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Foreign Policy
Spring 1999
The Long Arm of the Law
By: Anne-Marie Slaughter
International lawyers herald the Pinochet case as signaling the end of what one human rights legal expert calls “the age of impunity.” Former dictators everywhere may henceforth face the prospect of being held accountable for their crimes in office. Luxurious vacations on the Riviera paid for with stolen millions may give way to internal exile enforced by the world’s judges.
The Pinochet case is a historic step toward the realization of this vision. It bolsters three legal principles critical to establishing individual accountability under international law: the withdrawl of immunity for public acts in violation of international law; the exercise of universal jurisdiction by national courts to punish the most heinous crimes against international law; and the willingness of national courts to interpret and enforce international law as a living and changing part of domestic law.
On the immunity issue, a panel of five Law Lords, comprising Britain’s highest court, addressed whether Pinochet was immune from prosecution as a former head of state under the British State Immunity Act of 1978. Pinochet’s lawyers argued for absolute immunity for any acts committed while in office, a position, as they acknowledged in open court, that would have immunized Hitler himself. Three members of the panel could not go this far, holding instead that the British statute must be read to incorporate prevailing norms of international law. They in turn adopted a progressive view of contemporary international law, reading it to deny immunity for crimes such as torture, hostage taking, and genocide committed under the guise of state authority and through the exercise of state power.
The second principle is universal jurisdiction for universal crimes, a power that makes every national court a potential policeman for the global community. Spanish judge Baltasar Garzón launched the case against Pinochet based not on the murder of Spanish nationals but on the murder and torture of over 3,000 individuals of multiple nationalities, mostly Chilean. The nature and scope of these crimes make them of concern to the entire global community; their perpetrators occupy the position once held by pirates and slave traders.
Third, the Pinochet case marks the integration of domestic and international law. Both Spanish and British courts have been willing to interpret and apply international treaties and customary international law directly and as part of domestic law. Moreover, they have reached independent conclusions as to what international law requires, taking testimony from nongovernmental organizations and international legal experts.
The importance of these three principles should not be diminished. They underpin the sea change in twentieth-century international law: the determination to hold states accountable for the treatment of their own citizens and the recognition that it is individuals who operate the massive and impersonal machinery of state power.
Alongside this substantive evolution, however, has been a procedural revolution—far less remarked yet no less important. The Pinochet case marks a fundamental shift in the balance of power between politicians and the judiciary. In recent years, Spain, France, and Italy have all experienced a “revolution of the judges,” the assertion of domestic judicial power against the executive branch of government after decades of relative quiescence. This revolution began with domestic corruption trials but continues with increased willingness to apply European and international law in the face of executive resistance. Nor is this phenomenon limited to Europe. The past decade has seen the emergence of global judicial networks.
National judges recognize their differences and their necessary loyalty to national legal systems but increasingly read and cite one another’s opinions and bolster one another in the assertion of judicial independence. National judges have been responsible for bringing Pinochet to account, undeterred by political pressure. As they begin to enforce international law, often through the lens of domestic law, they will produce new Pinochet cases. These cases will not be easy to prosecute. As in the existing case, painstaking work will be required to compile a record, convince a national prosecutor to take the case, and jump through the multiple hurdles necessary to persuade the legal and political authorities of a third country to deny immunity and extradite the defendant. Politics may continue to control outcomes; even in Britain, Home Secretary Jack Straw retains final authority over whether Pinochet will be extradited. But the legacy of the Pinochet case is that the law will ultimately be heard.
Anne-Marie Slaughter is J. Sinclair Armstrong professor of International, Foreign, and Comparative Law at Harvard Law School.