why we should'nt release pinochet

THE ARREST of General Pinochet pending an application for his extradition to Spain is consistent with the United Kingdom's international legal obligations. The UK is actually required by international law to ensure that he is either extradited to Spain or prosecuted here.

Such arrest warrants are issued on the basis of the Extradition Act 1989.

The magistrate gave Judge Baltasar Garzn 40 days in which to file a formal extradition request. However, under British law, Home Secretary Jack Straw can cancel the warrant on Pinochet at his discretion. It is this that would allow him to cite compassion as a reason for letting Pinochet go. When the formal extradition request is eventually received, Mr Straw will have to give the magistrate "authority to proceed". The magistrate is then required to determine if the evidence is sufficient to warrant a trial in England. If so, it is up to the Home Secretary to decide whether Pinochet should be sent to Spain. This decision may be made on political grounds, although to refuse to extradite would risk violating the extradition treaty between the UK and Spain. Pinochet's lawyers would be entitled to challenge any such decision. They might argue that the accusations were not made in good faith, that it would be unjust or oppressive to send him to Spain, or that he has immunity within the English legal system. Only if the courts rule against Pinochet on these issues will the Home Secretary finally be in a position to order the extradition. Once again, he may refuse to make such an order - although again his decision will be constrained by the extradition treaty. There do not appear to be any legal impediments to Pinochet's extradition providing that a formal request accompanied by sufficient evidence is received. Pinochet does not benefit from diplomatic immunity. The acts he is alleged to have committed are crimes under international law. In 1994, the Supreme Court of Brazil authorised the extradition to Bolivia of Luis Garcia Meza, the former dictator of that country. He had been convicted in Bolivia for genocide. The crime of torture is particularly important in this case. Under international law, torture gives rise to universal jurisdiction. The 1984 United Nations Torture Convention - ratified by the UK in 1988 - requires that states either prosecute any alleged torturer found in their territory, or extradite him to another country. Releasing Pinochet would thus be a violation of international law, but not of British law. The possibility of prosecuting Pinochet in the UK could become very important if a formal extradition request is not forthcoming. The Criminal Justice Act 1988 provides a statutory basis for the prosecution of alleged torturers in the UK regardless of their nationality, the nationality of their victims or the place where the alleged torture took place. Prosecution requires the consent of the Government, in this instance the Attorney General. This means that the Government could also block any attempt to prosecute Pinochet here, either by the police or by private individuals, although this too would put the UK in violation of international law. Violating international law by refusing to extradite or prosecute could have a number of consequences. For example, Spain or another state might commence legal proceedings against the UK in the International Court of Justice in The Hague. A defeat there would seriously damage Britain's authority in foreign relations when human rights are acquiring a heightened importance. But a decision to release Pinochet would not only be contrary to international law. It would also constitute a serious setback for those like the Foreign Secretary - who seek to insert a greater degree of morality into international decision-making. For this reason, and those above, the Government should hold fast. Dr Michael Byers is lecturer in international law at Jesus College, Oxford

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