IMMUNITY IS ONE LETTER AWAY FROM IMPUNITY
I saw a movie at the library tonight called The Pinochet Case by the Chilean director Patricio Guzman. It was a documentary partly about the judicial procedure that lead to the house arrest in London of the former Chilean dictator Gen. Augusto Pinochet and partly interviews with victims and relatives of victims of Pinochet's regime.

I will not bother speaking of the acts committed under his regime. Much has already been written about these things far more poignantly than I could muster up. But I will comment on some of the stuff I heard during this film.

The documentary mostly interviewed torture victims of Pinochet's regime, relatives of victims as well as lawyers who fought for Pinochet's indictment in Spain and extradition from Britain. But the director also interviewed several prominent British Pinochet supporters and showed large extracts of their comments.

One of the points most often made by the Pinochet supporters was that heads of state and formershould be immune from such proceedings. In fact, that diplomatic immunity was the foundation of Pinochet's defense against the charges. Leaders of countries have diplomatic immunity, so do former leaders.

This struck me as both bizarre and telling. Telling because they didn't argue his innocence, that he didn't do what he was accused of doing, that he wasn't responsible. Pinochet's apologists instead contended that he shouldn't have to answer. That he's not accountable for anything he may or may not have done or been responsible for.

Pinochet's supporters argued that no head of state or former head of state should have to answer for crimes they may have committed or been responsible for during their rule. Being or having been a head of state gives you immunity. This is bizarre and totally antithetical to any concept of rule of law.

Ordinary citizens have to obey the law or else they have to answer in court for what they've done. The head of state is the chief executive, responsible for making sure the laws are fairly executed. Unlike the ordinary citizen, the head of state swears an oath to protect the constitution, faithfully execute laws, etc; if he’s a military man, like Pinochet, he takes another oath as well.

By taking that oath, the head of state is promising to hold himself to a HIGHER standard than the ordinary citizen who swears no such oath. Simply put, how can a head of state demand that the laws be enforced if he is unwilling to subject himself to those same laws himself?

While one might conceivably argue that current heads of state must have temporary immunity so that affairs of state are not put behind personal litigation against the president, there is no such public interest in protecting former heads of state. Just because you instigate a military coup and violently seize control of a country, that gives you lifetime immunity from any prosecution? I understand why the coup leaders favor such laws because it's criminals like them who need such immunity. What's less compelling is why countries supposedly committed to the rule of law go along with such things.

Universal jurisdiction is the principle that certain crimes are so odious, so much of affront to humanity, that any country should be able to try those crimes. These are typically the worst offenses like genocide, “ethnic cleansing,” torture and other crimes against humanity. In this case, a Spanish judge contended that accusations that Pinochet was responsible for torture in Chile should be heard in a Spanish court, because Chilean courts refused to hear them. The Spanish Supreme Court agreed and asked Britain to extradite Pinochet (who was in London for medical treatment). The case was bolstered by the fact that many of Pinochet’s victims were Spanish citizens and, if I remember well, his regime was suspected of targeting Chilean opposition figures exiled in Spain.

One of the arguments against universal jurisdiction for crimes against humanity is that it’s a violation of national sovereignty. Yet blanket immunity for former heads of state is a violation of the most basic principles of the rule of law, ie: that the law applies equally to everyone. Further weakening the sovereignty argument is that most countries have voluntarily and of their own free will agreed treaties promising not to tolerate these worst practices.

The present system of international tribunals for specific wars has been much maligned as a precursor to the despised, by the pro-sovereignty folks in this country, International Criminal Court. That many of these pro-sovereignty folks see nothing wrong in violating the sovereignty of other nations is, to them, beside the point. Nevertheless, it is ironic that those tribunals have functioned precisely BECAUSE of the willful cooperation of the countries involved.

The International Tribunal for Rwanda and the government of Rwanda have worked together to try genocide suspects, even if the government has become impatient with the slowness of the tribunal. The War Crimes Court for Sierra Leone was set up in cooperation with the authorities in Freetown. Even in the case of the International Tribune for the former Yugoslavia, Slobodan Milosevic was not sent to The Hague by NATO Troops but by the Serbian government.

The most vocal supporters of this concept of immunity for current and former heads of state have been conservatives. The most vehement pro-Pinochet supporters in Britain have been Margaret Thatcher and other Conservatives close to her. Pinochet has his supporters in this country as well, not many of the left I’m certain.

Yet, those people were not screaming about “head of state immunity” when Pres. Bush the elder invaded Panama to arrest its dictator Gen. Manuel Noreiga. They weren’t screaming “head of state immunity” when Ken Starr was pursuing Bill Clinton. And I GUARANTEE you no one in this country or in Britain will be screaming “immunity” if Saddam is ever found alive.