(Mr. Bourdon and I corresponded, via e-mail, in French. His comments appear below, in my translation. — MF)

Demonstrators from groups representing victims of Augusto Pinochet react after the Supreme Court upheld a ruling that stripped him of immunity 08 August 2000 in Santiago. AFP PHOTO/MATIAS RECART

It is important to emphasize that virtually all of the predictions made at the beginning of Augusto Pinochet's arrest in London on October 16, 1998, were proven wrong. In Chile, many political figures — and not just those from the conservative camp — implored London to release Pinochet out of fear that there would be a civil war or, at the very least, a destabilization of democracy. Exactly the opposite happened.

For their part, international human rights organizations and other observers held that it was absolutely impossible to ever prosecute Pinochet in Chile. Exactly the opposite happened. In fact, what we saw was a kind of virtuous boomerang effect, in which European judges awakened their Chilean peers to the vigor of international law, impelling them, in effect, to reclaim their natural prerogatives.

So the Pinochet Affair cleared the way for very significant political effects.

The conceptual developments are much less spectacular, when we bear in mind that the Nuremberg Tribunal already established that no one, regardless of official position, is exempt from prosecution for crimes against humanity. Louise Arbour [Chief Prosecutor, International War Crimes Tribunal for the former Yugoslavia] confirmed this when, on May 24, 1999, she issued international arrest orders for five individuals, including Slobodan Milosevic, President of the Federal Republic of Yugoslavia.

The real conceptual leap will come when a criminal head of state, traveling on government business and/or at the invitation of a foreign chief executive, can be arrested by a domestic judge, rather than by an international tribunal. This eventuality, articulated in Article 27 of the Statute of the International Criminal Court, is met today with great resistance.

A direct legal consequence of Pinochet's detention was the February 2000 arrest in Dakar of Chad's ex-dictator, Hissein Habre. [According to a 1992 Truth Commission, Habre's regime is responsible for 400,000 political murders and 200,000 counts of torture.] The [July 4] reversal of charges by the Chambre d'Accusation [Indicting Chamber] was a terrible setback; it remains to be seen whether the Cours de Cassation [Court of Appeals] will uphold that bad decision. In the present climate, it would take a great deal of courage for those judges to reinstate the charges.

The very incarnation of despotism and dictatorship in Africa, is Laurent Kabila, president of the Democratic Republic of Congo. There is no doubt but that he should be charged with torture, forced disappearance, crimes against humanity.

We must bear in mind that certain obstacles to international criminal prosecutions derive from the human rights culture we are trying to protect. For example, many NGOs oppose capital punishment and therefore must withdraw or withhold arrest orders if the tyrant would be subject to violence upon return to his native country. That is exactly the case with Mengistu, who would be executed if he were returned to Ethiopia.

A second obstacle is that the most serious crimes are often covered up through political alliances with other countries. This helps explain the resistance we saw in France 1995-96 to prosecuting some of the men responsible for the Rwandan genocide. Even though these individuals had fled to French territory and were clearly vulnerable under the UN Torture Convention, France did nothing. The fact is, certain French services had been involved in Rwandan affairs, with support at the highest levels.

A third obstacle is what we might call 'judicial chauvinsm.' In most countries — and I'm by no means excluding Europe — judges find it difficult to acknowledge the primacy of international law. They are still unfamiliar with the newest juridical developments related to the fight against impunity. Even if things have evolved in France and a few other countries, there is still a great deal to be done in terms of education, so that magistrates and judges will be up to date.

The fourth obstacle has to do with the lack of harmony between the judicial systems of different countries (a difficulty clearly demonstrated in the Pinochet prosecution.) This problem should essentially be solved by establishment of the International Criminal Court.

The most difficult task for an NGO, or any human rights organization, is how to establish a list of prosecutable crimes. Although suffering is universal, not all crimes are subject to universal jurisdiction. We must limit ourselves to those offenses that are clearly defined in ratified human rights treaties and conventions. The ICC Statute cites genocide (in Article 6), crimes against humanity (Article 7), war crimes (Article 8). My personal conviction is that we must make the best possible use of existing texts and legislation. It is morally reprehensible to lead victims to believe that everything is possible. In this regard, it must be said that the Pinochet case occasionally fueled unrealistic hopes.

I think that NGOs have a triple responsibility:

1. To be rigorous in their calls for, and execution of, international arrests, so that the process is not undermined by politics or ideology.
2. To help the "forgotten" victims of crimes against humanity break their silence. There are numerous ways to do this. In response to the atrocities committed in Sierra Leone, the Security Council has approved in principle the establishment of a Mixed International Tribunal, to be located in a neighboring country, and composed of magistrates from various nations. It is to be hoped that the victims of the crimes committed in Liberia will see a similar execution of justice.
3. To discourage Nations from interpreting human rights conventions in an overly restrictive and reductive way. To encourage more modern readings that will lead to a more ambitious pursuit of justice. As an example: in the Pinochet prosecution, Judge Bartle interpreted forced disappearance as an act of torture. That is not explicitly articulated in the UN Torture Convention, nor is it universally accepted at the international level. But one day it will be.

In spite of personal trauma, legal difficulties, and political complications, let it be said that all of the international human rights prosecutions pending in France, Switzerland, and Belgium have been brought, not by the Court, but by victims.

William Bourdon is the Secretary General of the International Federation of Human Rights, Paris.

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