The Pinochet Case: Origins, Progress and Implications

Abstract

By contrast, the current regulations that establish universal jurisdiction over crimes against humanity assume that state rulers are subordinate to the double control of international law and local law that if both cases must be applied by independent judges' (p. 35) Second, it marked the growing power of courts over executives, what Alexandra Barahona de Brita calls the 'judicialization of polities'. [...]in 1997, the year before Pinochet's arrest, there were 200 cases in the courts relating to the disappearances. Most importantly the authors of this volume raise some thorny issues, addressing the conflict between an internationals system made up of unequal states and the increasing universal jurisdiction of human rights law.

- The Pinochet case: Origins, Progress and Implications, edited by Madeleine Davis. London: Institute of Latin American Studies, 2003.

This book was published before Pinochet's return to the Chilean courts last summer. The general was resting comfortably in his home, the Chilean courts having ruled that he was not mentally competent to stand trial. That ruling was overturned in June 2004, when Pinochet bragged to a radio station that murders, torture and disappearances were required, and thus justified, to fight Marxism in Chile. Yet, even before his return to the Chilean courts, as the authors of this volume convincingly argue, Pinochet's London arrest marked a sea change in international jurisprudence and international relations writ large.

First, it marked the growing acceptance of universal jurisdiction of human rights. Juan Garces, the President of the Salvador Allende Foundation which filed the suit against Pinochet in Spain, contends that Pinochet's arrest marked the diminished sway of the realist paradigm: 'Interventions like Kissinger's in Chile between 1968 and 1970 make a mockery of sovereignty of states, of the UN charter of 1945 and of international legality. By contrast, the current regulations that establish universal jurisdiction over crimes against humanity assume that state rulers are subordinate to the double control of international law and local law that if both cases must be applied by independent judges' (p. 35)

Second, it marked the growing power of courts over executives, what Alexandra Barahona de Brita calls the 'judicialization of polities'. Not only did international law trump sovereign states, but courts trumped elected officials. Several authors find the latter worrying. The House of Lords made the final determination in Britain. In Chile, as Diana Woodhouse notes, much like the film Justice at Nuremberg, civilian judges appointed before the coup were complicit in the late dictatorship's crimes against humanity. It was not until 1996, when new laws and special compensation for judges who resigned, that a new supreme court was constituted and willing to rule on human rights cases.

Carlos Malamud, in his chapter on the judicial process in Spain, worries that the triumph of the Spanish Audiencia over the Spanish president, and the willingness of Spanish and British judges to ignore the wishes of the democratically elected government of Chile, sets an undemocratic precedent. Not only are judges less accountable than democratically officials, but some states are also clearly more powerful than others. Why, he asks, are dictators from South America or Africa brought to trial, but not Henry Kissinger? Carlos Huneeus challenges the notion that the intervention of the European judges weakened democracy in Chile. On the contrary, he argues, the new democratic governments were weakened by the continued threat of military intervention. Pinochet's arrest in London strengthened democracy by requiring the Chilean government and Pinochet's supporters to prove that it was possible to try Pinochet at home.

Much of this volume is organized as a series of unresolved debates. Brian Loveman, for instance, argues that Pinochet's trial shattered a long-standing Latin American tradition characterized by 'states of exception' and 'states of siege'. It was, he argues, a 'sea change for the course of impunity not just for Chile and Latin America, but for impunity around the globe as international human rights law and traditional notions of sovereignty come into conflict' (p. 62). Alan Angell, however, insists that Pinochet's arrest in London furthered reforms already underway. In Chile the major political actors had already distanced themselves from Pinochet, and the process of judicial activism was well in tow. In fact, in 1997, the year before Pinochet's arrest, there were 200 cases in the courts relating to the disappearances.

Alexandra Barohona de Brita argues that Pinochet's arrest was both a consequence of and necessary stage in the shifting of sovereignty boundaries and the activism of national and transnational human rights actors. The most important steps in this process include 1 ) a human rights revolution and the increased questioning of the principle of immunity; 2) a democratic revolution and renewed civil society activism on human rights; and, 3) the growth of transnational coalitions and human rights networks among churches, exiles, judges and NGO's. These changes had a snowball effect in which the warrant for Pinochet's arrest in Spain, Pinochet's actual arrest in London, the extradition hearings brought against other human rights violators in Latin America, Africa and the Balkans, and increased support for an international court in Brussels were all a part.

Many of the arguments in this volume are fascinating, and these chapters will be very useful for human rights activists, lawyers and professors. The volume includes a detailed examination not only of the Chilean case, but also of human rights progress in Argentina, Brazil, Uruguay, Guatemala and selected cases in Africa and the Balkans. Most importantly the authors of this volume raise some thorny issues, addressing the conflict between an internationals system made up of unequal states and the increasing universal jurisdiction of human rights law. There is much to recommend this volume to the average reader.