An appeals court in Chile this week unanimously upheld the indictment and arrest of the country's former military dictator, Augusto Pinochet, a strong indication that the country's Supreme Court will do the same and quickly.
That means Pinochet's trial on murder and kidnapping charges, for which he was indicted last week, can go forward. The government says that under Pinochet's rule from 1973-1990 his regime murdered 3,190 political opponents.
The actuarial tables may get Pinochet, who is 89 and recovering from a stroke, before the legal system does, but the importance of this case is that it is being handled by the Chilean legal system under Chilean law.
Recall that in 1998 Pinochet journeyed to England for surgery. Despite an assurance of immunity, the British government detained him and held him under house arrest for 16 months. The British were acting on a warrant from a maverick Spanish magistrate, Baltasar Garzon, who planned to try Pinochet for assorted crimes he allegedly committed while dictator. Self-styled human rights activists were jubilant, but the British ultimately let Pinochet return to Chile on grounds that he was too old and sick to stand trial.
However, his detention gave a shot in the arm to "universal jurisdiction," the idea that former and serving government and military officials are subject to arrest and trial for war crimes and crimes against humanity at any time in any country, regardless of where the alleged crimes occurred.
It didn't take long for the mischief implicit in this doctrine to occur. The principal victim was former U.S. Secretary of State Henry Kissinger, whom The American Lawyer called "the great white whale of universal jurisdiction."
Garzon tried to have the British detain Kissinger; a French court tried to bring him in for questioning; and a Belgian court mulled indicting Kissinger and Israeli Prime Minister Ariel Sharon. Belgium even passed a law giving it broad jurisdiction to try anybody for war crimes committed anywhere; the law was so broad that NATO threatened to pull its headquarters out of Brussels if it wasn't changed.
The Pinochet case and its ramifications are why the United States has remained justly skeptical of the International Criminal Court, and Pinochet himself is being tried where and as he should be — in Chile.