Is Gen. Augusto Pinochet, the former Chilean dictator, no more than a late-20th-century pirate?
As a British judge prepares to rule today on whether General Pinochet should be extradited to Spain to face charges of torture and murder for crimes allegedly committed under his regime, the former Chilean president has found himself hostage to a novel form of an ancient legal tradition.
In olden days, buccaneers accused of piracy on the high seas could be tried in any court, wherever they were apprehended. Branded "enemies of all mankind," they could claim no safe harbor.
As more and more countries start using the powers granted by international treaties against war crimes and torture, dictators and those accused of torture and mass murder are finding that they can run, but they can't hide.
Increasingly, the principle of "universal jurisdiction" is taking hold in international law. "There is a greater understanding that in an increasingly interdependent world, we cannot allow people who commit heinous crimes in one country to find safe haven in another," says Reed Brody, advocacy director for Human Rights Watch, the US-based human-rights association.
Whichever way the British magistrate rules, one side or the other is bound to appeal, jurists agree. If he decides that the elderly, ailing caudillo should be extradited, Pinochet's lawyers will take the matter to a higher court. If he decides against extradition, the Spanish judge who filed for Pinochet's handover last year is expected to appeal.
Confusion reigns over what would happen if the British government decides to suspend the extradition hearings on health grounds. The French, Belgian, and Swiss governments have all filed extradition requests with London, should the Spanish demand fail.
Brussels lawyer Georges-Henri Beauthier represents Chileans living in Belgium whose relatives were among the more than 3,000 people killed or disappeared during the 17-year military dictatorship ushered in by a coup Pinochet led against Chile's elected Marxist government in 1973. Mr. Beauthier wrote to the Belgian foreign minister yesterday asking him to press Brussels's extradition request again with the British government.
British police, meanwhile, have turned down repeated requests from lawyers representing two British victims of the Chilean military regime to investigate and prosecute Pinochet in London.
In 1995, when the former Chilean leader was in the British capital, "the police said to us that if we proved the case, they would do something about it," says Geoffrey Bindman, a human-rights lawyer who sought to have Pinochet detained on that occasion.
Under the 1984 International Convention Against Torture, governments are obliged to investigate allegations of torture against anyone in their country, regardless of nationality, if there is evidence against them. And they have jurisdiction to try those accused if the evidence stands up.
Others detained for crimes
Increasingly, courts around Europe are deciding that they have universal jurisdiction in other cases too, drawing on the precedent set by the Nuremberg trials of Nazi leaders, or on the Geneva Conventions.
That came as a shock to Capt. Ely Ould Dah, a Mauritanian Army officer who was taking part in a military training course at a French Army base when the gendarmes arrived to arrest him on July 2.
Mauritanian exiles in France had learned of his presence, and two of them who claim Captain Ould Dah had tortured them while they were imprisoned in Mauritania asked a judge to have him arrested.
The judge in Montpellier, near the Army base, decided that he had jurisdiction in the case, and Ould Dah is currently on bail while prosecutors build a case against him.
In Belgium, a Rwandan citizen, Vincent Ntezimana, has been arrested and charged with genocide in connection with Rwanda's 1994 civil war. Belgian law gives judges broad rights to hear cases involving crimes against humanity, regardless of where they were committed or of the nationalities of the accused and the victims.
In Germany, the Bavarian High Court sentenced a Bosnian Serb, Novislav Djajic, to five years imprisonment in 1997 for aiding and abetting the killing of 14 Muslim men in Bosnia in 1992. The court decided that it had jurisdiction under the Geneva Conventions.
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.
On many other occasions, though, justice still is not done. Last August, for example, Izzat Ibrahim al-Duri, a senior Iraqi leader accused of organizing the mass murder of Kurds in 1988, was allowed to leave Austria even though a Vienna city councilor who had learned of his presence there had filed a criminal complaint with an Austrian court.
Trying crimes against humanity
Nonetheless, "there is definitely a trend developing" toward the application of international jurisdiction, says Mr. Bindman, the human-rights lawyer, especially since it has been incorporated into the charter of the International Criminal Court.
The court, whose founding treaty was signed last year, will try crimes against humanity once it is set up, after enough countries have ratified the treaty.
In another sign, European Union Justice Ministers meeting in the Finnish city of Tampere next week are expected to approve a resolution that "the [EU] should be committed to the principle of universal jurisdiction and no safe havens for the perpetrators of genocide, crimes against humanity, and torture."
It is not always easy, though, to apply this principle. "Torturers who move around the world don't usually broadcast the fact," points out Bindman. "Unless you can marry up the knowledge of someone's whereabouts with the evidence against him, you cannot launch a prosecution."
Keeping up pressure
At the same time, complains William Bourdon, a French human-rights lawyer, "there is a certain lack of political will" on the part of governments to live up to their obligations.
In France, for example, the Justice Ministry has not started any investigations on the basis of international jurisdiction, Mr. Bourdon says. Such cases as have been heard have all been brought by victims or their relatives.
Nor is it always easy to convince courts to hear such cases.
"Human-rights experts know what the law says, but it can be difficult to persuade a judge in Montpellier or Albany, N.Y., that he has jurisdiction over a crime committed way out of his area," says Mr. Brody, the human-rights advocate.
"Things are changing, though," says Bourdon. "The changes in international law have changed judges' mentality. The situation is evolving in the right way."
"If we are ever going to stop these types of crimes," says Brody, "everybody has to help prosecute them."
(c) Copyright 1999. The Christian Science Publishing Society