INTERNATIONAL HERALD TRIBUNE Paris, Friday, December 4, 1998

The Pinochet Case: Think About the

Future, Too

By Flora Lewis

PARIS - In emotional terms, there would indeed be

satisfaction in seeing Augusto Pinochet brought to answer

to a court of law for the murders and torture committed by

his regime in Chile. The simple principle that evil must be

judged seems strong and clear.

But in this case there are also strong contradictory

arguments which cannot be ignored. That is what makes the

issue so interesting and controversial.

Essentially, it is a matter of whether to focus on the past, on

what did happen, or on the future, on the consequences in

terms of both law and politics if an acknowledged precedent

is set with the extradition of General Pinochet from Britain

and his trial in Spain.

It is noticeable, in this connection, how reluctant are all the

governments involved, with the exception perhaps of Chile,

to take a stand. That is no accident. The political

implications and responsibilities are painful.

So, the British government insists that this is a purely legal

matter and, to the extent that there is a political

responsibility, it belongs exclusively to Home Secretary

Jack Straw, who is in charge of law enforcement and will

not be given cabinet advice. Spanish Prime Minister José

María Aznar, commenting on a Spanish prosecutor's request

for extradition, said he would be delighted if the case would

go away and never come to Spain.

Although a French prosecutor has also filed for extradition

from Britain, the Paris government quietly compliments

itself that it had the foresight to refuse a visa to General

Pinochet, with the result that it does not have to face the

question of what to do with him.

U.S. Secretary of State Madeleine Albright has said that

Chile's right to deal with its own past deserves ''significant

respect.''

Extradition may be an issue of law but it often has harsh

political undertones. An example, although in a somewhat

different case, is Germany's refusal to ask for extradition of

the Kurdish rebel Abdullah Ocalan, wanted for crimes

committed in Germany, for fear of a violent reaction by the

large Kurdish community in Germany.

(Mr. Ocalan is under arrest in Italy, after being helped to

flee from Moscow by an Italian Communist official. Turkey

considers him a terrorist, not a political leader, and seeks

extradition, but Italian law forbids delivering a prisoner to a

country where he would face the death penalty.)

The Pinochet case is an important innovation, without

precedent so far, because it is based on the argument that

crimes against humanity can be pro-secuted anywhere, at

any time. Just when the United Nations is about to celebrate

the 50th anniversary of the Universal Declaration of Human

Rights, this is an important assertion that responsibility for

crimes against humanity is also universal.

There is a gradually evolving affirmation of the concept of

international law, still fuzzy in many areas and without any

established procedures or powers for enforcement. This

concept is appealing, if applied judiciously, but the idea

that any judge anywhere can get himself up to try anybody

he considers an egregious criminal is appalling.

When the new International Criminal Tribunal is set up,

under the treaty signed in Rome last summer, presumably it

will have superior claim to jurisdiction. But it is exactly its

lack of clarity on how prosecutions will be decided that

flaws the treaty. That is why the United States did not sign.

The treaty needs better wording, and Washington should

sign when it is adequately improved.

But meanwhile, the question is whether to stress the wish to

deal with past atrocities or to consider how future crises will

be affected.

The proponents of the case to try General Pinochet in Spain

argue that it will create a deterrent for other dictators. That

is not impossible. Much more likely, though, is that such a

precedent will prevent the kind of compromises which

enable the end of civil conflict and the transition to

democratic regimes where neither side is really defeated.

When there has to be a choice, and that does happen, peace

must have priority over punishment.

Principles of justice are important, but to claim one's

principle as the only one to serve human needs, regardless

of circumstances, is to be as dogmatic as the criminals who

claim that they are saving their country, or the world.

There are times when the easy answer that makes you feel

good is not likely to be wise. The idea of making General

Pinochet pay, for all its righteousness, is not worth

derailing and distorting the growing consensus that crimes

against humanity must be prevented.