The Pinochet Case: Introductory Remarks
Welcome to the Federalist Society's panel on the Pinochet case.
The Lawyers Division of the Society has assembled a learned panel
of experts to address the recent affair involving the former Chilean
head of state. I'll take a moment for a bit of orientation.
In 1970 Salvador Allende was elected the President of Chile. He
was elected with a plurality vote of forty-three percent in a field
of candidates. He was installed as head of state. After a time of
economic chaos and 150 percent annual inflation, he was overthrown
in a military coup that was led by Augusto Pinochet. The coup was
probably backed by the CIA and President Nixon. The presidential
palace was bombed. Supporters of Allende were rounded up. President
Allende was found dead in a burnedout house.
After a time, Pinochet became President and, essentially, served
as a dictator for seventeen years. During that time he effected
economic reformwhich I suppose means that he recruited economists
from the University of Chicagoand at the same time his regime
brutally restricted individual and institutional dissent. While
state industries were privatized, secret police engaged in torture
and murder, resulting in the deaths of 3,200 people, according to
a recentlyreleased official Chilean report.
Chile along with several other countries such as Argentina, Paraguay,
Uruguay, Brazil, and Bolivia also conducted a systematic attempt
to track down and kill suspected Communists and Leftists. At least
two of the 3,200 deaths occurred when a car bomb exploded in Washington,
D.C., assassinating a chilean leftist.
Pinochet remained in power until his defeat in the 1990 election.
As part of the deal that was struck with Pinochet to submit to the
election, he was permitted to remain as CommanderinChief of the
Army for a time now expired. He was granted general immunity and
he was appointed Senator for life, which I assume conferred certain
other immunities in itself. As Chile has pointed out, this deal
was integral to national reconciliation.
One Chilean politician said recently: "In Chile we have managed
to consolidate a transition, a democratic conciliation that has
been exemplary and has cost us a great deal through a mechanism
that has functioned adequately."
In October of last year, a chain of events was set in motion. Pinochet
was in London by invitation of the British government to undergo
medical treatment, and (it appears) to shop for ostentatious clothing.
Through a Spanish Magistrate, Judge Garzonwho was in Britain
seeking Pinochet's extradition to Spain to stand trial for the murder
and torture of up to 4,000 people, most of whom had been Chileans
living in ChileBritain arrested Pinochet. He now remains in
a luxurious kind of house arrest in the English countryside.
As a footnote, it should be noted that at the moment that Pinochet
was arrested in London, Fidel Castro was on an official visit to
Spain. Castro apparently eluded the net of Judge Garzon, who is
The arrest ignited violent protests in Chile and a lot of international
protest. It's all been in the newspapers. British Home Secretary
Straw authorized Pinochet's extradition to Spain, and Pinochet,
then convalescing from orthopedic surgery, appealed the extradition
order, where he prevailed initially in the lower court (which is
called, unaccountably, the British High Court). On appeal a fivemember
panel of the House of Lords voted to reverse, 32, and permit the
extradition. Pinochet protested the ruling on the ground that panel
member Lord Hoffman, who voted to reverse, was riddled with conflicts.
He noted that, among other things, Lord Hoffman's wife is a mover
in Amnesty International.
The Lords agreed to rehear the case with an unconflicted panel,
a procedure virtually unprecedented in British law. The Chilean
government, the Pope, the United States Secretary of State were
all allegedly working behind the scenes to get the United Kingdom
or Spain to back off and drop the matter.
A month ago, a sevenjudge panel of the House of Lords by a vote
of 61 held that Pinochet was not protected by sovereign immunity
for any acts committed after 1988, which is the date that the United
Kingdom signed the international convention against torture. That
left only three of the 32 claims. Judge Garzon then promptly amended
his indictment with nearly 50 additional alleged post1988 violations.
Two weeks ago Home Secretary Straw decided that Spain can continue
Pinochet's extradition and additional proceedings are anticipated.
In Defense of Head of State Immunity
A century ago, Otto von Bismarck was considered the most hard-headed
statesman in Europe, the master of realpolitik in an age of power
politics. When he convened the Congress of Berlin in 1878, he acted
as host to the leading statesmen of Europe princes and prime
ministers from a dozen countries. And not a single one of them was
concerned that he wouldn't be able to return to his home country
after the conference. [Laughter.]
Of course, no one thought this worthy of comment at the time. But
four hundred years before, Cesare Borgia had organized a conference
of his rivals from other Italian city-states and once he
had them all in one room, he had them killed on the spot. That was
"realism" in another age.
After all, it was not a small achievement that the world had reached
a level of civilization by the 19th century, when even a "realist,"
even a tough guy like Bismarck, was understood to have some limits.
And one of them was this: that he wouldn't think of trying to arrest
a visiting head of state, even from a rival state or a state with
which Germany had previously been at war.
When British authorities arrested Pinochet in September of 1998,
Tony Blair's Labour government fell below a standard that even Bismarck,
the "Iron Chancellor," thought he had to observe in international
dealings. That is really the gist of this case.
This kind of thing has not happened before in the 20th century.
It did not happen in the 19th century. I don't believe it even happened
in the 18th century. You have to go back a very long way to find
another example of such a practice, where a visiting head of state
(or even a former head of state) was arrested by a third country,
not even for things which he did to that country but for things
which he did in his own country when he was Head of State.
Why has this never happened before in modern times? Certainly not
by chance, certainly not because Heads of State have always been
nice guys and good fellows and there was no reason for anyone to
think of punishing them. It has never happened because we have had
a rule of customary international law that says one country cannot
do that to another.
The only exceptions are cases where the home state of the defendant
did not object as when the U.S. apprehended Manuel Norriega,
the former dictator of Panama in circumstances where the new government
was quite eager to get Norriega out of the country. And even then,
Norriega was tried in Miami for violating American drug laws, not
for abuses he may have committed against Panamanians.
Nor were the Nuremberg trials any real precedent. Certainly, the
Allied powers did not put the top Nazi leaders on trial over the
objections of the German government. By the time of the trials,
the Allied Powers were the government of Germany and they claimed
the right to exercise judicial as well as legislative and executive
powers in Germany.
The Pinochet case, then, is quite a novelty. Yet it will be hard
to dismiss as a mere aberration. The seizure of Pinochet is particularly
disturbing because it was not a covert operation that could be denied
or disowned by the British government. On the contrary, it was formally
endorsed by Britain's highest court as a proper application of international
law. And Britain counts for a lot in international law. Anybody
who has ever studied international law will recall that a very large
portion of the cases in the casebooks are from British courts. The
United Kingdom isif I can put it this wayone of the
leading powers in international law. If British courts say that
a practice is consistent with international law, then it is hard
to say otherwise. So the implications of this case are very serious.
It is worthwhile, then, to look at the actual circumstances that
provoked British courts to take this stand. Pinochet came to power
in a military coup in 1973 and his government proceeded to suppress
opposition quite ruthlessly. Opponents were executed without trial.
Some were tortured. Much that was done was deplorable. No one disputes
On the other hand, Pinochet's coup must be viewed in proper context.
The coup was directed against Socialist President Salvador Allende,
who was elected with a minority of the vote and seemed determined
to put himself beyond any second test at the ballot box. Allende
was a great friend of Fidel Castro or at least, Castro was
eager to be his friend. Castro made a state visit to Chile in 1971
that lasted for several weeks and he continued to supply arms to
leftist militants in Chile. By 1973, armed leftist gangs were taking
over lands and factories and trying to organize a social revolution.
The economy was in collapse, the country descending into chaos and
a communist dictatorship seemed a very real possibility. The coup
put an end to all this and was, for this reason, welcomed by a large
portion of the country.
In any case, the repression that followed the coup was not unrestrained.
In 1990, Chile's new democratic government organized a truth commission
to document the abuses of Pinochet's rule. After an exhaustive study,
that commission concluded that there were 2,115 people killed by
Pinochet's government in a period of 17 years. The vast majority
of those killings took place in the first few months after the coup.
Two-thirds took place within the first three years of the military
This is a disturbing record. But, it is certainly not "genocide"though
that is the precise charge leveled by Judge Garzon, the Spanish
magistrate who sought Pinochet's extradition from Britain. Let me
just give you a few statistics quickly from the Truth Commission.
Of the victims, these 2,100 victims, 95 percent of them were men;
85 percent of them were of military age-that is 16 to 45. If you
think 45 is too old to qualify for military action, it is still
true that 72 percent of the victims were between 16 and 35 years
of age. The military government went after people who they thought
were armed and dangerous, capable of terrorist resistance to the
government. The killing was not indiscriminate. It was very discriminate.
The army went after people of the Left. Overwhelmingly, according
to the truth commission, the victims belonged to parties of the
Now, as I have mentioned, this truth commission was set up after
Pinochet left power. And he left power voluntarily. Why did he do
that? Because he lost a referendum. The question was put to the
country, "Yes or no, would you like Pinochet to continue for
another term of six or eight years?" It was put to the country
in a free and fair ballot. The opposition was allowed to mobilize
and campaign, quite openly, for a "no" vote. Pinochet
arranged this contest because he expected to win. He was, by all
accounts, actually surprised that he lost. This was in 1988. He
didn't lose overwhelmingly, by the way. He got forty-four percent
of the vote, which is about what Bill Clinton got. [Laughter.]
But having lost the referendum, Pinochet made arrangements for
a peaceful transition. There were free elections and the candidate
backed by a coalition of Socialists and Christian Democrats was
elected as the new president and duly succeeded Pinochet in the
highest office. The transition to full democracy proved remarkably
But perhaps I should not say "remarkably." After the
initial period of repression, Pinochet did not rule like Fidel Castro
or the communist bosses of Eastern Europe. Opposition parties, opposition
publications, the Catholic Churchall operated more or less
freely throughout the 1980s. That is why Pinochet's opponents were
able to gain a majority for change in the referendum on whether
Pinochet should stay in power. I spent a sabbatical term in Chile
during the first part of 1991. I talked to many people who had been
part of the opposition to the military government. For nearly a
decade before that, they had been operating think tanks which were
funded by the Ford Foundation and other western philanthropies.
How many people in Cuba do you think, even now, are operating think
tanks funded by Ford Foundation, publishing magazines, and openly
criticizing the Government?
It is true that Pinochet found it easier to step down because he
had already established an amnesty, forestalling subsequent prosecutions
for human rights abuses committed by his government. But in almost
a decade since the transition to democracy, there has been no serious
effort to challenge this amnesty within Chile.
I will add one other fact that is important. In the mid-1980s,
even before the referendum on his continuation in power, Pinochet
had a new constitution drawn up for Chile. It was submitted to popular
referendum and was approved by a sizable majority. Now, nearly a
decade after Pinochet left power, Chile is still operating under
that same constitution. And the successor governments have made
no serious effort to change that constitution, even though these
have been center-left coalitions. So Pinochet was a dictator who
left a democratic legacy.
Nonetheless, Pinochet has become the first former head of state
to be charged and held by a third country, over the objections of
his own government. Why is that? I think the simple and sufficient
answer is that the Left in Europe hates him. Why does the Left in
Europe hate him? Because he stopped a left-wing revolution. Pinochet
dismantled state controls and established a free market system that
became a model for the world. It worked. According to all the received
notions of the Left, it should not have worked. But it did. Not
only the rich prospered, but in time also the poor. All classes
in Chile had experienced dramatic improvements their standard of
living by the time Pinochet left power. Nobody seriously disputes
this. Poor people are far better off in Chile than they were in
the 1970s. You cannot say the same thing for poor people in Cuba.
Poor people now live better in Chile than in Cuba.
And perhaps the most telling proof of this is that Pinochet's free
market policies have been continued by the democratic governments
of the past decade. The Socialists do not now demand new policiesand
they are part of the government. That was Pinochet's ultimate achievement.
He not only left behind a thriving economy but a stable democracy,
where even the Chilean left no longer seeks to play demagogic class
politics. This is a great achievement and I believe the European
left still cannot forgive him for it. Chile was supposed to be the
next Cuba. How dare Pinochet interfereand so successfully!
At all events, Pinochet is now being held in London, awaiting trial
in Spain. But Castro is received with full honors by the same Spanish
government that wants to prosecute Pinochet. Not a single one of
the tyrants from any of the formerly communist countries has been
seized or tried by a third country. None of the bloody dictators
of any Latin American or African regime are threatened. Only Pinochet.
How do you explain that?
But probably there will be others in the future. Let me end by
returning to the legal implications. First, the precedent that the
House of Lords has set cannot be limited to extreme abuses. The
House of Lords itself said for technical reasons Britain couldn't
extradite Pinochet for anything he did prior to December of 1988,
when Britain ratified the torture convention. In other words, he
is being extradited for abuses that occurred during the last 14
months that he was in power. What did he do then? The House of Lords
itself said that so far as it could judge from the record before
it, there was one case of torture in that period.
So that alone was enough to seize Pinochet and have put on trial
in a third countryone case of torture which of course he did
not perpetrate personally. We don't even know that he knew about
it. But an episode of torture did take place. Pinochet was the President.
He might have known. That is enough for the House of Lordsand
that now seems to be the law.
If that is enough, of course, Bill Clinton and Janet Reno can be
seized for trial in some other country. What happened at Waco? I
don't know, but a lot more people got killed there than were killed
in the last 14 months of Pinochet's term in office. Meanwhile, the
Clinton administration has presided over an air campaign against
Serbia, where U.S. planes bombed television studios, bombed electric
power plants and water pumping stations, used cluster bombs in areas
known to be inhabited by civilians. The number of civilian victims
is certainly a lot more than the number of those killed in the last
14 months of Pinochet's regime and may exceed the total number killed
in all 17 years of Pinochet's military government. Madeleine Albright
is now vulnerable to be seized by any country which doesn't like
the United States too much. Are there such countries? Yes. There
are. Chile is not the only country that has enemies.
Finally, I do not think the Pinochet precedent can be limited to
even to former Heads of State. The reasoning that allows third countries
to prosecute former heads of state can just as well apply to top
government leaders while still in office. If the world has agreed
that some practices are so awful that even former heads of state
must be punished for them, then why not a current head of state?
Seizing a current leader might do much more to stop current abuses.
And, in fact, the Law Lords ruled that immunity would still be granted
to current heads of state only because British statute law now seems
to provide such immunity. But if I read the opinions correctly,
the Law Lords seem to think that Parliament could change the law
to include current heads of state and that would still be consistent
with international law and perhaps more consistent with the spirit
of international law (as the Law Lords see it) than the remaining
Why, then, don't Europeans seize the President of China the next
time he makes a state visit to their region? Certainly, Chinese
leaders are responsible for many, many, many more deaths than someone
like Pinochet: human rights groups estimate that the Beijing government
is responsible for the killing of a million people killed in Tibet,
out of a population of six or seven million. That compares with
the 2,000 in Chile out of a population of 14 million.
Somehow, I don't think the Europeans will try to take on China,
however. They don't want to start a conflict with a country that
is powerful enough to strike back at them.
That brings us to the last point. The new "law" here
is not law at all. It is certainly not a rule that can or would
be applied to all states. It is actually just a disregard of the
old rule, leaving everything to calculations of power. We are back
to Cesare Borgia, who also did not try to kill the King of France.
He only seized and killed minor princes of neighboring city-states.
I hope that the United States will not see its own officials prosecuted
in foreign countries under this new dispensation. If that happens,
it won't, of course, happen because we are as weak as the Chileans.
But other countries may think we lack the resolution to respond
with force. I would say that an initial indication of this lack
of resolution is that we have allowed Spain and Britain to unloose
this legal aggression on Chile and its former president. That means
we are open to having it happen again. And it probably will. A new
tactic has been unloosed in international politics.
Celebrating the Pinochet Case &
the Demise of Head of State Immunity
Let me see if I can start off and correct some of the minor factual
differences we might have in describing the case, and then move
on to a few points I would like to make about Pinochet.
First of all, this wasn't a war in Chile. It's important to remember
that, and even if it was, it's absolutely clear that the Geneva
Conventions, ratified by everybody under the sun including the United
States, says you can't execute or torture prisoners taken in war.
So there is no defense even if it was a war, and it wasn't.
Was Allende's regime a dictatorship? Well, he took office in 1970,
as Judge Jacobs noted. In 1973 he held parliamentary elections that
were widely recognized as free. He actually fared better in those
election than he had in 1970, despite the CIAinduced economic turmoil
in Chile in the interim.
Did Pinochet make economic progress? Sure. So did Mussolini, who
got the trains to run on time. However, I don't think Jeremy was
suggesting that therefore you can go murder 3,000 people with impunity.
Were there serious crimes committed after December, 1988? My organization
handed in a list of over 100 cases of torture in that several month
period between December, 1988, and when Pinochet finally turned
over power in 1990. The victims included several who died in custody.
Some were the same range of Leftists, unionists and the like that
had been victims throughout Pinochet's regime. Moreover, when you
look at the pattern beginning in '73, there is no way to deny that
Pinochet not only had knowledge of these abuses but actually set
in motion the machinery that was responsible for most of them.
What I find a bit odd is that when a squeegee man here on the streets
of New York is arrested and prosecuted, we all applaud it as a victory
for our quality of life. But if a mass murderer is a Head of State,
you ask to let him go. In fact, the lesson that I think has been
taught by the law up until nowor until it's begun to evolve
over the last decade or twois that if you are going to kill,
kill big. If you are going to kill, why not go for genocide? You
are much more likely to get away with it. Don't settle for small
One way in which the Pinochet case is significant is that it contributes
to breaking that logic. It makes clear that even a former Head of
State is not immune from prosecution. Now this is something that
is not entirely new. The statutes for the Yugoslav and Rwandan War
Crimes Tribunals make it absolutely clear that even a sitting Head
of State has no immunity.
The new treaty for the International Criminal Court similarly makes
that absolutely explicit. The Torture Convention, the one under
which the Lords proceeded, leaves that only implicit. There's no
Head of State or former Head of State exception carved into it.
It's silent on the matter, and one of the significant contributions
of the decision is that it read into the Torture Convention the
fact that silence means that there is no immunity.
Another way in which I think that the decision was significant
is that it confirms the jurisdictional theory under which the Torture
Convention operates, which is that of universal jurisdiction. This
means that if you commit certain crimes you can be prosecuted anywhere.
This is not a new doctrine. It has been around for centuries. It
was originally used to go after pirates at seabased on the
idea that piracy is a crime not only against the individual victims
but against all of humanity, and therefore anyone can prosecute
That was extended at Nuremberg, because, after all, Nuremberg was
not a German court. It was an international court which only happened
to be based in Germany. Universal jurisdiction was used to explain
why Nazi crimes could be prosecuted there.
It is the theory under which the Yugoslav and Rwandan War Crimes
Tribunals have proceeded. It is a part of the new International
Criminal Court, though not an exclusive part, and it underlies common,
widelyratified treaties like the Geneva Conventions or the Torture
Convention. So this is not entirely new, but the Pinochet case was
a step forward in my view because a government was willing to implement
the theory in its national courts, not simply in an international
Should we celebrate the case? Obviously, I feel that the answer
to that is yes, and let me give a few quick reasons why.
First, it should be clear that sovereignty does not suggest a license
to commit mass murder. Now that may be seen as radical to some,
but I think it is something with which most people would agree as
a moral matter, and increasingly that is what the law says as wellcertainly
the law that democratic governments around the world are accepting
by ratifying various treaties that say precisely that.
One of the greatest causes of the atrocities that we have witnessed
throughout this century is impunitythe fact that people get
away with mass murder. When one tyrant gets away with atrocities,
others are tempted replicate them.
If you break that cycle of impunity and violence, we stand a chance
not only of bringing some justice to the victims but also of deterring
further atrocities tomorrow. That is a very important step forward.
Is deterrence guaranteed? Of course not. Deterrence isn't guaranteed
on the streets of New York either. Is this justice partial? Yes,
because it doesn't yet extend to the leaders of China, or to Yeltsin
for what he did in Chechnya, and it won't for some time. But there
is a trend that is worth supporting. Even if we only deter some
tyrants, even if we are only able to bring justice to some victims,
better to do something than to do nothing.
Should this be a matter for the Chilean people to decide? With
all due deference to Judge Jacobs, when he described Pinochet's
selfamnesty as a "deal," that really isn't a fair characterization.
Pinochet in 1978 gave himself amnestyafter five years killingmost
of his killingwas completed. He did so without consulting
with other groups or individuals.
This was effectively reconfirmed by the Pinochet-written Constitution,
which imposed a variety of legal tools to prevent anybody from ever
overturning the amnesty. Pinochet's Constitution also made him CommanderinChief
of the Army until just over a year ago, and then a Senator for life,
meaning that it gives him immunity. Even if somehow this immunity
were broken, these matters would all be seen as crimes for the military
courts to consider, not the civilian courts, and the military courts
in Chile have an unbroken record of affording absolute impunity
on these matters.
The Chilean people were never given an opportunity to decide whether
they wanted to grant Pinochet this amnesty. They were never even
consulted. The one chance they were given to vote on anything having
to do with Pinochet, they voted him out of office.
Now one policy question that often comes up is the fear that if
we don't recognize these selfamnesty's like Pinochet's, we will
encourage tyrants to cling to power. Will we make things worse rather
than better? Fair question.
I think though that this fear misconceives the circumstances under
which dictators step down. I don't know a dictator who has stepped
down voluntarily. They step down when their support wanes and there
is little choice in the matter. That is certainly what happened
to Suharto in Indonesia, Duvalier in Haiti, Marcos in the Philippines,
the Shah of Iran, Mengistu in Ethiopia, Idi Amin in Ugandayou
can go on and on.
Some say Pinochet lost the plebiscite, and like a nice democrat,
he stepped down. Well, in fact, he had also lost the support at
that stage of two of the branches of the armed forces and thus had
no choice anymore. Moreover, the U.S. government played a useful
role at that stage because it was trying to give some meaning to
its democracy rhetoric and it couldn't really be pushing for democracy
in El Salvador without pushing for democracy elsewhere, including
in Chile. So, this was not entirely a voluntary matter. He had little
If it is true, as I believe it is, that dictators don't pick their
time to step down, then refusal to recognize their selfamnesties
is not going to do a whole lot to encourage them to cling to power.
They would have clung to power if they could. They couldn't, so
they are going to have to step down one way or the other. None of
the dictators I mentioned sought an amnesty with the exception of
Pinochet, who planned years in advance. And even he couldn't get
an airtight amnesty because at Washington's insistence he left open
the case of the Letelier-Moffat car bombing in Washington.
Jeremy and Judge Jacobs also mentioned the fact that there are
a number of worse dictators around than Pinochet, and of course
Castro was mentioned as well. I actually wrote an oped in the Washington
Post just after Pinochet's arrest in which I advocated the protection
of Castro if we get a chance, so I believe that justice should be
applied Left and Right, absolutely. But there is a doctrine that,
at least in common law terms, says that there is a difference between
a former and a sitting Head of State. It will take more work to
overturn sovereign immunity for a sitting Head of State on matters
of execution and torture, but we are moving in that direction.
Are there worse people around? Yes, but, murdering and disappearing
3,000 people, torturing many more, that's enough for me. I think
that fits the threshold; you are certainly internationally prosecutable
at that level. If you commit these crimes, you assume the risk of
international prosecution, whether or not there are even more unsavory
Finally, is this development in the interest of the United States?
It should be, but this government doesn't yet recognize it. The
United States, as a government that sees values as important to
its interests, has a legitimate goal in trying to prevent the spread
of torture and mass murder around the world. That is something that
is part of our foreign policy and should be.
As a global power, we are interested in avoiding the kind of disorder
that mass murder tends to give rise to. We need orderly, stable
governments in order for our commerce to prosper and for our citizens
to be able to travel . There is nothing like a little mass murder
to disrupt things, as we are seeing in Kosovo today.
As a nation that is guided by humanitarian motives, we often find
ourselves needing to deploy our own troops to stop mass slaughter.
It would certainly be nice if we could avoid one or two of those
deployments by deterring the tyrant in advance. If a tyrant saw
his neighbor got prosecuted, he might think twice before starting
down the same path.
But unfortunately the Clinton Administration hasn't been able to
appreciate the advantages of developing an international system
of justice. It doesn't think, oh, here's a chance to get the tyrant
down the road. It thinks, oh, my goodness, we might end up being
prosecuted ourselves. That clearly is what the Pentagon has been
thinking, and the Clinton Administration has been deferring to the
Pentagon on this.
This preoccupation is misguided, because, it is not U.S. policy
to commit these kinds of crimes. It is not U.S. policy to commit
war crimes, crimes against humanity, genocide, and torture. These
are not things that we authorize. In fact, going one step further,
it is official U.S. policy to prosecute anybody who does commit
these crimes. If there is a rogue soldier out there who starts executing
prisoners or bombing civilians, U.S. policy is to prosecute him
ourselves, to make international justice unnecessary.
I understand the concern that international justice may not always
achieve the due process of the House of Lords. Libya or Sudan might
try their hand in it. That is all the more reason to support the
International Criminal Court, where you do have a good guarantee
of due process. If I were the Clinton Administration, I would sign
tomorrow and seek an immediate ruling from the court, once it was
created, establishing the right to remove a prosecution to the International
Criminal Court if some third country tries to prosecute a U.S. official,
so that way if Sudan arrests Henry Kissinger, for example, the U.S.
government could remove his case to the ICC. But, of course, the
reason that Sudan or Libya doesn't prosecute American officials
is because they fear our military and economic clout, and that is
not going to change just because Pinochet has been prosecuted in
England. So in that sense _and you can say it's good or bad, we
can argue it either way, but it is a fact of lifethese fears
of American officials being prosecuted by rogue regimes are wildly
So I do think that there are reasons, many reasons, to celebrate
the Pinochet case. It is part of a trend toward building an international
system of justice so that tomorrow's mass murderers won't get away
with their slaughter and perhaps the next day's won't even try.
That is a good thing, and I frankly don't understand why it's been
Head of State Immunity: Politics
I am tempted on this occasion to give my spiel about why international
law is not really any more law than a carton of yogurt is law, but
I will skip that because it would take longer than the 10 minutes
I have. It might take about 10 and a half minutes, but we are supposed
to be sticking to our times, and I want to make the most important
point I think in this discussion, which is this: the question whether
or not Pinochet should be extradited to Spain has a minimal legal
content. This is fundamentally a political dispute. It has been
from the beginning. It still is now. Even the decision of the House
of Lords, reading all of the opinions, shows how basically political
it is. Let's just take as an example of that: why is Spain trying
to get Pinochet extradited for trial there, and why did they wait
until he went to London to do it? If Garzon had what our Secretary
of State likes to describe as "cojones" he would have
sought Pinochet's extradition directly from Chile, but he didn't.
He knew that because the Chileans would regard it as a gross interference
in their own political affairs, they would have rejected it out
Instead, he waited until he could mount, in effect, a kind of judicial
kidnapping by finding a like-minded regime in London that would
allow this charade to proceed. This really is the opening battle
in a dispute that will shape the way the world is structured in
the future and the arguments that I will make tonight, while they
are fine in the context of torture, murder, crimes against humanity,
are exactly the same I would make if we were discussing international
standards for peanut butter.
This is basically a dispute about what nation-states can do in
their own internal affairs. Ken's talk is filled with references
to "we should do this" and "we should do that"and
"we believe this" and "we believe the other."
Who is the "we"? Who is the "we"? The "we"
is the enlightened international law community, which possesses
a higher morality than we do. It sees farther into truth and justice
than we do. It certainly sees farther than those damn Chileans.
However, this is a kind of second-guessing that, while it might
be acceptable in schools of theology, ought not to be acceptable
in international relations.
Life is imperfect. It is certainly imperfect in Chile. What happened
there and what has happened in many other countries over time is
that through an extremely difficult and arduous political process,
basically the people of Chile were able to return to a democratic
Now I am just going to dissent for one second to the idea that
it was Pinochet himself who stopped democracy in its tracks. Allende
took office based on certain political guarantees that he had made
with the opposition parties that he promptly repudiated. His election
is an example of "one person, one vote, one time," and
I have no trouble arguing both as a legal and a moral proposition
that you are entitled to take stepsincluding the use of forceto
prevent a dictatorship from coming to power. That is what I think
They were in a period of civil war. Did he commit abuses? Did he
sanction them? Did he order them? Of course he did. But the question
of how you handle his conduct today is a matter for the Chilean
people. They have made what you may think are imperfect decisions,
but they had to make the choices. They had to make the trade-offs.
They have got to live in Chile. Garzon doesn't have to live with
the consequences of his decision, and neither do the cognoscenti
who frequent salons like this, explaining how their higher morality
This is an example of I think a much broader effort to make sure
that, in the future, nations do not have the kind of flexibility
to order their internal affairs that they have historically had
since the Treaty of Westphalia. It is simply the tip of the iceberg
There are other values at stake here than simply the prosecution
of a wrongdoer. Let's just take for granted that everything that
the critics of Pinochet said that he did, he did.
The people of Chile nonetheless could make a reasonable decision
that they valued the return of the military to the barracks, the
reinstitution of democratic elections, and the return to civil peace
in their society more than they valued prosecuting Pinochet to the
last ounce of his life.
You can disagree with that, but that is fundamentally their call.
The idea that Pinochet imposed this on them, and that they had no
choice and that therefore somebody else now needs to go in and review
the decision, I just think is patronizing in the extreme. If the
Chileans want to revoke the deal, I think they can do it. I think
they may anyway if he goes back to Chile. I think he probably will
be prosecuted, and you can argue about whether you should make a
deal with a dictator and adhere to it, or make a deal with a dictator
and then break it. But the people who made the deal have got to
make that decision, not those of us whose morality is purer and
whose consciences are cleaner and who, by the way, are self-appointed.
The whole argument about how you handle a Pinochet kind of affair
goes not only to the goals that you are seeking to achieve, but
the means that you use to carry them out, and there are a variety
of different ways to go. Certainly prosecution is an alternative,
but it is a fantasy in the international arena to believe that this
kind of prosecution deters anybody.
Deterrence occurs within a constitutional system like we have here,
and I am not going to go through all of it. It doesn't exist in
the international community. The notion that other dictators will
now be deterred from committing torture because this guy in Spain
may successfully extradite Pinochet is just delusional. Take the
best example we have got going right at the moment. In Belgrade,
you have an authoritarian leader who is quite likely subject to
investigation and possible indictment for war crimes in Bosnia,
which used to be part of his country. He just saw across the Adriatic
this past summer the creation of the International Criminal Court,
and he is being threatened with prosecution for war crimes.
In fact, they are not only threatening. They have finally gotten
around to dropping bombs in his villas and on his radio station,
and what is he doing? He is still committing war crimes, because
the deterrent effect is just simply a pipe dream.
In addition to goals and means, which we can reasonably disagree
about, and which have competing and I would say comparable moral
values, there's this fundamental question of whether these decision
are made at the national or the international level. This Pinochet
matter is part and parcel of the strategy of those who helped create
the International Criminal Court this summer and who have a wide
range of other constraints that they are trying to put around the
nation-state, whether it is the Landmines Convention, the Convention
on Climate Change, or the Biodiversity Convention; the list goes
on and on.
The subject of universal jurisdiction I think is an excellent example,
and the way the Torture Convention works to create universal jurisdiction
by treaty shows how letting lawyers loose in foreign policy is fundamentally
The mistake that people make of looking at law in place of force
and diplomacy is not merely naïve: it's dangerous. The case
of universal jurisdiction is a good example. Ken mentioned the piracy
point. Well, under the law of nations as it was then, pirates were
considered the common enemies of mankind. The authorization that
international law gave to any nation to any nation
was to go after the pirates and blow them away. It wasn't to create
legal structures to haul them into court and take their depositions.
It was a way of authorizing force. The transmogrification of these
kinds of principles into the legal theories that we see today is
simply evidence that international law professors don't have real
jobs, or enough to occupy their time when they should be teaching.
The notion that this is going to stop with former Heads of State
who are alleged to have committed murder and torture is wrong. This
is the beginning. This is the easy case.
This is where it starts. But next we are going to find corporate
executives subject to universal jurisdiction for their crimes against
humanity: for example, the CEO of Exxon. It seems to that it is
only a matter time after his next oil tanker runs aground that somebody
is going to grab him and try him for a crime against humanity. Everybody
knows the environment is a global issue.
This theory stems from the idea that the problem in the world today
is the nation-state, and the answer to this problem is to constrain
it, to blur its authority, and eventually reduce it. I think that
it is not simply antipathy to the nation-state in general.
It is antipathy to one nation-state in particularusbecause
that is what the international law theorists and others are after.
They fear our power. They fear our reach in the world, and they
want to find ways to constrain it. I say to hell with them.
United States's Law & Head
of State Immunity
I come at this problem this evening from a different perspective
than the other panelists. I am not an academic. I am not a human
rights activist. I am not a person who has served in high positions
in the state department of our government. I am a commercial litigator
and I like to look at this problem to determine how our courts would
have handled this problem if they were sitting in the position of
the House of Lords. How would our U.S. courts rule on the matter
decided by England?
To try to help decide that, I think it is helpful to look at a
few cases that I do know something about: the cases involving Ferdinand
and Imelda Marcos. There are many parallels between the situation
of Ferdinand Marcos and General Pinochet. There is one critical
Let's start by looking at the similarities. First, they were both
Heads of State. They ruled during similar times and committed or
are alleged to have committed similar acts and abuses. Marcos was
elected President in 1966. After a sixyear constitutional term,
he decided he liked his job, wanted to stay around for awhile, so
he declared martial law. He ruled until February 25th, 1986, when,
as Ken pointed out, there was a groundswell. He had won an election.
There were allegations of election fraud. There was a groundswell
and in a deal brokered in part by our First Lady Marcos, fled to
During his period of rule many acts of atrocities were committed,
and I read from one of the opening paragraphs of an opinion of the
Ninth Circuit: "During Ferdinand Marcos' tenure as President
of the Philippines up to 10,000 people in the Philippines were allegedly
tortured, some were summarily executed or disappeared at the hands
of military intelligence personnel acting pursuant to martial law
declared by Marcos in 1971."
Pinochet came to power virtually the same time, one year later
to the month, in 1973. He resigned in 1990, four years after Marcos,
and during his tenure similar acts were committed. There is really
no dispute as to those allegations. One of the opening paragraphs
of the leading House of Lords opinion stated: "There was no
real dispute that during the period of Senator Pinochet's regime
appalling acts of barbarism were committed in Chile and elsewhere
in the worldtorture murder, and the unexplained disappearance
of individuals all on a large scale."
Both individuals found themselves abroad with other countries seeking
to judge them. Marcos was living in Hawaii. He subsequently came
to face civil and criminal charges in the United States for acts
committed in his own country as well as abroad. Pinochet also had
the misfortune of going to England for back surgery and found himself
under arrest for, again, acts committed in his own country and abroad.
Both of them were sought to be judged not for the acts committed
against the citizens of the country seeking to take the justice,
but for acts committed at home and elsewhere abroad.
There was one critical difference between the two men. When Pinochet
left, as was said before, he negotiated amnesty for himself, and
as a result of the new Chilean government's decision to honor that
amnesty, Chile appeared before the court in England seeking to assert
sovereign immunity and a defense that Pinochet's extradition should
Marcos was less fortunate. He didn't have as much time to make
his deal. He left. He was given safe passage to Hawaii, but that
is where his deal ended, and he subsequently not only found himself
being prosecuted and the subject of civil suits in the United States,
he had his former government pursuing him with a vengeance.
Does that make a difference? Should that distinction make a difference?
I think to answer that we need to look at what the courts have done,
how they have handled the questions of the act of state doctrine,
sovereign immunity, Head of State immunity, and I think the answer
is somewhat unclear because of that distinction but I think the
cases do suggest a solution.
I am going to speak briefly about four cases. They are actually
opinions that were issued chronologically, and as the cases occurred
they got more difficult.
The first one was one that started here in New York, only five
or six days after the fall of the Marcos government. The Philippine
government came into court, seeking an injunction against the transfer
of Marcos's assets in New York and elsewhere, and a temporary retraining
order in the New York Supreme Court.
The case was removed to federal district court, which granted a
preliminary injunction and that matter went up to the Second Circuit.
The Second Circuit dealt with the questions of federal jurisdiction
because the case started out really with questions of state law,
constructive trust and theft of property and it also dealt with
the more lofty questions of justiciability, act of state, and sovereign
With respect to justiciability, the court really did not have much
of a problem. Moreover, the Second Circuit found nothing unmanageable
about claims of theft, abuse of trust, and the constructive trust
doctrines, The court also looked to the position of the U.S., which
was not a party in the case, but the Philippines' attorneys, through
some good lawyeringnot of myself, my predecessor counselgot
the U.S. to weigh in on it, and the U.S. took the position that
the act of state doctrine should not apply, that the burden was
on the party asserting the immunity, that the Marcoses had not sustained
the burden. Moreover, the U.S. maintained that the parties who asserted
the Head of State immunity in that casewho were the managers
of these various buildings, who were supposedly working for Marcosdidn't
have standing because they weren't the actual Heads of State.
With respect to the act of state doctrineand this is a consistent
theme that really goes through many of these cases and I think would
be very significant if this issue were presented in the context
of Pinochetthe court pointed to the distinction between public
acts and private acts. It talked about when a dictator commits acts
that are not governmental acts, that go beyond the authority of
an Executive, such as criminal acts, that those are not acts of
a sovereign. The court cited the case of Jimenez, involving the
Venezuelan dictator, where the Fifth Circuit held that private financial
crimes of the dictator of Venezuela were no more governmental acts
than a dictator's act of rape.
That distinction has carried through in a number of these cases.
The court also cited two factors which it found merited that the
act of state doctrine should not be applied: one, the Marcos government
was no longer in power; and, two, the very government of the Philippines
was the plaintiff in the case.
The second case I want to just touch upon is the Ninth Circuit
opinion in Republic of Philippines v. the Marcoses. That was a much
broader action than the one in New York. Whereas in New York it
was really a holding action, whereby the Philippines got a judgment
against Marcos and then went to execute it upon that judgment in
In Californiathey do everything in a bigger way in Californiathe
action was a broadbased RICO action, essentially challenging all
the diversions of money by the Marcoses and the secreting of the
monies into the United States.
Just to take one step back: in both of these cases the complaints
were riddled with allegations of human rights abuses, that it was
part of the pattern that the Marcoses had abused their office to
commit all these human rights abuses and in the course of that they
enriched themselves personally and stole much money from the country
and invested them in the United States. This element was flavored
throughout the complaints of both cases.
Again, however, the Ninth Circuit rejected the act of state doctrine.
It talked about it being a pragmatic device. It talked about a dictator
once being deposed is less likely to cause embarrassment to the
State Department. But then again, it did find that a fortiori when
the country itself was the plaintiff, the classification had little
or no applicability.
The third case was a criminal case, and contrary to what Jeremy
said earlier, it was a case of a foreign head of state who happened
to be in the United States under safe passage from a deal brokered
by the First Lady and found himself indicted for crimes committed
primarily in the Philippines. He was charged with wire fraud and
mail fraud, but the basic essence of those crimes were crimes committed
while he was dictator of the Philippines. He and his wife were both
indicted. He had the good sense to die before the case came to trial,
which put a terrible cog in the Government's case, and ultimately
I think that was one of the significant reasons that causes the
Government to lose that case, but the Judge was faced with the questions
of act of state and Head of State immunity that were asserted by
Again, the judge used what we call a lawyer's argument. Number
one, in terms of the Head of State immunity, he found that that
belonged of course to the sovereign itself; it was not a promise
to the dictator that he would be safe. It was really derivative
of sovereign immunity and that that could be waived, and that in
this case the government of the Philippines executed a formal waiver
of that immunity.
Second, with respect to the act of state doctrine, again he pointed
to the distinction between public acts and private acts, and found
the burden on Mrs. Marcos to prove that, and found that she had
not carried her burden. Unfortunately, the case never did get up
to the Second Circuit, because there was no conviction so we never
really got to see what the Second Circuit would have done with that.
The final case I want to touch upon, which is probably the most
relevant here, is the human rights litigation that went on in Hawaii.
Marcos was charged in numerous cases with human rights abuses. Those
cases were all dismissed on sovereign immunity grounds. They were
summarily reversed by the Ninth Circuit, and remanded. They were
consolidated as a class action, and there was a trial, which resulted
in a judgment of $2.1 billion in punitive damages against the Marcoses.
Then there were further procedures to determine what the actual
Just to briefly comment: the Ninth Circuit found that there was
no immunity under the Foreign Sovereign Immunities Act. Again, pointing
to the Jimenez distinction, the court found that illegal acts of
a dictator are not official acts, and, therefore, can be reviewed
by the Federal courts. Moreover, the court looked to the agreement
of the Republic of the Philippines, which filed an amicus saying
that this case should proceed. In addition, the court concluded
that acts of torture, execution and disappearance were clearly outside
the authority of Marcos as President of the Philippines.
Finally, the court found that there was a cause of action created
under international law. The prohibition against torture it found
was a normative standard that was adopted into the federal common
What does all this mean if the U.S. sat in the position of the
House of Lords? I believe applying these cases, the U.S. would have
granted extradition and they would have done so on a much broader
basis than the House of Lords did. I think they would have followed
the opinion of Lord Millett and granted extradition not limited
by the adoption of the treaty. Thank you.