Prosecuting dictators: International law and the Pinochet case

World Policy Journal

Volumn 18, Issue 1, 2001, Pages 101-112

  Waltz, Susan ^a  

^a NONE

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EID: 0035613743     PISSN: 07402775     EISSN: None     Source Type: Journal    
DOI: 10.1215/07402775-2001-2012     Document Type: Article

References (45)

1. Stephan Haggard and Beth Simmons, "Theories of International Regimes," International Organization, vol. 41 (summer 1987), p. 491.
2. Amnesty International, "The Case of General Pinochet: Universal Jurisdiction and the Absence of Immunity for Crimes against Humanity," EUR 445/21/98 (October 1998), p. 3. See also Amnesty International, "Chile. An Inescapable Obligation: Bringing to Justice Those Responsible for Crimes against Humanity under Military Rule," AMR 22/13/98 (October 1998).
3. Amnesty International, "The Case of General Pinochet: Universal Jurisdiction and the Absence of Immunity for Crimes against Humanity," EUR 445/21/98 (October 1998), p. 3. See also Amnesty International, "Chile. An Inescapable Obligation: Bringing to Justice Those Responsible for Crimes against Humanity under Military Rule," AMR 22/13/98 (October 1998).
4. Ibid.
5. Lord Hoffman, who participated in the first hearing, did not issue a separate opinion. Instead, he endorsed the opinion of Lord Nicholls, with the brief statement, "I have had the advantage of reading in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead and for the reasons he gives I too would allow this appeal." Judgment - Regina v. Bartle ex parte Pinochet, House of Lords (25 November 1998), opinion of Lord Hoffman.
6. Amnesty International's associates in hearings before the House of Lords were the Medical Foundation for the Care of Victims of Torture, the Redress Trust, Association of the Relatives of Disappeared Detainees, Mary Ann Beausire, Juana Beausire, and Sheila Cassidy.
7. Helena Cook, "Amnesty International at the United Nations," in "The Conscience of the World": The Influence of Non-Governmental Organisations in the UN System, ed. Peter Willetts (Washington, D.C.: Brookings, 1996), pp. 189-91.
8. Opinions of he Lords of Appeal for Judgment in the Cause Regina v. Bartle and others, House of Lords (24 March 1999), opinions of Lord Browne-Wilkinson and Lord Millett.
9. "Report of the Secretary-General Under Security Council Resolution 808," in Henry J. Steiner and Philip Alston, International Human Rights in Context, 2nd ed. (New York: Oxford University Press, 2000), p. 1149.
10. See M. Cherif Bassiouni, The Law of the International Criminal Tribunal for the Former Yugoslavia (Irvington-on-Hudson, N.Y.: Transnational Publishers, 1996), pp. 487-89. Bassiouni served as chairman of the five-member United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992).
11. Christine M. Chinkin, "International Decisions: United Kingdom House of Lords: Regina v. Bow Street Stipendary Magistrate, ex parte Pinochet Ugarte," American Journal of International Law, vol. 93 (July 1999), p. 711.
12. Steiner and Alston, International Human Rights in Context, pp. 1131-32. See also, International Law Association, Committee on International Human Rights Law and Practice, "Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses," London conference (2000).
13. Steiner and Alston, International Human Rights in Context, pp. 1131-32. See also, International Law Association, Committee on International Human Rights Law and Practice, "Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses," London conference (2000).
14. American Law Institute, "Restatement (Third), Foreign Relations Law of the United States" (1987), reproduced in Steiner and Alston, International Human Rights in Context, p. 233.
15. Amnesty International, "Universal Jurisdiction: 14 Principles on the Effective Exercise of Universal Jurisdiction," IOR 53/01/99 (May 1999), p. 1.
16. Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon Press, 1989), p. 209.
17. Brownlie presented such arguments to the House of Lords on behalf of Amnesty International and its associates. In response, some of the law lords expressed reservations about extensive application of the principle of universal jurisdiction, as apparently did the amicus curiae, David Lloyd Jones. See Regina v. Bartle (25 November 1998), opinion of Lord Lloyd of Berwick.
18. It is interesting to note that the passages of the Torture Convention pertaining to extradition were borrowed, verbatim, from treaties pertaining to hostage taking and aircraft hijacking that were concluded in the 1970s. See Menno Kamminga, "The Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences," First Report to the Committee on Human Rights Law and Practice, International Law Association, 68th report (1998), p. 13.
19. Spanish law provides for Spain's universal jurisdiction over offenses "which, under international treaties or conventions, should be pursued in Spain." as provided by Article 23.4 of Spain's Organic Law of the Judicial Branch. Richard Wilson reviews provisions for universal jurisdiction in Spanish law in "Prosecuting Pinochet: International Crimes in Spanish Domestic Law," Human Rights Quarterly, vol. 21 (November 1999), pp. 951-52.
20. Regina v. Bartle (25 November 1998), opinion of Lord Slynn of Hadley.
21. Regina v. Bartle (24 March 1999), opinion of Lord Millett.
22. A presiding magistrate in Belgium, for example, had issued the opinion: "We find that, as a matter of customary international law, or even more strongly as a matter of jus cogens, universal jurisdiction over crimes against humanity exists, authorizing national judicial authorities to prosecute and punish the perpetrators in all circumstances." See Luc Reydams, "International Decisions: Belgian Tribunal of First Instance (Brussels)," American Journal of International Law, vol 93 (July 1999), pp. 702-03. In France, legal opinion appears to have been divided as to the extent the French legal system recognizes universal jurisdiction for crimes against humanity. See Brigitte Stern, "French Tribunal de grande instance (Paris)," American Journal of International Law, vol. 93 (July 1999), p. 697, and Amnesty International, "The Case of General Pinochet," p. 7, noting rulings in the case of Nazi war criminal Klaus Barbie.
23. A presiding magistrate in Belgium, for example, had issued the opinion: "We find that, as a matter of customary international law, or even more strongly as a matter of jus cogens, universal jurisdiction over crimes against humanity exists, authorizing national judicial authorities to prosecute and punish the perpetrators in all circumstances." See Luc Reydams, "International Decisions: Belgian Tribunal of First Instance (Brussels)," American Journal of International Law, vol 93 (July 1999), pp. 702-03. In France, legal opinion appears to have been divided as to the extent the French legal system recognizes universal jurisdiction for crimes against humanity. See Brigitte Stern, "French Tribunal de grande instance (Paris)," American Journal of International Law, vol. 93 (July 1999), p. 697, and Amnesty International, "The Case of General Pinochet," p. 7, noting rulings in the case of Nazi war criminal Klaus Barbie.
24. A presiding magistrate in Belgium, for example, had issued the opinion: "We find that, as a matter of customary international law, or even more strongly as a matter of jus cogens, universal jurisdiction over crimes against humanity exists, authorizing national judicial authorities to prosecute and punish the perpetrators in all circumstances." See Luc Reydams, "International Decisions: Belgian Tribunal of First Instance (Brussels)," American Journal of International Law, vol 93 (July 1999), pp. 702-03. In France, legal opinion appears to have been divided as to the extent the French legal system recognizes universal jurisdiction for crimes against humanity. See Brigitte Stern, "French Tribunal de grande instance (Paris)," American Journal of International Law, vol. 93 (July 1999), p. 697, and Amnesty International, "The Case of General Pinochet," p. 7, noting rulings in the case of Nazi war criminal Klaus Barbie.
25. International Law Committee, "Final Report on the Exercise of Universal Jurisdiction."
26. Chinkin, "International Decisions," p. 711.
27. Lord Slynn, serving as lord chief justice of the first panel of law lords, quoted the editors of the Guide to Diplomatic Practice: "A head of state who has been deposed or replaced or has abdicated or resigned is of course no longer entitled to privileges or immunities as a head of state. He will be entitled to continuing immunity in regard to acts which he performed while head of state, provided that the acts were performed in his official capacity; in this his position is no different from that of any agent of the state" (Regina v. Bartle [25 November 1998], opinion of Lord Slynn of Hadley).
28. See Regina v. Bartle (25 November 1998), opinion of Lord Nicholls of Birkenhead, and Regina v. Bartle (24 March 1999), opinion of Lord Hutton.
29. Regina v. Bartle (24 March 1999), opinions of Lord Hope of Craighead, Lord Millett, and Lord Saville of Newgate.
30. Justice Robert H. Jackson, "Report to President Truman on the Legal Basis for Trial of War Criminals" (1946), cited in Amnesty International, "Case of General Pinochet." p. 12.
31. Lord Browne-Wilkinson summarized his views: "[I]f, as alleged, Senator Pinochet organized and authorized torture after 8 December 1988, he was not acting in any capacity which gives rise to immunity ratione materiae because such actions were contrary to international law, [because] Chile has agreed to outlaw such conduct, and [because] Chile had agreed with the other parties to the Torture Convention that all signatory states should have jurisdiction to try official torture (as defined in the Convention) even if such torture were committed in Chile (Regina v. Bartle [24 March 1999], opinion of Lord Browne-Wilkinson).
32. Ibid.
33. Regina v. Bartle (24 March 1999), opinion of Lord Phillips of Worth Matravers.
34. Chinkin, "International Decisions," p. 711.
35. Regina v. Bartle (25 November 1998), opinion of Lord Slynn of Hadley.
36. Moreover, there are important gaps in coverage. Discussion of these would take us well beyond the scope of this essay, but see Theodor Meron, "The Humanization of Humanitarian Law," American Journal of International Law, vol. 94 (April 2000), pp. 268-69.
37. American Law Institute, "Restatement (Third), Foreign Relations Law of the United States" (1987).
38. Ian Brownlie treats the subject of the individual and international criminal responsibility in Principles of Public International Law (Oxford: Clarendon Press, 1998), pp. 565-68. Meron notes that the Nuremberg Charter based its definition of war crimes on customary international law, codified in the Fourth Hague Convention and the 1929 Prisoner of War Convention ("The Case for War Crimes Trials in Yugoslavia, Foreign Affairs, vol. 72 [summer 1993], pp. 128-29).
39. Ian Brownlie treats the subject of the individual and international criminal responsibility in Principles of Public International Law (Oxford: Clarendon Press, 1998), pp. 565-68. Meron notes that the Nuremberg Charter based its definition of war crimes on customary international law, codified in the Fourth Hague Convention and the 1929 Prisoner of War Convention ("The Case for War Crimes Trials in Yugoslavia, Foreign Affairs, vol. 72 [summer 1993], pp. 128-29).
40. See, for example, M. Cherif Bassiouni, Crimes against Humanity in International Law (Dordrecht, The Netherlands: Nijhoff, 1992), pp. 147-65.
41. Meron, "Humanization of Humanitarian Law," p. 262.
42. Margaret McAuliffe de Guzman notes debate on this issue at the 1998 United Nations conference to approve the statute of an international criminal court in "The Road from Rome: The Developing Law of Crimes against Humanity," Human Rights Quarterly, vol. 22 (May 2000), p. 355.
43. Meron, "Humanization of Humanitarian Law," p. 259.
44. Quoted in Steiner and Alston, International Human Rights in Context, pp. 113-14.
45. Regina v. Barde (24 March 1999), opinion of Lord Browne-Wilkinson.