Detention seen as a crucial rights case

The Miami Herald
March 3, 2000

Detention seen as a crucial rights case

BY ANDRES OPPENHEIMER

Supporters of former Chilean strongman Gen. Augusto Pinochet may be
celebrating Britain's decision to allow his return home as a political victory, but his
17-month detention in London is more likely to go down in history as a triumph for
advocates of expanded human rights.

International law experts stress that Pinochet was released after being ruled
mentally unfit to stand trial, not because of Britain's objections to the case
brought against him.

``This case has been one big victory for human rights, from the beginning to the
end,'' said Reed Brody, advocacy director for the Human Rights Watch monitoring
group in New York. ``The fact that Gen. Pinochet was arrested, that the House of
Lords twice ruled that he had no immunity and that four countries sought his
extradition has revolutionized the way the world deals with the worst atrocities.''

According to Brody and other human rights advocates, the most important legacy
of Pinochet's arrest in London at the request of a Spanish judge will be the March
1999 ruling by the Law Lords -- the British equivalent of the U.S. Supreme Court --
that a former ruler can be tried by British courts for abuses committed in his
home country.

The Lords ruled 6-1 that a head of state charged with violating the International
Convention Against Torture can be tried as a criminal in any of the 112 nations
that have signed the treaty.

That decision, they say, may have marked the beginning of a new era of
``globalized justice.'' In their view, the former president's release is a
circumstantial decision that does not eclipse Britain's ground-breaking earlier
rulings.

Carlos Salinas, a spokesman for Amnesty International in Washington,
characterized it as ``the most important human rights case since the Nuremberg
trials,'' referring to the trials of former Nazi officials at the end of World War II. ``It's
the first step in a new era of human rights accountability.''

NEW TERRITORY

Britain ventured into new legal territory when it detained Pinochet at a London
hospital in October 1998 as he was recovering from back surgery, and the House
of Lords ruled the following March that he could be extradited to Spain.

Technically, it was not the first time a government official had faced an
international tribunal for crimes committed at home. In addition to the Nazi war
criminals in the mid-'40s, Serbian leader Slobodan Milosevic was indicted in May
1999 by the Yugoslav war crimes tribunal at The Hague and may be tried if he is
ever arrested.

A more recent case stemming from the Pinochet precedent involves Hissene
Habre, the former president of Chad.

The 57-year-old former dictator is expected to stand trial later this year in Senegal
on charges of torture, political killings and disappearances -- the same types of
violations that ensnared Pinochet. Habre has been living in Senegal since 1990
but was placed under house arrest after human rights groups filed charges in a
Senegal court on the basis of universal jurisdiction for the political crimes.

Brody called the Pinochet case the ``inspirational paternity'' for the Habre
prosecution. ``It was because of the Pinochet case that Chadian human rights
organizations approached Human Rights Watch and said, `What can we do about
Habre?' We looked at it and we took on the case.''

LANDMARK CASE

The Pinochet prosecution marked the first time a former head of state had been
taken into custody to stand trial abroad by a conventional court rather than an
international panel established specifically for a certain purpose, such as the
Nuremberg or Serbian war crimes tribunals, legal experts say.

``It's a very important precedent,'' said Stephen Schnably, a professor of
international law at the University of Miami. ``It means that any former head of
state has to worry when traveling out of the country whether he will enjoy
immunity from prosecutors or civil lawsuits.''

Legal experts agree that the Pinochet case will weaken the notion that former
heads of state enjoy immunity for their actions while in power. Also, it will make it
harder for dictatorships to shield themselves behind the concept of national
sovereignty to prevent other countries from looking into their human rights abuses.

In addition, it may accelerate efforts to launch the International Criminal Court, a
United Nations body whose creation was approved in 1998 by 92 countries -- not
including the United States and China.

Some experts say the Pinochet affair was so messy from a legal point of view
that many countries may prefer that future cases be tried in a more orderly way
by an international court. Other countries may fear that having national courts
judge foreign human rights abusers may lead to politically motivated trials.

LEGAL HURDLES

Creation of the International Criminal Court still has to cross legal hurdles. So far
only six countries -- Italy, Senegal, Trinidad and Tobago, San Marino, Fiji and
Ghana -- of the necessary 60 have ratified the statutes. But several European
countries, including France and England, are taking steps to ratify it, and many
more are likely to follow, experts say.

``I have no doubt that the International Criminal Court will exist within two or three
years,'' says Johan Van der Vyver, a professor of international law at Emory
University in Atlanta. ``It may exist without the United States, but it will exist.''

U.S. officials say they support the idea of the international court, but fear U.S.
adversaries will start politically motivated prosecutions with trumped up charges
against U.S. officials. Conservatives in the U.S. Congress have opposed
international jurisdiction over U.S. laws since the International Court of Justice in
The Hague ruled against the United States in a case brought by Nicaragua's
leftist Sandinista government in the 1980s.