According to news reports, General Augusto Pinochet
has been indicted in Chile on kidnapping charges
arising out of the disappearance of 19 political
opponents in the first months of his rule in Chile,
which began in 1973. In August 2000, the Chilean
Supreme Court had removed his immunity from prosecution
under Chilean law.
Because of Pinochet's ill health, the kidnapping
charges against him may never come to trial.
If they do come to trial, they will most likely
be heard under Chilean law and procedure in a Chilean
court, rather than under international law in an
international tribunal. Nevertheless, the
American Convention on Human Rights and the International
Covenant on Civil and Political Rights, treaties
to which Chile is a party, set standards for fair
trials to which Chile is bound as a matter of international
law. The standards include such things as
the right to be presumed innocent until proven guilty,
the right to prepare and present a defense personally
or by counsel, the right to cross-examine witnesses
and not to be compelled to testify against himself.
Pinochet returned to Chile from the United Kingdom
in March of this year, when British authorities
found that he was too frail to be extradited to
Spain for trial on charges of crimes against humanity.
The British House of Lords had held that he was
subject to such extradition for some of the alleged
crimes committed during his rule in Chile.
As a matter of related interest, the Statute of
the International Criminal Court (ICC) contains
provisions on crimes against humanity that might
be relevant to Pinochet's case, should the Statute
enter into force. The ICC Statute applies
to conduct of the sort charged against Pinochet
if the state on whose territory the conduct occurred,
or the state of the accused's nationality, is a
party to the Statute or accepts the Court's jurisdiction
over the crime. The Statute provides that
"enforced disappearance of persons" is a crime against
humanity "when committed as part of a widespread
or systematic attack directed against any civilian
population, with knowledge of the attack."
High government officials would not be immune from
prosecution. Human rights groups have alleged
that Pinochet ordered or approved the "disappearances"
of political opponents on a broad scale during his
regime in Chile.
The Statute of the International Criminal Court
requires 60 ratifications before it enters into
force. As of November 29, 2000, 23 countries
had ratified it. Chile has signed it, but
has not yet ratified it.
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.
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