The first lesson of the Pinochet affair is that the ICC’s prosecutions will likely be ideologically based. Indeed, does anyone seriously believe that Mikhail Gorbachev will be arrested next time he travels to Western Europe and tried for the bloody war in Afghanistan or for the KGB’s cruel excesses during his six-year tenure? Was anyone startled by Italy’s decision not to extradite Abdullah Ocalan, the recently captured Marxist leader of the Kurdish Workers’ Party, to Turkey, where he is wanted as a terrorist? Or the German government’s decision not to demand Ocalan’s extradition to Germany where a number of his alleged murders took place? Last, was anyone surprised by the Spanish authorities’ decision to go after Pinochet, but at the very same moment, allow Cuban dictator Fidel Castro rome around Spain freely?
The second lesson the Pinochet affair teaches us about the ICC is that its activities could threaten the fragile peace of transitional democracies. Chile and other new democracies around the world have withstood recent political and economic strains, but the arrest of Pinochet has reopened old wounds and many Chileans believe that terrorist violence could erupt if he is not allowed to return home. “I have already been threatened by ultra-left-wing terrorists,” says Sen. Hernan Larrain of the rightist Independent Democratic Union Party. His worst fear is that a British decision to go ahead with extradition will polarize the Chilean population, creating a climate for violence. Many people on the left also fear that terrorist violence could be aimed against them, since armed right-wing groups and former secret policemen are reportedly reorganizing. There is also widespread fear that the Chilean military will reassert control if the political situation deteriorates markedly.
In addition to unsettling peace around the world, the ICC’s activities could make achieving peace in the first place more difficult. Consider the case of Palestine Liberation Organization leader Yasser Arafat, who was in the United States negotiating the Wye River Agreement the same week Pinochet was arrested in Britain. Would Arafat have negotiated at all if he thought the American government might arrest him when he arrived and try him for acts of PLO terrorism? Or would the recent Irish Peace Settlement have been negotiated if the Catholic or Protestant leaders faced criminal prosecution?
The third lesson the Pinochet affair teaches us about the ICC is that its authority may be interpreted in expansive ways. For example, although Pinochet’s secret police are implicated in the deaths or disappearances of 3,000–4,000 people over 17 years (an average of about 250 people a year) he is being charged with the crime of genocide, defined by the 1948 Genocide Convention as systematic killing with “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.” Proponents of the genocide charge against Pinochet maintain that the elimination of political opponents through assassinations and imprisonment constitutes a kind of “ideological genocide.” So much for original intent.
The Pinochet affair is thus an alarming harbinger of the ICC. Specifically, the planned court stands to produce an arbitrary and highly politicized “justice” and open a Pandora’s box of political folly and malleable laws. The Pinochet affair, in short, portends a very hazardous future.
