Overview
The Spanish and British governments used both international and national law to determine that Chilean dictator Augusto Pinochet could be tried for human rights violations committed during his rule.
In the early years of Pinochet’s 1973–1990 dictatorship, human rights activists began documenting cases of illegal detention, forcible transfer, murder, torture, and disappearances carried out by Pinochet’s forces. After democracy was restored in Chile, an official truth commission compiled detailed information on approximately 3,000 cases of human rights violations. However, Pinochet could not be brought to trial in Chile, because prior to leaving office he had given constitutional protection from prosecution to himself and most of his accomplices.
Lawyers acting on behalf of the people whose human rights were violated by Pinochet’s government filed criminal complaints in Spain using a procedural device called accion popular, or people’s action, in which Spanish citizens are permitted to file private criminal actions in certain circumstances. Spanish courts allowed the case to proceed based on the principle of universal jurisdiction, which allows cases that involve torture, genocide, and other crimes against humanity to be tried in Spanish courts no matter where the crime was committed and regardless of the nationality of the perpetrators and their victims.
A Spanish warrant was then issued and Pinochet was arrested by British authorities while he was visiting London. Pinochet and his defenders challenged the warrant, arguing that as a former head of state he enjoyed immunity from arrest and extradition. The British House of Lords, however, twice rejected this argument, ruling first that, although a former head of state enjoys immunity for acts committed in his functions as head of state, torture and crimes against humanity were not “functions” of a head of state; and second that, once Britain and Chile had ratified the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatments or Punishments, Pinochet could not claim immunity from charges of torture.
Pinochet was ultimately sent back to Chile for medical reasons and was not tried in Spain. The Chilean Supreme Court stripped him of the parliamentary immunity he had granted himself and determined that he should be tried; however, it later ruled that he was too ill to stand trial.
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The arrest and extradition of former Chilean dictator Augusto Pinochet is among the most extraordinary of the legal cases. It set a precedent that may be used in the future to target current and former heads of state for international justice.
The Lords’ ruling set an important precedent, demonstrating to the world that a head of state enjoys no immunity from prosecution on charges of torture, that such crimes can be prosecuted anywhere in the world under the principle of universal jurisdiction and that national courts can be used to force states to fulfill their obligations under international law.
The international attention also changed the political equation in Chile, which could no longer cling to national laws that had protected human rights violators, including Pinochet, from being tried for their actions. Most importantly, Pinochet’s prolonged detention in London diminished the fear he engendered in the Chilean population, which began to move ahead in new ways, making it possible for victims to be acknowledged and seek redress.