The Pinochet Problem

By Bruce W. Nelan

It's almost midnight, and George Bush is asleep in his Moscow hotel suite when plainclothes police bang on the door. Through an interpreter from the Russian Foreign Ministry, they announce that they are placing the visiting former U.S. President under arrest on an extradition request from Iraq. He is charged with war crimes, including an air attack during the Gulf War that targeted an underground bomb shelter and killed hundreds of civilians.

That imaginary scene does seem farfetched, but it is the kind of thing officials in Washington and other capitals are starting to take seriously. It is very close to what happened to another ex-President, Chile's General Augusto Pinochet Ugarte, in a London hospital in October. Pinochet may end up being shipped off to Spain to stand trial on charges of torture and mass murder. The families of his thousands of victims are rightly cheering, and human-rights activists are delighted that the world may no longer be safe for retired tyrants. But officials in perfectly upstanding governments note that nowhere in the rules now coming into play is it written that they can be applied only to dictators. Henry Kissinger has enemies out there, and so does Margaret Thatcher.

It took a ruling in Britain's highest court that Pinochet was not covered by official immunity to highlight a dramatic but almost unnoticed evolution under way in international law. The premise that national leaders cannot get away with mass murder and torture has been on the books since the Nuremberg and Tokyo war-crimes trials and is reinforced by resolutions at the U.N. It's also backed by international treaties banning genocide, torture and terrorism.

What was lacking for so long was enforcement, but the international community has been building a set of rules and procedures that are proving surprisingly effective. The impetus for recent reforms is the awful carnage committed in Rwanda and Bosnia. The U.N. Security Council responded by setting up special-purpose war-crimes tribunals in the Hague and Arusha, Tanzania. Last July, 160 countries sent delegates to Rome to prepare a statute for a permanent international criminal court, and 120 voted for it. The U.S. refused to go along, but nonetheless the new tribunal will come into existence when 60 countries ratify the statute.

The man atop the human-rights wave right now is Baltazar Garzon, 43, a hard-charging investigative judge of Spain's National Court. Two years ago, he began looking into human-rights abuses against Spanish citizens in Argentina, which were linked to Chile by a scheme called Operation Condor. With this plan, Pinochet and other South American junta leaders pooled their deadliest secret-police units to crush resistance to their rule. Garzon concluded that Pinochet is not covered by the traditional legal tenet, called sovereign immunity, one aspect of which protects national leaders from prosecution. Garzon argues that it does not apply because murder and torture are not legitimate parts of a head of government's job. Britain's Law Lords agreed, and Home Secretary Jack Straw has until Dec. 11 to decide whether he must let the extradition proceed or send the 83-year-old Pinochet home on humanitarian grounds.

Straw's decision is billed as judicial rather than political, but the strong human-rights orientation of Tony Blair's Labour government is surely pressing him toward extradition. And if Straw is tempted to let the old dictator go, he faces another roadblock: the once arcane principle of universal jurisdiction. This dates to the heyday of piracy, when any nation could deal with the brigands of the high seas. These days there is considerable agreement that systematic torture and genocide are such heinous crimes that any country should be free to try those who are accused of them. "Some crimes go beyond boundaries," says Robert Pastor, a member of Carter's National Security Council, "and we ought to pursue them that way." So rather than extradite Pinochet, Britain could try him in an English court.

The Clinton Administration is trying both to keep its distance from the case and to work out a clear policy on it. It would be logical for the U.S., going all out against terrorism, to favor a trial for Pinochet. He almost certainly gave the order that sent assassins to blow up a car on Washington's Embassy Row in 1976, killing two people.

Instead Washington is straddling two positions. It says gross violators of human rights should be punished, but at the same time the views of the democratic government of Chile should be respected. And Chile insists that Pinochet should be sent home. Beyond that, says State Department spokesman James Rubin, "we have no view as to the merits of the case."

U.S. officials swear they no longer fear exposing any lingering secrets about CIA support for Pinochet or for his 1973 coup against Chile's socialist President Salvador Allende. What does concern them, they say, is the prospect of a dangerous new right-left polarization in Chile if Pinochet were tried abroad. But having said that, the officials claim they are trying to signal to the Chilean government that it must "make the tough decisions it needs to" and pledge to try Pinochet itself. Of course, Pinochet has immunity at home, and no one thinks he would be put on trial there even if he lacked such immunity.

The U.S., however, has a strange record in this area. In December 1989 Bush sent troops to Panama, grabbed General Manuel Noriega and hauled him to Florida for trial to face charges of narcotics trafficking. The indictment of Noriega was unprecedented because he was a sitting foreign leader, but prosecutors said they couldn't ignore his flagrant crimes. Noriega protested that the U.S. had no jurisdiction over him since his "arrest"--the Panama invasion--violated international law. But U.S. courts said the method of his arrest was irrelevant. Noriega was convicted and sentenced to 40 years in jail.

The Pinochet mess may prompt the Clinton Administration to take another look at the soon-to-be-born international criminal court. Washington refused to sign on last summer out of fears that overzealous prosecutors might launch frivolous or malicious war-crimes cases against American troops abroad, or even decision makers at home. Now, if courts around the world begin to step in as Garzon has done, the U.S. could decide that a well-designed tribunal with established procedures would be better than worrying about that midnight knock on the door.

--Reported by Barry Hillenbrand/London and J.F.O. McAllister and Adam Zagorin/Washington

With reporting by Barry Hillenbrand/London and J.F.O. McAllister and Adam Zagorin/Washington