THE EXTRADITION QUESTION

December 2, 1998
		The arrest of former Chilean leader General Augusto Pinochet in London six weeks ago has raised numerous legal questions regarding the prosecution of former heads of state. Following a background report, Phil Ponce and guests discuss the legal issues surrounding Pinochet's arrest.

Dec. 2, 1998: A background report on the Pinochet case. Oct. 12, 1998: Former Chilean President Augusto Pinochet is arrested in London. May 26, 1998: A look at Chile's free market economic system. April 17, 1998: Chile's struggle to renew itself. Feb. 26, 1997: A look at Chile's newfound democracy and economic growth Browse the NewsHour's coverage of Latin America.     Spotlight on Chile The British House of Lords Pinochet Decision from Human Rights Watch	PHIL PONCE: For more on what the Pinochet case means we're joined by Diane Orentlicher, Professor of Law at American University's Washington College of Law and director of its war crimes research office; Anne-Marie Slaughter, Professor of International Law at Harvard Law School and co-director of the Center for Civil, Criminal, and Administrative Justice; Jeremy Rabkin, Professor of Government at Cornell University and author of the forthcoming book, Why Sovereignty Matters; and Alfred Rubin, distinguished Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University and a former attorney with the Defense Department. Welcome all. Professor Orentlicher, your reaction to the ruling that General Pinochet has no immunity.
	Diplomatic immunity?
	DIANE F. ORENTLICHER, American University: Well, I think it was the right ruling, and if I could explain why, the court was really presented with a very narrow question, which is whether General Pinochet's acts, as charged by Spanish courts, should be considered acts protected under the doctrine that we don't – courts of one country don't examine the acts of another sovereign in the exercise of sovereign power. So the courts have to decide was this an exercise of public authority entitled to respect by another country's courts. Now, once you're presented with that question, you have two alternatives. You can either say torture, disappearances, alleged genocide aren't legitimate exercises of public authority entitled to the respect of other countries, or they're not. I think once you understand that that was the issue presented, there's really no way they should have come out, other than the way they did. PHIL PONCE: Professor Rabkin, is that what it comes down to, a question of the kinds of acts that a former dictator is accused of being responsible for or charged with? JEREMY RABKIN, Cornell University: No. I think that's not right. First of all, I want to take issue with the title of the statement – Justice for Dictators. There's no way this can be confined to dictators. None of the relevant international standards make that distinction between dictators and democracies. Chile, itself, is a democracy now. Chile doesn't want to proceed, and Britain is saying or at least is saying it's all right for Spain to pursue a case, but Chile doesn't want to pursue. Once you let that principle loose in the world it will quickly be applied to Israel; it will probably be applied to the United States. The definitions of torture, the definitions of war crimes are so loose and elastic they can be applied to any country that finds itself in civil strife. I am not defending things that General Pinochet did. Some of the things he did were terrible. But there are people in Russia, there are people in China, there are people in South Africa, who have done many worse things on a much larger scale. People aren't saying let's reach into those countries, grab some of them, and put them on trial. I think this is the equivalent of assassinating of a foreign leader. PHIL PONCE: Professor. JEREMY RABKIN: Yes. We've had a lot of nastiness in the world, and people have really refrained from that because they say it's a dangerous thing to let loose.
	Debating jurisdiction.
	PHIL PONCE: Professor Slaughter, is this the equivalent of assassinating a former leader? ANNE-MARIE SLAUGHTER, Harvard University: No. Jeremy Rabkin's notion that there's no distinction in international law between states that violate human rights and states that don't, and democracies, and non-democracies just flies in the face of the evolution of human rights law since 1945 and certainly since 1945 and certainly since 1989. This - the law has evolved in such a way precisely as to tell states that they have obligations to their own citizens, that they have responsibilities, as well as rights, and that means that states that obey human rights, that have a rule of law and, indeed, that maintain democratic elections, are increasingly treated differently than states that don't. PHIL PONCE: So are you saying that in the examples that Professor Rabkin gave - Israel and the United States - because of their "democratic traditions," they would be, what, exempt from this kind of a possibility? ANNE-MARIE SLAUGHTER: Well, I don't think we can say that they would be exempt. But I do think there are lots of safeguards that mean that to equate an Israeli leader or a US leader with Gen. Pinochet is really a bogeyman that is often trotted out but there's very little support. It's - if anything - we have problems getting prosecution, so the United States went around the world last year trying to find a country that was willing to try Pol Pot and there were no takers. This has been an incredible case but a rare one in which a country was willing to exercise jurisdiction over General Pinochet, and there are far more obstacles against prosecution and safeguards one court looking at another court's jurisdiction, all of the back and forth between not only Britain and Spain, but the British political and judicial authorities that would almost certainly protect most of the leaders in the world, other than recognize war criminals. PHIL PONCE: Thank you. Professor Rubin, does the - does this action against General Pinochet open the door to other world leaders? ALFRED P. RUBIN, Tufts University: Well, I think it's a pretty horrible action. One forgets that the British court split three to two on this, was a narrow decision based upon British law. It was not a major international law holding, despite the sayings of some of the judges there. They exaggerated their position. And forgets that Judge Garzon in Spain is not an international law judge; he's a Spanish judge put in position by the Spanish constitutional system, applying only the Spanish version of international law to the acts of Pinochet. Now, there's nothing to prevent the Iranians from applying the Iranian version of international law to General Schwarzkopf. I guess Iraq would do that or to a Salman Rushdie, and we long ago decided that international law really does not justify criminal charges against individuals. It may involve diplomatic correspondence about states that don't forbid torture within their territory, but to say that it applies directly to individuals and that there's an international criminal law, somehow, they can be applied by states is such a tremendous far reach, and I was very pleased that the British courts, except for one or two judges that mistook international law, really did not resolve that issue, didn't presume to step on it. PHIL PONCE: Professor Orentlicher, how about this question? Would General Schwarzkopf under the way this ruling seems to suggest, would he have anything to be concerned about?
	Criminal conduct.
	DIANE F. ORENTLICHER: Well, can I first say I just have to disagree with the statement that international law doesn't criminalize conduct; it rarely criminalizes conduct; but it has certainly been the case since Nuremberg that international law makes some conduct in international crime, and that means, among other things, that any state which has jurisdiction over the criminal can prosecute him. Now, as Anne-Marie Slaughter indicated, it is very rare, indeed, that countries have been willing to exercise that kind of jurisdiction. Israel was willing to do in the case of Adolf Eifman, but it's certainly the case that certain conduct is criminal. Having said that, very few atrocities are considered international crimes for all the reasons various guests have suggested. We don't want havoc in international relations; we don't want countries judging political action of other countries. And so international law makes it possible to exercise this type of jurisdiction -- only over a handful of the most serious crimes. So, should we worry about how far this goes? Of course we should worry about it. But I think that the arguments that have been made are like saying if it's possible to get custody over a serial killer, we shouldn't prosecute him because somewhere there might be a renegade prosecutor who might prosecute the wrong person on trumped up charges of serial killing, and that obviously doesn't make sense. PHIL PONCE: Professor Rabkin, following up on the point of the clarity of what acts do or do not fall in – is it that clear – what acts are bad enough to warrant this kind of action? JEREMY RABKIN: No. It absolutely is not clear. First of all, there is disagreement even in the Pinochet case, what is he being charged with. The Spanish have said genocide. The British courts didn't seem to think that was right. Then there was a subsequent argument, well, it was torture, and there's some dispute over that. Really, maybe it was terrorism. If you go look at the international conventions that define these things, they're defined in extremely broad general terms – torture, which seemed to be the one that British judges in the House of Lords focused on – it's actions which caused severe mental or physical pain. I think when General Schwarzkopf orders a bombing, that causes a lot of severe pain. And I want to go back to the previous point, which, with all respect, I think Professor Orentlicher is not giving really an honest answer or a reliable answer. She says the international community knows the difference between democracies and dictatorships. He absolutely does not. All these human rights conventions that you're talking about were negotiated with the Soviet Union; they've been signed by other dictatorships. They very carefully avoid making distinctions between dictatorships and democracies. So I think absolutely this is available to be used against the United States or Israel; there are not a lot of safeguards, because we are now – what we're precisely talking about is a country on its own says this is my – this is our unique national interpretation. If Algeria manages to get hold of Henry Kissinger or Schwarzkopf or Ariel Sharon, what is to stop Algeria from going forward to the prosecution? The answer until last week was this is never done, it's never done. It has never been done. The answer now is maybe the United States would be upset and then we have to ask what would we do about it and maybe the answer is we would bomb them, but I sort of doubt that, so we've let loose on a thing which is I think quite threatening. PHIL PONCE: Professor Slaughter, quite threatening, or is it possible that a new area of international law is developing where a country can go after a former enemy in a foreign court?
	New area of international law?
	ANNE-MARIE SLAUGHTER: Well, there's no question that in many ways this was a landmark decision but I agree with Jeremy Rabkin that these issues are actually quite complicated and indeed, although the Law Lords decided that Pinochet was not immune, that was simply the first step. Now the question is going to be to decide can he be extradited and that is indeed a question of back and forth between British and Spanish courts, but that's precisely the kinds of safeguards that would prevent any traveling leader from being roped into some third country and then being extradited. If this process is allowed to go forward by the British home secretary, it will take months of very careful legal argumentation. And I have to disagree with Al Rubin, that this is an international law. Those five opinions of the Law Lords carefully canvas international treaties, international conventions, the writings of international legal scholars, the statutes of the Bosnia tribunal, the Rwanda tribunal, the Nuremberg principles. What they then did was very carefully decide the ways in which that law limited – actually was integrated into national law. But national courts will decide that differently and very carefully aware of the political implications. In this case, in the end, Pinochet's counsel had to admit that the logic of immunity would have immunized Adolf Hitler. And at that point three of those Law Lords said that's going too far. PHIL PONCE: Professor Rubin, would this logic have immunized Adolf Hitler? ALFRED RUBIN: I think it would, and I think it's right to do so. If Hitler had been given a visa to visit Great Britain to charge him criminally with things over which British law has nothing to do, it would have been rather extreme. I don't want to defend Pinochet. He might well be a villain, but one has to bear in mind that he has not yet been tried. The issue is not at this moment whether he's a villain or not; it's who should try him for his alleged villainies. He might well be a horrible person, but can he defend himself here? Can he call on the cabinet minutes to show that, for example, if it's possible, that he was threatened himself with assassination if he didn't simply perform a sign certain documents or let his name be used in public statements with which he deeply disagreed, does he have the criminal intent that he's accused of having? He might. I don't know. But he can't defend himself, and he can't defend himself in Spain.
	Protecting world leaders.
	What it comes down to really is an argument as to whether in international law there is such a thing as international criminal law that applies to individuals. Nuremberg, despite Diane Orentlicher's statement, is hardly a good example. After all, at Nuremberg itself, Admiral Nimitz, the American admiral, confessed in writing that he had done exactly what Admiral Doenitz had been convicted, or was about to be convicted for doing an unrestricted submarine warfare. Nimitz was not only not tried; he is considered a hero. The Molotov-Ribbentrop pact, in the background of Ribinchov's conviction – and it was agreed never to mention the Molotov-Ribbentrop pact because Molotov couldn't possibly be tried; he was a hero. I think the notion that international criminal law grows out of the writings of publicists and the tendentious proceedings of victors'tribunals is a gross exaggeration and is not permitted actually by the statute of the international court of justice which defines international law and says these are subsidiary sources, but you've got to look to the practice of states and the real words of the treaties – not what you – PHIL PONCE: Let me get Professor Orentlicher's response to that, Professor. DIANE F. ORENTLICHER: Again, I think that's really writing off the last 50 years of international legal development. The arguments that have just been made simply don't make sense in light of what the international community has done the last two years to respond to the serious atrocities that were committed in Bosnia and Rwanda. PHIL PONCE: So you're saying there is a body of international criminal law that is recognized and people know what the rules are? DIANE F. ORENTLICHER: -- being enforced and, in fact, the single greatest criticism that has been lodged against the Yugoslavia war crimes tribunal is that it hasn't gone far enough. There was a resolution passed in Congress – could I just finish – there was a resolution passed in Congress condemning the tribunal because it hadn't yet indicted President Milosevic, the single greatest accomplishment by all accounts of the Rwanda tribunal, is that it accepted a guilty plea of a former prime minister of Rwanda. Those were considered the greatest – that was considered the greatest accomplishment of this area of international law. To suggest that we simply cannot ever hold former heads of state accountable for the most serious atrocities simply flies in the face of where international law has been going. The problem, as you suggest, I agree with you, is that this area of law has not been adequately enforced. And I think that's a serious problem that we need to focus on. I would like to get back to one issue that was raised – PHIL PONCE: Let me get a very quick response from Professor Rabkin on this area. JEREMY RABKIN: If I could. PHIL PONCE: Yes, go ahead, Professor.
	International tribunals.
	JEREMY RABKIN: I think you're missing the point by citing these international tribunals. It's one thing if countries want to agree – come together and agree that we will have an international tribunal for these purposes. As a matter of fact, most of the world did agree last summer on an international criminal court. That would be one thing. That court didn't have jurisdiction over Pinochet. It has a number of safeguards, such as there's no retroactivity so you can't reach back 20 years. It has – it has a territorial principle, so that at least – one of the – either the victim or the perpetrator has to be from a country that signed it – PHIL PONCE: Professor Rabin, I'm really sorry – we're -- JEREMY RABKIN: That's what the world would agree to and what you're instead – PHIL PONCE: Sir, I've got to interrupt you. We're out of time. I wish we had more time, Professors all, thank you very much. JEREMY RABKIN: Sorry.