The Spanish and British governments used both international and national law to determine that Chilean dictator Augusto Pinochet could be tried for human rights violations committed during his rule.
The case against Pinochet began in the early years of his 1973-1990 dictatorship, when human rights activists began documenting cases of illegal detention, forcible transfer, murder, torture, and disappearances carried out by Pinochet’s forces. After democracy was restored in Chile, an official truth commission compiled detailed information on over 2,000 cases of human rights violations. Pinochet could not, however, be brought to trial in Chile, because prior to leaving office he had engineered constitutional protection from prosecution for himself and for most of his accomplices.
Lawyers acting on behalf of the victims of Pinochet’s regime filed criminal complaints in Spain using a procedural device called “accion popular,” or popular action, in which Spanish citizens are permitted to file private criminal actions in certain circumstances. Spanish courts allowed the case to proceed based on the principle of universal jurisdiction, — such as torture, genocide, and other crimes against humanity — no matter where the crime was committed and regardless of the nationality of the perpetrators and their victims. This principle gave a Spanish judge the authority to order Pinochet’s arrest for crimes committed primarily in Chile and against Chileans.
A Spanish warrant was then issued, charging the former dictator with human rights violations and requesting his extradition to Spain to stand trial (Belgium, France, and Switzerland later also formally sought his extradition). Pinochet was arrested by British authorities in London on 16 October 1998. He and his defenders challenged the warrant, arguing that as a former head of state he enjoyed immunity from arrest and extradition. The British House of Lords, however, twice rejected this argument, and ruled that Pinochet could be extradited to Spain to stand trial.
In its first judgement, which was later annulled, the House of Lords ruled that although a former head of state enjoys immunity for acts committed in his functions as head of state, torture and crimes against humanity were not ‘functions’ of a head of state. In a second, more limited ruling, the Lords held that once Britain and Chile had ratified the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatments or Punishments, Pinochet could not claim immunity from charges of torture. A British magistrate then determined that Pinochet could be extradited to Spain on multiple counts of torture and conspiracy to commit torture.
Pinochet was ultimately sent back to Chile for medical reasons, and so was not tried in Spain. The Chilean Supreme Court stripped him of the parliamentary immunity he had granted himself, and determined that he should be tried; it later ruled, however, that he was too ill to stand trial.
The Lords’ ruling set an important precedent, demonstrating to the world that there is no immunity — even for a former head of state — from prosecution on charges of torture, that such crimes can be prosecuted anywhere in the world under the principle of universal jurisdiction, and that national courts can be used to force states to fulfill their obligations under international law.
The decision in the Pinochet case has prompted human rights groups to attempt to bring to justice other officials accused of human rights atrocities. In February 2000, a Senegalese court indicted Chad’s exiled former dictator Hissein Habre on charges of torture and placed him under house arrest, the first time an African was charged with atrocities by the court of another African country. Charges were filed by victims of Habre’s regime with the help of a coalition of Chadian and international human rights organizations, and were based on both a Senegalese statute on torture and the UN Convention Against Torture, which Senegal ratified in 1987.
Former Yugoslavian President Slobodan Milosevic was also charged with war crimes; his trial in the Hague by the UN’s war-crimes tribunal began in February 2002. Others have been convicted by international tribunals on the former Yugoslavia and in Rwanda. And in April 2002, 66 countries ratified the treaty establishing the International Criminal Court, a tribunal which came into force on July 1, 2002.
Using international law to affect national policy
