|No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.|
The Pinochet Case: The End of Impunity
The arrest of General Augusto Pinochet by the London Metropolitan Police on 16 October 1998 was a wake-up call to tyrants everywhere. The two subsequent rulings by the British House of Lords rejecting his claim of immunity forged legal history.1
In a move of landmark significance, Judge Juan Guzman indicted Pinochet in Chile on December 1, 2000. While the charges against him were subsequently dismissed on technical grounds, they were reinstated on January 29, 2001, and Pinochet was placed under house arrest. Just a few months earlier, the Chilean Supreme Court had confirmed that Pinochet, a lifetime senator, should be stripped of his parliamentary immunity (a process known in Spanish as desafuero) and should stand trial. The criminal prosecution is for the kidnapping in October 1973 of nineteen supporters and officials of the government of President Salvador Allende, who died in a military coup led by General Pinochet on September 11, 1973.
But General Pinochet's troubles began much earlier and more unexpectedly, far from his home in Chile. On October 16, 1998, officers of the London Metropolitan Police, acting at the request of Spanish magistrate Baltasar Garzón, arrested General Pinochet while he was recovering from back surgery in a private London clinic. Pinochet, in his eighties and a senator with life tenure, led the Chilean army in a violent military coup against elected President Salvador Allende on September 11, 1973, proclaimed himself president, and held power until 1990. The military regime he headed dismantled Chile's long-established democratic institutions, privatized its economy, and tried to eradicate left-wing parties and organizations in a reign of terror that claimed more than 3,000 lives, involved the torture of many tens of thousands more, and forced over a quarter-million Chileans into exile.
The House of Lords, Britain's highest court, found in two successive rulings that Pinochet's arrest was lawful and that he did not enjoy immunity as a former head of state from extradition for these crimes. The House of Lords itself annulled its first verdict in an unprecedented ruling which accepted that it might be tainted with the appearance of bias due to the association of one of the Law Lords with Amnesty International, which had intervened in the hearing. In its second ruling, the House of Lords based its judgment on the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which Chile, Spain, and Britain had ratified and incorporated into their domestic law at the end of the 1980s.
These historic decisions were evidence of a growing consensus in the international community that human rights transcend national boundaries, limiting the immunity of former heads of state and even the prerogatives of national sovereignty. They added to an impressive list of historical precedents, starting with the Nuremberg trials after the Second World War, which established the principle that there should be no immunity for perpetrators of the gravest crimes, no matter who they are or where their crimes were committed. That principle was enshrined in Resolution 95 of the United Nations General Assembly in 1946, in the statutes establishing tribunals for the former Yugoslavia and Rwanda, and in the treaty for the new permanent International Criminal Court adopted in July 1998 in Rome. Yet few states had shown the courage to put these principles into practice. The drama of the London events was enhanced by the unusual notoriety surrounding Pinochet, the brutality of his regime, and his invulnerability, until now, from the long arm of the law.
Sir Nigel Rodley has stated that
Even the narrowest reading of the Pinochet litigation--and such a reading requires us to limit the scope only to state parties to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the "Convention against Torture")--marks a milestone in the evolution of international law. It confirms that, at least in respect of public officials other than a serving head of state, the doctrine of sovereign or state immunity is no bar to the exercise of universal jurisdiction over such officials from the states parties to the Convention in respect of the crime of torture.2
The judgment does not, however, answer the question whether torture committed in a situation where not all the states concerned are parties to the Convention would still be triable in a foreign court without the obstacle of state immunity.
Peter Danchin, Columbia University