The Pinochet Precedent

How Victims Can Pursue Human Rights Criminals Abroad

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 side-bar).

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 doing so.

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