Pinochet's fallout: jurisdiction and immunity for criminal violations of international law (original) (raw)
Related papers
Revisiting Pinochet: The Development of Customary International Criminal Law
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.
Journal of Latin American Studies, 2004
This article assesses the impact, if any, of Spanish and British Court rulings on the Pinochet case on human rights progress in Chilean courts. Chilean judges chafe at the notion that foreign courts exerted any influence on them, arguing that, based solely on Chilean law and the evidence already before them, they were empowered to strip Pinochet of his immunity, and proceeded to do so. Human rights critics allege that the courts had been thoroughly immobilised by the authoritarian legacy to which they were enjoined. No progress at all would have occurred were it not for the dramatic verdicts handed down in British courts. The author contends that change was underfoot in Chile prior to Pinochet’s arrest in London, but that Europe set Chile on a faster and steeper trajectory toward justice than would have been possible otherwise. It did so by shaming the Chilean Government into pressuring its own high courts to deliver a modicum of justice to the victims of Pinochet.
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.
Human Rights Trials in Chile during and after the 'Pinochet Years
International Journal of Transitional Justice, 2009
This article reflects on the recent Chilean experience of accountability actions, particularly the attempted prosecution of perpetrators of past human rights violations. While acknowledging the undoubtedly substantial impulse provided by the dramatic October 1998 UK arrest of former dictator Augusto Pinochet, it focuses on domestic actors and drivers in a post-1998 revival of such attempts. The article examines the extent and limitations of recent change in the area of prosecutions in Chile, noting that these have been undertaken at the insistence of private actors rather than the state. It also notes that the self-amnesty law of 1978 is still textually intact despite advances in restricting its application with regards to certain categories of internationally proscribed crimes. Finally, the article examines some explanatory factors for both recent advances and remaining blockages in the Chilean human rights accountability scenario.
Leave Your Hat On? Head Of State Immunity and Pinochet
Pinochet represents a victory for international human rights law. Faced with the traditional doctrine of head of state immunity, jus cogens crimes have triumphed. The House of Lords has recognised that certain crimes cannot be excused, and thus marked the beginning of the end of the age of impunity. The implications of the decision extend far beyond Pinochet's trial. They include the possibility of other perpetrators of serious international crimes being brought to justice. However, the decision also heralds a new uncertainty. A broad head of state immunity has been replaced with the potential for a somewhat indeterminate and uncodifed set of jus cogens crimes being applied selectively and interpreted differently by the national courts of powerful countries. While it is easy to overstate the potential disruptive effect the decision could have on international relations, it is certainly true that it underscores the need for the new ICC, with its defined crimes, independence and jurisdiction based on the consent of states. While states may have originally viewed the ICC as an unwelcome intrusion into state sovereignty, the Pinochet decision could well change that view. States may consider it better to concede some sovereignty to the ICC than to lose even more through the enforcement of international human rights by the national courts of other states. Governments have repeatedly said that crimes such as hostage taking and torture are unacceptable and that those responsible should be called to justice. The House of Lords has given substance to that rhetoric, but national courts are a poor second choice in the prosecution of international crimes. Now it is up to governments to support the ICC and move these matters to a truly international forum.