The Pinochet Perplex

"The Pinochet Dilemma" by Ricardo Lagos and Heraldo Muñoz, and "The Long Arm of the Law" by Anne-Marie Slaughter, in Foreign Policy (Spring 1999), 1779 Massachusetts Ave., N.W., Washington, D.C. 20036; "Something’s Got to Give" by Jeremy Rabkin, in The National Interest (Spring 1999), 1112 16th St., N.W., Ste. 540, Washington, D.C. 20036.

Does the case of former Chilean dictator Augusto Pinochet signal a welcome advance in the rule of international law— or an ominous new threat to democratic self-government?

Slaughter, a Harvard Law School professor, sees it as progress. Thanks to Pinochet’s detention in Britain last fall, at the request of a Spanish magistrate pursuing him for crimes against humanity, she says, ex-dictators "everywhere may henceforth face the prospect of being held accountable for their crimes in office." The case "marks the integration of domestic and international law. Both Spanish and British courts have been willing to interpret and apply international treaties and customary international law directly and as part of domestic law."

Qualified support for this view comes from Lagos, an official in the democratic Chilean government formed after Pinochet stepped down in 1990, and Muñoz, a political scientist and former Chilean ambassador. They add that "the new rules may also discourage those very same dictators from peacefully handing over power." (Pinochet enjoyed amnesty under a 1978 law and a seat in Chile’s Senate after he left office.) And Pinochet’s ordeal abroad has had unfortunate effects at home, they note, "reawakening the deep divisions" in Chile and making him "the undisputed leader of the Right... [and] once again the central actor in Chilean politics." Chile’s government, which first protested Pinochet’s arrest, is now calling for him to be returned to Chile for trial.

Lagos and Muñoz look to the International Criminal Court (ICC) that was part of a proposed treaty adopted by a UN conference in Rome last summer (and opposed by the United States) as an aid to navigating the turmoil created by the extension of international law. Even so, they conclude, it would be best if nations dealt with their tyrants themselves. International law should only be called upon as "a backup instrument."

Rabkin, a political scientist at Cornell University, has no kind words for the Pinochet precedent. "There has long been a customary rule of international law," he notes, "that courts of one country will not sit in judgment on the sovereign acts of, or the officials exercising sovereign power in, another country." To do otherwise would be to infringe national sovereignty and invite war. The only exceptions, Rabkin says, are cases in which the defendant’s home country does not object, as in the Nuremberg trials.

Chile "will not go to war with Britain or Spain," he notes. "But the notion that ‘international law’ will now hold evil-doers of all lands to account is absurd.... [No] one expects European Union countries to hold a top Chinese leader to account for massacres in Tibet...or American officials for extradition to Sudan, which has been threatening to charge them with war crimes." International law without the foundations of international government would be the height of injustice, a "selective, inconsistent" law administered by bureaucrats. And Americans, he argues, should pause at the prospect of handing over fellow citizens—from military personnel accused of war crimes to alleged drug dealers—to international courts where they would not enjoy the precious protections accorded them as citizens by the U.S. Constitution.