The Case of Pinochet

What Does Pinochet Mean for International Law?

The Creation of a Communitarian System of International Law


International law is about the creation of rules of the road for interaction between nations in order to promote peace and common interests.
International law's historical weakness of international law is that international law has always manifested itself as a horizontal system lacking effective enforcement mechanisms to enforce legal norms.

There is no legislature to create international law.

There is no police force to enforce it.

Thus, its rules are uncertain and obedience is voluntary.

The arrest of Pinochet signals that a more communitarian view of international law is taking form.  The idealist school of international law derived from Immanuel Kant appears to be gaining upon the realist school of thought.

The Communitarian view sees international law as working towards certain world goals that incorporate and transcend each state's own interests.

This is a sui generis order of international law:

  • It establishes a system with multiple levels of sovereignty;
  • It makes more complex the view of international relations espoused by Thomas Hobbes that the State is the ultimate conveyor of sovereignty;
  •                           But though there never had been any time, wherein particular men were in a condition
                                of war one against another; yet in all times, kings, and persons of sovereign authority,
                                because of their independency, are in continual jealousies, and in the state and posture
                                of gladiators; having their weapons pointing, their eyes fixed upon the frontiers of their
                                Kingdoms; and continual spies upon their neighbours; which is a posture of war.
    Thomas Hobbes, Leviathan
  • There is a push away from international law as a traditional zero-sum game between horizontal actors and a push towards a more sophisticated world legal order in which bad actors such as Pinochet can be held accountable for egregious acts committed within their own country's borders.
  • Professor Martha Minow of Harvard Law School ( speaks to the importance of Pinochet in this context:

                            In the long struggle to develop human rights, a crucial obstacle has
                            been the widely-held assumption that whatever happens inside of
                            one country is not the concern of any other country.  Although
                            Pinochet is still far from an actual prosecution much less a sentence,
                            the British decision to consider Spain's claim for extradition represents
                            a genuine step toward overcoming that obstacle.  Whatever ultimately
                            happens, the initial conclusion that Pinochet could not assert immunity
                            by dint of his official status bears two vital consequences.  Pinochet
                            himself will never again enjoy invulnerability or even the status and
                            power he has enjoyed.  And anyone else in an analogous position will
                            have to worry about their own vulnerability to the demands of
                            accountability if not within their own nation, then elsewhere in the world.

    The chief concerns of international law then move beyond the traditional concerns of international law of internal security and keeping other nations at bay.  Instead, international law can begin to be seen as creating as a positive sum game, in which States can be bound by an international system, and human rights as espoused in the Universal Declaration of Human Rights can be enforced.
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    International law has begun to set up a higher level of norms, in the category of Obligations Erga Omnes.  Obligations Erga Omnes are accepted and recognized by the international community as a whole as norms from which a State or person cannot derogate.

    All States can enforce them as the harm is one suffered by all, the entire community as a whole.

    The enforcement of crimes against humanity and prohibitions against genocide and torture rise to the level of Obligations Erga Omnes.

    The crimes committed by Pinochet constitute "crimes against humanity" and demand international attention and action.  The scale, number and seriousness of human rights violations which were committed under the September 1973 and March 1990 military government, together with their systematic nature, constitute crimes against humanity under international law.
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    Any state may exercise universal jurisdiction over crimes against humanity

    Crimes against humanity recognized by international law include the practice of systematic or widespread killings, torture, forced disappearances, and arbitrary detention. A number of these crimes against humanity have been the subject of international conventions and are recognized by international customary law.  These crimes against humanity are subject to universal jurisdiction. This principle has been established since the International Military Tribunal of Nüremberg and its Judgment. The principles articulated in the Judgment were recognized as international law principles by the United Nations General Assembly in 1946 (Resolution 95 (I)). Crimes against humanity and the norms which regulate them form part of jus cogens (fundamental norms) and as such are peremptory norms of general international law which as recognized in the Vienna Convention of the Law of Treaties (1969) cannot be modified or revoked by treaty or national law.

    Indeed, as the International Court of Justice recognized in Barcelona, Traction, Light and Power Company Ltd. Judgment (ICJ, 1972 Report, page 32) the prohibition in international law of the acts alleged in this case is an obligation erga omnes which all states have a legal interest in ensuring is maintained.  Therefore, all states are under an inescapable obligation to prosecute and punish crimes against humanity and to cooperate in the detection, arrest and punishment of persons implicated in these crimes.

    States have an obligation to pursue judicial investigations against those responsible for crimes against humanity regardless of where or when such crimes were committed, this is an international law principle recognized similarly by the United Nations Principles of international co-operation in the detection, arrest extradition and punishment of persons guilty of war crimes and crimes against humanity, adopted by the General Assembly in Resolution 3074 (XXVIII) of 3 December 1973.

    The rules regulating crimes against humanity - no immunity under international law

    Those responsible for crimes against humanity cannot invoke immunity or special privileges as a means of avoiding legal proceedings a principle established within the Statute of Nüremberg International Military Tribunal (Article 7). The Judgment of the Nüremberg Tribunal went further by ruling that the international law principles which protect State representatives in some cases are not applicable in acts which constitute crimes under international law. The Nüremberg Tribunal ruled that any person regardless of governmental hierarchy who has contributed to a crime against humanity is criminally liable. The United Nations General Assembly reaffirmed the principles articulated in the Nüremberg Charter and Judgment in its Resolution 95 (I) of 11 December 1946. This fundamental rule of law has also been reaffirmed by the International Law Commission in Principle III of the Principles of Law Recognized in the Charter of the Nüremberg Tribunal and the Judgment of the Tribunal (1950), in Article 6 of the Charter of the International Military Tribunal for the Far East in 1946, Article 7 (2) of the 1993 Statutes of the International Tribunal for the former Yugoslavia and Article 6 (2) of the 1994 Statute of the International Criminal Tribunal for Rwanda and Article 7 of the United Nations Draft Code of Crimes against the Peace and Security of Mankind adopted in 1996, as well as in Article 27 of the Statute for the International Criminal Court, adopted in Rome on 17 July 1998.

    The UN International Law Commission has stated:

                    As further recognized by the Nürnberg Tribunal in its judgment, the author of crime under
                    international law cannot invoke his official position to escape punishment in appropriate
                    proceedings. The absence of any procedural immunity with respect to prosecution or punishment
                    in appropriate judicial proceedings is an essential corollary of the absence of any substantive
                    immunity or defence.

                                                                                                 Report of the International Law Commission
                                                                                                 on the work of its forty-eighth session

    6 May - 26 July 1996, UN Doc. A/51/10, Page 41

    Whether or not crimes against humanity have been codified in the internal laws of a state does not exempt a state from conducting judicial investigations into crimes against humanity since these are already codified under international law. The UN International Covenant on Civil and Political Rights (Article 15.(2)) and the Council of Europe's Convention for the Protection of Human Rights and Fundamental Freedoms (Article 7.(2)) establish that a person accused of committing crimes against humanity can be prosecuted according to the principles established and recognized by international law. Failure to codify international law on crimes against humanity within the internal law statutes of a state does not excuse a state which fails to pursue judicial investigations. The UN International Law Commission reaffirmed the principles established by the Nüremberg Tribunal by which “international law may impose duties on individuals directly without any interposition of internal law”(Report of the International Law Commission on the work of its forty-eighth session, 6 May - 26 July 1996, UN Document A/51/10, Page 16).

    Crimes against humanity are unaffected by statutes of limitation as recognized in the Convention on Imprescriptibility of Crimes of War and Against Humanity, adopted by the General Assembly of the United Nations, Resolution 2391 (XXII) of 1968, and in the Council of Europe's treaty: Non-applicability of Statutory Limitations to Crimes against Humanity and War Crimes, E.T.S. No.82, adopted on 25 January 1974. This fundamental rule of law was reaffirmed in Article 29 of the Statute of the International Criminal Court.

    Furthermore, those responsible for crimes against humanity cannot benefit from asylum or refuge in another country. (UN General Assembly Resolution 30/74(XXVIII) 1973, Convention relating to the Status of Refugees (Article 1.f) and UN Declaration on territorial Asylum (Article 1.2)).

    The Nüremberg Tribunal recognized the principle that: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”, (Nazi Conspiracy and Aggression: Opinion and Judgment, U.S.A. Government Printing Office, 1947, Page 223 ).

    These principles were acknowledged by the United Kingdom as a party to the Nüremberg Charter which set up the Tribunal, on which United Kingdom judges then served.


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