1. All states are equal, formally equal. This is the basis for the very concept of "international community" that the Americans, British and, in general, first world countries are so fond of using in the UN, NATO and other forums.
2. In my opinion, what has happened in Pinochet's case clearly violates this principle. How? Well, for perhaps the first time in recorded history a country (Britain) has unilaterally claimed and exercised a right of jurisdiction over political events taking place in another (Chile). If we use a bit of simplification (going into the technical details would take us dozens if not hundreds of pages) we would say that, basically, the pretext for this British attitude has been the alleged principle of international law according to which every country has the right to prosecute and eventually condemn authors or suspected authors of human rights violations that defy certain universal principles and standards, consecrated in a number of conventions, treaties, etc. about such matters.
3. This sounds all very nice, but it hides the obvious fact that Britain dared invoke such unilateral competence only because she is a much stronger power than Chile. She has to fear no substantial retaliation from Chile, and that is the main reason why she could decide to arrest a former head of state of that country. She would never have acted in such a manner if the politician in question came from a stronger power - say, China.
Come to this point, I can imagine an immediate objection: "these are only suppositions! How can you be sure about British motives in this matter?"
4. OK. Let us then analyse what would be implied by the above-mentioned universal application of the principle of accountability of politicians for human rights violations. It would mean that ANY country could act in a manner similar to the arrest of Pinochet by the British. So, a citizen x residing in country A would be entitled to sue a leader (or former leader) y of country B for crimes committed against human rights. Country A would have legitimacy to arrest and prosecute such leader whenever he or she enters its' territory.
5. In such a system, the above mentioned citizen x, if he is diligent enough, won't be satisfied with going to the courts of a single country; he will be creative and sue in 50 or 60 countries. Multiply citizen x by a factor of thousands (a conservative estimate, because there are millions of people who have suffered violation of their rights at the hands of states one time or another) and leader y by a factor of hundreds (potential candidates would include most if not all leaders of member states of the UN, and there should be no reason for westerners to be a priori excluded) and you will quickly conclude that such a system of prosecution would create havoc in the system of international relations as we presently know it. There is simply no way it could possibly work.
6. It could work, though, if ONLY the more powerful states were allowed, at their whim, to prosecute selected violators of human rights - those who come from weak countries and whose prosecution does not threaten the interests of the powerful states. Such a system would obviously consecrate inequality between states. This is what has happened, so far, in Pinochet's case.
7. I think that system would be the height of immorality, because to accept the PRINCIPLE of inequality between states implies not only a racist approach to world politics (1) - it would also increase the already enormous amount of power that the strongest states already enjoy (2). Since I reject (1) and (2) it follows that I also condemn Pinochet's arrest and trial by Britain (or Spain). In my view, Pinochet can only be tried in Chile, not in another country.
8. Of course, some theorists of human rights would still insist that from a "theoretical" point of view, all countries can judge any person who has committed a crime duly proscribed by international law (genocide, international terrorism).
The question, however, is not the "theoretical point of view", it is what happens in practice, considering the realities of power in international relations. In the real world, weak countries (representing a majority in the international community) will never be allowed to judge leaders or ex-leaders of great powers for political acts of a criminal nature. Do we imagine Sudan prosecuting Clinton for his attack on a pharmaceutical site? Or Iraq prosecuting William Cohen for the bombing of Basra? Of course not. We'll have instead Spain or Britain trying Pinochet and the US arresting Noriega - only, this time, with the support of (their interpretation of) international law.
1. We should also stress that not even people who represent their nations (political rulers, diplomats) can escape the precedent opened by Pinochet. The Americans, already, hadn't let legal niceties prevent them from kidnapping and trying Noriega. And the British have now repeatedly stated that the "immunity" of heads of state does not apply in the case of "genocidal" acts (what qualifies as "genocidal" is to be defined by the authorities of countries such as Britain and the US, of course. So when Pinochet kills thousands, that's genocide; when the Americans kill millions of peasants in Indochina, that's simply a regrettable by-product of the noble task of promoting freedom and western values abroad).
2. It seems as if the West, in its' unstoppable rush to control and dominate everything, is prepared to throw out the window centuries - milennia, really - of tradition concerning the immunity of envoys, diplomats, etc. This is very dangerous stuff; and it's a direct consequence of the amazing arrogance of our leaders. Since they know they are the masters of the planet (for perhaps the first time in history we have an alliance of states - NATO, to be precise- that has attained total, unchallengeable hegemony in world affairs) they don't want to feel tied by any instrument (diplomatic immunity, in this case) that may limit their power. Simply frightening!
1. Let us now move to analyse another argument of those who support Pinochet's arrest: that, while it is true that political realities prevent countries to apply international law equally and universally (that's why, for example, former Chinese leaders will probably never be prosecuted), that should not be a reason to criticize countries when they accept to apply international law. defenders of this thesis make a parallel with the implementation of internal laws in Europe and the U.S. As we all know, judges who are about to sentence defendants who have violated a certain law are often confronted with the following reasoning: "Sir, you condemn me, because my neighbour too has violated the law and and he hasn't been prosecuted for that".In that case, of course, the judge would answer: You can't take the others'fault as an alibi to your own behaviour". ERGO - so the argument goes - when Mr Pinochet says "the Chinese also commit crimes and you don't judge them" that's no valid foundation for him to avoid the necessary judging of his own acts.
2. I have been - from the very beginning of this case - aware of this line of reasoning being used to legitimate Pinochet's arrest by Britain, and frankly I don't find it very convincing. For the examples we're being told about concern the failings inherent in any system of law. Of course, there will always be crimes that are not punished because the perpretator escapes justice for one reason or another. Perhaps the police didn't find out who the murderer is; perhaps the traffic offender managed to bribe a corrupt police officer, etc. Such imperfections are inherent to any human creation, and of course the fact that not all offenders are punished cannot serve as an alibi for real offenders who happen to be caught - as they should.
3. The problems raised by the arrest of Pinochet are of a very different nature. What is at stake is this: should we consider a progress for the cause of justice the introduction in international law of a double standard, according to which strong states may judge (ex) leaders of weak states for crimes against human rights - but not vice versa? This has got nothing to do with the examples we saw in the preceding paragraph, for no one is suggesting that there is a double standard in the internal justice system of western states. What we have in those systems are simply human imperfections, in the sense that the tendency is to apply the law to everybody equally, though some transgressors inevitably end up escaping from the law enforcement net. But - this is the key observation here - there is no class of citizens that by reason of their enhanced power status can be considered above the law. Not so in the international order post-Pinochet, where a class of people - the leaders and ex-leaders of the west - will be for all practical purposes above prosecution for violation of the rights of third world peoples and nations (see, for instance, the recent appeal by "Human Rights Watch" to the American authorities, urging their support for Pinochet's extradition with the argument that US leaders have nothing to fear from such precedent, for they will never be prosecuted for violations human rights).
4. We may best illustrate our case concerning Pinochet with an example. Imagine a segregated, apartheid-like society composed of two races, whites and blacks. Whites are the master race - they control all levers of power, the armed forces, police, law-enforcement system, etc. Formally, however, laws apply equally to everybody, white or black. There are, naturally, injunctions against murder, robbery, etc. But since whites are really in charge this is what happens: blacks are tried and condemned for their crimes, either against whites or intra-racial; whites are never prosecuted for crimes against blacks, because the police and courts - themselves white-controlled - never investigate such crimes.
5. Now you can imagine a white person trying to convince skeptical blacks of the fairness of this system. He would say to them: "I know you get angry whenever a black person is condemned for a crime, while whites get away with impunity if they murder blacks. But you see, you are really wrong, because the fact that the justice system has to take into account power realities and can't punish whites does not mean that justice isn't served when blacks are punished for their crimes. You should not disapprove of (white) judges that condemn black people, for they are merely applying justice as best they can. Accept this system and be assured that one day - perhaps in one thousand years - laws shall also apply to whites as they are now being applied to you".
6. Substitute westerners for "whites" and third world for "blacks" and you obtain a description of international law in the aftermath of Pinochet's arrest. It is in fact an illegitimate system based on double standards, designed to serve the powerful. As such, it will always be unacceptable to the underdog nations and peoples (meaning, the majority) of our planet.
There is a latin principle in Law : "Non bis in idem" You can't be judged twice, or have two sentences for the same crime. In Pinochet's case, this principle seems about to be violated. Let us suppose he is finally extradited to Spain and lives to be 100 years old. He will be judged in Madrid for crimes committed against a number of citizens. He gets 20 years. But then there are the pending prosecutions in Switzerland based on different complaints by another group of citizens. He is sent for trial to Geneva. Then come the accusations by still another group in France. Then, etc. etc. The legal questions raised by the Pinochet affair seem to be new and still unchartered territory, apparently not yet covered by the "non bis idem" principle.
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