Pinochet ‘tortures not crimes against humanity’
Jan. 27, 1999
General Augusto Pinochet’s lawyers have argued that the tortures allegedly committed under his regime were not crimes against humanity because they would not have occurred within an armed conflict.
At a House of Lords hearing Clare Montgomery, QC, for the former Chilean military ruler, told a panel of seven Law Lords that when the concept of crimes against humanity emerged during World War II, they were invariably associated with the waging of international war.
That connection had since been relaxed, but even recent legal landmarks, such the international tribunals into events in Rwanda and the former Yugoslavia, suggested crimes against humanity were still connected with armed conflict, she said.
Pinochet hearing hinges on permissibility of torture
By Chris Marsden
28 January 1999
Former Chilean dictator Augusto Pinochet’s defence team made an explicit call for torture to be recognised as a legitimate function of a head of state. Focusing her argument against Pinochet’s extradition on his claim to sovereign immunity, Clare Montgomery told the Law Lords that only Chile could mount a prosecution. “We would contend that where torture is committed within the context of the military enforcing some internal security policy … it still falls within the definition of sovereign or government functions. And sovereign or public acts are entitled to immunity.”
“When an outside nation tries to prosecute, it is acting under the laws of its own courts, not as a representative of the international community,” she went on. Prosecution lawyers have consistently argued that the International Convention Against Torture accepted by Chile, Britain and Spain–the nation seeking Pinochet’s extradition–makes torture an international crime. It does not recognise immunity and gives all nations the right, and even a duty, to intervene or prosecute.
Pinochet’s lawyers not only oppose this on the grounds that it is an infringement of national sovereignty, but Montgomery even questioned whether torture and hostage-taking could be considered international crimes. “They are crimes that give rise to international concern, which is not the same thing.” International crimes must be linked to armed conflict, she said.