(Mr.
Bourdon and I corresponded, via e-mail, in French. His comments
appear below, in my translation. MF)
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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
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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:
- To
be rigorous in their calls for, and execution of, international
arrests, so that the process is not undermined by politics or
ideology.
- 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.
- 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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