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Technorati10 Years of the Pinochet Principle
The arrest warrant served on the Chilean head of state in 1998 changed history and has implications for the US government now
On October 16 1998, a magistrate signed a warrant for the arrest of Senator Augusto Pinochet and changed the course of history. The former Chilean head of state was arrested a few hours later, at the request of a Spanish prosecutor who charged him with a raft of international crimes, some dating back to the early 1970s. Over the next 18 months, one dramatic development followed another. The House of Lords rendered three landmark judgments in the space of five months; home secretary Jack Straw defied expectations by giving a green light to the continuation of proceedings that could lead to Pinochet's removal to Madrid; Pinochet made a dramatic appearance in the dock at Belmarsh magistrate's court; and eventually Straw decided that Pinochet was too unhealthy to stand trial and he was returned to Chile in April 2000. For the rest of his life he was dogged by legal proceedings.
One central question lay at the heart of the whole affair: was a former head of state entitled to claim immunity before the English courts, where it was alleged that he had participated in crimes, in violation of international conventions, such as torture? This question had never before been decided. It pitted two competing views of international relations against each other: traditionalists argued that the maintenance of serene relations between states required the courts of one state to refrain from sitting in judgment over the highest officials of another; the modernists argued that no person was above the law where the most serious international crimes were involved, and that the system of human rights laws put in place after the second world war substituted a rule of immunity with a new rule against impunity.
In March 1999, the House of Lords came down strongly in favour of the modernist view. It did so carefully, and in a way that was both reasonable and sustainable. The majority ruled that Pinochet's loss of immunity arose not from some unstated general rule of international law, but rather from the terms of a treaty to which Britain, Chile and Spain were party - the 1984 convention outlawing torture - the terms of which were inconsistent with immunity for a former head of state. It is impossible to overstate the significance of that ruling, which reflected a new balance of global priorities, a shift in favour of principle over pragmatism. It has been followed by international indictments against other former heads of state - Slobodan Milosevic and Charles Taylor - and the coming into force of the international criminal court and possible proceedings against the serving president of Sudan. It has also given rise to criminal proceedings before national courts in other parts of the world. The Pinochet judgment has withstood the test of time. It has not been overruled in the court of international opinion, and it has not brought international relations to a grinding halt.
Nevertheless, it seems that Pinochet's case caused concerns at the highest levels of the Bush administration, as described in a revealing account by a former lawyer in the Bush administration, Jack Goldsmith. He describes how, during 2002, Henry Kissinger found himself on the sharp end of the Pinochet case. Reportedly livid, a rattled Kissinger complained to his old chum Donald Rumsfeld, who was already worrying about "lawfare" (the use of law to achieve operational objectives). Rumsfeld instructed the chief lawyer at the Pentagon, Jim Haynes, to address the problems posed by this "judicialisation of international politics". Haynes passed the assignment on to Goldsmith, whose memo reached the National Security Council, which also worried about the threat of foreign judges. According to Goldsmith, the NSC couldn't work out what to do about the problem.
We now know that while this was going on, Rumsfeld and Haynes and others at the Pentagon were secretly circumventing international laws like the Geneva conventions and the torture convention and removing international constraints on the interrogation of detainees at Guantánamo and in Iraq. Torture and other international crimes followed. So did the Abu Ghraib photos. Amid the welter of legal opinions received by the administration none, it seems, bothered to examine the consequences of the House of Lords judgment for senior US officials.
The legacy of the arrest warrant signed in Hampstead 10 years today, is the Pinochet principle, that no one is above the law. It may one day come to haunt the very people who sought to set it aside. If, that is, they ever dare to set foot outside the United States.
15 Comments so far
Show AllPut all that scum were it belongs: behind bars!!!
Laws, without power to enforce, are worthless.
Ask the Native Americans.
But now that the American economy is dying, and the European Union is getting stronger and larger, and China is making a strong, sustained push towards Superpower, the day will come when American corporations must choose between turning over the surviving criminals (Condi ? W ? Wolfowitz ?) and getting punished in the global marketplace.
That's when Condi, W, and Wolfowitz will hang.
Just like the German people gladly gave up ex-Nazi's, to get on with their lives. It will be a bit sad, representing the passing of an Era; but justice is justice.
They should all be stripped forever of their possessions, then sentenced to the "Reality chamber" where they'll live the lives of the victims of their crimes - at least in their minds, until they understand totally the true evil of their crimes, and when they're finally released from the chamber - maybe a couple of years - they'll all live out their lives in the ways their poorest and most affected victims have to.
I suspect that in 1973, General Pinochet scoffed at the idea of being hauled into court on charges of war crimes. Clearly the idea of criminal charges is not unthinkable to members of the Bush administration. In fact Bush administration people are worried that prosecution for murder and crimes against humanity and war crimes, which have no statute of limitations, will haunt them forever.
How long will American public universities be able to employ administration officials who are under foreign indictment for war crimes and who are publicly condemned as unindicted murderers by prominent retired US prosecutors?
This week memos were revealed that place Bush at the head of the authorization of torture for interrogation. Down the line I suspect the question will go to the courts regarding the criminal culpability of members of congress who knew of Bush's criminal activity and who not only did not exercise their authority to stop him but also supported and enabled him.
Senior political leaders of Nazi Germany and Stalin's USSR were in no position to challenge the atrocities directed by their executives, but what of the American Senate and Speaker of the House? At Nuremberg, people in equivalent positions were tried and convicted for war crimes. Should US Senators or Members of Congress be concerned about vacationing in Spain?
I prefer alternatives to punitive or retributive justice- lets move in the direction of restorative or even transformative justice for former mass murderers.
they should balance at the very least their actions to promote violence by promoting peace- they should balance or over compensate for campaign donations to the GOP and instead give them to the Greens or AFSC/Amnesty International.
they could go door to door and personally apologise to the survivors, and pay restitution for the damages they caused.
If they spent an equal amout helping foreign nations as they do "Shock and Awe"ing them there would be no easy time for Taliban recruiters-
the transformative could be the unceasing work to nurture and raise the infants who have been severely wounded and their parents killed by American bombs, raise them as devout Muslims with the education standard that would have been available to them before america started interfereing in regime change decades ago in Iraq and Afghanistan.
If that would not be transformative then they would have to conclude sociopathy and why punish someone for being ill, are we not civilized? treatment and isolation from situations where they might cause more harm.
The current age of these malcreants would indicate an inability to change under optimum conditions of psychotherapy. Besides which, sociopaths do not change. They become evermore devious.
Besides you don't mention 'restitution.'
This legal principle should not only apply to political figures like the scum bags whom populated Dubya, Cheney, & Co., but as toylit proposed, corporate collaborators of the Bush crime family. There is a precedent as well, the Nuremberg Trials prosecuted Nazi collaborators in the German business community, Alfried Krupp von Bohlen und Halbach foremost amongst them (though it should be written that the punishment of the German corporate collaborators did not go far enough). With that thought, the first Bush era corporate collaborator who should be indicted is Blackwater's CEO, Erik Prince. The first company that should be forcibly broken is Haliburton.
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http://nader.org/
Wednesday, September 17. 2008
Statement of Ralph Nader September 16, 2008 Before the Constitution Subcommittee of the Senate Judiciary Committee on “Restoring the Rule of Law”
Mr. Chairman and members of the Constitution Subcommittee of the Senate Judiciary Committee, thank you for the opportunity to submit testimony on the important and fundamental topic of “Restoring the Rule of Law” to the workings of the Executive Branch. I ask that this statement be made part of the printed hearing record and I commend you for taking the initiative to explore what steps the next President and the next Congress must take to repair the massive damage that President George W. Bush has done to the rule of law and our democracy.
(continues on site)
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Congress is way too corrupt to learn from Ralph. It's a pity Congress doesn't have members who are like Ralph.
Jason Jordan
Sandpoint, Idaho
Sioux Rose
Kissinger would of course be interested in the same type of defense brought forth by Emperor Justinian when he forced the expulsion of all references to reincarnation from The Bibles of his time at the Councils of Nicaea. His belief, if the facts were removed, there'd be no force to hold him accountable. That "strategy" reminds me much of Bush and his host of crooked attorneys only too willing to bend the elastic nature of words to suit their boss's bidding. Too bad there are HIGHER laws, those of karma, that ALL have to answer to.
I am glad for this ruling as quite possibly as times alter, one nation may find a way to IMPLEMENT the law consistent with all nations and arrest the bastards who thus far have gotten away with murder and grand larceny, and ruined countless lives, livelihoods and ecosystems, the basis for life's continuity.
This article also reminds me of a play I taught some 30 years ago, "The Devil and Daniel Webster." Making a case between a mortal and a supernatural foe stretches the imagination.
Immunity and impunity
Immunity is generally recognized as a physical condition by which disease is resisted. In this case immunity is the disease itself penetrating cell walls of the nation-state organ devoid of social conscience/capacity. The disease is made immune. Why?
Impunity Latin: 'im'(negative) + punir- to punish. unpunished = defacto guilt of an action deserving of correction. Why is the application of sociopathic methodologies to be valorized above and beyond the scope of decent civil life and most obviously, to the detriment of natural balance?
Civil society needs to issue a Cease and Desist order.
"For the rest of his life he was dogged by legal proceedings."
George Wanker Bush will not be traveling outside the United States after he leaves office. He probably won't be leaving the bathroom wherein he will pass most of his time masturbating into the sink and snorting blow off the tile counter.
But Consolidated Rice-A-Roni, Donald Rumandcoke, David Addingmachine and those types probably will. Perhaps Silvio Burlesque-Macaroni will invite them to Rome to celebrate Il Duce's birthday. We can hope that somebody nabs them and sends them to The Hague where they will ultimately walk the plank. If they could do it to Pinochet, they can do it to them.
Prosecuting Pinochet without prosecuting Henry Kissinger (who was the US Secretary of State who killed Allende, installed and controlled Pinochet) is tantamount to prosecuting the soldiers who torture prisoners in Iraq without prosecuting complicit members of Dubya's Regime.
We HAVE a "three strikes law" for shoplifters, we put them into the prison system, for the crime of poverty, theft and laziness. then spend the equivelent of an ivy league tuition to keep them imprisoned.
WHY play so small? WHY NOT catch some BIG FISH?? Even if only for SPORT?
I PROPOSE that we EXPAND the "three strikes" law for CORPORATE and WHITE COLLAR fraud, especially as it seems to effect our communities on a much more destructive scale than petty theft.
Spun correctly we could put the whole military industrial complex indoors, we could tame the corporate charters and even dress the whole enron school of business is prison greens.
Let's keep the gloves on, just to be nice, call it "thirty strikes" say if you have more than THIRTY victims of your criminal activity, LIFE mandatory.....
LAW n' ORDER that" what I preach.
Yeah - Lets have mandatory minimum sentencing so the handpicked judges can't interfere!