The Pinochet principle: no one is above the law

On October 16 1998, a magistrate signed a warrant for the arrest of Senator Augusto Pinochet and changed the course of history. The former Chilean head of state was arrested a few hours later, at the request of a Spanish prosecutor who charged him with a raft of international crimes, some dating back to the early 1970s.

One central question lay at the heart of the whole affair: was a former head of state entitled to claim immunity before the English courts, where it was alleged that he had participated in crimes, in violation of international conventions, such as torture? This question had never before been decided.

In March 1999, the House of Lords ruled that Pinochet's loss of immunity arose not from some unstated general rule of international law, but rather from the terms of a treaty to which Britain, Chile and Spain were party – the 1984 convention outlawing torture – the terms of which were inconsistent with immunity for a former head of state. It is impossible to overstate the significance of that ruling, which reflected a new balance of global priorities, a shift in favor of principle over pragmatism. It has been followed by international indictments against other former heads of state [including] Slobodan Milosevic and Charles Taylor.

Nevertheless, it seems that Pinochet's case caused concerns at the highest levels of the Bush administration, as described in a revealing account by a former lawyer in the Bush administration, Jack Goldsmith. He describes how, during 2002, Henry Kissinger found himself on the sharp end of the Pinochet case. Reportedly livid, a rattled Kissinger complained to his old chum Donald Rumsfeld.

We now know that while this was going on, Rumsfeld and Haynes and others at the Pentagon were secretly circumventing international laws like the Geneva conventions and the torture convention and removing international constraints on the interrogation of detainees at Guantánamo and in Iraq. Torture and other international crimes followed. So did the Abu Ghraib photos.

The legacy of the arrest warrant signed in Hampstead 10 years today, is the Pinochet principle, that no one is above the law. It may one day come to haunt the very people who sought to set it aside. If, that is, they ever dare to set foot outside the United States.

[The Guardian]