The Pinochet Saga Continues (plus a few thoughts on Universal Jurisdiction)

In the ongoing saga of Augusto Pinochet, the Supreme Court of Chile found that he had Head of State immunity that prevented from his being prosecuted for the killing of his predecessor, General Carlos Prats. See the BBC report here. Pinochet is also being investigated for human rights abuses under Operation Condor, which persecuted and killed left-wing opponents during the 1970’s, as well as for tax evasion. There needs to be a separate immunity determination for each case. His immunity has been stripped for the Operation Condor case.

As many readers may remember, the current spate of cases in Chile were in part spurred by the attempted prosecution of Pinochet for his activities in Operation Condor by a Spanish judge using universal jurisdiction. As Pinochet was visiting London at the time, the Spanish authorities filed an extradition request with the U.K., precipitating a series of cases in the U.K. over the extradition request, and the role universal jurisdiction more generally. The case had resulted in his being found extraditable (due to treaty obligations) for certain specific crimes, but he was not extradited because he was found to be unfit for trial. Upon return to Chile, the Chilean Supreme Court found him fit for trial and stripped him of immunity.

Universal jurisdiction is the controversial doctrine in which there can be jurisdiction by any court over certain crimes due to the nature of the crime itself (rather than because of it having occurred within the territory or by or against a national of the prosecuting country). Universal jurisdiction has been used in cases of torture, slave-trading, genocide. It is alsor used, in modified form, in anti-terrorism laws.

Some have argued that universal jurisdiction can lead to judicial overreaching and the frustration of diplomatic solutions; see Henry Kissinger’s (a frequent target of universal jurisdiction suits) argument here. Human rights advocates counter that political checks on courts have prevented such overreaching and that, more importantly, universal jurisdiction is one of the best ways to end impunity in countries that neither have operational (or credible) courts nor the geopolitical interest that leads to the creation of ad hoc international tribunals. See Kenneth Roth’s response to Kissinger and the Amnesty International backgrounder. The International Criminal Court, by the way, has been supported as an internationally-accountable mechanism that would eclipse the need of universal jurisdiction by domestic courts.