Ross Guest Editorial on Pinochet

' Gone But Not Forgotten

by Amy Ross

(The writer is an assistant professor of geography and human rights at the University of Georgia.)

The dictator is dead. At 91, after nearly a decade fighting desperately to avoid prison, Chile's General Augusto Pinochet suffered a heart attack while under house arrest for charges including torture, kidnaping and homicide. He died on December 10th: International Human Rights Day.

During his 17 year reign, more than 3,000 people ‘disappeared’ and more than 20,000 were tortured. In addition to the secrets he takes to the grave ("where are the bodies buried?") and the pain he has caused, ("donde esta mi hijo?”), Pinochet leaves a significant legal legacy.

Indeed, Pinochet's trajectory, from general, to president, to international-human-rights-law precedent, parallels profound developments in law and politics.

While Pinochet is notorious for his brutal dictatorship in Chile, he is also the poster-child for the doctrine of universal jurisdiction, which holds that certain crimes are so heinous as to be of international concern. In its broadest interpretation, universal jurisdiction means that any court, anywhere, can prosecute the perpetrators of crimes such as torture, even if the accused is from a nation other than where the suit is brought.

Universal jurisdiction received little attention until it ensnared Pinochet in October 1998. While he was in London receiving medical treatment, British officials, acting on a warrant issued by a Spanish judge, placed Mr. Pinochet under house arrest.

A major struggle ensued. Powerful players weighed in on all sides. Pinochet could count on support from heavy hitters such as his old ally Margaret Thatcher, who praised the general as a hero in the struggle against communism.

A well-organized community of Chilean exiles in Europe, united with increasingly sophisticated transnational activists, fought just as hard for his prosecution. Stymied from seeing Pinochet held accountable in Chile, these global activists sought out sympathetic jurisdictions elsewhere.

Pinochet argued that as a head of state, he enjoyed diplomatic immunity. The British High Court disagreed. In the ruling supporting the extradition of Pinochet to Spain, Lord Nicolls wrote "International law has made plain that certain types of conduct, including torture and hostage taking, are not acceptable on the part of anyone. This applies as much to heads of state, or even more so, as it does to anyone else. The contrary conclusion would make a mockery out of international law."

Pinochet dodged that bullet. At the eleventh hour, an appeals committee in 1999 found Pinochet "unfit" to stand trial on medical grounds. He was whisked home from England within hours on a Chilean government jet. (Amongst other ailments, Pinochet was reportedly found to suffer from depression. As were, to be sure, many of his victims.)

Who, then, would be "fit" to stand trial for crimes against humanity? By definition, crimes against humanity are conducted in a “wide-spread and systematic fashion;” usually by someone with the means and authority to do so. The observation that a person is more likely to stand trial for the murder of one, than for the murder of one hundred thousand, highlights the paradox of power.

While it is the most powerful that are in a position to commit grave abuses, that same power often protects against prosecution.

Faced with impunity at home, human rights activists have sought out sympathetic jurisdictions abroad. Many high-level state figures, traditionally protected at home, are facing increasing pressure in foreign courts.

Henry Kissinger reported fled Paris in 2001 after being tipped off to an imminent summons by a French judge; he later cancelled a trip to Brazil after being warned by the government there that he might face an international arrest warrant. Lawsuits have already been filed against Donald Rumsfeld in Europe.

One lesson to be learned is that activity in the international arena reverberates at the local level. Having escaped prosecution in Spain, Pinochet returned home to face nearly 200 civil lawsuits brought by a newly invigorated human rights community. Criminal cases also gained momentum. The walls of impunity were cracking.

Although he died before facing a jury, his victims could take some small comfort in his steady demise before the judicial onslaught. In one of his latest maneuvers to avoid incarceration, Pinochet was forced to claim dementia; surely a blow to a man convinced of his own heroism.

The stakes are high regarding the 'Pinochet Precedent.’ For populations subject to the threat of torture, "disappearance" and other human rights abuses, the struggle to hold the most powerful perpetrators accountable might, in theory, bring about a degree of deterrence from future crimes. But for an international order that relies upon guarantees of diplomatic immunity between nations, universal jurisdiction represents a troublesome trend, a disruption in the established system of diplomatic relations.

And for government officials engaged in violence, Pinochet’s legacy is a reminder that the law might some day catch up with the evidence. '

Amy Ross