The international arrest warrants issued by the Spanish judges may put a severe crimp in the travel plans of Pinochet, Galtieri and company for the rest of their dawned lives.
The two judicial proceedings currently pending in the Spanish courts - one against Augusto Pinochet and some of his fellow butchers, the other against Leopoldo Galtieri and other members of the equally brutal Argentine junta - would have gladdened the heart of Raphael Lemkin, the father of the Genocide Convention.
As a child in Poland, Lemkin became interested in what we now call genocide and crimes against humanity when he heard about the massacre of the Armenians by the Turks in the second decade of this century. As a young lawyer in the thirties, he began to lobby for an international law regime that would prevent such atrocities and punish their perpetrators. After he lost 47 members of his family in the Holocaust and came to the United States, he coined the word genocide and devoted the rest of his life - he died in 1958 - to getting the idea of genocide as an international crime accepted by the world community.
Although he called January 12, 1951, the day the Convention came into force, the greatest day of my life, he had two regrets: While he wanted genocide to be a universal crime (i.e., one for which a perpetrator could be tried anywhere), Article VI of the Convention limits jurisdiction to the courts of the country in which the crime is committed, or to an international tribunal. (The Soviet Union, incidentally, advocated universality, but lost out to the United States, which insisted on territoriality). Lemkin also would have liked to see the definition of genocide include the entire or partial destruction of political groups but, in the event, it was limited to national, ethnical, racial or religious groups.
How then, did the Spanish judges decide that they had jurisdiction to open proceedings for genocidal crimes committed outside of Spain? (In addition to genocide, the prosecutions charged terrorism, torture and illegal detention followed by disappearance.) They were able to do so under Spanish laws which define genocide, terrorism and torture as universal crimes and authorize Spanish courts to prosecute persons committing them anywhere in the world, if no other court has done so. But, it may be asked, how could the Spanish legislators go beyond the jurisdictional terms of the Convention? The answer lies in the fact that Article 1 of the Convention does not create the crime of genocide, but confirms it. In other words, the crime preexists the Convention, and does so as a universal crime. This was also the view of the Israeli courts in the Adolf Eichmann case and of the International Court of Justice which, in its Advisory Opinion of May 28, 1951, stated: The Genocide Convention was ... intended by the General Assembly and by the contracting parties to be definitely universal in scope.
As for the definition of the target group, the Spanish judges latched on to the word national, thus in effect reading political back into the scope of the Convention, since the victims of the Chilean and Argentine dictators owed their fate to their political beliefs rather than their national origin, but were undeniably persecuted as groups rather than as individuals. In this interpretation, which goes far beyond the narrow meaning of national origin that some have tried to read into the term national, the judges were reinforced by the opinion of Benjamin Whitaker, the UN Rapporteur on genocide who, in his 1985 report, concluded that the intentional destruction of a significant sector of a national group for ideological or political reasons - such as in Cambodia - constituted genocide.
There is, in any case, a direct connection between Spain and the two proceedings in that they were originally based on the victimization of Spanish citizens who were tortured and disappeared under Pinochet's and Galtieri's reigns of terror and whose relatives were the original plaintiffs. It is questionable whether the cases could or would have been brought had there not been this connection. However, subsequently other plaintiffs, including the entire Chilean Association of the Killed and Disappeared, were allowed to join as plaintiffs, as is possible under the law of Spain and other continental law countries (1).
It is interesting to note that, while, unlike the Spanish law, there is no provision in US law for the trial of genocidal acts committed abroad against US citizens, there is such a provision for terrorist acts, and there is a provision for trying US citizens committing genocidal acts anywhere in the world. This is found in the Genocide Convention Implementation Act of 1987, also known as the Symington Act (18 USC. 109l), which was finally enacted 36 (count 'em!) years after the Convention, which the US was the first country to sign, came into force.
What will be the outcome of the two landmark Spanish cases, the first ever brought by national courts for crimes of genocide committed outside their territory? The two judges, who at the moment are acting as investigating magistrates, somewhat in the manner of a grand jury, have stood their ground courageously against severe attacks from conservative legal and political circles in Spain, including the country's Attorney General. International arrest warrants - which the Argentine government has refused to honor - have already been issued against Galtieri and his fellow defendants in the Argentine case. Similar warrants are expected to be issued against Pinochet and his fellow defendants once the judge in that case finishes taking testimony from the many witnesses who have come forward to build the most complete record to date of the 17 darkest years in Chile's history.
Under Spanish law, defendants may not be tried in absentia, thus Pinochet and Galtieri are not likely ever to be seen sitting in the dock of a Spanish courtroom. But these unique proceedings have already had an enormous moral and historical impact, not to mention the political firestorms which they have caused in the three countries affected. If nothing else, they will serve as forerunners for the work of the International Criminal Court which is likely to be established at a UN-sponsored conference this June, precisely because, for jurisdictional and political reasons, it has proved so difficult to punish the bumper crop of head-of-state terrorists which this century has produced.
And, if nothing else, the international arrest warrants issued by the Spanish judges may put a severe crimp in the travel plans of Pinochet, Galtieri and company for the rest of their dawned lives.
1. Under the US criminal system, no such intervention is possible, given the legal fiction that crimes are committed against The People, rather than individuals. However, our courts are beginning to allow victims and their survivors to participate in sentencing hearings and to attend executions - a questionable advance if ever there was one. On the other hand, our courts, unlike those of any other country so far, are open to civil by alien victims, or the survivors of victims, of torture and other gross human rights violations committed abroad, provided their perpetrarors can be served with complaints in this country.
See also: Pinochet, ante la Audencia Nacional y el Derecho Penal Internacional by Joan E. Garcés [Spanish].