International law 'vs.' the American Constitution

National Interest, The, Spring, 1999 by Jeremy Rabkin

Former Chilean President Augusto Pinochet was sought by a Spanish magistrate wishing to try him for human rights abuses committed by the Chilean government while Pinochet was head of state. In September, with no prior warning, he was seized by British police, weeks after he had entered Britain - on a diplomatic passport for an arms-buying mission for the Chilean government. No one disputes that the military coup that brought Pinochet to power in 1973 was followed by nearly three thousand deaths or disappearances, the work of government security forces acting outside the restraints of due process. But it is also true that Chile has had a freely elected democracy since 1990 and that successive elected governments there have declined to challenge the amnesty law that protected Pinochet from domestic prosecution. Indeed, Chile's democratic government has declined even to challenge the constitutional scheme that made Pinochet commander-in-chief of the armed forces until 1997 and senator for life thereafter. So when British police arrested Pinochet, the Chilean government launched sharp and persistent protests and tried to assist Pinochet in his legal battle in the British courts.

The case for Pinochet's release turned on what had seemed a firm point of law. There has long been a customary rule of international law that courts of one country will not sit in judgment on the sovereign acts of, or the officials exercising sovereign power in, another country. As a matter of principle, to let courts in one country put the government of another on trial would be tantamount to an assertion by the first country that the second was actually subject to its authority and hence no longer fully sovereign: it would be, in effect, an attempt at conquest by courts. As a more practical matter, putting the government of another country on trial was assumed to be such a belligerent act as to be virtually an invitation to war. Thus the only exceptions to this rule until now have been cases where the home country of the defendant did not object - as in the Nuremberg trials (where the occupying Allied powers, which organized the trials, claimed to be the lawful government of Germany at the time), or in the more recent U.S. trial of deposed Panamanian dictator Manuel Noriega (whose successors were delighted to have him taken into U.S. custody and removed from their midst).

Now, of course, the world at large has no legislature to establish a new rule of international law, supervening the customary rules about sovereign immunity. Supporters of the Pinochet prosecution claimed that the rules had been changed by a succession of human rights conventions, by which governments around the world have promised to suppress and punish genocide, torture and other human rights abuses. But none of these treaties gives clear indication that it is supposed to supersede the customary rules of sovereign immunity, and certainly none gives explicit authority for third-party states to try government officials from other countries.