Panel Proceedings: The Pinochet Case and Head of State Immunity

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 reform—which I suppose means that he recruited economists from the University of Chicago—and 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 Garzon—who 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 Chile—Britain 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 a socialist.

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 is—if I can put it this way—one 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 that.

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 government.

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 extreme Left.

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 smooth.

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 Church—all 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 policies—and 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 interfere—and 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 country—one 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 Lords—and 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 immunity.

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 now—or until it's begun to evolve over the last decade or two—is 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 crimes.

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 sea—based on the idea that piracy is a crime not only against the individual victims but against all of humanity, and therefore anyone can prosecute a pirate.

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 institution.

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 well—certainly 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 impunity—the 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 amnesty—after five years killing—most of his killing—was 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 Uganda—you 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 choice.

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 characters around.

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 life—these fears of American officials being prosecuted by rogue regimes are wildly overblown.

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 so controversial.

Head of State Immunity: Politics v. Law


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 of hand.

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 system.

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 steps—including the use of force—to prevent a dictatorship from coming to power. That is what I think Pinochet did.

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 works.

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 destructive.

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. [Laughter.]

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 particular—us—because 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 difference.

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 Hawaii.

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 world—torture 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 not occur.

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 immunity.

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 lawyering—not of myself, my predecessor counsel—got 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 case—who were the managers of these various buildings, who were supposedly working for Marcos—didn't have standing because they weren't the actual Heads of State.

With respect to the act of state doctrine—and 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 Pinochet—the 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 New York.

In California—they do everything in a bigger way in California—the 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 Imelda Marcos.

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 damages were.

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 law.

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.


2001 The Federalist Society