How do we bring tyrants to justice?

General Augusto Pinochet, 91, the former Chilean dictator whose government murdered and tortured thousands during his repressive 17-year rule, died on December 10, 2006 at a Santiago military hospital of complications from a heart attack. His death resulted in incomplete numerous court cases that had sought to bring him to justice. According to a government report that included testimony from more than 30,000 people, Pinochet’s government killed at least 3,197 people and tortured about 29,000.

While that tyrant was in London England undergoing medical treatment, he was arrested in October 1998 on a warrant from Spain requesting his extradition to Spain on murder charges. Two separate investigations into human rights abuses conducted by Spanish High Court judges in Spain with respect to Pinochet’s rule in Chile implicated the former Chilean military leader. One of the investigations was specifically conducted into the extrajudicial killings of Spaniards, or the disappearance of Spaniards in Chile in the years after General Pinochet took power in 1973.The other concentrated on Argentina, but was also looking into Operation Condor, during which the secret police services which served the military dictatorships in Chile, Argentina, Brazil, Uruguay and Paraguay, exchanged information and prisoners. Pinochet, it was alleged, was one of the main organizers of the operation and his secret police reported directly to him. The charges included 94 counts of torture of Spanish citizens, who had been in Chile, the 1975 assassination of Spanish diplomat, Carmelo Soria, and one count of conspiracy to commit torture.

Pinochet had visited Britain several times during the previous years and every time human rights organizations, such as Amnesty International, had urged the authorities in London to arrest him. Amnesty said that under the terms of the United Nations Convention against Torture, any state is obliged to take into custody or take other legal measures against anyone who is alleged to have committed or been party to torture. The British authorities have always said they had no right to detain Pinochet while he was visiting in his capacity as a private Chilean citizen. Pinochet in turn always said that as a Chilean senator he had diplomatic immunity.

The Spanish authorities made their request, through Interpol, under the terms of the European Convention on the Suppression of Terrorism which requires signatories to help each other on matters relating to terrorism. Unfortunately for the Spanish authorities, whatever Pinochet had done in Chile, it couldn’t be classed as terrorism since terrorism under that convention defined terrorism as; (a) unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971; (b) a serious offence involving an attack against the life, physical integrity or liberty of internationally protected persons, including diplomatic agents; (c) an offence involving kidnapping, the taking of a hostage or serious unlawful detention; (d) an offence involving the use of a bomb, grenade, rocket, automatic firearm or letter or parcel bomb if this use endangers persons; (e) an attempt to commit any of the foregoing offences or participation as an accomplice of a person who commits or attempts to commit such an offence.

No matter how you define terrorism, it didn’t include human rights abuses; something that tyrants like Pinochet was definitely guilty of. Such crimes all came about before the creation of the The International Criminal Court (sponsored by the United Nations) which is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although it cannot currently exercise jurisdiction over the crime of aggression).The court came into existence on July 1, 2002; three years after Pinochet was arrested in London.

There was a hard-fought 16-month legal battle in the House of Lords, the highest court of the United Kingdom. The Lords, however, decided in March 1999 that Pinochet could only be prosecuted for crimes committed after 1988, the date during which the United Kingdom implemented legislation for the United Nations Convention Against Torture in the Criminal Justice Act of 1988. This invalidated most, but not all, of the charges against him. The outcome however was that extradition could proceed. There were then questions about Pinochet's allegedly fragile health. After medical tests, the United Kingdom’s Home Secretary, Jack Straw ruled in January 2000 that Pinochet should not be extradited.

Despite his release on grounds of ill-health, the unprecedented detention of Pinochet in a foreign country for crimes against humanity committed in his own country, without a warrant or request for extradition from his own country, marked a watershed in international law. Unfortunately for the various organizations who wanted Pinochet arrested and extradited to Spain to face the Spanish charges facing him, there was no legislation in the United Kingdom or any international legislation that actually made such an extradition valid and as a result of that anomaly in the legislation, Pinochet was permitted to return to Chile.

Henry Kissinger, the former US Secretary of State was visiting Paris in 2001 when the police in Paris delivered a summons to the Ritz Hotel where he was staying, instructing him to present himself at the Palais de Justice. Kissinger chose to leave Paris on May 30, 2001 after refusing to answer the questions of a French magistrate seeking information about political killings in Chile. If a person is summoned to appear at a court to answer questions and he absconds, a warrant for his apprehension can normally be issued against him. But in Kissinger’s case, a warrant for his arrest wasn't issued.

Washington reacted furiously to a request by Chilean judges for Henry Kissinger to answer questions about an American journalist killed during the 1973 coup in Chile. A Bush administration official condemned the Chilean supreme court decision to send questions to Dr Kissinger, saying the move increased unease about the proposed International Criminal Court in The Hague. The administration source said: "It is unjust and ridiculous that a distinguished servant of this country should be harassed by foreign courts in this way. The danger of the ICC is that, one day, US citizens might face arrest abroad and prosecution as a result of such politically motivated antics.”

I can appreciate to some degree the concern that the American government had at that time and even have today. For example, George W. Bush, if such legislation were to be adhered to, could be arrested and charged with complicity in war crimes. The record of the Bush administration allegedly went far beyond torture to violate more than two hundred war crimes in four categories—unprovoked aggression, misconduct on the battlefield, mistreatment of prisoners, and maladministration of Iraq. Regarding the culpability of the Bush administration for war crimes, a trial of Bush would determine whether some CIA personnel or others engaged in unlawful torture before Bush administration attorneys wrote legal memoranda justifying harsh treatment. There can be no doubt that the war on Iraq on the direct orders of George W. Bush was illegal considering the fact that his reason for the attack was that Iraq had weapons of mass destruction when in act, it did not. These accusations would justify his arrest by the International Criminal Court under the terms of the United Nations Convention Against Torture in the Criminal Justice Act of 1988 and for war crimes as defined by the International Criminal Court.

What are the chances that if this ex-president was visiting another country, that he would be arrested and extradited to The Hague to face trial before the International Crimes Tribunal. I would say, nil. Why? Certainly not because the United States is not a signatory to that tribunal and as such, doesn’t recognize the authority to arrest American citizens. The Serbian dictator, Slobodan Milošević stated that he didn’t recognize the authority of the Tribunal to try him for war crimes but it did try him although he died in custody before his trial was completed.

Arresting this most undesirable ex-president would be akin to kids in kindergarten attempting to apprehend a college student whom they consider as a bully. No nation on earth would risk the fury of the Americans if they attempted to arrest Bush or any other American leader for war crimes or any other recognized international crime. I must say that this is an anomaly when you consider that the Americans had no qualms about arresting and putting on trial, and later imprisoning the Panamanian dictator, Manuel Antonio Noriega (who was born four months after my own birth) in his own country for drug smuggling, racketeering and money laundering.

The International Criminal Court came into being on 1 July 2002 — the date the Court came into force and it can only prosecute crimes committed on or after that date. The official seat of the court is in The Hague, Netherlands, but its proceedings may take place anywhere. As an example of that, accused Rwandanian defendants are being tried by that court in Rwanda. This means that if the American government was willing, it could permit the International Criminal Court to hold a trial in the United States for ex-president George W. Bush. To suggest that the United States government would be willing to do this is akin to suggesting that a fox would be willing to be tried by the hens in the coop. It isn’t going to happen because once that door is opened, a flood of arrest warrants would be issued under the auspices of the ICC and many more government officials such as Henry Kissinger (who many complain was complicit in war crimes) would be put on trial. Kissinger has numerous detractors, who are highly critical of his role in many foreign policy decisions during his time as US Secretary of State. In particular he is considered the architect, along with Richard Nixon, of a secret massive bombing campaign in Cambodia and Laos beginning in 1970. The destruction of Cambodia by this secret bombing campaign was a contributing factor in the Cambodian Civil War and the coming to power of the genocidal Khmer Rouge regime in 1975.

In 2001, a Belgian court declared it had jurisdiction to try then-Israeli prime minister Ariel Sharon. In 2004 then-Israeli defense minister Shaul Mofaz was granted immunity from international arrest by one British court, while another deferred a request to arrest another former prime minister, Ehud Barak.

The question that is on everyone’s mind is; at what point can persons accused of war crimes be arrested and tried by the International Criminal Court? The ICC can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council. The court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states. To date, the court has opened investigations into nine countries: what was then Yugoslavia, Northern Uganda, the Democratic Republic of the Congo, the Central African Republic, Rwanda, East Timor, Cambodia, Sierra Leone and Darfur.

As I said earlier, no such tribunal will be instigated in the United States and it doesn’t appear that any American will (at least for the present) be subjected to a trial by the International Criminal Court in the United States or anywhere else for that matter. I believe that Lt. William Calley, the man responsible for the mass murder conducted by his unit of the U.S. Army on March 16, 1968 of 347 to 504 unarmed citizens in South Vietnam, all of who were civilians of which a majority of whom were women, children, and elderly people, will never be brought to trial by that court. The Americans simply don’t want that horrible event and smear against the Americans to be rehashed again.

I have a great respect for the Americans but I would be remiss if I didn’t state most empathically that their refusal to recognize the International Criminal Court as the appropriate tribunal to try criminals accused of genocide and other war crimes, brings nothing but contempt against them as a nation by a great many people worldwide who believe that justice should always prevail over a nation’s other interests.

Sooner or later, a judicial authority in some other country will arrest an American or a politician of some other country visiting another country for a policy someone alleges to be a war crime. There’s nothing to stop them. What will be interesting is what will the United States or another country do if that happens? Suppose for example, Spain arrests an American politician for a crime committed under his authority against Spaniards in another country. Will the United States send in the marines to rescue the politician? I doubt it. Of course, there is always the threat of trade embargos that will soften up a nation’s resolve to fight against the United States demand that the politician be returned to the United States.

In order for the International Criminal Court to work effectively, it must be accepted worldwide. Unfortunately, that isn’t going to happen anytime soon.

To prevent the mistakes made by some countries in the past when they tried to have other countries arrest suspected war criminals for war crimes, the complaining nation should bring their complaint directly to the International Criminal Court for investigation and if that court is satisfied that the suspected war criminal may very well be guilty of such crimes, that court can issue a warrant for his arrest, a warrant that then should be honoured by the country in which the war criminal is in.

Canada (like other nations) has a law of its own that permits the Canadian authorities to arrest and try anyone who is in Canada and is suspected of being complicit in a war crime that took place in another country. Canada cannot extradite such a person from another country unless the person to whom the extradition applies is a Canadian citizen or at least, a resident of Canada.

As I said earlier, the Americans tried the former Panamanian dictator, Manuel Antonio Noriega for crimes committed in Panama by invading Panama for that purpose. I wish I could say that they invaded Iraq for the purpose of arresting and trying the Iraqi dictator, Sadam for his acts of inhumanity and war crimes but that wasn’t George W. Bush’s motive. In fact, he even told Sadam that he could leave Iraq and flee to another country. As I have said it before and I will say it again. It appears that the United States believes that certain International rules of law do not apply to Americans. That is unfortunate, especially when you consider that Americans per se believe in the rule of justice.

The true principle of humanity is justice which in itself, is the great overriding policy of any civil society. Certainly where indifference to just laws begin; justice ends. The rules of justice is what binds all human society and should be treated as the highest denominator in any rule of law. Any nation that ignores international justice is morally wrong. It is so indispensable to the moral fabric of Mankind that to ignore it, reduces the wellbeing of peace-loving nations who believe that justice is available to all and everyone, be they powerful or weak. We are all subservient to it.