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World: Analysis From Washington -- The Politics Of Pinochet's Arrest

  • Paul Goble



Washington, 20 October 1998 (RFE/RL) -- The arrest of former Chilean dictator Augusto Pinochet in London involves no fundamental legal issues, but it does raise serious political questions for the international system.

Virtually all legal specialists agree that the British government acted completely legally when it arrested Pinochet last Friday on the basis of a request from the Spanish government, with which London has an extradition treaty, that he be extradited to Madrid to face charges of "crimes against humanity."

Moreover, the legal specialists cited in the Western media have pointed out that neither Chile's grant of immunity to the former general nor his possession of a diplomatic passport has any bearing on the issue.

The Chilean action, they note, has no implications beyond the borders of that country. And because the general was not traveling as a diplomat, they have said, he cannot avail himself of the immunities from prosecution by foreign governments that such a status normally affords.

And many legal specialists and human rights activists have praised both Spain and Britain for their actions in this case. They have praised Spain for asserting its jurisdiction internationally regarding atrocities. And they have given high marks to Britain for cooperating with Spain.

The arrest of Pinochet, these experts say, sends a strong message across the world that officials -- past and present -- accused of serious human rights violations are likely to find it ever more difficult to find a safe haven outside the borders of their own states.

But if the legal issues are fairly straightforward, the political ones are anything but. And three of these issues, as yet little discussed, are likely to have an ever greater impact on the international system.

First, one country's definition of atrocity may be very different than another, and consequently some governments may attempt to use this set of new international legal arrangements to promote their specific goals or to score political points rather than to raise the level of compliance with genuine international human rights norms. The Pinochet case raises but does not answer the question of what a government should do when a government with which it has an extradition treaty requests the arrest and extradition of an individual which the requesting government believes has committed a crime against humanity but which the government being asked to act does not.

Such cases are likely to be numerous. For example, a Muslim country might be asked by Libya to arrest and extradite a visiting American official who earlier had been involved in the bombing attack on Tripoli.

Or the government of one of the post-Soviet states might ask for the arrest and deportation of a Soviet-era official who had been involved in activities on its territory that virtually everyone would concede violate the principles of international human rights law.

Or, perhaps even more likely, one of the Asian governments that maintains there is a distinctively Asian set of human rights might try to apply this expansion of the reach of international human rights laws against those who disagree.

In all three cases, both the government being asked to act and the international legal community would face some difficult and not always clear choices. Second, governments may change the way in which they interact with each other as a result, even if they do nothing to change the behavior at home that this expansion of international human rights law is intended to modify.

Obviously, individuals who might be subject to arrest and extradition on this basis are going to be less likely to travel, the obvious intent of this type of legal action.

But at the same time, many governments may seek private or even public reassurances that such actions will not be taken against their nationals, even as they have sought analogous assurances in the past with respect to the application of domestic legislation.

To the extent that happens, it could create a class of specially protected individuals with extraterritorial rights, something that those who have greeted the arrest of Pinochet almost certainly do not want.

And third, cooperation among countries in this area will therefore always be selective, a pattern that may undercut the very values that such prosecutions are intended to promote.

Indeed, that is virtually inevitable. Countries that may find no difficulty in arresting Pinochet because his past actions were so noxious, because he is out of office, and because Chile is not a major power almost certainly would find it difficult to take a similar step against someone who did not so obviously cross this line.

Such selectivity is likely to increase international cynicism about human rights, in much the same way that the failure of the international community to arrest indicted war criminals in the former Yugoslavia already has.

Because so many people believe that Pinochet deserves to be punished for the violation of human rights in Chile, few of them are asking these questions now. But future cases involving those who others believe are equally guilty seem certain to raise them, even if the leaders then in question are significantly less likely to be arrested, extradited and tried.

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