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

Summary

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The Lawfare Podcast

“38 Londres Street,” Impunity, and Immunity with Philippe Sands

Host: Tyler McBrien (Lawfare Institute)
Guest: Philippe Sands (Professor of Law, University of London; Samuel Pisar Visiting Professor, Harvard Law School)
Date: October 7, 2025

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Overview

In this episode, Tyler McBrien interviews renowned international lawyer and author Philippe Sands about his new book, 38 Londres Street: On Impunity, Pinochet in England and a Nazi in Patagonia. The discussion traverses the personal and historical threads that connect Nazi war criminal Walter Rauff and Chilean dictator Augusto Pinochet, explores landmark legal questions around impunity and immunity for international crimes, and reflects on the recent U.S. Supreme Court decision on presidential immunity. Sands elucidates how his trilogy of books traces the evolution of international criminal law through personal narrative and historical investigation.

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Key Discussion Points

The Origins of the Trilogy and "38 Londres Street"

• Accidental Beginnings
  • Sands recounts how a speaking invitation to the University of Lviv (Lemberg) led him to discover connections between his family and major architects of international law (Hersch Lauterpacht and Raphael Lemkin). (“This is an accidental trilogy. I received an invitation back in 2010 from an obscure university...I accept, once I discover that Lviv is Lemberg and that's where my grandfather happened to be born.” – Sands, 05:12)
• The Narrative Arc
  • Each book in the trilogy (East West Street, The Ratline, and now 38 Londres Street) connects personal family history to broader legal developments.
  • The story eventually traces a “straight line” from Nazi legal minds to crimes in Pinochet’s Chile.
• Personal Connection
  • Sands uncovers a familial link to a key victim in the origins of the Pinochet case, Carmelo Soria, making his investigation even more intimately connected. (“She says, of course, of course I’d forgotten cousin Carmelo.” – 34:07)

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Connecting Nazi Crimes to Pinochet: The Stories of Walter Rauff & Augusto Pinochet

• Walter Rauff’s Journey
  • Rauff, a top Nazi responsible for mobile gas vans, escapes to South America, ultimately settling and thriving in Chile.
  • There, Rauff befriends Pinochet and is rumored to play a role in the machinery of repression under the Pinochet regime.
  • Notably, Pablo Neruda wrote an Op-Ed condemning the Chilean Supreme Court’s refusal to extradite Rauff. (“The one thing we can say with certainty about this man is that he knows all there is to know about vans.” – paraphrasing Neruda, 22:15)
• Intersecting Paths With Pinochet
  • Sands explores tantalizing overlaps: Rauff's early presence in Chile, Pinochet's rise, and how the former Nazi could have influenced or assisted Pinochet’s security apparatus.
  • Detailed detective work reveals that victims and even perpetrators directly identified Rauff’s presence in notorious torture centers like 38 Londres Street. (“He recognized the face of Walter Rauff…he swore black and blue, 'Walter Rauff interrogated me.'” – 26:17)

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The Arrest and Legal Proceedings Against Pinochet

• Personal Role and “Cab Rank Principle”
  • Sands describes nearly acting for Pinochet (due to the barrister’s principle of taking any client)—derailed only by his wife’s firm ethical stance and his own public advocacy on the issue (“If you do it, I will divorce you tomorrow. So I didn’t do it.” – 11:32).
• The Watershed London Arrest
  • Pinochet’s 1998 arrest on a Spanish warrant marked the first time a former head of state was detained in another country on international criminal charges.
  • The backstory includes a remarkable series of chance events—a British embassy official’s helpful tip to Judge Garzon led to the warrant being issued in a “tiny window of opportunity.” (“If John Dew had not called Balthazar Garzon on the morning of the 16th, none of this would have happened.” – 38:42)
• Behind-the-Scenes Political Machinations
  • Both Chile and UK governments discreetly negotiated Pinochet’s post-extradition fate, ultimately ensuring (with documentary proof) he would face justice at home rather than in Spain. (“There was a deal...they wanted documentary evidence...they said, we want a document...with Pinochet’s signature on it, confirming that Pinochet ordered [killings].” – 62:11)

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Legal Legacy: Impunity, Immunity, and Universal Jurisdiction

• Nuremberg to Pinochet: The Evolution
  • Sands draws a direct line from the Nuremberg principles (no immunity for heads of state accused of international crimes) to the Pinochet case and beyond. (“Immunity is an obsolete relic of a bygone age...No one is above the law.” – quoting Robert Jackson, 46:35)
• Pinochet’s Legal Precedent
  • The House of Lords ultimately found that international treaties, particularly the Convention Against Torture, allowed for prosecution of former heads of state in national courts—though with temporal and technical limitations. (“The precedent is set for the first time in the Pinochet case. And that has now been followed in many other jurisdictions.” – 52:16)
  • Sands discusses the complexity and imperfections in the rulings, acknowledging the influence of realpolitik and judicial caution. (“My own read...is that they disagreed with Pinochet No. 1. They thought that court went too far.” – 54:24)
• Political and Ethical Dilemmas
  • Sands questions the legitimacy of a former colonial power (Spain) prosecuting Pinochet when it never addressed its own Francoist crimes, highlighting ongoing global tensions in the application of universal jurisdiction. (“What is the right of a country that has never investigated its own crimes to exercise jurisdiction over the crimes perpetrated in another country, which happens to be its former colony?” – 59:13)

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Modern Parallels: The U.S. Supreme Court's Immunity Ruling (Trump v. US, 2024)

• Comparative Legal Reasoning
  • Sands parallels the Pinochet decisions to the recent U.S. Supreme Court ruling granting (at least presumptive) immunity to former presidents for official acts—warning of the possible fallout for international accountability.
  • Quote: “It is possible that a US president who engages in torture or disappearance or crimes against humanity or even genocide would or could have an absolute immunity…” – 68:03
  • He underscores the incredulity of international legal minds regarding the U.S. decision, relaying Lord Hope’s assessment as “absolutely ridiculous.” (66:25)
• Implications for Rule of Law
  • Sands’ “thought experiment” imagines if Robert Jackson’s logic at Nuremberg had been replaced with the contemporary U.S. court’s reasoning, painting a grim picture for accountability and global leadership.
    • Quote: “We accept the paradox that legal responsibility should be the least where power is the greatest...” – 70:02

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Notable Quotes and Moments

• On personal discovery and history:
  • “The story interests me...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.” (34:07)
• On the randomness of history:
  • “Actually, very often it's much more prosaic than that. It's some accident that causes some individual to do something.” (35:41)
• On the power of the Pinochet precedent:
  • “That's why it's not a story, in my view, of absolute impunity...the arrest brought a degree of justice to the Chilean legal system.” (62:58)
• On the global consequences of U.S. immunity doctrine:
  • “It will make it very difficult in the future for the US 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 partial immunity...” (71:26)

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Timestamps of Key Segments

| Timestamp | Segment/Topic | |-----------|-----------------------------------------------------------------| | 03:16 | Opening discussion, origins of Sands’ trilogy | | 07:30 | Link between Walter Rauff and Pinochet | | 11:18 | The “cab rank principle” and Sands’ personal ethical dilemma | | 17:04 | Chasing Rauff’s and Pinochet’s interconnected stories | | 24:15 | Discovery of eyewitness testimony from victims & perpetrators | | 36:00 | The “accidents” behind the Pinochet arrest | | 45:42 | Evolution of immunity doctrine in international law | | 51:01 | House of Lords’ technical and temporal immunity rulings | | 54:24 | Realpolitik and judicial reasoning in the Pinochet case | | 59:13 | Doubts about Spanish claims to universal jurisdiction | | 62:11 | The deal to bring Pinochet back to Chile with evidence | | 64:35 | Discussion of the July 2024 U.S. Supreme Court immunity decision| | 68:22 | Sands’ “thought experiment” on Jackson v. Roberts on immunity | | 71:26 | Consequences of the US decision for global accountability |

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Tone and Style

The discussion is erudite, engaging, and often personal—blending courtroom and historical detective work with vivid personal and moral reflection. Sands is candid about his perspective, the limitations of the law, and the importance of storytelling in legal history:

“Readers are smart. They're really smart. My job is just to lay out the material and leave it to the readers to form their own view.” (28:13)

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Conclusion

This episode weaves together riveting history, legal innovation, and urgent contemporary dilemmas, showing how the shadows of past impunity and the legal architectures built to respond to them still echo in today’s debates about the power and accountability of national leaders. Sands leaves listeners with the sobering warning that current trends, especially in the U.S., could undermine decades of progress in international criminal justice and the commitment to the equal application of law.

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Transcript

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[Philippe Sands]

What's tantalizing is the possibility that. That there is a straight line that links Frank Reichter, Ralph Pinochet, and then.

[Interviewer Tyler McBrien]

The proceedings in London that land on my desk.

[Philippe Sands]

It was that tantalizing idea that there could be a connection between a case that I did many years ago and.

[Interviewer Tyler McBrien]

What I'd written about in these three books.

[Podcast Host]

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 Pizarre visiting Professor at Harvard Law School.

[Philippe Sands]

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?

[Interviewer Tyler McBrien]

This raises real concerns.

[Podcast Host]

Today we're talking about Philippe's new book, 38 Laundress on Impunity, Pinochet in England and a Nazi in Patagonia. So, Philippe, one reviewer characterized your book as the concluding part of an extraordinary trilogy. So 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.

[Interviewer Tyler McBrien]

Sure.

[Philippe Sands]

Well, first off, it's terrific to be with you. It started off as one book called.

[Interviewer Tyler McBrien]

East west street, and then it became.

[Philippe Sands]

A second book, the Ratline. And now this is the third.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

Circumstances in which a new tribunal was.

[Interviewer Tyler McBrien]

Created, the Special Tribunal on the Crime of Aggression. But maybe we can come back to that later.

[Philippe Sands]

This is an accidental trilogy. I received an invitation back in 2010 from an obscure university that, to be very honest, I've never heard of, the.

[Interviewer Tyler McBrien]

University of Lviv, the law faculty would.

[Philippe Sands]

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.

[Interviewer Tyler McBrien]

And so I toddle off to Lviv.

[Philippe Sands]

With many members of my family to basically find the house where my grandfather.

[Interviewer Tyler McBrien]

Was born and lived for the first 10 years of his life before moving to Vienna.

[Philippe Sands]

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 the Supreme Court Justice, Hersh 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.

[Interviewer Tyler McBrien]

At the University of Lviv.

[Philippe Sands]

And the folks didn't know that. And so I started writing a book.

[Interviewer Tyler McBrien]

About the three men.

[Philippe Sands]

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 Wachter, who is responsible for much of the mayhem and murder that happens across Poland, occupied Poland. And he becomes the central character in the rat line.

[Interviewer Tyler McBrien]

He dies in mysterious circumstances in Rome in 1949.

[Philippe Sands]

Otto Wachter's son, Horst, very kindly gave me access to the parents entire family archive. And in that archive, I find a letter.

[Interviewer Tyler McBrien]

It's about 2014.

[Philippe Sands]

The letter is sent from Damascus.

[Interviewer Tyler McBrien]

It is written by a top Nazi.

[Philippe Sands]

Called Walter Ralph, the man who operated the mobile gas vans across Central and Eastern Europe. And Ralph writes to Wachter in May 1949, advising him to avoid the Arab world and head to South America, because Ralph 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.

[Interviewer Tyler McBrien]

Earlier, in 1998, I'd become involved in.

[Philippe Sands]

The Pinochet case when he was arrested.

[Interviewer Tyler McBrien]

In London on a warrant issued from Spain by a judge called Balthazar Garzon, for genocide and crimes against humanity, ironically enough.

[Philippe Sands]

And so I put the two things together, Pinochet and Ralph.

[Podcast Host]

Was there a connection you mentioned a couple personal connections. Already I tend to think of you as the sort of Forrest Gump of international law. You seem to be tied to many of these historical events, sometimes in quite significant ways, sometimes just 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 how you came to be involved in the Pinochet case and on which side you ultimately did intervene or contribute.

[Interviewer Tyler McBrien]

Indeed, I'm wondering whether Forrest Gump is better or worse than Zelig, which is.

[Philippe Sands]

The other character I'm sometimes compared to.

[Interviewer Tyler McBrien]

I'll take either or both. Even so, Augusta Pinochet is arrested on the evening of 16th October 1998. He's in the London Clinic, in the centre of London, on Devonshire place. This arrest warrant has arrived.

[Philippe Sands]

A magistrate signs the arrest Warrant at.

[Interviewer Tyler McBrien]

About 8 o' clock in the evening.

[Philippe Sands]

In fact, the arrest warrant is signed about 100 yards from where I'm sitting because the magistrate happened to be my next door neighbour, Nicholas Evans.

[Interviewer Tyler McBrien]

But I only would discover that later.

[Podcast Host]

On, along with John Le Carre, if I'm not mistaken.

[Interviewer Tyler McBrien]

It's very, very peculiar what happens in this part of the world, but entertaining, it has to be said.

[Philippe Sands]

So. Two weeks pass. I'm in Paris. I'm working on a case at the International Court of Justice, Hungary.

[Interviewer Tyler McBrien]

A dispute between Hungary and Slovakia about.

[Philippe Sands]

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.

[Interviewer Tyler McBrien]

They would like to retain me to argue that he has absolute immunity from.

[Philippe Sands]

The jurisdiction of the English courts as a former president of Chile. Open parentheses.

[Interviewer Tyler McBrien]

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.

[Podcast Host]

I think listener ears are prickling right now, so you definitely should.

[Philippe Sands]

Yes, well, I've just actually finished writing.

[Interviewer Tyler McBrien]

A long article for the Atlantic, which is going to appear very shortly, on.

[Philippe Sands]

The relationship between the Pinochet decisions and.

[Interviewer Tyler McBrien]

The Supreme Court's ruling of July 2024 on the immunity of a former President of the United States.

[Philippe Sands]

I'm fascinated by the issues and the comparison. So Pinochet's arrested. Two weeks have passed. I'm in Paris. I head off to the cemetery.

[Interviewer Tyler McBrien]

I meet my wife, who's come directly from London and who is a lawyer, a New Yorker, actually, and explained to.

[Philippe Sands]

Her frankly with some excitement that Pinochet's.

[Interviewer Tyler McBrien]

Lawyers have been in touch.

[Philippe Sands]

For your listeners, it's important to understand.

[Interviewer Tyler McBrien]

That I'm a member of the Bar.

[Philippe Sands]

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're not allowed to say we don't like them, we don't like their politics.

[Interviewer Tyler McBrien]

We don't like the colour of their skin or whatever.

[Philippe Sands]

We have to take the case that there are exceptions and I'm a very strong supporter of the cab rank principle.

[Interviewer Tyler McBrien]

I act, you know, across the board. Lots of people, some people I agree with, some people I don't agree with.

[Philippe Sands]

Whatever My wife is an American.

[Interviewer Tyler McBrien]

She's not partial to the cab rank principle. She thinks it's bullshit, actually, and that we should just do the cases we want to do.

[Philippe Sands]

And I say to her, well, she.

[Interviewer Tyler McBrien]

Says, will you do it?

[Philippe Sands]

And I said, well, cab rank principle.

[Interviewer Tyler McBrien]

And she says, well, you know what.

[Philippe Sands]

I think of the cab rank principle.

[Interviewer Tyler McBrien]

And I say, yes, but it's my rules. And she says, fine, well, okay, do it if you want to do it, but if you do it, I will divorce you tomorrow.

[Philippe Sands]

So I didn't do it.

[Interviewer Tyler McBrien]

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 an interview on the.

[Philippe Sands]

World Service in my capacity as an academic.

[Interviewer Tyler McBrien]

I'd just been appointed professor of International Law at London University, and I was solicited by the BBC to basically have a chat.

[Philippe Sands]

Does a former head of state have immunity where the allegation concerns an international.

[Interviewer Tyler McBrien]

Crime, genocide, crime against humanity, torture.

[Philippe Sands]

And I said, we don't know in.

[Interviewer Tyler McBrien]

The national courts, because it's literally never happened before. No one has previously been arrested, no.

[Philippe Sands]

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.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

Personal capacity as a serving head of state. Unless of course, their country has somehow.

[Interviewer Tyler McBrien]

Waived that immunity, which hadn't happened in the Pinochet case, I think.

[Philippe Sands]

But for a former head of state for international crimes, the logic of what was done as Nuremberg and the treaties.

[Interviewer Tyler McBrien]

That had been entered into by many countries of the world, including the US and Britain and Spain and Chile, was no immunity.

[Philippe Sands]

And so having expressed the view that he shouldn't have immunity, I could take advantage of something called the Professional Embarrassment exception.

[Interviewer Tyler McBrien]

Namely, I would be arguing in court for a principle that I had publicly decried.

[Philippe Sands]

I mean, English law is full of.

[Interviewer Tyler McBrien]

Rules and there are always about 37 exceptions to every rule.

[Philippe Sands]

So I didn't do it and I remained married.

[Interviewer Tyler McBrien]

And three days later, Human Rights Watch.

[Philippe Sands]

Came along and said, would I act against Pinochet?

[Interviewer Tyler McBrien]

I went and consulted with my New.

[Philippe Sands]

Yorker wife and she gave me the thumbs up. And so I had a seat at the top table, we had a minor.

[Interviewer Tyler McBrien]

Role for Human Rights Watch. They were interveners, but I was there in the room.

[Philippe Sands]

That was the significance.

[Interviewer Tyler McBrien]

And actually later, when Pinochet argued he.

[Philippe Sands]

Was unfit to stand trial, I was.

[Interviewer Tyler McBrien]

Hired by the Belgian government to obtain.

[Philippe Sands]

Access to his medical records. So I was involved throughout the detention in London.

[Podcast Host]

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

[Philippe Sands]

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

[Podcast Host]

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

[Interviewer Tyler McBrien]

Sure.

[Philippe Sands]

Well, I think that the point of.

[Interviewer Tyler McBrien]

Centrality is that 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.

[Philippe Sands]

But throughout his tenure, and he stayed.

[Interviewer Tyler McBrien]

In office until 1990, there was a blanket impunity and immunity because he adopted.

[Philippe Sands]

An amnesty law in 1977 to stop.

[Interviewer Tyler McBrien]

Any proceedings of a criminal nature in relation to his regime.

[Philippe Sands]

And that actually remains in force today.

[Interviewer Tyler McBrien]

Astonishingly, we can come back to that.

[Philippe Sands]

The amnesty rules, incidentally, were a consequence.

[Interviewer Tyler McBrien]

Of a killing that took place in.

[Philippe Sands]

Washington D.C. in September 1976, when Pinochet ordered the assassination of Salvador Allende.

[Interviewer Tyler McBrien]

His predecessor president in Chile, Orlando Letellier, was murdered just off Dupont circle in Washington D.C. his car was blown up.

[Philippe Sands]

And that caused lots of mayhem.

[Interviewer Tyler McBrien]

And the Americans then really began to pull the plug on lots of the support that it was said they were giving.

[Philippe Sands]

So that was the area of interest. Now I go back to this letter.

[Interviewer Tyler McBrien]

From 1949, Ralph has been disappearing people, if you like, in 1941 and 1942. He operates hundreds of mobile gas vans that gas groups of people, groups of 50 people to their deaths.

[Philippe Sands]

And hundreds of thousands of people are.

[Interviewer Tyler McBrien]

Killed in this way in 1941 and 1942.

[Philippe Sands]

And when I saw the letter and.

[Interviewer Tyler McBrien]

Learned that he had ended up in.

[Philippe Sands]

Chile, I asked myself the question. It was a sort of litigator's hunch.

[Interviewer Tyler McBrien]

Could it be that Ralph might have assisted Pinochet in some way?

[Philippe Sands]

And could it be that the crimes of Ralph in that sense, ended up.

[Interviewer Tyler McBrien]

On my desk in London in 98 and 99? That was the sort of thing that.

[Philippe Sands]

I was interested in exploring. So I traced Ralph'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, Ralph was in the German navy. And the German navy boat that he's on, the SS Berlin, stops in Valparaiso.

[Interviewer Tyler McBrien]

For a few days.

[Philippe Sands]

So I do like to imagine them passing each other, perhaps on the street, although I have no evidence whatsoever that that happened.

[Interviewer Tyler McBrien]

Fast forward to 1945.

[Philippe Sands]

Ralph is hunted by the Americans, the British, the Soviets, Jews, and lots of people for mass murder, for genocide, crimes against humanity. And he escapes.

[Interviewer Tyler McBrien]

He's captured, actually, by the British in Milan.

[Philippe Sands]

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.

[Interviewer Tyler McBrien]

A small businessman, sort of, you know.

[Philippe Sands]

I'm the kind of person who grew.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

They make a new life there and.

[Interviewer Tyler McBrien]

A good life, and he's secure and.

[Philippe Sands]

He'S comfortable using his own name, incidentally. And then in 1956, the Ralphs meet.

[Interviewer Tyler McBrien]

A charming Chilean couple, and they befriend.

[Philippe Sands]

Them, and they have dinners at each.

[Interviewer Tyler McBrien]

Other'S homes and so on and so forth.

[Philippe Sands]

And Chileans say, look, you're in the wrong country. Head to Chile. And they do.

[Interviewer Tyler McBrien]

In 1958, they and the two boys.

[Philippe Sands]

Move to Chile, and Ralph 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.

[Interviewer Tyler McBrien]

You couldn't.

[Philippe Sands]

It's very filmic.

[Interviewer Tyler McBrien]

You couldn't really invent such stories.

[Philippe Sands]

In 63, his past catches up with him.

[Interviewer Tyler McBrien]

He is arrested in Punta Reinas and.

[Philippe Sands]

Shipped off to Santiago, where there are extradition proceedings on a request from the.

[Interviewer Tyler McBrien]

West German Ministry of Justice that he.

[Philippe Sands]

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.

[Interviewer Tyler McBrien]

It's 63, 21 years ago.

[Philippe Sands]

So the court rules by six to one he cannot be extradited. He goes back to Punta Reyes, his.

[Interviewer Tyler McBrien]

Life blossoms, his wife passes away, he gets a new lady in his life.

[Philippe Sands]

And then on September 11, 1973, there.

[Interviewer Tyler McBrien]

Is a coup d'. Etat. Miracle of miracles. Ralph is elated.

[Philippe Sands]

Why?

[Interviewer Tyler McBrien]

Because the new man in charge is.

[Philippe Sands]

None other than his friend from Quito. The couple that Mr. And Mrs. Ralph had befriended were none other than Lucia and Augusto Pinochet. They'd known each other since 56, and they had been in touch.

[Interviewer Tyler McBrien]

So at that point, I'm thinking, okay, they knew each other. Could it be that Ralph 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.

[Podcast Host]

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 Ralph went to the southernmost town, the edges of the world, and even there, his past caught up with him. I'm curious whether you were shocked even by how bang on your hunch was at the extent of their connections. Because if I'm not mistaken, Ralph was not. There was not much publicly known about Ralph other than save a Bruce Chatwin reference in Patagonia or thinly veiled character in Bologna. I'm curious if you were even surprised by how deeply this intertwined story went.

[Philippe Sands]

Yeah, the literature is really fascinating.

[Interviewer Tyler McBrien]

Where the judges fear to go, the writers did in fact go. And as you say, Bruce Chatwin came across him in Puntarenas in the mid-1970s, and Bolagno wrote a novel about him, a marvelous novel in which he features. It's not about him, but he features, called Nights in Chile.

[Philippe Sands]

In fact, the other person who wrote about him, remarkably, this I dug up.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

How Paul he is by the Chilean.

[Interviewer Tyler McBrien]

Supreme Court judgment letting Ralph off the hook and then proceeding to say of Ralph, the one thing we can say with certain about this man is that he certainly knows all there is to know about Vans. And given what I later discovered, that is, I think, a remarkable piece of writing.

[Philippe Sands]

Look, I came across the letter that I originally mentioned.

[Interviewer Tyler McBrien]

In 2014, I did the first interview for the book. In 2015, I went to interview Balthazar Garzon, the Spanish judge who'd issued the original arrest warrant in 10/98. And I'm a slow sort of burn, so to speak. I've got my day job, I teach at ucl, at Harvard, whatever. I'm doing cases.

[Philippe Sands]

So I do two or three hours.

[Interviewer Tyler McBrien]

A day, research, bit of writing.

[Philippe Sands]

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 rumours and the vast amount of smoke, I could not find 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.

[Interviewer Tyler McBrien]

The dean at the Direction d' Intelligencia Nacional, Pinochet's secret intelligence service destroyed all the archives after the killing of Orlando Letellier.

[Philippe Sands]

Pinochet's right hand man, Manuel Contreras, was.

[Interviewer Tyler McBrien]

Removed from his post. And in being removed, they sort of.

[Philippe Sands]

Followed the lessons from Germany and destroyed the entire archives.

[Interviewer Tyler McBrien]

So the view in Chile has always been there will be and there are and there will be no documents. Although, interestingly, as you know, because you've.

[Philippe Sands]

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.

[Interviewer Tyler McBrien]

And the first breakthrough really came when I found a man called Leon Gomez who told me he'd been to 38 Laundress Street. For your listeners, viewers, 38 Laundress street is a real place.

[Philippe Sands]

It is a street address in central Santiago, about a kilometre from the Presidential Palace. It was the headquarters of the Socialist.

[Interviewer Tyler McBrien]

Party until September 11, 1973, the day of the coup d'. Etat.

[Philippe Sands]

And then Pinochet personally acquires it and it's turned into a detention, interrogation, torture and disappearance centre. It's still there today, unchanged.

[Interviewer Tyler McBrien]

It's a museum today.

[Philippe Sands]

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.

[Interviewer Tyler McBrien]

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 Laundret 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.

[Philippe Sands]

And in the course of that interrogation.

[Interviewer Tyler McBrien]

And torture, he heard a German accent.

[Philippe Sands]

And he managed to peep out from.

[Interviewer Tyler McBrien]

The bottom part of his blindfold and.

[Philippe Sands]

Saw the face of a man, he.

[Interviewer Tyler McBrien]

Told me repeatedly and consistently he recognized.

[Philippe Sands]

He recognized the face of Walter Ralph because as a 10 year old boy.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

German and the Nazis and the Holocaust and this kind of thing.

[Interviewer Tyler McBrien]

And he remembered the trial of Ralph.

[Philippe Sands]

In Santiago in 63, when his photo.

[Interviewer Tyler McBrien]

Was on the front page of every newspaper.

[Philippe Sands]

And he told me he swore black and blue.

[Interviewer Tyler McBrien]

Walter Ralph interrogated me.

[Philippe Sands]

And he first wrote about it in 1990.

[Interviewer Tyler McBrien]

Actually he first mentions that in 1990 I've got one document.

[Philippe Sands]

So that was the first breakthrough.

[Interviewer Tyler McBrien]

I then meet other people who have.

[Philippe Sands]

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. You know, it gets you part of the way, but you've always got this question. So I turn to the other side.

[Interviewer Tyler McBrien]

And I'm introduced eventually to two perpetrators.

[Philippe Sands]

One of whom's done time.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

Got, I Think to the truth. But, you know, my style of writing.

[Interviewer Tyler McBrien]

Is not to impose my conclusions on the reader. Readers are smart. They're really smart.

[Philippe Sands]

And I think my job is just.

[Interviewer Tyler McBrien]

To lay out the material and leave it to the readers to form their own view about what is what.

[Podcast Host]

I almost hesitate to ask this next question on the Lawfare podcast, which is, you know, we don't shy away from the legal thicket and the details, but it struck me reading that 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 2:58pm on a Friday because he knew that the conservative chief prosecutor probably was knocking off early that day and therefore couldn't be stopped, et cetera. Why go beyond that and dedicate so many pages and put yourself at risk to tell the victims stories as well and to track down the veracity of these testimonies. Why include that as well with an already, like I said, pretty amazing story of the Pinochet arrest?

[Philippe Sands]

Well, I mean, there are many answers to that. One is that I love rabbit holes.

[Interviewer Tyler McBrien]

Going down them and seeing what I can find.

[Philippe Sands]

But I suppose the answer to that.

[Interviewer Tyler McBrien]

Question is as follows.

[Philippe Sands]

You know, East west street was about really Hans Frank's crimes and his role.

[Interviewer Tyler McBrien]

In the Nuremberg trial.

[Philippe Sands]

And I had a connection to that essentially through my grandfather. Then I'm passed on to Otto Wachter. And that's very direct because Wachter has.

[Interviewer Tyler McBrien]

Been responsible for the murder of my grandfather's entire family in Lviv.

[Philippe Sands]

And I learned through this letter that Wachter and Ralph knew each other. They were comrades in the same SS.

[Interviewer Tyler McBrien]

Building as Adolf Eichmann and Heinrich Himmler.

[Philippe Sands]

And Reinhard Heydrich from 1937 onwards. And so what's tantalizing is the possibility that there is a straight line that links Frank Wachter, Ralph Pinochet, and then.

[Interviewer Tyler McBrien]

The proceedings in London that land on my desk.

[Philippe Sands]

It was that tantalizing idea that there could be a connection between a case that I did many years ago and.

[Interviewer Tyler McBrien]

What I'd written about in these three books.

[Philippe Sands]

And of course, it's not that I.

[Interviewer Tyler McBrien]

Was purposely looking for that.

[Philippe Sands]

It was a curiosity. 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 learn in.

[Interviewer Tyler McBrien]

The course of writing this book that.

[Philippe Sands]

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 starts earlier. And I'm, you know, starting to write this book. In May 2021, the ratline comes out in Spanish, published by Anagramma. And I get a message from my editor in Barcelona that a Spanish prosecutor would like to reach out to me.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

And he explains to me how the Pinochet case started. I didn't know this.

[Interviewer Tyler McBrien]

You know, we always thought that Balthazar.

[Philippe Sands]

Garzon, 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 Castrosana.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

Could you think about looking into the crimes of Augusto Pinochet?

[Interviewer Tyler McBrien]

He says, yes. He goes away, he researches the facts, he looks at the legal basis in.

[Philippe Sands]

Spain for universal jurisdiction and then summons them back to his office and says, yes, there is a basis to proceed.

[Interviewer Tyler McBrien]

But I have to tell you, we have very conservative judges in Spain.

[Philippe Sands]

And in order to open the door.

[Interviewer Tyler McBrien]

To universal jurisdiction, although strictly we do.

[Philippe Sands]

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 Castro Sana selects one, a man named Carmelo Soria, who comes from a very distinguished and well known Spanish family. And he was disappeared on 14 July 1976.

[Interviewer Tyler McBrien]

He was the head of the UN.

[Philippe Sands]

Office in Santiago, so he has a diplomatic immunity, but he's disappeared and his corpse turns up two days later in a canal.

[Interviewer Tyler McBrien]

He's been murdered by the Pinochet regime.

[Philippe Sands]

Because of his leftist sympathies. And with the case of Carmelo Soria In July 96, Castrosana goes off to a court, I think it's in Valencia, and the proceedings are opened by a judge.

[Interviewer Tyler McBrien]

And that leads two years later to.

[Philippe Sands]

The arrest of Pinochet in London via.

[Interviewer Tyler McBrien]

The warrant issued by Dalthazar Garzon, with many, many sort of intervening procedural issues that I don't need to bore you with.

[Philippe Sands]

So this story interests me. I've never heard of this guy, Carmelo Soria, but I share the story with. I happen to be staying with my mother in law, who spends half the.

[Interviewer Tyler McBrien]

Year in New York and half the.

[Philippe Sands]

Year in Totnes, in Devon, in the.

[Interviewer Tyler McBrien]

West of England, because that's where she.

[Philippe Sands]

Went when she was a child. She was a refugee from the Spanish Civil War. And tell her the story.

[Interviewer Tyler McBrien]

And at a certain point she looks at me and says, what was the name again? Philippe, of the Spanish gentleman who disappeared in 1976.

[Philippe Sands]

And I say, carmelo Soria. I've never heard of him. His name is Carmelo 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.

[Interviewer Tyler McBrien]

Phone to relatives in Spain and Chile. And a couple of weeks later, I'm.

[Philippe Sands]

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, I have to say.

[Podcast Host]

I mean, that scene occurs fairly early on in the book, but it was at that point where I just thought, if this was a novel or fiction, this is where you jump the shark. It's just. It's stranger than fiction. And my jaw kind of, you know, hit the floor when I, When. When you revealed that it has been.

[Philippe Sands]

It has not only been bought to be made into a movie, the Pinochet.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

They heard that it was coming.

[Interviewer Tyler McBrien]

And I've been working with the filmmakers, a couple of Chileans who live in.

[Philippe Sands]

Paris, and they said exactly the same thing. I mean, people are not going to believe aspects of this story. But I think what is, you know.

[Interviewer Tyler McBrien]

This from the work you do on Lawfare.

[Philippe Sands]

And, you know, I'm a regular listener.

[Interviewer Tyler McBrien]

And reader, and we sort of learn.

[Philippe Sands]

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.

[Interviewer Tyler McBrien]

That really stands out for me. And no one knew this until I published the book. We come to October 1998 two years after Castrosana has got the ball rolling.

[Philippe Sands]

And Balthasar Garzon, the judge in Madrid, learns that Pinochet is in London.

[Interviewer Tyler McBrien]

And he decides he's going to send.

[Philippe Sands]

Pinochet some interrogatories, some questions. No more than that, a list of questions about his involvement in certain allegations.

[Interviewer Tyler McBrien]

That may or may not be crimes that involve Pinochet.

[Philippe Sands]

And he spends four days doing that. And we get to Friday 16 October, when Garzon receives a phone call from the number two in the British Embassy.

[Interviewer Tyler McBrien]

A man called John Dew, who, as you know, I also tracked down to get confirmation about what happened.

[Philippe Sands]

And as Garzon tells me, he had.

[Interviewer Tyler McBrien]

Been involved in a big issue concerning.

[Philippe Sands]

Money laundering in Gibraltar. And as John Dew told me, number two in the British Embassy, Garzon had been very helpful to the British in.

[Interviewer Tyler McBrien]

Relation to dealing with the money laundering issue.

[Philippe Sands]

For your listeners, Britain and Spain have a certain contention over sovereignty of Gibraltar. It's a very contentious issue. But John Dew wanted to express his appreciation of what Garzon 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 help Garzon because he'd helped us. So I called him up and I.

[Interviewer Tyler McBrien]

Told him that Pinochet was leaving the.

[Philippe Sands]

Next day for Chile and if he wanted to do anything, he would need.

[Interviewer Tyler McBrien]

To move quite quickly. Garzon then tells me he rips up.

[Philippe Sands]

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 and a request that.

[Interviewer Tyler McBrien]

He be extradited to London.

[Philippe Sands]

That is what makes its way to.

[Interviewer Tyler McBrien]

London on the afternoon by hand.

[Podcast Host]

Correct?

[Philippe Sands]

By fax, it goes by fax. It's the old days of fax to Scotland Yard.

[Interviewer Tyler McBrien]

And of course, you're absolutely right. Garzon knows that his boss, the most senior judge, there's no way he's going to sign off on this.

[Philippe Sands]

He's a Conservative fellow and he's going to say, well, let's wait, let's look into it.

[Interviewer Tyler McBrien]

By then it's going to be too late. So Garzon does Indeed wait until 2:58, knowing that it's a Friday and that the chief judge will always leave a.

[Philippe Sands]

Few minutes before 3 o' clock and they then all go off to watch.

[Interviewer Tyler McBrien]

Bullfights, as one does in Spain on a Friday evening.

[Philippe Sands]

And the letter request makes its way to London.

[Interviewer Tyler McBrien]

If John Dew had not called Balthazar Garzon on the morning of the 16th, none of this would have happened.

[Philippe Sands]

And this is not conspiracy. I mean, I've checked out. Was DHU acting on instructions?

[Interviewer Tyler McBrien]

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.

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[Podcast Host]

I want to turn to some of 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 mentioned. So I want to put just how unprecedented it is into perspective and talk about the issue of immunity here. I think your books, the trilogy, is also 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's a huge question, and it's very.

[Interviewer Tyler McBrien]

Important right now, for reasons I think we all understand. I think the starting point really is Nuremberg, 1945, June.

[Philippe Sands]

They're drafting the statute. And inserted into the statute is a provision which says, everyone is subject to.

[Interviewer Tyler McBrien]

The jurisdiction of the International Military Tribunal.

[Philippe Sands]

And that includes heads of state, former heads of state.

[Interviewer Tyler McBrien]

No one has immunity. And indeed, I've recently had cause 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.

[Philippe Sands]

And he writes, this is very interesting in terms of what's happening now. He says, Mr. President, immunity is an.

[Interviewer Tyler McBrien]

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 in issue.

[Philippe Sands]

Fascinating moment. And Jackson has an absolutely key role in that moment.

[Interviewer Tyler McBrien]

Ironically enough, given the recent Supreme Court judgment, perhaps we can come back to that. So Nuremberg proceeds on the basis no immunity.

[Philippe Sands]

Of course, as we know, nothing happens.

[Interviewer Tyler McBrien]

For 50 years until we get Yugoslavia.

[Philippe Sands]

Rwanda, and the International Criminal court in.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

In parallel, various international treaties have been adopted. The Convention Against Prevention and Punishment of.

[Interviewer Tyler McBrien]

Genocide, which has a clear provision on no immunity.

[Philippe Sands]

And then another convention, the Convention against.

[Interviewer Tyler McBrien]

Torture of 1984, which is totally silent on the question of immunity.

[Philippe Sands]

And so by the time Pinochet is arrested, the position, I think, is pretty clear that before international courts or tribunals.

[Interviewer Tyler McBrien]

There'S no immunity for a former head of state who is subject to the.

[Philippe Sands]

Jurisdiction of that court or tribunal, provided, of course, the state concerned has accepted the loss of immunity.

[Interviewer Tyler McBrien]

This is A very important point in relation to the exercise of jurisdiction right.

[Philippe Sands]

Now by the International Criminal Court in.

[Interviewer Tyler McBrien]

Relation to the to Putin, head of.

[Philippe Sands]

State of Russia, and Mr. Netanyahu, head.

[Interviewer Tyler McBrien]

Of government of Israel. Neither of those two countries are parties to the statute of the International Criminal.

[Philippe Sands]

Court, which raises a question as to.

[Interviewer Tyler McBrien]

The immunity of those two individuals.

[Philippe Sands]

But by the time Pinochet is arrested.

[Interviewer Tyler McBrien]

The question of immunity before international tribunals.

[Philippe Sands]

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.

[Interviewer Tyler McBrien]

State finds himself or herself hauled up.

[Philippe Sands]

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.

[Interviewer Tyler McBrien]

It's never happened.

[Philippe Sands]

That's why when I was asked the.

[Interviewer Tyler McBrien]

Question on BBC World Service, I said.

[Philippe Sands]

We just don't know. We have no idea.

[Interviewer Tyler McBrien]

We're in totally uncharted waters. And the House of Lords ruling is absolutely crucial.

[Philippe Sands]

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 from former head of state for international crimes as a matter of general international law. That ruling is set aside when an.

[Interviewer Tyler McBrien]

Issue arises as to the independence of one of the judges in the majority in that decision.

[Philippe Sands]

And there is. Then the case returns. It was a sort of Groundhog Day.

[Interviewer Tyler McBrien]

It was an amazing experience to sit through exactly the same case before the.

[Philippe Sands]

Same court, but a different panel of judges. And in the second House of Lords.

[Interviewer Tyler McBrien]

Judgment, actually known as Pinochet Number three.

[Philippe Sands]

The panel, a different group of seven.

[Interviewer Tyler McBrien]

Judges, say, no, there's no loss of immunity. Under general international law. The loss of immunity arises by the.

[Philippe Sands]

Entry into force and the operation of.

[Interviewer Tyler McBrien]

A treaty to which Britain, Chile and Spain are all party, namely the Convention.

[Philippe Sands]

Against torture of 1984, which enters into.

[Interviewer Tyler McBrien]

Force in December 1988. And the logic of the argument is that because that treaty is silent on.

[Philippe Sands]

Immunity and because it says any person within the jurisdiction of a contracting party to the treaty is subject to either.

[Interviewer Tyler McBrien]

Extradition to a country where they'll be prosecuted or prosecuted in that country, the.

[Philippe Sands]

Majority, six to one vote, that there.

[Interviewer Tyler McBrien]

Is no immunity in the treaty. But that loss of immunity is limited in time.

[Philippe Sands]

It only cuts in in October or December 1988.

[Interviewer Tyler McBrien]

There are two different views by the judges who split on the precise moment.

[Philippe Sands]

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.

[Interviewer Tyler McBrien]

That's what the judges say very clearly.

[Philippe Sands]

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.

[Interviewer Tyler McBrien]

Next of kin are effectively being tortured by the loss of knowledge of where.

[Philippe Sands]

They are and what has happened to them. And so the English courts then proceed into 99 and early 2000 to determine that actually there's hundreds, if not thousands, of cases of disappearance on which, as.

[Interviewer Tyler McBrien]

A continuing violation, there is no immunity.

[Philippe Sands]

And so the precedent is set for.

[Interviewer Tyler McBrien]

The first time in the Pinochet case.

[Philippe Sands]

And that has now been followed in many other jurisdictions, most recently the French courts.

[Interviewer Tyler McBrien]

The Court de Kassation ruled just a.

[Philippe Sands]

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.

[Interviewer Tyler McBrien]

On which investigators or prosecutors in Canada and in Switzerland raised questions about waterboarding.

[Philippe Sands]

As an act of torture and the possibility of asking questions of a former.

[Interviewer Tyler McBrien]

US President if they visited those countries.

[Philippe Sands]

Causing visits to be cancelled. That all dates back to Pinochet, which all dates back to Nuremberg.

[Podcast Host]

I'm curious whether you care to speculate or if you actually track down the question of whether you think that second House of Lords ruling that deemed everything before the Convention on Torture to sort of 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.

[Interviewer Tyler McBrien]

The House of Lords today, it's called the Supreme Court of the United Kingdom, is always. 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.

[Philippe Sands]

I've not come across it. It's not that they're not applying the law. It's that in the manner in which.

[Interviewer Tyler McBrien]

They apply the law, they're having regard to the consequences. My own read of what happens was.

[Philippe Sands]

That they disagreed or they make it clear they Disagree with Pinochet no 1.

[Interviewer Tyler McBrien]

They thought that court went too far.

[Philippe Sands]

What that court did was it voted.

[Interviewer Tyler McBrien]

Three votes to two, that there is no immunity whatsoever under customary international law.

[Philippe Sands]

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 was for Human Rights Watch. I was pleased with the judgment, but.

[Interviewer Tyler McBrien]

I wondered really whether there was a legal basis to go as far as they did.

[Philippe Sands]

And so I'm actually more comfortable with.

[Interviewer Tyler McBrien]

The second judgment because I do believe that the law has to develop in an incremental way, bit by bit.

[Philippe Sands]

And the second judgment was a safer way. Put yourself in the position of the.

[Interviewer Tyler McBrien]

Judges of the House of Lords sitting on that second panel.

[Philippe Sands]

The first judgment of the House of.

[Interviewer Tyler McBrien]

Lords has been front page news on literally every newspaper in the world.

[Philippe Sands]

Okay? It then turns out, thanks to the intervention of a Chilean senator, Mrs. Mate, 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.

[Interviewer Tyler McBrien]

So what do you do if you're cleaning up the mess?

[Philippe Sands]

You know, if you say he has.

[Interviewer Tyler McBrien]

Total immunity, you risk really undermining the law you've directly contradicted.

[Philippe Sands]

And so I think the way out.

[Interviewer Tyler McBrien]

Is basically to say, okay, no immunity.

[Philippe Sands]

But on the most limited of bases, with a strong recommendation to the Home.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

In the circumstances of the totality of what had happened. And I think we all know that's how the law is, and we should accept that. And part of the reason I write.

[Interviewer Tyler McBrien]

My books as I do is is.

[Philippe Sands]

That my students will understand the reality of the law.

[Interviewer Tyler McBrien]

It's not a critique of the law.

[Philippe Sands]

To say that this is how things work.

[Interviewer Tyler McBrien]

It's just recognizing that the law doesn't operate in a political vacuum. It operates in the context of broader societal developments.

[Podcast Host]

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

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

Him to be sent to Madrid and.

[Interviewer Tyler McBrien]

Have his head cut off, basically. And those divisions continue, incidentally, in Chile today.

[Philippe Sands]

But interestingly, even amongst people who might.

[Interviewer Tyler McBrien]

Be said to be on the left, there was a concern about him going to Madrid.

[Philippe Sands]

Why?

[Interviewer Tyler McBrien]

Spain is the former colonial power of Chile.

[Philippe Sands]

And so there's a sort of optics problem with the former colonizer basically taking jurisdiction over the crimes perpetrated by a.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

And I myself have a certain doubt, not of the legal basis for Spain.

[Interviewer Tyler McBrien]

To exercise jurisdiction, but you might call it the sort of the moral basis, the political basis.

[Philippe Sands]

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?

[Interviewer Tyler McBrien]

This raises real concerns.

[Philippe Sands]

And so 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.

[Interviewer Tyler McBrien]

He was never sent to Spain. I also look at this in a more complex way.

[Philippe Sands]

You know, as I mentioned earlier, Pinochet.

[Interviewer Tyler McBrien]

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 under very reduced conditions, shall we say?

[Philippe Sands]

So I remember back in 2000, when.

[Interviewer Tyler McBrien]

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 cope in a trial.

[Philippe Sands]

And they got four top notch medics.

[Interviewer Tyler McBrien]

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 were not convincing.

[Philippe Sands]

And one smelt a rat.

[Interviewer Tyler McBrien]

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 Ralph 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 Tolosa, who tells me what happened.

[Philippe Sands]

He says, 25 years have passed, I'm.

[Interviewer Tyler McBrien]

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 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 that 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, Tolossa 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 Caravana de la.

[Philippe Sands]

Muerta, the Caravan of Death killings, where.

[Interviewer Tyler McBrien]

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 open in Chile. They'd been closed until that point. There 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 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.

[Podcast Host]

I'm going to force myself to turn to the final question because I could sit here and waste your entire day and continue to ask you about the stories. But I take it that in preparing 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 endnotes and I saw a familiar name of Jack Goldsmith, one of Lawfare's founders, and the article that he wrote. 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 a vis this entire narrative that you told why it was so appropriate to include?

[Interviewer Tyler McBrien]

Well spotted, the English edition doesn't have that material because I didn't think it was of interest to English readers, although.

[Philippe Sands]

It turns out it is. So I'm going to have to now revise the English.

[Interviewer Tyler McBrien]

In fact, I think now it does have the the latest printings do have that in, but for the US 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 US President has absolute immunity in the exercise of core constitutional powers and presumptive immunity in relation to all other exercises of power.

[Philippe Sands]

That is a sort of fuzzy separation.

[Interviewer Tyler McBrien]

We don't know exactly what that's going.

[Philippe Sands]

To mean in practice, but it doesn't.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

Allegation of an international crime comes up. And I put it no higher than.

[Interviewer Tyler McBrien]

This because the judgment of the Supreme Court did not deal with international crimes.

[Philippe Sands]

And that needs to be said very, very clearly.

[Interviewer Tyler McBrien]

And it may well be that they will revisit that issue. But even on the drafting, and I.

[Philippe Sands]

Entirely share Jack Goldsmith's interpretation of the.

[Interviewer Tyler McBrien]

Quality of the drafting and the reasoning.

[Philippe Sands]

It's very, I'll be polite here, very.

[Interviewer Tyler McBrien]

Troublesome from the Supreme Court of the United States. There's no real reasoning there. Interestingly, and I'll say a little bit more about where you can read this.

[Philippe Sands]

Shortly, I went and interviewed One of.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

Conservative, has an even stronger view about this. It has been met by reasonable people.

[Interviewer Tyler McBrien]

Outside the US with almost incredulity.

[Philippe Sands]

I've written a lengthy piece, 4000 Words.

[Interviewer Tyler McBrien]

Which will come out in the Atlantic.

[Philippe Sands]

Magazine comparing the two. Of course, I've caveated what I write.

[Interviewer Tyler McBrien]

Because the Supreme Court justices don't deal with international crimes. And you've got to leave a space open that if they were, they may.

[Philippe Sands]

Come back differently, particularly where Congress has legislated on shared powers, which it has.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

It is possible that a US President.

[Interviewer Tyler McBrien]

Who engages in torture or disappearance or.

[Philippe Sands]

Crimes against humanity or even genocide would or could have an absolute immunity or even a presumptive immunity even once he is out of office. So that has very significant consequences. And I end the piece in the Atlantic by imagining not the letter written.

[Interviewer Tyler McBrien]

By Robert Jackson in June 1945, but.

[Philippe Sands]

Imagining John Roberts writing that letter.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

The approach and tone adopted by the.

[Interviewer Tyler McBrien]

Words of the Chief justice in the 2024 Supreme Court decision are regrettable.

[Philippe Sands]

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.

[Interviewer Tyler McBrien]

Rather than Robert Jackson, who was invited to draft the charter of the Nuremberg Tribunal back in 1945.

[Philippe Sands]

And here is how I imagine the letter.

[Interviewer Tyler McBrien]

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.

[Philippe Sands]

We take towards our own former presidents. We accept the paradox that legal responsibility.

[Interviewer Tyler McBrien]

Should be the least where power is the greatest, including in relation to crimes.

[Philippe Sands]

Under international law where official conduct is concerned.

[Interviewer Tyler McBrien]

We accept that a president is under God, but not that he is under the law.

[Podcast Host]

To that thought experiment, I say if only.

[Philippe Sands]

I mean, the original Jackson letter is a remarkable moment, and I think it's the reasonable why one can imagine a.

[Interviewer Tyler McBrien]

Sort of paradigm shift that is taking place right now.

[Philippe Sands]

Now it's a long game ahead. We don't know where this is all going to head up.

[Interviewer Tyler McBrien]

But immunity is a sort of canary.

[Philippe Sands]

In the coal mine for trying to.

[Interviewer Tyler McBrien]

See where things might go.

[Philippe Sands]

And I think it will require others who have far more knowledge about the U.S. constitution than I do and the.

[Interviewer Tyler McBrien]

Interpretation of U.S. supreme Court decisions.

[Philippe Sands]

Obviously, I've consulted with various people who are knowledgeable. It's not my area, but the letter by Robert Jackson is my area.

[Interviewer Tyler McBrien]

It was a remarkable letter. It changed the world. The House of Lords in Pinochet essentially.

[Philippe Sands]

Followed the Jackson approach.

[Interviewer Tyler McBrien]

And it seems we're now on the edge of a rather different world if the Supreme Court is to be followed.

[Philippe Sands]

And my thesis in the piece is.

[Interviewer Tyler McBrien]

That the Supreme Court ruling threatens the international system because it's likely to be.

[Philippe Sands]

Picked up in other countries and in other places.

[Interviewer Tyler McBrien]

And it will make it very difficult in the future for the US to point the finger of accountability to foreign leaders who cross lines if their own.

[Philippe Sands]

President or presidents are going to benefit.

[Interviewer Tyler McBrien]

From either a blanket or a partial immunity in relation to international crime. So it's it's a worrisome development is what I would say.

[Podcast Host]

Well, that piece will be out soon in the Atlantic, and the US edition of your book, 38 Laundress 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.

[Interviewer Tyler McBrien]

It's been great talking with you and hope to see you again very soon.

[Podcast Host]

The Lawfare Podcast is produced in cooperation with the British Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other shows, including Rational Security, Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written [e-mail] the podcast is edited by Jen Patya and our audio engineer this episode was Kara Schillen of Goat Rodeo. Our theme song is from Alibi Music. As always, thanks for listening.

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