The Pinochet Case - A Wake-up Call to Tyrants and Victims Alike
On the night of October 16, 1998, London police arrested Gen. Augusto Pinochet. They
were acting on a Spanish warrant charging the former dictator with human rights crimes
committed in Chile during his seventeen-year rule. The British courts rejected Pinochet's claim
that he was entitled to immunity and ruled that he could be extradited to Spain to stand trial.
The case against Pinochet did not begin in October 1998, however. It really began in the
early years of Pinochet's 1973-1990 dictatorship when brave human rights activists began
documenting each case of torture, murder, and "disappearance" carried out by Pinochet's forces.
When democracy was restored in Chile, an official truth commission built on that work to
compile detailed information on over 2,000 cases of killings and "disappearances." But before
leaving power, General Pinochet had created for himself, and most of his accomplices, a legal
structure of absolute impunity--or so he thought.
In 1996, lawyers acting on behalf of victims of military repression in Argentina and Chile
who were unable to pursue their claims at home filed criminal complaints in Spain against the
former military leaders of those countries, including General Pinochet. Although most of the
crimes were committed in Argentina and Chile, Spanish courts allowed the cases to proceed in
Spain, using the principle of "universal jurisdiction" over human rights atrocities that is firmly
enshrined in Spanish legislation and international law though rarely invoked.
In October 1998, Pinochet traveled to Britain. On October 16, the judge investigating one
of the Spanish cases, Baltasar Garzón, requested the British authorities to arrest the former
dictator. He was arrested that night in London. Spain later formally sought Pinochet´s
extradition, as did Belgium, France, and Switzerland. Pinochet challenged his arrest on the
ground that he enjoyed immunity from arrest and extradition as a former head of state. The
House of Lords, Britain's highest court, twice rejected Pinochet's claim of immunity. In its first
judgment, later annulled, the Lords ruled that although a former head of state enjoys immunity
for acts committed in his functions as head of state, international crimes such as torture and
crimes against humanity were not "functions" of a head of state. In the second, more limited,
judgment, the Lords held that once Britain and Chile had ratified the United Nations Convention
against Torture, Pinochet could not claim immunity for torture. A British magistrate then
determined that Pinochet could be extradited to Spain on charges of torture and conspiracy to
commit torture. In March 2000, however, after medical tests were said to reveal that Pinochet no
longer had the mental capacity to stand trial, he was released and he returned home to Chile.
Human Rights Watch described the Pinochet arrest as a "wake-up call" to tyrants
everywhere, but an equally important effect of the case has been to give hope to other victims
that they can bring their tormentors to justice abroad. Indeed, in January 2000, Human Rights
Watch helped Chadian victims to bring a criminal prosecution in Senegal against the exiled
dictator of Chad, Hissein Habre, who has been indicted and awaits trial on torture charges (see
This brochure attempts to outline the key elements of the "Pinochet precedent" --in
particular "universal jurisdiction"--so that victims and human rights activists can press for other
state criminals to be brought to justice abroad, and so that they understand the many obstacles to
What is Universal Jurisdiction?
The most striking feature of the Pinochet case was that a Spanish judge had the authority
to order Pinochet's arrest for crimes committed mostly in Chile and mostly against Chileans.
This authority derives from the rule of "universal jurisdiction": the principle that every state has
an interest in bringing to justice the perpetrators of particular crimes of international concern, no
matter where the crime was committed, and regardless of the nationality of the perpetrators or
Normally, jurisdiction over a crime depends on a link, usually territorial, between the
prosecuting state and the crime itself. But, as one leading lawyer said, "in the case of crimes
against humanity that link may be found in the simple fact that we are all human beings."A
principal pragmatic reason why international law provides for universal jurisdiction is to make
sure that there is no "safe haven" for those responsible for the most serious crimes.
Piracy was the classic "universal" crime, later joined by slave-trading. But these crimes
occurred across borders or on the open seas. Since the end of World War II, the list of crimes
giving rise to universal jurisdiction has grown to include many atrocities committed within
national borders, such as genocide, torture, "apartheid" and other "crimes against humanity." As
a United States court said in the landmark Filartiga case, in which the family of a Paraguayan
torture victim living in the U.S. brought a civil suit against his torturer who had come to the U.S:
"the torturer has become like the pirate and slave trader before him hostis humanis generis, an
enemy of all mankind."
What Crimes Give Rise to Universal Jurisdiction?
To determine which crimes give rise to universal jurisdiction under international law, we
look at international treaties--such as the U.N. Convention against Torture, or the Geneva
Conventions for war crimes--and the general custom of states ("customary international law")
under which genocide and "crimes against humanity" are considered crimes of universal
jurisdiction. In each case, however, the key to determining whether a prosecution can actually be
brought based on universal jurisdiction will be the laws of the particular state in which the case is
brought (the "prosecuting state"). Among the human rights crimes subject to universal
jurisdiction under international law are:
The 1984 U.N. Convention against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment--under which General Pinochet lost his immunity and was ruled
subject to extradition--provides that "[t]he State Party in the territory under whose jurisdiction a
person alleged to have committed [torture] is found shall,...if it does not extradite him, submit the
case to its competent authorities for the purpose of prosecution." As Lord Browne-Wilkinson, the
senior judge in the Pinochet case, said, "The purpose of the Convention was to introduce the
principle aut dedere aut punire--either you extradite or you punish." The Senegalese case against
Hissein Habre is also primarily based on the Torture Convention.
As of February 2000, 118 states had ratified the Torture Convention. Because of the
Convention's clear and unambiguous command, torture charges may be the most fruitful in
extraterritorial cases brought in these countries, as illustrated by the Pinochet and Habre cases.
The Convention defines torture as "any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him
or a third person information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity." The Convention calls for punishment not only of the
person who actually carries out the act of torture, but of those who are complicit or participate in
The widely-ratified U.N. Convention on the Prevention and Punishment of the Crime of
Genocide defines genocide as "any of the following acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of
the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately
inflicting on the group conditions of life calculated to bring about its physical destruction in
whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly
transferring children of the group to another group." The killings of Tutsis in Rwanda, Kurds in
Iraq and Muslims in Bosnia are recent examples of genocide. Spain accused Pinochet of
genocide, using a broader definition of genocide found in Spanish law which also punishes
attempts to eliminate political groups, but Britain did not retain this accusation.
Although the Genocide Convention does not specifically say so, under customary
international law any state may bring to justice, on the basis of universal jurisdiction, someone
accused of genocide.
The concept of "crimes against humanity" was first codified in the Charter for the
Nuremberg Tribunal that was created after World War II to try Nazi leaders. The Statute of the
emerging International Criminal Court (ICC) (article 7) now defines crimes against humanity as
certain acts such as murder, extermination, torture, enslavement, "disappearance," rape, sexual
slavery, etc. when committed as part of a "widespread or systematic attack directed against any
civilian population, with knowledge of the attack." Other, similar, definitions of this concept are
found in the statutes of the international criminal tribunals for the Former Yugoslavia and
Rwanda. In each case, it is the widespread or systematic nature of the crime that makes it a crime
Under customary international law, universal jurisdiction exists for crimes against
humanity. A note of caution is in order, however. Few states (Belgium, France and Israel are
three examples) have yet defined and codified crimes against humanity in their national
legislation. Many states will not bring or entertain prosecutions based on a crime not set forth in
its own laws--even one recognized under international law and which includes acts (murder,
torture) already prohibited in national law. In addition, national judges unschooled in
international law, as the British lords in the Pinochet case, are less comfortable using concepts of
customary law than they are in applying the clear language of treaties. Therefore, from a practical
viewpoint, "crimes against humanity" may not be as useful in transnational prosecutions as
torture or war crimes which have been more widely defined in international treaties and
incorporated into national legislation.
Traditionally, the concept of war crimes was used to refer to crimes in international
armed conflicts, and more precisely to "grave breaches" of the four Geneva Conventions of 1949
and their first Additional Protocol of 1977. However, it can be argued that recent developments
have expanded this concept to include serious violations of the customs and laws of war
committed either in an international or internal armed conflict.
It is undisputed that universal jurisdiction exists over grave breaches of the Geneva
Conventions and the first Additional Protocol of 1977. Each of the four Geneva Conventions,
which have been ratified by virtually every country, prescribe that "[e]ach High Contracting
Party shall be under the obligation to search for persons alleged to have committed, or to have
ordered to be committed, such grave breaches, and shall bring such persons, regardless of their
nationality, before its own courts."
"Grave breaches"of the Geneva Conventions and the first Additional Protocol include
such things as: wilful killing; torture or inhuman treatment, including biological experiments;
wilfully causing great suffering, or serious injury to body or health, extensive destruction and
appropriation of property, not justified by military necessity and carried out unlawfully and
wantonly; compelling a prisoner of war or other protected person to serve in the forces of a
hostile power; wilfully depriving a prisoner of war or other protected person of the rights of fair
and regular trial; taking of hostages; making the civilian population or individual civilians the
object of attack; launching an indiscriminate attack in the knowledge that it will cause excessive
loss of life, injury to civilians or damage to civilian objects; the transfer by an occupying power
of parts of its own civilian population into the territory it occupies, or the transfer of all or parts
of the population of the occupied territory within or outside this territory.
Serious violations of the laws and customs applicable in international armed conflict,
even if not considered "grave breaches" of the Geneva Conventions probably also give rise to
universal jurisdiction, allowing but not always requiring a state to prosecute those responsible.
This category includes: intentionally directing attacks against the civilian population as such or
against individual civilians not taking direct part in hostilities; intentionally directing attacks
against civilian objects (objects which are not military objectives), launching an attack knowing
that it will cause incidental loss of life or injury to civilians or damage to civilian objects;
attacking towns or buildings which are undefended and which are not military objectives; killing
or wounding surrendered combatants; physical mutilation or medical or scientific
experimentation on unwilling individuals; pillaging; employing certain types of indiscriminate
weapons; rape, sexual slavery and enforced prostitution; intentional starvation of civilians;
conscripting or enlisting children under the age of fifteen years or using them in hostilities. The
Statute of the ICC lists a large number of war crimes in international armed conflicts which are
not considered not "grave breaches."
In recent years, the concept of war crimes has been extended to internal conflicts as well,
giving third states the right (but not necessarily the duty) to exercise universal jurisdiction. The
most widely accepted standard of conduct in non-international armed conflicts is article 3,
common to all the Geneva Conventions, which outlaws "violence to life and person, in particular
murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon
personal dignity, in particular humiliating and degrading treatment; the passing of sentences and
the carrying out of executions without previous judgement pronounced by a regularly constituted
court, affording all the judicial guarantees which are recognized as indispensable by civilized
In addition, the ICC statute has defined crimes in internal conflict to include acts like:
intentional attacks against the civilian population as such or against individual civilians not
taking direct part in hostilities; intentionally directing attacks against buildings, material, medical
units and transport; pillaging a town or place; committing rape, sexual slavery, enforced
prostitution, forced pregnancy, and enforced sterilization.
Which Countries Allow Prosecutions for Extraterritorial Crimes?
Each country's laws are different. Unfortunately, the fact that a country has ratified a
treaty requiring it to prosecute alleged torturers or war criminals, or that customary international
law calls for prosecution of the perpetrators of genocide or other crimes against humanity, is not
always enough to ensure that the country's laws actually permit prosecution.
In many countries, mainly from the French-inspired civil law tradition, treaties (and even
customary international law in some cases) are automatically part of national law, without the
need for specific legislation "implementing" the treaty. This is the case in francophone Africa
and Egypt, for example. Therefore, if conventional or customary international law provides for
universal jurisdiction, the courts of these states would have a sufficient basis for a prosecution.
Similarly, numerous Latin American and European countries have laws which refer generally to
treaties the country has ratified. For example, Panama's Penal Code provides that: "Regardless of
the law of the place where the act was committed and the nationality of the accused, the
Panamanian criminal law will be applied to those who commit punishable acts foreseen in
international treaties ratified by the Republic of Panama." Thus, in principle, torture committed
abroad should be punishable in Panama pursuant to the Convention against Torture. This model
is followed in Austria, Bolivia, Brazil, Costa Rica, Cyprus, the Czech Republic, Denmark,
Ecuador, El Salvador, Ethiopia, France, Georgia, Germany, Guatemala, Honduras, Paraguay,
Peru, Russia, Spain, Sri Lanka, Switzerland, and Uruguay, among others.
In many other countries, however, treaties must be specifically "incorporated" into
domestic law before they can be relied on. All too often, countries ratify treaties and then fail to
adopt implementing legislation incorporating the treaties into national law. What follows is a
brief summary of what we know about domestic laws in different countries, but victims will
always need to check with lawyers in the prosecuting state before acting.
Many countries have legislation which specifically implements the Convention against
Torture. Thus, the United Kingdom's Criminal Justice Act, which gave Britain the authority to
arrest Pinochet, says: "A public official or person acting in an official capacity, whatever his
nationality, commits the offence of torture if in the United Kingdom or elsewhere he
intentionally inflicts severe pain or suffering on another in the performance or purported
performance of his official duties." Australia, Canada, Belgium, France, Malta, the Netherlands,
New Zealand, and the United States, among others, have similar laws regarding torture.
Similarly, many countries have incorporated the Geneva Conventions into their domestic
legislation, though rarely in the sweeping terms of the conventions themselves. Thus, the U.S.
punishes "Whoever, whether inside or outside the United States, commits a war crime," which is
defined to include grave breaches of the Geneva Conventions or violations of common article 3.
The provision only applies, however, when the perpetrator or victim is a member of U.S. forces
or a national of the United States. The web-site of the International Committee of the Red Cross
lists many of the countries who have incorporated provisions on extraterritorial war crimes. (See
Some countries, such as Belgium, Costa Rica, Germany, Nicaragua and Spain
specifically grant their courts competence to try cases of genocide committed abroad. Few
countries have laws specifically permitting the prosecution of crimes against humanity abroad.
These include Belgium France, Israel, Venezuela. Some Nordic states, such as Norway and
Sweden, criminalize all felonies committed abroad, as long as the offender is in the prosecuting
What If There Are Victims From The Prosecuting State?
In addition to universal jurisdiction, many countries give their courts competence to
punish a crime committed abroad against one of their nationals (the "passive nationality" or
"passive personality" basis of jurisdiction), usually on the condition that the conduct is also
criminal in the country where it occurred but was not punished there. Thus, the cases against
Pinochet in Belgium, France, and Switzerland are based on complaints from nationals of those
countries who were allegedly harmed by Pinochet in Chile. The existence of victims among its
own citizens, of course, also gives the country a greater political interest in prosecuting the case.
The Question of Political Will
The political will of the prosecuting (or extraditing) state will be a critical factor in the
possibility of a prosecution, particularly where the law does not allow victims to initiate a
criminal proceeding directly. In the Pinochet case, British police immediately executed the arrest
warrant sent by Spain, and Britain's Home Secretary Jack Straw then twice made the
diplomatically difficult decision to allow Spain's extradition bid to proceed. Other countries
would probably have made a decision more weighted to the political costs of a break with the
international status quo. In August 1999, when Izzat Ibrahim al-Duri, a top aide to Iraqi President
Saddam Hussein, visited Vienna to receive medical treatment, a local city councilman filed a
criminal complaint against him, citing his active role in Iraq's genocide against the Kurds. Less
than forty-eight hours later, the Austrian government let him leave the country, placing its
relations with Iraq above its international treaty obligations. In November 1999, the former tyrant
of Ethiopia, Mengistu Haile Mariam, wanted by the Ethiopian authorities on charges of genocide
and crimes against humanity, visited South Africa to receive medical treatment. Despite calls
from local and international groups for his arrest, and despite South Africa's strong human rights
record, he was not apprehended and he returned to exile in Zimbabwe, where the government has
sheltered him since his fall. When Abu Daoud, accused in the massacre of Israeli athletes in the
1972 Munich Olympics, was apprehended in France in 1976, Paris gave short shrift to
extradition requests from West Germany and Israel and freed him four days after his capture.
Obviously, the existence of a democratic government and an independent judiciary and
perhaps the presence of a large community of exiles from the country of the crimes will help
create a political climate in the prosecuting state permitting a case to go forward. Pinochet's
prosecution in Spain--where a conservative government has been under pressure for South
American trading partners to drop the case--was only possible due to the independence of
Spain's judiciary, the large Chilean exile community in Spain, and strong popular support for the
prosecution. Senegal, which prides itself on being the first country in the world to ratify the
treaty establishing the International Criminal Court and has taken a high profile on international
rights issues, has allowed the Habre prosecution to move forward without political interference.
On the other hand, Idi Amin, the former dictator of Uganda currently living in Saudi Arabia, is
unlikely to be prosecuted in Saudi Arabia, a state in which there is little political participation
and no independent judiciary and whose government is not responsive to international calls by
NGOs and victim groups to bring Amin to justice.
Depending in part on whether the perpetrator's regime is still in power, it is possible that
the government of the country in which the crimes occurred will try to block the prosecution.
This may have important implications in relation to access to information and evidence, and even
to the safety of witnesses, victims, and their families. Such governments may also press to have
the case dropped, as Chile has in the Pinochet case. The outcome may then depend on the
political will of the prosecuting state, the independence of its judiciary, and the counter-influence
that interested groups may have.
Even where international politics are not a factor, it may also prove difficult to convince a
foreign prosecutor, or investigating judge, to initiate the investigation of a crime committed
outside of his or her country, which diverts human and financial resources from a local case,
particularly given the expense of international cases and the possible lack of local interest in the
case. Hence, a strong advocacy campaign may be needed. Local supporters of the case may argue
that a country should not become a "safe haven" for human rights criminals.
In certain countries, victims and even NGOs are allowed to present a claim directly to the
courts without the approval of the prosecutor, although the same difficulties may be faced in
convincing a judge to pursue the case.
What Other Prosecutions Have Been Brought on the Basis of Universal
After World War II, the victorious allies conducted thousands of trials before national
courts of Germans accused of crimes against peace, war crimes and crimes against humanity
trials based largely on the principle of universal jurisdiction. For the next several decades,
however, there were few such cases. In 1961, Israel tried and convicted Adolf Eichmann for
crimes against humanity committed in Europe during World War II, based in part on the
principle of universal jurisdiction. In 1985, a United States court authorized the extradition to
Israel of John Demjanjuk, alleged to have committed genocide and crimes against humanity
during World War II, pursuant to Israel's right to prosecute based on universal jurisdiction.
(After being convicted and sentenced to death in Israel, Demjanjuk was freed on grounds of procedural fairness when evidence cast doubt on his guilt as to the specific charge for which he was extradited.)
Following the genocides in the Former Yugoslavia and Rwanda, a number of European
countries brought perpetrators to trial on the basis of universal jurisdiction. In Belgium, a
Rwandan, Vincent Ntezimana, was arrested and charged with genocide. In Germany, the
Bavarian High Court sentenced a Bosnian Serb, Novislav Djajic, to five years imprisonment in
1997 under the Geneva Conventions for aiding and abetting the killing of fourteen Muslim men
in Bosnia in 1992. In September 1997, a former leader of a paramilitary Serb group, Nikola
Jorgic, was convicted on eleven counts of genocide and thirty counts of murder, and sentenced to
life imprisonment by the December 18, 1999 Düsseldorf High Court. A third case is pending
against a Bosnian Serb charged with genocide before the Düsseldorf High Court. In Denmark,
Bosnian Muslim Refik Saric is currently serving an eight-year sentence for war crimes, charged
under the Geneva Conventions with torturing detainees in a Croat-run prison in Bosnia in 1993.
In April 1999, a Swiss military court convicted a Rwandan national of war crimes there. The
Netherlands is prosecuting a Bosnian Serb for war crimes before a military court. France is
currently prosecuting a Rwandan priest, Wenceslas Munyeshyaka, for genocide, crimes against
humanity, and torture. In addition, in July 1999, French police arrested a Mauritanian colonel,
Ely Ould Dah, who was studying at a French military school, on the basis of the U.N.
Convention against Torture, when two Mauritanian exiles came forward and identified him as
their torturer. In February 2000, a Senegalese court indicted the exiled dictator of Chad, Hissein
Habre, on torture charges.
The Prosecution of Hissein Habre - An "African Pinochet"
In February 2000, a Senegalese court indicted Chad's exiled former dictator, Hissein
Habre, on torture charges and placed him under house arrest. It was the first time that an African
had been charged with atrocities by the court of another African country.
Habre ruled Chad from 1982 until he was deposed in 1990 by current president Idriss
Deby and fled to Senegal. Since Habre's fall, Chadians have sought to bring him to justice. The
Chadian Association of Victims of Political Repression and Crime (AVCRP) compiled
information on each of 792 victims of Habre's brutality, hoping to use the cases in a prosecution
of Habre. A 1992 Truth Commission report accused Habre's regime of 40,000 political murders
and 200,000 cases of torture. With many ranking officials of the Deby government, including
Deby himself, involved in Habre's crimes, however, the new government did not pursue Habre's
extradition from Senegal.
In 1999, with the Pinochet precedent in mind, the Chadian Association for the Promotion
and Defense of Human Rights requested Human Rights Watch's assistance in bringing Habre to
justice in Senegal. Human Rights Watch researchers visited Chad twice, where they benefitted
from the documentation prepared in 1991 by the Association of Victims. Working in secret,
because of fears that Chadian officials might notify Habre who could then flee Senegal, the
researchers met victims and witnesses and sought documentation of Habre's crimes. Meanwhile,
Human Rights Watch quietly organized a coalition of Chadian, Senegalese and international
NGOs to support the complaint, as well as a group of Senegalese lawyers to represent the
victims. Seven individual Chadians and one Frenchwoman whose Chadian husband was killed
by Habre's regime acted as private plaintiffs, as did the AVCRP.
In a criminal complaint filed in Dakar Regional Court, the plaintiffs--several of whom
came to Senegal for the event--officially accused Habre of torture and crimes against humanity.
The torture charges were based on the Senegalese statute on torture as well as the 1984 United
Nations Convention against Torture, which Senegal ratified in 1987. The groups also cited
Senegal's obligations under customary international law to prosecute those accused of crimes
In the court papers presented to the Juge d'Instruction (Investigating Judge), Human
Rights Watch and the other groups provided details of 97 political killings, 142 cases of torture,
100 "disappearances," and 736 arbitrary arrests, most carried out by Habre's dreaded DDS
(Documentation and Security Directorate), as well as a 1992 report by a French medical team on
torture under Habre, and the Chadian Truth Commission report The groups also furnished
documents describing how Habre placed the DDS under his direct supervision, staffed it with his
close friends, and required that it report regularly to him. The organizations presented the sworn
testimony of two former prisoners who were ordered by the DDS to dig mass graves to bury
Habre's opponents. Two of the plaintiffs described being subjected to a widespread torture
method, the "Arbatachar," in which a prisoner's four limbs were tied together behind his back,
leading to loss of circulation and paralysis.
On the eve of the filing, the NGOs and the plaintiffs met with the Senegalese minister of
justice who assured that there would be no political interference in the work of the judiciary. The
case, brought as a private prosecution (plainte avec constitution de partie civile), moved with
stunning speed. The judge first forwarded the file to the prosecutor for his non-binding advice.
The prosecutor, made aware of the need to act quickly so that Habre did not flee the country as
well as so the victims could be heard before returning to Chad, gave his favorable advice within
two days. The next day the victims gave their closed-door testimony before the judge--something
they had waited 9 years to do! The judge then called in Habre on February 3, 2000 and indicted
him on charges of complicité d'actes de torture (accomplice to torture) and placed him under
house arrest. He also opened an investigation against persons to be named for crimes against
humanity, disappearances and barbarous acts (une information judiciaire contre X... "pour
disparitions, crimes contre l'humanité et actes de barbarie") meaning that he can later indict
Habre or others on these charges.
The judge will now continue his investigation into the case, perhaps visiting Chad. Habre
has engaged attorneys to prepare his defense while Human Rights Watch and its partners carry
out further research, now without the need for secrecy. Habre's trial could occur later in 2000 or
possibly in 2001.
By allowing the case to go forward, Senegal has done what many countries probably
would not have done. Senegal, a country with a democratic tradition and one of the more
independent judiciaries in Africa, was proud of being the first country in the world to ratify the
treaty establishing the International Criminal Court and has taken a high profile on international
rights issues. Although Habre had reportedly invested heavily in Senegalese industry, there was
no powerful "lobby," nationally or internationally, on his behalf.
"The Pinochet case reaffirmed the principles of international law that a country can judge
the crime of torture no matter where the acts were committed, and that not even a former head of
state has immunity from prosecution," said Reed Brody of Human Rights Watch, who worked on
both the Pinochet and Habre cases. "But it also showed us that there are countries where these
lofty principles can actually be applied in practice. Senegal can now be counted among those
Does the Defendant Need to be in the Prosecuting State?
This will depend on the particular laws of each country, the purpose of the prosecution,
and the possibility of an eventual extradition. It should be remembered that Pinochet was at
home in Chile when the prosecution against him was initiated in Spain.
Do the laws of the prosecuting state require the presence of the defendant? Many
countries do not require that the alleged criminal be in the country before an investigation is
opened. However, most countries prohibit a trial if the accused is absent. This also depends in
part on the basis of jurisdiction. In cases of jurisdiction based on the victim's nationality (the
"passive nationality" basis of jurisdiction), for example, both France and Italy allow trials in
absentia. That is how an Argentine navy officer, Alfredo Astiz, was convicted and sentenced to
life imprisonment in France for his participation in the torture of two French nuns in Argentina,
even though he was not in France. These same countries, however, require that in prosecutions
based on universal jurisdiction the alleged criminal be in their territory.
While some countries allow for trials in absentia, Human Rights Watch believes that
fairness requires that the accused be present in court during a trial to put forward a defense. If an
accused is apprehended following a trial in which he was convicted in absentia, the verdict
rendered in absentia should be quashed and a completely new trial held.
Of course, victims should consider what would be gained by filing a complaint against a
person not physically present in the prosecuting state. The practical value may depend on
obtaining his or her extradition. In addition, however, a prosecution may also have a symbolic
value, may limit the accused's traveling plans, or may allow freezing of his or her international
bank accounts and other assets.
When the accused is not in the prosecuting state, it will be necessary to obtain his or her
custody. The traditional way to do so is to request his or her extradition. There are other
alternatives, however, such as the deportation of an alien to the state of his nationality. Thus,
Bolivia deported Klaus Barbie, the World War II "Butcher of Lyon," to France to face trial.
Extradition is the procedure by which one state asks another to surrender someone that
the requesting state claims a right to prosecute.
Some countries will only extradite pursuant to an extradition treaty, so it will be
necessary to determine whether a treaty exists between the two countries. Many countries,
however, will grant extradition even in the absence of a treaty, on the principle of reciprocity--
i.e. that the two states would honor each other's requests. On the other hand, the constitution of
many countries prohibits the extradition of a national, even when an extradition treaty exists.
Though practice may vary, particularly pursuant to treaty provisions, extradition
generally follows similar rules:
1. Double criminality. The acts alleged must be criminal in both the requesting and the requested
state. Most extradition treaties will list the specific crimes for which extradition will be provided.
Others will only refer to classes of crimes or the level of punishment (for example, those
punishable by at least one year).
In the Pinochet case, the House of Lords interpreted this rule to require that Pinochet's
acts be criminal in Britain at the time they were committed, as opposed to at the time of the
extradition request. Extraterritorial torture (torture "in the United Kingdom or elsewhere," see
above) became a crime of universal jurisdiction in the U.K. only in 1988 when the U.K.
incorporated the Convention against Torture, while most of the cases of torture under Pinochet
had occurred before this date. The Lords thus reduced considerably the crimes for which
Pinochet could be extradited.
2. Evidentiary burden. Normally, the requesting state must present a prima facie case against the
suspect before he can be extradited. This ensures that people are not arrested and extradited
without proper evidence. Certain treaties dispense with this requirement, however. Under the
European Convention on Extradition, for example, which governed Spain's request to Britain for
Pinochet's extradition, only the formalities of the charges must be presented. Indeed, the
convention specifically provides that "it shall not be necessary...to furnish the court...with
evidence sufficient to warrant the trial of that person."
3. "Political offense" exception. Most states will not extradite a suspect for a "political offense."
The criteria for determining what is a "political offense" vary, but it generally involves a
rebellion against an established government and related crimes. Crimes against humanity, torture,
genocide, and war crimes are not "political offenses." The Genocide Convention expressly
provides that genocide shall not be considered a political crime for effects of extradition. The
Convention against Torture does so implicitly by requiring that torture be included in the list of
extraditable crimes in states parties' extradition treaties.
4. The specialty principle. The requesting state may only prosecute and punish a person for the
crimes for which extradition was granted by the requested state. For example, in the Pinochet
case, Spain sought the general's extradition on offences of terrorism, genocide, hostage-taking
and torture. The House of Lords only allowed Pinochet's extradition for torture and conspiracy to
commit torture after December 1988. If Pinochet is extradited to Spain, these are the only crimes
for which he may be tried.
The Problem of Proving a Case
One of the greatest difficulties in an extraterritorial prosecution will be gathering
evidence. The victims and most of the evidence will be located not in the prosecuting state but in
the country in which the crimes were committed. Therefore, proving the case will mean that
victims, witnesses, and documents will have to be transported to the prosecuting state. This can
pose enormous financial difficulties and safety issues, as well as cultural, linguistic, and legal
problems. If the government in the country in which the crimes were committed opposes the
prosecution, these hurdles will be all the greater.
Human rights groups traditionally do not have experience or expertise in collecting
legally-admissible evidence, or even in seeking to identify individual perpetrators. The
investigation needed to prove individual responsibility for a particular abuse is quite different
from that needed to document state responsibility. Put otherwise, it may be relatively easy to
show that a victim was tortured in police custody, while it may be much more difficult to name
all the people who bear legal responsibility for the act, as immediate authors or accomplices.
Statutes of Limitations
Where crimes were committed several years in the past, statutes of limitations may be a
problem. Most states have legislation barring prosecution of crimes after a number of years - 3,
10, 15 years etc., depending on the country and the crime. Customary international law would
seem to bar statutes of limitations for crimes against humanity, however, and forty-three states
have ratified the U.N. Convention on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes Against Humanity. French and Belgian courts have specifically ruled out
statutes of limitations on crimes against humanity. In addition, it should be possible to argue that
the terms of the statute of limitations are "tolled" (do not run) while the accused is effectively
shielded from justice. Nevertheless, national judges will look first to national law and if the time
limit set out in the relevant legislation has expired, many countries may not entertain a
Where "disappearances" are involved, however, it may be easier to avoid such
limitations. The U.N. Declaration on the Protection of all Persons from Enforced Disappearance
states that "Acts constituting enforced disappearance shall be considered a continuing offence as
long as the perpetrators continue to conceal the fate and the whereabouts of persons who have
disappeared and these facts remain unclarified." This is logical, since non-acknowledgment of
the detention or non-disclosure of the fate or whereabouts of a detained person are key elements
of the offence of "disappearance." Courts in Chile and Argentina have recently ruled that the
continuing nature of "disappearances" mean that these acts survive amnesties which bar the
prosecution of crimes committed before certain dates. In addition, because "disappearances"
have been held to constitute a potential form of mental torture as regards the loved ones of the
"disappeared" person, "disappearances" can trigger application of the "prosecute or extradite"
provisions of the U.N. Convention against Torture. The magistrate examining the extradition
case against General Pinochet thus ruled that, although the House of Lords had limited the
charges to torture and conspiracy to commit torture committed after December 1988, Spanish
prosecutors could seek to show that Pinochet's intention in making his opponents "disappear"
before 1988, and concealing their whereabouts thereafter, was to inflict continuing mental torture
on their relatives.
The question of state immunity will almost certainly arise in any prosecution of state-sponsored human rights crimes. The accused may invoke immunity as a current or public
official, a diplomat, or a current or former head of state. Any immunity belongs to the state,
however, and not the accused, so the state can waive it, and should be pressed to do so.
A current head of state or an accredited diplomat on official mission will almost certainly
be held immune from arrest in a foreign country (although this is not the case before an
international tribunal such as those for the Former Yugoslavia and Rwanda and the future ICC).
This immunity is based on the person's status (immunity rationae personae) and not the category
of acts. Thus in November 1998, requests by European groups for the prosecution of Laurent
Kabila, president of the Democratic Republic of Congo, were rejected in France and Belgium on
his visits there.
Public officials, as such, do not have immunity under international law, however. Indeed,
the Convention against Torture, for instance, makes the participation of a state official or another
person acting in an official capacity an element of the crime of torture.
The situation of a former head of state is more complex. Under customary international
law, a former head of state enjoys immunity for official acts committed in his function as head of
state. Whether the crime at issue can be considered an official act or part of the functions of a
ruler was the question considered by the House of Lords in the Pinochet case. In their first
judgment, the Lords ruled that crimes such as torture and crimes against humanity were not
"functions" of a head of state. (In their second judgement, the Lords ruled on the narrower basis
that ratification by the U.K. and Chile of the Convention against Torture eliminated any
immunity for torture.)
The Statute of the emerging International Criminal Court, following the principles laid
down at Nuremberg, states that: "official capacity as a Head of State or Government, shall in no
case exempt a person from criminal responsibility." Similar provisions are contained in the
Statutes of the International Criminal Tribunal for Rwanda and the Former Yugoslavia (which in
1999 indicted Slobodan Milosevic, the President of the Federal Republic of Yugoslavia). This
principle has not yet been applied in national courts however, although Belgium's new law on
crimes against humanity and war crimes specifically rejects any state immunity.
In most cases, senior officials will not have participated personally in torture or killings.
They can, of course, be prosecuted if they actually ordered the crime. In addition, under the
doctrine of command responsibility, someone who had control over subordinates and knew or
should have known that a crime was about to be committed and did not stop it, or did not try to
prevent it or did not punish those responsible, is also criminally liable. This doctrine applies both
to military authorities and civilians in a position of superior authority.
From a practical viewpoint, of course, it may be easier to prove the crime or convince a
prosecutor to open an investigation if the accused is the direct perpetrator and the court does not
have to conduct a complex investigation into command responsibility in a foreign country. The
presence in France of two direct victim/witnesses seems to have been the determining factor in
France's arrest of a Mauritanian army captain for torture in 1999.
Where a case is based on command responsibility, it will usually be necessary to have
witnesses or documents to prove the accused's control over his subordinates or his knowledge of
events. When these people or materials are located in a foreign country, where the prosecuting
state cannot compel their production, the case will be more difficult to build.
Who can initiate a prosecution?
This will vary from country to country. In certain countries, mainly those of the Anglo-American common law tradition, only a public prosecutor can initiate a criminal investigation,
and the prosecutor has ample discretion in deciding whether or not to prosecute . Victims must
therefore convince the prosecutor to bring the case and, as already noted, a local official may not
be interested in pursuing crimes committed far away from home. In some civil law countries, the
principle of "legality" dictates that any crime that comes to the knowledge of the prosecutor must
In contrast, in many French-inspired civil law countries the victim has the right to file a
complaint directly before an investigating judge (juge d'instruction, juez instructor), who must
open an investigation. In some cases the victim or relative becomes a party in the criminal
proceedings (partie civile) and may receive compensatory damages from the court. In the
Senegalese prosecution of Hissein Habre, seven Chadian victims, the French widow of a Chadian
victim, and a Chadian victims' association brought the criminal complaint as parties civiles. The
Spanish case against Pinochet was filed using the acción popular, or popular action, a procedural
device that permits Spanish citizens to file private criminal actions in certain situations of public
interest, regardless of whether they have suffered an injury.
Recently, some Latin American countries, such as Guatemala and Costa Rica, have
allowed victims to act as "adjunct prosecutors" (querellante adjunto), formulating charges,
appealing decisions, and providing evidence. For certain crimes, NGOs and associations have
been recognized as "adjunct prosecutors" if they have a direct interest in the case, most notably
when human rights crimes are concerned.
Which other alleged perpetrators now live abroad?
Former leaders accused of crimes against humanity, and now living in foreign countries,
Idi Amin is being sheltered by Saudi Arabia. During his autocratic rule of Uganda from
1971 to 1979, Amin expelled the entire ethnic Asian population from Uganda. Amin's regime
was responsible for the murders of an estimated 100,000 to 300,000 people. When asked
about the possibility of Amin's extradition or prosecution, a Saudi ambassador explained to
Human Rights Watch that Bedouin hospitality meant that once someone was welcomed as a
guest in your tent, you did not turn him out.
The second reign of Milton Obote as President of Uganda (1980-1985) is thought to
have even exceeded the brutality of the Amin era. Estimates of civilians killed by Obote's forces
in the Luwero triangle around the capital, Kampala, range from 100,000 to 300,000. Prisoners in
military custody were systematically tortured. After he was deposed in a May 1985 military
coup, he fled and now lives unmolested in Zambia.
Mengistu Haile Miriam is living in Zimbabwe, which has refused Ethiopia's extradition
request to stand trial for crimes committed between 1974 and 1991. During this period, tens of
thousands of political opponents were killed, in particular during the "Red Terror"
campaign of 1977-1978. Hundreds of thousands of government opponents, including members of
the Oromo ethnic group, former Imperial Government officials, student marxists, and peaceful
critics were arbitrarily imprisoned. Torture of political prisoners was systematic and widespread.
When Mengistu went to South Africa in November-December 1999 for medical treatment, the
government failed to act on calls from human rights activists that he be arrested and did not
acknowledge an extradition request from Ethiopia until Mengistu had returned to Zimbabwe.
(Human Rights Watch did not support his extradition to Ethiopia because of concerns that
Mengistu might not receive a fair trial there and that he would face the death penalty.)
Generals Raoul Cedrás and Philippe Biamby led a bloody coup against the
constitutionally elected President of Haiti, Jean-Bertrand Aristide in 1991. During their
dictatorship, thousands were killed, tortured and raped. When President Aristide was restored,
the two were flown to Panama, where they were granted asylum. Panama has refused Haiti's
extradition request, even though Panama ratified the Torture Convention in 1987 and has laws
allowing for the prosecution of torture committed abroad. Generals Cedrás and Biamby were
indicted in 1999 by a Haitian judge for their participation in an April 1994 massacre in the slum
of Raboteau, in which army forces killed about 20 people. Rejecting a request by Human Rights
Watch that the pair be prosecuted or extradited, the Panamanian foreign ministry stated in
November 1999 that "it would be a dangerous precedent to grant the right of asylum to resolve a
political problem in a neighboring country and later deny the rights of those given asylum."
Emmanuel "Toto" Constant, the leader of Haiti's "FRAPH" death squad who now lives
in New York, is wanted by Haitian prosecutors to face charges of murder, torture and arson
carried out during Cedrás' de facto rule. Constant has admitted to receiving regular payments and
encouragement from the CIA while he built his terror network. When Aristide was restored to
power, Constant was ordered to appear in court, but he fled to the United States where he was
arrested in March 1995. U.S. Secretary of State Warren Christopher, calling FRAPH "an
illegitimate paramilitary organization whose members were responsible for numerous human
rights violations in Haiti," asked for his immediate deportation to Haiti. Constant was instead
released from custody pursuant to a secret agreement between the U.S. government and Constant
- revealed by the Baltimore Sun - which would allow the death squad leader to "self-deport" at
any time to a third country of his choice, effectively allowing him to escape justice in Haiti,
which has sought his extradition.
Alfredo Stroessner of Paraguay now lives in Brazil. The Stroessner dictatorship (1954
to 1989) used widespread torture against political opponents. Stroessner was also an ally of
General Pinochet in "Operation Condor," a multinational network of police and military
operations throughout Argentina, Brazil, Chile, Paraguay and Uruguay who routinely practiced
torture, disappearances and murders while carrying out a "dirty war" against suspected leftists in
Jean-Claude "Baby Doc" Duvalier, Haiti's "president for life" (1971 - 1986), is living
in France. The Duvalier dictatorship is accused of thousands of political killings and arbitrary
detentions. In September 1999, four Haitian torture victims filed complaints with a French
prosecutor charging crimes against humanity. The prosecutor rejected the complaints, however,
on the grounds that they did not fit the pre-1994 French definition of crimes against humanity
which applied only to crimes committed on behalf of Axis powers during World War II, and that
they could not be brought under the 1994 law on crimes against humanity which was not
What are the alternatives to criminal prosecution in a foreign country:
Ideally, perpetrators should face prosecutions before courts in their own countries. Crimes
are far easier to prove in the country in which they were committed--where the victims, witnesses,
accomplices and evidence is located--and justice delivered locally allows victims the greatest role
and may be the most meaningful to the victims. If the alleged perpetrator is already out of the
country, his return can be sought through extradition.
As most massive violations of human rights have been carried out in the name of the state,
however, it is unlikely that, in the absence of a sweeping political transition, the courts of that state
will have the ability or the political space to carry out such prosecutions. In many cases, there will
have been an amnesty intended to bar prosecution. This was the case in Chile with Pinochet, as well
as in countries such as Brazil, Guatemala, El Salvador, Sierra Leone, and Uruguay.
The United States allows civil damage suits for human rights violations committed abroad.
Under the Alien Tort Claims Act, non-U.S. victims can seek compensation and punitive damages
against a person present in the U.S. for a violation of the "law of nations." The U.S. Courts have
applied this Act to torture, extrajudicial killings, "disappearances," war crimes, arbitrary detention
and rape, and granted significant monetary awards. The Torture Victim Protection Act allows U.S.
citizens, as well as foreigners, to sue for torture or summary executions, also when the defendant is
physically present in the U.S. However, because the defendants have traditionally been non-residents
without assets in the U.S., few monetary awards have been executed. In a class-action civil suit for
human rights violations against the estate of Ferdinand Marcos, the former dictator of the
Phillippines, who had substantial assets in the U.S., victims received a large sum of money. Such
suits also provide the victims with an official setting to tell their story, allow guilt to be recognized
by a court of law, and prevent wrong-doers from entering or remaining in the United States.
In most civil law countries, victims can join prosecutions as civil parties (parties civiles) or
initiate a civil action. In either case, they can recover compensatory damages, but not punitive
Some countries, instead of prosecuting those responsible for atrocities, may deport them to
the country of their nationality. This has been the trend in Canada, for instance.
- International Criminal Tribunals
The United Nations Security Council has created international criminal tribunals for the
former Yugoslavia and Rwanda. These "ad-hoc" tribunals have jurisdiction over genocide, war
crimes and crimes against humanity committed in those countries. The extraordinary political
consensus required to create such tribunals has been impossible to muster, however, for other
situations for which they were proposed, such as East Timor, Cambodia and the massacre of Hutu
refugees in Zaire in 1996-97.
- International Criminal Court
The approval in July 1998 of the Statute for a permanent International Criminal Court (ICC)
is among the most significant events in the global fight against impunity. When sixty states ratify
the statute, the ICC will have jurisdiction over future cases of genocide, war crimes, and crimes
against humanity when national courts are unable or unwilling to prosecute. Cases can be referred
to the court by the Security Council or state parties. In addition, the ICC's prosecutor will have the
power to initiate a case based on reliable information, including from victims and non-governmental
While the ICC will be a powerful tool to attack the worst atrocities, it will not eliminate the
need to bring transnational prosecutions based on universal jurisdiction. First, the ICC will be
prospective only - addressing crimes committed after its statute goes into effect. Second, the ICC
will only be able to handle a limited number of cases. Finally, the ICC suffers from a jurisdictional
regime which requires that, in the absence of a Security Council referral, either the state on whose
territory the crimes were committed or the state of nationality of the accused be a party to the statute
or consent to jurisdiction. As the state of territory and nationality will often in practice be one and
the same state, and that state may well not be a state party, many future atrocities may be outside of
the court's reach.