Document Type

Article

Comments

Augusto Pinochet and International Law, 46 McGill Law Journal 241 (2000)

Abstract

This article explores the interplay between historicized law and normative standards of human rights law by considering how the House of Lords dealt with the question of General Pinochet's immunity. By selecting a normative account of state power, the law lords aligned themselves with evolving standards of humanitarian law, articulated in, for example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the law of war, and the Geneva Conventions, and the recent intervention in Kosovo. Although appealing, the normative position is far from unassailable, from both principled and pragmatic angles. The author questions, for example, whether a foreign court can support universal jurisdiction and limitations of official acts of immunity based on normative customary international law, or whether this requires ex ante treaty assent by the state where the offence took place and by the state of the offender's nationality. How to avoid destabilizing new democratic regimes is another problem that attends the use of national courts to try extraterritorial crimes under universal jurisdiction. Legal and diplomatic questions such as this may be responsible for the hedged position the British government finally adopted in the case against Pinochet. Such questions also lend uncertainty to more recent cases, where governments have tried to enforce normative international law to apprehend a foreign state official for crimes against humanity. Despite the dangers of universal jurisdiction, however, the author concludes that the ambiguity of the Pinochet decision permits a nuanced application of its principles.

Date of Authorship for this Version

2000

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