JURIST Guest Columnist Chandra Lekha Sriram, Chair of Human Rights at the University of East London School of Law (UK), says that while the legal pursuit of late Chilean dictator General Augusto Pinochet in recent years represented a step forward for human rights law, his death without facing trial reflects its continuing limitations...
According to some human rights advocates, the "Pinochet Precedent" stands for the proposition that those who engage in serious violations of human rights, even current and former heads of state, cannot escape accountability somewhere, sometime, even if it is not feasible at home, now, for political reasons. The most frequent mechanism cited is the exercise of universal jurisdiction, a principle of public international law also enshrined in some nations' legislation, that indicates that certain serious crimes, such as torture, war crimes, crimes against humanity, and genocide, are so serious that they may be prosecuted by any state. A Spanish magistrate, Baltasar GarzÃ³n, exercised the universal jurisdiction provision of the Spanish law on judicial power to indict Pinochet, and sought his extradition from the United Kingdom, where he was seeking medical treatment. Human rights advocates celebrated this move as a great victory over impunity, At last, they hoped, Pinochet would at last be held responsible for his crimes, which during his military rule from 1973 to 1990 caused the deaths or disappearances of over 3000 people, and the torture, detention, or exile of tens of thousands more. Pinochet, who had granted himself an amnesty, and claimed immunity as a "Senator-for-Life", might face the justice he had eluded at home, in Madrid. UK judges rejected his claims of official immunity, rightly pointing out that he could not properly claim that torture was a protected official activity.
As we know, however, while UK judges were prepared to extradite Pinochet, he was ultimately returned to Chile following a decision by the UK Home Secretary that he was too ill to face extradition and trial. He was placed under house arrest, and successive legal decisions in Chile stripped Pinochet of his immunity, but due to ill health he never faced a trial. News reports have described him as having "cheated justice" by dying. But that is to put too great an emphasis on nature and coincidence, and to miss the politics of international justice.
For Pinochet is not the only high level official or ex-official to evade prosecution or accountability, whether through universal jurisdiction or civil accountability procedures, and this is no accident. Legal immunities that attach to current state officials, and political fears and threats, mean that for the most part those who face accountability are not the "big fish" unless there has been a significant political change.
First, the legal immunities: the International Court of Justice, in the 2003 case Democratic Republic of Congo v. Belgium, ruled that a state could not pursue a case through the exercise of universal jurisdiction against a sitting foreign minister. Such official immunities are well-enshrined in international law and practice, and may be necessary to ensure diplomatic engagement and exchange, but they also mean that those we might most want to prosecute now, those in the position to commit further crimes, are protected from prosecution by individual states exercising universal jurisdiction.
Second, the political fears and threats: while independent prosecutors may seek to pursue cases, state officials may seek to constrain them, other states may threaten retaliation, or prosecutors may choose not to exercise their powers. In each case, legal possibility is limited by political reality. In Spain, for example, the ministry of foreign affairs indicated its strong opposition to the pursuit of Pinochet. When cases were filed in Belgian courts against, among others, US General Tommy Franks for alleged crimes arising out of the second US war in Iraq, and against sitting Israeli Prime Minister Ariel Sharon for alleged massacres at the Sabra and Shatilla refugee camps in 1982, US pressure (including threats to compel the removal of NATO headquarters from Brussels) forced drastic changes in Belgium's universal jurisdiction legislation. And in Germany, a complaint filed against then-US Secretary of Defense Donald Rumsfeld in 2004 for alleged crimes arising from the second war in Iraq was not pursued by state prosecutors. The complaint was re-filed after Rumsfeld announced his resignation, and it remains to be seen whether prosecutors will now choose to charge Rumsfeld with the crimes alleged.
In fact, the only cases of prosecution of higher-level perpetrators through the exercise of universal jurisdiction (or, arguably, in international criminal courts) have occurred where the state affected by the crimes does not object. In the instances of Adolfo Scilingo, and Ricardo Cavallo, former Argentine military officers accused of human rights abuses during that country's "Dirty War" of 1976-83, cases went forward in Spain with the blessing of Argentinean President Nestor Kirchner. Kirchner even requested, successfully, that Mexico, where Cavallo was residing, extradite him to Spain. Scilingo was sentenced to 640 years imprisonment for crimes against humanity, and Cavallo faces charges that could total 17,000 years.
The "Pinochet Precedent", and indeed the legacy of Pinochet, is a mixed one. While thousands of demonstrators went into the streets of Santiago to celebrate his death after it was announced, they clashed with police, and their jubilation was somewhat undermined by hundreds of mourners. Pinochet's demise may be seen as an escape from justice, or as the ultimate, final, justice for his victims and their families. But it should be a stark reminder that the "Pinochet Precedent" has not been an unqualified victory for human rights. Indeed, it demonstrates the degree to which the powerful can retain impunity to the end.
Chandra Lekha Sriram is Professor of Human Rights and Director of the Centre on Human Rights in Conflict at the University of East London.