(14 January 2000)

The International Confederation of Free Trade Unions (ICFTU), as a formal party to judicial proceedings initiated against Mr. Augusto Pinochet in Brussels in November 1998(1), for acts which include, inter alia, the torture of dozens of trade unionists while he was in power in Chile, expresses deep concern at the announcement made by the United Kingdom’s Home Secretary, the Hon. Jack Straw, on 11 January 2000, that, on account of secret medical evidence, he saw Mr. Pinochet as "at present unfit to stand trial and that no change to that position can be expected" and that he was thus "minded, subject to any representation he may receive, to take the view that no purpose would be served by continuing the present extradition proceedings [against Mr. Augusto Pinochet] and that he should therefore decide not to extradite [him]".

While there is no question that Mr. Pinochet - in spite of the grave crimes of international law of which he stands accused - is entitled, as any other person, to all universally-guaranteed human rights, including the right to a fair trial and all of his other legitimate rights as a defendant, the ICFTU considers that the Home Secretary’s decision, if applied, would entail a very serious failure by the United Kingdom of its obligations both under international treaties it has ratified and under universally-recognised principles of international criminal law, particularly in the field of universal jurisdiction and extradition. These principles and international jurisprudence firmly indicate there is no reason to discontinue judicial proceedings, whether of an extradition or domestic nature, against Mr. Pinochet, even on medical or humanitarian grounds. Moreover, a recent ruling issued by the International Criminal Tribunal for Former Yugoslavia (ICFTY) in a strikingly similar case strongly suggests that, should he temporarily be released on such grounds, Mr. Pinochet should under no condition whatsoever be granted such freedom to move as may put him beyond the reach of the courts which have to rule on the Spanish and/or the subsequent extradition requests filed by France, Switzerland and Belgium. Such, however, would certainly be the case if extradition proceedings were dropped and Mr. Pinochet allowed to return to Chile.

The United Kingdom must either extradite or itself put Mr. Pinochet on trial

It is recalled that, pursuant to the Law Lords’ ruling of 24 March 1999, acts of torture committed after the entry into force of the Convention Against Torture and Other Cruel, Inhuman ore Degrading Treatment or Punishment, 1984 (hereinafter: CAT) for the United Kingdom today constitute the only charge under which the U.K. can examine the Spanish extradition request filed against Mr. Pinochet. Such acts belong to the most serious crimes of international law. Moreover, torture can in circumstances as in the present case be considered a crime against humanity. It is on this wider legal basis that the Belgian extradition request, in the aforementioned Belgian criminal investigation, and certain extradition requests presented by other States are founded. Finally, it must be pointed out that torture, as a crime against humanity, is explicitly included in the Statute of the International Criminal Court, adopted by the international community in Rome in July 1998 and which today epitomises the principles of international criminal law. (The Rome Statute has been signed by the United Kingdom on 30 November 1998, and its ratification has been included as an objective of the Government(2) in the most recent Queen’s Speech.)(3)

As a grave crime of international law, torture falls under the principle of universal jurisdiction, which holds that a State has the obligation to exercise its jurisdiction over the most serious offences whenever their suspected author is on its territory, irrespectively of where the crime has been committed and of the suspected author’s or the victim’s nationality. This principle, which is equally binding on other States, whether by virtue of treaty or customary law, is compounded by another, much older principle : "aut dedere, aut judicare", embodied in various international treaties. Under the latter principle, a State must either exert its own jurisdiction over someone suspected of a grave crime of international law, or extradite that person at the request of another State. This principle has been confirmed, inter alia, by the International Law Commission in its Code on crimes against peace and security of mankind(4). As related specifically to acts of torture, the two principles are also binding on the United Kingdom by virtue of its ratification both of the CAT and of the European Convention on Extradition, signed by European nations, including the UK, in 1957 and ratified by the United Kingdom on13-Feb-1991. Under the CAT, in particular, a State Party is obliged to either "establish its own jurisdiction" over alleged acts of torture, under art. 5, or extradite their suspected author, under art. 8.

The ICFTU thus considers that, however serious the personal circumstances of Mr. Pinochet which the Home Secretary may need to consider in an eventual decision to discontinue extradition proceedings, he should, in view of the seriousness of the acts of which Mr. Pinochet is suspected, exert his personal discretion only within the purview of universally-recognised principles of international criminal law, as described above. This means, in practice, that, should the extradition proceedings be discontinued, the principles in question dictate that Mr. Pinochet should face trial in the United Kingdom.

Mr. Pinochet’s health should not impede either his extradition or trial in the U.K.

As demonstrated in a recent precedent discussed below, the principles above also dictate that any decision to grant freedom to Mr. Pinochet on humanitarian grounds may be taken only on a strictly temporary basis and should under no circumstances lead to a halt in extradition proceedings nor, failing extradition, to a discontinuation of criminal proceedings against him before the competent jurisdiction in the United Kingdom itself.

In particular, no measure should be taken that would prevent the competent judicial authorities from ensuring that Mr. Pinochet would personally appear in court, if and when an improvement of his alleged illness or illnesses might occur in the future. This is all the more the case since, even if the - so far secret - medical evidence suggests that he is at present unfit to stand trial, all necessary medical care and assistance is readily available in any of the countries (Spain, France, Switzerland, Belgium) which have requested his extradition from the United Kingdom. It follows clearly that no incompatibility whatsoever exists between maintaining Mr. Pinochet within the reach of the courts and providing him with such state-of-the-art medical care and assistance as his present or future health condition requires.

The ICTY precedent

The ICFTU bases its stand on a 1996 ruling by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the case of General Dorde DJUKIC, a suspected war criminal whose release had been requested by the Tribunal’s Prosecutor in a motion filed on 19 April 1996 on the grounds of his "rapidly deteriorating health"(5). Mr. Djukic’s terminal illness had prompted the Prosecutor to ask the Tribunal to withdraw the indictment, "without prejudice to the Prosecutor's right to re-indict the General at some time in the future should the circumstances of the accused's medical condition change". The Prosecutor argued that, based on an independent medical examination(6) performed on General Djukic, the defendant was suffering from a terminal disease, and that it would thus be "unjust and inhumane" to force him to stand trial. The Prosecutor stated that "the progressive nature of his medical condition [was] such that he would very soon be unable to meaningfully participate in his defence. A trial under such conditions would be inherently unfair".

Ruling on the Prosecutor’s request, the ICTY’s Trial Chamber I upheld the indictment against General DJUKIC. The Chamber ordered General DJUKIC'S provisional release, but solely on humanitarian grounds. In its decision rendered on 24 April 1996, the Trial Chamber stated that "neither the Statute nor the Tribunal’s Rules of Procedure and Evidence authorised the withdrawal of an indictment for medical reasons, no matter how serious(7), for the major crimes over which the Tribunal ha[d] jurisdiction, and that consequently, no grounds exist[ed] for granting the Prosecutor's motion".

The Trial Chamber’s Judges said, however, that they were "satisfied that General Djukic's medical condition [was] incompatible with any form of detention, and that the palliative care which his condition require[d] justifie[d] a different environment". The Trial chamber therefore ordered that he be permitted to leave the Netherlands, where the seat of the ICTY is located, in order to join his family, but issued its authorisation subject to a number of "stringent conditions"(8). These conditions included that Djukic or his counsel must, before his release, " inform the Registry of his address and or of any future change of address and keep the Registrar informed as to his medical condition". The Trial Chamber also ruled that, "should his medical condition permit, the General, when summoned, must appear before the Tribunal to answer any request addressed to him; the government of the State of residence must not obstruct the execution of any requests made by the Tribunal in respect of the General, in accordance with Rule 65."

Rule 65 of the ICTY’s Rules of Procedure and Evidence provides, inter alia, that, once detained, an accused may not be released except upon an order of a Trial Chamber, that "release may be ordered by a Trial Chamber only in exceptional circumstances(9) (…) "and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person(10). The Rules further provide that "the Trial Chamber may impose such conditions upon the release of the accused as it may determine appropriate, including the execution of a bail bond and the observance of such conditions as are necessary to ensure the presence of the accused for trial and the protection of others"(11). The rules also provide that any decision rendered in such a fashion may be subject to appeal, "upon good cause being shown". (An appeal was indeed filed by the Prosecutor; however, the accused died of generalised cancer before the appeal could be ruled upon.)

Whereas in addition, and contrary to the case discussed above, no evidence whatsoever has been made public by the Home Secretary to the effect that Mr. Pinochet is terminally ill or that he may face any other immediate threat to his life on account of his present state of health, and whereas in any event, as discussed earlier, all and any necessary medical care may be provided to him either in the United Kingdom or in any of the countries whereto he might be extradited, it follows that the United Kingdom is obliged, under the universally-recognised principles of international criminal law exposed above and as supported by the Djukic precedent, to take all appropriate measure to ensure that Mr. Pinochet may appear before such jurisdiction, whether domestic of foreign, as may be determined by the courts upon completion of the current extradition proceedings initiated against him by Spain, France, Switzerland and Belgium.

His departure for Chile is highly likely to terminate any such prospects. Indeed, any of the guarantees offered in recent days by both candidates to presidential elections, to be held on 16 January 2000, as well as by the magistrate leading the largest number of cases instituted in Chile itself against Mr. Pinochet, i.e. guarantees to the effect that Mr. Pinochet would face judicial proceedings immediately upon or soon after his eventual return to Chile, in the event that current extradition proceedings were quashed - would need, in order to be credible, let alone effective, to be preceded by a number of essential legal, and possibly constitutional steps including, first and foremost, the lifting of his senatorial immunity prior to his repatriation to Chile.

Meanwhile, however, the crimes of which he stands accused are of such gravity that the Home Secretary should, in his decisions concerning this matter, be guided and exercise his discretionary powers solely within the limits laid down by the principles of international law. As pertaining to the case of Augusto Pinochet, these principle dictate unequivocally that Mr. Pinochet should remain within reach of the law. Releasing him from custody under the present circumstances would represent a serious failure by the United Kingdom of its obligations under international criminal law. It would also be tantamount to a miscarriage, and, as far as Augusto Pinochet’s victims are concerned, a gross denial of justice.