The Pinochet Principle: Who's Next?

by Michael Ratner

Covert Action Quarterly, Winter 1999

Many people around the world celebrated the arrest in England of Augusto Pinochet. For the families and friends of his Chilean victims it was a miracle; to those who supported the Allende government, it was an unexpected vindication. For it is a rare instance indeed, when a brutal right-wing dictator receives a measure of justice, particularly one who had risen to power on the back of the United States government, and who had been closely allied with the United Kingdom against Argentina in the war over the Malvinas. No matter what the final result is in England, and at the time of this writing the outcome is uncertain, Pinochet has been publicly branded as a barbarous murderer.

Despite the joy many felt at his arrest, there have been a number of critics, from both the left and the right, of what has been called the Pinochet principle. Under that principle, which is not, in fact, novel, national courts can exercise universal jurisdiction and try individuals for genocide, crimes against humanity, and war crimes, even if the acts took place outside the prosecuting country The exercise of such jurisdiction has been recognized under international law, but its invocation has been extremely rare, and many countries' legal systems do not even provide mechanisms for such prosecutions.

Today, the perpetrators of such crimes are considered, much like pirates of old, as hostis humanis generis, enemies of all mankind, and can be brought to justice wherever found-even outside the country in which the atrocities were committed. It was on this basis that Pinochet was prosecuted in Spain. He was indicted there for

genocide and crimes against humanity, including torture and terrorism; Spain then requested his arrest and extradition from England.

THE LACK OF U.S. CONTROL

What is striking about the Pinochet prosecution is that it was brought in a Spanish court under Spanish law (incorporating all the relevant international principles), and not authorized in advance by the United Nations Security Council, as were the International Tribunals for the Former Yugoslavia and for Rwanda. Those tribunals were conceptualized, lobbied for, approved, and in large part paid for by the United States. In such cases, the U.S. and the other permanent members control the establishment of any tribunal through their veto power. In the Pinochet case, the U.S. had no legal authority to prevent his indictment by Spain or his arrest, and extradition to Spain, by Britain.

This lack of legal authority to prevent the prosecution explains, in part, the reluctance of the United States to support Spain's extradition request or to react favorably to Pinochet's prosecution. In addition, of course, the U.S. does not want to see a dictator it had wholeheartedly supported publicly prosecuted, and, perhaps, see exposed the U.S. role in the coup and in Operation Condor, the Southern Cone secret police apparatus, coordinated by Chile, that murdered leftists throughout the area.

The United States worries that its officials may be next. At a minimum, some of its satraps around the world could face justice. Indeed, one reason to consider the precedent helpful to the progressive side is the strident voices of outrage coming from conservatives and protectors of American supremacy They are worried, very worried. Columnist after columnist asks whether Kissinger is next. Jeremy Rabkin, the conservative Cornell professor, asks whether Colin Powell, William Cohen, Ariel Sharon, or Shimon Peres will follow. The Daily Forward, a Jewish newspaper, wonders about Netanyahu.

While some of what is said is exaggerated for use as an ad terrorem tactic, nonetheless Pinochet's arrest has caused alarm. Consider the message it sends: If Pinochet, installed with U.S. approval, ally of Britain and friend of Margaret Thatcher, is not safe, who is? Rabkin phrases his objections in outdated legalisms; he claims that a central tenet of international law is that states must respect each other's sovereignty absolutely and cannot interfere in the acts of a state in its own territory. But this is no longer entirely true; dictators cannot commit mass killings of their own citizens free from international scrutiny This is a lesson of Nuremberg, embodied in numerous subsequent treaties and conventions. These conservative critics understand that prosecutions against the Pinochets of the world might occur without the prior approval of the United States. They are most concerned that American officials, not just their foreign accomplices, might face prosecution in some other country.

This is the primary reason the U.S has refused even to consider ratification of the treaty establishing an International Criminal Court. Washington wanted a provision that only permitted prosecutions with approval of the Security Council (subject, of course, to its veto) and was opposed to universal jurisdiction: it wanted nothing to do with an independent prosecutor. U.S. officials feared such a court would indict American soldiers and politicians. Senator Jesse Helms said that a court with jurisdiction over American citizens would be "dead on arrival."

As a practical matter, such concerns may be overstated, to say the least. With respect to extradition proceedings, there are political gatekeepers at every stage. The Spanish judge could not ask the British government for Pinochet; the Spanish government had to approve the judges request. And the British court could not even rule on Pinochet's extradition unless and until the Home Secretary approved. While there may be a few countries on earth that would, for example, indict Henry Kissinger (not that these are countries he would visit without a grant of diplomatic immunity), is there any country that would arrest a visiting Kissinger and extradite him? What chance is there that Henry Kissinger will ever face a trial for crimes against humanity? Imagine the consequences for a country that arrested him for his responsibility for the Indonesian invasion of East Timor, the coup in Chile, or the Christmas bombing of Vietnam. The U.S. is just too powerful for such an arrest to occur; it is the only superpower.

Both Noam Chomsky and Fidel Castro have made the point that powerful nations will never allow their officials to be subjected to arrest and trial. In other words, a fair system should get the puppeteers and not just the puppets. As Fidel Castro said:

"Well, then, let him [Pinochet] be arrested in London; but let all of the guilty parties be arrested as well. ...there are a lot of people who participated in all of that, and I think that from the moral point of view, they would all have to be taken to trial in Madrid, in London, or anywhere else.... We'll have to see what Pinochet's Godfathers say..."

They are right. The international justice system is unfair-outrageously so. U.S. officials who aided or abetted the contras in Nicaragua, who toppled the elected Arbenz government in Guatemala, who supported Mobutu in Zaire, who helped Suharto murder well over a million, who bomb Iraq, Libya, and Sudan, and who continue to commit crimes against humanity throughout the world, will not stand trial.

CONCERNS ON THE LEFT

Is the Pinochet principle then irrelevant to U.S. control of international justice, or is it possibly an opening for victims, rights advocates, and progressive people to undercut, in a small way, U.S. control and the consequent bias in international human rights prosecutions? Is a mechanism that might ensnare some puppets wrong simply because it does not also get the puppeteers? Or is it more dangerous to those who seek to undercut U.S. dominance?

Some fear that the principle will be employed by large, powerful countries, particularly the United States, to reach across national borders to extradite and prosecute those leaders it has demonized. They are afraid that the precedent will be a weapon in the hands of the U.S. to further its imperialist and hegemonic aims. Fidel Castro might be next, or Laurent Kabila, or Muammar Qaddafi.

It is conceivable that some leaders demonized by the U.S. may face additional risk, but as the U.S. is so opposed to the principle, this is unlikely The U.S. already gets its way, international law notwithstanding It kidnaps those it doesn't like, such as Noriega; it bombs the homes of those who threaten its domination, like Qaddafi; it assassinates or foments coups; and it embargoes whole countries. The U.S. hardly needs the Pinochet precedent, does not support it, and will not rely upon it.

Without making light of the many attempts over the years to assassinate him, Fidel Castro is at no greater risk after the Pinochet arrest than he was before it. He is not at risk because he has not committed crimes against humanity An attempt by the Cuban American National Foundation, shortly after the Pinochet arrest, to bring such charges against him in Spain was dismissed by the Spanish court without even opening an investigation. He is not at risk from the Pinochet principle because he is a respected world leader and because his main enemy, the United States, does not support that principle anyway Fidel clearly does not think himself at risk: "I go where I am granted a visa, and, in addition, I have ethics, dignity and I'd like to know what would happen if they take it into their heads to do that."

Furthermore, there are other aspects of international law, universally recognized, that limit some of these concerns. Fidel Castro, like any other traveling leader of a nation, would have head-of-state immunity and could not be arrested or prosecuted. Accredited diplomats have diplomatic immunity, and many foreign officials would not travel to another country without prior accreditation. Pinochet was not in England as an accredited diplomat.

WHAT REALLY HAPPENS

While it is unlikely we will soon see present or former U.S. officials in the dock, the question is, does the Pinochet principle make the international justice system more unfair than it already is? Or does it provide at least a possibility that additional Pinochets-the dictators and mercenaries the U.S. employs-might face justice? Except for prosecutions under the Pinochet principle, the current system of international justice is controlled by the United States. Ad hoc tribunals such as those set up for former Yugoslavia or Rwanda are authorized by the U.N. Security Council with U.S. approval. The United States brags about its role: The Tribunal for the Former Yugoslavia is considered to be one of Madeleine Albright's great achievements; U.S. financial and logistical support has been second to none; it has aided in the arrest of alleged suspects and provided lawyers, investigators and analysts. It is likewise with the Rwanda Tribunal: U.S. contributions, as David J. Scheffer, U.S. Ambassador-at-Large for War Crimes Issues, states, "have underpinned the Rwanda Tribunal's operations."

A number of commentators have criticized the Tribunal for the Former Yugoslavia as focused more on the crimes of Serbs, and less on identical crimes of the Croats and Bosnian Muslims. Former New York Times reporter David Binder wrote that the tribunal "indicted more and more Serbs on allegations of mass murder, but seemed uninterested in identical crimes by Croats or Bosnian Muslims in the three sided civil war." This is, of course, in line with U.S. interests: it is opposed to the Serbs and their government. A prominent Yugoslav professor, Dusan Cotic, points out that in the creation of the court, "the discussions focused almost entirely on crimes allegedly committed by Serbs...and their leadership" and "that there has been manipulation of even the most influential world media, as well as biased reporting.'' As Binder noted, "The press also continues to be selective, rushing almost like ghouls to sites where Muslims were killed, but studiously ignoring those of murdered Serbs."

Raymond K. Kent, a professor at the University of California, sees the Tribunal as a "political instrument directed against a single party to the conflicts: the Serbs." As he says, "Like the media, the Tribunal ignored the Croatian attacks on Serbs in Western Slavonia which initiated the rounds of ethnic cleansing producing criminals and victims among all population groups." The clear point is that U.S. domination of the Tribunal reflects U.S. interests, not any desire for an evenhanded, unbiased justice system. It is possible that a system of national prosecutions freed from overt U.S. domination and control, might, in some way, give a modicum of evenhandedness to international justice.

That the United States is opposed to the Pinochet principle does not mean use of the precedent will necessarily lead to a fairer world system of justice. But it is possible. The prosecution of Pinochet took work and luck. Since the coup in 1973, for more than 25 years, Chileans have organized for justice. Grassroots groups and lawyers worked full time on efforts to gather the evidence and find the appropriate forum to initiate the case. They were lucky with the judges, lucky Pinochet came to England, and lucky that certain countries in Europe are currently governed by social democratic parties. This is an indication of how hard it may be to make this precedent work for us. But there are many other Pinochets at home and in exile around the world. Perhaps some of them can be brought to justice.

Michael Ratner is an attorney who works with the Center for Constitutional Rights in New York City and is the author, most recently, of International Human Rights Litigation in U.S. Courts (New York: Transnational Publishers, 1997).

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