"International law has made plain that certain types of conduct, including torture and hostage-taking, are not acceptable conduct on the part of anyone. This applies to heads of state, or even more so, as it does to everyone else. The contrary conclusion would make a mockery of international law."
This was the damning verdict of the law lord, Lord Nicholls, yesterday as the former Chilean dictator, Gen Augusto Pinochet, lost his appeal by a verdict of 3-2 in the House of Lords that as a former head of state he was immune from prosecution.
The Home Secretary, Mr Jack Straw, will now decide if Gen Pinochet will be extradited to Spain to face trial for the genocide and torture of Spanish citizens in Chile during his 1973-1990 regime.
As the detail of the ruling was being digested, the former British prime minister, Baroness Thatcher, who has opposed Gen Pinochet's extradition to Spain, described him as "an old, frail and sick man" who should be allowed to return home. Anti-Pinochet campaigners and human rights supporters in Britain hailed the decision as a legal precedent.
It would have been hard to match the moment for its drama and unexpected outcome. One by one, the five law lords stood up in the house and announced their decision. First the most senior judge, Lord Slynn, the chairman of the panel, told peers that Gen Pinochet could claim immunity from prosecution.
The next most senior judge, Lord Lloyd, agreed, which meant that if one more law lord ruled in his favour, Gen Pinochet would be on his way back to Chile. But then came Lord Steyn, who said the correct interpretation of the law meant Gen Pinochet had no immunity whatever.
When Lord Nicholls concurred, there were gasps in the chamber and cheers from the victims of the Pinochet regime who had gathered outside. The fifth law lord, Lord Hoffman, put the final seal on the ruling when he said: "I agree with them that Senator Pinochet does not have immunity from prosecution."
Upholding the Spanish/Crown Prosecution Service appeal against an earlier High Court ruling that as a former head of state Gen Pinochet had immunity from prosecution, Lord Nicholls declared that it hardly needed saying that "torture of his own subjects or of aliens" was not regarded by international law as a function of a head of state.
"It cannot be stated too plainly that the acts of torture and hostage-taking with which Senator Pinochet is charged are offences under United Kingdom statute law."
Upholding the appeal, Lord Steyn said the High Court had wrongly concluded that even in respect of acts of torture immunity from prosecution for a former head of state could prevail. In his written judgment, he stated that had Gen Pinochet still been the head of state of Chile, he would be immune from the present extradition proceedings.
"But he has ceased to be a head of state. He claims immunity as a former head of state," he added. To enjoy that immunity, he said, Gen Pinochet would have to be charged with "official acts performed in the exercise of his functions as head of state".
However, the development of international law since the second World War justified the conclusion that by the time of the 1973 coup d'etat which brought Gen Pinochet to power, crimes such as genocide and torture were international crimes that deserved punishment.
He said Gen Pinochet's "fragile" claim to immunity was based on the assertion that he did not personally commit such crimes. But Lord Steyn said that flew in the face of an elementary principle of law that there was no distinction between "the man who strikes, and the man who orders another to strike".