Pinochet and international human rights litigation.

• Author: Bradley, Curtis A.

1. INTRODUCTION

   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.(1) 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 ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.(2) 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 modern 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 related 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.

   Plaintiffs and commentators are likely to claim that the Law Lords' analysis in Pinochet -- especially their reliance on international human rights law to limit Pinochet's immunity -- supports application of international human rights law by U.S. courts in civil litigation. The bulk of this article is devoted to showing why this is not so. Because of structural differences between the criminal and civil contexts, as well as differences between the British and U.S. approaches to the incorporation of international law, we conclude that Pinochet provides little support for civil human rights litigation against foreign officials in U.S. courts. We also argue that, because of the vagueness of international human rights law and the adverse foreign relations implications of civil suits against foreign officials, human rights litigation in U.S. courts should remain both limited in scope and under the control of the federal political branches. Not only is there nothing in the Pinochet decision to the contrary, but in several ways it bolsters our conclusions.

   We begin in Part II by describing the background and proceedings of the Pinochet case, the House of Lords' analysis, and the international law uncertainties highlighted by the Law Lords' decision. In Part III, we consider whether developments in international human rights law should limit the scope of the domestic immunity available to foreign governments and officials. The Law Lords held that these developments did limit the scope of Pinochet's immunity from criminal process in Great Britain. In the United States, however, the political branches and the federal courts have, with narrow and specific exceptions, declined to permit developments in international human rights law to limit the scope of foreign sovereign immunity from civil process. We argue that the adverse political consequences that might flow from otherwise unfettered private lawsuits against foreign officials for human rights abuses justify the broader immunities available in U.S. domestic courts.

   In Part IV, we consider the legitimacy of the U.S. counterpart to the British rule, invoked by some of the Law Lords in Pinochet, that customary international law (CIL) is part of the British common law. In the United States, plaintiffs and scholars have argued for a similar rule of incorporation to justify the domestic application of substantive international human rights law. As we explain, however, the constitutional implications of an automatically incorporated CIL are more problematic for the United States than they are for Great Britain. As a result, when faced with claims of international immunity, such as the claim of head-of-state immunity that was at issue in Pinochet, U.S. courts do not apply the CIL governing this immunity directly. Instead, they seek and follow political-branch direction. The failure by courts to apply CIL as automatically incorporated common law in this context, involving traditional rules of CIL that are a central component of international relations, casts substantial doubt on the claim that international human rights law should be applied as self-executing federal common law.

   In Part V, we defend the United States' general resistance to the domestic application of international human rights law. This resistance has two dimensions. First, the United States does not apply international human rights law to domestic officials. This approach is justified by the profound uncertainty regarding the source and content of international law and by the general adequacy of U.S. domestic human rights protections. Second, the United States permits the domestic application of international human rights law against foreign governmental officials only in very narrow contexts. This limited embrace of international human rights law reflects a legitimate concern with giving private citizens, and unelected judges, too much influence over U.S. foreign relations. As we explain, both of these justifications for resistance to the domestic application of international human rights law -- the vagueness of international norms and the danger that private lawsuits will interfere with foreign relations -- find support in the House of Lords' decision in Pinochet.

2. THE PINOCHET CASE

   In this Part, we analyze the Pinochet case. We begin by explaining the background of the case and the complex proceedings leading up to the House of Lords' decision. We then discuss some of the many legal uncertainties highlighted by the decision.

   1. Background and Proceedings(3)

      Pinochet's Reign and Status. In 1973, Pinochet, then the commander in chief of the army in Chile, led a military coup that overturned the elected government of President Salvador Allende. A military junta subsequently appointed Pinochet president of Chile, and he ruled the country for the next seventeen years. During his rule, hundreds of thousands of people were detained for political reasons, and several thousand disappeared or were killed. Pinochet stepped down as president in 1990, but he remained head of the army until March 1998, when he was appointed "Senator for Life."

      Pinochet's Arrest. On September 22, 1998, at the age of 82, Pinochet entered the United Kingdom for back surgery. On October 16, British authorities arrested him while he was recovering from the surgery in a London hospital. They based the arrest on a provisional warrant issued by a British magistrate, which was in turn based on an international arrest warrant issued by a judge in Spain.(4) The international warrant alleged that Pinochet was responsible for murdering Spanish citizens in Chile between 1973 and 1983 and that Spain intended to seek his extradition. On October 22, a British magistrate issued a second provisional warrant based on a new international warrant from the Spanish judge alleging that Pinochet was responsible for acts of torture, hostage taking, and other conduct committed primarily, although not exclusively, against Chilean citizens in Chile. To understand the legal context of these warrants and the subsequent proceedings, it is necessary to consider briefly the international law concept of "universal jurisdiction," as well as British law concerning extradition and immunity.

      Universal Jurisdiction. International law normally requires that a nation that regulates conduct outside its territory have some connection with the conduct or the person engaged in the conduct. International law also recognizes, however, the concept of "universal jurisdiction," pursuant to which certain categories of conduct can be regulated by any nation.(5) The theory is that those who engage in this conduct are hostis humani generis, or "enemies of all mankind," and that all nations therefore have an interest in punishing them.(6) In the nineteenth century, nations invoked this concept to justify regulation of piracy on the high seas and, in some instances, the slave trade.(7) After World War II, national courts and international war tribunals asserted universal jurisdiction over war crimes and crimes against humanity.(8) Modern treaties appear to authorize universal jurisdiction over certain additional crimes, such as torture, hostage taking, and hijacking.(9)

      The universal jurisdiction concept was relevant to the Pinochet case in several ways. First, Spain invoked this concept as a basis for regulating, and...