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Crimes Against Humanity Pinochet Faces Justice

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Crimes Against Humanity Pinochet Faces Justice Crimes Against Humanity Pinochet Faces Justice International Commission of Jurists International Commission o f Jurists International Commission of Jurists (ICJ), 1999 Imprime en France, imprimerie Abrax 21300 Chenove Crimes against Humanity - Pinochet faces Justice 3 INDEX Preface.....................................................................................................i The Coup d’Etat of 11 September 1973 Response of the International Commission of Jurists (ICJ)11 . .. Acts for which Pinochet is blamed............................................... 14 Proof and evidence that would establish the guilt of Pinochet.................... 17 Preventive measures adopted by the military regime in antici­ pation of future democracy with the view to guaranteeing the impunity of the violators of human rights, as well as to conser­ ving a degree of power that would permit the armed forces to continue to influence p olitical life in C hile ..........................................20 a) The amnesty of 1978 ..................................................................................................20 ICJ commentary concerning the Amnesty Law.......................................................... 20 b) The Constitution of 1980 - Senators for L ife...........................................................23 Pinochet’s detention in the United Kingdom, following a request from the Kingdom of Spain, who wants to try him for crim es com m itted on C hilean te rrito ry .................................................23 Opinions and judgments of the Spanish courts .................................................24 Extradition request by the Kingdom of Spain for the crimes of genocide, terrorism and torture, and for conspiracy to commit these crim............. es 26 a - Genocide .................................................................................................................... 27 Our opinion concerning the crime of genocide.......................................................... 30 b - Terrorism .................................................................................................................. 32 c - Torture........................................................................................................................34 Opinions and judgments of the courts of the United Kingdom of Great Britain and Northern Ireland.................................................................................. 35 Decision of the London High Court of Justice on 28 October 1998, finding in favour of “sovereign immunity” for Mr. Pinochet ....................................35 Our opinion of the decision of the London High Court of Justice............................ 37 25 November 1998 judgment of the Law Lords, of the House o f L o rd s o f th e U nited K in gd om ................................................................41 Against Immunity .......................................................................................................42 Lord Nicholls ..................................................................................................................42 Lord Steyn ......................................................................................................................43 Lord Hoffmann ..............................................................................................................44 4 International Commission of Jurists In favour of immunity....................................................................................45 Lord Slynn ..........................................................................................................45 Lord Lloyd ..........................................................................................................46 Our opinion of the judgment of25 November 1998 .............................48 The Minister of the Interior authorises the continuation of the extradition process ............................................48 Another obstacle - nullification on 17 December of the decision of the House of Lords of 25 November 1998 ......................................................................................49 24 March 1999 judgment of the Law Lords of the House of Lords of the United Kingdom ...............................................................51 Against recognising immunity ........................................................................ 54 Lord Browne- Wilkinson......................................................................................54 Lord Hope............................................................................................................57 Lord Hutton........................................................................................................ 59 Lord Saville .........................................................................................................61 Lord Millett ........................................................................................................ 62 Lord Phillips........................................................................................................ 66 In favour of recognising immunity..................................................................68 Lord Goff ............................................................................................................68 Our opinion of the judgment of 24 M arch 1999 ...........................70 Crimes for which Pinochet can be extradited, and which limit his prosecution in Spain ...................................................................................71 The question of dates.......................................................................................71 Ratification of or accession to the Convention against Torture by Chile, Spain and the United Kingdom.......................................................................73 Immunity ..........................................................................................................73 Does the definition of torture in the Convention against Torture apply to a Head of State? ...........................................................................................74 Massive or systematic torture ........................................................................75 Other crimes .....................................................................................................75 Forced disappearance of persons ................................................................... 76 Second Authority to Proceed, issued on 14 April 1999 by the Minister of the Interior, Mr. Jack S tra w ..........................................11 Proceedings of the extradition request before the British courts .......................................................................................79 Crimes against Humanity - Pinochet faces Justice 5 International law applicable in cases similar to that of Mr. Pinochet: an alleged criminal who will be judged in a third country for crimes against humanity (and possibly for grave infractions of international humanitarian law) committed in a territory under the jurisdiction of a State o th er th an th e one seeking to ju d g e h i m .............................................so Genocide ......................................................................................................................80 Infractions of international humanitarian law................................................ 82 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 1968.................................................. 86 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, 1973 ... 87 Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity (General Assembly Resolution, December 1973).............. 87 European Convention for the Repression of Terrorism, 1977 .......................88 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 .............................................................................88 European Convention on Extradition, 1989 ........................................................ 90 Other international law documents.......................................................................90 Inter-American Convention to Prevent and Punish Torture (OAS, 1985) ... 91 Declaration on the Protection of All Persons from Enforced Disappearance (United Nations General Assembly Resolution, 1992)......................................... 92 Inter-American Convention on the Forced Disappearance of Persons (OAS, 1994) ..................................................................................................................93 Statute of the International Criminal Court, Rome, 1998 ..............................94 Lessons learn ed fro m the P in och et case ...............................................95 Immunity is not applicable ......................................................................................96 Amnesty......................................................................................................................... 98 Neither the judicial nor political conditions exist to ensure that Mr. Pinochet will be adequately judged by the criminal justice system in Chile..........................................................................................................................
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