Justice in the world's light

What precedent did the arrest of former Chilean leader Augusto Pinochet set for international justice? An interview from the openDemocracy archive.

Note: this article was first published on openDemocracy on 15 June 2001. 

This decision overturned a central tradition of national sovereignty. Chile is a relatively wealthy and now stable country and enjoys a functioning democratic system. Nonetheless, international norms were imposed upon its former head of state in the regular course of the law and not by a special court. International ideals of fundamental rights were upheld against the nation state. State power was made potentially more accountable and the principles of justice were ‘globalised’. The decision was a step towards the enforcement of the principle that justice should protect all humanity against violations and abuses from whatever source.

But is this development a double-edged sword? Can it undermine democracy in societies that are just beginning to gain the rights of self-determination? Will it serve to legitimise other processes of globalisation, which seem to threaten many people and their ways of life (for example, the quasi-judicial processes through which the World Trade Organisation seeks to impose trading and commercial norms)?

These are questions which openDemocracy intends to clarify in debate, with exchanges from all sides. We start with an examination of the Pinochet case itself. A Spanish judge made the decision that there were charges to be answered on the basis of evidence prepared by the prosecuting lawyer, Juan E. Garces. In London, the British branch of Amnesty International – which had long sought to bring Pinochet to account – instructed its lawyer, Geoffrey Bindman, to assist the prosecution. In Chile, the impact of the case was monitored by the writer and journalist, Isabel Hilton, who filmed the Chilean judge investigating the cases of the disappeared.

They take us through the story.

Geoffrey Bindman – Augusto Pinochet visited London on several occasions. On two of them I tried to have him arrested. I was representing Amnesty International UK. On one occasion we went to Bow Street to ask for a warrant for Pinochet’s arrest – he was attending an arms fair in Birmingham. The magistrate was reluctant, and adjourned the case. The following day Pinochet returned to Chile.

In 1998 it was different – and I think this is enormously to your credit, Juan. You are in many ways the architect of this whole affair, thanks to the way you prepared well in advance for the moment Pinochet came to a country where you could take a legal initiative.

Juan Garces – Thank you. I opened the case against Pinochet in 1996.

openDemocracy – On behalf of Spanish citizens who were Pinochet’s victims?

JG – No. It was very important for me that I was applying the principles of international law, according to which there is no distinction in terms of nationality or ideologies with respect to fundamental crimes. I filed my original complaint in Spain on 4 July 1996, on behalf of all the victims of the genocide, terrorism and torture that had been committed by officers under the command of Pinochet.

open – Why then?

JG –The time was ripe for new things to happen. In 1995, General Contreras (who was the head of the DINA, Pinochet’s intelligence services that oversaw the programme of extermination and torture) was tried in Chile and found guilty. Why? Both due to pressure from his Chilean victims, and the agreement of the US government. It did so because it had not been allowed to forget that Orlando Letelier, who had been Allende’s Minister, and Ronni Moffitt, who was a US citizen, had been assassinated in Washington in 1976 by DINA agents.

In 1995, international action together with internal factors meant that Pinochet could not prevent his man from being sentenced. I was in Washington in July 1995 and gave a press conference at the Institute of Policy Studies there, which created the Transnational Institute, where I said that Pinochet could be put on trial. I argued that he had outlived his time. He was a man of the Cold War, whose crimes were politically covered by Cold War priorities. Now, with the end of the Cold War, his cover was gone – he was naked.

open – You filed your complaint in 1996 but you only submitted a warrant of arrest to the investigating magistrate when Pinochet came to London?

JG – Exactly. Luck came into play. ‘Luck’, in this case, was that in April 1996 the Spanish Union of Public Prosecutors decided to file a complaint with respect to the Spanish victims among the disappeared in Argentina. It went to Judge Balthasar Garzon, who opened an enquiry. This encouraged me to write my criminal complaint. You see how things evolve…

open – But your interest went back much further.

JG – I belong to the generation of the 1960s. I did a doctoral degree dissertation in the Sorbonne University, Paris, on Chile between 1966 and July 1970, and went there for the first time in 1968 to collect material.

I shared Salvador Allende’s goals of moving towards ‘a socialism in democracy, pluralism and freedom’. I became his personal advisor during the electoral campaign for the presidential election in September 1970, and I remained his personal advisor until the last day, three years later.

open – What happened on the last day?

JG – In the last month Allende was trying to find a political way out of the crisis in Chile. He decided on a referendum where the population could freely choose which path to follow. I was helping with the preparations. In fact, he scheduled an address to the nation on the morning of 11 September 1973, to announce the referendum. The date of the coup was brought forward by Pinochet to prevent the country from knowing that the president was opening the polls for self-determination in a democratic way. So I was with Allende in the palace on the last day.

open – How did you escape?

JG – The attack against the palace began around 9am, with infantry and artillery and tanks, and lasted about two hours. Then the attack stopped because planes were coming to bomb the palace and the infantry withdrew to avoid being hit by the bombs. It was at this moment that the President told me to go. It is thanks to that order that we are talking today.

Now – and here you can see how politics works – I was a Spaniard. There was a Franco dictatorship in Spain. Despite the ideological differences between a democratic socialist in Chile and the conservative dictatorship in Spain, the relationship between the two states was good and Spain refused to join the Nixon/Kissinger financial blockade against Chile. The relationship was so good, in fact, that the Spanish government sent a specially chartered plane to Santiago to pick me up and take me back to Spain.

There were just two of us in the plane, which took us back from Santiago via Majorca. I came back to Valencia to visit my family, and then went on to my university post at the Foundation Nationale des Sciences Politiques in Paris where I wrote Allende and the Chilean experience, my analysis of what had happened.

So my interest in the case has been a continuous one. In October 1998, by reading the Chilean press on the web, and from press statements by Amnesty UK, I learned that he was in London.

GB – There was no secret about it, it was well known. But there was a problem. On one occasion he was visiting London for shopping and to see his friend, Margaret Thatcher. We asked the Attorney General to prosecute.

Eventually, he referred the matter to the Metropolitan Police who were interested. They asked us for more evidence of tortures that had taken place after November 1988, when the 1984 International Convention against Torture was brought into English law.

open – Torture of English or Chileans?

GB – Torture of Chileans in Chile, which is an offence in English law as a result of the convention becoming English law. There were a number of examples, and we presented some evidence, but because of the delays, again Pinochet was able to leave.

The difficulty in Britain, not just with Pinochet but with other foreign dictators or torturers, is to get the authorities to move quickly. They don’t like doing it. They make difficulties and the people get away.

The difference between the earlier cases and the one in which Pinochet was actually arrested, was that we were not dependent on any prosecution arising out of torture or human rights offences. Working with Juan, the procedure that was initiated was the standard process of extradition, with which the police and courts are familiar. They didn’t have to spend any time thinking about it – they just did it.

This meant that it was not only international human rights law, but also extradition law, that came into play. You can argue that the time was ripe, but this was an extraordinary stroke of luck along with Amnesty’s experience at the British end.

JG – Two things. First, the importance of collecting the evidence. Without two years of previous investigation and gathering documentation, no Spanish judge would dare to order a warrant of arrest.

Second, the network of interstate judicial and police cooperation that Geoffrey mentions. The European Convention on Extradition meant you could put a case of genocide, torture and terrorism into the network of routine daily cooperation.

We did this. The Spanish public prosecutor was absolutely passive and against our case, probably following government instructions. But Spanish law gives the lawyers representing victims the power to file a motion. So we asked the judge to interrogate Pinochet as a defendant, according to the European Convention on Extradition.

GB – I was away that weekend. But the rest of the world knew. I came home on Sunday evening and my phone was crammed with messages. I accepted instructions to represent Amnesty and other human rights organisations, victims and their families.

The case came into the court very quickly as, immediately on his arrest, Pinochet’s lawyers applied to have him released on the grounds that he was immune from prosecution as a former head of state.

The case went straight to the high court on a habeas corpus application, and went before the Lord Chief Justice. The chairman of Amnesty International UK, Andy McEntee, and I went along for Amnesty – not in a formal role, but to observe. We were unhappy at the way the case was conducted by the Crown Prosecution Service lawyers. There was no focus on the human rights or international law aspects. They were technicians looking at it very much in terms of an extradition case.

The decision went in favour of Pinochet, as the Lord Chief Justice and two other judges declared he was entitled to immunity. He would have been released instantly, but the Crown Prosecution Service asked for leave to appeal to the House of Lords and this was granted.

The Lords regarded it as very urgent and announced that they would hear the appeal within a matter of days. I applied for us to become parties to the case on behalf of Amnesty and organisations such as the Medical Foundation for the Care of Victims of Torture, the Redress Trust and many others. I sent a petition on behalf of all of them.

Rather to my surprise, within half an hour I got a phone call from the clerk to the House of Lords saying that Lord Slynn had looked at my petition and said, “Yes, it’s OK”. So that was the way in which this momentous decision was made.

open – It surprised you?

GB – Yes, if he had had time to consult, it might not have happened. Lord Brown-Wilkinson said it should not have happened. It is extremely rare that any outside party is allowed to participate in a case.

JG – In Spanish law it would be impossible.

GB – Yes. Indeed, it may never happen again.

Isabel Hilton – Look at the trouble it caused!

open – What difference did your playing that part make?

GB – I don’t want to exaggerate – the result may have been the same had we not intervened. But we were able to instruct Ian Brownlie, the most eminent international lawyer in Britain, to present the international human rights law of the case. The Crown Prosecution Service also brought in international lawyers. I hope our intervention did shift the balance of the argument against Pinochet’s claim to immunity.

Case heard before the Law Lords

open – Then the Law Lords heard it twice. First, on 25 November 1998, they concluded that Pinochet could be extradited by 3 to 2. Then, when Lord Hoffmann was alleged to have a conflict of interest because he was associated with Amnesty, they heard it again – on 24 March 1999 – and decided by 6 to 1 against Pinochet.

Some say doing it twice was a demonstration of incompetence. The other view is that it showed very high standards, of the kind we could now benefit from elsewhere in British public life (one thinks of the Lord Chancellor, who appoints judges, now becoming a party fundraiser). The moment that there was even the possibility of a question mark over the independence of the Law Lords, they corrected it.

GB – I’m aware of that second argument, but I do not share it. The House of Lords went overboard and had no need to re-hear the case. It was well known that Lord Hoffmann had connections with Amnesty before the case started.

Huge resources were invested by Pinochet supporters to find every possible legal argument – and legal trick, one might say. The involvement of Lord Hoffmann with Amnesty was twofold. His wife is an employee of Amnesty. She has worked in their press office for 20 years. Also, there is a charity for the charitable aspects of Amnesty’s work.

When it was set up, the Charity Commission advised Amnesty that the people responsible for it should be completely separate from Amnesty and completely independent. For that reason, Lord Hoffmann – whose independence was absolutely impeccable – was appointed to be a director of this charity. But when the first decision went against Pinochet, his lawyers scrambled around looking for ways to challenge it. They came up with the notion that Lord Hoffmann should have mentioned that his wife worked for Amnesty.

As happens in the law, once one side presents an extremely far-fetched, remote and improbable argument, people get to work on it and it starts to grow. What began as a very long shot was taken seriously. So a new group of Law Lords assessed it. I’m sure they were influenced by a concern that they should be absolutely above suspicion.

open – But wasn’t the second ruling, though narrower, a stronger one which did take the Convention on Torture into account?

JG – No. On 5 November 1998, the Spanish criminal court decided that there was universal jurisdiction in crimes of genocide, torture and terrorism. The first House of Lords decision on 25 November concurred with this. It was followed, on 10 December, by the International Criminal Court for former Yugoslavia, which also ruled on similar lines.

So you have three rulings: in Madrid on 5 November, in London on 25 November, and in The Hague on 10 December. All were in full agreement on the basic principles. It is a real shame that in March of the following year these broad legal concepts were narrowed so much by the second House of Lords decision.

GB – I agree. The first decision of the House of Lords was a much better one because it accepted that crimes such as torture had been crimes for all time, or at least back to Nuremberg, and that they were crimes of universal application.

But the second decision said that torture outside England was only a crime in English law if it had occurred since November 1998. That seems to me completely wrong. In fact, even the Lord Chief Justice, when he said that Pinochet did have immunity, did not take the narrow view on crimes of torture before 1988.

Chilean reaction to Law Lords’ decision

open – Isabel, you were in Chile at the time.

IH – I was in Chile in late November when the House of Lords’ first decision came down, which happened to be on Pinochet’s birthday.

open – And your birthday.

IH – As it happens, yes – which is why I don’t believe in astrology. The Pinochet Foundation had organised an enormous birthday party and installed big screens, so that at the moment of his absolution with the dismissal of these absurd charges, the Leader himself could deliver an address to his supporters. Whereupon they would all cut the cake and open the champagne.

We were making a film. We had to choose whether to be with the victims or at the Pinochet Foundation. We sent a young Chilean cameraman to the Foundation and I decided that I’d rather be with a family in Paine whose son had disappeared.

We watched as Hoffmann read out his decision, which was the fifth and final vote. They asked me, “What does it mean?” I said, “Well, you’ve won this stage.” They began to cry – the whole family began to cry with relief. It was an extraordinary and unforgettable moment.

Meanwhile, back at the Pinochet Foundation, there was our young Chilean cameraman. Everyone there also watched as Hoffmann read out his decision. There was a stunned silence. Then absolute pandemonium broke out. All the old ladies, the ones who banged pots handed them by their maidservants in 1973, turned on the first enemy they could see – the press.

The whole place was in complete uproar. Our poor cameraman was beaten about the head by the ladies. The cake was overturned, the press fled for their lives, while Pinochet’s supporters wept with rage and fury. This tells you that Chile is still divided. There’s still a third who think that Pinochet was a hero.

As for the army, much was made of this. ‘One must not destabilise Chilean democracy by attempting to impose democratic principles’ – that sort of thing. It seemed to me that there was absolutely no possibility of another coup. The whole society, including the army, was sick of military rule: it belonged only to the past. All the army did was to make a rather nervous democratic government still more nervous by insisting on calling meetings on national security.

The Caravan of Death

There is another aspect to this. I’ve just been back in Chile investigating the Caravan of Death. This is now the foundation of Judge Guzman’s case there against Pinochet.

General Arellano Stark, who was a trusted lieutenant of Pinochet’s, was sent soon after the September 1973 coup on a 15-day helicopter journey, in particular to the copper mining towns in the north. Stark went to each local military command and inspected the list of prisoners. Those who Stark picked were removed from legal custody and shot, or hacked to pieces. Over 70 were eliminated like this.

Stark’s military rank, and the fact that he was acting on Pinochet’s instructions, meant that the local commanders had no choice. But several protested. They thought it a monstrous abuse. There was no ‘civil war’ – as Pinochet’s supporters claimed. The prisoners had played a role of some sort in the Allende government, such as being mine managers or party members. None had been condemned to death for any crime.

For instance, after the coup the manager of one of Chile’s most important copper mines had reported – as he was told to do – to the new authorities. He handed over the keys to the mine. He was held and was about to be released when Arellano Stark came into town and he was taken out and killed.

When I researched the Caravan of Death, this lack of resistance puzzled me. There was no civil disorder, no sabotage. In one of the key parts of the Chilean economy, nobody blew up a mine even when they had dynamite in the larder.

Allende had said, “Don’t resist. Don’t sacrifice lives to no purpose. In the end these people will be challenged.” So there had been no resistance or civil war. This is not my view. This is the view of military officers I’ve spoken to – who were there at the time.

I asked them what, then, was the purpose of this episode? One said that it was to bring the army into line. About a third of the army, he judged, may have supported the coup on a short-term basis as a national emergency, but only because they thought it would bring a swift return to democracy. Others opposed it outright because they’d taken an oath to defend the constitution.

Pinochet was planning to stay in power. He had to rid the army of people who would not support his dictatorship. Episodes like the Caravan of Death and the purge of the army that followed were designed to mould the armed forces into a force for Pinochet. This was a breach in the historic tradition of the Chilean military.

Since the restoration of civilian government, the armed forces have been trying to return to their original role. That’s why those who so thoughtfully warned against the legal actions taken by Juan, Geoffrey and others, saying that it would destabilise the elected government, did not understand Chile. It was never an unstable, coup-prone society.

Back in London

open – And back in London?

GB – In Britain, extradition is a legal process that is topped and tailed by the Home Secretary. He has to say if such proceedings can start, and then, if they are legally approved, whether in fact extradition should finally take place.

Once the magistrates had said that extradition could go ahead, after the House of Lords finally ruled against Pinochet’s claim to immunity, his lawyers claimed he was not fit to stand trial. They asked the Home Secretary to decline to implement the extradition order on medical grounds.

We said that this was a matter for the Spanish courts. He sought advice and asked the chief medical officer to select doctors to examine Pinochet. Nobody knows how that choice was made. But the team did not include a specialist in old age psychiatry, even though one of the most distinguished specialists was present in Northwood Park Hospital at the very time Pinochet was being examined there – a fact he told me himself.

The doctors were careful not to report that Pinochet was unfit to stand trial. But the Home Secretary, with the help of his legal advisors, interpreted it this way. He then refused to disclose the report either to Amnesty or to any of the governments involved.

We challenged this and won on appeal, where the Home Secretary was ordered to disclose the reports to the interested governments but not Amnesty. However, it was soon on the internet, and everybody could read it.

With access to the medical report, we submitted evidence to show it was flawed and could not lead to the conclusion that Pinochet was permanently unfit to stand trial. Nevertheless, the Home Secretary decided to release him – on legal advice which said he was obliged to give weight to the report and had to make his decision there and then, and could not leave it to the Spanish court to decide. That was incomprehensible legal advice and certainly wrong. Pinochet should have been sent to Spain.

Of course, back in Chile, he stepped off the plane in sprightly fashion, skipped across the tarmac and has been fairly coherent ever since.

“A huge weight lifted off Chile”

open – What was the feeling in Chile while he was in London?

IH – What struck me about the absence of Pinochet in Chile in 1998, was that it was like having a huge weight lifted off the country. This itself was a subject of debate – in newspapers and on radio. Everybody phoned in and talked about it. With his absence, people begin to think about their country in different ways and to expand their ideas and their conversation.

Then they started to forget about him, oddly enough. They found that they had other troubles: problems with the electricity supply, with elections. It seemed to me they had begun to assume an air of normality.

Meanwhile, there was Juan Guzman. He was the senior appeal court judge in Chile, assigned in January 1998 to supervise the cases of those who had disappeared. He had ordered cemeteries to be dug up and was interrogating people.

I met him while he was digging up the cemetery in Copiapo. He had spent his career in the Chilean legal system and was thought of as a safe pair of hands, I’m sure, by a government that was clearly nervous. He had no particular track record, certainly not on human rights, except that he had banned The Last Temptation of Christ from being shown in Chile. He is a Catholic family man whose father was a diplomat – he is not a firebrand.

When I filmed him for a documentary in Copiapo that November, he told us that his view was that Pinochet should be returned from London to Chile and that Chilean justice should be allowed to take its own course. He asserted this in terms of the dignity of the Chilean system of justice.

I asked if it was possible that Pinochet could be tried in Chile. As the Judge in charge, he replied, “Yes”. I then asked, “Are you going to do it?” Again he said, “Yes”. We all smiled wanly, and packed up and went home.

When I met him two years later, he said, “I have to confess to you that when you asked me those questions I wasn’t being entirely honest. My hope at that time was that Pinochet would stay in London and I would never have to see him again.”

Guzman is not without honour. Like many people in a dictatorship he kept his head down. He hadn’t rocked any boats, even when he’d seen things that had troubled him.

And then suddenly history had tapped him on the shoulder and said, Pinochet has come back to Chile. Was he a puppet? Was justice a farce? Or did it have some meaning? He had to face what he calls his “moment of truth”. He concluded, “Justice has to have some meaning.”

Back to Nuremberg

open – What are your initial reflections on why the case is so special?

JG – First, in terms of history, the crimes committed by Pinochet, starting with his violent coup d’état, were committed in the most sophisticated democratic society in the Spanish-speaking world.

Chile had known democracy for many generations. A constitutionally elected government was overthrown. This helps explain the depth and breadth of opposition.

Second, my point of inspiration was the legacy of law, and especially of the agreements born in Nuremberg in 1946, which was the symbol of the end of a terrible period of international crimes and the beginning of a new era of international law.

Its guiding idea is that everyone has basic human rights in international law. This idea was born legally in the London charter of the Tribunal of Nuremberg in August 1945, and then in the Nuremberg sentence of 1946.

But although President Roosevelt declared, in February 1945, that the end of the division of the world into spheres of influence was over, it was not. The world entered the Cold War, and Europe too was divided into spheres of interest.

International, strategic, military and diplomatic priorities became so powerful that the principles symbolised by Nuremberg could not be implemented. The seeds were growing: international instruments were created in 1945-6, and later there was the Genocide Convention in 1948, and then the 1984 Convention against Torture – to name two. But each side in the Cold War committed its own crimes. Those in Chile were the direct result of the main power in its area of influence, as has been proven by the declassified official documents of the US government.

Now, third, with the end of the Cold War a new era begins. We have a window of opportunity to establish and develop the principles born after 1945.

GB – I agree with Juan. Nuremberg is the starting point for the protection of individuals to be recognised in international law. Previously, international law was very much a matter of relationships between states. Also after Nuremberg, the Cold War saw a return to realpolitik.

It was only after the collapse of the Soviet Union that we got back on track and started the movement towards international jurisdiction with the setting up of the two war crimes tribunals for Yugoslavia and Rwanda.

The Pinochet case has helped enormously. It has also revealed the gap between the pretensions of government and their political will to get some real enforcement mechanisms that transcend day-to-day expediencies.

Policy interests always seem to take precedence over the principled application of the rule of law in the international sphere. What happened in 1998 was almost a stroke of luck in the way it triggered action in domestic courts. After all, if Pinochet had decided not to come to London it wouldn’t have happened.

The telling of stories

IH – I am not a lawyer. My concern is with the telling of stories, which is what I do, and questions of history and memory and how events are remembered.

When I first went to Chile in the early 1980s, the national story was not that there was a democracy in Chile that was sacrificed to a dictatorship that then lasted 17 years. It was that Pinochet had saved Chile from communism and returned it to democracy.

We can laugh about it now, but up until two or three years ago you couldn’t laugh about it because that was the predominant story – the one children were taught. When I first went to Chile, Salvador Allende’s grave wasn’t marked. There’s now a statue to him in front of the Presidential Palace.

For me, this connects with what Juan was saying about the Cold War. In Latin America, the language of democracy and justice was appropriated during the Cold War in the service of dictatorship and massive abuses of human rights.

Until the record is straightened by an act of justice of a fundamental kind, which acknowledges the history and the rights of the people who died and their survivors – not just under Pinochet’s dictatorship but in all those dictatorships – language remains corrupted. To restore such values as justice, a real act must take place. Pinochet has to be called a criminal. He has to be indicted and tried.

There was a truth commission in Chile. But now the truth has come out in the case against Pinochet to a degree that simply didn’t happen before. And it was the impetus of justice – the impetus of the judge who has called for the stories to be told and the evidence to be collected – which has enabled the people to say, ‘That was how history was’.

Another question is whether this can happen in the United States. Washington has released documents that confirm its active support for the coup. How will America deal with its Cold War past in Latin America?

The strategy has been to deny everything furiously while it’s happening and create a huge snowstorm of counter-propaganda. Some years later, as a result of one case or another, there may be a report. Meanwhile, the outgoing president has pardoned everybody connected with it.

When the report comes out, American public opinion has, as they say, ‘moved on’. No one can find these places on the map any more, or remember what the argument was about. And that’s it. If we are talking about the values of international law and politics, we have to reflect on this.

GB – Can I ask Isabel about why the amnesty in Chile has not protected Pinochet?

IH – There were numerous obstacles to putting Pinochet on trial in Chile. They seemed extremely difficult to get round. One was that in 1978 there was an amnesty for crimes committed by, as they put it, ‘both sides’ in this mythical civil war.

Another was that as a self-appointed senator for life, Pinochet enjoyed parliamentary immunity. Then there was the question of jurisdiction. The military tried to claim that if the charges involved military crimes they should be tried in a military court, which, naturally, dismissed them.

One by one these have been dismantled. The Supreme Court lifted the parliamentary immunity in August, while the argument that there is nothing military about crimes of kidnapping and murder is now accepted. It was always true, but the change in atmosphere now means it is accepted.

Getting around the amnesty has involved the utmost cunning. At the time, many of the bodies were hidden – one of the grievances of the families is that they can’t find any trace of their relatives. The judge rules that he does not know that a murder has been committed. All he knows is that these people were kidnapped. Therefore he will treat them as still kidnapped. Therefore this is an ongoing crime of the present to which the amnesty doesn’t apply.

open – You mean, because they suppressed the truth, the crime lives on?

IH – Indeed, which is why you’ve had a sudden rush of accounting for the bodies, much of which is highly questionable.

International Court

open – This is a question for all of you and also for readers. Geoffrey has mentioned the new international courts looking at what happened in former Yugoslavia and Rwanda and there may be a permanent court for international human rights. Aren’t there two dangers here?

First, the judges in these courts are appointed by governments. They then decide whom to charge. This can lead to indictments such as that of Milosevic; during the Kosovo war, which seemed politically inspired. If so, the Court became a branch of diplomacy in which states pursued their aims by other means. Now that Milosevic has been indicted in Serbia, should his case be taken away from there and transferred to The Hague?

What is so powerful about the Pinochet process you have been describing is the way that it was driven from below: the call for justice came from the victims. The apparatus of international courts, by contrast, seems to run the risk of removing the process from such accountability.

This leads to the second, larger question. Human rights are now being extended into social and economic rights. In addition, corporations are legalising their influence through international agreements implemented by bodies such as the World Trade Organisation.

The judicialisation of what used to be political relations may be a positive advance when it comes to extreme violations of fundamental rights. But it could also lead to a broader loss of democratic control and accountability.

GB – These are big questions. I just want to make a brief response to the first. There are dangers in involving victims, as this can distort the judicial process, which requires impartiality, independence and fair treatment for those who are put on trial. But it is important that there should be means available for victims to initiate a criminal process, even though they may not control it. In the international context there doesn’t seem to be any mechanism for this.

This is why we should be trying to strengthen the role of domestic courts in dealing with international crimes against humanity, as happened with Pinochet, rather than building remote international structures.

JG – Yes, waiting for an international court system could become an excuse for national courts not to act. We must hope that others will spread the precedent. The Pinochet case needs to become one of many, so that others who have abused state power to torture and kill are brought to justice.

About the authors

Juan Garces, a Spanish lawyer, was advisor to Salvador Allende, president of Chile from 1970-73, and later wrote a book, Allende and the Chilean Experience (1976). For many years he worked to bring Allende's successor, General Pinochet, under the rubric of international justice.

Isabel Hilton is the editor of chinadialogue.net, and was editor of openDemocracy from March 2005-July 2007. She is a journalist, broadcaster, writer and commentator.

Geoffrey Bindman is a former chair and vice-president of the Society of Labour Lawyers.