.

The hearing is expected to last several days. Both Amnesty and the Chilean government will be allowed to make submissions in the new hearing.

If Pinochet loses again, he will go on to an extradition battle that could last years. The Sunday Telegraph quoted Pinochet as saying that he is “resigned to my fate, even if that means dying here. This is part of my sacrifice to the fatherland.”

If the Law Lords uphold Pinochet’s immunity, he will be free to return to Chile.