Friday, December 11, 1998

Law is only law

if it treats like cases alike

By George Will

WASHINGTON — The Spanish judge who wants Britain to extradite Gen. Augusto Pinochet, former dictator of Chile, for trial concerning human rights violations, is practicing what is called "justice without borders." However, borders are akin to fences, and good fences make good neighbors. If international law ignores fences, will nations be more neighborly?

Prosecuting Pinochet might expand the "rule of law"; it certainly would involve ideological willfulness tarted up in the trappings of law. Pinochet was a nasty ruler who mandated torture, hostage-taking and murder — probably including murder on Embassy Row in Washington. But he was, on balance, good for Chile, which emerged from his despotism as a prosperous democracy and might not yet have emerged from the tyranny Salvador Allende planned.

Pinochet’s 1973 military coup stopped Allende’s government from screwing down the lid of a communist dictatorship. Yes, Allende’s government was elected — with approximately the percentage of the vote (36.3) Hitler got in 1932 (37.3). But Pinochet's coup did not destroy democracy. Rather, it thwarted a government coup against democracy by Allende’s Cuban-supported militia.

But Pinochet does not deserve moral amnesty because he was less awful than the Allende alternative, or because the human toll of Pinochet's rule did not rank him near the top of the list of the world’s oppressors at that time, or because Chile now prospers. Unless — conservatives rallying to Pinochet, please note — Clinton's culpability really does vary inversely with the Dow average.

Conservatives’ selective indignation about tyranny — Pinochet's tyranny largely escapes their censure — is not more contemptible than that of those who warmly welcomed to Harvard a villain of the Tiananmen Square massacre. Liberals who consider Castro more avuncular than criminal also forget Yasser Arafat's agents murdered two U.S. diplomats in Sudan. Arafat, whose hands are bloodier than Pinochet's, travels the world, periodically alighting at the White House, where he might bump into the IRA terrorist Gerry Adams.

By uprooting a Marxist regime, Pinochet became the bete noire of the international left. Tony Blair’s vanilla government gives scant satisfaction to his Labour Party's unreconstructed left. Extraditing Pinochet would palliate the aging left’s strongest remaining passion, which is for nostalgic vengeance. So "progressive" opinion and party calculations pressure Britain's government to forget how helpful Pinochet was during Britain's war against Argentine aggression in the Falklands.

Some who insist Pinochet must be prosecuted commit a non sequitur, saying: If the meaning of international law is clear and enforcement is imperative when tanks cross an international border for the purpose of annihilating a sovereign nation (Kuwait, 1990), then international law is always clear and prudently enforceable. However, law is only law if it gives due notice of what is required or proscribed, and if it treats like cases alike. International human rights law does not yet.

True, Congress has ratified various agreements that purport to limit what regimes can inflict upon their people. But Congress has given no more thought to those agreements' legal force and practical application than to proclamations of National Pickle Week.

Those agreements are, necessarily, of a high degree of generality. What offenses, in what quantities, trigger a former public official’s vulnerability to international proceedings? And why just former officials? Noriega was ruling Panama when U.S. forces arrested him.

Chile’s democratic government has decided the interests of national reconciliation take precedence over vengeance against Pinochet. The Nuremberg Tribunals were necessary to civilize a vengeance that could not have been avoided. But the claims of vengeance are not always sovereign, as post-Franco Spain understood when it turned its gaze away from the past rather than pick at scabs of old wounds. America’s post-Civil War reconciliation began in the McLean farmhouse at Appomattox, when Gen. Grant agreed Confederate soldiers could take their horses home for the spring plowing.

Britain should find a way to return Pinochet to Chile. This would give the world a breathing spell during which the United States might conclude that a permanent international criminal court, although it has a potential for capriciousness, would be preferable to improvised human rights prosecutions by each nation’s judiciary.

Some conservatives argue that prosecuting Pinochet might deter other dictators from surrendering power. However, those conservatives are conceding a deterrent effect: Such prosecutions might stay torturers' hands. If the peril in which Pinochet finds himself prevents electrodes from being attached to the genitals of political prisoners, Pinochet’s hour of fear has served justice.

Washington Post Writers Group