35 New Eng. L. Rev. 311 (2000-2001)
The Pinochet Precedent and Universal Jurisdiction

handle is hein.journals/newlr35 and id is 321 raw text is: The Pinochet Precedent and

Universal Jurisdiction
Naomi Roht-Arriaza*
In October 1998, General Augusto Pinochet, military ruler of Chile
from 1973 to 1990, was arrested in a London clinic on orders of a Spanish
court. That court, acting under a Spanish law' permitting universal juris-
diction over certain crimes, has since 1996 been investigating the top
leadership of the Chilean and Argentine militaries for their role in the
murder, disappearance and torture of thousands of real or perceived oppo-
nents throughout the Southern Cone of South America. Pinochet's deten-
tion merely exposed to the world the tip of a larger iceberg.
The Pinochet case and the related cases in Spanish and other European
courts provide a fascinating case study of the benefits and risks of univer-
sal jurisdiction. My talk today will focus on a few aspects of these cases:
first, the jurisdictional bases of the Spanish and other European suits in
national law, and the implications of this grounding in national law; sec-
ond, the effects of the Spanish cases, in particular, within Chile and Ar-
gentina; and third, some of the particular factors that have made the
Spanish prosecutions relatively successful.
The Spanish cases2 began when members of the Spanish Union of Pro-
gressive Prosecutors filed a complaint in April 1996, accusing members of
the Argentine military junta of genocide, terrorism, and other crimes re-
garding the detention and subsequent disappearance during the 1970s of a
number of Spanish citizens and citizens of Spanish descent who were liv-
ing in Argentina. The case was filed under Spanish laws allowing public
interest organizations, as well as aggrieved individuals, to file and main-
tain criminal complaints even without the backing of, and in this case over
the strenuous opposition of, the state prosecutors office. Thus, a group of
exiles and human rights activists, backed by the Spanish political party
United Left and by professional associations, could maintain the prosecu-
tion without state consent, merely with a commitment by the state not to
interfere with the independence of its own judiciary.
Article 23.43 of the Spanish Judicial Law allows prosecution of non-
Spanish citizens for some crimes committed outside Spain, among them
*  Professor of Law, University of California, Hastings College of Law.
I. Ley Organica del Poder Judicial, art. 23(4) (1985).
2. See Spanish National Court (Audiencia Nacional), Case 19/97 (Judge Gar-
zon) and Case 1/98 (Judge Garcia-Castellon) (1998).
3  Ley Organica del Poder Judicial, art. 23(4) (1985).

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