When, after his 16-month arrest, General Augusto Pinochet was sent back from London to his native Chile, Geoffrey Robertson, a constitutional lawyer, was asked whether it was likely that the general would spend any time behind bars. "No ... but a fate worse than prison awaits him. He will spend the rest of his days surrounded by lawyers" - which is exactly what happened.
The Spanish judge who hounded, humiliated and ultimately humbled Pinochet was Baltasar Garzón. He now has the torture enablers of the Bush administration in his cross hairs. The development comes with the confluence of three forces.
First, humans have a powerful sense of justice for the satisfaction of which they are prepared to pay a cost if need be. Where wrong has been seen to be done and the decent opinion of mankind has been outraged, punishment is demanded. Second, in a deeply globalised world, with an internationalised human conscience, justice too has a global domain. Citizens expect and demand accountability for overseas and domestic acts of criminality, and foreigners demand it for criminal acts committed within domestic jurisdictions. And third, where wrong has been done to fellow-citizens, and institutions and regimes in whose jurisdictions the crime was committed are unwilling or unable to bring the perpetrators to justice, people want their own governments to reach on to the world stage to inflict punishment and exact justice.
President George W. Bush tapped into these sentiments in the immediate aftermath of 9/11 when he promised that whether the murderers came to justice or justice came to them, justice would be done. How fitting then that those who exploited the post-9/11 fear to take him down the wrong turn to violate fundamental American precepts and international laws against torture now have cause to fear international justice.
Judge Garzón is gearing for a criminal investigation of the Bush lawyers who constructed the legal scaffolding for Army and CIA interrogators to engage in torture. The principals involved - Alberto Gonzales, Douglas Feith, David S. Addington, Jay S. Bybee, William J. Haynes, John C. Yoo - should not take this lightly.
Every day, the evidence that is released of what happened in the so-called "black sites," under the legal umbrella provided by the legal memos of the Justice Department Office of Legal Counsel, is more disturbing. Waterboarding, beatings and locking up in coffin-like boxes seem to have been established practices - all of these aided by medical personnel.
When Judge Garzón, by now a legendary figure in the Spanish-speaking world and the subject of an acclaimed documentary film ( El Caso Pinochet by Patricio Guzmán), started the criminal proceedings against Pinochet in the mid-1990s on the basis of a complaint filed by a human rights NGO, he was widely derided as a latter-day Don Quixote taking on a general 10,000 km away, with no jurisdiction over problematic cases that, if at all, fell under the purview of the Chilean judiciary.
Yet, slowly but surely, he kept building up his case. In a remarkable case of deploying the law to bring about both criminal and, in the deepest sense of the word, political justice, the lawyer behind that case was Joan Garces who, 25 years earlier, as a freshly minted political scientist, had been Salvador Allende's political advisor and speechwriter, and got to know Pinochet in the days when the latter put on his mask as a strict constitutionalist and ardent supporter of Allende.
When Pinochet, after leaving his position as Army Chief, and taking up the one as appointed Senator he had engineered in his own 1980 Constitution, was imprudent enough to travel to London in October 1998, shortly after the 25th anniversary of the military coup that he led to topple President Salvador Allende, under the false impression that a diplomatic passport and his friendship with Margaret Thatcher would provide him with immunity in a country he much admired, Mr. Garzon pounced.
Contrary to what is sometimes argued because he was ultimately not convicted of any crime, that arrest marked the end of the Pinochet legend and the halo that had surrounded him until then, as the dictator who had opened up the Chilean economy and brought modernity to his country. Upon his return to Chile, the Supreme Court lifted his parliamentary immunity and he had to face hundreds of criminal cases. In 2003, the government appointed a Commission on Political Imprisonment and Torture to investigate the human rights violations that had not fallen under the mandate of Chile's Truth and Reconciliation Commission in the early 1990s. A few years later, a U.S. Senate investigation on the financing of terrorist activities uncovered hundreds of bank accounts of his at the Riggs Bank, leading to further prosecutions. By the time he died a few years ago, his reputation was in tatters.
In a vivid proof of the "snowball effect" these legal precedents have internationally, the Peruvian courts recently took this one step further. After extraditing him from Chile, where he had sought refuge, they convicted and sentenced the former dictator Alberto Fujimori (known popularly as "Chinochet") to 25 years in prison for the human rights violations committed during his two-term presidency, mainly for excesses in the repression against the Maoist Shining Path guerrilla movement. This group was a bad lot but the Peruvian courts decided that even the imperatives of the struggle against such a cruel terrorist movement did not justify state actions leading to torture and illegal killings.
Why should a Spanish judge take on a Chilean dictator, and now a bunch of U.S. lawyers?
Universal jurisdiction
The answer is "universal jurisdiction:" the legal capacity to bring to justice human rights violators anywhere in the world, and one of the most encouraging trends in international human rights law. Although as a rule criminal jurisdiction is determined by the crime's location rather than by the nationality of the victim, in today's globalised world strict territorial jurisdiction is less clear-cut. Pinochet was the first former head of state arrested for crimes committed at home, followed shortly by the indictment of Slobodan Milosevic: the first sitting head of state, and that too in the midst of war. The recent international order for arrest of Sudanese President Omar al-Bashir, issued by the International Criminal Court (ICC), has made world headlines.
The United States, which did not ratify the Rome Treaty that established the ICC in 1998 - it has by now been ratified by 105 countries, a majority of the United Nations members - has not exactly been in the forefront of this trend (having gone to the extreme of actually unsigning this treaty). Yet, it has not been totally estranged from it either. In October 2008, a Miami court convicted Liberian strongman Charles Taylor of torture crimes committed in Liberia, a decision praised by the then U.S. Attorney-General, Michael B. Mukasey.
Spain's 1985 law allows for universal jurisdiction in crimes against humanity if there is a Spanish connection. In the case of Spanish citizens living in Chile who travelled to Argentina, were kidnapped there, and sent back to Chile to be tortured and killed, the question who prosecutes the culprits did not have an obvious answer - until Judge Garzón stepped in.
What about Spanish citizens or residents of Spain kidnapped somewhere around the world, forcibly taken to Guantanamo and tortured there? Given Guantanamo's legal limbo (which is precisely why the detention camps were set up there in the first place), the answer is not obvious either.
Practices such as waterboarding, beatings and placement in coffin-like boxes, described in detail in a leaked ICRC report about the treatment of detainees in U.S. custody, could constitute war crimes and/or violate the 1984 Convention Against Torture, to which the U.S. is party.
In arguing against a truth commission to investigate torture practices under Mr. Bush, Senator Arlen Specter said, "This is not Latin America." Well, in some ways it is. "Enhanced interrogation techniques" were originally exported by U.S. specialists to Latin American military regimes, including Pinochet's, in the 1960s-70s to help fight the enemy of the day - communism. They were then applied at home to fight the new enemy of choice, terrorism.
There are some 50 former senior aides to Pinochet, both military and civilian, who have been advised not to travel abroad if they want to avoid being arrested. They have not dared to leave Chile for 10 years now. If Judge Garzón were to go ahead with his criminal investigation of the former Bush administration lawyers, it is unlikely these defendants would be extradited to Spain. But it would probably be advisable for them not to leave the U.S.
Jorge Heine is Professor of Global Governance at the Balsillie School of International Affairs, whose founding Director is Ramesh Thakur. They are both Distinguished Fellows at The Centre for International Governance Innovation (CIGI) in Waterloo, Ontario.