Britain’s Houses of Parliament on the Thames riverbank are iconic, but a casual visitor to a drab committee room inside 25 years ago might have been excused for missing the historical significance of the case that was unfolding there. Chile’s former president, Augusto Pinochet, had been arrested in London on the night of Oct. 16, 1998, on a warrant from a Spanish judge, Baltasar Garzón, for crimes allegedly committed in Chile decades earlier. Pinochet challenged his arrest before the British courts and the case quickly came before the Appellate Committee of the U.K. House of Lords. When the Law Lords allowed some human rights groups to intervene, I participated in the hearings as they decided Pinochet’s fate during five weeks in 1998 and 1999.
Although the small room was packed with Chilean exiles and (at least in the beginning) reporters, there was little electricity. The Law Lords in business suits sat, unelevated, before tables arranged in a semi-circle in front of the robed and wigged barristers. Around the room, cartons of legal materials were piled high on chairs and tables. Most of the audience couldn’t even see their Lordships, much less understand their endless questioning about the finer points of British statutes and international conventions.
The author, Reed Brody, outside the Pinochet hearings in the late 1990s in London, England. (Photo courtesy Reed Brody)
Yet human rights law came of age in that room, just months after the creation in Rome of the International Criminal Court (ICC). Lofty proclamations like the Nuremberg principles and the United Nations Convention against Torture were being applied in a criminal case for the first time, against a man whose sneering face symbolized ruthless dictatorship. Indeed, Pinochet’s repressive tactics 25 years earlier had set in motion the very human rights activism that would lead to those hearings.
When the House of Lords, in their first ruling (upheld months later by a second panel), held that Pinochet did not enjoy immunity from arrest and extradition to Spain despite his status as a former head of state. I described it as a “wake-up call to tyrants around the world,” but what it really proved to be was an inspiration to victims and activists, particularly in Latin America, to challenge the transitional arrangements of the 1980s and 1990s that allowed the perpetrators of atrocities to go unpunished and, often, to remain in power.
For me, personally, it was a turning point. As a human rights lawyer, I was used to being morally and legally right, but losing in court. With the Pinochet ruling, we saw that we could use “universal jurisdiction” — the principle which allows countries to prosecute the most serious crimes no matter where they were committed, and regardless of the nationality of the suspects or their victims — as a tool to bring to book those who seemed out of the reach of justice. At Human Rights Watch, where I then worked, we were soon after besieged with entreaties from the victims of other dictatorial regimes to apply the “Pinochet precedent” to their own tormentors who had fled abroad.
Political Obstacles
Together with groups like Amnesty International, we had meetings on who could be the “next Pinochet.” We knew it would not be easy. The Pinochet case would never have happened had Margaret Thatcher still been in power in the U.K., instead of Tony Blair, or had there not been such widespread support in Spain for the prosecution of a despised general, support that protected Judge Garzón each time the conservative government there tried to interfere with his arrest warrant.
Several attempts in which I was involved in the first year after the Pinochet rulings showed just how difficult it would be to use universal jurisdiction against abusive leaders:
- In August 1999, when Izzat Ibrahim al-Duri, a top aide to Iraqi President Saddam Hussein and an architect of the “Anfal” genocide against the Kurds, visited Vienna to receive medical treatment, a local city councilman filed a criminal complaint against him. Less than 48 hours later, however, the Austrian government let him leave the country.
- In November 1999, the former tyrant of Ethiopia, Mengistu Haile Mariam, who was on a wanted list at home on charges of genocide and crimes against humanity, visited South Africa to receive medical treatment. Despite petitions for his arrest, he was allowed to return to exile in Zimbabwe, where the government has sheltered him since his fall.
- When I was contacted by South Asians whom Idi Amin had expelled from Uganda, I met a Saudi ambassador in 1999 to ask about Amin’s possible extradition. The ambassador explained that “Bedouin hospitality” meant that once someone was welcomed as a guest in your tent, you could not turn him out.
- In March 2000, Ricardo Anderson Kohatsu, a Peruvian intelligence officer accused of vicious torture, was sent to testify to the Inter-American Commission on Human Rights in Washington, D.C. After NGOs presented evidence against him, U.S. law enforcement officials detained him, but Bill Clinton’s State Department intervened to free Kohatsu on questionable immunity grounds.
One important universal jurisdiction case that did advance, of course, was the prosecution of the former Chadian dictator Hissène Habré, which was brought to us by Chadian activist Delphine Djiraibe. Inspired by the Pinochet case, she asked us to pursue Habré in his Senegalese exile. “Why not in Africa?” she asked me. It would take us 17 years of twists and turns, of tenacity and perseverance, but in 2016, Habré became the first, and still the only, former head of state prosecuted and convicted under universal jurisdiction, in his case for war crimes, torture, and crimes against humanity including sexual violence. He served the rest of his life in prison until he died in 2021 while out on medical treatment. And just as the Pinochet case inspired Chadians, the Habré case inspired Gambians who are seeking to bring to justice their exiled president, Yahya Jammeh, for crimes against humanity.
U.S. Backlash
There was a backlash, however, when universal jurisdiction laws were used against still-powerful actors. Indeed, the two broadest laws were simply repealed. After cases were filed in Belgium against U.S. officials, Secretary of Defense Donald Rumsfeld came to Brussels and threatened that if the law were not repealed, the United States might support relocating NATO headquarters. Spain’s law — the one used to pursue Pinochet — didn’t last a lot longer, under similar pressure from China and Israel as well as the United States. Baltasar Garzón, the judge who had ordered Pinochet’s arrest, became a target for the United States, which pressed for his removal after he began investigating U.S. officials for mistreating Spanish nationals at Guantanamo Bay. Germany, whose aggressive use of universal jurisdiction has now led to landmark prosecutions of Syrian torturers, twice refused to move on complaints against Bush administration officials for alleged “war on terror” crimes against Muslim detainees, just as France also refused.
After the euphoria and the backlash, we entered what my NGO colleague Philip Grant calls universal jurisdiction 3.0, in which the practice, at least against “low-cost defendants,” became more routine. In 2022, there were 23 such convictions, with some 169 suspects currently being investigated abroad for alleged crimes in places like Syria, Myanmar, Liberia, Iraq, and Rwanda. These cases have been propelled in part by NGO activism, as in the Habré case, especially strategic litigation by specialized NGOs like Grant’s TRIAL International, which has generated cases in Switzerland against officials from Algeria, Belarus, Gambia, and Guatemala; Civitas Maxima, which has backed Liberian war crimes cases around the world; the Commission for International Justice and Accountability, which has collected evidence on Syrian crimes; the International Federation for Human Rights (FIDH); the European Center for Constitutional and Human Rights (ECCHR); the Clooney Foundation for Justice; and many others. (When victims and their allies get the cases before a court, gather the evidence, and have formal standing as parties, the trials are also more likely to live up to their and the public’s expectations.)
Equally important has been the creation in more than 15 European countries of specialized “war crimes units” of police officers, prosecutors, and even judges, some of which have opened “structural investigations” into country situations like Syria, and their coordination in the European Union-wide Genocide Network. The establishment of three United Nations-backed international investigative mechanisms also has built files on war crimes committed in Myanmar, in Syria, and by ISIL and fed them to national prosecutors, often acting under universal jurisdiction. Russia’s naked aggression against Ukraine, followed by a stream of brazen war crimes, has given further impetus to the development of universal jurisdiction cases and laws, including the recent U.S. expansion of its jurisdiction to prosecute war crimes.
The push for universal jurisdiction prosecutions also reflects a disappointment in the ICC’s record. In 21 years, ICC prosecutors have never sustained the atrocity conviction of any state official at any level anywhere in the world. Their biggest cases have come to naught because of faulty preparation, a failure to capture suspects, and outright sabotage by targeted officials. The only defendants the ICC has convicted of international crimes are five African rebels.
Strengthening the Tool
So, what is the future of universal jurisdiction as a true tool in fighting impunity? In my view, it depends on overcoming double standards. One step would be the creation of a Standing Independent Investigative Mechanism (SIIM), as advocated by former U.S. war crimes Ambassador Stephen Rapp and by the International Commission of Jurists, to build prosecution files for the worst country situations. If referrals to the SIIM could be made by independent experts, the mechanism could be triggered without regard to political considerations.
Another step to strengthen universal jurisdiction would be allowing victims a greater role in initiating cases, as is generally permitted under the civil law system, but which has been severely limited in the context of universal jurisdiction to allow European governments to “filter” out politically sensitive cases — the Belgium and Spain experiences are particular cases in point, but far from the only ones. A third step would be to promote universal jurisdiction cases in the global south through the same kind of cooperation provided within Europe by the Genocide Network. With the exception of the Habré case in Senegal and investigations in Argentina relating to Myanmar, Nicaragua, and Spain, almost all universal jurisdiction cases have been situated within European courts.
An exciting development is a trial now underway in Stockholm of two Swiss former executives of a Swedish oil company. In a case spurred by a devastating NGO report, they are charged with complicity in war crimes committed more than 20 years ago by the Sudanese army and allied militias in what is now South Sudan. The use of universal jurisdiction to hold corporate officials criminally accountable has the potential to shake things up.
Twenty-five years later, the “Pinochet precedent” remains an inspiration to victims and activists. The final frontier would be applying that precedent to hold accountable powerful western actors, not just ”enemies and outcasts.”