At the Edge (11-13 November 1999)

AT THE EDGE
Towards 21st Century Internationalism

TNI 25th Anniversary (1974-1999)

The Pinochet Case: Implications for International Human Rights Law

This session dealt with the importance of the Pinochet rulings for the development of the international law of human rights. It examined how universal jurisdiction for universal crimes is developing and how to overcome the problem of immunity for Heads of State and other government officials still obstructing justice. The relationship between such cases against individuals and the International Criminal Court was also discussed.

Chairperson: Peter Weiss
Speakers: Geoffrey Bindman, Juan Garcés, John Dugard, Hugh O'Shaughnessy

Also present: Isabel Morel Letelier, widow of Orlando Letelier.

Peter Weiss is from the Centre for Constitutional Rights in New York and represents the family of Charles Horman, one of those killed in the stadium in Santiago a few days after the military coup and whose widow is one of the plaintiffs in the Spanish case against Pinochet.

He introduced the session by saying that, at the session on nuclear issues the previous day many people seemed skeptical about what international law could actually accomplish. He hoped that this session would have fewer such doubts. We are interested in where the Pinochet case may lead in terms of international human rights law and the opportunities which exist as a direct consequence. 

He recommended the book El Testimonio y la Vindicacion de Orlando Letelier by Juan Garcés, one of the speakers, and Saul Landau, which is based on information that Orlando Letelier got to Juan Garcés concerning events leading up to the military coup in Chile.

Geoffrey Bindman is a human rights solicitor in the UK. He is acting for Amnesty International and Chilean victims' groups in the UK in the case against Pinochet.

The dramatic arrest of Pinochet occurred while he was in a London clinic in October 1998. He had been to Britain at least twice before as Head of the Chilean Armed Forces to attend arms fairs. On behalf of Amnesty International Bindman had tried to get Pinochet arrested on those occasions although unsuccessfully as the visits were too short to operationalize the plan.

The reason for his arrest in 1998 was complemented by the activities in Spain by Juan Garcés and his colleague Judge Garcon. The UK authorities allowed Pinochet into the UK without complaint, giving him the normal VIP treatment at the airport. The arrest stems from an extradition request made under the extradition treaty between the UK and Spain, which is now part of a European Extradition Convention. This teaches us some broader lessons about the use of international human rights law. Much depends on the initiatives of individuals and on slotting one's case into existing laws, which may exist or be based on reasons entirely different than human rights. Luckily, here the process used was the standard extradition process, which was followed mechanically by the British authorities and resulted in his arrest.

Pinochet was only able to challenge the arrest in one substantial way namely, claiming his immunity as a former head of state. Virtually all the argument in the UK, resulting in three hearings in the House of Lords and elsewhere, were over the issue of immunity. Note that it was only claimed that heads of state and ex-heads of state are immune. No other officials guilty of torture or other crimes against humanity can successfully rely on that defense. In the end, this long argument on immunity was found by the British judges not to apply to heads of state. So, a head of state does not attract immunity for torture or other crimes against humanity.

Once this issue was resolved, the extradition process proceeded smoothly. The only way that Pinochet could now escape extradition to Spain to stand trial was if the Home Secretary, Jack Straw, decided, and he had a broad scope for discretion, that Pinochet was not fit to stand trial. The only issue preventing his extradition was his health.

However, the ingenuity of Pinochet's lawyers has been considerable and the Chilean Government has been strongly supporting efforts to have Pinochet released and returned to Chile. There is now an attempt to involve the International Court of Justice in the Netherlands. His lawyers will be persistent in their efforts to extricate Pinochet from the possibility of a trial. There seem to be unlimited amounts of money to hire battalions of lawyers to conjure up every possible argument.

As far as the legal process in Britain is concerned, the case has been pursued in the context of extradition on the mutual obligations between Britain and Spain. The British authorities have not taken any independent role to prosecute Pinochet. Under extradition law, we have a rule that a person cannot be extradited unless the offence is one, which is also an offence in Britain. There has been a lot of argument in the courts over whether torture, genocide and the taking of hostages, all covered by international treaties which give universal jurisdiction, have been incorporated into domestic English law and the time when they were specifically incorporated. Many might think such technical, obscure and legalistic arguments irrelevant compared to the issues that concern people at large - the horrific criminal activity of Pinochet and his supporters.

What are the implications of the Pinochet case for international human rights law and future cases? There is a strong element of chance in the way this case has unraveled, coupled with the significant Spanish initiatives. We should be looking towards:

• reducing the element of chance and improving the systems for prosecuting people accused of crimes against humanity;
• extending and reinforcing universal jurisdiction;
• strengthening the legal arguments for ensuring that torturers are arrested wherever they go and put on trial promptly;
• ensuring that legal arguments against such action are removed as far as possible;
• streamlining and improving the system so that others can be arrested and put on trial not simply by accident of some lawyers being in the right place and the right time with the right initiatives.

We must establish a proper system whereby universal jurisdiction applies to crimes against humanity and that those guilty of these crimes are brought to justice efficiently and effectively. Many others are escaping with impunity because we do not have those systems in place.

Juan Garcés was an advisor to President Allende in Chile and with him on the day of the coup until ordered to leave by Allende. Since then he has devoted his energy and legal creativity to pursuing the arch-criminal August Pinochet.

Garcés paid homage to the IPS (Institute for Policy Studies) in Washington where, he said, the Pinochet case was really born. International cooperation has been and is absolutely necessary. These hainus criminals have enormous backing from armies, the diplomatic corps, financial interests, etc, as we have seen in the Pinochet case. To confront and eventually overcome this powerful and international coalition, which supports immunity, we have to build another international coalition in favor of penal responsibility. Without the contribution of many we would not have arrived at where we are today. Amnesty International has been one of the main institutions supporting this case but the merit is shared.

We must overcome the question of immunity in crimes committed with instruments of the state. Not only material but also ethical and pragmatic matters are involved. To give these crimes immunity means we are sowing the seeds for future crimes. To accept immunity in exchange for deals, for example over arms, is bad in pragmatic terms because it means getting something now but mortgaging the future.

In Spain, the Union of Public Attorneys took the initiative in July 1996. From the beginning, associations of victims in Chile were involved. This was not a case born in Spain intended to erupt into the Chilean jurisdiction. It was the victims in Chile, facing the barrier of immunity, who came to Madrid to exercise their right to demand justice. Since 1985, tribunals in Spain have been granted universal jurisdiction for crimes against humanity, conforming to international law. For nearly two years, Spanish attorneys compiled evidence under the authority of the investigating magistrate. Only then did lawyers acting for the victims ask for Pinochet to be prosecuted. Two and a half years after the first investigation a judge finally announced the order of arrest. From the very first day we were conscious that it would be a strictly judicial case, one we would pursue just like any other legal case, and one we would win or lose in a judicial way.

From the point of view of the Spanish lawyers, the role of the British authorities has been exemplary. Geoffrey Bindman said that the British authorities had not tried to do anything vis a vis Pinochet before. However, from the moment that the first order of arrest was made on 16 October 1998, the British authorities - judicial, political and police - have behaved in nothing less than a strictly professional manner. They have applied the international laws to which Spain is resorting, and have withstood the political pressure that has been used to obstruct the legal procedure. We should expect that they will continue to behave in this way, and that extradition to Spain will be confirmed.

The effort put into this case is just another stage on a very long path. Peter Weiss was not only involved in the Charles Horman case but also the Villatiga case, which he won. This was an extremely important precedent for the Pinochet case. In it, the US courts declared that torture is an enemy of humanity. Just as the pirates of long ago were controlled because they were prosecuted universally, torturers can be eradicated from the Earth through universal prosecution. Thus, the Villatiga case, thanks to Peter Weiss, has been very important judicially in Spain as well as in the UK.

The Pinochet case will make a positive contribution only so far as other states pursue cases like it in the future. There are real possibilities here. The legal instruments exist. The international treaties against torture and genocide have established, to various degrees, universal jurisdiction. The states that have signed these treaties are obliged to apply them and punish these crimes. So, it is a question of political will among governments to apply the laws that they have committed themselves to in this process.

The international situation is positive. There was a recent public debate between Gorbachev and the German Chancellor. Gorbachev questioned why Germany is prosecuting former GDR leaders for their persecution of East German citizens who tried to leave the country, when these leaders have given their political power and institutions to West Germany. The German Chancellor replied that Germany does not have a law of full amnesty. In this exchange we can see a very important state confirm that people will be prosecuted for such crimes even if they have given compensation in political, financial or humanitarian terms. Margaret Thatcher asked the same kind of question, "Why are you prosecuting the man who was so useful to us in the Falklands War?" but the British Government did not accept her question. When the extradition hearings took place, the press speculated about the closeness between the judge and Margaret Thatcher, but the judge made his decision according to the law and granted Spain all that it was asking. These are examples, which show political conditions and potential political arms of leverage that were not capable of interfering with judicial conditions.

We have an international situation that was not in place five or ten years ago. It is possible that the Pinochet case will not exist in isolation but will be a case followed by others and that add improvements to this very long fight against these kinds of crimes. We should be hopeful. The written history of humanity is several thousand years' long, whereas it was only fifty years ago that humanity was born as a subject of law. The individual became a subject of law after the revolutions in France and North America in the 18th century. It is now the case with humanity.

The Pinochet case is also very important with regard to the International Court of Justice in The Hague. The Chilean Government is likely to file a complaint there against Spain concerning the interpretation and implementation of the Convention Against Torture. If so, the Chilean Government will offer the international community a unique opportunity to discuss, at the highest level, the meaning of this international convention for prosecuting, in terms of universal jurisdiction, torturers and former government officials that supported the use of torture as an instrument of the state. I hope that all states that have signed the Convention will become involved in the discussion and enlarge the number of issues submitted to the Court. The World Court can only take decisions on the issues that are put before it. Spain and Chile will be there as parties to the Pinochet case, and will not bring other issues. However, other countries can and should. If they do so, and the World Court rules on the implementation of the Convention, this would be one of the most important outcomes of the Pinochet case. It will have succeeded at an even higher level, with implications for all countries of the world.

John Dugard: Chair of International Law at the University of Leiden, and with long experience in bringing international law to the anti-apartheid struggle of South Africa.

One implication of the Pinochet case concerns amnesty. Pinochet granted amnesty to himself and the military regime in 1978. He also had a second immunity as a life-long Senator in Chile. So, when he went to the UK, he had two immunities. This fact did not feature at all in the decisions of the House of Lords. This suggests that a foreign court will not consider an amnesty granted in the country in which the crime was committed as a bar to extradition proceedings.

Judge Garcon recently announced he has issued warrants for the arrest of some 80-90 members of the Argentine military regime for crimes such as genocide, crimes against humanity and torture. These men had been granted amnesty by the democratic Argentinian regime and so the question now arises as to whether amnesty can ever be recognized by a foreign country. In South Africa, a court has recently declared that it will recognize a Namibian amnesty granted to one of our worst apartheid offenders, Dr. Botha Persoon, who features in the press as 'Dr. Death'. However, this seems to be out of line with current developments elsewhere.

The Pinochet case highlights that when amnesty is granted as part of a political deal in order to satisfy a previous repressive regime, that amnesty will not be recognized abroad. This means that people like Pinochet and the Argentinian generals will not be able to travel abroad but will become prisoners in their own country. They can enjoy the fruits of amnesty at home but not abroad. This is an important step forward.

A second lesson comes from the Villatiga and Pinochet cases. There have been several attempts at civil proceedings against members of governments for torture. Another such case was brought by Geoffrey Bindman on behalf of a Kuwaiti who was tortured by the Kuwaiti Government and then fled to the UK. The English courts held that in civil proceedings, state immunity does apply, under the State Immunity Act in the UK, an act that one finds in many other countries. In the Pinochet case, many of the judges made a careful distinction that Pinochet was a criminal matter, an extradition case, and that it was not affected by the previous civil cases in which the courts have found that governments are immune. There seems to be a conscious effort not to disturb those cases.

My prediction, however, is that international law has been so radically affected by the whole Pinochet climate, or culture if you like, that these cases will be revised and it is only a question of time before Geoffrey Bindman succeeds in his arguments. So, I hope he pursues civil claims against foreign governments for torture committed abroad, and attempts to persuade the courts to aware damages against governments where they have engaged in acts of torture.

Thirdly, international lawyers are now preoccupied with something new called jus cogens or 'higher law', peremptory norms. In the last 20-30 years, international law has adopted the view that there are two categories of international law, one higher jus cogens and the other ordinary law. This has taken some time to effect. The International Court of Justice has studiously avoided giving any approval to the concept of jus cogens. However, we now find the House of Lords, which many have viewed as the most conservative judicial tribunal in the world, giving support to the idea that the prohibition on torture in international law is a higher norm, a norm of jus cogens. This means that torture can be prosecuted universally by any state, i.e. a state may prosecute a torturer for a crime committed anywhere in the world, even where there is no connection between the prosecuting state and the torturer. This is a very important step forward.

I am not sure if other states are ready to embark on such prosecutions where they exercise universal jurisdiction over crimes committed abroad over which they have no connection other than acting as agents of the international community in order to prosecute crimes against the international order. At the Rome conference that drafted the statutes for the International Criminal Court it became very clear that many states, particularly the USA, are not very enthusiastic about the notion of universal jurisdiction. The Pinochet case has made an important contribution to the development of international law in this respect, by classifying the prohibition of torture as a norm of jus cogens, by recognizing that universal jurisdiction applies, and by giving other states the courage to embark on prosecutions of this kind. The House of Lords is seen as a conservative, establishment court and, when it uses language of this kind, it sends a message throughout the world.

So the Pinochet case has important implications in that it sends out a message to international criminals, to those who commit crimes against humanity, torturers, etc. that they should stay home and not travel, and that NGOs and judges like Judge Garcon will be ever watchful to bring them to justice in some foreign court.

Hugh O'Shaughnessy: is a journalist covering Latin American affairs for forty years and author of a forthcoming bookPinochet: the Politics of Torture.

In researching the book it became clear what an opportunist Pinochet is. He was brought up in a very pious Catholic family in Valparaiso, married into a non-religious Radical Party family, and flirted with freemasonry. He rose through the ranks of the military and as the Christian Democrats gained higher profile he became a Christian Democrat. He was entrusted with the post of Superintendent of a northern territory, a post indicating political support. As Allende came into power, he was confirmed in this post and a relationship of trust was build between them until the very day that Allende was overthrown.

The image of a fine upstanding man is very much not born out by fact. He and his family are one of the richest in Latin America, mainly as a result of the denationalization and privatization of mines and other state assets, which he put into effect in the 1970s. He is also among those responsible for the narcotics trade in Chile, as Saul Landau has pointed out in his book. Pinochet is no longer a member of the Catholic Church, but excommunicated by two decrees, one passed by six bishops and the other by the Bishops Conference of Chile against those who carried out torture or who had the power to stop it but did not do so. This makes us wonder why the Holy See supported him when he was arrested in London.

Pinochet himself was not necessarily put in place by the USA. Kissinger says he did not know the name Pinochet until after the coup and it seems that many generals plotting the coup did not know that he in particular would surface to the top. The overthrow of the elected Allende Government was due to subversion and undermining of political life in Chile by US money. The outlook of the Chilean armed forces had been eaten away by a US intellectual offensive to woo the military forces of Latin America, especially Chile, away from their duties to the state, and efforts were made to assassinate or neutralize those in the upper echelons of the armed forces loyal to their own bosses rather than bosses in another country. Chilean politics and armed forces were subverted by the USA, and this leaves the lawyers free to pursue former members of the US administration.

Discussion

One area of discussion focused on the attitude of the US administration to the Pinochet case. A participant reported that the US Government says that, while they have no problem with a democratic government with an independent judiciary pursuing such a case, they fear that 'rogue states' might want to do the same. To counter this argument, Juan Garcés suggested three responses. One, the Spanish actions are based on international treaties which 'rogue states' have probably not signed. Two, the judicial authorities in Spain have demonstrated their independence by prosecuting a former Home Minister for the Socialist Government for abduction and killing of Basque nationalists; few 'rogue states' would have such an independent judiciary to do this. Three, the Spanish order of arrest was the result of more than two years of judicial investigation, as is well known around the world. Therefore, any country concerned about such judicial investigations could try to use diplomatic initiatives to prevent arrest. In fact, the Spanish lawyers asked for help from the USA on judicial matters. So it is very difficult for 'rogue states' to use the Pinochet case as some kind of politically motivated pretext.

John Dugard added that the USA is afraid that universal jurisdiction will be applied particularly to UN peacekeepers abroad e.g. with Libya trying to try UN peacekeepers for crimes against humanity. There would be two answers to this. One, in the unlikely event that UN peacekeepers commit such crimes, then they should be prosecuted. Two, universal jurisdiction is now an accepted tenet of international law and it does not need the Pinochet case to confirm that.

Another participant asked what kinds of pleas those accused of such crimes might make. In the case against the company Union Carbide in Bhopal, India, where 3,500 people were killed, the company successfully argued forum non conveniens not to be tried in the USA but in India where it exploited loopholes which allow companies not to be liable. Can others use such a plea? Geoffrey Bindman said that we have to accept the fact that courts and judicial systems are different throughout the world. Different states will apply an international convention under different rules and arguments. In Britain forum non conveniens is an argument that can arise but it has not been accepted where the accused person is already in the UK and involved in a criminal case. For example, in the Kuwait case, the British courts held that it is not reasonable for the plaintiff who claims torture in Kuwait to go back to Kuwait to face a trial there. So forum non conveniens will not necessarily work against justice. However, one cannot guarantee that local procedural rules will work in favor of justice.

Some questions focused closely on the case against Pinochet. One participant asked what would happen if Pinochet is tried and acquitted in Spain? Would he be extradited to another country and tried there? Juan Garcés said he is very confident of the Spanish case, of their research and evidence. However, even during the trial any country can ask for his extradition and if he is acquitted then the Spanish authorities must answer those requests. John Dugard said that if the extradition requests are for the same acts, then Pinochet can raise a defence of 'double jeopardy'. They will have to bring different charges.

Another participant asked what would happen if Chile requested Pinochet's extradition. Would that take precedence over other extradition requests? Juan Garcés replied that there are already many cases taken up against Pinochet, not only in Spain but also in Italy, France, Belgium and Switzerland, as well as Argentina. There is also a case open against him in Chile. In international law, you can begin criminal investigations even about the same facts as long as there is no definitive ruling yet. All cases can go ahead in parallel. If the Chilean authorities asked for extradition, that would add a fifth request which should be answered by the British authorities according to their internal law for extradition, most likely taking it after the others.

Susan George asked what happens if Pinochet dies? Will other cases have to be taken up to establish the precedents needed? Juan Garcés said that if Pinochet dies, the criminal prosecution against him ends. However, the cases against other high level Chilean officers will continue.

In reply to another question, Juan Garcés replied that the Spanish Government cannot stop the Pinochet case. In the twenty year evolution from dictatorship to the rule of law in Spain, the judiciary has become independent, enough to prosecute a former Minister. In fact, the order to arrest Pinochet was taken by a judge without consulting the Spanish Government in any way. When he made his order, the Spanish Government was meeting in Oporto with other governments, including the US. They were all surprised! It is a judicial matter, and the Spanish Government is respecting the rule of law. The case cannot be stopped unless the Spanish judiciary stop it and they cannot stop it while the victims' lawyers are still acting for their clients. Like other parties in Parliament, the Socialist Party has publicly backed judicial independence, fulfillment of international treaties and the prosecution of crimes of this nature. Felipe Gonzalves may have said he disagrees with Pinochet's arrest but, he does not have the backing of his own party.

Do these individual cases strengthen the International Criminal Court to become a reality, asked Phyllis Bennis? In Juan Garcés' opinion, they are encouraging this. It is in the interests of many states to establish common ground for prosecuting these kinds of crimes. For now, only a few countries are involved in these cases but many more could be in the future. It is in the interests of the international community to establish a common doctrine, and this is the role granted to the ICC as approved in Rome in 1998. He was hopeful that this cooperation between individual countries could encourage other countries to sign the international charter for the ICC. Once the ICC becomes a reality in two-three years' time, everyone should be assured that national courts will still have a role to play in prosecuting criminals, helping the ICC, and even supplementing its competence with complementary work. However, the ICC cannot play a role in the case of Pinochet because it cannot function retroactively.

Geoffrey Bindman added that the great advantage of the ICC is that the issue of immunity will not arise there, and there is no immunity either in the tribunals on war crimes in the former Yugoslavia and Rwanda. However, the problem of immunity will continue. The Pinochet case does not affect current Heads of State and there are issues of immunity relating to accredited diplomats under the Vienna Convention. The important thing is to get rid of immunity altogether where crimes against humanity are concerned. That will be the case in the ICC.

As far as the International Court of Justice is concerned, however, it has no direct role in the Pinochet case, Juan Garcés said. It has no criminal jurisdiction and so cannot try international crimes. However, the ICJ does pronounce on some of the legal issues involved, such as the scope of the Convention on Torture, particularly the extent to which universal jurisdiction applies, or possibly whether a person in Pinochet's position is able to raise a plea of state immunity. The ICJ pronounces on questions of law not on an individual's criminal culpability.

Another participant from the USA mentioned that there is an attempt to bring Pinochet to court in the USA for the murder of Letelier and Moffitt. He asked if this complements or conflicts with the Spanish case. Juan Garcés replied that if there is enough evidence in the USA then it only requires the fulfillment of internal legal obligations by the US authorities. There would be no interference with the Spanish case against Pinochet because this only concerns torture and this was not what happened to Letelier and Moffat. Spain cannot prosecute over the Letelier and Moffat case. This is the responsibility of the US. Peter Weiss added that the question of indicting Pinochet in the USA is supposedly under review by the US Department of Justice.

There was also a discussion on the possibilities of bringing cases against American state officials. Susan George accepted that Henry Kissinger might not have known that specifically Pinochet would become the military dictator in Chile but we surely could not deny that the Americans were behind the coup. What are the chances for bringing someone like Kissinger to justice for Chile, East Timor and elsewhere? According to Geoffrey Bindman, there is a potential case against Kissinger. However, in all these cases, where one is engaged in a criminal prosecution, proof has to be beyond reasonable doubt. Criminal liability depends on personal, direct responsibility and it could be difficult to prove this with regard to Heads of State and others like Kissinger. Pinochet will probably claim that he did not personally engage in acts of torture, or order torture, or know about torture. When it comes to proving a case against Kissinger, it might be even more difficult. Peter Weiss added that they had already sued Kissinger in the 1970s for complicity with the CIA and the State Department in the case of Charlie Horman. The case was dismissed without prejudice, which means that it can be brought again, because the State Department and the CIA refused to make available the necessary documents. Some of these are now slowly coming to light.

Another participant reminded the meeting that there is testimony from Richard Helms, former Director of the CIA, to a Senate hearing in 1975, that Nixon personally ordered the overthrow of the Chilean Government, in the presence of Kissinger. He asked whether it is a crime in international law to order and put into effect processes designed to overthrow a duly elected government. John Dugard answered that it could be argued that the overthrow of a democratically elected government by a foreign power is a crime of aggression. The difficulty is that the international community has not yet clearly defined what is a crime of aggression. It was recognized at the Rome Conference that the International Criminal Court will have jurisdiction over crimes of aggression but a separate treaty is needed to define it. Perhaps the possibility of charging an individual with crimes of aggression, and the ICC having jurisdiction over it, is what the USA is worried about when they talk about 'rogue states'.

A further discussion focused on non-state actors. The case of the Islamic Front for Salvation in Algeria was one example, where a case has been taken out against a senior leader in the USA. Jessica Woodruffe asked about the application of international human rights laws to transnational corporations. It seems that so far TNCs have only been tackled in so far as they are complicit with states rather than for their own actions.

John Dugard replied that international humanitarian law does apply to non-state actors, as one sees in the Yugoslav and Rwandan tribunals, where people are being prosecuted who are not Heads of State or other government officials. The advantage here is that they cannot raise the plea of state immunity, and so it is much easier to prosecute them. Geoffrey Bindman added that the only limitation is in the Torture Convention, which is limited to public officials, though this does cover any servant of government.

Peter Weiss, who has been involved in a suit against the US oil company Unocal in Burma, does not think that the application of human rights law is restricted. At the moment the only cases have been brought where TNCs have been complicit with states. In the Unocal case, the TNC had contracted the Burmese Government to build a pipeline and this was being done with slave labor under threats of rape, burning villages, etc. The contention was that Unocal was aware of and indeed the beneficiary of these human rights violations. If Unocal was itself doing what the Burmese Government was doing, the case would be even stronger, he said. Many TNCs are worried by this case and advice has been given by corporate lawyers to be more careful in the future. He thought that if something falls within the category of crimes against humanity, jurisprudence is moving in the direction of saying that non-state actors can be guilty. There is hope for that type of case against TNCs.

Geoffrey Bindman said again that in the wording of the Convention Against Torture, the wording makes it difficult to prosecute anyone but public officials. However, Peter Weiss said that you don't necessarily need the Convention. Traditional accusations of assault and battery could apply. John Dugard also thought that normal jurisdictional rules apply relating to criminal prosecution. If, say, a corporation registered in the Netherlands is accused of serious crimes committed abroad, then that TNC can be tried for criminal offense in the Netherlands. We do not need international human rights law in this case. We need only the ordinary principles of criminal jurisdiction, which allow us to proceed against a non-state actor. He felt that a non-state actor is a much easier target than a head of state or a government.

Roger Burbach noted that the panel seems optimistic, and wondered how we explain - during this era of globalisation under neo-liberal hegemony where free enterprise and TNCs are in the driving seat - that these advances in international law are being made. Geoffrey Bindman felt that our optimism must be tempered. Enforcing criminal law is largely a matter for state authorities, and in many countries there is not the necessary machinery for doing this. In the UK, there is a lamentable absence of any government responsibility for enforcing human rights conventions, he said. There remains a real problem of using criminal law where you rely on state bodies to implement it, unless there are much better structures than exist at present.