The former dictator of Chile, General Pinochet, was still in detention in Britain this week, as the House of Lords moved to a decision about his future. The international significance of this unprecedented case is here analysed by the Professor of Human Rights Law at King?s College, London. He sees a whole tradition of law being challenged to shift its basis, from state sovereignty to human rights. SENATOR Augusto Pinochet is reportedly an admirer of Britain?s rule of law. He has now successfully used that law to place himself above it. The High Court has ruled that as a former head of state he is entitled to sovereign immunity in relation to acts done by him in the exercise of sovereign power, and barring miracles this will be confirmed by the House of Lords. The old torturer is to be permitted to carry his contempt for the legal process around with him wherever he goes; like a great unexpungable virus it will continue to infect every jurisdiction that he visits. How has this come about in a country supposedly committed to human rights, one that boasts an ethical foreign policy and a humane judiciary and in which decrepit minor Nazis have been relentlessly hunted down?

The fatal flaw in the Pinochet proceedings was that the courts have had to apply the law before them rather than their own moral intuition or the judgment of public opinion. The legislation with which the judges have been confronted originated in a different era from our own, when assumptions about sovereign power were far deeper than they are today, and when righteous anger rarely made it onto the statute book in any recognisably justiciable form.

That is not to say that Pinochet was entirely insulated from the law. Two Spanish warrants of arrest stimulated two provisional arrest warrants from two different metropolitan stipendiary magistrates, and the first of these produced the marvellous indignity of the late-night arrest of Pinochet at the clinic where he was being treated. The Home Secretary then allowed the proceedings to continue when he had a clear legal basis for calling them off. So often deployed arbitrarily against the Left and radical protest in general, state power is wondrous to behold when fully mobilised to achieve a moral end.

Of course it could not last, because it was inevitable that the law would eventually intrude. Senator Pinochet was not without resources when it came to putting his case; for a man supposedly too sick to know what was happening to him, he displayed a brilliant capacity for astute delegation. A top London law firm was mobilised and the three barristers that it engaged included two QCs, one of whom is probably Britain?s leading expert on extradition law. Within a week of the arrest, both magistrates involved in the case, the Home Secretary and the Metropolitan Police Commissioner found themselves swamped with various allegations of unlawful conduct.

The first arrest warrant was clearly bad, in that it could not have been deployed against even an ordinary Chilean criminal in Britain, much less one so august as Pinochet. The second, alleging horrible acts of torture, hostage-taking and conspiracy to murder, managed to jump the various complex obstacles placed in its way by the Extradition Act 1989, and was held by the Lord Chief Justice and his colleagues to be sufficient at the very least to justify the continuation of the extradition proceedings on to the next stage.

Deprived of these various procedural escape routes, Pinochet?s lawyers were forced to play their trump card. The Senator, they said, fell within the immunity accorded to states by the United Kingdom?s State Immunity Act 1978. This statute expressly extends its unqualified insulation from the UK legal process to the actions of a sovereign or other head of that state in his public capacity.

All the impugned conduct alleged against Pinochet had taken place when he had been undisputed master of Chile, so the only question was whether they had been done by him in his public capacity. By a bitter twist this meant that all the terrible deeds laid at his door by the second international arrest warrant actually worked to Pinochet?s advantage, because they showed that he had been managing a state enterprise of a determined, organised and fully authorised nature. Had he only been a torturer in his spare time, or merely kidnapped and murdered for recreational purposes outside of office hours, he would have been vulnerable to extradition. But the enormity and scale of his brutality saved him. To paraphrase an infamous tax-avoiding millionairess from New York City, the law was only for little people.

It would have taken a creative effort by the Lord Chief Justice and his colleagues to have avoided this conclusion and it was not one that they felt able to make. Nor are the Lords likely to surprise us. Even if Pinochet had been accused of genocide, the relevant UK law which would then have applied had not incorporated the personal liability of constitutionally responsible rulers which does appear in the relevant Geneva Convention. None of the UK laws which were explicitly relied upon in the Pinochet case said anything about punishing heads of government. In the absence of any express guidance on the point, therefore, it was the State Immunity Act alone that governed the case, and this meant that Pinochet was free to leave the United Kingdom, or indeed to remain to complete his treatment there if he should be so minded.

The idea of sovereign immunity is not in itself disgraceful, since its original purpose was to accord protection from legal victimisation to those whose desire to negotiate peace between nations might on occasion require them to enter enemy territory. A modern equivalent would be the way in which the British and Irish police have in recent years permitted the IRA leadership to meet to debate the peace process without fear of arrest. This is laudable realpolitik, not a loss of legal nerve. Pinochet?s lawyers had much the better of the legal argument before the High Court, since they were able to point to centuries of authority to underpin their case.

Since the end of the Second World War, however, a rival version of international law has tried to burst through the sovereign veil. This stresses human rights and imposes an absolute bar on such heinous behaviour as genocide, torture and crimes against humanity. It has been given occasional legal teeth, such as with the International Military Tribunal at Nuremberg in 1945, and the statutes for the international tribunals which have recently been established in respect of the former Yugoslavia (in 1993) and Rwanda (in 1994). All three of these tribunals specifically deprived accused persons before them of state immunity of the type relied upon so successfully by Pinochet before the British courts.

This international human rights law is knocking at the UK?s domestic legal door, but it has yet to be admitted. Without parliamentary legislation or stunning creativity from the law lords, it has no means of entry. One of the benefits of the Pinochet affair may be to force this Government to revisit the 1978 Act and to modify its provisions so as to leave vicious world leaders more exposed than before on their trips to Harrods or Harley Street. On the other hand, this may not be what the Government really wants. One of the most significant events during the Pinochet affair was the refusal of the Attorney General to allow domestic proceedings in relation to torture to proceed under the Criminal Justice Act 1988. What is to be gained when Britain?s relations with Chile and the United States would be so manifestly put at risk?

IN truth there is something odd about the Spanish and British courts intervening in a matter that is both larger and smaller than these two jurisdictions. It is at one level not Britain?s or Spain?s business because it is a domestic affair, more appropriately resolved by the Chilean courts, though of course we know that it never will be. At another level, however, the Pinochet case had nothing to do with Spain or the United Kingdom, precisely because of its huge international significance.

In an ideal world it would not have been the Metropolitan Police who would have been disturbing Pinochet at his clinic at the behest of a courageous Spanish magistrate, it would have been a UN police force acting on an international warrant and taking him into custody pending his trial before the International Criminal Court. Of course no such police yet exists and but the court does, albeit in a fledging state, having been established earlier this year following weeks of tense negotiation in Rome.

The Pinochet case has served a great public purpose. It has identified the need to give teeth to the rival model of a post-sovereign, human-rights-based international law which has slowly grown up in the 50 years since the Universal Declaration of Human Rights. When Fred West was brought before the courts in the United Kingdom, no one thought for one moment that he should not be convicted because it might damage the reputation of the town in which he lived, or the economic circumstances of the people he might have employed, or the family that may still have depended upon him. The law was bigger than any of these utilitarian considerations. When international law secures the same niche in our minds, and when torture, genocide and crimes against humanity raise issues only of evidence and not also of diplomacy and international trade, we will know that the world will be a safer place. Senator Pinochet may yet live long enough to find he has no hiding place. That is a goal worth striving for.

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