Lessons to be learned from the case of Pinochet in the Netherlands*

Introduction

A case of an attempt to nationally adjudicate torture under universal jurisdiction occurred in 1994 when Pinochet was present in the Netherlands. It appears that, not only in the absence of national provisions implementing universal jurisdiction, but also in the absence of willing public prosecutors, universal jurisdiction clauses in treaties remain useless.1

The Netherlands is party to the Convention against Torture. This Convention stipulates that State parties prosecute the crime of torture. Any torturer, wherever he committed the crime, must fear prosecution in any country. Under the Convention, State parties are under an obligation to take the necessary measures, including the establishment and exercise of universal jurisdiction over the crime of torture. This is essential, as many states where government sanctioned torture occurs, are not reliable in prosecuting torture themselves. Exactly for that reason, other states are called upon to act.

Universal jurisdiction takes effect once a suspect touches the State's territory, his obligation goes up in smoke once the suspect leaves the territory. However, the exercise of universal jurisdiction under the Convention does not yet seem to be part of the day to day routine of public prosecutors. As a result, no cases have so far been prosecuted.

The facts

In May 1994 the situation arose that Pinochet was present, incognito, in this country. Two alert members of the Dutch section of Amnesty International filed a complaint with the public prosecutor against the former dictator. The complaint concerned two cases of complicity in torture. It was the first time, to my knowledge, that prosecuting authorities were called upon to exercise the principle of universal jurisdiction of the Convention. What's more, the prosecutor was confronted with a rather big fish. He did not act and Pinochet left the country.

The arguments not to prosecute Pinochet at the time he was still present were in a subsequent complaint procedure tested by the Amsterdam Court of Appeal. The Court confirmed the decision of the prosecutor on the basis of those arguments.However, on the basis of the Convention against Torture, the arguments are rebuttable. I will shortly deal with those arguments, that are likely to be invoked again in similar cases.

The exercise of universal jurisdiction is not conditional on an extradition request being made

First of all, the public prosecutor plainly denied that he could exercise jurisdiction at all. He held that the exercise of universal jurisdiction in cases of torture is conditional on the fact that an extradition request has been made, and the request has subsequently been refused. This is a mistake. The actual wording of article 7, paragraph 1 ("if it does not extradite him") supports the interpretation that the mere fact that extradition does not take place - whether the reason is that no extradition request is made or that such a request is refused - is a sufficient basis for creating the obligation to submit the case to the prosecuting authorities. Moreover, the travaux préparatoires as well as the object and purpose of the Convention clarify that the starting-point is the obligation to prosecute of article 7 paragraph 1. Then the actual prosecution proceedings can take place either in the state of the presence of the suspect itself, or, after the suspect has been extradited, by another state. Whenever the exercise of universal jurisdiction were conditional on an extradition request being made, the object of the Convention would be defeated every time a third state would refuse to make such an extradition request - which is most likely to occur when such a state tolerated torture. It is exactly for these situations that the drafters of the Convention intended to make the obligation to prosecute the starting-point, and, consequently, inserted the universal jurisdiction provisions.

The discretion to decide whether or not to prosecute is limited

The public prosecutor subsequently invoked various reasons on the basis of which he allegedly had decided it were not feasible to prosecute. It must be recalled that the Convention against Torture does indeed leave to prosecuting authorities a certain discretion whether or not to prosecute. However, this discretion is small, as it is limited by the wording that "the[...] authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State." An ordinary offence of a serious nature would be murder or kidnapping. In this country it is imaginable that the public prosecutor does not prosecute a bike-thief, but it is unimaginable that he would decide not to prosecute a murderer or kidnapper. Interestingly enough this opinion had already been put forward by the Dutch government itself when it reported to the Committee against Torture. That was even before the case of Pinochet had arisen.

Not only did the public prosecutor lose sight of the limits of his discretion whether or not to prosecute, the reasons as such for the decision not to prosecute are not strong.

Immunity from jurisdiction is no bar to prosecution

The public prosecutor considered that Pinochet can invoke immunity from jurisdiction as a bar from the exercise of criminal jurisdiction. Dutch law refers to international law in these matters. This is a difficult question to tackle, since international law is not very clear (and the Convention as well as the travaux préparatoires are silent on the matter). Under international law states, and organs of states, such as a heads of state, do indeed enjoy a certain immunity. However, this immunity is not absolute.

In fact, the obligations of the Convention against Torture regarding the prosecution of torture and exercise of universal jurisdiction will necessarily have as a consequence that they go against any absolutely asserted immunity from jurisdiction. That is exactly because those obligations are intended to outlaw torture as it originates from the public authorities of a state itself. Consequently, high ranking officials who may pre-eminently be responsible for the continuing occurrence of torture can - as a matter of course - not enjoy immunity. It may be assumed that the drafters of the Convention did not intend to criminalize government-sanctioned torture, while at the same time covering public autorities responsible for torture under a veil of immunity. It could therefore be argued that ratifying the Convention against Torture implies waiver of any immunity, without which prosecution of government-sanctioned torture would remain ineffective.

There are also precedents (most notably the Nuremberg Trials) of non-recognition of immunity of high ranking officials. Moreover, various legal scholars have confirmed that no rule of immunity applies in such cases. It is held that it is not the object of rules of immunity itself to grant immunity for acts plainly contrary to international law. It would also be against logic to find a rule of immunity from jurisdiction in international law for acts that go against the international legal order itself. Another strong contra-indication for granting immunity is found in the concept of ius cogens. Most scholars agree that the protection against torture may be included in this concept. Hardly anyone would say so with respect to criminal immunity for acts of torture. Therefore, as a matter of hierarchical order, rules on immunity, including head of state immunity, could not be deemed to prevail over international human rights norms.

In short, good arguments can be derived from international law not to apply an alleged rule of immunity, let alone a rule that requires the Netherlands to grant immunity from jurisdiction over acts torture.

Evidence

The public prosecutor considers further that the gathering of evidence to build a case would be impossible. This may indeed be troublesome, and only the decision on the sufficiency of the evidence in cases of torture may be said to be left to thediscretion of the public prosecutor. However, the public prosecutor stepped down too easily. Contrary to his opinion, there exists an obligation on the part of Chili to assist in connection with any criminal proceedings brought against Pinochet, including the supply of evidence, on the basis of article 9 of the Convention against Torture, ratified by Chili. In addition, there were already two victims of torture prepared to testify, and a call for more witnesses would probably have results. Finally, the public prosecutor does not need to proof that Pinochet directly ordered torture. It is sufficient that there is evidence that Mr. Pinochet consented or acquiesced in torture. It is recalled that the person who inflicts the actual torture often does not act alone, but his act is made possible by the support or encouragement he receives from superiors. On the basis of article 1 paragraph 1 jo 4 paragraph of 1 the Convention consent or acquiescence should be considered to be included in the term 'complicity or participation'.

Out of sight, out of jurisdiction?

Finally, The strongest argument of the public prosecutor, can not, at the time Pinochet was not present anymore, be overtrumped. It is true that with Pinochet leaving the country, the obligation to prosecute left this country as well. So far for the task of the Dutch public prosecutor. However, the obligation to prosecute does not disappear: it travels with Pinochet to any State party, where he touches ground.

Conclusion

In conclusion, apprehending and judging a former friendly head of state or other public officials seems to be beyond the day to day business of juridical authorities. The result is that these authorities use simple rebuttable reasons to avoid taking their clear responsibilities. In my opinion only problems of evidence may form an obstacle to the prosecution of foreign public officials for the crime of torture. And only there remains some discretion for prosecuting authorities.

The idea must gain ground that the starting-point of the criminal clauses of the Convention against Torture is to prosecute torture. It must be made clear to prosecuting authorities that they must subject suspects of torture to criminal proceedings, wherever they're from, whatever their status. Moreover, it must be clear to prosecuting authorities that they are pre-eminently called upon to prosecute torturers from those states where government sanctioned torture occurs, because those states will not prosecute torture themselves. One way would be for the Justice departments to adopt legislation and guidelines on courses of - prompt - action. Furthermore, case-files - and this may be a task for non-governmental organizations in the first place - must be built, and be made readily available, wherever and whenever a suspect of torture shows up. In fact, these files would follow suspects wherever they go, to be taken up by alert public prosecutors. Building files and alerting the relevant authorities should therefore be our objective.

1. This presentation is partly based on C. Ingelse, H. van der Wilt, De Zaak Pinochet. Over Universele Rechtsmacht en Hollandse Benepenheid, Nederlands Juristenblad 71 (1996), pp. 280-285 (transl.: The Pinochet-case. On Universal Jurisdiction and Dutch Pettiness. The Dutch Lawyers' Journal.). An abstract (in Dutch) is available. ^

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