W hen General Augusto Pinochet stepped off a Chilean Air Force jet last March and into the welcoming embrace of the Chilean military, it seemed the ex-dictator's saga had finally come to an end. Wearing a pastel tie and pressed suit, Pinochet looked surprisingly fit as he walked past an honor guard and a military band before being whisked away by motorcade to a heavily guarded compound. After holding the former dictator for more than a year, the British government had finally sprung the general from his gilded cage when a government medical team ruled him unfit to stand trial. Pinochet's arrest in October 1998--at the request of a crusading Spanish prosecutor--had sent shock waves through a world unaccustomed to the sight of world leaders called to account for their crimes; his subsequent return to Chile seemed to signal a return to the old, familiar world of sovereignty, immunity, and--to many eyes--impunity.
But appearances were deceiving. Pinochet's arrest was an important moment for the development of international law, and his eventual release did little to diminish its importance. In fact, some observers, including José Zalaquett, a professor of law at the University of Chile and a former member of the Chilean National Commission for Truth and Reconciliation, even argue that Pinochet's release was a hidden blessing for the cause of human rights. The British law lords' complex opinion had limited Pinochet's legal vulnerability to a small window of time and thus rendered any eventual prosecution of Pinochet in Spain quite difficult. For Zalaquett, Pinochet's release let stand the important precedent that former leaders were not immune from prosecution while avoiding the humiliation and setback of a possible acquittal. Other human rights officials breathed a quiet sigh of relief for another reason: The image of an aged and feeble Pinochet badgered by aggressive prosecutors might have generated a public relations backlash.
Notwithstanding Pinochet's return, the reverberations from his arrest have shaken his native Chile and circled the globe. At home Pinochet faces more than 100 individual criminal and civil complaints; and in a stunning decision in late May, a Chilean appeals court lifted the ex-dictator's immunity, which the general himself had crafted as a condition for leaving power. These steps have unsettled the nation's military brass, which recently gathered for a none-too-subtle meeting to discuss developments. Internationally, as well, the human rights community is moving aggressively to expand the Pinochet precedent. Pinochet's triumphal return, it is becoming clear, was by no means the end of the story. And some of the next chapters are being written in distant parts of the globe.
Hunting a Dictator
As soon as Pinochet was detained in London, human rights activists and victims scanned the horizon for other ex-dictators who might be brought to justice. There was no shortage of candidates. Dictators fleeing coups, wars, or popular uprisings have made a tradition of seeking refuge in other countries. Former Haitian strongman Jean-Claude Duvalier retired to the south of France; onetime Ugandan dictator Idi Amin absconded to Saudi Arabia; and Ethiopian dictator Mengistu Haile Mariam ended up in Zimbabwe after his ouster. Often the state treasuries of the nations they ruled have funded the dictators' retirement. The problem for those seeking to expand the Pinochet precedent was that the governments hosting these erstwhile strongmen often showed little inclination to follow Britain's or Spain's lead. When asked to try Idi Amin, Saudi Arabia pleaded "Bedouin hospitality." Last year South Africa fumbled an opportunity to seize Mengistu when he traveled there for medical treatment. But at least one former dictator was found who presented a more promising target.
It was early last year that Reed Brody of Human Rights Watch and Peter Rosenblum, the associate director of Harvard Law School's human rights program, began discussing another splendidly retired, but substantially more vulnerable, ex-dictator: Hissene Habré of Chad. Habré ruled the northern African nation from 1982 until he was deposed in 1990. His reign was, by all accounts, exceptionally brutal. A truth commission convened by the new government in 1992 reported that he was responsible for the deaths of 40,000 Chadian citizens. His secret police, the DDS, made torture into what the commission called an "institutional practice." However bloody, Habré's grip on power was tenuous. For most of its eight years, his regime fought insurgencies from within and challenges from neighboring states. France and the United States, eager to counter Quaddafi's Libya, supplied the Habré regime with aid and weapons. When Habré finally fled--reportedly with looted millions--he nested in the West African nation of Senegal. There, he joined the Senegalese upper class and lived on his ill-gotten riches.
A confluence of circumstances, however, made Habré more vulnerable than many other ex-dictators. Like several other African countries, Senegal was a signatory to most international human rights instruments (including, importantly, the United Nations Convention Against Torture). Unlike most African states, though, Senegal's courts had a reputation for independence, making a credible prosecution of the dictator possible. Finally, the truth commission, by documenting some of Habré's crimes, provided a foundation for legal action.
The idea of bringing Habré to justice had circulated since he was deposed, but it took the Pinochet arrest to jump-start the process. And two graduate students at Harvard, Genoveva Hernandez and Nicolas Seutin, served as the conduits for action. Hernandez and Seutin were sent with Harvard money to Chad for the summer, ostensibly to examine a proposed pipeline project that had come under scrutiny by the human rights community. But in discussions with Brody and Rosenblum before they left, it was agreed that they would nose around and assess the appetite and means for a prosecution of Habré. Their unofficial mission was to be kept quiet; the attitude of Chad's current government to a prosecution was unknown (it had never requested Habré's extradition), and there was always the prospect that Habré would get wind of the project and flee to a safer locale. There was also the possibility that a prosecution might aggravate the tense regional and ethnic relations in the country: Habré came from north of Chad, while the Chadian human rights community comprised mainly southerners.
At first Hernandez and Seutin found little encouragement. In Chad's monsoon-soaked capital, they quietly met with a succession of victims as well as members of the country's fledgling human rights community. The chairman of the old truth commission, Ismael Hashim Abadallah, proved to be a shadowy character, known in local human rights circles for his venality. It was not until a series of contacts finally led the students to Souleyman Guengueng that their prospects brightened. Guengueng--described by Hernandez as "the hero of this story"--had spent more than two years in a tiny cell during Habré's reign. In his home, he kept in a box a small collection of items from his time in prison. But grim memorabilia was not all he collected. Quietly, Guengueng had compiled almost 2,000 pages of data on Habré's victims. Here was the raw material for a prosecution. When the students let slip their ultimate purpose, Guengueng broke down. Every night, he told them, he had prayed that justice would someday reach his tormentor.
Galvanized by the find, Hernandez and Seutin arranged for Guengueng to copy all his files, which he did surreptitiously at his government office. With their stay in Chad coming to a close, the students then scrambled to get the crucial evidence out of the country. Both the European Union and the American embassy signaled a willingness to transfer the files by diplomatic pouch, but Seutin eventually stuffed the documents into his suitcase and left the country unmolested.
Brody, Rosenblum, and representatives from several other human rights organizations then contacted a group of Senegalese lawyers to take the next step: filing a criminal complaint against Habré in Senegal. Human Rights Watch funded a trip by Pascal Kambale, a Congolese lawyer, to research Senegalese law and draft the complaint. For weeks he sweated over legal texts and consulted with local lawyers to ensure that the proper procedures were followed. By chance Kambale had taken an apartment in the neighborhood that Habré himself inhabited, and one night, after spending hours researching the complaint, Kambale glimpsed the dictator as he and his entourage swept past into his walled estate.
Only a few short months later, Kambale and his collaborators exulted as Habré was summoned from his estate to a Senegalese court to hear the indictment. The complaint, the result of frantic but quiet work by a network of local lawyers and Western human rights advocates, charged Habré with torture. Almost a dozen witnesses and victims came from Chad to testify before the investigating judge. Habré arrived at the courthouse with bodyguards in tow, but left with his passport confiscated. A Senegalese gendarme moved into place in front of his estate. The news of Habré's indictment raced around the continent and riveted the attention of populations wholly unaccustomed to seeing former leaders called to account by judges. Brody recalls emerging from the courthouse and hearing one of Habré's victims being interviewed on French radio, which reaches most of West Africa. That kind of publicity, Brody argues, "will give pause to people in power ... and inspiration and hope to victims that justice is not out of their reach."
The Pinochet Precedent
Not everyone is so gleeful about the possibility of extending the Pinochet precedent. One persistent criticism holds that these prosecutions are the work of outsiders intervening in other nations' domestic matters and upsetting delicate and perhaps benign local political arrangements. John Bolton, an assistant secretary of state in the Bush administration, has attacked these prosecutions as the machinations of a small group of elitist and politically biased human rights advocates meddling in affairs they do not fully understand. Bolton, who has said that Habré ruled Chad "during a tough time in a tough neighborhood," sees a strong streak of paternalism at work in the prosecutions. Justice for Pinochet and Habré, in this view, must be determined by the people of their own respective countries and not by a motley collection of nongovernmental activists. Peaceful political change in Chile was, in Bolton's view, the result of a national compromise: a democratically elected government for the country; immunity for Pinochet and his associates.
Bolton is not alone. Shortly after Pinochet's arrest, the Chilean daily El Mercurio wrote that the case against Pinochet "threatens seriously to disrupt political stability in Chile... . [W]e are about to witness the pointless unearthing of painful events that happened more than 20 years ago and that nearly pushed Chile over the brink into civil war." Former Chilean President Eduardo Frei worried that "the extraterritorial enforcement of domestic laws could result in small countries suffering impositions by big countries." Uruguayan President Julio Maria Sanguinetti warned that prosecutions like that of Pinochet might undermine the "complex equilibriums" that have permitted the transition to democracy in Latin America.
Many critics also make another argument: that these nongovernmental actors, who play such a central role in these cases, simply lack accountability. Those concerns are shared even by some who sympathize with their goals. Reacting to the recent World Trade Organization protests, Jenny Bates of the Progressive Policy Institute wrote that "NGOs are not elected and, unlike governments, need not answer to the broad public they claim to represent." The Habré case makes the point well: The activists working on the prosecution operated in relative secrecy and, in particular, hid their activities from Chad's government and public. And the process they were initiating was not without risk. In pursuing Habré, many of the participants acknowledged that the case had the potential to exacerbate regional and ethnic tensions. Seutin himself had some misgivings about the work he did with a human rights group largely composed of southerners hostile to the regime. It was, he says, "almost as if I was working for a political party." Through skeptical eyes, then, the Habré experience raises a troubling question: Do we want foreign activists making decisions that might destabilize national governments and undermine tacit domestic compromises between the demands of peace and justice?
For Brody of Human Rights Watch, the methods used against Pinochet and Habré themselves represent a necessary compromise. "In an ideal world," he says, "Pinochet is tried in Chile, Habré is tried in Chad, and Milosevic is tried in Serbia, but given that most mass atrocities are committed in name of state, it's going to be rare that the state itself is in the position to conduct a prosecution. So then you go to international justice stage." And it is not clear that the gloomy predictions about what transnational prosecutions might do to domestic peace are well-founded. The initial effect of the Habré prosecution in Chad was, according to Harvard's Rosenblum, "to make local human rights activists into heroes." The involvement of outside activists may have given embryonic civil society in Chad a hearty boost. International judicial intervention appears to have breathed new life into Chile's judiciary, as the decision to lift Pinochet's immunity indicates. According to Diane Orentlicher, a law professor at American University, the international involvement "expanded the space for Chilean society and institutions to confront their dark past themselves."
The picture that critics paint of foreign activists imposing their will on local communities is also something of a caricature. Souleyman Guengueng and his victims' association had been compiling information on Habré for years before the Harvard students came knocking on his door. What the global human rights community did was to reach into Chad and empower an existing group that lacked resources, expertise, and a voice in a still autocratic country. Orentlicher finds the image of dangerous foreign activism no more convincing in the case of Chile: "The argument that outsiders should respect the choices made by 'Chilean Society' misses a crucial point: The victims of [the] torture chambers and the survivors of those whom he disappeared did not choose to consign his crimes to legal oblivion. The politicians who 'accepted' Pinochet's self-amnesty hardly exercised freedom of choice in this regard." In today's world, no country can resist outside influences. The bloody regimes in Chile and Chad benefited from the support of friendly governments and international investment. Given this constant and overlapping foreign influence, why should we ask the human rights community to abstain?
Patchwork Justice
The fact that Hissene Habré faces legal scrutiny for his crimes while his successor, Idriss Deby--no friend of human rights himself--watches safely from Chad is one of the symptoms of today's rudimentary and often arbitrary international justice system. Justice plays an inconsistent role on the international stage. For the Balkans and Rwanda, the United Nations Security Council has taken the dramatic step of creating powerful regional tribunals that may disregard the immunity of officials and heads of state, present or past. Victims of past abuses in those locales at least have the solace of witnessing some war criminals answer for their crimes. This spring, citizens of Sarajevo woke to the news that French troops had seized a key henchman of the notorious Radovan Karadzic. In Sudan or Angola, where the suffering has dwarfed that in the Balkans, international justice is nowhere to be seen. Cuba's Fidel Castro may travel the world, cloaked in his head-of-state immunity, while Pinochet will likely never leave Chile again. In international law, like cases are decidedly not treated in a like manner.
Efforts to systematize international justice are underway. In June 1998, representatives of dozens of countries met at an elaborate diplomatic conference in Rome to sign a treaty creating an International Criminal Court (ICC). The contrast between that lofty intergovernmental process and the more humble efforts by activists in Chad and Senegal could not be more striking. Even the uncertain prospect of a Habré prosecution has probably stirred more fear in the hearts of Africa's tyrants than the dim prospect of a permanent international court. At the same time, the very ambition of the ICC has ensured it the enmity of the United States, whose support will be essential to its success. In many cases and for years to come, ad hoc justice will be the only brand of justice available.
The next few weeks will be crucial ones for the Pinochet precedent. Strange machinations in Senegal have left the Habré case in doubt. Just as an appeals court was set to decide on the case, Senegal's new president replaced the investigating judge. One African human rights activist accused the Senegalese government of "behaving like a banana republic." Human rights groups are now attempting to resuscitate the case. Meanwhile, in Chile, the Supreme Court is set to decide whether Pinochet's immunity--first brought into doubt by international legal intervention--will survive at home. Today's dictators will be paying close attention to how the courts treat their predecessors. ¤
