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Historical Trials  

Establishing the 'Universal Jurisdiction': A study of General Pinochet's Trial


The history of Chile has witnessed a reactionary upsurge by junta Pinochet in the year 1973 and undergone a dangerous phase of torture and killings for next two decades. It was another 11th September in 1973 when the elected Chilean President Dr. Salvador Alende was killed and power was captured by the military junta Aughusto Pinochet and the entire state had entered into a regime of terror. This incident was followed by conclusive murder of at least 2,279 persons whereas at least 30,000 people were tortured by the state official. This US backed state sponsored mass killing resulted in an unlimited loss for democracy in Chile and made the scope for the right wing atrocities against the human community. Killings and torture were criticised by the world community and sought for justice for the victims of junta's devastation.

Although in 1990, Chile had reverted its civilian government 'but before leaving the government the military had exacted a constitutional scheme that reserved a key role for them. The arrangement reserved a percentage of foreign exchange for the military,retained Pinochet as the armed forces chief until 1997,and then made him a senator for life' This was once again a protective measure to let the military influence survive over the Civilian government.

Due to that, the government could not initiate proper criminal proceeding at the home state. In 1998, a universal arrest warrant was issued by a Spanish magistrate Baltasar Garzón Real and finally the former dictator of Chille was arrested form London. The entire trial of Junta had opened up the issue of universal jurisdiction in case of the crime against humanity. It was for the first time several court of Europe had applied the doctrine of universal jurisdiction against a former head of the state legally immuned from criminal prosecution by their domestic amnesty laws.

Operation Condor and the crime against humanity

The Pinochet's era was marked by thousands of death and torture for the political cause and established itself as a strong factor in the right wing dictatorship in surthern hemisphere. After the arrest of Pinochet from London, the ex Prime Minister of UK Margaret Thacher and US President Gorge H W Bush's statement for the release of the Junta had dismantled the continent wide right wing conspiracy backed by US once again. The recent development of public international law especially after the decision of Nuremberg Tribunal and the constitution of International Criminal Court in 1998 under Rome statue paved the way for the true prosecution for the head of the state involved in crimes against humanity. Article 7 of the Rome Statue has given the definition of crime against humanity which says

'Which are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings? They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes'.

The prime principle which was emerged from this case was the applicability of the Universal Jurisdiction. The indictment of the former head of the military regime in Chile by the Spanish Court was sustained as valid because its relation with the crime against humanity. The trial of Pinochet for the sixteen month before the House of Lords was basically on the question of immunity given for a former head of the state and the health issues of the Junta. But the House of Lords denied to send him to Chile under the unlimited amnesty power incorporated in the Constitution during his own regime. This decision of the House of Lords was affirmed by the UN high Commissioner of human Rights in March 1999.

Doctrine of Universal Jurisdiction:

Pinochet' Trial has widened the scope of universal jurisdiction in case of the prosecution of the head of the state, accused for the crime against humanity but immuned by the domestic laws. This trial is historical in its nature because it has actually opened up the doctrine of universal jurisdiction. Even the United nation had sustained the judgement of House of Lords to allow Pinochet to be prosecuted in the court of Spain.

In the words of Lord Millet "[C]rimes prohibited under international attracts universal jurisdiction under customary international law if two criteria's are satisfied. First they must be contrary to peremptory norm of international law. So as to infringe jus cognes. Secondly they must be so serious and on such a scale that they can justly be regarded as an attack on intenational legal order." The observation of House of Lords in Pinochet's trial had referred the UN Torture Convention 1984 and referred the judgment of 'Attorey General of Isarel v Eichmann' and included the world wide jurisdiction in case of the crime against humanity under Article 5(2) of the Convention.

Pinochet's light was reflected latter in the judgement of Democratic Republic of Congo V Belgium. The world wide effort which was given to form international Criminal Court(ICC)in 1998 also binds the parties to accept the spirit of universal jurisdiction. United Nations Security Council established international war crimes tribunals for the former Yugoslavia in 1993 and Rwanda in 1994 and is now negotiating the creation of mixed national-international tribunals for Cambodia and Sierra Leone. In 1998, the world's governments gathered in Rome to adopt a treaty for an International Criminal Court (ICC) with potentially global jurisdiction over genocide, war crimes, and crimes against humanity.'

The Belgian Court again applied this doctrine in the mentioned case and again the question of the crime against humanity was defined as the permissible limit for the application of Universal Jurisdiction.

The effect of Pinochet's Trial

Though Pinochet was allowed to fly to Chile because of his old age and kept under house arrest, the Supreme Court of Chile stripped him from his immunity and before the prosecution ended, Pinochet died on 10th December 2006. As an effect of the trial of Pinochet, the concept of public international law has widened in the case of the jurisdictional issue with a twofold outcome. On one hand it has strengthened the international urge against the crime against humanity and on other hand, it has substantiated a new doctrine on a strong foundation. Pinochet's matter was unprecedented and judged on the basis of the question of human right jurisprudence.
SABYASACHI CHATTERJEE is a fifth year student of M.S. Ramiah College of Law, Bangalore who has written this report on behalf of India Law Journal. He can be contacted at sabyasachi1985@gmail.com
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