This blog post is reposted by kind permission of the Journal of Law and Society blog, published on the 25th January 2025.
Although states are in certain circumstances legally obliged to arrest acting or former heads of state for crimes committed while they were in office, their governments often chose not to. Impunity is the norm. The 1998 arrest in London of General Augusto Pinochet, Chile’s former dictator, by a Spanish magistrate on charges of egregious human rights crimes, and the 16-month battle to extradite him to Madrid was the first time that a former head of state had, while travelling abroad, been arrested on charges of genocide and crimes against humanity, and where a claim to immunity was rejected by a national court. Surprising almost everyone, this drama caught the world’s imagination. Never have the conduct and decisions of the Home Secretary, the Law Lords, and Amnesty International generated such international attention. The whole episode constituted the most intensive, high-profile litigation of its kind ever undertaken. Hugely controversial, it gave a massive fillip to human rights movements and galvanized victims, their loved ones, activists, and lawyers into action. Its cause célèbre status was magnified when Lord Hoffmann, who delivered the deciding vote when the case first came before the Law Lords, did not disclose in public his links with Amnesty International, an intervenor in these proceedings, thereby opening the way for the case to be reheard. Pinochet’s release on health grounds by Home Secretary Jack Straw, then rising from his wheelchair on landing in Santiago to wave at jubilant supporters, further magnified the notoriety of the case.
It was during the early and mid-1990s, whilst researching cause lawyering in Britain, that I first learned of efforts afoot to bring Pinochet to justice in a third country. This piqued my interest. With his small moustache, sunglasses, defiant stare and a fondness for Third Reich-type military uniforms, Pinochet looked so much the archetypal fascist dictator. I was appalled by his seventeen-year reign of terror – the murders, “disappearances” and torture, and the innocent folk shoved into helicopters and dumped alive into the sea.
The struggle to render Pinochet accountable engaged with my scholarly passions and I added it to my case studies. The shock news that he was arrested in London with a view to him being tried in Spain was the most exciting and important news at a time of high hopes. Here was a case of great historical importance. I immediately resolved to map its emergence, progress and consequences. Whenever possible I observed the proceedings in London, interviewing those most directly involved. I soon realised that this was an international story, and decided to visit as many of the countries involved as possible, interviewing principal actors.
Triangulation and other time-consuming efforts at verification were required, as was mastering as much as possible of the enormous volume of primary and secondary source material in several countries and languages. Although I had bitten off way too much, the experience was very special. Fascinating and moving in equal measure, it opened a door to new ideas and worlds, and to courageous people, some of whom I am proud to say became family friends. I was eager to engage with audiences beyond the academy as well as academic colleagues, and here was something that I could share with both.
I see this project as a homage to the victims and to those who contributed to the struggle to bring Pinochet to justice. I also acknowledge with thanks the hundreds of interviewees whose accounts underpinned my article “The Hidden Histories of the Pinochet Case”, the latest instalment in my archaeology of the case.
The story that emerges is full of coincidence and unpredictable decisions – a story with many plots and protagonists, victims, villains, and heroes, revealing much that is new about the law and politics of the case. It provides what I believe to be the most comprehensive behind-the-scenes account to date of the proceedings in the Divisional Court (1998) and the Appellate Committee of the House of Lords (1998-1999), and of the Hoffmann debacle. Most striking perhaps is its account of the judgments in the case, how they came about, the values and emotions that underpinned them, and the substantial divergences between the approaches of the individual judges.
Other topics covered more briefly include Pinochet’s excessively violent dictatorship (1973-1990) and its impact, Chile’s limited progress in advancing human rights accountability, the effort to hold the General to account in a third country, factors making Pinochet’s arrest and detention possible and the machinations surrounding his release on health grounds. The article is necessarily selective, with many key individuals and institutions, and much of the larger legal and political context, receiving little or no attention. These are omissions I intend to address in the future.
Based on my research and my engagement with the people and issues involved, I reach several key conclusions:
- Although many people produced high-quality work under huge pressure, the Pinochet case in London was also marred by mistakes and by extensive and significant structural, procedural and personal shortcomings.
- The case demonstrates the importance of personal values, ideologies and emotions in the operation of U.K.’s top court. Substantial differences can exist between the approaches of individual judges and an outcome may turn on who sat on the case.
- Events and outcomes were also significantly shaped by the largely pre-modern nature, institutional logic, and operation of the Appellate Committee, with the Law Lords being largely a law unto themselves, bound by the cannons of Victorian gentlemen.
- The impact of the Hoffmann debacle was more wide-ranging and momentous than is usually appreciated. But for this incident Pinochet might have been extradited to Spain to face trial in the spring of 1999. It also had an adverse effect on the personal and professional relations among counsel, human rights activists, some of the Law Lords directly involved and the Appellate Committee.
- Paradoxically, the Hoffmann fiasco had positive effects in that it contributed to the overdue modernisation of the English legal system.
- Mistakes and shortcomings were experienced by every key institution involved, including NGO’s and governments. Although all were stretched, some to breaking point, they rapidly recovered, and, in some cases, were renewed.
- Many in Britain and abroad contributed international law firepower and allied support to the case against Pinochet, whilst Pinochet’s legal team attracted far less assistance as most lawyers and legal scholars were reluctant to play any part. Their legal case was mediated by the General’s personal lawyers, who were concerned to protect Pinochet’s image at home.
- The frequent treatment of the cause as a phase in the progressive evolution of international human rights law obscures many significant drivers of the litigation. Consequently, the political and intellectual context, along with important behind-the-scenes struggles, are downplayed or neglected.
- The Pinochet litigation was the product of 25 years of struggle, perseverance and enterprise in many countries by many individuals and institutions. The case, and the precedent for which it is known, resulted from an exceptional combination of circumstances at a unique point in time. In this regard, it was a freak event shaped by multiple factors that include the impact of Pinochet’s coup and his seventeen years’ dictatorship; individual personalities; values and ideologies; a host of legal points of argument; legal culture; political will; luck, chance and unintended consequences; adequate support; media struggles; the new information technology; a legal-constitutional-political environment sufficiently conducive to the judicialization of politics; the ability to frame the struggle in terms that resonate in the wider society; and realpolitik. It was confirmatory evidence of the long-standing truism that timing is all.
- The Pinochet case was ultimately overwhelmed by international realpolitik, with the General’s detention ending after a deal brokered between Chile, Spain and the UK.
- International law is more internally riven, and more dependent on realpolitik than most international lawyers like to admit, and we risk misreading the development of international law if those factors are minimised. The issues and problems encountered in the Pinochet case were akin to those associated with war crimes trials.
From the vantage point of 2025, the Pinochet case has had a largely beneficial effect, not least because such litigation is often the best, and perhaps the sole, chance that victims have to achieve a measure of justice. Thus, national courts have been emboldened to bring to trial their own despots and associated state officials. Given the largely disappointing record of international courts in prosecuting major human rights criminals, the complementary role of domestic courts is especially important. However, the Pinochet precedent, and the universal jurisdiction that underpins it, are problematic because of the double standards, the judicialization of power and politics and the curb on democratic accountability that attend them. Grounding political and popular discourse in the language of legality exaggerates the efficacy of law and legal institutions, de-emphasising and obscuring the centrality of economic, cultural, political and religious factors in sustaining justice and injustice.
The conditions that created the Pinochet case are very different from those that pertain now. 2024 marked the “absolute failure” of western democracies to be champions of human rights around the world. So said the head of Human Rights Watch (HRW), ahead of HRW’s annual World Report. The reconciliation of sovereignty and accountability has become even more intractable.
The Pinochet litigation testifies to the significant contribution that individuals can make in the fight for truth and justice, and the factors – economic, political, cultural, and legal – that restrict what is achievable. It bears witness to the potential and the limits of law and legal institutions as a force for good. It has a particular saliency today, in an era when autocracy, impunity, and denial of human rights crimes are on the rise, and the notion of international justice is being challenged.