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— Pinochet’s arrest: a milestone for Universal Jurisdiction

On 16 October 1998, the arrest of Augusto Pinochet in a London clinic caused a worldwide media impact. The former Chilean dictator, who led a dictatorship characterised by violence and repression for 17 years (1973-1990), was arrested on a warrant issued by the Spanish judiciary. This arrest marked a milestone in international criminal law, testing the principle of universal Jurisdiction in the fight against impunity for international crimes and human rights violations.

From that moment on, an intense legal battle began to bring Pinochet to justice. The legal, political and diplomatic saga involved several countries, including Chile, Spain, which requested his extradition, and the UK, where Pinochet was arrested and faced three trials in a period of 16 months.

Pinochet had come to power on 11 September 1973 following a coup d’état against President Salvador Allende, who died during the seizure of the La Moneda presidential palace by the coup forces. His dictatorial regime was characterised by the dismantling of democratic institutions and the attempted eradication of the opposition, which resulted in massive human rights violations, with the loss of thousands of lives, the torture of tens of thousands of people and the forced exile of more than a quarter of a million Chileans.

In July 1996, a complaint was filed before the Spanish National Court for crimes of genocide, terrorism and torture, based on the principle of universal jurisdiction established by the 1985 Organic Law of the Judiciary. This principle allowed Spanish courts to exercise jurisdiction over international crimes, even if they had not been committed on Spanish territory and did not directly affect Spanish citizens. The complaint followed in the footsteps of the one previously admitted by the Argentine case before the Central Court of Instruction No. 5, under the direction of Judge Baltasar Garzón.

It was in the Argentinean case that the investigation was ordered into the alleged perpetrators of the crimes committed in the development of the so-called Condor Plan, a joint operation between the Latin American dictatorships of the time (Argentina, Chile, Uruguay, Brazil, Paraguay, Bolivia and Peru) whose purpose was to exchange information on residents in those countries, which allowed intelligence operatives and the armed forces to move freely in each other’s territory to kidnap, disappear or murder their fellow citizens.

In October 1998, upon learning of Pinochet’s whereabouts in London, Judge Baltasar Garzón issued an international arrest warrant against the dictator for the crimes of genocide, terrorism, torture and conspiracy to commit such crimes and forced disappearances, between 11 September 1973 and 31 December 1983. Specifically, the charges included 94 allegations of torture of Spanish citizens and the 1975 murder of Spanish diplomat Carmelo Soria.

The Bow Street Criminal Court declared itself competent and ordered the execution of the warrant issued by the Spanish justice system. Pinochet was arrested on 16 October and a 503- day legal process began, which would become a key precedent for international criminal law and human rights.

Traditionally, states exercise jurisdiction over crimes committed on their own territory, based on the principle of territoriality. However, some states, in special circumstances, may extend their jurisdiction beyond their borders, based on principles based on points of connection such as the active personality principle (crimes committed by state nationals outside the territory), the passive personality principle (crimes committed against state nationals outside the territory) or the principle of protection or legitimate state interest (crimes committed against the interests of the state).

However, the principle of universal jurisdiction is a criterion of attribution of jurisdiction whereby any court or tribunal in any country has the right, if not the obligation, to investigate and, if necessary, try those responsible for international crimes without the need for any point of connection between the crime and the state that declares itself to have jurisdiction. Universal jurisdiction empowers courts to intervene, not because of the existence of a direct nexus with the facts, but because of the very nature of the crime: those that involve an aggression against humanity as a whole. The main crimes that fall into this category are: genocide, crimes against humanity, war crimes, torture and enforced disappearances.

One of the most controversial points in the Pinochet case was his possible immunity as a former head of state. Pinochet’s defence filed a writ of habeas corpus with the High Court of Justice in London, arguing immunity. In a first ruling, the High Court of England and Wales recognised immunity, but the decision was appealed by the British Crown Prosecution Service, which represented the interests of the Spanish judiciary.

On 25 November, the judges of the Judiciary Committee of the House of Lords, sitting as the Supreme Court, decided by a three to two vote that a former head of state did not have immunity for the crimes for which extradition was sought, as such acts could not be accepted as part of his official duties. This ruling initiated the extradition process to Spain.

However, Pinochet’s defence sought the annulment of the ruling, alleging a lack of impartiality on the part of one of the judges. An extraordinary Appeals Committee was convened, as this is the highest British judicial instance that does not allow appeals, the case was reviewed and theoriginal decision was annulled, forcing the process to be restarted. In this second process, the Chilean state decided to intercede judicially in favour of the dictator, claiming exclusive competence to decide on his immunity. Discussions ensued on the validity and applicability of certain offences, and finally the judges ruled on the immunity of the former head of state. All six lords, except one, decided to refuse to grant immunity for the crimes of torture and conspiracy to torture.

On 8 October 1999, a British judge approved Pinochet’s extradition to Spain on 34 counts of torture and one count of conspiracy to torture, committed after 1988. This ruling was a significant breakthrough for international criminal law, demonstrating that universal jurisdiction was a viable tool for prosecuting international crimes.

However, on 14 October 1999, Chile made a diplomatic request to the UK to consider Pinochet’s state of health. On 2 March 2000, the British government released Pinochet on medical grounds, allowing him to return to Chile after 503 days in detention. Although the extradition case had been won on the basis of universal jurisdiction, the political decision allowed his release. Back in Chile, Pinochet faced further judicial proceedings, although he was never convicted, as he died on 10 December 2006.

Despite not having been tried in Spain, the Pinochet case had an important impact on international criminal law, as it was the first to apply the principle of universal jurisdiction against a former head of state.

The Pinochet trial opened the door for other victims around the world to seek justice in foreign courts, and cemented the importance of human rights in the international legal arena.

Although the principle is still in force in several countries, its application has been hampered by the increasing primacy of political interests and legal restrictions. Unfortunately in Spain, the 1985 Organic Law of the Judiciary, which allowed for universal jurisdiction, was reformed in 2009 and 2014, significantly limiting its scope. Although it is still possible to exercise it, the new restrictions have hindered its application, displacing Spain from its role as a leader in the fight against impunity at the international level.

For those who wish to deepen their understanding of the impact of the Pinochet case and the principle of universal jurisdiction in international criminal law, we recommend the course “Universal Jurisdiction: the commitment for a better world”, available on our platform. It is an excellent opportunity to explore how this milestone transformed the fight against impunityglobally. Click here.