London, 18 January 1999 (RFE/RL) -- A top international jurist says the lesson of the Pinochet affair is that leaders, or former leaders, accused of human rights abuses should stay at home and not take the risk of traveling to foreign countries.
Richard Goldstone, a judge of South Africa's Constitutional Court and previously a prosecutor for the Hague-based International Criminal Tribunal for the former Yugoslavia, made the comment in an address in London last week.
Goldstone focused on the human rights implications of the case of Pinochet, who was arrested in London three months ago at the request of a Spanish judge seeking his extradition to face charges of crimes against humanity. The 83-year-old former Chilean dictator denies charges by rights activists that he was responsible for at least 3,000 'disappearances' during his 17-year military rule.
Seven of Britain's top judges began hearings today to reconsider whether Pinochet, as a former head of state, is subject to prosecution and extradition, or whether he should be free to return home.
Goldstone said Pinochet was detained because of acceptance of the relatively new principle that serious war crimes and other crimes against humanity should be subject to universal jurisdiction.
This principle did not exist before World War II when international rights laws were applied to governments, not people. That changed for two reasons. First, the Holocaust convinced the international community of the need to protect the individual rights of all people in the world. Second, the transition from military dictatorships in Latin America and communist dictatorships in Eastern and Central Europe and the former Soviet Union raised the issue of what to do about past human rights abuses. Richard Goldstone:
"The concept that there could be such a thing as a crime against humanity was something new: The idea was that some crimes are so egregious, or so serious, that their crimes are not only against the immediate victims, and not even crimes against the people of the country in which the crime was committed, but they are truly crimes against all of humankind."
Goldstone says the acceptance of this principle led, in turn, to the idea that "anybody, anywhere has the jurisdiction to bring criminals to justice before the courts of any country, regardless of where the crime was committed."
"That was something that was new. It has had enormous repercussions in international law."
The principle was first accepted in the 1948 Genocide Convention, ratified by virtually all UN member states. It placed an obligation on every signatory country to prosecute in their national courts those suspected of having committed genocide, no matter where the alleged crime took place. This principle was also enshrined in the 1949 Geneva Conventions.
Goldstone says many countries today have incorporated into their domestic law the jurisdiction to try criminals for crimes committed outside their borders. Hence, alleged Bosnian war criminals have been charged in Denmark and Switzerland.
In the case of Pinochet, Goldstone said that not only Spain but a total of seven EU countries have sought his extradition in connection with alleged crimes committed in Chile against their own nationals.
Goldstone noted that Pinochet was safe as long as he remained in his own country. This was because he "did a deal" with the incoming democratic government of former Chilean President Patricio Aylwin under which he was granted an amnesty.
"If Pinochet had remained in Chile, not traveled to London, the problem would not have arisen for him. The message that is going out is that if people are given amnesties, having committed the sorts of crimes we are talking about, they shouldn't travel."
Goldstone said he believes that the international community should use all means at its disposal -- including individual prosecutions and wide-ranging investigations -- to bring people to account for crimes against humanity. He said this is important because, as he put it, "the victims themselves have no voice." "Whether they are national or international (hearings), bringing people to account, exposing human rights violations, is an indispensable means of trying to stop what has been a terrible feature of the 20th century, the murder, the rape, the forcing into refugee status of too many millions of people who have been victimized in the most horrible fashion."
Goldstone was addressing London's Royal Institute of International Affairs on 13 January.