Justice Without Borders: Prosecuting General Pinochet

Abstract

Two stubborn and closely interrelated characteristics of the application of international law are selectivity and hypocrisy. The former arises out of states' reluctance to obey principles of world order if they impede the pursuit of power. The latter derives from the same states' efforts to maintain legitimacy by professing their adherence to international law, while denouncing their enemies' perfidious illegal conduct. If the tension between the pursuit of power and the requirements of international law becomes too great, states can: (a) attempt to invoke international law as the rationale for the pursuit of power; (b) ignore international law altogether; or (c) comply with international law.

Option (a) is difficult unless the legal principles in question are ambiguous and the fact situation novel. Option (b) frequently follows if option (a) fails, but is generally the prerogative of only the most powerful states and their allies. And, every so often, states will choose option (c) as the path least detrimental to their interests.

Justice in accordance with international law is thus a rare event. But justice dispensed against the former head of a US client state in the courts of the US' closest ally almost defies belief. For this reason alone, the efforts to extradite former Chilean dictator Augusto Pinochet from the UK to Spain deserve careful analysis by political scientists and scholars of international relations. For lawyers, the series of cases leading to UK Home Secretary Jack Straw's authorisation of extradition proceedings against Pinochet on 15 April 1999, represents an extensive ventilation of issues surrounding the application of international human rights norms in common law courts. The case was also procedurally dramatic, with the House of Lords taking the unprecedented step of setting aside its initial finding on the grounds of apprehended bias.

This note reviews the long, and still incomplete, history of the case against Augusto Pinochet. Part II situates attempts to prosecute Pinochet in the context of the legacy of authoritarian rule and the struggle against impunity in Latin America. Part III reviews the Spanish indictments that are the basis for the extradition proceedings in the UK. Part IV considers the four decisions of UK courts concerning former head of state immunity, and the application of international criminal law in domestic jurisdictions. Part V briefly reflects on the Pinochet Precedent, and the prospects for using domestic courts to pursue those responsible for grave human rights crimes.