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
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,
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
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,