Spring 1999
American Purpose
Issue 1, Volume 13

Publication Date: March 1, 1999
Posted: Monday, March 3, 1999

This issue includes 'Whose Past is it, Anyway?'; '"We Choose Democracy"'; 'National vs. Universal Jurisdiction'; 'The Pirates of Today'; 'The Need for Prudence'; and 'From the Opinions of the Seven Law Lords'.


In This Issue :

Whose Past is it, Anyway?
The attempt by a judge in Spain to extradite Chile's former dictator Augusto Pinochet from London and try him in Madrid, while it seems to have surprised many newspaper readers, fits two developing patterns. The broader of the two is the effort, no doubt spurred by the century's imminent end, to revisit some of its lowest points. The desire to straighten things out—whether to compensate victims, to see the guilty punished, or only to get the truth out in the interest of history and justice—is widespread. The Japanese are asked to apologize for their conduct in China in the 1930s and 1940s, the Swiss are asked to compensate Jews, the Vatican wonders about Catholic anti-Semitism, the United States government apologizes for the internment of Japanese-Americans during World War II, and Latin Americans revisit the periods in which generals ruled and people "disappeared." "Truth commissions" in Guatemala, El Salvador, and South Africa have tried to pry facts out of reluctant witnesses and inadequate records, and to reveal secrets that lie buried beneath layers of lies.  [More]

"We Choose Democracy"
Why did these new democratic regimes not seek justice? Why did they allow the crimes of the past to be buried, or at least to go unpunished? I well recall the comment of a very high Argentine official when I asked him that question in the late 1980s. "You Americans don't really understand," he replied. "You never think that one may have to choose between democracy and justice. It does not occur to you. But that is the choice we must make, and we choose democracy."  [More]

National vs. Universal Jurisdiction
Who decides? Who gets to decide whether an amnesty is honored, or whether political criminals and human-rights violators may be prosecuted wherever and whenever they are found?  [More]

The Pirates of Today
The Pinochet case and the piracy/slavery exceptions to the traditional exclusive jurisdiction of nation-states raise a further point. Are there no modern-day analogues of pirates or slave traders, evildoers who are beyond the control of any government? Yes, there are. Modern-day terrorists fit the bill nicely. As in the case of pirates and slave traders, the state that punishes terrorists is acting on behalf of all states and is vindicating stated common values and interests, for all are pledged to fight terrorism. And even those who resist this extension of traditional jurisdiction would agree that states have a very clear right to punish persons who commit acts of terrorism on their soil, and by extension those who order such acts. The point is important, because it arises in the Pinochet case as well.  [More]

The Need for Prudence
Even in this case, however, prudence must play a role. For when a government decides to pursue a former official of another government, war and peace may be on the line.4 Not only might tension be increased and violence result within one country or the other, but there could even be violence between the countries. The decision to hunt down alleged war criminals in the Balkans is an act of state, a political decision, as would be the decision to punish Yasir Arafat for his involvement in terrorism over the years, or to seek the extradition of General Pinochet. It is notable, in the Pinochet case, that the government of Spain has never approached the government of either Chile or England to ask for custody of the general. The entire matter is the work of a single judge, whose grasp of the possible consequences—on Chilean political life, on Spanish-Chilean or British-Chilean relations, or on the efforts of other societies to quiet the demons that have led them to bitterness and strife—may be poor, or who may think such consequences irrelevant to his zeal for justice. Many have cheered him on, whether because their politics lead them to hate Pinochet or because they too believe that the consequences are irrelevant in the context of a human-rights case.  [More]

From the Opinions of the Seven Law Lords in Queen v. Bartle and the Commissioner of Police for the Metropolis ex parte Pinochet:
The opinions of Lord Browne-Wilkinson, Lord Millett, and Lord Goff of Chievely. [More]

Endnotes
Click to view endnotes. [More]