Pinochet and the Uncertain Globalization of Criminal Law

Article excerpt

I. INTRODUCTION

No case study reveals the growth in importance of international criminal law more dramatically than the prosecutions centered on the crimes of the Chilean dictatorship led by Auguste Pinochet Ugarte.1 Numerous books address the history and political implications of the Chilean government during the 1970s and 1980s,2 and various articles address the legal significance of the efforts to bring Pinochet and others to justice.3 Many legal analyses focus on the extradition case brought by Spain in the United Kingdom and suggest that it represents a new and welcome paradigm in international criminal law-universal jurisdiction to bring state criminals to justice. One such analysis is The Pinochet Effect, by Hastings College of Law Professor Naomi Roht-Arriaza.4 This book traces the Spanish cases against Pinochet and others for crimes in Chile and Argentina to draw several conclusions about changes in international and transnational law that may result in greater protection of human rights.

The celebrations of greater international accountability are variations on a theme recently enunciated by Thomas L. Friedman in The World Is Flat: A Brief History of the Twenty-First Century? Friedman focuses on economic changes brought about by technological development, primarily in information technology. Now that communications around the world are instantaneous and inexpensive and transportation of goods and people is nearly as fast, even small businesses in remote areas can participate in international markets. The result is that the field of competition is close to level-the "flat world" of the title-and therefore success requires meeting international standards.

The criminal law and human rights worlds are also flattening. Various developments over the past fifty years, including the Nuremberg prosecutions, the creation of the United Nations, the development of activist private human rights organizations, the use of special international criminal tribunals for former Yugoslavia and Rwanda, and the recent creation of the International Criminal Court (ICC) all constitute forms of globalization. Crimes with some individual or collective international impact are no longer subject only to the jurisdiction of the nation in which they took place; nations and high-ranking officials may be prosecuted for international crimes and victims may seek redress in courts of other nations.

Professor Roht-Arriaza and other commentators rightly praise such developments. Their focus on the Pinochet case, however, leads to an unduly optimistic outlook-a good example of seeing a nearly dry glass as close to full. Celebrating the Spanish and British proceedings against Pinochet as representing a victory of international criminal law6 overlooks their ultimate failure. In any just world, Pinochet would have been subject to criminal prosecution in Chile many years ago, and if only a small portion of the allegations of his knowing involvement in murder, torture, and disappearances are true, he should have faced the harshest punishments allowed by law. The fact that he had lived out his life in comfort reveals that there is a long way to go in bringing international criminal law to maturity. The attempts to prosecute Pinochet in Spain led Chile to reopen investigations of the crimes committed by the Pinochet government, yet almost all state criminals of the period remain free. The minor successes of Chilean national criminal justice should not be allowed to obscure the fact that the international law aspects of the case failed.7

This Article examines how the efforts to bring Pinochet to justice have affected international criminal law. Many things have changed in the six years since the international prosecution failed, not the least of which is a growing reluctance to trust the criminal justice systems of other nations. This Article revisits the human rights violations of both Chile and Argentina, for the military dictatorships of both nations worked together and were subjects of the Spanish criminal investigations. …