Gilbert, Review of "The Pinochet Case: A Legal and Constitutional Analysis" Diana Woodhouse (ed.), Oxford, Hart Publishing, 2000, ISBN 1 84113 102 4, Hardback £30.00
<http://webjcli.ncl.ac.uk/2000/issue4/gilbert4.html>
The Pinochet Case: A Legal and Constitutional Analysis Diana Woodhouse (ed.), Oxford, Hart Publishing, 2000, ISBN 1 84113 102 4, Hardback £30.00

Reviewed by Professor Geoff Gilbert, 
Department of Law, University of Essex
<geoff@essex.ac.uk>

Copyright © 2000 Geoff Gilbert.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd. 

Imagine, if you will, that, following a conference, a book on Donoghue v Stevenson had been produced in 1933 based on the papers that had been delivered. The first chapter would have laid out the chronology of the case from the moment Mrs Donoghue (née M'Alister) had decided to go out for a bottle of ginger beer with her friend at Minchella's café in Paisley, through to the decision from the House of Lords that there was a case to be answered. The second chapter would have examined the constitutional ramifications of a House of Lords dominated by English lawyers presiding over an issue that arose in Scotland with its separate legal system. The next chapter would have examined the same issue from a legal perspective and pointed out that no-one had proved the snail ever existed, yet nevertheless the whole framework of English law had been changed. The third chapter would have considered how European Community law would have dealt with the issue, if EC law had been in force in 1932. Part II of the book would have started with a chapter on how the snail in the ginger beer bottle was a post-modern expression (given, equally, that post-modernism had been around in 1932) of the slowness of the judicial process, and the very fact that it was unknown whether the snail’s existence was a fact or not, a comment on how the law regularises into accepted systems some forms of injury but not others. The fifth chapter would have looked in general at the law relating to third parties, while the final chapter would have been on whether an exclusion clause applicable to non-purchasers would have saved the manufacturer and this chapter would have been hailed as prescient thirty years later when the House of Lords decided Hedley Byrne v Heller. However, there would have been no chapter on the tort of negligence and manufacturers’ liability. This is a book on the Pinochet cases that has no chapter on extradition law, although there are chapters on the House of Lords and issues of bias, from constitutional, legal and ECHR perspectives, and on questions of justice and morality, immunity in international law and on the administration of international criminal justice. Considering that it is now clear (i) that immunity could be a defence to an extradition request, (ii) that double criminality under s2 Extradition Act 1989 has a temporal aspect, (iii) that the Home Secretary can intervene on grounds of ill-health, and possibly other s12 grounds, to halt extradition proceedings that are still pending before the courts without the person whose surrender has been requested first ending his/her judicial challenge to the extradition process so that it is properly a matter for the executive, (iv) that the extradition court can receive new evidence of further charges after the authority to proceed has been issued, and (v) that the requesting State and other States that potentially could submit a request have standing to question a refusal to extradite by the Home Secretary, there was scope for an additional chapter on the central aspect of the Pinochet cases. While it is unfair to criticise a book for what it never set out to do, and the book’s objective is set out clearly on p.2, not to attempt “a detailed examination of all aspects of the House of Lords’ decisions nor a full analysis of the implications”, but rather to “provide a starting point for further study …, and … stimulate discussion and debate”, there would not have been this episode in contemporary English legal history without a Spanish extradition request and much of Pinochet 3 was to turn on the requirements of extradition law.

That having been said, the book does reproduce the three most important cases, those in the House of Lords, from the Pinochet saga. The book is divided into two parts: the first looks at the House of Lords and the issue of bias, while the second, which is not quite so coherent a collection, starts by looking at morality and justice in the light of Pinochet, before moving on to consider aspects of the cases from the perspective of public international law. However, all that is preceded by a chapter by the editor setting out chronologically the events of the Pinochet cases. As this chapter makes clear, Pinochet put the House of Lords in the glare of public attention. Indeed, even Pinochet 1 was a media event, not just the second House of Lords hearing on bias (cf. p.8), a fact to which I can attest since I followed one of the authors into a radio studio in November 1998 as we all tried to predict the outcome of the first House of Lords judgment - we all thought it would be 3:2 with Lord Slynn in the minority, but we had believed that the House of Lords would grant immunity and that Lord Slynn would be voting to deny it, completely the opposite of what happened (viz. p.40). This chronological study does not point out that the particular panel in Pinochet 1 had not been put together to hear that case, but since there was a habeas corpus issue left over from the Divisional Court’s judgment, it had leapt into first place in the queue of cases waiting to be heard - that fact, though, does not wholly excuse Lord Hoffman from disclosing his connection with Amnesty International. On p.8, it is, however, also asserted that Lord Hoffman was a director of Amnesty International; in fact, he was a director of Amnesty International Charity Ltd, he was not even a member of Amnesty International itself, although his wife was in the Press and Publicity section of Amnesty International’s International Secretariat. It is a small error, but the correct information set out here is taken from pp.183-84 of this same book.

The next three chapters look at the issue of the suitability of the House of Lords as a final supreme court in the light of the finding that Lord Hoffman’s association with Amnesty International had the appearance of bias and the very different approach taken by the House in Pinochet 1 and Pinochet 3. Chapter 2 is written by a political scientist, and the book greatly benefits from this different perspective.  Chapter 3 addresses much the same issues from a legal perspective and, unfortunately, there is some overlap and repetition. In hindsight it might have been better for these two chapters to be combined or for the authors to address directly some of each others’ views. For instance, although I cannot comment on how a political scientist might view the content of Chapter 3, as a lawyer there are several issues which I would like to take up with David Robertson. While the decision in Pinochet 3 can best be described as shambolic, even Lord Donaldson, former Master of the Rolls, calling it "surprising", it seems wrong to criticise the House of Lords for the differences in the first and third judgments (p.20) - the cases addressed different issues and were bound to provide different solutions. In my opinion, the temporal aspect of double criminality should only have been visited in any subsequent extradition hearing, while Pinochet 3 should have confined itself to whether former Heads of State should enjoy immunity from the extradition process for international crimes. The end result might have been the same, for the House of Lords could have decided that immunity was only lost when all three States in question, Chile, Spain and the United Kingdom, had ratified the 1984 United Nations Convention Against Torture, but it meant that one aspect of extradition law was divorced from the rest of the case. However, more interesting is Robertson’s view of the role of the House of Lords. Lawyers are brought up to expect the House of Lords to shy away from political decisions behind the cloak of the ‘separation of powers’, not to be driven by policy but to respect the supremacy of Parliament. While one may not agree that domestic individual criminal liability should be derived from customary international law (nullem crimen sine lege), the idea that in the era of the Human Rights Act the House of Lords will have to act in a more policy-driven fashion seems inescapable and Robertson’s chapter should be compulsory reading for all Law Lords.

As for the discussion of Lord Hoffman’s appearance of bias in Chapters 2, 3 and 4, no-one mentioned that Lord Hoffman has sat in appeals to the Privy Council in death penalty cases from the Caribbean, a subject on which Amnesty International has a high profile campaign - maybe because he has upheld the death penalty.  As for Chapter 4 on how the House of Lords in Pinochet 2 did not refer to ECHR jurisprudence, this is an illuminating and thorough study of the law. The only problem with the analysis in this chapter is that the authors rely on R v Director of Public Prosecutions, ex parte Kebeline in the Divisional Court ([1999] 3 WLR 175) (cf. p.72) as authority for how the House of Lords should have dealt with the ECHR before the Human Rights Act came into force in Pinochet 2. However, when Kebilene went to the House of Lords on 28 October 1999, the House reversed the Divisional Court and took a line similar to that found in Pinochet 2. That, though, in no way detracts from the better approach to ECHR jurisprudence which this chapter recommends.

Chapter 5 considers the Pinochet saga from the perspective of morality and justice. It is an interesting perspective that has only rarely been aired in the debates surrounding the case. Nevertheless, there is a sense in which this chapter seems disjunctive.

The final two chapters consider Pinochet from the viewpoint of aspects of international law. The first deals with sovereign immunity. The coverage is comprehensive and clear. However, the tenor of the chapter is one where public international law is seen as static, rather than a process by which the international community resolves problems, such as the degree of immunity to accord a former Head of State with respect to international crimes committed during his tenure and apparently as part of his policy. On specific matters, comity must be subject to ius cogens (pp.101-02) because peremptory norms do not become such unless the international community as a whole finds them beneficial to the smooth running of international society. Ius cogens also needs to be seen as a body of norms which interact: undoubtedly, sovereign immunity is a peremptory norm that preceded the one against torture, but it is implicit in the Vienna Convention on the Law of Treaties (Article 64) that new norms will develop and that ius cogens should not be seen as set in stone, but as dynamic, reflecting new values in international society. Further, the question of ‘acts of State’ cannot be settled solely by whether the Head of State was acting in a personal or private capacity - official acts must also be the sort of activity which can be an act of State and what States have condemned as contrary to peremptory norms must surely fall outside any protection, which is why the Statute of the International Criminal Court has abrogated even acting Head of State immunity for the crimes listed in Article 5 (Article 27). As for truth commissions, a matter also dealt with in the final chapter, some will suffice to satisfy the demands for justice in the face of violations of ius cogens, but that will be a qualitative question; Judith Hendrick’s chapter in this book (p.92) calls into question the adequacy of the Chilean process. The final chapter is as well-researched as the preceding ones, but again leaves some issues not fully explored. The major such problem concerns the new International Criminal Court. Apart possibly from being over-optimistic as to its prospects of success, it fails to address whether a truth commission would prevent the I.C.C. from exercising jurisdiction and the question of sham trials as they pertain to complementarity under Articles 17-20 of the Rome Statute.

In conclusion, the objective of the book (p.2) is said to be to stimulate discussion and debate. It does that, but at two levels. One is through the analysis that is provided, but equally it achieves it by leaving unfinished (or not even started in the case of extradition law) ideas that could have been more fully worked through.