Lawfare Daily: ‘38 Londres Street,’ Impunity, and Immunity with Philippe Sands

[Intro]

Philippe Sands: What's tantalizing is the possibility that there is a straight line that links Frank, Wächter, Rauff, Pinochet, and then the proceedings in London that land on my desk. It was that tantalizing idea that there could be a connection between a case that I did many years ago and what I'd written about in these three books.

Tyler McBrien: It's the Lawfare Podcast. I'm Tyler McBrien, managing editor of Lawfare, with Philippe Sands, a professor of law at the University of London and the Samuel Pisar visiting professor at Harvard Law School.

Philippe Sands: What is the right for country that has never investigated its own crimes to exercise jurisdictions over the crimes perpetrated in another country, which happens to be its former colony? This raises real concerns.

Tyler McBrien: Today, we're talking about Philippe's new book, “38 Londres Street,” on impunity, Pinochet in England, and a Nazi in Patagonia.

[Main Episode]

So, Philippe, one reviewer characterized your book as the concluding part of an extraordinary trilogy. I want to first just hear from you the origin of this latest installment, if you think of it like that, especially in the context of your past books.

Philippe Sands: Sure. Well, first off, it's terrific to be with you. It started off as one book called “East West Street,” and then it became a second book, “The Ratline.” And now this is the third.

It is indeed a trilogy. They are all interconnected. I'll explain why in a minute. But I fear, following Ukraine's occupation in large part by Russia, there may yet be a fourth that relates to the circumstances in which a new tribunal was created, the special tribunal, and the crime of aggression.

But maybe we can come back to that later. This is an accidental trilogy. I received an invitation back in 2010 from an obscure university, but to be very honest, I've never heard of. The University of Lviv, the law faculty. Would I come and give a talk of the cases I've done in the international courts on crimes against humanity and genocide?

And I accept once I discover that Lviv is Lemberg, and that's where my grandfather happened to be born. And so I toddle off to Lviv with many members of my family to basically find the house where my grandfather was born and lived for the first 10 years of his life before moving to Vienna.

And then I stumbled across these rather curious coincidences. The man who put the concept of crimes against humanity into international law, working with Robert Jackson, the former, well, the Supreme Court Justice, Hersch Lauterpacht, studied at the law school that had invited me and the folks who invited me didn't know that.

Then I discovered that the man who invented the word ‘genocide’ literally also studied at the University of Lviv. And the folks didn't know that. And so, I started writing a book about the three men: Lauterpacht, Lemkin, my grandfather Leon. And into the story came a fourth man, Hans Frank, who had been Adolf Hitler's lawyer.

And he then connects directly to his deputy Otto Wächter, who is responsible for much of the mayhem and murder that happens across Poland, occupied Poland. And he becomes the central character in “The Ratline.” He dies in mysterious circumstances in Rome in 1949. Otto Wächter’s son Horst very kindly gave me access to the parents' entire family archive.

And in that archive I find a letter. It's about 2014. The letter is sent from Damascus. It is written by a top Nazi called Walter Rauff, the man who operated the mobile gas vans across Central Eastern Europe. And Rauff writes to Wächter in May 1949, advising him to avoid the Arab world and head to South America.

Because Rauff himself ended up living in Chile, and maybe we can get into the circumstances, that rang a bell. It tweaked my imagination, because many years earlier in 1998, I'd become involved in the Pinochet case, when he was arrested in London on a warrant issued from Spain by a judge called Baltasar Garzón for genocide and crimes against humanity, ironically enough.

And so I put the two things together, Pinochet and Rauff. Was there a connection?

Tyler McBrien: You mentioned a couple personal connections already. I, I tend to think of you as the sort of, a Forrest Gump of international law. You seem to be tied to, to many of these historical events, sometimes in quite significant ways, sometimes just in, in incidental ways.

But one of the, I think, connections in the former category is your role in the Pinochet case, which could have gone either way, on either side, rather. Can you speak a bit about that, of, of how you came to be involved in the Pinochet case and on which side you ultimately did intervene or contribute?

Philippe Sands: Indeed, I'm, I'm wondering whether Forrest Gump is better or worse than Zelig, which is the other character I'm sometimes compared to. I'll take either or both even. So, Augusto Pinochet is arrested on the evening of the 16th of October, 1998. He's in the London Clinic, in the center of London on Devonshire Place.

This arrest warrant has arrived. A magistrate signs the arrest warrant at about eight o'clock in the evening. In fact, the arrest warrant is signed about a hundred yards from where I'm sitting because the magistrate happened to be my next door neighbor, Nicholas Evans. But I only would discover that later on.

Tyler McBrien: Along with John le Carré, if I'm not mistaken.

Philippe Sands: It’s very, very peculiar what happens in this part of the world. But entertaining, it has to be said.

So, two weeks pass, I'm in Paris. I'm working on a case at the International Court of Justice Hungary, a dispute between Hungary and Slovakia, about a couple of barrages on the Danube River. But it's also my grandfather's stone-setting in Paris, and I leave my hotel where we're working.

I receive a phone call as I'm leaving from my barrister’s chambers in London informing me that Augusto Pinochet's lawyers have been in touch. They would like to retain me to argue that he has absolute immunity from the jurisdiction of the English courts as a former president of Chile.

Open parentheses: this, of course, will ring certain bells in the US right now in relation to other issues concerning immunities of former presidents. Maybe we can come back to that.

Tyler McBrien: I think listener ears are prickling right now, so I, yes, we definitely should.

Philippe Sands: Well, I've just actually finished writing a long article for The Atlantic, which is going to appear very shortly on the relationship between the Pinochet decisions and the Supreme Court's ruling of July 2024 on the immunity of a former president of the United States.

I, I'm fascinated by the issues and the comparison. So, so Pinochet's arrested, two weeks have passed. I'm in Paris. I head off to the cemetery. I meet my wife who's come directly from London and who is a lawyer, a New Yorker actually, and explained to her frankly, with some excitement, that Pinochet’s lawyers have been in touch.

For your listeners, it's important to understand that I'm a member of the Bar of England and Wales, and one of our rules is something called the cab-rank principle. We're like cab drivers. We are hailed by a passerby. We are not allowed to say we don't like them. We don't like their politics, we don't like the color of their skin or whatever.

We have to take the case. There, there are exceptions. And I'm a very strong supporter of the cab rank principle. I act, you know, across the board, lots of people, some people I agree with, some people I don't agree with, whatever. My wife is an American. She's not partial to the cab rank principle, and she thinks it's bullshit actually, and that we should just do the cases we want to do.

And I say to her, well. She says, will you do it. And I said, well, cab rank principle. And she says, well, you know what I think of the cab rank principle. And I say, yes, but it's my rules. And she says, fine, okay, do it if you want to do it. But if you do it, I will divorce you tomorrow. So I didn't do it.

And we are happily married 25 or so years later. I was able to get out of it because I did––it was the pre-internet age. I went into the BBC five days earlier and did a, an interview on the World Service in my capacity as an academic. I'd just been appointed professor of international law at London University, and I was solicited by the BBC to basically have a chat. Does a former head of state have immunity where the allegation concerns and international crime genocide, crime against humanity, torture?

And I said, we don't know, in the national courts, because it's literally never happened before. And no one has previously been arrested. No, no former head of state of one country has been arrested in another country on the allegation that they've been involved in an international crime.

It's an extension of universal jurisdiction and the Pinochet and the Nuremberg principles. But the journalist pushed me and pushed me, and then asked me eventually, what was my personal view. And I said that my personal view is, I can fully understand and support the idea that a serving head of state would have absolute immunity in their personal capacity as a serving head of state, unless of course their country has somehow waived that immunity. Which hadn't happened in, in the Pinochet case, I think.

But for a former head of state, for international crimes, the logic of what was done was Nuremberg. And the treaties that had been entered into by many countries of the world, including the U.S. and Britain and Spain and Chile, was no immunity.

And so, having expressed the view that he shouldn't have immunity, I could take advantage of something called the professional embarrassment exception. Namely, I would be arguing in court for principle that I had publicly decried.

I, I mean, English law is full of rules, and there are always about 37 exceptions to every rule. So I didn't do it. And I remained married. And three days later, Human Rights Watch came along and said, would I act against Pinochet?

I went and consulted with my New Yorker wife, and she gave me the thumbs up. And so I, I had a seat at the top table, but we had a minor role for Human Rights Watch. They were interveners, but I was there in the room. That was the significance. And actually, later, when Pinochet argued he was unfit to stand trial, I was hired by the Belgian government to obtain access to his medical records. So I was involved throughout the detention in London.

Tyler McBrien: As an American, I'd be curious what your wife makes of the, the Forrest Gump comparison. But I'll, I'll have to follow up with you on that.

Philippe Sands: I'm going to ask her as soon as we're done.

Tyler McBrien: So you, you end up, in the book, very deftly intertwining the story of Pinochet––not only his arrest and the legal battle over his extradition, but also his past and his, his deeds as an authoritarian regime in Chile––you intertwine that with the story of Walther Rauff.

So can you just play out those stories for me? In what ways did these two men cross paths? In what ways did their stories intersect? Sometimes even––I, I was really fascinating when you, you speculated that, you know, they may have even crossed paths before they knew it in terms of the, the ship going by where, where Pinochet was in, I guess, you know, secondary school of some kind.

But can you, unwind those, those two intertwined stories for me?

Philippe Sands: Sure. Well, I, I think that the point of centrality is that a Augusto Pinochet, when he came to power in his coup d’etat in September 1973, very soon people started being taken off the streets, disappeared, interrogated, and then tortured. And then very often disappeared or killed in the thousands.

And to this day, 1300 people are still unaccounted for and missing. So it was a very, very far-reaching, interference with the basic rights. I mean, the constitution of Chile was in effect suspended and, lots of crimes were committed. But throughout his tenure––and he stayed in office until 1990––there was a blanket, impunity and immunity. Because he adopted a, an amnesty law in 1977 to stop any proceedings of a criminal nature in relation to his regime.

And that actually remains in force today, astonishingly. We can come back to that.

The amnesty rules, incidentally, were a consequence of a killing that took place in Washington D.C. in September 1976, when Pinochet ordered this assassination of Salvador Allende, his predecessor president in Chile. And Orlando Letelier was murdered in, just off DuPont Circle in Washington, D.C. His car was blown up. And that caused lots of mayhem. And the Americans then really began to pull the plug on lots of the support that, that, it was said, they were giving.

So that was the area of interest. Now, I go back to this letter from 1949, Rauff has been disappearing people, if you like, in 1941 and 1942, he operates hundreds of mobile gas fans, that gas groups of people, groups of 50 people, to their deaths. And hundreds of thousands of people are killed in this way in 1941 and 1942.

And when I saw the letter and learned that he had ended up in Chile, I asked myself the question, it was a sort of litigator's hunch. Could it be that Rauff might have assisted Pinochet in some way and could it be that the crimes of Rauff in that sense ended up on my desk in London in ’98 and ’99? That was the sort of thing that, that I was interested in exploring.

So I traced Rauff's life. You’re absolutely right––they did cross paths in a general geographic sense as early as 1925. Pinochet was a schoolboy in Valparaiso, and at the time Rauff was in the German Navy. And the German navy boat that he's on, the SS Berlin, stops in Valparaiso for a few days. So I do like to imagine them passing each other perhaps on the street, although I have no evidence whatsoever that that happened.

Fast forward to 1945, Rauff is hunted by the Americans, the British, the Soviets, Jews, I mean, lots of people for mass murder, for genocide, crimes against humanity. And he escapes. He's captured, actually, by the British in Milan. He escapes and he heads to Syria. He spends a bit of time there, and then follows his own advice and decides to move to South America, and heads with his wife and two children to Quito, Ecuador where he becomes a motor mechanic for Mercedes-Benz and then a small businessman.

Sort of, you know, I, I'm the kind of person who grew up on Monty Python type of humor, so the idea that the man who ran the mobile gas vans is now working for the Mercedes-Benz concession in Quito is the kind of thing that lightens up the imagination in terms of awfulness.

They make a new life there, and a good life. And he, he's secure and he's comfortable. Using his own name, incidentally. And then in 1956, the Rauffs meet a charming Chilean couple, and they befriend them and they have dinners at their, each other's homes, and so on and so forth. And Chileans say, look, you're in the wrong country.

Head to Chile. And they do. In 1958, they and the two boys move to Chile and Rauff ends up in the town, the most southerly town in the whole world, Punta Arenas, where he becomes the manager of a king crab cannery. You couldn't, it's very filmic. You couldn't really invent such stories. In 63, his past catches up with him.

He is arrested in Punta Arenas and shipped off to Santiago where there are extradition proceedings on a request from the West German Ministry of Justice that he be tried for crimes against humanity and genocide. Ironically, a parallel process, 35 years earlier, to the Pinochet proceedings.

He gets off because Chile has a 15 year statute of limitations. And the crimes have happened in ’41 and ’42. It's ’63. 21 years ago. So, the court rules by six to one he cannot be extradited. He goes back to Punta Arenas, his life blossoms, his wife passes away. He gets a new lady in his life. And then, on September the 11th, 1973, there is a coup d’etat.

Miracle of miracles. Rauff is elated. Why? Because the new man in charge is none other than his friend from Quito. The couple that Mr. And Mrs. Rauff had befriended were none other than Lucia and Augusto Pinochet. They'd known each other since ’56 and they had been in touch. So at that point I'm thinking, okay, they knew each other. Could it be that Rauff continued his nefarious work?

And that really is one major part of the book. It's detective work that takes 10 years to sort out, but it is in the end, I think, sorted out pretty clearly.

Tyler McBrien: Reading your books, I always get a sense that the world is just so small. Not only because of these people crossing paths who you never would think would, or, I mean, I guess you did have the hunch, but also because someone like Rauff went to the southernmost town, the, the edges of the world, and even there, his past caught up with him.

I'm curious, you know, whether you, you were shocked even by how bang-on your hunch was, at the extent of their connections. Because if I'm not mistaken, Rauff was not––there was not much publicly known about Rauff other than save a Bruce Chatwin reference in, in Patagonia or, or a thinly veiled character in Bolaño. I, I'm curious, you know, if you were even surprised by how deeply this, this intertwined story went.

Philippe Sands: Yeah, the literature is really fascinating. Where the judges fear to go, the writers did in fact go. And as you say, Bruce Chatwin came across him in Punta Arenas in the mid 1970s, and Bolaño wrote a novel about him, a marvelous novel in which he features––it's not about him, but he features––called “Nights in Chile.”

In, in fact, the other person who wrote about him––remarkably––this I dug up with help of a Chilean friend, was a newspaper op-ed piece, written in 1965 by the great Chilean poet, Pablo Neruda, who writes an op-ed about how appalled he is by the Chilean Supreme Court judgment, letting Rauff off the hook.

And then proceeding to say of Rauff, the one thing we can say was certain about this man is that he certainly knows all there is to know about vans. And given what I later discover, that is, I think, a remarkable piece of writing.

Look, I came across the letter that I originally mentioned in 2014. I did the first interview for the book in 2015. I went to interview Baltasar Garzón, the Spanish judge who'd issued the original arrest warrant in October ’98.

And I'm a slow sort of burn, so to speak. I, I've got my day job, I teach at UCL, at Harvard, whatever. I, I'm doing cases. So a good two or three hours a day, research, bit of writing. And frankly, for eight years, I didn't make the kind of headway I thought I might make.

And I was preparing to write a book, which in a sense would conclude that despite the many rumors, and the vast amount of smoke, I could not find a, a smoking gun, so to speak. I did not find any documents. One of the reasons I didn't find any documents is that the, the DINA, the Dirección de Inteligencia Nacional, Pinochet’s secret intelligence service, destroyed all the archives.

After the killing of Orlando Letelier, Pinochet’s right-hand man, Manuel Contreras, was removed from his post and in being removed, they sort of followed the lessons from Germany and destroyed the entire archive.

So, the view in Chile has always been there will be––there are, and there will be no documents. Although interestingly, as you know, because you've obviously read the book, that becomes very interesting later on, when it turns out there are documents. But we'll park that for a moment.

So it meant I had to talk to human beings. That was the only way to make any progress. And there are two categories, victims and perpetrators. And, and the first breakthrough really came when I found a man called Leon Gomez, who told me he'd been to 38 Londres Street.

For your, for your listeners viewers. 38 Londres Street is a real place. It is a, a street address in central Santiago about a, a kilometer from the presidential palace. It was the headquarters of the Socialist Party until September the 11th, 1973, the day of the coup d’etat. And then Pinochet personally acquires it, and it's turned into a detention, interrogation, torture, and disappearance center.

It's, it's still there today, unchanged. It's a museum today. I've spent quite a lot of time there. But I meet a man, now quite elderly––in fact, sadly, he passed away three months before the book came out, just earlier this year, so I was looking forward to giving him a copy of the book––who told me that as a 20-year-old student, he was arrested, taken off the streets, blindfolded, taken to 38 Londres Street, and interrogated and tortured over the course of a week. Actually with six other colleagues, all of whom disappeared. He is the only one who survived the experience.

And in the course of that interrogation and torture, he heard a German accent. And he managed to peep out from the bottom part of his blindfold and saw the face of a man he told me repeatedly and consistently he recognized. He recognized the face of Wälther Rauff.

Because, as a 10-year-old boy in 1963, he had been always very interested in history, and there were rumors that his family might, in some way, be partly Jewish. And so he was interested in things German and the Nazis and the Holocaust and this kind of thing. And he remembered the trial of Rauff in Santiago in ’63, when his photo was on the front page of every newspaper.

And he told me, he swore black and blue, Wälther Rauff interrogated me. And, and he first wrote about it in 1990, actually. He first mentions that in 1990. I've got one document. So that was the first breakthrough. I then meet other people who have been interrogated by him and who recognize him, although by the sound of his voice, not visually.

But, you know, as a courtroom litigator, it's not that I'm distrustful of victims' accounts, but I want more. I, I, you know––it's, it, it gets you part of the way, but you've always got this question. So I turn to the other side and I'm introduced eventually to two perpetrators, one of whom’s done time, the other one cuts a deal with the Chilean prosecutors because he was underage when he was involved in really heinous, heinous crimes.

And these two men eventually recognize the photographs that I show them without knowing the name of the person. Remarkable moments. And I then go on a journey across Chile because I want to test their accounts. I want to go to the places where they say they have seen this man and be with them to be given, if you like, confirmation that what they describe actually most likely happened.

And that's what I then do. And that was a little scarier, I have to say, because these are two individuals who have been involved in the disappearance and killing of quite a significant number of people. And I went with a colleague and, and got, I think to the truth.

But you know, my style of writing is not to impose my conclusions on the reader. Readers are smart, they're really smart, and I think my job is just to lay out the material and leave it to the readers to form their own view about what is what.

Tyler McBrien: I almost hesitate to ask this next question on the Lawfare Podcast, which is, you know, we don't shy away from the, the legal thicket and the details, but it, it struck me reading that the simply the story of Pinochet's arrest and ensuing battle over his extradition is thrilling enough.

And there are these amazing, seemingly insignificant decisions at the time on which the entire story turns the, you know, the prosecutor writing up the, or the judge writing up the warrant waiting until 2:58 PM on a Friday, because he knew that the, the conservative chief prosecutor probably was knocking off early that day and, and therefore, you know, couldn't be stopped, et cetera.

Why go beyond that and, and dedicate so many pages and, and put yourself at risk to, to tell the victim's stories as well and, and to track down the veracity of these testimonies? Why include that as well? With an already, like I said, pretty amazing story of, of the Pinochet arrest.

Philippe Sands: Well, I mean there, there are many answers to that.

One is that I love rabbit holes and going down them and seeing what I can find. But I suppose the answer to that question is as follows. You know, “East West Street” was about really Hans Frank's crimes and his role in the Nuremberg trial, and I had a connection to that essentially through my grandfather.

Then I'm passed on to Otto Wächter, and that's very direct because Wächter has been responsible for the murder of my grandfather's entire family in Lviv. And I learned, through this letter, that Wächter and Rauff knew each other. They, they were comrades in the same SS building as Adolf Eichmann and Heinrich Himmler and Reinhardt Heydrich from 1937 onwards.

And so what's tantalizing is the possibility that there is a straight line that links Frank, Wächter, Rauff, Pinochet, and then the proceedings in London that land on my desk, it was that tantalizing idea that there could be a connection between a case that I did many years ago and what I'd written about in, in these three books.

And of course, it's not that I was purposely looking for that. It was a curiosity. And, and as you've said, there are, there are strange coincidences that come up in all of this. And one, of course, that's quite central in the book because it throws up new characters, is that I learned in the course of writing this book that there's a very personal family connection to the Pinochet case that I did not know about.

I mean, let's not forget this case starts in October ’98. Actually, it starts earlier. And I, I'm, you know, starting to write this book. In May 2021, “The Ratline” comes out in Spanish, published by Anna Grammar. And I get a message from my editor in Barcelona that a Spanish prosecutor would like to reach out to me, is it okay to give him my email? Of course.

He gets in touch. We have a long conversation. It's COVID, and so it's by Zoom and he explains to me how the Pinochet case started. I, I didn't know this. I, you know, we always thought that Baltasar Garzón, the famous and somewhat notorious judge in Madrid had been the one who started it, but it wasn't. It was this man called Carlos Castresana, who is a prosecutor who in April ’96 gets a visit from a series of Chilean refugees in Spain who say to him, we've watched some of the cases that have been brought against the dictators in Argentina.

Could you think about looking into the crimes of Augusto Pinochet? He says yes, he goes away, he researches the facts, he looks at the legal basis in Spain for universal jurisdiction, and then summons them back to his office and says, yes, I––there is a basis to proceed, but I have to tell you, we have very conservative judges in Spain and in order to open the door to universal jurisdiction, although strictly we do not need a Spanish victim, for the optics of things, I think we're more likely to get a judge to bite if we can put a Spanish victim into the mix.

And so they go away. They come back with four Spanish victims and Castresana selects one, a man named Carmelo Soria, who comes from a very distinguished and well-known Spanish family. And he was disappeared on the 14th of July, 1976. He was the head of the UN office in Santiago, so he has a diplomatic immunity, but he's disappeared and his corpse turns up two days later in a canal.

He's been murdered by the Pinochet regime because of his leftist sympathies. And with the case of Carmelo Soria in July at 96, Castresana goes off to a court, I think it's in Valencia, and the proceedings are opened by a judge. And that leads, two years later, to the arrest of Pinochet in London via the warrant issued by Baltasar Garzón, with many sort of intervening procedural issues that I don't need to bore you with.

So this story interests me. I've never heard of this guy Carmela Soria, but I share the story with––I happen to be staying with my mother-in-law who spends half the year in New York and half the year in Totnes in Devon, in the west of England, because that's where she went when she was a child. She was a refugee from the Spanish Civil War.

And I tell her the story. And at a certain point she looks at me and says, what was the name again, Philippe, of the Spanish gentleman who was disappeared in, in 1976? And I say, Carmelo Soria, I've never heard of him. His name is Carmela Soria. And she looks at me and she says, of course, of course I'd forgotten. Cousin Carmelo.

And with those words, I learned that my wife, and hence me, had this whole Chilean family. Within an hour we were on the phone to relatives in Spain and Chile, and a couple of weeks later, I'm, I'm meeting Carmelo Soria’s widow and his daughter Carmen, who become central characters, as you know, in the story.

So this is 23 years after the Pinochet case. We had no idea there was a family connection. That's the curiosities of doing this kind of research.

Tyler McBrien: I have to say. I mean, that scene occurs fairly early on in the book. But it was at that point where I, I just thought if this was a novel or fiction, this is where you jump the shark.

It's, it's just, it's stranger than fiction. And I, and my, my jaw kind of, you know, hit the floor when I, when––when you revealed that.

Philippe Sands: It has not only been bought to be made into a movie, the Pinochet part of it, but they've already got all their funding and we've already got a screenplay. Because they got involved a year before the book was out, they heard that it was coming.

And I've been working with the filmmakers, a couple of Chileans who live in Paris. And they said exactly the same thing. I mean, people are not going to believe aspects of this story.

But, but I think what is––you know this from the work you do on Lawfare, and I, you know, I'm a regular listener and reader, and we sort of learn that when we imagine there's a huge, vast conspiracy out there that makes things happen, actually, very often, it's much more prosaic than that.

It's some accident that causes some individual to do something. I mean, in this case, the accident that really stands out for me, and no one knew this until I published the book. We come to October 1998, to two years after Castresana has got the ball rolling. And Baltasar Garzón, the judge in Madrid, learns that Pinochet is in London, and he decides he's going to send Pinochet some interrogatories, some questions, no more than that.

A list of questions about his involvement in certain allegations that may or may not be crimes that involve Pinochet. And he spends four days doing that. And we get to Friday, the 16th of October when Garzón receives a phone call from the number two in the British Embassy, a man called John Dew, who, as you know, I also tracked down to get confirmation about what happened.

And as Garzón tells me, he had been involved in a big issue concerning money laundering in Gibraltar. And as John Dew told me, the number two in the British Embassy, Garzón had been very helpful to the British in relation to dealing with a money laundering issue. For your, for your listeners, Britain and Spain have a certain tension over sovereignty of Gibraltar.

It's a very contentious issue. But John Dew wanted to express his appreciation of what Garzón had done. And as he told me, I'd picked up that Pinochet was on a flight home the next morning, Saturday the 17th. So I thought I'd, I'd help Garzón 'cause he'd helped us. So I called him up and I told him that Pinochet was leaving the next day for Chile, and if he wanted to do anything, he would need to move quite quickly.

Garzón then tells me, he rips up instantly the list of questions he's prepared to send to Pinochet. And in the space of an hour, he writes out an arrest warrant, a request that he be extradited to London. That is what makes its way to London on the afternoon.

Tyler McBrien: By hand, correct?.

Philippe Sands: By fax. It goes by fax, it's the old days of fax, to Scotland Yard. And of course you are absolutely right. Garzón knows that his boss, the most senior judge, there's no way he's going to sign on off on this. He's a conservative fellow and he is going to say, well, let's wait, let's look into it. By then, it's going to be too late.

So Garzón does indeed wait until 2:58, knowing that it's a Friday, and that the chief judge will always leave a few minutes before three o'clock, and they then all go off to watch bull fights as one does in Spain on a Friday evening. And the letter request makes its way to London.

If John Dew had not called Baltasar Garzón on the morning of the 16th, none of this would've happened. And this is not conspiracy. I mean, I've checked out, was Dew acting on instructions. He was just trying to be helpful to someone who had done a decent turn for him. That, as we know, is how life often happens in these grand cases.

Tyler McBrien: I want to turn to, to some of the, the legal issues and the legal challenges.

In some ways the task of arresting Pinochet deals with very basic legal questions. Who has standing? What's the jurisdiction? What's the proper venue? Which crimes under which statute? But in every other way, this is totally unprecedented, as you, as you mentioned. So, I want to put just how unprecedented it is into perspective and, and talk about the issue of immunity here.

The, I think your books, the trilogy is, is, is also a, a history of the major convulsions in international criminal law in the 20th century and beyond. What did the arrest of Pinochet change in international criminal law, and what is its legacy today?

Philippe Sands: It, it's a huge, it's a huge question and it's very important right now for reasons I think we all understand.

I, I think the starting point really is Nuremberg, 1945, June. They're drafting the statute, and inserted into the statute is a provision which says everyone is subject to the jurisdiction of the International Military Tribunal. And that includes heads of state, former heads of state. o one has immunity.

And indeed, I've recently had caused to dig up the origins of that ruling, and it was really driven by Robert Jackson, who of course is the chief prosecutor. He's on leave from the Supreme Court and he writes a letter to President Truman, as it then is, who has succeeded Roosevelt.

And he writes––this is very interesting in terms of what's happening now––he says, Mr. President, immunity is an obsolete relic of a bygone age. And it's not what we do in the United States and we in Nuremberg are going with the modern times.

No one is above the law. There will be no immunity where the crimes within our jurisdiction are, are in issue. Fascinating moment, and Jackson has an absolutely key role in that moment, ironically enough, given the recent Supreme Court judgment. Perhaps we can come back to that.

So Nuremberg proceeds on the basis, no immunity. Of course, as we know, nothing happens for 50 years until we get Yugoslavia, Rwanda and the International Criminal Court in the mid 1990s, 1998, all of which have no immunity provisions in relation to any person who's within the jurisdiction of the court for these international crimes.

In parallel, various international treaties have been adopted. The Convention against, on the Prevention and Punishment of Genocide, which has a clear provision on no immunity, and then another convention, the Convention against Torture of 1984, which is totally silent on the question of immunity.

And so by the time Pinochet is arrested, the position I think is pretty clear––that before international courts or tribunals, there's no immunity for a former head of state who is subject to the jurisdiction of that court or tribunal. Provided, of course, the state concerned has accepted the loss of immunity.

This is a very important point in relation to the exercise of jurisdiction right now by the International Criminal Court in relation to Mr. Putin, head of State of Russia, and Mr. Netanyahu, head of government of Israel. Neither of those two countries are parties to the statute of the International Criminal Court, which raises a question as to the immunity of those two individuals.

But by the time Pinochet is arrested, the question of immunity before international tribunals is broadly considered by academics to be settled. What has never been addressed is immunities before the national courts. What happens if a former head of state finds himself or herself hauled up before a national court and charged with an international crime? Genocide, crime against humanity, disappearance, torture, whatever.

And that's the significance of the Pinochet moment. It's never happened. That's why, when I was asked the question on BBC World Service, I said, we just don't know. We, we have no idea. We're in totally uncharted waters, and the House of Lords ruling is absolutely crucial.

In fact, as you know from the book, there were two rulings. The first ruling went very far in saying there's no immunity before national courts for former heads of state for international crimes as a matter of general international law. That ruling is set aside when an issue arises as to the independence of one of the judges in the majority in that decision.

And there's then, a case returns, t was sort of Groundhog Day, it was an amazing experience to sit through exactly the same case before the same court, but a different panel of judges. And in the Second House of Lords judgment, actually known as Pinochet no. 3, the panel––a different group of seven judges––say, no, there's no loss of immunity under general international law.

The loss of immunity arises by the entry into force and the operation of a treaty to which Britain, Chile, and Spain are all party. Namely, the convention against Torture of 1984, which enters into force in December 1988. And the logic of the argument is that because that treaty is silent on immunity, and because it says any person within the jurisdiction of a contracting party of the treaty is subject to either extradition to a country where they'll be prosecuted or prosecuted in that country, the majority six to one vote that there is no immunity in the treaty.

But that loss of immunity is limited in time. It only cuts in in October or December 1988. There are two different views by the judges, who split on the precise moment. And that means that everything that's happened before December 1988, he has immunity.

The loss of immunity only happens after December 1988. And as one of the judges says, there's a single case of torture after that date, and we therefore have our doubts as to whether he can be extradited to Spain. That's what the judges say very clearly.

But of course, what then happens is the prosecutors in Spain find another 35 cases of actual torture, and then they add the 1300 cases of disappearance, on the theory that when you disappear a person, until their whereabouts is determined, their next of kin are effectively being tortured by the loss of knowledge of where, of where they are and what has happened to them.

And so, the English courts then proceed into ’99 and early 2000s to determine that actually that's hundreds if not thousands of cases of disappearance on which, as a continuing violation, there is no immunity.

And so the precedent is set for the first time in the Pinochet case, and that has now been followed in many other jurisdictions. Most recently, the French courts, the Cour du Cassation ruled just a few weeks ago that President Assad could claim immunity while he was head of state for acts of torture alleged, but cannot have immunity once he is out of office.

And that, incidentally, is the same basis on which investigators or prosecutors in Canada and in Switzerland raised questions about waterboarding as an act of torture, and the possibility of asking questions of a former U.S. president if they visited those countries, causing visits to be canceled. That all dates back to Pinochet, which all dates back to Nuremberg.

Tyler McBrien: I'm curious whether you care to speculate or if you actually tracked down the question of whether you think that Second House of Lords ruling that deemed everything before the convention on torture to sort of, you know, still assume immunity for any official acts that Pinochet committed and which then subsequently narrowed the crimes to a single allegation.

Whether that was a decision on the basis of legal reasoning purely, or if there were other political or geopolitical machinations at play.

Philippe Sands: Look, any senior court, any top court, the House of Londs today, it's called the Supreme Court of the United Kingdom, is always, I––I'm not sure I'd call them machinations, but I would say that the interpretation and the application of the law is always subject to factors that arise outside of pure law.

I've been doing law for 40 years. Show me a court where that doesn't happen. I've not come across it. It's not that they're not applying the law; it's that, in the manner in which they apply the law, they're having regard to the consequences. My own read of what happened was that they disagreed.

Or they, they make it clear they disagree with Pinochet, number one. They thought that court went too far. What that court did was it voted three votes to two that there is no immunity whatsoever under customary international law. And the second panel says no, that goes too far. There's no state practice in support of that.

Personally, I'm with the second court. I thought, I mean, I, you know, I was for Human Rights Watch, I was pleased with the judgment, but I wondered, really, whether there was a legal basis to go as far as they did. And so I'm actually more comfortable with the second judgment because I do believe that the law has to develop in an incremental way, bit by bit, and the second judgment was a safer way.

Put yourself in the position of the judges of the House of Lords sitting on that second panel. The first judgment of the House of Lords has been front page news on literally every newspaper in the world, okay?

It then turns out, thanks to the intervention of a Chilean senator, Mrs. Mata, that one of the judges in the majority––it was only three to two––Lord Hoffman had a close connection with Amnesty International, who were interveners in the case. And so Pinochet, through his lawyers, applies to set aside the judgment. Huge embarrassment that this has come up.

And the law lords, and I think this is just excellent judicial action, set aside their own judgment, something that has not happened in 800 years. Seen as very humiliating, but actually I think it's the opposite. I think it shows how the law should work. It was the right decision, plainly it was the right decision. And so the next panel has to clean up the mess. So, what do you do if you're cleaning up the mess?

You know, if you say he has total immunity. You are, you risk really undermining the law you've directly contradicted. And so I think the way out is basically to say, okay, no immunity, but on the most limited of basis, with a strong recommendation to the home secretary to revisit his authority to proceed in allowing the extradition to go ahead.

And my reading of the judgment is that it was a sort of realpolitik in the circumstances of the totality of what had happened And, and I think we all know that's how the law is, and we should accept that. And part of the reason I write my books as I do is that my students will understand the reality of the law.

It's not a critique of the law to say that this is how things work. It's just recognizing that the law doesn't operate in a political vacuum. It operates in the context of broader societal developments.

Tyler McBrien: Speaking of realpolitik and the, the many factors that go into legal reasoning, and I guess in the spirit of completionism, can you just finish out the, the Pinochet story? And perhaps contrast what the general consensus or, or the popular narrative of that and, and then maybe what or you found in, in the  Blair government speaking with, with some of the people involved in the case and how that may contrast?

Philippe Sands: Look, as with any big issue like this, views are deeply divided. We live in a divided world today, but the world was equally divided then within Chile. The population probably split 50 50. 50% of the people were outraged that he'd been arrested in London and that he was going to be extradited to Spain. And the rest, the other 50% wanted him, you know, to be sent to Madrid and have his head cut off basically.

And those divisions continue, incidentally, in Chile today. But interestingly, even amongst people who might be said to be on the left, there was a concern about him going to Madrid.

Why? Spain is the former colonial power of Chile. And so there's a sort of optics problem with the former colonizer, basically taking jurisdiction over the crimes perpetrated by a later leader of its former colony.

But even more significantly, Spain has never prosecuted, never even investigated, the crimes of the Franco regime from 1938 to 1976 or thereabouts. And this leaves a very bad taste with a lot of people. And I say I myself have a certain doubt, not not of the legal basis for Spain to exercise jurisdiction, but you might call it the sort of the moral basis, the, the political basis.

What is the right of a country that has never investigated its own crimes to exercise jurisdictions over the crimes perpetrated in another country, which happens to be its former colony? This raises real concerns. And so I, I have––and you've picked this up in the book, a sort of internal division. I don't get off the fence on this issue.

Some of my friends were outraged that he was never sent to Spain. I also look at this in a more complex way. You know, as I mentioned earlier, Pinochet had a blanket immunity from 1973 until 2000, nearly 50 years. He returns in March 2000, and when he returns, the Chilean Supreme Court strips him of his immunity.

He is indicted serially, and by the time he dies in 2006, although he has not been tried, he's under house arrest and living in, under very reduced conditions, shall we say. So, I remember, back in 2000, when it was going on, we were very suspicious about the claim put forward first by Pinochet’s lawyers himself, and then by the Home Office in the United Kingdom, the British government that Pinochet was unfit for trial.

And that he had to go back to Chile because he could not, he could not cope in a trial. And they got four top-notch medics to issue opinions saying he was unfit for trial. But in the proceedings to get hold of those medical reports, we saw the medical reports, they, they were not convincing. And, and one smelt a rat, but no one knew what exactly had happened. No one had evidence.

And so the other big investigation in this book is, what really happened? And again, just as with the Rauff involvement, it was only right at the end of the detective work, so to speak––again, through talking to people, because there are no documents––that I find the lead Chilean interlocutor with the British, a remarkable man called Christian Toloza who tells me what happened.

He says, 25 years have passed. I'm going to tell you the story. Cut to the chase. There was a deal. I then went to the British side and dealt with a British interlocutor, Jonathan Powell, a remarkable individual who was Tony Blair's chief of staff in pretty much the whole of his, you know, premiership and who is the architect of the Good Friday agreement.

So, someone who really, I think, I and pretty much everyone in the UK has huge respect for. And he agreed to meet me and he confirmed everything Toloza had told me. In other words, there was a deal, but what was interesting was the British wanted something out of the deal. And what they wanted was that Pinochet would lose his immunity when he went back. And they wanted evidence, not just assertions by the Chileans, that that would happen.

And they said, we want documentary evidence. And remarkably, Toloza comes to London with a document, a document that had never been seen in Chile in 50 years. None of the judges had seen it. Its existence had been denied, involving an act of killing in October ’73, the Caravan de la Muerta, the Caravan of Death killings, where a hit squad goes around the country, executing 90 or so top political and union leaders.

And he brings a document to London with Pinochet's signature on it, confirming that Pinochet ordered it. And Jonathan Powell tells me, I have a copy of that. And it's in the archive somewhere, I don't know where, but I saw it. And on that basis, we allowed him to go back.

Pinochet goes back, and of course the doors of justice finally opened in Chile. They'd been closed until that point. They had never been a trial of any person involved in Chile for crimes perpetrated in Chile. And one reading of what happened is the arrest brought a degree of justice to the Chilean legal system. And that's why it's not a story, in my view, of absolute impunity.

And reasonable people can disagree as to the merits and demerits of Chile versus Madrid. And, and I leave it to the reader to form their own view. I don't express a view on that because I know there are very divided views on that.

Tyler McBrien: I'm going to force myself to turn to the final question because I could sit here and waste your entire day and, and continue to ask you about the stories. But I, I take it that you're in, in preparing the, the U.S. version, your editors asked you, or perhaps you were already thinking about including a bit about the July 2024 Supreme Court decision Trump v. United States on immunity for official acts.

I also went digging in the, the end notes, and I saw a familiar name of Jack Goldsmith, one of Lawfare’s founders, and the article that he wrote. As we, as we turn to the end here, can you just speak a bit about how you thought of the immunity decision in the U.S. Supreme Court––vis-à-vis this, this entire narrative that you told––why it was so appropriate to include?

Philippe Sands: Well-spotted. The English edition doesn't have that material because it, you know, I didn't think it was of interest to English readers, although it turns out it is. So I'm going to have to now revise the English. In fact, I think now it does have, the latest printings do have that in. But for the U.S. edition it had to be included.

The Supreme Court, as you know, but for European listeners, votes by six to three to determine that a former U.S. president has absolute immunity in the exercise of core constitutional powers and presumptive immunity in relation to all other exercises of power. That is a sort of fuzzy separation. We don’t know exactly what that's going to mean in practice.

But it doesn't take a rocket scientist to realize that it is possible that within the core constitutional powers, which includes elements of foreign relations and intelligence and anti-terror, you could find a scenario in which an allegation of an international crime comes up. And I put it no higher than this because the judgment of the Supreme Court did not deal with international crimes.

And that needs to be said very, very clearly, and it may well be that they, we'll revisit that issue. But even on the drafting, and I entirely share Jack Goldsmith's interpretation of the quality of the drafting and the reasoning, it, it's very––I'll be polite here, very troublesome from the Supreme Court of the United States.

There's no real reasoning there. Interestingly, and I, I'll say a little bit more about where you can read this shortly, I went and interviewed one of the judges who sat on the Pinochet case in the House of Lords, David Hope, Lord Hope, and interviewed him about the Supreme Court judgment, and he was pretty despondent.

He described the principal argument justifying the absolute immunity rule, which appears to be that we can't have a president worrying about the risk of criminal proceedings when taking important decisions.

His words are “absolutely ridiculous.” That's the view from outside the United States from a very conservative judge. And Lord Sumption, who is even more conservative, has an even stronger view about this.

It, it has been met by reasonable people outside the U.S. with almost incredulity. I've written a lengthy piece, 4,000 words, which will come out in the Atlantic Magazine comparing the two. Of course, I've caveated what I write because the Supreme Court justices don't deal with international crimes and you've got to leave a space open.

But if they were, they may come back differently, particularly where Congress has legislated on shared powers, which it has, in relation to torture and genocide. So, we just don't quite know where the lines are, but expressing grave concerns that they appear to have imagined that it is possible that a U.S. president who engages in torture or disappearance or crimes against humanity or even genocide would or could have an absolute immunity or even a presumptive immunity, even once he's out of office.

So, that has very significant consequences, and I end the piece in the Atlantic by imagining not the letter written by Robert Jackson in June 1945, but imagining John Roberts writing that letter. And that is really troubling. I took the liberty of taking the reasoning of John Roberts in the Supreme Court judgment of July 2024 and putting it into the letter sent by Robert Jackson.

It's not a happy letter. This is what I've put in the end of the Atlantic piece. The approach and tone adopted by the words of the chief justice in the 2024 Supreme Court decision are regrettable. They invite us to imagine the very different kind of letter, think of it as a thought experiment, that might have been sent to President Truman if it had been John Roberts rather than Robert Jackson, who was invited to draft the charter of the Nuremberg Tribunal back in 1945.

And here is how I imagine the letter. “We have decided to maintain the idea of immunity for former leaders, to ensure that they are not enfeebled or made overly cautious by the fear of criminal prosecution after they leave office. We've concluded that immunity is not an obsolete doctrine or a relic of the doctrine of the divine right of kings.

It is a vital, necessary and living thing. It is fully consistent with the position we take towards our own former presidents. We accept the paradox that legal responsibility should be the least where power is the greatest, including in relation to crimes under international law. Where official conduct is concerned, we accept that a president is under God, but not that he is under the law.”

Tyler McBrien: To that thought experiment, I say, if only.

Philippe Sands: I mean the, the original Jackson letter is a remarkable moment, and I think it's the reason why one can imagine a sort of paradigm shift that is taking place right now.

Now it's a long game ahead, we don't know where this is all going to head up, but immunity is a sort of canary in the coal mine for trying to see where things might go. And I think it will require others who have far more knowledge about the U.S. Constitution than I do and the interpretation of U.S. Supreme Court decisions.

Obviously, I've consulted with various people who are, who are knowledgeable. It's not my area. But the letter by Robert Jackson is my area. It was a remarkable letter. It changed the world. The House of Lords in Pinochet essentially followed the Jackson approach. And it seems we're now on the edge of a rather different world if the Supreme Court is to be followed.

And my, my thesis in the piece is that the Supreme Court ruling threatens the international system, because it's likely to be picked up in other countries and in other places. And it will make it very difficult, in the future, for the U.S. to point the finger of accountability to foreign leaders who cross lines if their own president or presidents are going to benefit from either a blanket or a partial immunity in relation to international crime.

So it's a, it's a worrisome development is what I would say.

Tyler McBrien: Well, that piece will be out soon in the Atlantic. And the U.S. edition of your book, “38 Londres Street,” will be out October 7th in the United States. Philippe Sands, thank you so much for taking the time to walk me through this remarkable book. It's always a pleasure.

Philippe Sands: Thank you so much, Tyler. It's been great talking with you and hope to see you again very soon.

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