Reeves, Teresa Young

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Digital Commons @ American University Washington College of Law

33center newsThe Pinochet Precedent: Legal Obstacles and New Approaches to Prosecuting Crimes Against Humanityby Teresa Young Reeves*On March 26, 2001, the Washington College of Law (WCL)and the Institute for Policy Studies (IPS) co-sponsored aconference at WCL entitled “The Pinochet Precedent:Individual Accountability for International Crimes.” The con-ference addressed various legal obstacles encountered in thestruggle to bring former Chilean dictator General AugustoPinochet to justice, and to suggest new approaches for lawyers andhuman rights defenders in ongoing and future proceedingsagainst individuals accused of violations of international criminallaw. Among the conference participants were WCL Dean and Cen-ter for Human Rights and Humanitarian Law Co-Director ClaudioGrossman, and WCL Professors and Center Co-Directors RichardJ. Wilson, Robert Goldman, and Diane Orentlicher. WCL Pro-fessor Michael Tigar also participated, along with 15 other lawyersand human rights defenders who traveled from across the UnitedStates and from as far as Senegal and Argentina.The introductory panel discussion outlined the historical andpolitical events leading up to the 1973 coup in Chile and subse-quent legal proceedings against Pinochet. Juan E. Garcés, the lead-ing attorney in the Spanish case against Pinochet, opened thepanel with a chilling personal account of the coup, a day on whichlate Chilean President Salvador Allende asked Garcés to takerefuge in an embassy because “someone needed to live to tell thehistory of that day.” U.S. attorney Samuel Buffone spoke next. In1976 he and Professor Michael Tigar brought a successful civil suitagainst the Chilean government for the deaths of Orlando Lete-lier, former ambassador to the United States and Defense Min-ister under President Allende, and Ronni Moffitt, a U.S. citizenand development assistant at IPS. In describing the Letelier-Moffittcase as an “uphill battle,” Mr. Buffone explained that 25 years ago,the prevalent belief was that Pinochet was beyond the reach ofthe law because, as a former head of state, he had sovereignimmunity for acts committed during his regime. At that time, theconcept of universal jurisdiction—the legal principle by which anycountry can prosecute certain international crimes, regardless ofthe nationality of the parties or the locus of the crime—was nei-ther sufficiently developed nor commonly understood. In the wakeof Spain’s request to extradite Pinochet from Britain for inter-national law violations committed during his dictatorship, theimport of universal jurisdiction has gained increased recognition.The second panel discussed lessons learned from other uni-versal jurisdiction cases, including the recent case against HissèneHabré, the former dictator of Chad. Human Rights Watch Advo-cacy Director Reed Brody opened the panel analogizing a humanrights cliché—“[i]f you kill one person, you go to jail; if you kill20, you go to an insane asylum; but if you kill 20,000 people, youget invited to a peace conference”—to the Habré case. Habré, whofled to Senegal after losing power, allegedly murdered an esti-mated 40,000 Chadians and tortured an estimated 200,000 peo-ple. Plaintiffs represented by Mr. Brody and Pascale Kambale, whoalso participated in the conference, brought charges againstHabré in March 2001. The Senegalese Cour de Cassation has dis-missed the case for lack of jurisdiction. Mr. Kambale commented on why the Habré case ultimatelyfailed. First, Mr. Kambale blamed the lawyers’ inability to persuadethe court of public opinion that Habré had in fact committed theatrocious crimes alleged. Second, he cautioned that Africa needsto train its human rights lawyers to become more pro-active inbringing alleged human rights violators to justice, rather thanwaiting for national governments to bring suits. Third, Mr.Dr. Kelly Dawn Askin, Acting ExecutiveDirector of the War Crimes Research Officeof the Washington College of Law’s (WCL)Center for Human Rights and HumanitarianLaw (Center), was a Distinguished Speakerat Georgetown University Law Center inMarch. She spoke on “Contemporary Devel-opments in Prosecuting Gender BasedCrimes in International Law.” Also in March,she was interviewed on National PublicRadio’s “Diane Rehm Show” on “War CrimesAgainst Women,” and gave interviews con-cerning recent judgments rendered by theInternational Criminal Tribunal for the for-mer Yugoslavia to the New York Times, theBBC, and the Associated Press. She alsowrote an editorial for Newsday, entitled“Rape’s Black Day in Court.” In April, Dr.Askin’s article on the Kunarac case was pub-lished by the Institute for War and PeaceReporting. Two other articles, entitled“Precedent in the International CriminalTribunals” and “Recent Developments inProsecuting Sexual Violence in InternationalLaw,” were published by the Crimes of Warproject. Also in April, Dr. Askin chaired apanel entitled “International Trials for Inter-nal Armed Conflicts and InternationalCrimes Committed Domestically” at theAmerican Society of International Law(ASIL) Annual Meeting in Washington, D.C.Claudio Grossman, Dean, Co-Director ofthe Center, and President of the Inter-American Commission on Human Rights(IACHR), spoke on the freedom of the pressat the Inter-American Press Association Meet-ing in Fortaleza, Brazil, and lectured at theopening of a course for ombudsmen in CostaRica in March 2001, where he shared thepodium with Costa Rican President MiguelAngel Rodríguez. He participated in theIACHR’s in loco visit to Chile in April. Also inApril, he presented at a seminar entitled“Truth Commissions and New Challenges inPromoting Human Rights” at Diego PortalesUniversity in Chile; spoke on fundamentalhuman rights and the Free Trade Agreementof the Americas at a conference in Quebec,Canada, entitled “Inter-American Coopera-tion: Beyond Free Trade;” and representedthe IACHR at the 2001 Summit of the Amer-icas, also in Quebec. In May, Dean Grossmanwill moderate a panel on the death penalty inthe United States, marking the 25th anniver-sary of the Gregg v. Georgia decision.Robert Goldman, Professor of Law andCo-Director of the Center, attended the mostrecent regular session of the IACHR inWashington, D.C. He was re-elected to theExecutive Council of the Inter-AmericanInstitute of Human Rights, headquartered inSan Jose, Costa Rica. On March 30, 2001, hespoke at a conference in Chicago organizedby Northwestern University on the relevanceof the Inter-American human rights systemfor Canada, Mexico, and the United States.On April 2, 2001, he traveled to Chile toparticipate in a special session of the IACHR.Diane F. Orentlicher, Professor of Lawand Co-Director of the Center, spoke onMarch 1, 2001, as a Distinguished Visitor atIndiana University’s School of Law on“Nuremberg Reconfigured: The Pinochetcenter FACULTY/staff NEWScontinued on back pagecontinued on page 3636regardless of race or color, and ensuring the equal protectionof that right. Moreover, the right to vote, and its equal protec-tion, are not merely local and federal guarantees. Indeed, theyare international human rights guaranteed to citizens of democ-racies throughout the world.International Human Rights Implications Although the Florida plaintiffs raise their complaints of dis-enfranchisement under domestic law, their allegations alsorelate to rights protected by international legal instruments. Arti-cle 25 of the ICCPR, for example, which the United States rat-ified in 1992, preserves the right of all citizens to vote. Article2(1) of the ICCPR prohibits, inter alia, distinctions betweencitizens on the basis of race or color. The General Commentsto Article 25 (General Comments) further define the elementsof the right to vote. The General Comments maintain thatStates Parties must take “effective measures” to protect the abil-ity of all persons to exercise the right to vote on equal grounds.The sanctioning of voting mechanisms of disparate quality,however, prevented all voters from equally exercising theirright to vote. Furthermore, the General Comments explainthat where registration of voters is required, “obstacles to suchregistration should not be imposed.” In Florida, however, vot-ing officials wrongfully purged registered voters from officialvoter lists and failed to remedy such errors in time to permitwrongfully disqualified voters to cast their ballots.The General Comments to Article 25 also requires that anyelectoral system operating in a state “must be compatible withthe rights protected by” this article, including the equal rightto vote. They further explain that the method of allocatingvotes “should not distort the distribution of voters or discrimi-nate against any group” and “should not restrict unreasonably”the right of citizens to vote. Florida, however, used differing vot-ing procedures that impeded the right of all citizens to vote andto have their votes counted on equal grounds. In addition,Florida used voting mechanisms of varying quality in racially dis-tinct communities that produced such distortion and discrim-ination. By disproportionately disqualifying votes legitimately castby African-Americans, the inconsistent use of punch-card bal-lot machines plainly discriminated against black voters. The voting procedures that characterized the 2000 presi-dential election effectively denied equal protection of the rightto vote, as protected by U.S. domestic law and the ICCPR.Although U.S. courts have held that the ICCPR is not self-executing and thus does not create a private right of action,scholars argue the U.S. ratification of the ICCPR gives theCovenant domestic legal force. The Florida plaintiffs, therefore,could enhance their domestic legal argument by incorporatingArticle 25 of the ICCPR. ConclusionThe ultimate resolution of the 2000 U.S. presidential elec-tion provoked widespread discussion of the fundamental rightto equal protection. In spite of the discourse regarding standardsthat should have been implemented to determine which voteswould be counted, a thorough application of the right to equalprotection was ignored. The failure of officials to meet theobligation to determine which votes were valid disproportion-ately affected African-American and low-income minoritypopulations. Moreover, the legislated use of disparate votingmechanisms in African-American communities, proven to gen-erate substantially unequal rates of error, caused these com-munities to be statistically more prone to having their legitimatevote disqualified. In the most distressing circumstances, blackvoters were further encumbered by the negligence of electionofficials, who failed to properly oversee the purge of disquali-fied voters from official lists, or to confirm the legitimacy of anysuch disqualification. In many instances, this negligence wascompounded by the disproportionate absence in predomi-nantly black precincts of adequate technology to remedy errorsat the polls. In providing unequal protection, the state gov-ernment violated the local and federal civil rights of its con-stituents. *Erin Chlopak is a J.D. candidate at the Washington College ofLaw and a publication editor for the Human Rights Brief.Voting, continued from previous pageKambale explained that the international community must workto bridge the division between international and domestic humanrights law. According to Mr. Kambale, many francophone Africancountries devalue the utility of international law, believing itcomparable to diplomatic law and, therefore, inapplicable toordinary citizens.The two remaining panels discussed U.S. accountability mech-anisms for violations of international law and the future role ofad hoc criminal tribunals and the recently established Interna-tional Criminal Court. Shawn Roberts, an international humanrights lawyer and Legal Director for the Center for Justice &Accountability in San Francisco, California, outlined variousstrategies that may be used in the United States to protect victimsof torture, summary execution, forced disappearances, crimesagainst humanity, and war crimes. Besides extradition for pros-ecution and deportation, Ms. Roberts suggested U.S. lawyerspursue civil remedies under the Alien Tort Claims Act or underthe Torture Victim Protection Act. Although conference participants made it clear the legal com-munity has made dramatic advances in overcoming the obstaclesfirst presented by the Letelier-Moffitt case 25 years ago, the commontheme invoked at the conference was that impunity for grosshuman rights violations continues today. WCL Professor DianeOrentlicher, currently on leave as a visiting scholar at PrincetonUniversity’s Program in Law and Public Affairs, reminded the audi-ence that forcing accountability by ending impunity for grosshuman rights violations in part relies on the will of the people andthe will of the political process to persuade governments torespect and ensure human rights. *Teresa Young Reeves is a J.D. candidate at the Washington Collegeof Law and a staff writer for the Human Rights Brief.Center News, continued from page 33

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