This Comment analyzes the recent House of Lords decision that did not recognize that universal jurisdiction existed over jus cogens crimes before the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention against Torture” or “Convention”) came into effect, and therefore did not consider Senator Pinochet's acts of torture committed prior to the existence of the Convention. Part I discusses the atrocities committed in Chile, and examines the legal doctrines applicable to prosecuting Senator Pinochet. In this light, Part I discusses the development of universal jurisdiction and its applicability to human rights violations. Part I also traces the development of sovereign immunity and its interaction with human rights violations. Finally, this Part reviews the nature and substance of a jus cogens offense, and analyzes whether a sovereign should be granted immunity for such crimes. Part II focuses upon the Pinochet extradition hearings. This Part first outlines the High Court's ruling and reasoning, and then examines the House of Lords' conclusion that Pinochet would not be tried for acts of torture committed before the enactment of the Convention against Torture. Finally, Part III argues that the jus cogens nature of the crimes alleged against Pinochet subjects him to universal jurisdiction, with or without a convention that explicitly recognizes universal jurisdiction. Pinochet, therefore, can be prosecuted for all of the charges brought against him, including those committed before the adoption of the Convention against Torture.
Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet: Universal Jurisdiction and Sovereign Immunity for Jus Cogens Violations,
23 Fordham Int'l L.J. 489
Available at: https://ir.lawnet.fordham.edu/ilj/vol23/iss2/13