Pinochet and International Human Rights Litigation

The British House of Lords recently considered whether Augusto Pinochet was subject to arrest and possible extradition to Spain for alleged acts of torture and other egregious conduct carried out during his reign as Chile’s head of state. The Law Lords held that a large majority of the charges against Pinochet were not proper grounds for extradition under British law. They also held, however, that Pinochet could potentially be extradited for alleged acts of torture committed after Britain’s 1988 ratifica· tion of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In reaching this latter conclusion, a majority of the Law Lords rejected Pinochet’s claim that he was entitled to immunity from arrest on the torture charges because of his status as a former head of state. The Pinochet decision implicates a number of difficult issues at the heart of modem international law. It illustrates the growing tension between the international law principle of sovereign equality and the quest for universal justice. It raises the question of whether international criminal law should be enforced unilaterally by national courts or through multilateral international tribunals. And it highlights the more fundamental issue of whether any international criminal process is appropriate when a nation, like Chile, has addressed the human rights abuses of a prior regime through a domestic political compromise that facilitated a transition to democracy. Although these international law issues are relevant to this article, they are not its focus. The article focuses instead on a re· lated issue also implicated in Pinochet: international law’s increasing interaction with and influence on domestic law and processes. In particular, we consider what, if anything, can be learned from Pinochet regarding the relationship between international law and U.S. domestic law. The specific circumstances of the Pinochet case – criminal extradition proceedings against a former head of state – will not arise often in the United States. For the past two decades, however, U.S. courts have been grappling with issues similar to those presented in Pinochet in numerous civil suits alleging violations of international human rights law by foreign officials. The parties and judges in the Pinochet case extensively considered this U.S. case law in analyzing whether Pinochet was entitled to immunity. In this article, we in effect do the opposite: we assess how the Pinochet decision and its international law holdings might be relevant to U.S. civil litigation.