Implications of Democratic Republic of the Congo v. Belgium on the Pinochet Precedent: A Setback for International Human Rights Litigation?

In 1999, the British House of Lords issued a landmark decision abrogating Augusto Pinochet's immunity under international law as a former head of state, declaring him subject to extradition for the crime of torture.1 The former Chilean dictator was eventually declared too ill to stand trial and returned to Chile. Still, the Law Lords' decision was hailed as a major breakthrough by the international human rights community, and spawned a campaign to bring heads of state and other leaders accused of human rights abuses to trial in foreign courts. The Pinochet decision brought to the fore the tension between the increasingly broad reach of international human rights law and the fundamental international law principle of sovereign equality.2 Criticism of the decision ranged from the basic notion that this was an impermissible abrogation of Chile's sovereignty, to the more nuanced argument that international prosecution of former dictators would detract from certain nations' abilities to make the transition from dictatorship to democracy. This year, the International Court of Justice ("ICJ"), in Democratic Republic of the Congo v. Belgium, had the opportunity to consider a similar issue-whether Belgium could bring Congo's Minister for Foreign Affairs, Abdoulaye Yerodia, to trial in its courts for alleged "crimes against humanity."3 The ICJ denied Belgium's claim on the IMAGE FORMULA4 specific ground that incumbent Ministers for Foreign Affairs are immune from criminal suit abroad, notwithstanding allegations of having committed "war crimes" or "crimes against humanity."4 By clarifying that the Pinochet precedent does not extend by force of logic to incumbent officials, Congo v. Belgium has already had a real world impact-causing the Belgian Court of Appeals to dismiss the prosecution of Israeli Prime Minister Ariel Sharon for war crimes, which had been brought under the same statute that authorized the Yerodia prosecution.5 It may also have a broader effect. The main holding of Congo v. Belgium is technically consistent with Pinochet, insofar as the ICJ ruled on the immunity of incumbent rather than former officials. The reasoning of the ICJ, however, is in serious tension with that of the Law Lords, and the opinion could even be read as a rejection of Pinochet. Insofar as Pinochet was considered by many to represent a sea change in the international law on official immunity, the ICJ opinion casts doubt on this belief. This development will consider the impact of the Congo v. Belgium decision on the Pinochet precedent and the law on official immunity for serious international crimes. Part I will briefly review the legal bases for the Pinochet decision. Part II will lay out the legal bases of the majority opinion in Congo v. Belgium, and examine what of Pinochet survives that opinion. Part III will examine the main Congo v. Belgium concurrence and highlight its attempt to salvage the Pinochet precedent-an attempt which throws into relief the fact that Pinochet has, in fact, been undercut. I. PINOCHET In October 1998, a Spanish court issued an international arrest warrant against Augusto Pinochet for acts of torture, hostage taking, and other conduct carried out during his reign of power in Chile, invoking universal jurisdiction as a basis for its action. Pinochet, who had entered Britain for back surgery in September 1998, was arrested by British authorities pursuant to the Spanish warrant. Pinochet's challenge to this action eventually reached the House of Lords, where a majority of the Law Lords found that, despite his status as a former head of state, Pinochet was not entitled to immunity from arrest and extradition on the specific charges of torture and conspiracy to commit torture.6 IMAGE FORMULA7 In order to reach the issue of whether Pinochet enjoyed immunity under British law, the Law Lords had to first interpret the relevant international law. …