Possible Indictment
of Pinochet in the United States
By Frederic L. Kirgis
March 2000
The United States Department of Justice has reopened
a grand jury investigation that could lead to the
indictment in this country of General Augusto Pinochet,
the former head of state of Chile, for the part he
is alleged to have played in ordering or approving
the murder of Orlando Letelier and a colleague in
Washington, D.C. in 1976. Letelier was the former
Chilean Ambassador to the United States and was a
prominent opponent of Pinochet. He and his American
colleague were killed when a bomb exploded in his
car as he entered Sheridan Circle, on Massachusetts
Avenue in Washington. The Republic of Chile was held
liable for this act in a civil proceeding in the District
of Columbia, and later paid the families of the victims
a total of more than $2.5 million (though it never
admitted liability).
If Pinochet had been a private party and had orchestrated
the murder, international law would not preclude his
indictment in this country even though his actions
were taken entirely in Chile. Because this would be
an intentional act and the effect was felt in U.S.
territory where the murder took place, international
law would permit the United States to proscribe the
conduct that produced the killing, including conduct
that orchestrated it from abroad.
Since Pinochet at the time of the murder was the
head of state of Chile, the matter becomes more complicated.
Normally a head of state is entitled to immunity from
prosecution in domestic courts anywhere outside that
state, even after he or she is no longer the head
of state. The British House of Lords, however, has
held that Pinochet is not entitled to head-of-state
immunity for complicity in a universally-condemned
human rights violation (torture in Chile, in that
case). The House of Lords limited this exception from
immunity to acts committed after the date on which
the widely-adopted convention (treaty) prohibiting
torture entered into force for the U.K., but this
limitation appears to have been required only as a
matter of British law, not by international law.
The principle of the Pinochet case in the House
of Lords appears to be that a former head of state
does not enjoy immunity for acts during his time in
office when the acts violate very widely accepted
human rights norms, at least insofar as those norms
are reflected in a widely-adopted multilateral treaty
(in that case the Convention Against Torture). There
is also a multilateral convention requiring its contracting
parties to treat the murder of an "internationally
protected person" (including a diplomat) as a crime.
Chile and the United States are parties to it, though
the United States did not become a party until a month
after the Letelier murder. More importantly, though,
the convention defines "internationally protected
persons" to include only those who hold their official
positions at the time of the offense against them.
Letelier was no longer in a diplomatic post when he
was murdered.
Nevertheless, it is arguable that an officially-orchestrated
murder rises to the same level of human rights violation
as does officially-sponsored torture, even in the
absence of an applicable treaty. The American Law
Institute's Restatement Third of Foreign Relations
Law of the United States places the two crimes
on an equal footing as international human rights
violations under customary international law, without
regard to any treaty. Thus it could be argued that
there is no immunity for a former head of state who,
while in office, could be shown to have orchestrated
the murder of a political foe such as Letelier.
Pinochet has returned to Chile. There is an extradition
treaty between Chile and the United States, dating
back to 1902. The treaty makes murder, including participation
in murder, an extraditable offense if it is "committed
within the jurisdiction of one of the contracting
parties" and if the person charged with murder "shall
seek an asylum or be found within the territories
of the other." There is a proviso stating that extradition
"shall only be done upon such evidence of criminality
as, according to the laws of the place where the fugitive
or person so charged shall be found, would justify
his or her apprehension and commitment for trial if
the crime or offense had been there committed."
Even though Pinochet was in Chile when Letelier
was assassinated, the murder itself was committed
in the United States. Moreover, it could be said that
if Pinochet orchestrated the murder, his action would
be "within the jurisdiction" of the United States
because-as noted above-international law would give
the United States jurisdiction to proscribe conduct
leading to a murder in U.S. territory even if the
person ultimately responsible for the murder is outside
the territory.
Pinochet may currently be "found within the territories"
of Chile, so the second condition quoted above from
the extradition treaty would be met.
It is arguable that the proviso would be satisfied
as well, even if Pinochet would not be committed for
trial in Chile if Letelier had been murdered there.
The proviso hinges on "such evidence of criminality"
as would be sufficient for prosecution in Chile. Thus
it appears to require only that there be sufficient
evidence, under Chilean standards, that the accused
committed the crime. Any immunity Pinochet might enjoy
under Chilean law would be a matter of defense based
not on a challenge to the evidence or to the criminality
of murder under Chilean law, but based rather on his
official position in Chile at the time of the crime.
Of course, even if Pinochet is extraditable, the
United States might not insist on extradition-for
example, if Chile were to agree to prosecute him at
home, or if Pinochet's advanced age and deteriorating
health dictate that public condemnation, rather than
extradition and prosecution, should suffice.
About the Author:
Frederic L. Kirgis is Law School Association Alumni Professor
at Washington and Lee University School of Law. He has
written a book and several articles on United Nations
law, and is a member of the Board of Editors of the American
Journal of International Law.
Further Reading:
American Law Institute, Restatement Third, Foreign
Relations Law of the United States § 702 (1987);
Convention on the Prevention and Punishment
of Crime against Internationally Protected Persons, including
Diplomatic Agents, 13 Int'l Legal Materials 43 (1974)(in
force for the United States since Oct. 20, 1976);
Extradition Treaty between Chile and the
United States, 32 Stat. 1850, 6 Bevans, Treaties and Other
International Agreements of the United States of America
1776-1949, at 543 (in force since June 26, 1902);
ASIL Insight,
The Pinochet Case and Possible Extradition to Spain (Oct.
1998);
ASIL Insight,
The Indictment in Senegal of the Former Chad Head of State
(Feb. 2000).
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