Universal jurisdiction: 'the Pinochet precedent'

Universal jurisdiction: 'the Pinochet precedent'

11th November 2008, Comments 0 comments

Augusto Pinochet's arrest a decade ago was an unprecedented development in the fight against global impunity.

His capture in London and the procedure, which followed in British courts, contributed to the development of the concept of universal jurisdiction. Pinochet was the first former head of state to be arrested by another country for international human rights crimes. 
Pinochet supporters © Flickr by Claudio Scheiding
There were more to follow. The first application of the "Pinochet precedent" came in February 2000 when a Senegalese judge indicted the exiled dictator of Chad, Hissène Habré, on torture charges. Other former presidents such as Slobodan Milosevic and Charles Taylor found themselves arrested and tried by war crimes tribunals. And today, Sudanese president Omar al- Bashir faces possible prosecution over the genocide in Darfur before the first permanent international war crimes court, the ICC. Photo above left: Pinochet supporters © Claudio Scheiding

Torture claims
On 16 October 1998 the former Chilean junta leader Augusto José Ramón Pinochet Ugarte (1915 - 2006) travelled to the United Kingdom to receive medical treatment. The next day he was arrested on a Spanish provisional warrant for the murder of Spanish citizens in Chile under his political responsability. Five days later, Pinochet was served with a second provisional arrest warrant from the Spanish investigating judge Baltasar Garzón, charging him with systematic torture, murder, illegal detention, and forced disappearances. 
After many legal hurdles, the House of Lords panel, Britain's highest court, confirmed the legality of Pinochet's arrest and held that he was not entitled to immunity with regards to the torture charges. Torture is regarded a crime under customary international law and therefore justifies the application of universal jurisdiction. The panel considered the UN Convention against torture to be inconsistent with the notion that former Heads of State can assert immunity for these acts.
                          Hands © Steven Fernandez - Flickr 
                                              "Hands" © Steven Fernandez 
On 8 October 1999 it was decided to extradite Pinochet, but five months later he was released on medical grounds by the then Home Secretary Jack Straw without facing trial. On 3 March Pinochet returned to Chile where he was given the status of "ex-president," granting him immunity from prosecution. But soon after he faced torture and fraud charges and spent most of the remainder of life under house arrest. Pinochet died on 10 December 2006, without having been convicted of any crimes committed during his dictatorship.

General Pinochet came to power following a military coup on 11 September 1973, which led to the overthrow of President Salvador Allende. Soon after, he led a repressive military junta, which introduced martial law, closed parliament, censored the media and suppressed left-wing opposition parties. The dictatorship's violence was directed not only against dissidents, but also against their families and other civilians.
Augusto Pinochet - photo source rnw
In response to growing domestic and international pressure, Patricio Aylwin took over power in 1990 after general elections. However, Pinochet was to remain Commander-in-Chief of the Army through 1997. Moreover, Pinochet had selected most of the judiciary, and military supporters dominated the Senate.
                                                                               General Augusto Pinochet
Soon after assuming office Aylwin created the National Commission on Truth and Reconciliation, also known as the Rettig Commission. In February 1991, the report of the Commission was presented: 2,000 pages long, its two volumes contained essays and analysis, as well as an alphabetical list of the victims, and detailed some 2,000 cases in which people had died as a result of human rights abuse by government agents. Although the Commission was limited to gathering information, rather than investigating criminal responsibility for human abuses, it presented a clear picture of institutional responsibility. 
                             Pinochet with Salvador Allende
                                              Pinochet with Salvador Allende 
Universal jurisdiction
In combating impunity for grave international human rights violations, a critical role remains for national courts and tribunals since international courts are only in a position to try a small number of, mostly high-level, people. More and more states have embraced the principle of universal jurisdiction. It allowes - even if neither the suspect nor the victim are nationals of the country where the court is located , and the crime took place outside that country - national courts to try these cases. 

Countries have shown an increasing willingness to enlarge the zone of their jurisdiction and to prosecute or extradite persons suspected of a serious international crime such as genocide, war crimes, crimes against humanity or torture. The case of former Augusto Pinochet in the late 1990s signalled the first steps towards these changing international norms. Nowadays a variety of countries, specifically Canada, Spain, Italy and Belgium, exercise the principle of universal jurisdiction.
Thijs Bouwknegt
Radio Netherlands 

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