The world is becoming a smaller place for people who commit crimes against humanity.
Until recently, it seemed that if you killed one person, you went to jail, but if you had the power to murder thousands, you also had the power to arrange or impose your immunity. The post-war Nuremberg trials of Nazi leaders, however, established the principle that there should be no immunity for perpetrators of the gravest outrages, no matter who they are or where their crimes were committed. That principle was recognized by the General Assembly of the United Nations as international law and repeated in the Genocide Convention, in the statutes establishing tribunals for the former Yugoslavia and Rwanda, and in the treaty for the new permanent international criminal court adopted in1998 in Rome. In addition, the 1984 Convention against Torture-ratified by 117 countries-requires that states try or extradite alleged torturers found in their territories. Yet few states have had the courage to put these lofty principles into practice.
Then in October 1998, Spanish lawyers pursuing charges of crimes against humanity by Southern Cone military leaders were tipped off that Gen. Augusto Pinochet was visiting England. Spanish judge Baltasar Garzón, who was conducting the investigation, quickly issued a request for Pinochet's arrest. When the London Metropolitan Police learned that Pinochet was planning to leave for Chile the next morning, officers obtained a provisional warrant from a magistrate at his home and placed Pinochet under arrest in a hospital room later that night.
General Pinochet challenged his arrest before the British courts and the case went up to the House of Lords, where Human Rights Watch was granted leave to intervene and present arguments. In two landmark rulings, the Lords held that General Pinochet had no immunity against the charges. In the first case, a three-two majority concluded, in the words of one judge, that "international law condemns genocide, torture, hostage taking and crimes against humanity," making it difficult, "to maintain that the commission of such high crimes may amount to acts performed in the functions of a Head of State."
When the case had to be re-argued before a new panel of seven Law Lords because of the appearance of bias in the first ruling, the Convention against Torture took center stage. Pinochet's lawyers sought to discount the convention's requirement that states parties prosecute or extradite suspects found in their territories. As pointed out by Human Rights Watch in terms adopted by the presiding judge, however, the very purpose of the convention was to introduce the principle aut dedere aut punire-either you extradite or you punish. Six of the seven judges agreed that Pinochet had no immunity. But a majority also ruled that he could not be extradited to Spain for acts committed before Britain enacted the Convention Against Torture in late 1988, thus eliminating most of the charges against him.
On October 8, following an extradition hearing, a London magistrate ruled in favor of the continued detention of General Pinochet, who was awaiting the final decision of the Secretary of State. The magistrate's ruling opened the door for a much wider examination by the Spanish courts of Pinochet's crimes than might have been thought possible after the Lords' second decision in the case. First, the magistrate held that Pinochet's conduct before 1988-which would include the creation of the secret police and the establishment of Operation Condor targeting Pinochet's opponents abroad-could be examined in proving the conspiracy. Second, he ruled that "the effect on the families of those who disappeared can amount to mental torture," and that Spanish prosecutors could seek to prove that this was Pinochet's intention. This ruling was not only a historic acknowledgment of the families' continuing anguish, it was also an invitation to Spain to show that Pinochet used this cruel practice as a form of terror.
Human Rights Watch described the Pinochet case as a "wake-up call for tyrants around the world," but it was also a wake-up call for victims. Almost immediately after the dictator's arrest, human rights groups began exploring avenues to bring other former despots to justice.
Seeking to take advantage of this momentum, Human Rights Watch adopted as its "strategic direction" for 1999-2000 the pursuit of international justice. The initiative aimed to reinforce the principle and support the practice of "universal jurisdiction" for the worst atrocities, by laying the intellectual groundwork for an extension of the "Pinochet precedent" and assisting, through research and advocacy, in bringing to justice other significant human rights criminals-the next "Pinochets."
"Universal jurisdiction" reflects the principle that some crimes so offend humankind (e.g., "crimes against humanity") that courts anywhere have jurisdiction to try them. International law thus authorizes the courts of a country to try cases of genocide, crimes against humanity, serious war crimes or torture, no matter where they were committed. Human Rights Watch, together with other nongovernmental organizations such as Amnesty International and Redress, campaigned for all countries to enact legislation allowing their courts to exercise this jurisdiction.
Human Rights Watch's work on universal jurisdiction complimented its efforts in favor of the International Criminal Court and in combating impunity at the national level. National justice was obviously the most important, because it was the most comprehensive, because crimes were far easier to prove in the country in which they were committed, and because justice delivered locally allowed victims the greatest role and was perhaps the most meaningful to the victims. But there was also an essential role for international justice when national authorities were unwilling or unable to proceed against an accused. For an international group such as Human Rights Watch, the comparative advantage lay in building this system of international and transnational justice as a complement to national jurisdictions to ensure that the worst crimes do not go unpunished and that there is no "safe haven" for their perpetrators.
In an April 1999 presentation to the U.N. Commission on Human Rights, Human Rights Watch called on all governments that provide shelter to major human rights violators to bring them to justice or to hand them over to countries where they could receive fair trials. Among those countries cited were:
P Saudi Arabia, where former Ugandan dictator Idi Amin took refuge. During his dictatorship in Uganda from 1971 to 1979, Amin expelled the entire Asian community. He is also blamed for the deaths of 100,000 to 300,000 people.
P Zimbabwe, which rejected Ethiopia's request for the extradition of Mengistu Haile Miriam, accused of genocide and crimes against humanity committed during his 1974 to 1991 rule of terror. Mengistu's forces are blamed for than 200,000 deaths.
P France, which took no steps toward bringing Jean-Claude "Baby Doc" Duvalier to trial. The 1971 to 1986 Duvalier dictatorship is accused of thousands of political assassinations and arbitrary arrests.
P Senegal, which gave shelter to Hissene Habre, president of Chad from 1982 to 1990, whose regime is alleged to be responsible for up to 40,000 killings.
P The United States, which turned down requests from Haiti for the extradition of Emmanuel "Toto" Constant, leader of the Haitian death squad FRAPH, financed by the U.S. Central Intelligence Agency (CIA). Prosecutors in Haiti want Constant to stand trial on charges of torture and murder.
P Panama, which turned down Haiti's request for the extradition of Raoul Cedras, who led the military coup that overthrew president Jean-Bertrand Aristide in 1991. During Cedras' de facto regime, some 3,000 people were killed and hundreds of thousands displaced.
P Brazil, which provided asylum to Alfredo Stroessner, who ruled Paraguay from 1954 to 1989. Under Stroessner, torture was systematically used against political opponents of the regime. Stroessner was also Pinochet's ally in "Operation Condor," an international network that used torture, disappearances and assassinations in the "dirty war" against opponents of Southern Cone military dictatorships.
While none of these men were disturbed in the year since Pinochet's arrest, a growing number of suspected human rights criminals found justice closing in on them. The New York Times labeled this phenomenon the "Pinochet syndrome":
P In France, two Mauritanian refugees, with the help of the International Federation of Human Rights (FIDH), persuaded prosecutors in Montpellier to use the Convention against Torture to arrest a Mauritanian colonel, Ely Ould Dah, in July 1999 for allegedly torturing suspects in his country in the early 1990s.
P When Ezzat Ibrahim al-Douri, a key aide to Iraqi President Saddam Hussein, visited Austria, a Vienna city councilman, Peter Pilz, filed a criminal complaint accusing Ibrahim of torture and genocide in the Anfal campaign against Iraqi Kurds. Austria, however, placed expediency above justice and politics above the law and allowed Ibrahim to return home.
P A team of Portuguese lawyers sought to try Indonesia's former ruler, Soeharto, for the murder of thousands of civilians during Indonesia's long occupation of East Timor. When Soeharto fell ill, he reportedly canceled a trip to Germany for treatment because of the case.
Human Rights Watch also explored, together with national groups, the possibility of assisting, through research, advocacy and networking, to bring the most appropriate cases. As the Pinochet case demonstrated, effective prosecutions in one country of crimes that took place in another country can be difficult and expensive. All the witnesses and documents may be in the state of the crimes. Foreign prosecutors may be reluctant to expend resources on crimes committed outside their country. The laws of the host country may not be adequate.
The Pinochet prosecution in Spain was made possible by the compilation of information over decades, first by Chilean human rights activists, then by the Chilean National Commission on Truth and Reconciliation, and finally by Spanish lawyers and judges. Unlike many other situations of mass killings, as in Central Africa, East Timor or Central America, every Chilean victim-even the "disappeared"-had a name and a story, and the chain-of-command leading up to General Pinochet was clear.
Another key hurdle expected in future prosecutions has to do with the political will of the countries involved. Britain's Home Secretary Jack Straw twice made the difficult and diplomatically costly decision to allow Spain's extradition bid for Pinochet to proceed. Other countries might have made a more expedient calculation, as Austria did with Ezzat Ibrahim al-Douri. When Abu Daoud, accused of 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, freeing him four days after his capture. Italy similarly dispatched Mohammed Abbas when he was arrested in 1985 for the hijacking and killing aboard the Achille Lauro. No European country was eager to try Kurdish rebel leader Abdullah Ocalan when he was apprehended in Italy in November 1998.
But the precedent was set. Augusto Pinochet was the first former head of state to be arrested by another country for human rights crimes. He was not to be the last. Future leaders were alerted: the next time they attempted to get away with atrocities, they could be brought to justice.
Recent Human RIghts Watch Reports:
Chile:When Tyrants Tremble:The Pinochet Case, 10/99