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