On the night of October 16, 1998, London police arrested Gen. Augusto Pinochet. They were acting on a Spanish warrant charging the former dictator with human rights crimes committed in Chile during his seventeen-year rule. The British courts rejected Pinochet's claim that he was entitled to immunity and ruled that he could be extradited to Spain to stand trial.

The case against Pinochet did not begin in October 1998, however. It really began in the early years of Pinochet's 1973-1990 dictatorship when brave human rights activists began documenting each case of torture, murder, and "disappearance" carried out by Pinochet's forces. When democracy was restored in Chile, an official truth commission built on that work to compile detailed information on over 2,000 cases of killings and "disappearances." But before leaving power, General Pinochet had created for himself, and most of his accomplices, a legal structure of absolute impunity--or so he thought.

In 1996, lawyers acting on behalf of victims of military repression in Argentina and Chile who were unable to pursue their claims at home filed criminal complaints in Spain against the former military leaders of those countries, including General Pinochet. Although most of the crimes were committed in Argentina and Chile, Spanish courts allowed the cases to proceed in Spain, using the principle of "universal jurisdiction" over human rights atrocities that is firmly enshrined in Spanish legislation and international law though rarely invoked.

In October 1998, Pinochet traveled to Britain. On October 16, the judge investigating one of the Spanish cases, Baltasar Garzón, requested the British authorities to arrest the former dictator. He was arrested that night in London. Spain later formally sought Pinochet´s extradition, as did Belgium, France, and Switzerland. Pinochet challenged his arrest on the ground that he enjoyed immunity from arrest and extradition as a former head of state. The House of Lords, Britain's highest court, twice rejected Pinochet's claim of immunity. In its first judgment, later annulled, the Lords ruled that although a former head of state enjoys immunity for acts committed in his functions as head of state, international crimes such as torture and crimes against humanity were not "functions" of a head of state. In the second, more limited, judgment, the Lords held that once Britain and Chile had ratified the United Nations Convention against Torture, Pinochet could not claim immunity for torture. A British magistrate then determined that Pinochet could be extradited to Spain on charges of torture and conspiracy to commit torture. In March 2000, however, after medical tests were said to reveal that Pinochet no longer had the mental capacity to stand trial, he was released and he returned home to Chile.

Human Rights Watch described the Pinochet arrest as a "wake-up call" to tyrants everywhere, but an equally important effect of the case has been to give hope to other victims that they can bring their tormentors to justice abroad. Indeed, in January 2000, Human Rights Watch helped Chadian victims to bring a criminal prosecution in Senegal against the exiled dictator of Chad, Hissein Habre, who has been indicted and awaits trial on torture charges (see side-bar).

This brochure attempts to outline the key elements of the "Pinochet precedent" --in particular "universal jurisdiction"--so that victims and human rights activists can press for other state criminals to be brought to justice abroad, and so that they understand the many obstacles to doing so.

What is Universal Jurisdiction?

The most striking feature of the Pinochet case was that a Spanish judge had the authority to order Pinochet's arrest for crimes committed mostly in Chile and mostly against Chileans. This authority derives from the rule of "universal jurisdiction": the principle that every state has an interest in bringing to justice the perpetrators of particular crimes of international concern, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims.

Normally, jurisdiction over a crime depends on a link, usually territorial, between the prosecuting state and the crime itself. But, as one leading lawyer said, "in the case of crimes against humanity that link may be found in the simple fact that we are all human beings."A principal pragmatic reason why international law provides for universal jurisdiction is to make sure that there is no "safe haven" for those responsible for the most serious crimes.

Piracy was the classic "universal" crime, later joined by slave-trading. But these crimes occurred across borders or on the open seas. Since the end of World War II, the list of crimes giving rise to universal jurisdiction has grown to include many atrocities committed within national borders, such as genocide, torture, "apartheid" and other "crimes against humanity." As a United States court said in the landmark Filartiga case, in which the family of a Paraguayan torture victim living in the U.S. brought a civil suit against his torturer who had come to the U.S: "the torturer has become like the pirate and slave trader before him hostis humanis generis, an enemy of all mankind."

What Crimes Give Rise to Universal Jurisdiction?

To determine which crimes give rise to universal jurisdiction under international law, we look at international treaties--such as the U.N. Convention against Torture, or the Geneva Conventions for war crimes--and the general custom of states ("customary international law") under which genocide and "crimes against humanity" are considered crimes of universal jurisdiction. In each case, however, the key to determining whether a prosecution can actually be brought based on universal jurisdiction will be the laws of the particular state in which the case is brought (the "prosecuting state"). Among the human rights crimes subject to universal jurisdiction under international law are:

• Torture

The 1984 U.N. Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment--under which General Pinochet lost his immunity and was ruled subject to extradition--provides that "[t]he State Party in the territory under whose jurisdiction a person alleged to have committed [torture] is found shall,...if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution." As Lord Browne-Wilkinson, the senior judge in the Pinochet case, said, "The purpose of the Convention was to introduce the principle aut dedere aut punire--either you extradite or you punish." The Senegalese case against Hissein Habre is also primarily based on the Torture Convention.

As of February 2000, 118 states had ratified the Torture Convention. Because of the Convention's clear and unambiguous command, torture charges may be the most fruitful in extraterritorial cases brought in these countries, as illustrated by the Pinochet and Habre cases.

The Convention defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." The Convention calls for punishment not only of the person who actually carries out the act of torture, but of those who are complicit or participate in the acts.

 

• Genocide

The widely-ratified U.N. Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group." The killings of Tutsis in Rwanda, Kurds in Iraq and Muslims in Bosnia are recent examples of genocide. Spain accused Pinochet of genocide, using a broader definition of genocide found in Spanish law which also punishes attempts to eliminate political groups, but Britain did not retain this accusation.

Although the Genocide Convention does not specifically say so, under customary international law any state may bring to justice, on the basis of universal jurisdiction, someone accused of genocide.

• Crimes Against Humanity

The concept of "crimes against humanity" was first codified in the Charter for the Nuremberg Tribunal that was created after World War II to try Nazi leaders. The Statute of the emerging International Criminal Court (ICC) (article 7) now defines crimes against humanity as certain acts such as murder, extermination, torture, enslavement, "disappearance," rape, sexual slavery, etc. when committed as part of a "widespread or systematic attack directed against any civilian population, with knowledge of the attack." Other, similar, definitions of this concept are found in the statutes of the international criminal tribunals for the Former Yugoslavia and Rwanda. In each case, it is the widespread or systematic nature of the crime that makes it a crime against humanity.

Under customary international law, universal jurisdiction exists for crimes against humanity. A note of caution is in order, however. Few states (Belgium, France and Israel are three examples) have yet defined and codified crimes against humanity in their national legislation. Many states will not bring or entertain prosecutions based on a crime not set forth in its own laws--even one recognized under international law and which includes acts (murder, torture) already prohibited in national law. In addition, national judges unschooled in international law, as the British lords in the Pinochet case, are less comfortable using concepts of customary law than they are in applying the clear language of treaties. Therefore, from a practical viewpoint, "crimes against humanity" may not be as useful in transnational prosecutions as torture or war crimes which have been more widely defined in international treaties and incorporated into national legislation.

• War Crimes

Traditionally, the concept of war crimes was used to refer to crimes in international armed conflicts, and more precisely to "grave breaches" of the four Geneva Conventions of 1949 and their first Additional Protocol of 1977. However, it can be argued that recent developments have expanded this concept to include serious violations of the customs and laws of war committed either in an international or internal armed conflict.

It is undisputed that universal jurisdiction exists over grave breaches of the Geneva Conventions and the first Additional Protocol of 1977. Each of the four Geneva Conventions, which have been ratified by virtually every country, prescribe that "[e]ach High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts."

"Grave breaches"of the Geneva Conventions and the first Additional Protocol include such things as: wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering, or serious injury to body or health, extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or other protected person to serve in the forces of a hostile power; wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; taking of hostages; making the civilian population or individual civilians the object of attack; launching an indiscriminate attack in the knowledge that it will cause excessive loss of life, injury to civilians or damage to civilian objects; the transfer by an occupying power of parts of its own civilian population into the territory it occupies, or the transfer of all or parts of the population of the occupied territory within or outside this territory.

Serious violations of the laws and customs applicable in international armed conflict, even if not considered "grave breaches" of the Geneva Conventions probably also give rise to universal jurisdiction, allowing but not always requiring a state to prosecute those responsible. This category includes: intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; intentionally directing attacks against civilian objects (objects which are not military objectives), launching an attack knowing that it will cause incidental loss of life or injury to civilians or damage to civilian objects; attacking towns or buildings which are undefended and which are not military objectives; killing or wounding surrendered combatants; physical mutilation or medical or scientific experimentation on unwilling individuals; pillaging; employing certain types of indiscriminate weapons; rape, sexual slavery and enforced prostitution; intentional starvation of civilians; conscripting or enlisting children under the age of fifteen years or using them in hostilities. The Statute of the ICC lists a large number of war crimes in international armed conflicts which are not considered not "grave breaches."

 

In recent years, the concept of war crimes has been extended to internal conflicts as well, giving third states the right (but not necessarily the duty) to exercise universal jurisdiction. The most widely accepted standard of conduct in non-international armed conflicts is article 3, common to all the Geneva Conventions, which outlaws "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

In addition, the ICC statute has defined crimes in internal conflict to include acts like: intentional attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; intentionally directing attacks against buildings, material, medical units and transport; pillaging a town or place; committing rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization.

Which Countries Allow Prosecutions for Extraterritorial Crimes?

Each country's laws are different. Unfortunately, the fact that a country has ratified a treaty requiring it to prosecute alleged torturers or war criminals, or that customary international law calls for prosecution of the perpetrators of genocide or other crimes against humanity, is not always enough to ensure that the country's laws actually permit prosecution.

In many countries, mainly from the French-inspired civil law tradition, treaties (and even customary international law in some cases) are automatically part of national law, without the need for specific legislation "implementing" the treaty. This is the case in francophone Africa and Egypt, for example. Therefore, if conventional or customary international law provides for universal jurisdiction, the courts of these states would have a sufficient basis for a prosecution. Similarly, numerous Latin American and European countries have laws which refer generally to treaties the country has ratified. For example, Panama's Penal Code provides that: "Regardless of the law of the place where the act was committed and the nationality of the accused, the Panamanian criminal law will be applied to those who commit punishable acts foreseen in international treaties ratified by the Republic of Panama." Thus, in principle, torture committed abroad should be punishable in Panama pursuant to the Convention against Torture. This model is followed in Austria, Bolivia, Brazil, Costa Rica, Cyprus, the Czech Republic, Denmark, Ecuador, El Salvador, Ethiopia, France, Georgia, Germany, Guatemala, Honduras, Paraguay, Peru, Russia, Spain, Sri Lanka, Switzerland, and Uruguay, among others.

In many other countries, however, treaties must be specifically "incorporated" into domestic law before they can be relied on. All too often, countries ratify treaties and then fail to adopt implementing legislation incorporating the treaties into national law. What follows is a brief summary of what we know about domestic laws in different countries, but victims will always need to check with lawyers in the prosecuting state before acting.

Many countries have legislation which specifically implements the Convention against Torture. Thus, the United Kingdom's Criminal Justice Act, which gave Britain the authority to arrest Pinochet, says: "A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties." Australia, Canada, Belgium, France, Malta, the Netherlands, New Zealand, and the United States, among others, have similar laws regarding torture.

Similarly, many countries have incorporated the Geneva Conventions into their domestic legislation, though rarely in the sweeping terms of the conventions themselves. Thus, the U.S. punishes "Whoever, whether inside or outside the United States, commits a war crime," which is defined to include grave breaches of the Geneva Conventions or violations of common article 3. The provision only applies, however, when the perpetrator or victim is a member of U.S. forces or a national of the United States. The web-site of the International Committee of the Red Cross lists many of the countries who have incorporated provisions on extraterritorial war crimes. (See http://www.icrc.org/IHL-NAT.NSF.)

Some countries, such as Belgium, Costa Rica, Germany, Nicaragua and Spain specifically grant their courts competence to try cases of genocide committed abroad. Few countries have laws specifically permitting the prosecution of crimes against humanity abroad. These include Belgium France, Israel, Venezuela. Some Nordic states, such as Norway and Sweden, criminalize all felonies committed abroad, as long as the offender is in the prosecuting state.

What If There Are Victims From The Prosecuting State?

In addition to universal jurisdiction, many countries give their courts competence to punish a crime committed abroad against one of their nationals (the "passive nationality" or "passive personality" basis of jurisdiction), usually on the condition that the conduct is also criminal in the country where it occurred but was not punished there. Thus, the cases against Pinochet in Belgium, France, and Switzerland are based on complaints from nationals of those countries who were allegedly harmed by Pinochet in Chile. The existence of victims among its own citizens, of course, also gives the country a greater political interest in prosecuting the case.

The Question of Political Will

The political will of the prosecuting (or extraditing) state will be a critical factor in the possibility of a prosecution, particularly where the law does not allow victims to initiate a criminal proceeding directly. In the Pinochet case, British police immediately executed the arrest warrant sent by Spain, and Britain's Home Secretary Jack Straw then twice made the diplomatically difficult decision to allow Spain's extradition bid to proceed. Other countries would probably have made a decision more weighted to the political costs of a break with the international status quo. In August 1999, when Izzat Ibrahim al-Duri, a top aide to Iraqi President Saddam Hussein, visited Vienna to receive medical treatment, a local city councilman filed a criminal complaint against him, citing his active role in Iraq's genocide against the Kurds. Less than forty-eight hours later, the Austrian government let him leave the country, placing its relations with Iraq above its international treaty obligations. In November 1999, the former tyrant of Ethiopia, Mengistu Haile Mariam, wanted by the Ethiopian authorities on charges of genocide and crimes against humanity, visited South Africa to receive medical treatment. Despite calls from local and international groups for his arrest, and despite South Africa's strong human rights record, he was not apprehended and he returned to exile in Zimbabwe, where the government has sheltered him since his fall. When Abu Daoud, accused in the massacre of Israeli athletes in the 1972 Munich Olympics, was apprehended in France in 1976, Paris gave short shrift to extradition requests from West Germany and Israel and freed him four days after his capture.

Obviously, the existence of a democratic government and an independent judiciary and perhaps the presence of a large community of exiles from the country of the crimes will help create a political climate in the prosecuting state permitting a case to go forward. Pinochet's prosecution in Spain--where a conservative government has been under pressure for South American trading partners to drop the case--was only possible due to the independence of Spain's judiciary, the large Chilean exile community in Spain, and strong popular support for the prosecution. Senegal, which prides itself on being the first country in the world to ratify the treaty establishing the International Criminal Court and has taken a high profile on international rights issues, has allowed the Habre prosecution to move forward without political interference. On the other hand, Idi Amin, the former dictator of Uganda currently living in Saudi Arabia, is unlikely to be prosecuted in Saudi Arabia, a state in which there is little political participation and no independent judiciary and whose government is not responsive to international calls by NGOs and victim groups to bring Amin to justice.

Depending in part on whether the perpetrator's regime is still in power, it is possible that the government of the country in which the crimes occurred will try to block the prosecution. This may have important implications in relation to access to information and evidence, and even to the safety of witnesses, victims, and their families. Such governments may also press to have the case dropped, as Chile has in the Pinochet case. The outcome may then depend on the political will of the prosecuting state, the independence of its judiciary, and the counter-influence that interested groups may have.

Even where international politics are not a factor, it may also prove difficult to convince a foreign prosecutor, or investigating judge, to initiate the investigation of a crime committed outside of his or her country, which diverts human and financial resources from a local case, particularly given the expense of international cases and the possible lack of local interest in the case. Hence, a strong advocacy campaign may be needed. Local supporters of the case may argue that a country should not become a "safe haven" for human rights criminals.

In certain countries, victims and even NGOs are allowed to present a claim directly to the courts without the approval of the prosecutor, although the same difficulties may be faced in convincing a judge to pursue the case.

What Other Prosecutions Have Been Brought on the Basis of Universal Jurisdiction?

After World War II, the victorious allies conducted thousands of trials before national courts of Germans accused of crimes against peace, war crimes and crimes against humanity trials based largely on the principle of universal jurisdiction. For the next several decades, however, there were few such cases. In 1961, Israel tried and convicted Adolf Eichmann for crimes against humanity committed in Europe during World War II, based in part on the principle of universal jurisdiction. In 1985, a United States court authorized the extradition to Israel of John Demjanjuk, alleged to have committed genocide and crimes against humanity during World War II, pursuant to Israel's right to prosecute based on universal jurisdiction. (After being convicted and sentenced to death in Israel, Demjanjuk was freed on grounds of procedural fairness when evidence cast doubt on his guilt as to the specific charge for which he was extradited.)

Following the genocides in the Former Yugoslavia and Rwanda, a number of European countries brought perpetrators to trial on the basis of universal jurisdiction. In Belgium, a Rwandan, Vincent Ntezimana, was arrested and charged with genocide. In Germany, the Bavarian High Court sentenced a Bosnian Serb, Novislav Djajic, to five years imprisonment in 1997 under the Geneva Conventions for aiding and abetting the killing of fourteen Muslim men in Bosnia in 1992. In September 1997, a former leader of a paramilitary Serb group, Nikola Jorgic, was convicted on eleven counts of genocide and thirty counts of murder, and sentenced to life imprisonment by the December 18, 1999 Düsseldorf High Court. A third case is pending against a Bosnian Serb charged with genocide before the Düsseldorf High Court. In Denmark, Bosnian Muslim Refik Saric is currently serving an eight-year sentence for war crimes, charged under the Geneva Conventions with torturing detainees in a Croat-run prison in Bosnia in 1993. In April 1999, a Swiss military court convicted a Rwandan national of war crimes there. The Netherlands is prosecuting a Bosnian Serb for war crimes before a military court. France is currently prosecuting a Rwandan priest, Wenceslas Munyeshyaka, for genocide, crimes against humanity, and torture. In addition, in July 1999, French police arrested a Mauritanian colonel, Ely Ould Dah, who was studying at a French military school, on the basis of the U.N. Convention against Torture, when two Mauritanian exiles came forward and identified him as their torturer. In February 2000, a Senegalese court indicted the exiled dictator of Chad, Hissein Habre, on torture charges.

The Prosecution of Hissein Habre - An "African Pinochet"

In February 2000, a Senegalese court indicted Chad's exiled former dictator, Hissein Habre, on torture charges and placed him under house arrest. It was the first time that an African had been charged with atrocities by the court of another African country.

Habre ruled Chad from 1982 until he was deposed in 1990 by current president Idriss Deby and fled to Senegal. Since Habre's fall, Chadians have sought to bring him to justice. The Chadian Association of Victims of Political Repression and Crime (AVCRP) compiled information on each of 792 victims of Habre's brutality, hoping to use the cases in a prosecution of Habre. A 1992 Truth Commission report accused Habre's regime of 40,000 political murders and 200,000 cases of torture. With many ranking officials of the Deby government, including Deby himself, involved in Habre's crimes, however, the new government did not pursue Habre's extradition from Senegal.

In 1999, with the Pinochet precedent in mind, the Chadian Association for the Promotion and Defense of Human Rights requested Human Rights Watch's assistance in bringing Habre to justice in Senegal. Human Rights Watch researchers visited Chad twice, where they benefitted from the documentation prepared in 1991 by the Association of Victims. Working in secret, because of fears that Chadian officials might notify Habre who could then flee Senegal, the researchers met victims and witnesses and sought documentation of Habre's crimes. Meanwhile, Human Rights Watch quietly organized a coalition of Chadian, Senegalese and international NGOs to support the complaint, as well as a group of Senegalese lawyers to represent the victims. Seven individual Chadians and one Frenchwoman whose Chadian husband was killed by Habre's regime acted as private plaintiffs, as did the AVCRP.

In a criminal complaint filed in Dakar Regional Court, the plaintiffs--several of whom came to Senegal for the event--officially accused Habre of torture and crimes against humanity. The torture charges were based on the Senegalese statute on torture as well as the 1984 United Nations Convention against Torture, which Senegal ratified in 1987. The groups also cited Senegal's obligations under customary international law to prosecute those accused of crimes against humanity.

In the court papers presented to the Juge d'Instruction (Investigating Judge), Human Rights Watch and the other groups provided details of 97 political killings, 142 cases of torture, 100 "disappearances," and 736 arbitrary arrests, most carried out by Habre's dreaded DDS (Documentation and Security Directorate), as well as a 1992 report by a French medical team on torture under Habre, and the Chadian Truth Commission report The groups also furnished documents describing how Habre placed the DDS under his direct supervision, staffed it with his close friends, and required that it report regularly to him. The organizations presented the sworn testimony of two former prisoners who were ordered by the DDS to dig mass graves to bury Habre's opponents. Two of the plaintiffs described being subjected to a widespread torture method, the "Arbatachar," in which a prisoner's four limbs were tied together behind his back, leading to loss of circulation and paralysis.

On the eve of the filing, the NGOs and the plaintiffs met with the Senegalese minister of justice who assured that there would be no political interference in the work of the judiciary. The case, brought as a private prosecution (plainte avec constitution de partie civile), moved with stunning speed. The judge first forwarded the file to the prosecutor for his non-binding advice. The prosecutor, made aware of the need to act quickly so that Habre did not flee the country as well as so the victims could be heard before returning to Chad, gave his favorable advice within two days. The next day the victims gave their closed-door testimony before the judge--something they had waited 9 years to do! The judge then called in Habre on February 3, 2000 and indicted him on charges of complicité d'actes de torture (accomplice to torture) and placed him under house arrest. He also opened an investigation against persons to be named for crimes against humanity, disappearances and barbarous acts (une information judiciaire contre X... "pour disparitions, crimes contre l'humanité et actes de barbarie") meaning that he can later indict Habre or others on these charges.

The judge will now continue his investigation into the case, perhaps visiting Chad. Habre has engaged attorneys to prepare his defense while Human Rights Watch and its partners carry out further research, now without the need for secrecy. Habre's trial could occur later in 2000 or possibly in 2001.

By allowing the case to go forward, Senegal has done what many countries probably would not have done. Senegal, a country with a democratic tradition and one of the more independent judiciaries in Africa, was proud of being the first country in the world to ratify the treaty establishing the International Criminal Court and has taken a high profile on international rights issues. Although Habre had reportedly invested heavily in Senegalese industry, there was no powerful "lobby," nationally or internationally, on his behalf.

"The Pinochet case reaffirmed the principles of international law that a country can judge the crime of torture no matter where the acts were committed, and that not even a former head of state has immunity from prosecution," said Reed Brody of Human Rights Watch, who worked on both the Pinochet and Habre cases. "But it also showed us that there are countries where these lofty principles can actually be applied in practice. Senegal can now be counted among those countries."

Does the Defendant Need to be in the Prosecuting State?

This will depend on the particular laws of each country, the purpose of the prosecution, and the possibility of an eventual extradition. It should be remembered that Pinochet was at home in Chile when the prosecution against him was initiated in Spain.

Do the laws of the prosecuting state require the presence of the defendant? Many countries do not require that the alleged criminal be in the country before an investigation is opened. However, most countries prohibit a trial if the accused is absent. This also depends in part on the basis of jurisdiction. In cases of jurisdiction based on the victim's nationality (the "passive nationality" basis of jurisdiction), for example, both France and Italy allow trials in absentia. That is how an Argentine navy officer, Alfredo Astiz, was convicted and sentenced to life imprisonment in France for his participation in the torture of two French nuns in Argentina, even though he was not in France. These same countries, however, require that in prosecutions based on universal jurisdiction the alleged criminal be in their territory.

While some countries allow for trials in absentia, Human Rights Watch believes that fairness requires that the accused be present in court during a trial to put forward a defense. If an accused is apprehended following a trial in which he was convicted in absentia, the verdict rendered in absentia should be quashed and a completely new trial held.

Of course, victims should consider what would be gained by filing a complaint against a person not physically present in the prosecuting state. The practical value may depend on obtaining his or her extradition. In addition, however, a prosecution may also have a symbolic value, may limit the accused's traveling plans, or may allow freezing of his or her international bank accounts and other assets.

Extradition

When the accused is not in the prosecuting state, it will be necessary to obtain his or her custody. The traditional way to do so is to request his or her extradition. There are other alternatives, however, such as the deportation of an alien to the state of his nationality. Thus, Bolivia deported Klaus Barbie, the World War II "Butcher of Lyon," to France to face trial.

Extradition is the procedure by which one state asks another to surrender someone that the requesting state claims a right to prosecute.

 

Some countries will only extradite pursuant to an extradition treaty, so it will be necessary to determine whether a treaty exists between the two countries. Many countries, however, will grant extradition even in the absence of a treaty, on the principle of reciprocity-- i.e. that the two states would honor each other's requests. On the other hand, the constitution of many countries prohibits the extradition of a national, even when an extradition treaty exists.

Though practice may vary, particularly pursuant to treaty provisions, extradition generally follows similar rules:

1. Double criminality. The acts alleged must be criminal in both the requesting and the requested state. Most extradition treaties will list the specific crimes for which extradition will be provided. Others will only refer to classes of crimes or the level of punishment (for example, those punishable by at least one year).

In the Pinochet case, the House of Lords interpreted this rule to require that Pinochet's acts be criminal in Britain at the time they were committed, as opposed to at the time of the extradition request. Extraterritorial torture (torture "in the United Kingdom or elsewhere," see above) became a crime of universal jurisdiction in the U.K. only in 1988 when the U.K. incorporated the Convention against Torture, while most of the cases of torture under Pinochet had occurred before this date. The Lords thus reduced considerably the crimes for which Pinochet could be extradited.

2. Evidentiary burden. Normally, the requesting state must present a prima facie case against the suspect before he can be extradited. This ensures that people are not arrested and extradited without proper evidence. Certain treaties dispense with this requirement, however. Under the European Convention on Extradition, for example, which governed Spain's request to Britain for Pinochet's extradition, only the formalities of the charges must be presented. Indeed, the convention specifically provides that "it shall not be necessary...to furnish the court...with evidence sufficient to warrant the trial of that person."

3. "Political offense" exception. Most states will not extradite a suspect for a "political offense." The criteria for determining what is a "political offense" vary, but it generally involves a rebellion against an established government and related crimes. Crimes against humanity, torture, genocide, and war crimes are not "political offenses." The Genocide Convention expressly provides that genocide shall not be considered a political crime for effects of extradition. The Convention against Torture does so implicitly by requiring that torture be included in the list of extraditable crimes in states parties' extradition treaties.

4. The specialty principle. The requesting state may only prosecute and punish a person for the crimes for which extradition was granted by the requested state. For example, in the Pinochet case, Spain sought the general's extradition on offences of terrorism, genocide, hostage-taking and torture. The House of Lords only allowed Pinochet's extradition for torture and conspiracy to commit torture after December 1988. If Pinochet is extradited to Spain, these are the only crimes for which he may be tried.

The Problem of Proving a Case

One of the greatest difficulties in an extraterritorial prosecution will be gathering evidence. The victims and most of the evidence will be located not in the prosecuting state but in the country in which the crimes were committed. Therefore, proving the case will mean that victims, witnesses, and documents will have to be transported to the prosecuting state. This can pose enormous financial difficulties and safety issues, as well as cultural, linguistic, and legal problems. If the government in the country in which the crimes were committed opposes the prosecution, these hurdles will be all the greater.

Human rights groups traditionally do not have experience or expertise in collecting legally-admissible evidence, or even in seeking to identify individual perpetrators. The investigation needed to prove individual responsibility for a particular abuse is quite different from that needed to document state responsibility. Put otherwise, it may be relatively easy to show that a victim was tortured in police custody, while it may be much more difficult to name all the people who bear legal responsibility for the act, as immediate authors or accomplices.

Statutes of Limitations

Where crimes were committed several years in the past, statutes of limitations may be a problem. Most states have legislation barring prosecution of crimes after a number of years - 3, 10, 15 years etc., depending on the country and the crime. Customary international law would seem to bar statutes of limitations for crimes against humanity, however, and forty-three states have ratified the U.N. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. French and Belgian courts have specifically ruled out statutes of limitations on crimes against humanity. In addition, it should be possible to argue that the terms of the statute of limitations are "tolled" (do not run) while the accused is effectively shielded from justice. Nevertheless, national judges will look first to national law and if the time limit set out in the relevant legislation has expired, many countries may not entertain a prosecution.

Where "disappearances" are involved, however, it may be easier to avoid such limitations. The U.N. Declaration on the Protection of all Persons from Enforced Disappearance states that "Acts constituting enforced disappearance shall be considered a continuing offence as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remain unclarified." This is logical, since non-acknowledgment of the detention or non-disclosure of the fate or whereabouts of a detained person are key elements of the offence of "disappearance." Courts in Chile and Argentina have recently ruled that the continuing nature of "disappearances" mean that these acts survive amnesties which bar the prosecution of crimes committed before certain dates. In addition, because "disappearances" have been held to constitute a potential form of mental torture as regards the loved ones of the "disappeared" person, "disappearances" can trigger application of the "prosecute or extradite" provisions of the U.N. Convention against Torture. The magistrate examining the extradition case against General Pinochet thus ruled that, although the House of Lords had limited the charges to torture and conspiracy to commit torture committed after December 1988, Spanish prosecutors could seek to show that Pinochet's intention in making his opponents "disappear" before 1988, and concealing their whereabouts thereafter, was to inflict continuing mental torture on their relatives.

Immunity

The question of state immunity will almost certainly arise in any prosecution of state-sponsored human rights crimes. The accused may invoke immunity as a current or public official, a diplomat, or a current or former head of state. Any immunity belongs to the state, however, and not the accused, so the state can waive it, and should be pressed to do so.

A current head of state or an accredited diplomat on official mission will almost certainly be held immune from arrest in a foreign country (although this is not the case before an international tribunal such as those for the Former Yugoslavia and Rwanda and the future ICC). This immunity is based on the person's status (immunity rationae personae) and not the category of acts. Thus in November 1998, requests by European groups for the prosecution of Laurent Kabila, president of the Democratic Republic of Congo, were rejected in France and Belgium on his visits there.

Public officials, as such, do not have immunity under international law, however. Indeed, the Convention against Torture, for instance, makes the participation of a state official or another person acting in an official capacity an element of the crime of torture.

The situation of a former head of state is more complex. Under customary international law, a former head of state enjoys immunity for official acts committed in his function as head of state. Whether the crime at issue can be considered an official act or part of the functions of a ruler was the question considered by the House of Lords in the Pinochet case. In their first judgment, the Lords ruled that crimes such as torture and crimes against humanity were not "functions" of a head of state. (In their second judgement, the Lords ruled on the narrower basis that ratification by the U.K. and Chile of the Convention against Torture eliminated any immunity for torture.)

The Statute of the emerging International Criminal Court, following the principles laid down at Nuremberg, states that: "official capacity as a Head of State or Government, shall in no case exempt a person from criminal responsibility." Similar provisions are contained in the Statutes of the International Criminal Tribunal for Rwanda and the Former Yugoslavia (which in 1999 indicted Slobodan Milosevic, the President of the Federal Republic of Yugoslavia). This principle has not yet been applied in national courts however, although Belgium's new law on crimes against humanity and war crimes specifically rejects any state immunity.

Command Responsibility

In most cases, senior officials will not have participated personally in torture or killings. They can, of course, be prosecuted if they actually ordered the crime. In addition, under the doctrine of command responsibility, someone who had control over subordinates and knew or should have known that a crime was about to be committed and did not stop it, or did not try to prevent it or did not punish those responsible, is also criminally liable. This doctrine applies both to military authorities and civilians in a position of superior authority.

From a practical viewpoint, of course, it may be easier to prove the crime or convince a prosecutor to open an investigation if the accused is the direct perpetrator and the court does not have to conduct a complex investigation into command responsibility in a foreign country. The presence in France of two direct victim/witnesses seems to have been the determining factor in France's arrest of a Mauritanian army captain for torture in 1999.

Where a case is based on command responsibility, it will usually be necessary to have witnesses or documents to prove the accused's control over his subordinates or his knowledge of events. When these people or materials are located in a foreign country, where the prosecuting state cannot compel their production, the case will be more difficult to build.

Who can initiate a prosecution?

This will vary from country to country. In certain countries, mainly those of the Anglo-American common law tradition, only a public prosecutor can initiate a criminal investigation, and the prosecutor has ample discretion in deciding whether or not to prosecute . Victims must therefore convince the prosecutor to bring the case and, as already noted, a local official may not be interested in pursuing crimes committed far away from home. In some civil law countries, the principle of "legality" dictates that any crime that comes to the knowledge of the prosecutor must be investigated.

In contrast, in many French-inspired civil law countries the victim has the right to file a complaint directly before an investigating judge (juge d'instruction, juez instructor), who must open an investigation. In some cases the victim or relative becomes a party in the criminal proceedings (partie civile) and may receive compensatory damages from the court. In the Senegalese prosecution of Hissein Habre, seven Chadian victims, the French widow of a Chadian victim, and a Chadian victims' association brought the criminal complaint as parties civiles. The Spanish case against Pinochet was filed using the acción popular, or popular action, a procedural device that permits Spanish citizens to file private criminal actions in certain situations of public interest, regardless of whether they have suffered an injury.

Recently, some Latin American countries, such as Guatemala and Costa Rica, have allowed victims to act as "adjunct prosecutors" (querellante adjunto), formulating charges, appealing decisions, and providing evidence. For certain crimes, NGOs and associations have been recognized as "adjunct prosecutors" if they have a direct interest in the case, most notably when human rights crimes are concerned.

Which other alleged perpetrators now live abroad?

Former leaders accused of crimes against humanity, and now living in foreign countries, include:

Idi Amin is being sheltered by Saudi Arabia. During his autocratic rule of Uganda from 1971 to 1979, Amin expelled the entire ethnic Asian population from Uganda. Amin's regime was responsible for the murders of an estimated 100,000 to 300,000 people. When asked

about the possibility of Amin's extradition or prosecution, a Saudi ambassador explained to Human Rights Watch that Bedouin hospitality meant that once someone was welcomed as a guest in your tent, you did not turn him out.

The second reign of Milton Obote as President of Uganda (1980-1985) is thought to have even exceeded the brutality of the Amin era. Estimates of civilians killed by Obote's forces in the Luwero triangle around the capital, Kampala, range from 100,000 to 300,000. Prisoners in military custody were systematically tortured. After he was deposed in a May 1985 military coup, he fled and now lives unmolested in Zambia.

Mengistu Haile Miriam is living in Zimbabwe, which has refused Ethiopia's extradition request to stand trial for crimes committed between 1974 and 1991. During this period, tens of thousands of political opponents were killed, in particular during the "Red Terror"

campaign of 1977-1978. Hundreds of thousands of government opponents, including members of the Oromo ethnic group, former Imperial Government officials, student marxists, and peaceful critics were arbitrarily imprisoned. Torture of political prisoners was systematic and widespread. When Mengistu went to South Africa in November-December 1999 for medical treatment, the government failed to act on calls from human rights activists that he be arrested and did not acknowledge an extradition request from Ethiopia until Mengistu had returned to Zimbabwe. (Human Rights Watch did not support his extradition to Ethiopia because of concerns that Mengistu might not receive a fair trial there and that he would face the death penalty.)

Generals Raoul Cedrás and Philippe Biamby led a bloody coup against the constitutionally elected President of Haiti, Jean-Bertrand Aristide in 1991. During their dictatorship, thousands were killed, tortured and raped. When President Aristide was restored, the two were flown to Panama, where they were granted asylum. Panama has refused Haiti's extradition request, even though Panama ratified the Torture Convention in 1987 and has laws allowing for the prosecution of torture committed abroad. Generals Cedrás and Biamby were indicted in 1999 by a Haitian judge for their participation in an April 1994 massacre in the slum of Raboteau, in which army forces killed about 20 people. Rejecting a request by Human Rights Watch that the pair be prosecuted or extradited, the Panamanian foreign ministry stated in November 1999 that "it would be a dangerous precedent to grant the right of asylum to resolve a political problem in a neighboring country and later deny the rights of those given asylum."

 

Emmanuel "Toto" Constant, the leader of Haiti's "FRAPH" death squad who now lives in New York, is wanted by Haitian prosecutors to face charges of murder, torture and arson carried out during Cedrás' de facto rule. Constant has admitted to receiving regular payments and encouragement from the CIA while he built his terror network. When Aristide was restored to power, Constant was ordered to appear in court, but he fled to the United States where he was arrested in March 1995. U.S. Secretary of State Warren Christopher, calling FRAPH "an illegitimate paramilitary organization whose members were responsible for numerous human rights violations in Haiti," asked for his immediate deportation to Haiti. Constant was instead released from custody pursuant to a secret agreement between the U.S. government and Constant - revealed by the Baltimore Sun - which would allow the death squad leader to "self-deport" at any time to a third country of his choice, effectively allowing him to escape justice in Haiti, which has sought his extradition.

Alfredo Stroessner of Paraguay now lives in Brazil. The Stroessner dictatorship (1954 to 1989) used widespread torture against political opponents. Stroessner was also an ally of General Pinochet in "Operation Condor," a multinational network of police and military operations throughout Argentina, Brazil, Chile, Paraguay and Uruguay who routinely practiced torture, disappearances and murders while carrying out a "dirty war" against suspected leftists in the region.

Jean-Claude "Baby Doc" Duvalier, Haiti's "president for life" (1971 - 1986), is living in France. The Duvalier dictatorship is accused of thousands of political killings and arbitrary detentions. In September 1999, four Haitian torture victims filed complaints with a French prosecutor charging crimes against humanity. The prosecutor rejected the complaints, however, on the grounds that they did not fit the pre-1994 French definition of crimes against humanity which applied only to crimes committed on behalf of Axis powers during World War II, and that they could not be brought under the 1994 law on crimes against humanity which was not retroactive.

 

What are the alternatives to criminal prosecution in a foreign country:

• National Prosecution

Ideally, perpetrators should face prosecutions before courts in their own countries. Crimes are far easier to prove in the country in which they were committed--where the victims, witnesses, accomplices and evidence is located--and justice delivered locally allows victims the greatest role and may be the most meaningful to the victims. If the alleged perpetrator is already out of the country, his return can be sought through extradition.

As most massive violations of human rights have been carried out in the name of the state, however, it is unlikely that, in the absence of a sweeping political transition, the courts of that state will have the ability or the political space to carry out such prosecutions. In many cases, there will have been an amnesty intended to bar prosecution. This was the case in Chile with Pinochet, as well as in countries such as Brazil, Guatemala, El Salvador, Sierra Leone, and Uruguay.

• Civil Liability

 

The United States allows civil damage suits for human rights violations committed abroad. Under the Alien Tort Claims Act, non-U.S. victims can seek compensation and punitive damages against a person present in the U.S. for a violation of the "law of nations." The U.S. Courts have applied this Act to torture, extrajudicial killings, "disappearances," war crimes, arbitrary detention and rape, and granted significant monetary awards. The Torture Victim Protection Act allows U.S. citizens, as well as foreigners, to sue for torture or summary executions, also when the defendant is physically present in the U.S. However, because the defendants have traditionally been non-residents without assets in the U.S., few monetary awards have been executed. In a class-action civil suit for human rights violations against the estate of Ferdinand Marcos, the former dictator of the Phillippines, who had substantial assets in the U.S., victims received a large sum of money. Such suits also provide the victims with an official setting to tell their story, allow guilt to be recognized by a court of law, and prevent wrong-doers from entering or remaining in the United States.

In most civil law countries, victims can join prosecutions as civil parties (parties civiles) or initiate a civil action. In either case, they can recover compensatory damages, but not punitive damages.

• Deportation

Some countries, instead of prosecuting those responsible for atrocities, may deport them to the country of their nationality. This has been the trend in Canada, for instance.

• International Criminal Tribunals

The United Nations Security Council has created international criminal tribunals for the former Yugoslavia and Rwanda. These "ad-hoc" tribunals have jurisdiction over genocide, war crimes and crimes against humanity committed in those countries. The extraordinary political consensus required to create such tribunals has been impossible to muster, however, for other situations for which they were proposed, such as East Timor, Cambodia and the massacre of Hutu refugees in Zaire in 1996-97.

• International Criminal Court

The approval in July 1998 of the Statute for a permanent International Criminal Court (ICC) is among the most significant events in the global fight against impunity. When sixty states ratify the statute, the ICC will have jurisdiction over future cases of genocide, war crimes, and crimes against humanity when national courts are unable or unwilling to prosecute. Cases can be referred to the court by the Security Council or state parties. In addition, the ICC's prosecutor will have the power to initiate a case based on reliable information, including from victims and non-governmental organizations.

While the ICC will be a powerful tool to attack the worst atrocities, it will not eliminate the need to bring transnational prosecutions based on universal jurisdiction. First, the ICC will be prospective only - addressing crimes committed after its statute goes into effect. Second, the ICC will only be able to handle a limited number of cases. Finally, the ICC suffers from a jurisdictional regime which requires that, in the absence of a Security Council referral, either the state on whose territory the crimes were committed or the state of nationality of the accused be a party to the statute or consent to jurisdiction. As the state of territory and nationality will often in practice be one and the same state, and that state may well not be a state party, many future atrocities may be outside of the court's reach.