Augusto Pinochet ruled Chile from 1973 to 1990. Under his aegis, over three thousand people were killed by agents of the state; many more were tortured. But Pinochet never served a day in prison. An amnesty law in Chile protected him from prosecution for crimes committed during his dictatorship. He was detained in London in 1998 after a judge in Madrid applied for his extradition to Spain – at least one of the victims of his regime was a Spanish national. In the High Court, Lord Chief Justice Thomas Bingham ruled that Pinochet should not be extradited as he was entitled to immunity as a former head of state. This judgment was referred on appeal to the Law Lords, at the time the highest appellate court in the country. At this point, the case became more complicated – with the result that Pinochet was kept in Britain, in very comfortable circumstances, until 2000, when he was released.

Philippe Sands is a barrister and academic who represented Human Rights Watch when the Pinochet case was considered by the Law Lords. He recounts the case and ties it to the story of Walther Rauff, an SS officer who was responsible for the use of mobile gas chambers to murder Jews. Rauff took refuge in Chile and came close to being assassinated by Mossad. He also worked for West German intelligence agencies and seems to have helped Pinochet’s security services. 

Sands’s book mixes history, travel writing and autobiography. I would guess that his editors, keen to replicate the success of his most famous book, East West Street, have encouraged a personal approach, though I also suspect that Sands may not need much encouragement to put himself at the centre of any story. There are many long descriptive passages. It all has a touch of the self-indulgence that one associates with successful barristers. At times, I was reminded of Lord Denning, who embroidered his judgments with talk of ‘bluebell time in Kent’.

Sands is at his best when he sticks to the central topic and addresses the legal ramifications of the Pinochet case, which are extraordinarily interesting. The stipendiary magistrate who signed the original warrant authorising Pinochet’s detention (he turns out to be Sands’s next-door neighbour) had to find an offence in English law that Pinochet could be arrested for. Understandably, he sought to keep things simple and settled on murder. However, ‘murder was not an international crime over which the English courts had jurisdiction unless the perpetrator or victim was British’. The warrant was hastily revised to include genocide, terrorism and torture. These are international crimes for which Pinochet could be extradited – indeed he could simply have been tried in a British court had the authorities wished it.

Most of all, the Pinochet case revolved around  ‘sovereign immunity’ – the idea that heads of state cannot be prosecuted for things they have done in office. This is less simple than it sounds. There was debate about whether Pinochet continued to enjoy immunity after he had ceased to be head of state and about how far his actions were part of his duties as head of state. Some judges did not discount the possibility that ordering his henchmen to break the bones of dissidents in cellars might count as an official function of a Chilean president.

The Law Lords were divided on the extradition request. At the end of the first hearing, they rejected Pinochet’s claims to immunity by three votes to two. The last judge to pronounce, and the one who tipped the balance against Pinochet, was Leonard Hoffmann. Hoffmann – who once said that the British way of life was more threatened by laws against terrorism than terrorism itself – sometimes sounds like an appealing exponent of clarity and common sense. He could, however, be idiosyncratic and those who admire him might be disconcerted to learn that he remains a judge in the Hong Kong Court of Final Appeal, even though the Chinese authorities have made clear their disdain for the rule of law.

In the Pinochet case, Hoffmann made a mistake. Amnesty International had made itself a party to the case. Hoffmann’s wife worked for Amnesty and he was himself a trustee of a branch of the organisation. Hoffmann might have chosen not to sit, in which case he would have been replaced by someone who would probably have tilted the balance of the court in favour of Pinochet. Equally, he might have declared the connection as an outside interest (it’s possible Pinochet’s lawyers might have expressed no objection). But Hoffmann said nothing about his links to Amnesty. This allowed Pinochet’s lawyers to seek to have the judgment annulled.

The great and the good were furious with Hoffmann. The home secretary, Jack Straw, thought he had prevented a quick resolution of an awkward case. The other Law Lords considered that he had behaved badly. A panel of his own colleagues decided that Hoffmann’s failure to declare his connections to Amnesty invalidated the original judgment. 

Another group of Law Lords – including some who had sat in the first hearing – was appointed to hear the case once more. Again, they were divided, though this time in more complicated ways. One of the panel of seven considered that Pinochet had complete immunity; another thought that he had none. The remaining five Law Lords thought that Pinochet could be extradited for some of the crimes of torture of which he was accused, namely those that had occurred after 1988, when the 1984 International Convention against Torture came into force in the United Kingdom. Since the majority of the crimes committed by the Pinochet regime had occurred in the 1970s, some of the Law Lords might have hoped that the home secretary – whose authorisation was needed for any extradition – would decide that the case against Pinochet was not serious enough to justify his removal to Spain. If so, their lordships were disappointed: Straw granted authority for the extradition to proceed. 

Eventually, Pinochet was saved by doctors rather than lawyers. A medical panel decreed that old age had deprived him of the mental capacity to follow proceedings and that he was not, therefore, fit to be tried. It was an absurd decision – British prisons would be very empty if they contained no one with a degree of intellectual impairment – but it was politically convenient. Straw hinted that Tony Blair’s chief of staff, Jonathan Powell, had brokered a deal with the Chilean government that involved Pinochet’s return. Powell was also a key figure in negotiations that, in effect, granted former terrorists in Northern Ireland immunity from prosecution. The Chilean position was complicated. Many Chileans hated Pinochet, but their government insisted that he should only be tried in his own country. (The Chilean supreme court did, eventually, lift Pinochet’s immunity but he never stood trial. He died at the age of ninety-one in 2006.) To compensate him for the expenses that he had incurred during his stay in London, the British government paid Pinochet almost a million pounds – about the same sum that was paid to each of the Birmingham Six as compensation for the sixteen years of unjust imprisonment they had endured after the police beat confessions out of them.

Early in the case, Sands himself was asked to represent Pinochet. He refused. He does not seem uncomfortable about having wriggled out of the ‘cab-rank principle’, which is meant to ensure that even the most unpopular defendants get proper representation in court. Equally, the lawyers who worked for Pinochet do not seem to have felt uncomfortable about defending a monster. In fact, the most striking feature of this book is the evocation of how comfortable life at the top of the English legal profession can be. Everyone knows each other. There is much mutual admiration. Sands describes James Cameron, one of the lawyers who represented Pinochet, as ‘my closest friend’. Press reports from the time suggest that the barristers representing Pinochet were billing hundreds of pounds an hour for their work. 

In a strange way, Pinochet’s was a comfortable case for the legal profession because the stakes were low. The Rumpolesque criminal defence barristers who make ends meet on legal aid fight cases that make a real difference – their clients risk being banged up in horrible conditions for years. But no British lawyer lost sleep over Pinochet. His defenders knew he was guilty and would not have felt bad had he died in prison. Equally, the lawyers on the other side probably knew that powerful people would, in the end, find ways to prevent another powerful person from being prosecuted. Since there was no real dispute about the facts, debate revolved around points of law. Soon after Pinochet flew back to Chile, Sands and Clare Montgomery (one of Pinochet’s barristers) became founder members of Matrix Chambers: ‘We hoped that the interplay between English, European and international law, so emblematic in the Pinochet case, might offer a new path.’

The most curious feature of the Pinochet case is that lawyers gave little attention to the definition of a head of state. What, for example, was the status of Joseph Stalin, whose formal position was general secretary of the Communist Party of the Soviet Union? Most of all, it seems odd to grant someone immunity from prosecution if their position as head of state derives from a crime. This was clearly the case with Pinochet, who had violently overthrown his democratically elected predecessor. During the extradition imbroglio, Margaret Thatcher was vociferous in her support for Pinochet – mainly because he had provided help to Britain during the Falklands War of 1982. However, seventeen years earlier, she had written a brief note that might have given some British judges grounds for reflection. In December 1981, the Foreign Office suggested that Thatcher sign a letter congratulating General Galtieri on his accession to the presidency of Argentina. Thatcher refused: ‘I don’t like sending these messages on military takeovers. No message from me.’