by Reed Brody
On the night of October 16, 1998, London police arrested General Augusto Pinochet of Chile while he was on a private visit to England. They were acting on an arrest warrant from a Spanish judge charging the former dictator with atrocities committed during his 17-year rule in Chile. The British courts rejected Pinochet's claims was entitled to immunity and that he could only be tried in Chile and ruled that he could be extradited to Spain, although he was ultimately sent back to Chile when he was deemed medically unfit to stand trial.
A striking feature of the Pinochet case was that a Spanish judge had the authority to order Pinochet's arrest for crimes committed mostly in Chile and mostly against Chileans. This authority derives from the international law of "universal jurisdiction," which holds that every state has an interest in bringing to justice the perpetrators of particular crimes of international concern, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims. Universal jurisdiction ensures that there is no "safe haven" for those responsible for the most serious atrocities.
Piracy was the classic "universal" crime, later joined by slave trading. Since the Nuremberg trials of Nazi leaders at the end of World War II, the list of crimes subject to universal jurisdiction under international law has grown to include atrocities such as genocide, torture, apartheid, and systematic "crimes against humanity." As a U. S. court said in the landmark FILARTIGA case, in which the family of a Paraguayan torture victim living in the United States brought a civil suit against his torturer, who had come to the United States: "the torturer has become like the pirate and slave trader before him, 'hostis humanis generis,' an enemy of all mankind."
To determine which crimes give rise to universal jurisdiction under international law, we look at international treaties such as the U.N. Convention Against Torture, or the Geneva Conventions for war crimes and the general custom of states ("customary international law"), under which genocide and "crimes against humanity" are considered crimes of universal jurisdiction. The key to determining whether a prosecution or a civil case for damages can actually be brought based on universal jurisdiction will be the laws of the particular country in which the case is brought. Some countries, mostly in Europe, have laws giving their courts extensive jurisdiction over atrocities committed abroad and can begin an investigation even if the accused person is not in that country, later seeking the defendant's extradition, as Spain did in the Pinochet case. In many countries, the victims themselves, in addition to the state prosecutor, can initiate criminal proceedings. U.S. law provides for the prosecution of torture and certain war crimes committed abroad if the defendant is in the United States, though the government has not yet brought any such prosecutions. The United States also has expansive civil jurisdiction for damage claims based on atrocities.
The Pinochet arrest gave hope to other victims that they could bring their tormentors to justice abroad. In January 2000, for example, torture victims from Chad in central Africa traveled to Senegal to initiate a criminal prosecution against their exiled former dictator, Hissene Habre. A Senegalese court indicted him on charges of torture and "crimes against humanity," though he was later released. The same Spanish judge who indicted Pinochet is also seeking the arrest of dozens of Argentine generals who allegedly tortured and "disappeared" prisoners during that country's "Dirty War" in the 1970s and 1980s. Victims have filed criminal cases in Belgium, which has expansive universal jurisdiction laws and does not recognize immunity for heads of state, against a number of current leaders, including Ariel Sharon of Israel, Saddam Hussein of Iraq, and Fidel Castro of Cuba. These cases are now pending.
About the Author
Reed Brody is the advocacy director for Human Rights Watch, an independent, non-governmental organization dedicated to protecting the human rights of people around the world. Brody submitted briefs as an intervener in the Pinochet hearings in Britain's House of Lords, and was present during all arguments and at the verdicts in London. Brody has also contributed to publications such as THE NATION and THE PROGRESSIVE.