Stephen Vasciannie

General Pinochet died - presumably - in a comfortable bed. Pursued steadily by victims of his regime's oppressive methods, by liberals determined to enforce human rights laws against a brutal dictator, and by others who believe in the rule of law, the Chilean caudillo was able to avoid the full weight of the law by various political and other devices. Among other things, he avoided extended imprisonment on grounds of ill health, by setting up his own immunity in the period immediately after surrendering power, and by relying on political support within and without Chile.

Slobodan Milosevic died under arrest. He escaped the possibility of life imprisonment by achieving death - a death which, in the view of some sceptics, may well have been self-induced. Milosevic, too, had been pursued by adversaries, many of whom sought to have their nemesis convicted in the name of justice. In his trial before the International Tribunal for the former Yugoslavia, Milosevic enjoyed all the safeguards associated with the rule of law, but had none of the immunities arranged by 'Senator' Pinochet in Chile.

Saddam Hussein died at the end of a rough rope. He had been subjected to a trial and had been found guilty of crimes against humanity. He had been afforded an appeal, and shortly thereafter, upon the confirmation of his sentence, the former Iraqi leader was executed.

The Power Factor

( L - R ) Saddam Hussein and Pinochet

Three tyrants, three distinctly different forms of treatment: How can this be reconciled?

At the most basic level, the discrepancy in treatment can be explained in power terms. At the time Pinochet gave up the reins of power in 1990, he retained enough influence over the Chilean army and the Chilean polity to resist attempts to bring him to justice. He was, in effect, allowed to act with impunity. In contrast, although Milosevic may have retained some degree of support among Serbs in the former Yugoslavia, he was opposed by NATO governments and forces that had grown weary of butchery in the Balkans. In effect, international pressure trumped domestic support for Milosevic.

Hussein's fate provides an even stronger contrast with the case of Pinochet. The domestic complexities in Iraq - with the so-called 'debaathification' of the security forces and other arms of the state, and with religious and ethnic schisms fueling conflict - have prompted the appearance, if not the reality, of civil war.

For the present purposes, though, the point to note is that Hussein's arrest and trial did nothing to quell the unrest in parts of Iraq. On the contrary, Hussein's incarceration served as a catalyst for further unrest, a fact which may well have accelerated his execution.

Again, power considerations are important: the Americans remain essential for the existence of the domestic regime in place in Baghdad, and it is American might that ultimately ensured the execution of Hussein.

The contrast between the treatment of Pinochet, on the one hand, and the experience of Milosevic and Hussein, on the other, also raises questions about intertemporal law. Here, the question is whether, and to what extent, international law has changed between the 1970s and the present. Could Pinochet realistically argue that at the time of his activities in the 1970s international law was not strictly enforceable against tyrants?

The short answer to this question is no. In the period since World War II, international law has extended its reach in matters concerning human rights, with the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights being the most legally significant points on the road. One criticism of the international regime of human rights has traditionally been that the rules in place are unenforceable.

Addressing the situation

Partly to address this point, the International Criminal Court has been established to reduce the possibility of leaders and their warriors acting with impunity. And, similarly, for certain conflicts arising in the immediate post-Cold War, the United Nations has been instrumental in setting up tribunals - notably those pertaining to Yugoslavia and Rwanda - designed to deter and punish wayward behaviour in times of conflict.

But, although enforcement mechanisms have apparently improved since the 1970s, the underlying prohibitions on crimes against humanity, genocide and war crimes have predated the Pinochet era in Chile. Thus, in my view, Pinochet was subject to the same rules as Milosevic and Hussein: if a leader organises, encourages and sanctions gross violations against human rights, that leader acts in violation of international law.

Finally, we may note one point of contrast between Milosevic and Hussein. The former was not vulnerable to execution at the hands of the International Tribunal for the former Yugoslavia. The latter, in the hands of Iraqi nationals, was executed. To some extent, this indicates that the international system views the death penalty with reservation. But, to be sure, the international system does not prohibit the death penalty - or at least, not yet. If Hussein had been turned over to the United Nations, he would have been alive today.

Stephen Vasciannie has recently been elected to the International Law Commission of the United Nations.