Individual Accountability for Crimes against Humanity: Reckoning with the Past, Thinking of the Future

The recent decisions of the House of Lords in the Pinochet case ¹ revived interest in the issue of individual responsibility for crimes of international law. ² The wide array of issues and highly sensitive political elements underlying the case prompted a variety of comments and reactions, in which the legal dimension has been either used instrumentally to foster conflicting political goals or confined to technical discussion within specialized legal circles. In fact, the extradition request by Spain to obtain the surrender of General Augusto Pinochet, head of state of Chile from 1973 to 1990, and the ensuing judicial proceedings in the United Kingdom should be a cause, not only for international lawyers but also for the public at large, to give appropriate consideration to the issue of whether individuals, including top political leaders, may be held accountable for crimes against humanity, and if so, under what circumstances.

Although legal proceedings in the United Kingdom are still under way at the time of writing, the Pinochet case illustrates how to reckon with the past, while thinking of the future. The emergence of crimes against humanity as a distinct category of norms as well as the principle of individual responsibility have taken firm root in the international community, and their implementation is crucial for shaping any future international public order based on the rule of law and respect for fundamental human rights. The recent establishment of ad hoc international tribunals and the prospective International Criminal Court (ICC) cannot by themselves ensure the effective prosecution of individual crimes of international law. The jurisdiction of these tribunals is limited to particular situations in specific countries (Yugoslavia and Rwanda), and the effectiveness of the latter will depend on how many states ratify its statute. This is why domestic courts should effectively complement, when the circumstances so warrant, the action of international tribunals in enforcing international criminal law.

Yet many hurdles exist that need be overcome in order to allow domestic courts to enforce individual responsibility. Some relate to the way in which international law is incorporated into domestic law, some others originate from such doctrines as foreign sovereign immunity and act of state. The aim of this paper is to show that individuals may be held accountable for crimes against humanity before international and domestic courts and that many of the above-mentioned obstacles can be removed simply by interpreting correctly the normative standards of contemporary international law.

After a cursory account of the legal proceedings against General Pinochet in the United Kingdom, section two will examine the emergence of the notion of individual accountability under international law in an historical perspective. The role of international and national tribunals in the prosecution of individual crimes of international law will be evaluated in sections three and four respectively. Section five is taken up with the analysis of the two legal doctrines which can considerably restrain the action of domestic courts in enforcing international criminal law: foreign sovereign immunity and act of state. Finally, in section six, with a view to setting the agenda for the future consolidation of international criminal law, some fundamental policy goals, which should guide the legal and political action of the international community in the years to come, will be highlighted.

The Pinochet Case

General Pinochet entered the United Kingdom in September 1997. Just before his return to Chile, after undergoing surgery in London, he was arrested on the basis of two provisional arrest warrants issued by UK magistrates, at the request of Spanish courts, ³ pursuant to the European Convention on Extradition. ⁴ General Pinochet’s counsels immediately moved to have the two arrest warrants quashed by the High Court. On October 28, the Divisional Court of the Queen’s Bench Division ruled ⁵ that the first arrest warrant was invalid and the crimes for which extradition had been requested by Spain were not extradition crimes under the UK Extradition Act. ⁶ With regard to the second arrest warrant, the Lord Chief Justice held, interpreting the relevant provisions of the UK State Immunity Act, that General Pinochet...