VII. Strengthening the Rule of Law: Enhanced Domestic Criminal Enforcement

When confronted with an apparent tension between peace and justice, the longer-term potential benefits of accountability are unlikely to be given much weight. However, we have seen that one underappreciated benefit resulting from the promotion of international justice for serious crimes is its positive impact on the development of domestic enforcement tools and the rule of law. Prosecutions in courts far from the places where the crimes occurred have played a role in strengthening or galvanizing the establishment of domestic mechanisms to deal with these crimes. In part this has been done by facilitating an environment in which confronting past atrocities became expected and acceptable. International tribunals have also become a yardstick by which fair trial proceedings can be measured. They have also on occasion provided some direct assistance with capacity-building in domestic war crimes courts.

In various other ways the rise of international judicial mechanisms has contributed both directly and indirectly to development of rule of law. The desire to obtain and try cases handled by the ad hoc tribunals propelled both Rwanda and the countries of former Yugoslavia to create specialized chambers and prosecutorial mechanisms in order to meet the tribunals’ standards for transferring cases.[383] In each country in which the International Criminal Court is investigating, steps have been taken—at least nominally—to start domestic proceedings. Even in countries where ICC investigations are being considered but have not yet been opened, efforts have been made to hold perpetrators to account that otherwise would not have occurred in order to keep the cases in national courts. Finally, one other way in which the prospect of international justice has promoted rule of law is by increasing awareness of crimes that fall under international jurisdiction. As leaders keep one eye on the court, they have a new incentive to educate their troops about what conduct constitutes a prosecutable offense.

A. Ad hoc tribunals

International tribunals have advanced efforts to prosecute in national courts. The scale and brutality of crimes in the former Yugoslavia and Rwanda led the Security Council to establish ad hoc tribunals to bring perpetrators to justice for the human rights violations committed during these conflicts. In establishing the ICTY, the UN secretary-general stressed that it was “not the intention of the Security Council to preclude or prevent the exercise of jurisdiction by national courts” and encouraged national courts to exercise jurisdiction in accordance with their national laws and procedures.[384] Nonetheless, there was limited capacity or public support for war crimes prosecutions in the former Yugoslavia at that time. Over the years, this has changed to some degree. The tribunals assisted in creating an environment in which, at a minimum, there was recognition that if war crimes prosecutions had to happen, it was preferable for them to take place in domestic courts. As the ad hoc tribunals began preparations for closure, improving national courts became a priority. In 2003, the Security Council noted that the “strengthening of national judicial systems is crucially important to the rule of law in general and to the implementation of the ICTY and ICTR Completion Strategies in particular.”[385]

In order to give effect to the broad strategy for winding down operations endorsed by the Security Council, the ICTY’s rules were amended in September 2002 to grant the tribunal broader powers for referring cases and dossiers to national jurisdictions.[386] The same strategy was adopted at the International Criminal Tribunal for Rwanda. This strategy spurred positive legal change in the states of the former Yugoslavia and in Rwanda, even if the actual impact of the change is not always clear.

1. Bosnia and Herzegovina

Profound deficiencies in Bosnia’s justice system during and following the conflict severely limited local efforts to combat the rampant impunity for war crimes. Although legal reform was underway as the country recovered from the conflict, the ICTY was a catalyst for additional changes. The tribunal was instrumental both in creating the War Crimes Chamber in Bosnia and in ensuring its effectiveness as an institution.

As the ICTY began to contemplate how to close its operations, its focus on creating the capacity to fairly prosecute war crimes cases in Bosnia sharpened. A key component of the ICTY’s strategy to clear its docket was transferring cases of mid- and lower-level accused to national courts in Bosnia.[387] However, it could only transfer cases if its officials were confident that Bosnia’s courts would be able to handle the cases in an effective way consistent with internationally recognized fair trial standards.

Although legal reform had begun, there were still deficiencies that needed to be addressed before the ICTY cases could be transferred. To address these concerns, a 2002 report prepared by the ICTY for the Security Council recommended the creation of a special division within the State Court to handle war crimes cases. The report recommended that the division, for a limited time, be composed of both international and national judges. It also suggested a number of reforms to the Bosnian legal system (as well as practical arrangements) that would need to be in place before transfers could occur.[388] The Security Council endorsed the ICTY’s recommendations.[389] The following year the ICTY and the Office of the High Representative for Bosnia and Herzegovina issued conclusions recommending the creation of a specialized chamber within the Court of Bosnia and Herzegovina to try the most sensitive war crimes cases. The joint recommendations resulted in a series of laws adopted in 2004 by the Bosnian Assembly that ultimately created the court. The ICTY was heavily involved in drafting this legislation and the laws creating a specialized war crimes unit in the prosecutor’s office.[390]

On March 9, 2005, the War Crimes Chamber in Sarajevo began operations. The ICTY Appeals Chamber referred its first-ever case to the War Crimes Chamber on September 1, 2005. In doing so, it confirmed that the War Crimes Chamber was fully capable of providing the accused, Radovan Stankovic, with a fair trial.[391] Further referrals have been made since then.

The War Crimes Chamber and the ICTY Registry and Office of the Prosecutor remain in close contact. Officials within the War Crimes Chamber registry and the ICTY are designated to facilitate transfer of case material and evidence from the ICTY to the War Crimes Chamber. The prosecution teams at the Special Department for War Crimes in Sarajevo have been provided with access to the ICTY’s database of evidence.[392] Defense counsel for the court also has access to the ICTY’s database on a more ad hoc basis.[393]

In addition to cases referred to it by judges at the ICTY, the War Crimes Chamber is responsible for dossiers submitted to it by the ICTY’s Office of the Prosecutor where investigations have not yet been completed. Most of its caseload, however, consists of cases initiated locally. Although the court was initially staffed by both nationals and internationals, the chamber is essentially a domestic institution operating under national law and international involvement is being phased out. The court has enhanced the capacity of professionals and institutions in Bosnia to conduct fair and effective war crimes trials and is playing an important role in bringing justice for the atrocities committed during the war and restoring confidence in the rule of law. Although the court confronts a number of difficulties, including an extensive caseload and a lack of resources, the establishment of the court is a step forward.[394]

Prospects of international justice also may have increased awareness, to some extent, of crimes that fall under international jurisdiction. The ICTY’s prosecutions prompted Bosnian military leaders to broadcast definitions of Geneva Convention offenses to their troops in the midst of the conflict, even if this was only done to provide cover for unlawful actions.

2. Serbia

Although the ICTY did not play a direct role in establishing Serbia’s War Crimes Chamber, the ICTY did help spur the creation of the chamber indirectly. Government officials who supported domestic prosecutions did so to bolster the argument against holding trials at the ICTY, rather than out of a genuine commitment to accountability.[395] As a Serbian journalist told the Open Society Institute, “It’s simple. If not for the Hague Tribunal, no one [in Serbia] would ever actually bring to trial anyone who committed these crimes.”[396]

Some in government supported the establishment of a War Crimes Chamber in Serbia because they believed that it would result in the transfer of a number of cases to Serbia as part of the ICTY’s completion strategy.[397] Serbian Prime Minister Kostunica tried to convince the tribunal that Serbia could prosecute cases of indictees who had not yet been arrested and surrendered to The Hague. Anti-Hague sentiment may have also made the idea of domestic prosecutions more palatable to the Serbian population. A public opinion survey taken in late 2004 found that 71 percent of the people surveyed thought that it would be better to institute war crimes prosecutions in local courts rather than in The Hague.[398] The Serbian War Crimes Prosecutor himself was motivated in part because the alternative to national prosecutions was The Hague, though his incentive was more a matter of professional and national pride.[399]

Despite opposition from extreme nationalists, the chamber came into existence after a change in government resulted in a period of reformist advances. Strong international engagement helped ensure that the chamber was eventually created.[400] The War Crimes Chamber has since had some positive impact in Serbia: its prosecutions have been seen by the public as more legitimate than those conducted in The Hague, where defendants are sometimes viewed as “heroes” or “patriots,”[401] though many still view prosecutions as the price that has to be paid for EU ties.

After the War Crimes Chamber was established, the ICTY played an important role in helping it become effective. Under a 2006 Memorandum of Understanding between the ICTY Office of the Prosecutor and the War Crimes Prosecutor’s Office in Serbia, Serbian war crimes prosecutors have access to the ICTY’s database.[402] Former and current ICTY staff have been engaged in facilitating contacts with ethnic Albanian witnesses for cases involving crimes in Kosovo being handed over to Serbia from the ICTY; without this link, it may have been hard for the office to establish a relationship with witnesses because of suspicions of bias against ethnic Albanians.[403] In addition, the ICTY has participated in extensive training programs for Serbian war crimes prosecutors and judges both in Serbia and in The Hague.[404] The ICTY inspired a number of innovations including the establishment of a victim and witness support unit, the authorization of the use of video links, and the preparation of audio recordings of trial proceedings.[405] The tribunal has also had a positive impact on domestic courts by serving as a model of fair process.[406]

The court still suffers from an inability or unwillingness to prosecute high-level leaders. In addition, a string of reversals by the predominantly Milosevic-appointed Supreme Court demoralized victims who participated in proceedings. Despite these flaws, the court is a critical forum ensuring accountability for the crimes committed during the Balkans conflicts.

3. Croatia

In the years following the Security Council statements supporting transfer of cases from the ICTY to national courts, Croatia also made changes to its legal system. In October 2003 the Croatian parliament passed legislation providing for the establishment of new specialized chambers for war crimes in four county courts in Croatia (Osijek, Split, Zagreb, and Rijeka).[407] Croatian courts hear about 30 cases a year relating to crimes committed during the 1991-95 war in Croatia.[408] Croatia also adopted a Law on Witness Protection in October 2003 and created a Department for Support to Witnesses and Participants in War Crimes Proceedings within the Ministry of Justice two years later. These laws, as well as the act incorporating the International Criminal Court statute into domestic law, include witness protection measures similar to those used by the ICTY such as use of pseudonyms, witness relocation, and testifying with image and voice distortion. In 2004 Croatia amended its penal code to conform more closely to the ICTY statute by providing for liability based on command responsibility.

In 2005, citing these developments, ICTY’s referral bench ordered its first case to be transferred to one of the specialized courts in Croatia.[409] Since then, ethnic bias in court proceedings has limited the effectiveness of these proceedings, and the practical effect of the changes to the law is unclear.[410] However, legal reform is a first step towards improved national enforcement mechanisms.

4. Rwanda

The Rwandan justice system, feeble and poorly staffed before the genocide, was further crippled by wartime losses. In the aftermath of the conflict, the justice system faced the daunting task of prosecuting hundreds of thousands of participants in the genocide. Over the following years, with substantial assistance from the international community, the staff and infrastructure of the national system was rebuilt. Laws were adopted to increase the independence of the judiciary, raise the standards for hiring judges, and improve efficiency in the handling of cases.[411] The code of criminal procedure was changed in 2004 to grant all persons the right to have counsel at all stages of proceedings, including interrogations. The new code also grants judges habeas corpus powers to compel police and prosecutors to present before them detained persons who might have been illegally held, and authorizes them to punish those state agents who have detained persons illegally.[412]

Significant legal reform was also undertaken by Rwanda in 2007 to facilitate the transfer of cases from the ICTR to its national courts. Because the tribunal could not transfer cases to jurisdictions with the death penalty, Rwanda abolished the death penalty. As a result, 1,365 persons had their sentences commuted to life in prison.[413] Also as part of its efforts to get ICTR cases referred to Rwanda, the parliament adopted a Transfer Law that included a number of procedures to strengthen the rights of the accused, constructed a new prison that meets international standards, and developed witness protection and assistance programs.[414]

Despite these reforms, significant concerns remain about the ability of the defendants to obtain a fair trial in Rwanda.[415] So far, the ICTR has not allowed any cases to be transferred to Rwandan national courts, citing, in part, difficulties in obtaining and securing witnesses for the defense.[416] Following a decision by the Appeals Chamber denying transfer to Rwanda in part because of Rwanda’s penalty structure,[417] the Rwandan parliament passed a law removing the possibility of a life sentence in solitary confinement for all cases transferred from the ICTR or extradited from other countries.[418] Rwandan officials have also indicated an intent to make further reforms to satisfy the concerns of the judges about defendants’ rights at trial, in order to obtain cases from the ICTR under the tribunal’s rules.[419] Thus, the tribunal has acted as a catalyst for improving laws in Rwanda that has resulted in improved domestic mechanisms for accountability.

B. International Criminal Court

Unlike the ad hoc tribunals, the ICC only has jurisdiction over cases when national jurisdictions are unwilling or unable genuinely to carry out the investigation or prosecution. Because national courts have priority, states have the opportunity to bring cases that they might not otherwise pursue. In each of the situations that the ICC is investigating, at least nominal efforts have been made to improve domestic justice mechanisms for serious international crimes as a result of ICC involvement.

1. Uganda

The ICC’s involvement in Uganda sparked an increased focus on prosecution of war crimes and crimes against humanity domestically. As mentioned in Chapter III.D, before the ICC’s involvement, the Ugandan Parliament had passed a law providing a blanket amnesty to rebels who surrendered to the government. However, during the peace talks between the government and the Lord’s Resistance Army which began in July 2006, interest in national prosecutions gained momentum because they were seen as an attractive alternative to ICC prosecutions of LRA leaders. The agreement signed between the LRA and the Ugandan government in February 2008 ultimately provided for a special division of Uganda’s High Court to prosecute those who planned or carried out war crimes or other widespread, systematic, or serious attacks on civilians.[420] The agreement also included measures to establish a special investigative unit headed by Uganda’s director of public prosecutions and a registry with authority to facilitate protection of victims and witnesses.[421] Although the final peace accord was never signed by LRA leader Joseph Kony, the conclusion of the accountability agreements reflected increased attention to prosecutions for serious crimes at the national level and creates the possibility of LRA prosecutions beyond ICC suspects. Though legislation to establish the war crimes division of the High Court and amend Uganda’s law to allow prosecution of international crimes is still pending, judges and a registrar have been appointed.[422]

2. Democratic Republic of Congo

In 2004, the same year Congo referred the situation in its country to the ICC for investigation and prosecution, the military courts launched their own prosecutions for war crimes and crimes against humanity relying on definitions of crimes contained in the Rome Statute.[423] In April 2006 a military court in Mbandaka (in northwest DRC) found seven army officers guilty of mass rape of more than 100 women at Songo Myobo in 2003, the first time rape was tried as a crime against humanity in Congo. In August 2006 a militia leader was sentenced to 20 years’ imprisonment for war crimes committed in Ituri.[424] A military court in Katanga convicted Gedeon Kyungu Mutanga and others of crimes against humanity between 2004 and 2006, the largest trial of this kind in Congo’s history.[425] Although only a handful of trials have been held so far against mainly low-ranking soldiers (and there have been fair trial concerns with those), in each of these cases the court has applied definitions of crimes in the Rome Statute.[426] These cases represent small but significant steps forward in addressing the longstanding culture of impunity in the DRC.

The ICC’s work in Congo has also helped raise awareness of what acts constitute war crimes. As in Bosnia, the ICC’s investigation in Congo sparked radio broadcasts by military leaders in 2004 defining international crimes for the soldiers. In addition, the arrest of rebel commander Thomas Lubanga on charges of recruitment and use of child soldiers in March 2006 dramatically increased awareness among leaders of armed groups and the general public that using child soldiers was unlawful.[427]

3. Sudan

The government of Sudan’s refusal to cooperate with the ICC has been made in part on the basis that it has the capacity to try cases in national courts and, therefore, the cases are inadmissible. To bolster its claim, the government has periodically announced measures ostensibly designed to improve domestic accountability. On June 7, 2005, one day after the ICC prosecutor announced that he was opening investigations into the events in Darfur, the Sudanese authorities established the Special Criminal Court on the Events in Darfur to demonstrate the government’s ability and willingness to handle prosecutions domestically. When establishing the court, a government official stated that it was “considered a substitute to the International Criminal Court.”[428] A Ministry of Justice statement challenging the ICC’s jurisdiction made explicit reference to the provision of the Rome Statute, article 17, which allows the court to determine that a case is inadmissible if national authorities are prosecuting the case.[429] Later that year, additional decrees broadened the court’s jurisdiction to include crimes under “international humanitarian law” and established three permanent seats for the court in Nyala, Fashir, and Geneina, the state capitals respectively of South Darfur, North Darfur, and West Darfur.[430] Although these courts have been ineffective, in one of the handful of cases that they have tried, a defendant faced the charge of looting as defined in the Rome Statute. Although the defendant was not convicted for this crime, it marked the first time that the Rome Statute (which Sudan has signed but not ratified) was used in proceedings in Sudan.[431]

Apart from the establishment of special courts, the Sudanese government has taken additional steps to outwardly improve national accountability mechanisms as a way of possibly avoiding ICC jurisdiction. On September 18, 2005, a Specialized Prosecution for Crimes against Humanity Office was established in Khartoum by a decree from the Acting Minister of Justice.[432] In the time since the ICC prosecutor announced that he was seeking his first arrest warrants for Ahmed Haroun and Ali Kosheib, the government has periodically indicated that it was investigating Kosheib for crimes in Darfur.[433] Additional efforts have been undertaken to reform Sudan’s criminal code. In November 2008 the government passed amendments to the code to include international crimes such as crimes against humanity and war crimes, though no one has been charged under these provisions. [434] Though no real progress has been made towards ending impunity for atrocities in Darfur and lack of political will remains an obstacle for genuine proceedings, the institution of legal reforms is still a positive step.

4. Central African Republic

On October 25, 2005, the Central African Republic’s former army chief of staff, Gen. Francois Bozize, launched a rebel offensive against then-President Ange-Felix Patasse. Unable to rely on his army, which had been weakened by several mutinies and military coups, Patasse obtained support from forces of the Congolese rebel Jean-Pierre Bemba’s Congo Liberation Movement and a mostly Chadian mercenary force. Both groups committed widespread atrocities, including massacres and rapes, during 2002 and 2003. Fighting continued sporadically from October 2002 to March 15, 2003, when Bozize finally seized power.

On December 22, 2004, the CAR government referred the events in 2002-03 to the Office of the Prosecutor after CAR’s Court of Appeal recognized the inability of domestic courts to investigate and prosecute war criminals effectively. Two-and-a-half years later the ICC prosecutor announced that he would investigate crimes committed during the 2002-03 fighting and would monitor more recent events to determine whether crimes committed in the north as part of a counterinsurgency campaign would warrant investigation.

The possibility of ICC prosecution (an issue stressed by victims’ associations calling for justice) increased pressure on the CAR government to respond to abuses committed in the north as part of a conflict that began following the May 2005 elections. Human Rights Watch’s September 2007 report on violence in the CAR,[435] which named suspects and emphasized ICC jurisdiction, generated a great deal of publicity around the question of whether the ICC would investigate leaders of the elite Presidential Guard (which is under the president’s control) and made it more difficult for the government to turn a blind eye to crimes. Following the publication of Human Rights Watch’s report, President Bozize admitted that CAR forces had committed abuses and said that those responsible will be held to account.[436] The ICC prosecutor put direct pressure on the CAR authorities to follow up on prosecution for the more recent crimes. On June 10, 2008, the ICC prosecutor addressed a letter to President Bozize noting that “sustained attention needed to be paid to the acts of violence committed in the north of the Central African Republic.”[437] In response Bozize sought the United Nations’ assistance in suspending ICC investigations, arguing in a letter to the UN secretary-general that the CAR justice system is competent to investigate and prosecute more recent crimes itself.[438]

Though there has been little evidence of genuine will to prosecute in CAR (by mid-2009 only individual low-ranking members of the CAR security forces had been prosecuted and convicted of ordinary crimes such as assault, battery and manslaughter), in September 2008 the CAR government established an office for international humanitarian law within the army, which is responsible for conveying the laws of war to its members.[439] Abuses in the north diminished after international pressure caused the government to withdraw much of the Presidential Guard from the area.[440] The involvement of the ICC has at least served to increase awareness of crimes, which may be the first step in preventing them.

5. Situations under analysis: Kenya and Colombia

Even in countries where the prosecutor is undertaking preliminary analysis to determine whether to open an investigation, the looming possibility of ICC involvement has been enough to spur national enforcement efforts.

Kenya

Violence has been a regular feature of Kenyan elections since the restoration of multiparty politics in 1991. Yet, as discussed in Chapter VI.A, no one has been held to account for these crimes. The results of investigations into political violence were routinely swept under the rug, with the result that impunity became the order of the day.[441] The explosion of an even greater level of violence following elections in late 2007 resulted in calls to break the cycle of impunity. This time, in the context of Kenya’s status as a party to the ICC and as a result of greater international involvement, the demands for justice appear more promising. The Commission of Inquiry into Post-Election Violence (“Waki commission”), which was appointed by the coalition government as part of the mediation process, recommended in its October 2008 report the creation of a special tribunal with an international component to try those most responsible for the attacks.[442] The commission added teeth to its recommendation by handing a sealed envelope containing a list of leading suspects for the crimes and supporting evidence to the mediator, Kofi Annan, with the instruction that the envelope be passed to the ICC prosecutor should efforts to set up the tribunal fail.[443] In this way, the commission sought to ensure that the results of their inquiry would not be ignored. The ICC prosecutor has also made statements indicating that he is analyzing the post-election violence in Kenya to determine whether crimes under his jurisdiction were committed.[444]

Only hours before the commission’s initial deadline for names to be handed over to the ICC, the Kenyan prime minister and president signed an agreement to create a special tribunal in December 2008.[445] A truth commission had already been established in late 2008 to look into crimes since independence in 1963,[446] and an International Crimes Bill was fast-tracked through parliament in December 2008 in accordance with Waki commission recommendations.[447] Since then, however, a draft statute establishing the special tribunal was voted down in parliament, and although the government claims to be working to ensure that justice is done, it appears to be doing no more than stalling on this point.[448] Although the ultimate fate of the special tribunal has not yet been determined (and hence the envelope containing the list of leading suspects has not yet been unsealed), the existence of the ICC and the threat of ICC prosecution have changed the discussion about accountability in Kenya.

Colombia

Colombia has kept one eye on the ICC as it decides how to handle human rights abuses committed by paramilitary death squads. Colombia ratified the Rome Statute on August 5, 2002, with a declaration that it would not accept the ICC’s jurisdiction over war crimes until 2009. The possibility of ICC involvement has had some influence on decisions made about national accountability in the meantime.

For the last three decades, paramilitary groups allied with powerful political, military, and economic elites have ravaged Colombia with almost complete impunity while purporting to fight left-wing guerillas. Despite massacres, torture, enforced disappearances, and murders of thousands of civilians, human rights defenders, and local leaders, the paramilitaries and their accomplices were consistently able to avoid investigation, prosecution, and punishment.[449] Extradition requests in 2002 from the United States spurred paramilitary leaders to negotiate a deal with the Colombian administration in the hopes of avoiding lengthy prison terms in the United States for drug trafficking. The negotiations resulted in Law 975 (commonly known as the “Justice and Peace Law”) which was the country’s first transitional justice law.[450] In exchange for their groups’ supposed demobilization, the law offered paramilitary commanders responsible for horrific atrocities reduced sentences of five to eight years (they could be reduced further to less than three years) that were grossly disproportionate to their crimes. The law contained serious flaws, but was improved after the Colombian Constitutional Court reviewed it in 2006, citing international standards on truth and justice.[451]

The ICC prosecutor has from the start of the demobilization and the negotiations over the Justice and Peace Law expressed an interest in the process. He sent a letter to the Colombian government in March 2005 requesting information about the draft law then being considered.[452] The prosecutor followed up by posing questions about the law’s implementation and about the investigation of paramilitary accomplices in the political system, noting that his office is “monitoring the open proceedings against the paramilitary leaders, an issue that implicates members of Congress.”[453] During a visit to Colombia in 2007 he stated, “Information has come up that implicates other people who are being investigated. These people could also have greater responsibility for the crimes, and so we are interested in them. We are watching how Colombia processes this type of case. We’re checking.”[454] Again in 2008 the prosecutor sought information on how those most responsible for crimes within the ICC’s jurisdiction will be brought to trial.[455]

At various times, the Colombian government has proposed bills or initiatives that could let paramilitaries or their accomplices off the hook for their crimes. The ICC prosecutor’s expressions of interest in the Colombian proceedings have received extensive coverage in the Colombian media, and may have been one reason why the Colombian government has not followed through with those initiatives.

C. Universal Jurisdiction

Over the past two decades, several European states began to pursue suspects abroad who had committed serious international crimes against their citizens. These efforts to bring justice in domestic courts through universal jurisdiction laws or “passive nationality” (where the victim is a citizen of the country bringing charges) created profoundly important “spillover effects” in national courts of states where the crimes occurred: they sparked investigations and prosecutions in Latin America. The arrest of Augusto Pinochet in the United Kingdom and the resulting litigation in Belgium, France, Spain, and Switzerland prompted an opening of the domestic courts in Chile to victims who had previously been denied access to effective remedies. In Buenos Aires, Argentina, a Spanish judicial order contributed to the August 2003 reopening of trials of military officers responsible for gross violations of human rights during Argentina’s “dirty war.” The Spanish judge had issued warrants for the extradition of 48 former military officers and a civilian accused of torture and “disappearances” in Argentina so that they could stand trial in Spain. These cases created a renewed interest in domestic accountability and increased pressure on national courts to handle these cases at home. In this way prosecutions by foreign courts have helped jumpstart use of national courts to try leaders for abuses committed in their own country.

1. Chile

On October 16, 1998, officers of the London Metropolitan Police, acting at the request of Spanish magistrate Baltasar Garzon, arrested former Chilean dictator Gen. Augusto Pinochet while he was recovering from back surgery in a private London clinic. The arrest shocked Chile and gave rise to concerns that efforts to prosecute Pinochet would destabilize, if not destroy, the country’s fragile democracy.

During Pinochet’s 17-year rule in Chile, more than 2,600 people were killed or “disappeared” by his security forces, more than 28,000 were tortured, and hundreds of thousands were exiled or fled the country in fear of their lives. Despite the regime’s crimes, Pinochet and his colleagues had seemed untouchable by the law. Even following his return to civilian life in March 1998 after a quarter-century as Chile’s supreme military leader, Pinochet had never been prosecuted by Chilean courts for any offense: his position as senator-for-life gave him constitutional immunity from arrest or criminal process. In addition, in 1978 he had granted his government a self-amnesty for the period of September 11, 1973, through March 10, 1978, when military repression and human rights violations were at their height. Furthermore, he continued to have great political influence with former military associates in parliament and with the judiciary, some of whose senior members he had appointed.[456] His arrest on charges of egregious human rights violations as a result of an investigation conducted by a Spanish magistrate seemed inconceivable.

Ultimately, the “Pinochet affair” had important and largely unforeseen consequences in Chile. The arrest made it obvious that Chile’s decision to evade human rights obligations under international law was seriously out of step with world opinion. It also spread concern for the first time across the political spectrum that the families of the dead and “disappeared” were owed answers about the fate of their relatives from those responsible, and that the success of Chile’s transition to democracy depended on answers being provided. As Socialist Party leader Ricardo Lagos expressed it, “The international community ... handed us a yellow card.”[457] That some politicians on the political right were willing to consider that human rights violations were the result of government policy would not have been a possibility prior to the arrest.[458]

At the same time, Pinochet’s arrest and the charges against him were highly controversial. Some Chilean leaders argued that “a giant bomb had been dropped on the [democratic] transition”[459] and that if not overturned soon, the decision “will inevitably create a climate of instability ... and could lead to a grave deterioration in the national co-existence it cost us so much to construct.”[460] However, the forebodings expressed by opponents of Pinochet’s prosecution that “reopening old wounds” would destabilize Chile’s fragile democracy were shown to be greatly exaggerated. Those who claimed Pinochet’s arrest would bring chaos and instability to Chile, upsetting Chile’s progress toward full democracy, were proved wrong as the predicted apocalypse never occurred. Chileans adapted to the momentous developments with little overt lawlessness.[461] Except for moments of political tension and noisy street demonstrations when decisions went against Pinochet, there were only isolated incidents of violence.[462] Opinion polls conducted at explosive moments of the Pinochet crisis showed that more than two-thirds of the respondents did not think that democracy was in danger or that the arrest affected their lives; a solid majority wanted Pinochet to face justice and most wanted him to face justice in Chile.[463]

The Chilean government’s opposition to the warrant was based on the principle of territorial jurisdiction. As President Eduardo Frei stated at the time, “All our efforts to get Senator Pinochet home have had a sole objective: that it should be Chilean courts not those of another country that apply the law.”[464] Indeed, the law favors domestic courts over foreign ones for extraditable crimes committed by an individual in their home country. However, under the principle of aut dedere aut judicare (either extradite or prosecute), governments that refuse to extradite persons wanted for human rights abuses are obliged to try them themselves.

But, as already noted, little had been done nationally to prosecute him. The Chilean government’s initial efforts to show Britain that Chile was seriously investigating Pinochet’s criminal responsibility in Chile were unsuccessful.[465] Yet under the surface, the Pinochet affair wrought important changes: it helped spur efforts in Chile to prosecute the atrocities committed while Pinochet was in power. When Pinochet returned to Chile after the United Kingdom then-Home Secretary Jack Straw decided to deny Spain’s request for extradition on medical grounds in March 2000, he came back to a changed legal landscape.

In the first year following the arrest, three generals, including a former member of the military junta, and at least 30 officers and former officers of the army and air force were charged for grave human rights crimes in Chile. The Supreme Court allowed prosecutions to proceed despite the 1978 amnesty law due to a new doctrine which in theory permitted the prosecution of “disappearances.”[466] By the time that Pinochet returned to Chile, he faced more than 60 domestic criminal complaints lodged since January 1998 by relatives of victims of extrajudicial executions, “disappearances,” and torture.[467] Three months later, the Santiago Appeals Court voted to remove his immunity, finding sufficient grounds for him to be prosecuted. The decision was confirmed by a wide margin by the Supreme Court. With this decision, Pinochet’s claim of immunity, which had seemed impenetrable, was in tatters. This decision contributed to a more favorable climate for other human rights cases (though some uncertainty remains because court rulings in Chile are not binding on cases other than the one under review).[468] Pressure to prosecute resulting from extradition requests has also resulted in the reopening of previously closed cases.[469] However, a bill promoted by the government to amend the criminal code so that crimes against humanity are not subject to amnesties or statutes of limitation remains deadlocked in Congress at this writing.[470]

At the time of Pinochet’s death in December 2006, he was facing trial in three human rights cases and others were in the pipeline. Despite litigation over his fitness to stand trial, judges placed him on several occasions under house arrest and in October 2006 accused him personally of torture. As of July 2008, 482 former military personnel and civilian collaborators were facing charges for enforced disappearances, extrajudicial executions, and torture; 256 had been convicted (of whom 83 had had their conviction confirmed on appeal); and 38 were serving prison sentences.[471]

2. Argentina

For many years Argentina seemed to have closed the books on the numerous systematic human rights violations committed under the military juntas that ruled the country from 1976 to 1983. However, as in Chile, efforts to bring to account human rights violators were revitalized, in part, by efforts of victims and human rights groups to bring perpetrators to justice in various European countries.

From 1976 to 1983 Argentina was governed by a military dictatorship that committed horrendous human right violations. After the armed forces took power in a March 1976 coup, a “dirty war” was conducted in which the military and police abducted at least 14,000 suspected leftists, tortured them in secret detention centers, executed them, and disposed of their bodies in secrecy (many victims were dropped from planes into the ocean). After democracy was reestablished in 1983, prosecutors began trying members of the military juntas. Ten senior military officers were convicted in Buenos Aires of crimes such as murder and torture. However, the trials and sentencing of junta leaders and military and police officers led to a backlash among military officers. Then-President Raul Alfonsin rushed two laws through Congress on December 24, 1986, and June 5, 1987, hoping to appease military objections to the prosecutions.[472]

The full-stop law of 1986 (Law No. 23,492) set a 60-day deadline for the initiation of new prosecutions. When that law failed to thwart the prosecution of large numbers of defendants, the 1987 due obedience law (Law No. 23,521) was passed, granting automatic immunity from prosecution to all members of the military except top commanders.[473] The Supreme Court’s ruling later that year that the due obedience law was constitutional effectively put a stop to the prosecution of “dirty war” crimes for years.[474] The only crime that could be prosecuted was baby-snatching—the theft of babies born to mothers held in secret detention and subsequently killed was considered too abhorrent to absolve.[475] Those who had been convicted in trials prior to passage of the immunity laws were granted pardons in 1989 and 1990 by then-President Carlos Menem, ostensibly as a reconciliation measure.[476] In the early 1990s any possibility of successful prosecution of the thousands of human rights crimes facing the courts seemed to have been foreclosed.

During the 1990s, human rights groups campaigned and litigated to ensure that judicial investigations into human rights crimes continued even though prosecution was barred. “Truth trials” to establish the truth about the fate of the missing were held, but the full-stop and due obedience laws continued to protect perpetrators from prosecution.[477] As one of the complainants’ lawyers explained, “When the Truth Trials began, we had no possibility of demanding trial and punishment of the guilty, because Pinochet was not then detained, the [UK] House of Lords had not yet ruled, Baltazar [sic] Garzon had not yet asked for the extradition of the Argentine military officers. All of this created a universal jurisdiction consciousness, an understanding that crimes against humanity can be prosecuted anywhere in the world.”[478]

Following the Pinochet case, foreign efforts at prosecution of Argentines for crimes committed during military rule picked up speed. Cases in Italy, France, Spain, Sweden, and Germany were brought for crimes committed in Argentina against citizens of those countries.[479] On December 30, 1999, Spanish judge Baltasar Garzon issued an international arrest warrant for 48 former military officers.[480] A former Argentine military official, Ricardo Miguel Cavallo, was arrested in Mexico in August 2000 and extradited to Spain, the first time a suspect would be sent to a third country to face charges for human rights abuses committed in their home country.[481] These cases helped increase pressure to repeal the amnesty laws in Argentina.

Initially the government refused to cooperate with investigations being conducted abroad, on grounds of national sovereignty, and even issued orders to block the investigations.[482] Although one Argentine judge ordered arrests of suspects on the basis of another Garzon request, they were subsequently released on the basis of decisions made in the executive branch. Argentina’s ministers of foreign relations and defense rejected extradition requests asserting that only Argentina has the right to try those responsible for crimes committed on its territory.[483]

However the principle of “extradite or prosecute” created additional pressure to pursue these cases in domestic courts. Thus, the government under then-President Fernando de la Rua undertook to submit the extradition cases to national courts for possible prosecution in Argentina.[484] The defense minister who rejected a 2001 request by Spanish judge Garzon for 18 Argentines referred the cases to the attorney general for prosecution.[485]

The watershed moment came with a landmark decision by Argentine Federal Judge Gabriel Cavallo in 2001 declaring the amnesty laws unconstitutional and without legal effect. In his decision, he drew on facts established in Garzon’s investigation in Spain as well as on US extradition proceedings. He cited the Pinochet case and other international decisions to show that these cases were of international concern and that Argentina had an international legal obligation to prosecute.[486] When asked why Argentine judges waited so long to overturn the amnesty laws, Cavallo stated,

External and internal pressure was growing and public opinion was changing. Then foreign judges began making concrete detention requests, and those of us working in the area began to think “This won’t be considered a serious country until we solve this problem.” Foreign governments didn’t want to be bothered with having these cases in their courts, and they put pressure on the Argentine government to not stand in the way of the local trials so that foreign judges would not end up doing these investigations. That changed the pressures on judges.[487]

In affirming this decision, the Federal Court of Buenos Aires found, “To do justice is not an option, but an obligation.”[488] In 2005 the Supreme Court affirmed once and for all the unconstitutionality of the immunity laws, which by then had been annulled by the Argentine Congress.[489]

Since 2005 several federal judges have struck down the pardons that President Menem granted in 1989 and 1990 to former officials convicted of or facing human rights violations.[490] As of late 2008, nearly 400 people were facing charges for crimes committed during the last military dictatorship, the majority of whom were in pretrial detention.[491] Those detained include former Navy Capt. Alfredo Astiz (“the angel of death”) who was sentenced to life imprisonment in absentia by French and Italian courts after his extradition was refused by Argentina, for the “disappearance” of two French nuns and three Italian citizens.[492]

The other issue illustrated by the experience of Chile and Argentina is that even decades after crimes are committed, the wounds do not heal if the past is not confronted. Years after the military coup in Argentina, tens of thousands still take to the streets to demand justice for the crimes.[493]