Paris, Monday, November 30, 1998

The Pinochet Case Turns the World

in a New Direction

By William Pfaff International Herald Tribune/ Los

Angeles Times Syndicate.

PARIS - The great significance of the Pinochet decision is

that the majority of Britain's Law Lords affirmed universal

jurisdiction over crimes against humanity. They implicitly

held that any national justice system is entitled to prosecute

such crimes.

In the past, since the 17th century and Thomas Hobbes,

international law was held not to be true law because there

was no one to enforce it. It was said to be merely a set of

agreements.

This inspired many worthy efforts, without real effect or

solid intellectual base, to promote the idea of a world

government to enforce world law and world peace.

Seductive as the idea was to many people, while frightening

others who feared that world government would prove a

tyranny, these efforts predictably failed.

They rested on a facile but false analogy between the world

community, with all of its diversity, conflicting perceptions

and interests, differing levels of civilization and political

culture, and the national communities in which modern

demo-cracy and modern systems of domestic law have

developed.

The United Nations exercises authority only as the agent of

the nations who are its members. The most powerful of

those members reject its authority when they wish to do so -

hence the Security Council veto. The United Nations'

accomplishments are many, but it is not a sovereignty, an

autonomous lawgiver; nor, in the absence of great-power

consensus, is it a law- enforcer.

Britain's Law Lords have now said that crimes against

humanity do not have to be defined by a world authority.

They are spontaneously recognizable. As Lord Nicholls

wrote in his decision: ''Certain types of conduct, including

torture and hostage-taking, are not acceptable conduct on

the part of anyone. This applies as much to heads of state,

or even more so, as it does to everyone else.''

Even if crimes against humanity are self-evident, and

jurisdiction can be exercised by any nation's courts, these

pro-secutions must nonetheless be expected to remain

exceptional. Despots in office are generally considered

beyond legal pro-secution because in the exercise of office

they partake of the sovereignty of the state.

That was the conclusion drawn by Britain's High Court on

Oct. 28, when it said that Augusto Pinochet could not be

arrested because he is a former head of state. Medieval

legal doctrine traditionally said there were two kings, the

king in his own person, a sinner subject to God's judgment

and human criticism, and the king as king, held to be the

agent in this world of divine right, and therefore beyond

human judgment.

The immunity of heads of state came under attack by the

Allies in the world wars, when they demanded in 1918 that

the kaiser, and then in 1945 that Hitler, Mussolini, and

General Hideki Tojo, Japan's prime minister, be tried. They

were thwarted, but they established the Nuremberg tribunal,

which held that individuals responsible for the crimes of

governments can be punished.

Since then, the Hague and Arusha war crimes tribunals

have been created, and a project for a permanent

international court for crimes against humanity was

approved by 120 nations in Rome last summer. The Law

Lords made their decision in the Pinochet case in the

context of this continuing development of international

precedent.

The outcome of all this will be mixed. Some ex-tyrants may

be prosecuted and some not, just as some political terrorists

end in prison, such as Carlos the Jackal, and some end as

heads of nations, such as Yasser Arafat, Menachem Begin

and Eamon DeValera.

There are worse men than the benighted and reactionary

General Pinochet who enjoy tranquil retirements today. His

indictment by a Spanish mag-istrate, Baltasar Garzón, is

obviously, for many Spaniards, symbolic of the trial of

General Francisco Franco that never happened - and it is

probably better that it did not.

Some think that the Pinochet case will inspire frivolous or

ideological indictments, which is possible. That fear caused

the American military to veto U.S. signature of the

humanitarian crimes tribunal treaty approved last July in

Rome.

Those in the Pentagon who fear frivolous prosecutions

would be better off supporting that tribunal, which

incorporates institutional barriers against prosecutions

without merit - including a provision which says that

international prosecution is permissible only if the accused's

own country refuses to try the case.

International law is headed in a desirable new direction.

The virtual immunity that criminal heads of state have

enjoyed until now has been an outrage to justice. The

remedies now being established bring obvious problems.

They nonetheless represent progress in the interminable

effort to civilize man.