Possible Indictment of Pinochet in the United States

Frederic L. Kirgis
March 13, 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).