Leave Your Hat On? Head Of State Immunity and Pinochet (original) (raw)
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Pinochet's fallout: jurisdiction and immunity for criminal violations of international law
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This article prolvides a general overview, and analysis qf the litigation surrounding Generul Aiigusto Piriochet 's detention in London in 1998 and the subsequent attempts to extradite hiin to Spain ,for trial on charges relating to humuti rights abuses committed during the period of his militaty dictatorship in Chile between 1973 and 1990. The cotnplicuted sequence of events, from proceedings in the Spunish courts (which started in 1996) up to Piiiochet's release from British custody on medical grounds in 2000, is examined und the potential consequences of the twso substantive House of Lords decisions are explored from a British-bused public international luwyer 's perspective. The focus of the arialvsis is not so much oti the detailed technicalities of personal immunity in English law: as on the broad concepts of State jurisdictiori over intertiationnl crimes and ininiuizityfor such crimes in intematiorial criminal law: notable aspects discussed include the fiiture of universal jurisdiction in custotnan international law and the position of that law in the UK's municipal courts.
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South African Journal on Human Rights, 2001
This article explores the usefulness of the Pinochet case (particularly the final judgment of the House of Lords) as precedent for domestic courts when they apply international criminal law. The first half of the article argues against the usefulness of the 'Pinochet precedent', identifying instances of inconsistent and sometimes incoherent reasoning in the Law Lords' treatment of international law. Close analysis of the final judgment demonstrates that the House of Lords ultimately jettisoned customary international law and fell back on UK domestic, statutory law to make its finding. The second half of the article explores the reasons behind the Law Lords' weak treatment of international law. This part of the article advances the theory that the orthodox construction of customary international law is necessarily indeterminate and explores the internal contradictions that follow when the voluntarist construction of international law is juxtaposed to the inherently nonconsensual body of criminal law. The article nonetheless argues that international law can and should be applied by domestic tribunals and suggests an approach that will facilitate a more rigorous application of international criminal law.
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In Jordan Referral re Al-Bashir, the appeals chamber of the International Criminal Court (ICC) had to decide (1) whether Jordan had an obligation to arrest and surrender the sitting head of state of Sudan to the ICC for crimes against his own people and (2) whether to refer the matter of Jordan’s alleged noncompliance to the United Nations Security Council (UNSC). The appeals chamber tackled both questions inappropriately. On the one hand, in view of the lack of guidance from the UNSC and the whole mess created during the “AlBashir saga,” the chamber should have found that Jordan justifiably failed to comply with the arrest warrant issued by the ICC. On the other hand, the ICC should have referred the whole matter to the UNSC. This Article addresses these issues while surveying the centuries’ long evolution of the law on the international criminal responsibility of heads of state. While relying on prevalentaccounts on International Criminal Law (ICL), the appeals chamber narrates a ...
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J 'Former Head of State-extradition-immunity' (1999) 58(3) Cambridge Lilw Journa/461; Bradley C The 'Pinochet method' and political accountability' (Autumn 1999) 3(1) Grmr Bag 5; White JG 'Nowhere to run, nowhere to hide: Augusto Pinochet, universal jurisdiction, the !CC and a wake-up call for former heads of state' (1999) 50(1) Case Wtstern RI.'St'r"W Lilw Review 127; Denza E 'Ex parte Pinochet: lacuna or leap?' (1999) 48(4) International and Compt~ratiut Lilw Quarterly 949; Barker C 'The future of former head of state immunity after Ex parte Pinochet' (1999) 48(4) International and Compt~rlltiue Lllw QUIIrterly 937; Piotrowicz R 'The governments, the lords, the ex-president and his victims: limitations to the immunity of former heads of state' (1999) 73(7) Austr11lilm Lllw Journal 482; Fox H The Pinochet case No 3' (1999) 48(3) lntrrnational11nd Compt~rat~ lllw QUIIrttrly 687; Bianchi A 'Immunity versus human rights: the Pinochet case' (1999) 10(2) Er~r-op<'tln Journal of lnttrnlltional Lilw 237; Fox H The first Pinochet case: immunity of a former head of state' (1999) 48(1) International and Compt~rlltiue lllw QUIIrterly 207.
Ending War Crimes, Chasing the War Criminals
This chapter looks at the character of Adolf Eichmann, the Nazi who ran the concentration camps. It is an intriguing story of his fleeing to Brazil at war's end, living incognito for many years and then being ousted by his son's half-Jewish girlfriend. He was kidnapped and spirited out of Argentina by Israeli agents, tried and executed. Chapter 2: Himmler was Hitler's deputy. This is the story of his boyhood, his growing up and his emergence in adulthood as a top Nazi who personally ordered the killing of millions of Jews. It asks the question how could a gentle and respectful boy and young man coming from a sober middle class, Catholic family, so change his personality in such a short time. Chapter 3: Modern day war crimes punishment began with the Nuremberg trials at the end of World War 2 when senior Nazis were put on trial. Today, after a long gestation period, there is now the International War Crimes Court where alleged war criminals can be tried and sentenced to imprisonment. Chapter 4: This chapter examines the role played by some of Africa's major war criminals and how they came to trial-latterly in the International Criminal Court (ICC). Chapter 5: The Western world has its alleged war criminals too. The chapter begins with Robert McNamara who was President Kennedy's secretary of defence and a key player in the war in Vietnam. Later in life he accused himself publicly of having committed war crimes. Then follows portraits of Henry Kissinger, George W. Bush and Tony Blair who many believe are war criminals that should be arrested and sent for trial. Chapter 6: Ariel Sharon was once Israel's most important general scourge of the Arab armies and, later, prime minister. He had no compunction about admitting the atrocities he had committed and defended himself vigorously. Chapter 7: Guatemala, said the secretary-general of Amnesty International, was a country with "no political prisoners only political killings". The author was the journalist responsible for proving that the president of Guatemala was personally directing the death squads which decimated many Indian villages and opposition figures. Over 30 years the author has continued to visit Guatemala and monitor the slow, incremental, improvement in human rights. It has often been one step forward and two steps back but now the courts appear to be taking a firm and courageous stand, convicting many war criminals including a former president.
J. Crim. L. & Criminology, 2000
I. INTRODUCTION "Play with murder enough and it gets you one of two ways. It makes you sick, or you get to like it." Dashiell Hammett, Red Harvest 102 (1929). A. GENERAL This article will analyze human rights law to see whether it plays any role in the protection of the individual in the face of international extradition or other international cooperation in criminal matters. I will consider two approaches to extradition and human rights that seem to be vying for position in the world arena and the tension between them. The first is to apply the traditional statist exemptions to extradition, which sometimes have enabled a few human rights protections. This ap-Christopher L Blakesley is the J.Y. Sanders Professor of Law at the Louisiana State University Law Center. The title of this article is in honor of G.BRiuEL GARcLA MARQUEZ, TmE AuruiMN OF THE PATRIACH (1976). Prof. Blakesley was formerly in the Office of the Legal Adviser in the U.S. Department of State and has published extensively in the international criminal law arena. A few sections of this article have been adapted, updated, and expanded from the author's report on the subject of the Pinochet extradition to the American Branch of the International Law Association. He would like to thank the L.S.U. Law Center for Summer research funding that helped in feeling good while writing this article and his research assistants: Dan Stigall and Elena Arcos for their valuable assistance.