By David SugarmanopenDemocracy
October 29, 2008
It is a decade since Chile's former military dictator was detained in London in October 1998 on human-rights charges. This remains a landmark event in the unfolding history of international law and justice, says David Sugarman. When Augusto Pinochet, the authoritarian military ruler of Chile from 1973 to 1990, was arrested in London on 16 October 1998, it was one of those rare events that sets history off in a new direction. A decade on, the world is still living with the consequences of this (at the time) stunning moment. How has the landmark case that followed changed the landscape of international justice and immunity, and affected the prospects today for holding to account leaders responsible for grave abuses of human rights?
A Spanish judge, Balthazar Garzón, had requested Pinochet's extradition to Spain for egregious human-rights crimes committed after the general was installed as Chile's head of state following the brutal coup of 11 September 1973 that brought the junta to power. In the absence of appropriate redress at home, the relatives of thousands of people who had been tortured, murdered or forcibly "disappeared" in Chile during the Pinochet era had submitted complaints to Spanish and other European state courts which provided for universal jurisdiction under national law. Such "universal jurisdiction" permits a national court to try a person suspected of a serious international crime even if neither the suspect nor the victim are nationals of the country where the court is located, and the crime took place outside that country.
In London, the judicial committee of the House of Lords, the United Kingdom's highest court, was asked to decide whether a former head of state could claim immunity before the English courts for crimes (such as torture) contrary to international criminal law. The matter at issue was plain:
In a pathbreaking series of cases, the majority of the law lords decided that the anti-torture convention gave rise to universal jurisdiction in all signatory states. Consequently, all signatory states should either extradite or punish a public official who committed torture. They further argued that the United Kingdom had jurisdiction over acts of torture allegedly committed by Pinochet after the torture convention had been incorporated into UK law, and that this superseded the traditional immunity of former heads of state. To decide otherwise, they said, would render the torture convention worthless.
This epoch-making decision - whose significance has lasted far beyond the return of Pinochet to Chile in March 1990 on grounds of ill-health, and consequent escape from prosecution - initiated a new stage in human-rights accountability. As an outcome, the decision was extraordinary enough; what went before it - the arrest itself - was mind-blowing. Not one of the 300-plus key individuals from twelve countries involved in the Pinochet affair I have interviewed - victims, NGO workers, judges, lawyers, politicians - had any expectation that Pinochet would be arrested and put on trial. Judge Garzón himself explained that he went after Pinochet out of principle, rather than with any great expectation of success. For virtually all concerned in the effort to bring Pinochet to justice, this was largely a symbolic struggle. They expected to fight the fight, rather than win the war.
A cause infused
Similarly, the preponderance of legal opinion at the time was that Augusto Pinochet's immunity under international law was so long-standing and unequivocal that unquestionably it shielded him for life from prosecution in the domestic courts of other countries for acts carried out as part of his official duties. Most international lawyers were agreed: after the shock of the arrest and the formality of a court hearing, Pinochet would be freed and sent home within a matter of weeks.
These limited expectations were completely justified at the time. True, the legal principle was established at the Nuremberg trials after 1945 that there should be no immunity for perpetrators of the most egregious abuses of human rights; this was enshrined too by the UN general assembly, and international agreements protecting human rights. But few states have the courage to render these principles a reality, and the victims of torture and crimes against humanity have usually been unable to bring their tormentors to justice. The Realpolitik character of much foreign policy, and the legal notions of "sovereign immunity" and "amnesties", made a mockery of the new law-based international order created after the second world war. The Pinochet case, and the universal jurisdiction that sustained it, turned the world upside down. It challenged the idea that important folk should be deemed "more equal than others" before the law. In effect, the House of Lords vindicated the principle that executive power and sovereignty are subject to the limits imposed by the rule of law.
The decisions of the courts in Spain and Britain injected a new energy to the struggle to address massive violations of human rights. In particular, it encouraged countries to pursue ex-leaders and their accomplices in their own courts. At the time, the struggle to deal with legacies of repression was barely alive in many countries, especially those experiencing a transition from authoritarian or totalitarian to democratic rule, as in Latin America. Indeed, what some saw as an unnatural silence prevailed, with neither the courts nor the press able or willing to address past crimes. Now the unimaginable was possible (see "From unimaginable to possible: Spain, Pinochet and the judicialization of power", Journal of Spanish Cultural Studies, 3/1, March 2002). The Pinochet affair gave a huge fillip to human-rights movements, galvanising victims and their loved ones, activists and lawyers. Judiciaries hitherto admonished for their deference in the face of military dictatorships, were emboldened.
An era retrieved
In Chile, while some advances in human-rights accountability were evident prior to Pinochet's arrest, since 1998 the progress of human-rights trials has dramatically improved. The process is ongoing: on 15 October 2008, Chile's supreme court jailed five retired senior military officers responsible for the extra-judicial murder of seventy-five prisoners by the "caravan of death", a military death-squad that travelled up and down the country in October-November 1973.
After more than three decades of denial surrounding the murder, disappearance and torture of Pinochet's victims, retired military officials are breaking ranks, and admitting their crimes and the cover-ups that ensued. In September 1999, the then head of Chile's navy appeared on Chile's national television strenuously denying that naval ships were used as torture-centres during the dictatorship. But recently a former Chilean navy official testified that Michael Woodward, a British-Chilean national and priest, had died in 1973 on the Chilean flagship, the Esmeralda, following savage beatings and water-torture.
The denials have not halted the legal process: hundreds of former members of the Chilean military have been convicted of human-rights crimes, and hundreds more are under investigation. Those convicted include Manuel Contreras, the former director of Dina, Chile's much-feared secret police force. It is very difficult to imagine these things happening without Pinochet's arrest. Inevitably, perhaps, cases have made variable progress, and bouts of backsliding are not uncommon.Only a small number of officers are actually serving prison terms relative to the number of cases and victims; and those convicted are often detained in new, specially built and relatively comfortable penitentiaries. Nonetheless, the overall direction is clear: human-rights accountability has significantly increased.
What, then, of Augusto Pinochet himself? Pinochet's authority in Chile, and his reputation for invincibility, was irreparably damaged by his eighteen months' detention in London. After he returned home in March 2000, Chile's courts sporadically removed the immunity from prosecution with which he had surrounded himself; although his lawyers argued successfully that he was too ill to stand trial. But this changed by 2006. In both the Operation Colombo and Riggs bank cases, the appeal courts for the first time received and endorsed medical opinions that Pinochet was indeed fit to stand trial, and that he had been exaggerating his poor health. It was ruled that, since the alleged crimes could not have been carried out without Pinochet's approval, these cases should proceed.
But there was worse to come, at least as far as Pinochet's supporters were concerned. It emerged from the Riggs bank case that Pinochet was guilty of fraud and tax-evasion; for he had (with members of his family) concealed in excess of $30 million in a global web of hundreds of secret bank accounts and offshore companies - monies allegedly derived from presidential and military funds, and bribes Pinochet received for facilitating weapons-deals and profits from drug-related activitie. These revelations seriously damaged Pinochet's standing even among his hardcore admirers.
Thus, between his London arrest and his death in December 2006, Pinochet's reputation unravelled. He was exposed by relentless, humiliating and detailed revelations about the human-rights crimes of his regime. By his end, he was closer to being condemned and sentenced by a court of law than ever before. In 2004, a national commission headed by Bishop Sergio Valech reported that there were 1,132 detention and torture centres across Chile during the dictatorship; that more than 28,000 people were tortured by agents of the Pinochet regime; and that torture was state policy and commonplace for political detainees - a conclusion that caused General Juan Emilio Cheyre, the then head of Chile's armed forces, to issue an unprecedented apology. In the new climate that now prevailed, Chile finally recognised and provided remedies for the torture victims of the dictatorship.
A connective thread
The Chilean experience rebutted the oft-repeated mantra of those seeking Augusto Pinochet's release: that the prosecution of human-rights violators in countries involved in a transition to democracy would ferment anarchy and a return to authoritarian governance. In country after country, the amnesties that hitherto have often obstructed the prosecution of human-rights violators are now being increasingly circumvented by the courts and even ruled illegal under international law. Argentina, whose record on human-rights accountability is similar to that of Chile, has struck down immunity laws for former officers responsible for the murder or disappearance of up to 30,000 people during Argentina's own dictatorship in 1976-1983.
Since the Pinochet case, domestic prosecutions against past leaders - for financial crimes as well as human-rights abuses - have increased markedly. In Uruguay, Suriname, Thailand, Peru and Bangladesh, for example, ex-heads of state or government are either in the dock or awaiting trial.
A particularly compelling example is that of Spain. Death-squads, military courts and other tribunals sent over 100,000 people to their deaths during and after Spain's civil war in the 1930s. But an unwritten "pact of forgetting" underpinned Spain's rapid transition to democracy after Franco's death in 1975. Pinochet's arrest by a Spanish judge, and the struggle to extradite him to Spain, caught the imagination of the Spanish people. It received substantial public support and helped awaken Spanish awareness - including of the contradiction that the country was prepared to offer an appropriate forum for trying a former foreign dictator that its then government had supported while having done nothing to call its own such dictator to account.
The effort of Spanish courts to investigate crimes committed by other dictatorships, and the change in worldview that it precipitated, was a key catalyst in helping both Spain and Chile to confront both their respective pasts and their deep historical interconnections. These interconnections are strikingly close. The same judge (Balthazar Garzón) and the same anti-Francoist prosecutors and lawyers' associations that played a vital role in initiating and supporting the Pinochet case in Spain, are sustaining the current remarkable developments in Spain itself.
Moreover, both Spain and Chile are subject to "self-amnesties". In Spain, all civil-war and Francoist repression is covered by a 1977 amnesty law and by rules which mean that most crimes lapse after twenty years. Judge Garzón has sought to sidestep this by adopting a legal interpretation first developed in Chile to bypass its amnesty law - namely, that enforced disappearance is an ongoing crime until the victim's remains have been recovered or the fact of death established.
In Chile, hundreds of officers have been charged and hundreds have been convicted for crimes committed during the period covered by the amnesty as a result of this interpretation. In the doctrine's best-known application, the Chilean judge Juan Guzmán indicted Augusto Pinochet for kidnapping in December 2000. The fact that judge Garzón formally declared the repression unleashed by Franco to be a crime against humanity on the tenth anniversary of Pinochet's arrest is unlikely to be coincidental.
The knock-on effect of Pinochet's arrest has also been felt in the field of international justice. Pinochet's London arrest reflected and strengthened the movement to create UN tribunals and a permanent International Criminal Court to prosecute genocide, crimes against humanity and serious war crimes when national courts are unable or unwilling to do so. A few months after Pinochet's arrest, Slobodan Milosevic, the Serbian despot, became the first serving head of state to be indicted for war crimes by the International Criminal Court. A year later Charles Taylor, then president of Liberia, was indicted by a special tribunal, basing its decision partly on the Pinochet case.
A question of will
The Pinochet case also raised public awareness of international law, and raised the public profile of the human-rights movement, in unprecedented ways. A decade on, Pinochet's arrest and the legal precedent that it established has achieved a considerable amount of truth and justice without bringing domestic politics and international relations to a state of collapse. Yet, some of its most staunch supporters are worried about the future. "There remains a great deal to be done to fulfil the hope created by the arrest of Pinochet", says Irene Khan, secretary-general of Amnesty International. "Thousands of perpetrators of human-rights abuses are still at large, avoiding justice in safe havens around the world".
The political will essential to the success of universal jurisdiction is frequently lacking. Even when countries have passed laws permitting universal jurisdiction for international crimes such as torture and war crimes, they are frequently loath to exercise universal jurisdiction in practice. The political reality is that governments routinely do not see it as in their interest to go after the Pinochets of the world. To implicate foreign government officials could, after all, be inconvenient or embarrassing to the country where the court is located.
Since 1998, while several former or current heads of state have been subject to international indictments in international courts, the domestic courts of third countries have yet to extradite or try anyone of Pinochet's stature for crimes committed in their own countries. The one exception is the arrest in Senegal in February 2000 (just days before Pinochet returned home) of the ex-president of Chad, Hissene Habre, on torture charges. Habre is the first former African head of state to be charged with international human-rights crimes by the court of another African country.
A law for all
These currents flowing from the historic arrest of 16 October 1998 highlight perhaps the major current challenge to the legitimacy of universal jurisdiction: that of double-standards. It is unlikely that (for example) Russian officials will be rendered accountable for war crimes in Chechnya, or that United States leaders will be called to account for the crimes they authorised at Guantanamo and in Iraq.
Such double-standards in the consideration and application of universal jurisdiction help explain why many - governments and analysts alike - see this principle as simply the expression of great-power preferences. Under this optic, some governments (especially in Africa) argue that universal jurisdiction is partial, selective, neo-colonial and has become a form of scapegoating. Although some of this criticism is self-serving, it is only when universal jurisdiction is applied across the board that it will be possible fully to rebut these condemnations.
The various methods by which some great powers and their allies have sought to evade the application of international justice give added weight to the double-standards point. The cases include the George W Bush administration's opposition to the International Criminal Court; its enforcement of bilateral agreements on aid-dependent countries that guarantee the immunity of United States nationals from the court; its strong-arm pressure against Belgium and Germany to retreat from universal-jurisdiction laws or complaints that might have ensnared (respectively) senior US military officials and the former defence secretary Donald Rumsfeld; and its efforts to bypass the Geneva and torture conventions at Guantanamo and in Iraq.
At the core of the Augusto Pinochet case is the notion that the rule of law applies to all equally; and that international crimes, and their prosecution, increasingly know no borders. In the long term, its legacy should be a sobering one for those who have sought to evade the application of international justice - especially when they travel abroad.
This article originally appeared on openDemocracy.net under a Creative Commons licence. To view the original article, please click here.
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