Twenty-five years ago this month, Scotland Yard arrested Chilean military dictator General Augusto Pinochet in a London hospital on charges of “genocide and terrorism including murder”.
It was a dramatic event and the first of its kind. Six days earlier, Spanish judge Baltasar Garzón had issued an indictment for 82-year-old Pinochet, who had travelled to the UK on a diplomatic passport; he was arrested on an Interpol red notice.
After a year-long investigation with fellow jurist Manuel García-Castellón, Garzón had indicted Pinochet under the legal principle of universal jurisdiction — the first time it had been used. It holds that anyone accused of international crimes such as war crimes, crimes against humanity, torture, and genocide may be judged by any state anywhere in the world at any time.
Arrests under universal jurisdiction are carried out by arrest warrants, issued either by the International Criminal Court (ICC) — as is the warrant for Russian president Vladimir Putin for the war crime of deporting children from Ukraine — or by a national court intent on prosecution. (This depends on the country’s domestic legislation, its accession to a treaty on international crimes, or its submission to the ICC.)
As with all legal matters, it’s no quick fix. Pinochet’s thousands of victims never got to see justice; he died in 2006 without having stood trial. But, today, the fight against impunity seems to be gaining ground, as suggested by two recent indictments.
First, in August, the Swiss announced that former Algerian defence minister General Khaled Nezzar, will stand trial for alleged war crimes committed during his country's “Black Decade”.
He was one of the leading members of a putsch that installed a military dictatorship in Algeria when it became clear that the Islamic Salvation Front was about to win the national elections over the National Liberation Front in 1992. Over the subsequent decade of dirty war, as the suppressed Islamists fractured into ever more extremist factions, perhaps 200,000 people died — 18,000 of them were forcibly “disappeared”.
Nezzar denies charges that he “knowingly and willingly condoned, co-ordinated and encouraged the torture and other cruel, inhumane or humiliating acts, physical and psychological assaults, arbitrary detentions and convictions and extrajudicial executions”.
And 12 years ago, after investigating the case, Geneva-based nonprofit Trial International laid the charge against Nezzar, then living in Switzerland. He’d fled Paris after nine Algerians laid charges of torture against him. After their own investigations, Swiss prosecutors indicted Nezzar this August.
The courts have yet to set a trial date, and Nezzar will be tried in absentia. He is rumoured to be on his death bed and having returned to Algeria, he has said he would refuse to attend.
In another benchmark trial, also brought under universal jurisdiction, two Swedish oil executives made their first appearance in a Swedish court on September 5. Former Lundin Oil chair and billionaire Ian Lundin and his former CEO Alex Schneiter, now a board member, face charges of complicity in war crimes committed in Sudan from 1999 to 2003.
Prosecutors charge that Lundin Oil, heading a Swedish-Malaysian-Austrian-Sudanese consortium, signed an agreement with Omar al-Bashir’s murderous regime in Sudan to secure an oil-exploration field in what is now South Sudan. They did this, say prosecutors, knowing that it would involve the Sudanese military and ethnic Nuer militia allies “systematically attacking civilians”, or at least wielding indiscriminate force.
About 160,000 people were displaced and an estimated 12,000 killed in the clearance of key parts of the 54km² exploration site. The military used helicopter gunships and bombers, while the militia destroyed hospitals, churches, schools, government buildings and NGO compounds, such as that of Médecins Sans Frontières.
Following a 2003 Human Rights Watch report linking oil exploration to atrocities, Netherlands pacifist nonprofit PAX compiled evidence and brought it to Swedish organised crime prosecutors. They opened an inquiry in 2010, compiling an 80,000-page report for the trial. Among 90 subpoenaed witnesses will be former Swedish prime minister Carl Bildt, a former Lundin Oil board member.
Lundin and Schneiter flatly deny the charges, claiming the atrocities were committed by warring tribes. But, if convicted, they face life sentences and a decade-long business ban, while the company’s remnant, Orrön Energy, may be fined the equivalent of $124.2m (the price of the 2003 sale of its Sudanese interests), plus another $268,000.
The Swedish case may set an international legal precedent in terms of curbing the excesses of Western multinational corporations operating in the developing world. And, as PAX spokesperson Egbert Wesselink says: “This is the first time since Nuremberg that a listed company will [account] in court for war crimes.”
Former South African judge Richard Goldstone is no stranger to issues of atrocity in sovereign states: he ran a commission of inquiry into violence in South Africa over 1991-1994, and went on to serve as chief prosecutor for the UN’s criminal tribunals for the former Yugoslavia and Rwanda.
“It was the Pinochet case in London that first drew international attention to the potential importance and force of universal jurisdiction for what are now commonly called ‘atrocity crimes’,” he tells the FM.
The Swiss and Swedish cases are important, he adds, “because they advance the recognition that atrocity crimes are not acceptable in societies that are considered to be civilised and humane, and that authorities in all counties should take appropriate steps to rein in those who are suspected of committing such crimes.”
Critics, however, raise issues around state sovereignty. In the Pinochet case, for example, Goldstone points to “the inevitable political opposition against domestic courts ‘interfering’ or ‘meddling’ in the affairs of foreign states”.
Still, concerns over intrusions into sovereignty and allegations of a neocolonial slant to the prosecutions by the ICC being primarily against Africans — such as former Sudanese leader Al-Bashir for genocide and war crimes — may be “perceptions rather than facts — but not less relevant on that account”, Goldstone cautions.
And yet, he says: “Importantly, universal jurisdiction was used (at the behest of the AU) when Senegal set up a special international court that tried and convicted Hissène Habré,” the president of Chad from 1982 to 1990.
Habré was sentenced to life imprisonment for rape, sexual slavery and ordering the killing of 40,000 people. The first former head of state convicted under universal jurisdiction, he died in prison in 2021.
But there are two other problems with enforcing international atrocity law.
First, though in principle it advances by precedent, no international tribunals were held between the 1947 Tokyo trials and those starting in 1993 in the former Yugoslavia. Tribunals have proliferated since — and the ICC has been founded — but these remain deeply controversial because of interference by the great powers, resistance by states protecting perpetrators and politico-diplomatic arguments over who is targeted for prosecution. Former US president George W Bush and former British prime minister Tony Blair, for example, have not been indicted for alleged war crimes in Iraq.
Second, it is often civil society that has done the legwork on investigations. But only on rare occasions has it persuaded prosecutors to act, as with PAX in the Sudanese case and Trial International in the Algerian case. “In all the relevant cases the role of civil society organisations was crucial and indispensable,” Goldstone admits.
That role may be more important than ever. As Mary Burton, Black Sash patron and former commissioner on South Africa’s Truth & Reconciliation Commission, notes: “So long as any offence goes unnoted and unprosecuted ... then justice becomes a farce in any country. So, people must be held to account for decisions they take and actions they take and it applies across the board, whether it is financial or physical brutality or any kind of injustice.”