PINOCHET’S FI­NAL JUDGE­MENT

The New European - - News - BY VERON­ICA DIAZ-CERDA

Twenty years on, how his ar­rest in Lon­don marked a turn­ing point in the search for in­ter­na­tional jus­tice

Twenty years on from the dra­matic ar­rest of the Chilean dic­ta­tor, VERON­ICA DIAZ-CERDA ex­plains how the case be­came a turn­ing point in the search for in­ter­na­tional jus­tice

It be­came an ad­dress to re­mem­ber: 20 Devon­shire Place, Maryle­bone. For it was here, be­hind the front door of The Lon­don Clinic, that for­mer Chilean dic­ta­tor Gen­eral Au­gusto Pinochet was ar­rested on the night of Oc­to­ber 16, 1998. Pinochet, who was 82, was re­cov­er­ing from back surgery at the time, was wo­ken up by po­lice and in­formed that he was un­der ar­rest for crimes against hu­man­ity on the ba­sis of an in­ter­na­tional war­rant is­sued by Span­ish judge Bal­tasar Garzón.

The spe­cific al­le­ga­tions con­cerned not only hu­man rights abuses com­mit­ted against Span­ish cit­i­zens in Chile dur­ing the mil­i­tary regime es­tab­lished after the coup of Septem­ber 11, 1973, but also the mur­der, tor­ture, hostage-tak­ing and geno­cide of Chileans and other na­tion­als.

Overnight, the Lon­don Clinic ar­rest be­came a sym­bol of hope for jus­tice and re­dress. For Pinochet – who died in 2006 – was, first and fore­most, one of the most in­fa­mous dic­ta­tors of the 1970s and 1980s. His mil­i­tary coup over­threw Chile’s demo­crat­i­cally-elected pres­i­dent, Sal­vador Al­lende, and in­stalled a bru­tal and re­pres­sive man­date in his place. In­deed, the dic­ta­tor­ship’s abuses gave rise to one of the largest hu­man rights cam­paigns in the world.

Fol­low­ing a dra­matic le­gal bat­tle, the Bri­tish courts re­jected Pinochet’s claim that he was en­ti­tled to im­mu­nity as a for­mer head of state and ruled that he could be ex­tra­dited to Spain to stand trial. Although this never oc­curred – the then home sec­re­tary, Jack Straw, ul­ti­mately al­lowed Pinochet to re­turn home after 503 days of ar­rest on the grounds of ill health – Pinochet’s de­ten­tion marked a turn­ing point in the de­vel­op­ment of in­ter­na­tional law and in­ter­na­tional re­la­tions.

It set two im­por­tant prece­dents. First, it re­vi­talised the prin­ci­ple of univer­sal ju­ris­dic­tion, which al­lows states or in­ter­na­tional or­gan­i­sa­tions to pros­e­cute in­di­vid­u­als re­gard­less of the place where the crimes were com­mit­ted and the na­tion­al­ity of the per­pe­tra­tors and vic­tims. Sec­ond, it with­drew the im­mu­nity of heads of state or ex-heads of state for hu­man rights vi­o­la­tions.

Although the Geneva Con­ven­tions of 1949 re­quested that states es­tab­lish and ex­er­cise univer­sal ju­ris­dic­tion for war crimes and crimes against hu­man­ity, this prin­ci­ple had not been widely in­voked in na­tional tri­bunals prior to Pinochet’s UK ar­rest. Apart from the trial of the Ger­man-aus­trian Nazi Adolf Eich­mann in Is­rael there were few ex­am­ples of cases brought to courts on the ba­sis of such a doc­trine be­fore 1998.

But as a re­sult of the Pinochet case, the no­tion of sovereignty, tra­di­tion­ally un­der­stood as the right of a state to re­spect the in­de­pen­dence of other states, had to be re­de­fined. The idea that gov­ern­ments are un­ac­count­able to courts lo­cated in for­eign states for their do­mes­tic poli­cies changed, so that all states now be­came sub­ject to fun­da­men­tal hu­man rights norms. Never again could tyrants use im­mu­nity as a means to avoid crim­i­nal re­spon­si­bil­ity.

Un­doubt­edly, the Pinochet ar­rest of­fered an enor­mous win­dow of op­por­tu­nity to ac­tivists, lawyers, vic­tims and non-gov­ern­men­tal or­gan­i­sa­tions to es­tab­lish transna­tional net­works to pur­sue hu­man rights ac­count­abil­ity.

Not only were Chilean courts per­suaded to re­ex­am­ine amnesties that pro­tected many se­nior in­di­vid­u­als in do­mes­tic leg­is­la­tion, but other Latin Amer­i­can coun­tries, such as Ar­gentina and Uruguay, also re­opened hu­man rights investigations into per­pe­tra­tors of atroc­i­ties. The de­ci­sion of the UK’S House of Lords to nar­row the charges against Pinochet only to cases of tor­ture, also gave par­tic­u­lar vis­i­bil­ity to Chile’s tor­ture sur­vivors, driv­ing the cre­ation of a Chilean Na­tional Com­mis­sion to in­ves­ti­gate those crimes.

In Europe, mean­while, Spain turned its at­ten­tions to ad­dress­ing crimes com­mit­ted dur­ing the Franco era, while courts in Bel­gium, France and Ger­many ex­tended the Pinochet prece­dents to hu­man rights vi­o­la­tions that had taken place be­yond their ter­ri­to­rial bor­ders. The tire­less ef­forts of hu­man rights ac­tivists and vic­tims that led to the 2016 con­vic­tion of the for­mer dic­ta­tor of Chad, His­sene Habré, for crimes against hu­man­ity, for ex­am­ple, was un­ques­tion­ably in­spired by the Pinochet ar­rest in Lon­don. Habré was ar­rested and tried in Sene­gal and sen­tenced to life im­pris­on­ment.

This rapid ex­pan­sion of in­ter­na­tional and do­mes­tic tri­als to hold po­lit­i­cal lead­ers to ac­count for hu­man rights abuses forms part of a trend that po­lit­i­cal sci­en­tists have called the ‘jus­tice cas­cade’. This does not mean per­fect jus­tice, but it has helped to le­git­imise the norm of in­di­vid­ual crim­i­nal ac­count­abil­ity for hu­man rights vi­o­la­tions.

The ini­tial en­thu­si­asm un­leashed by the Pinochet case has been re­placed, how­ever, by grow­ing scep­ti­cism in the last decade. States such as Bel­gium and Spain, once con­sid­ered pi­o­neers in em­brac­ing the doc­trine of univer­sal ju­ris­dic­tion, have lim­ited the power of their courts to pur­sue crim­i­nals out­side their fron­tiers. In both cases, th­ese lim­i­ta­tions came in re­sponse to the de­mands of pow­er­ful states, such as the US, Is­rael and China, who are re­luc­tant to see their own cit­i­zens stand trial over­seas for such crimes.

The in­ter­na­tional com­mu­nity’s in­abil­ity to end the mas­sacre of civil­ians in Syria, for ex­am­ple, has also re­in­forced the pes­simistic idea that hu­man rights only pre­vail when the strate­gic in­ter­ests of ma­jor state ac­tors are not at stake.

But there is rea­son for hope. A re­port ear­lier this year by Trial In­ter­na­tional paints a more op­ti­mistic pic­ture. Re­view­ing 58 cases in­volv­ing 126 in­di­vid­u­als, the study shows a sharp in­crease in the num­ber of cases brought to court based on the prin­ci­ple of univer­sal ju­ris­dic­tion. In­deed, the sig­nif­i­cant lim­i­ta­tions of the

In­ter­na­tional Crim­i­nal Court (ICC) to pur­sue hu­man rights pros­e­cu­tions – Rus­sian and Chi­nese UN Se­cu­rity Coun­cil ve­toes pre­vented Syria be­ing re­ferred to the court, for ex­am­ple – seems to have trig­gered a vig­or­ous resur­gence in the ap­pli­ca­tion of this doc­trine via the na­tional courts of third coun­tries.

The prom­ise of ef­fec­tive global jus­tice that came with Pinochet’s de­ten­tion in Lon­don hasn’t yet been re­alised. But the pos­i­tive changes trig­gered since 1998 were made pos­si­ble thanks to transna­tional net­works of ac­tivists, lawyers, vic­tims and hu­man rights in­sti­tu­tions who were able to ex­ert pres­sure on states to change how they de­fined jus­tice. The les­son is that while mo­ments such as the Pinochet ar­rest can open win­dows of op­por­tu­nity, the world also needs in­di­vid­u­als, or­gan­i­sa­tions and gov­ern­ments that are will­ing to make the most of them– and change things for the bet­ter.

Photo: Getty Im­ages

BLOOD ON HIS HANDS: Then-chilean pres­i­dent Au­gusto Pinochet in 1986

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