From Noriega to Pinochet: Is there an international moral and legal right to kidnap individuals accused of gross human rights violations?

• Author: Burr, Sherri L.

1. INTRODUCTION

   Throughout human history, people have committed atrocities against each other. Numerous instances of genocide, slavery, and wholesale annihilation have been committed on several continents. The recent incidents in East Timor, Kosovo, Rwanda, and Sierra Leone are, unfortunately, continuations of the theme of abomination. Many scholars have addressed the moral and legal ramifications of military intervention on humanitarian grounds in these and similar cases. (1)

   This article concerns the moral conceptions of justice and whether there should be an international legal right to kidnap individuals accused of gross human rights violations, and whether they should be brought before national and international judicial forums. My interest in this topic grew initially from teaching the case of Dr. Humberto Alvarez Machain. Dr. Alvarez Machain, a Mexican citizen, was kidnapped from his medical office in Guadalajara, Mexico, at the behest of United States Drug Enforcement Agents (DEA) in 1990. (2) For a promised reward of $50,000, Mexican kidnappers flew him to the U.S.-Mexico border where the DEA took him into custody. (3) The United States never submitted a request to the Mexican government to extradite Dr. Alvarez Machain. (4) To extradite him would have required an official transfer from the Mexican to the U.S. government. Instead, the U.S. Government opted to kidnap him.

   Dr. Alvarez Machain appealed his capture to the United States Supreme Court on grounds that he had been brought to this country in violation of the US-Mexico Extradition Treaty, (5) and thus the District Court lacked jurisdiction over his person. Kenneth Starr, the Bush Administration's Solicitor General at the time, argued before the Supreme Court that the federal government had the right to kidnap foreigners and prosecute them in the United States for crimes committed abroad. (6) Mr. Starr contended that the extradition treaty between the United States and Mexico is a "tool" that does not limit the Government's freedom to use other means to pursue "narco-trafficking." (7)

   The Supreme Court, in a decision written by Chief Justice Rehnquist, held that Alvarez Machain's capture did not deprive the U.S. courts of jurisdiction because the US-Mexico extradition treaty was silent on the issue of kidnapping. (8) Since the treaty did not forbid kidnapping, it was permitted, Rehnquist maintained.

   The outcome seemed shocking at the time, (9) yet the theory that international law permits what it does not forbid was also postulated in the SS Lotus case. (10) In the SS Lotus case, France sued Turkey before the Permanent Court of International Justice after Turkey established jurisdiction over Lieutenant Demons, a French citizen, and captain of a boat that collided with a Turkish Steamer on the high seas, resulting in the death of several Turkish citizens. (11) France contended that in order for Turkish courts to have jurisdiction over Demons, they must present a jurisdictional principal recognized by international law in favor of Turkey. The court rejected this theory and affirmed the conviction of Lt. Demons of manslaughter. (12)

2. THE STRUGGLE OVER PINOCHET

   Another example of the use of kidnapping individuals accused of evil acts is the case involving General Augusto Pinochet. Pinochet was under house arrest in London for 16 months awaiting extradition to Spain on charges of genocide, torture, kidnapping and murder in connection with the disappearance of 3,197 people in the years after he seized power in a 1973 coup. (13) Spain's initial warrant for Pinochet's arrest was declared defective because: no alleged offense was committed in Spain, Pinochet was not a Spanish citizen, and the UK had no jurisdiction over Pinochet. (14) Spain amended its complaint to allege that Pinochet murdered Spanish citizens in Chile, and committed torture and hostage-taking, both universal crimes triable in Britain, specifically under the Criminal Justice Act of 1988 and the Hostage Taking Act of 1982. (15) Officers arrested Pinochet the day following the issuance of the second warrant. After several proceedings and decisions by the House of Lords, the British Government declared on November 25, 1998 that General Pinochet lacked immunity from arrest as a former head of state. It was poised to extradite Pinochet to Spain (16) before an outcry erupted among certain conservative leaders including Baroness Margaret Thatcher, who forcibly argued against extradition. They argued that Britain should be appreciative for the support Pinochet gave Britain in 1982 during the Falklands Islands War with Argentina. (17) Britain eventually released Pinochet on humanitarian grounds, stating he was too ill to stand trial. (18) Upon his return to Santiago, Chile however, he walked off the plane on his own accord to a 21-gun salute and soon thereafter left for his beach house retreat. (19)

   What would be the world's response if Spain followed the United States example, backed by the Rehnquist court, and simply absconded with Pinochet to bring him to justice? After all, the UK-Spain Extradition Treaty does not forbid kidnapping (20) and Pinochet is accused of contributing to the death of over 3,000 Chilean and Spanish individuals in addition to the torture and/or disappearance of more than 10,000 others. Moreover, he created an atmosphere of fear and intimidation, still palpable in Chile in 1991, about a year after he had relinquished power to his successor Patricio Aylwin. (21) The idea that Pinochet could completely escape punishment must seem untenable to his victims.

   In August, 2000, the Supreme Court of Chile divested the 84-year-old General of his lifetime senatorial immunity from prosecution. (22) The court's ruling opens the door for the prosecution of retired military and police officers for the disappearance of citizens. The court also held that any person who disappeared during the dictatorship and has not been located was the victim of a continuing kidnapping offense. Pinochet subsequently appeared in court and was indicted. His family says they will fight to have him exempted from trial because he suffers from diabetes, circulatory problems, and the effects of three strokes.

   Similarly, when I saw the pictures of the horrors in Kosovo and the leader Slobodan Milosevic walking around and talking as if he had few cares, despite his campaign of terror that has already killed hundreds of Kosovo Albanians and driven more than 200,000 from their homes, (23) I wondered what would it take to bring him to justice. After all, as long as he is the head of Kosovo, there is little likelihood that he would acknowledge his crimes against humanity, and surrender himself for trial by an international tribunal. Indeed, many such leaders attempt to justify their activities in the name of God. (24)

3. WHEN LAW AND MORALITY CLASH

   Does international law exist if there is no punishment for Milosevic, Pinochet and other violators of human rights and no justice for their victims? If law is synonymous with justice and justice means that violators are punished, then what kind of law is international law? Many argue that there is no such thing as international law. They say this because in so many instances, be it Chile, Kosovo, Sierra Leone, or Rwanda, might seems to make right. They see leaders perpetrating gross horrors on their populations, with no external force to temper their abusive exercise of power.

   The lay man's perceptions of justice date from many sources; one of the oldest being the Bible. The King James version of the Bible speaks of justice in two representative passages. In the Old Testament, Leviticus 24 contains the following references to retributive justice: "And if a man cause a blemish in his neighbor, as he hath done, so shall it be done unto him: breach for breach, eye for eye, tooth for tooth." (25) This passage implies that those who take lives shall lose theirs. This conception of justice suggests that killers should be subject to the death penalty, unless they demonstrate mitigating circumstances.

   The concept of mitigating circumstances likely flows from the New Testament. In Matthew, we find the following recommendation: "[r]esist not him that is evil: but who soever smiteth thee on thy right cheek, turn to him the other also." (26) Does this passage imply rather than return a breech for a breech, an eye for an eye, society should be willing to subject itself to further breeches?

   There are times when principles and values clash, as in these two Biblical examples. International law, as with all systems of law, values human life. "Eye for an eye" justice may be considered the cornerstone of the deterrence theory, which would require that those who take lives should forfeit theirs as a means of discouraging similar behavior. If...