Nuremberg Comes Back to Haunt Pinochet

‘Justice delayed is justice denied.” Former British Prime Minister William E. Gladstone’s words have long been the mantra of advocates seeking justice for victims of monstrous crimes. So, it is both noteworthy and ironic that survivors of mass atrocities, from Nazi-era labor camps to Gen. Augusto Pinochet’s torture chambers, are now revising Gladstone’s phrase. However long delayed, they insist, justice shall not be denied.

Long ago, international law established the principles now being asserted through such actions as Spanish magistrate Baltasar Garzon’s effort to prosecute the former Chilean president and Holocaust survivors’ legal actions against companies that employed them as slaves. First, the Nuremberg International Military Tribunal in 1945 affirmed that international law makes individuals directly accountable for crimes against humanity: in essence, atrocities committed as part of a widespread or systematic attack against civilian populations. Second, Nuremberg established that sovereign and head-of-state immunities fall away before the court of humanity.

This last principle was at the heart of the decision last month by a judicial panel of the Law Lords, Britain’s highest court, to deny Pinochet head-of-state immunity in respect to Garzon’s charges. Though the Law Lords’ decision was vacated last week because one justice failed to disclose his ties to Amnesty International, which had been permitted to present arguments in the Pinochet case, their ruling was squarely supported by the principles established at Nuremberg and repeatedly reaffirmed in the half-century since.

The issue before the Lords was whether Pinochet was immune because the crimes charged were committed when he was head of state. The answer turned on whether those acts--state-sponsored crimes of grotesque violence--should be deemed an exercise of sovereign authority. Two justices thought they should; three thought otherwise. As one member of the majority wrote, in light of international law’s condemnation of the acts charged as crimes, it could not be maintained that “the commission of such high crimes may amount to acts performed in the exercise of the functions of a head of state.”

It is by no means certain that a new panel will follow this reasoning; the ruling now nullified was reached by a razor-thin margin. What is clear, however, is that if the new panel reaches a different conclusion, it would eviscerate established law. Worse, it would betray one of the most important lessons Nuremberg aspired to teach succeeding generations.

That lesson was memorably evoked by Sir Harley Shawcross, Britain’s chief prosecutor at Nuremberg, in his closing argument. “The charter of this tribunal,” Shawcross said, “gives warning for the future--I say, and repeat again, gives warning for the future, to dictators and tyrants masquerading as a state, that if . . . they debase the sanctity of man in their own countries, they act at their peril, for they affront the international law of mankind.”

A third principle derived from Nuremberg is that the law of humanity can be enforced by any state, no matter where the crime occurred. This marked a profound departure from prevailing doctrine: International law generally prevents national courts from prosecuting noncitizens for crimes committed in another state. But Nuremberg established an exception for atrocious crimes committed wholesale, the type of crimes for which Pinochet has been charged. Official Chilean estimates place the number of victims of extralegal killings and disappearances in the thousands. Such crimes, the law reasons, are an affront to mankind and must become the concern of all humanity. For justice will likely elude victims of mass atrocities unless bystander states take up their claims; by their nature, crimes against humanity do not occur in countries that respect the rule of law.

Nuremberg’s claims had great moral power, but the law itself seemed largely a spent force once the postwar machinery of victors’ justice was dismantled. The reasons are not hard to fathom. Governments usually lack sufficient will to enforce the basic code of humanity against other states and their officials. For one thing, a state’s attempt to bring foreign officials to account cannot help but destabilize diplomatic relations. Governments also fear the precedent could one day be invoked against their own officials, which helps explain why Washington has declined to express support for the proceedings against Pinochet.

Yet, somehow, despite this, Pinochet was arrested by the British at the request of a Spanish magistrate. Whatever the final result, Pinochet has learned there are limits to the impunity in which he clothed himself: He has already been denied personal freedom for two months and remains under Spanish indictment.

In light of states’ long-standing reticence to enforce the law derived from Nuremberg, how did the case against Pinochet get this far?

In fact, the Law Lords’ ruling is part of a larger trend emerging in the past few years: the beginning of the end of impunity. Pinochet is not the first former head of state to face the prospect of legal reckoning. In September, the international tribunal in Tanzania sentenced former Rwandan Prime Minister Jean Kambanda to life imprisonment for genocide. Two months earlier, 120 governments voted in Rome to establish a permanent international criminal court, or ICC, with jurisdiction over serious war crimes, genocide and other crimes against humanity. (The United States joined six nations in opposing the court, including Iraq and Libya.)

Like all major historical shifts, this trend results from a confluence of factors. Among them, the world’s failure to repress “ethnic cleansing” in Bosnia and genocide in Rwanda engendered at least enough shame to prompt the U.N. Security Council to create criminal tribunals for the former Yugoslavia and Rwanda. Another impetus came from the advancing age of survivors of Nazi crimes; if the unsettled accounts of the Holocaust were ever to be closed, the time had come.

Further, in recent decades, as one after another repressive regime has given way to a nascent democracy, societies emerging from dictatorship have learned that abuses of the past exert a powerful claim on national conscience if not adequately addressed. Thus, Pinochet’s defenders miss a crucial point when they argue that his prosecution will destabilize Chile’s transition to democracy. In the view of those who survived his regime’s depredations, it is Chile’s incomplete reckoning with Pinochet’s crimes that has stalled its democratic transition.

Above all, survivors of atrocities, together with emerging communities of conscience, have become a political force. Today, they provide a counterpoint to the power politics that have long operated in the service of impunity.

Human-rights advocates were a major engine in the movement to establish the ICC, just as they had provided crucial backing for the Yugoslavia and Rwanda tribunals. While Garzon is widely credited (or blamed) for investigating Pinochet, it was private parties representing the former president’s victims who triggered Garzon’s investigation. Under Spanish law, private parties can initiate criminal inquiries.

France’s prosecution of Vichy collaborator Paul Touvier began in much the same way. Four years ago, Touvier was sentenced to life imprisonment on charges of crimes against humanity for his participation in the 1944 killing of seven Jewish prisoners near Lyon, France; the case had begun more than 20 years earlier when Georges Glaeser filed a complaint with an investigating magistrate charging Touvier with the death of his father. In the United States, civil actions against foreign officials accused of violating human-rights law have dispelled defendants’ confidence in their own impunity.

These cases have breathed new life into Nuremberg law and transformed its legacy: While Nuremberg brought victors’ justice, the contemporary law of humanity more nearly represents victims’ justice.*