The Long Arm of International Law
The Oct. 16 arrest of Chile's former dictator for extradition to Spain means human rights violators have fewer havens.
Gen. Augusto Pinochet arrived in London recently having no idea that the legal equivalent of a giant target had been affixed to his back.
He knows it now. And so do the likes of Idi Amin, Saddam Hussein, and Radovan Karadzic.
The arrest of Chile's former dictator in England at Spain's request effectively put dictators, thugs, and terrorists on notice. The world just became a more dangerous place for anyone accused of committing crimes against humanity, according to experts in international law.
Spain's pursuit of General Pinochet, if successful, will change the landscape of human rights enforcement, making it increasingly difficult for suspected war criminals, torturers, and practitioners of genocide to travel abroad.
In Chile, he is immune from prosecution. But not in London, legal experts say. And certainly not in Spain, which wants to try him on charges of genocide, torture, and terrorism. "As soon as Pinochet left Chile, he was fair game," says Paul Hoffman, a human rights lawyer in Los Angeles and head of Amnesty International in the US.
Mr. Hoffman says under international law all nations have the authority to arrest and put on trial someone accused of crimes against humanity.
It is rare for states to act as boldly as has Spain with its request for Pinochet's extradition from Britain. But human rights activists say they are hopeful that other states will follow Spain's lead.
"The message it sends to dictators and human rights abusers is that you might have been able to get away with this and not face the consequences in your own country, but don't think you are going to come to our country and not have to pay the penalty," says Mark Zaid, an attorney in Washington, D.C.
Spain's move did not happen in isolation, Mr. Zaid and other experts say. It is all part of a general worldwide trend toward beefing up enforcement of human rights laws. Ad hoc war crimes tribunals authorized by the United Nations are at work in both Bosnia and Rwanda, and negotiations are ongoing toward the establishment of a permanent International Criminal Court that would prosecute alleged war criminals in future cases.
New laws in the US are permitting Americans to sue foreign governments allegedly sponsoring terrorism that injure them or their relatives. In three cases this past year, damage awards have been made against Cuba and Iran. But the lack of diplomatic relations between the US and those countries makes it unlikely the plaintiffs will collect.
In one indication of a major change in the international climate concerning human rights and war crimes, President of Argentina Carlos Menem earlier this year unilaterally offered to turn over to Israel or any other interested country a Croatian who allegedly ran a camp where tens of thousands of Jews, Serbs, and Gypsies were killed during World War II.
"All of that is contributing to a sense that at the start of the 21st century it is unacceptable for those accused of these crimes to enjoy any benefit from impunity," says Richard Dicker, a lawyer at Human Rights Watch in New York.
But some legal experts are questioning whether a Spanish magistrate's charges that Pinochet engaged in terrorism and genocide are an exaggeration that could undermine his case.
Lori Damrosch, an international law professor at Columbia University Law School in New York, says the convention outlawing genocide is specific in the types of ethnic or racial groups that must be targeted. "Mass murder of one's political opponents is difficult to characterize as genocide within the meaning of the treaty definition," she says.
Frederic Kirgis, an international law specialist at Washington and Lee School of Law in Lexington, Va., says the key to Spain's case will be the amount of evidence they are able to present.
"Just to make a general allegation of terrorism I think isn't enough," Mr. Kirgis says. And "genocide is more than mass mistreatment, more than mass murder. It is an attempt to eradicate a racial, ethnic, or cultural group," he says. Other experts are questioning the basic authority of Spain to bring any international charges against Pinochet.
Alfred Rubin is a professor at the Fletcher School of Law and Diplomacy at Tufts University near Boston. He says he has no sympathy for Pinochet, but efforts to prosecute the former dictator by authorities outside Chile's sovereign territory can only subvert the true rule of law.
"I have real problems with the notion of Spanish laws applying to a Chilean for actions taken in Chile," he says.
Others say that Spain is relying on principles of international law dating from the Nuremberg Trials after World War II. The idea is that some crimes are so heinous - like genocide and torture - that individual states have a duty to take action against alleged wrongdoers.
Hoffman says more than enough evidence exists to convict Pinochet in Spain. Pinochet, who ruled Chile with an iron fist from 1973 to 1990, was arrested in London last Friday.
Any trial in Spain would focus on the fate of 94 citizens of Spain, Chile, Argentina, Britain, and the US who allegedly became victims of Pinochet's brutal crackdown against those he perceived as potential political opponents. Overall, 2,000 to 3,000 persons are estimated to have died under Pinochet's regime.
Some analysts say a Pinochet trial in Spain may make it easier for prosecutors in other countries to extend their authority across international borders to hold even former heads of state accountable for alleged atrocities.
Spain isn't alone in using its courts to try to enforce international human rights laws. France and Belgium are conducting trials involving allegations of genocide in Rwanda. Germany and Switzerland are prosecuting alleged Bosnian war criminals. These cases are separate from the ad hoc tribunals set up by the UN.
Analysts see such activities in national courts as a new, potent weapon. They say it is helping to convince prosecutors to be more aggressive in cases that would have fallen through the cracks in years past.
"There are a lot of foreign dictators who were alleged to have committed the same atrocities as Pinochet but who were allowed to live out their lives [without facing trial and punishment]," says Hoffman.