by Phillipe Sands
Amnesty International, Spring
When the fifth and final judge of Britain's
highest court delivered his verdict against former Chilean President
Augusto Pinochet on Nov. 25, 1998, the entire chamber of the House
of Lords gasped. Observers recognized immediately that the judges'
rejection of Pinochet's claim to immunity was a watershed moment
in international justice. The recording of their collective, dramatic
reaction is preserved in the BBC radio archive.
Some 60 years after the beginning of the
Nuremberg and Tokyo military trials-the first international war-crimes
tribunals-the "Pinochet Precedent" established the principle
that no individual is above the rule of law, not even a former
president who had acted in his capacity of head of state. It was
a defining moment in international justice an exclamation point
following the evolution of international relations that has taken
place over the past 50 years.
That evening, news broadcasts around the
world led with the story, trumpeting the transformation of the
international legal order. Author Isabel Allende, daughter of
President Salvador Allende, whose government was overthrown by
Pinochet, called the decision "marvelous, a truly great satisfaction."
The UK Guardian columnist Hugo Young described the verdict as
"bold and principled, taking a stand on behalf of the globalization
of fundamental human rights."
The global response to the case reflected
how dramatically notions of sovereignty have changed over the
past 50 years, which have been marked by unprecedented global
interdependence. An avalanche of international laws adopted since
World War II means that states are now regulated by an increasingly
wide net of international obligations covering everything from
free trade and investment rules to labor standards and the protection
of fundamental human rights. And the rules, once adopted, take
on a logic and a life of their own.
In this globalized, interdependent world,
it is impossible to conceive of a return to the old days, when
each state was free to act as it wished, unfettered by international
obligations. Of course our current system of international justice
is imperfect, in continual need of evaluation and faced with the
complicated challenges of a changing world order that includes
non-functioning states and borderless, sometimes malign non-state
actors. However, the global rules provide necessary minimum standards
for judging the legitimacy of international actions and mechanisms
to hold states accountable.
The standards for human rights build upon
the critical foundation of the Nuremberg and Tokyo tribunals,
which established a new category of international crimes that
no longer permitted nation-states--or their officials-to turn
a blind eye to genocide, crimes against humanity, war crimes and
aggression. Since World War II the developing system of international
justice has put in place a raft of international treaties, jurisprudence
and practice that require states to investigate and prosecute
those accused of the most heinous international crimes, or extradite
them to other countries where they will be prosecuted.
In the mid-1990s the United States led
the world in creating criminal tribunals for the former Federal
Republic of Yugoslavia and for Rwanda. In 1998-lust weeks before
Pinochet was arrested-129 governments signed off on the new International
Criminal Court (ICC), which is now operating in The Hague and
investigating atrocities in Uganda, the Democratic Republic of
Congo and Sudan. Around the same time, former President Slobodan
Milosevic of the Federal Republic of Yugoslavia became the first
serving head of state to be indicted by an international tribunal,
soon followed by Liberia's president Charles Taylor.
By any account these are important developments,
yet they are not without their difficulties. Watching the criminal
trial of Milosevic in The Hague, any observer is bound to ask
whether it is appropriate to provide an international stage for
those accused of the most serious crimes. Milosevic has been adept
at stringing out costly proceedings, now into their fourth year
without an end in sight, and using them to provide succor to his
supporters back home. There is a distinct possibility that he
may be acquitted of some of the more serious charges.
National proceedings may not be any more
effective, due to domestic political considerations. I follow
Saddam Hussein in the dock of a Baghdad court and notice that
he has not been charged for some of the most serious of his alleged
crimes, including the conduct of an illegal war against Iran.
His limited access to his own lawyers is widely perceived to fall
short of the minimum standards of international law on the rights
of the defendants-a flaw that only serves to discredit the outcome.
Hussein's trial is at risk of becoming a costly shambles.
There is also the lingering concern 60
years after Nuremberg that the emerging system of international
criminal justice is lopsided in the sense that it has thus far
been applied in the cases of despots and torturers from smaller
and less powerful nations, while those who happen to come from
the larger and more powerful nations have been able to evade its
reach. The Yugoslavia Tribunal did not fully investigate allegations
that NATO violated international humanitarian law in the Kosovo
war or prosecute NATO forces for attacking civilian targets, such
as the television station in Belgrade. Countries whose national
courts investigate alleged international crimes by U.S. officials
find themselves subject to overwhelming political pressures, as
Belgium recently discovered when U.S. Secretary of Defense Donald
Rumsfeld reportedly threatened that the country would lose its
status as host of NATO if it did not change its universal jurisdiction
Yet it is surely right that the rules
should be applied equally to all. Since World War II the system
of international criminal justice has become a significant tool
to prevent conflict and promote peace and justice. That developing
system envisages a primary role for national courts, with international
tribunals stepping in where domestic justice fails. Notwithstanding
the difficulties outlined, great progress has been made. Criminal
courts now play a crucially important role in the delivery of
a more just global order. The challenge is not whether courts
should have a role, but rather how improvements can he made. There
can be no question of turning back the clock.
Indeed, the Pinochet case has shown that
the possibility of criminal sanctions is not an idle one. The
principles of international law that removed General Pinochet's
claim to immunity could also be summoned against the highest office
holders in the United States for allowing the practice of torture
and renditions in the "war on terror," after they have
left office and as they travel around the world, as well as their
lawyers and advisers. In 1947 a U.S. military tribunal in Germany
in the case of Josef Altstotter convicted a group of lawyers for
complicity in international crimes for their role in enacting
and enforcing Nazi laws and decrees that permitted crimes against
humanity. They were charged with participating in a governmentally
organized system of cruelty, not with murder or the abuse of a
particular person. As the tribunal put it: "The dagger of
the assassin was concealed beneath the robe of the jurist."
For those associated with the implementation of policies on detention
and interrogation-in the United States and among its allies-the
cases from Nuremberg to Baghdad via London should serve as a salutary
reminder of the potential consequences of violating international
laws. These laws apply to all. No amount of willful misreading
or legalistic acrobatics can serve as a defense or justification
to former Presidents Milosevic or Hussein, or to anyone else.
More on Philippe Sands' Lawless World:
America and the Making and Breaking of Global Rules at: http://us.penguin-group.com