Complementarity: Contest or Collaboration? - FICHL

Complementarity and the Exercise of Universal Jurisdiction for
Core International Crimes
law. 107 This initial judgement by the House of Lords was set aside due to
the alleged bias of one of the Lords, Lord Hoffman, who had links to
Amnesty International. Nonetheless, on 24 March 1999, a new panel of
the House of Lords also reversed the High Court decision, thus endorsing
the extradition of Chile‟s longstanding President to a forum state with no
real nexus to the alleged crimes. 108 However, Pinochet was never extradited,
because Jack Straw determined in March 2000 that the former
President‟s health, specifically his mental fitness to stand trial, militated
against an extradition order. 109 Under a storm of controversy, Pinochet
was returned to Chile shortly thereafter.
Though Spain‟s attempt to assert universal jurisdiction over Pinochet
was ultimately frustrated by practical obstacles, it was a landmark
case in that universal jurisdiction found judicial support in both Spain and
the U.K. Unsurprisingly, then, a number of other complaints under the
universal jurisdiction provisions of Spanish law ensued. Adolfo Scilingo,
an Argentine naval officer and a member of the infamous Argentinean
Naval School of Mechanics (“ESMA”), was accused of participating in
„death flights‟ in which people who had been abducted were thrown out
of the aircraft, naked and unconscious, into the ocean thousands of metres
below. Scilingo was arrested when he voluntarily travelled to Spain in
1997 in order to give testimony concerning these events and was eventually
convicted on 19 April 2005 for crimes against humanity and sentenced
to a 640-year term of imprisonment, 110 increased to 1,084 years on
4 July 2007 by the Spanish Supreme Court. A similar indictment against
Ricardo Miguel Cavallo, another ESMA naval officer accused of genocide,
terrorism and torture, led to an extradition request to Mexico, where
107
Richard A. Falk, “Assessing the Pinochet Litigation: Whither Universal Jurisdiction?”,
see supra note 105, p. 111.
108
R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No.
3), 24 March 1999.
109
Michael Byers, “The Law and Politics of the Pinochet Case”, in Duke Journal of
Comparative and International Law, 2000, vol. 10, no. 2, p. 438.
110
For a discussion of the case, see Christian Tomuschat, “Issues of Universal Jurisdiction
in the Scilingo Case”, in Journal of International Criminal Justice, 2005, vol. 3,
no. 5, pp. 1074-1081; Alicia Gil Gil, “The Flaws of the Scilingo Judgment”, in Journal
of International Criminal Justice, 2005, vol. 3, no. 5, pp. 1082-1091; Giulia Pinzauti,
“An Instance of Reasonable Universality: the Scilingo Case”, in Journal of International
Criminal Justice, 2005, vol. 3, no. 5, pp. 1092-1105.
FICHL Publication Series No. 7 (2010) – page 278