Center News
Pinochet Precedent: Legal Obstacles and New Approaches to Prosecuting Crimes Against Humanity
by Teresa Young Reeves*
On March 26, 2001, the Washington College of Law (WCL) and the Institute for Policy Studies (IPS) co-sponsored a conference at WCL entitled The Pinochet Precedent: Individual Accountability for International Crimes. The conference addressed various legal obstacles encountered in the struggle to bring former Chilean dictator General Augusto Pinochet to justice, and to suggest new approaches for lawyers and human rights defenders in ongoing and future proceedings against individuals accused of violations of international criminal law. Among the conference participants were WCL Dean and Center for Human Rights and Humanitarian Law Co-Director Claudio Grossman, and WCL Professors and Center Co-Directors Richard J. Wilson, Robert Goldman, and Diane Orentlicher. WCL Professor Michael Tigar also participated, along with 15 other lawyers and human rights defenders who traveled from across the United States and from as far as Senegal and Argentina.
The introductory panel discussion outlined the historical and political events leading up to the 1973 coup in Chile and subsequent legal proceedings against Pinochet. Juan E. Garcés, the leading attorney in the Spanish case against Pinochet, opened the panel with a chilling personal account of the coup, a day on which late Chilean President Salvador Allende asked Garcés to take refuge in an embassy because someone needed to live to tell the history of that day. U.S. attorney Samuel Buffone spoke next. In 1976 he and Professor Michael Tigar brought a successful civil suit against the Chilean government for the deaths of Orlando Letelier, former ambassador to the United States and Defense Minister under President Allende, and Ronni Moffitt, a U.S. citizen and development assistant at IPS. In describing the Letelier-Moffitt case as an uphill battle, Mr. Buffone explained that 25 years ago, the prevalent belief was that Pinochet was beyond the reach of the law because, as a former head of state, he had sovereign immunity for acts committed during his regime. At that time, the concept of universal jurisdictionthe legal principle by which any country can prosecute certain international crimes, regardless of the nationality of the parties or the locus of the crimewas neither sufficiently developed nor commonly understood. In the wake of Spains request to extradite Pinochet from Britain for international law violations committed during his dictatorship, the import of universal jurisdiction has gained increased recognition.
The second panel discussed lessons learned from other universal jurisdiction cases, including the recent case against Hissène Habré, the former dictator of Chad. Human Rights Watch Advocacy Director Reed Brody opened the panel analogizing a human rights cliché[i]f you kill one person, you go to jail; if you kill 20, you go to an insane asylum; but if you kill 20,000 people, you get invited to a peace conferenceto the Habré case. Habré, who fled to Senegal after losing power, allegedly murdered an estimated 40,000 Chadians and tortured an estimated 200,000 people. Plaintiffs represented by Mr. Brody and Pascale Kambale, who also participated in the conference, brought charges against Habré in March 2001. The Senegalese Cour de Cassation has dismissed the case for lack of jurisdiction.
Mr. Kambale commented on why the Habré case ultimately failed. First, Mr. Kambale blamed the lawyers inability to persuade the court of public opinion that Habré had in fact committed the atrocious crimes alleged. Second, he cautioned that Africa needs to train its human rights lawyers to become more pro-active in bringing alleged human rights violators to justice, rather than waiting for national governments to bring suits. Third, Mr. Kambale explained that the international community must work to bridge the division between international and domestic human rights law. According to Mr. Kambale, many francophone African countries devalue the utility of international law, believing it comparable to diplomatic law and, therefore, inapplicable to ordinary citizens.
The two remaining panels discussed U.S. accountability mechanisms for violations of international law and the future role of ad hoc criminal tribunals and the recently established International Criminal Court. Shawn Roberts, an international human rights lawyer and Legal Director for the Center for Justice & Accountability in San Francisco, California, outlined various strategies that may be used in the United States to protect victims of torture, summary execution, forced disappearances, crimes against humanity, and war crimes. Besides extradition for prosecution and deportation, Ms. Roberts suggested U.S. lawyers pursue civil remedies under the Alien Tort Claims Act or under the Torture Victim Protection Act.
Although conference participants made it clear the legal community has made dramatic advances in overcoming the obstacles first presented by the Letelier-Moffitt case 25 years ago, the common theme invoked at the conference was that impunity for gross human rights violations continues today. WCL Professor Diane Orentlicher, currently on leave as a visiting scholar at Princeton Universitys Program in Law and Public Affairs, reminded the audience that forcing accountability by ending impunity for gross human rights violations in part relies on the will of the people and the will of the political process to persuade governments to respect and ensure human rights.
*Teresa Young Reeves is a J.D. candidate at the Washington College of Law and a staff writer for the Human Rights Brief.
The proper citation for this article in the Human Rights Brief Volume 8, Issue 3, beginning at page 33 is: 8 No. 3 Hum. Rts. Brief 33 (2001).
