THE LAW AND POLITICS OF THE PINOCHET CASE
[T]his sovereign authority which is a State’s own right, does not at present have an absolute character, not even in the internal order, due to the international atmosphere reigning in the world. When super-states and international organizations appeared, the field of action of the State’s power became more and more limited, due to agreements and treaties that are subscribed in the international arena. Multiple obligations and restrictions that nations contracted with each other and with international organizations, have left them virtually without sovereign liberty. 1 Augusto Pinochet Ugarte
I. INTRODUCTION On a Friday evening in October 1998, General Augusto Pinochet, the eighty-two year old former general and dictator of Chile, was arrested in London by the Metropolitan Police at the request of a Spanish magistrate. Thus began a saga with profound implications for the substance, enforcement, and public perception of international law. The Pinochet case2 involved—and will have a significant impact Copyright © 2000 by Michael Byers. * Associate Professor, Duke University School of Law; formerly a Fellow of Jesus College, Oxford and an adviser to the coalition of human rights organizations (Amnesty International, Medical Foundation for the Care of Victims of Torture, Redress Trust, Association of the Families of Disappeared Prisoners) that intervened before the House of Lords in the Pinochet case. Some of the information in this essay is drawn from my own recollections, and is therefore unsupported by citations. I am grateful to the participants in a workshop on “Persuasion and Norms in International Relations,” held at Duke University on January 21 and 22, 2000, for their insightful comments. 1. AUGUSTO PINOCHET UGARTE, INTRODUCTION TO GEOPOLITICS 147 (1968). At the time the book was published, Pinochet was teaching at Chile’s Army War Academy. This passage was drawn to my attention by James Silver, J.D., M.A, Duke University, 2001. 2. For the purposes of this Essay, “Pinochet case” will be used to refer to the whole sequence of the political, diplomatic, and legal proceedings. This Essay also discusses the Pinochet case in relation to its individual proceedings in the British courts: Augusto Pinochet Ugarte,
DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW
upon—a number of legal areas, including international criminal law, human rights, state immunity, jurisdiction, extradition, and the relationship between international law and domestic legal systems.3 The case cannot be fully understood solely from a legal perspective. A variety of non-legal factors shaped both the proceedings and the outcome: domestic politics; international diplomacy; the arms trade; the individual personalities, backgrounds, and self-perceived roles of judges and politicians; the activities of non-governmental organizations, transnational corporations, and the growth of transnational networks between judicial authorities from different countries; and the media and international public opinion. Given the array of legal issues and non-legal factors involved, the Pinochet case provides an excellent window into the complicated relationship between international law and politics.4 This Essay seeks to take advantage of this opportunity, explaining how the existence of legal rules and institutions shaped the options available to judges and politicians involved in this case, and ultimately constrained their behavior. II. PINOCHET IN CONTEXT Pinochet was accused by Spanish magistrate Baltasar Garzon of having, in the decades following his 1973 violent overthrow of the democratically elected government of President Salvador Allende, authorized (or at least knowingly permitted) the torture, disappear 38 I.L.M. 68 (Q.B. Div’l Ct. 1998) (referred to as “Divisional Court” in the text); R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet...