Pinochet, Ocalan, Kabila

By Mohamed Sid-Ahmed

In 1973, Pinochet overthrew the democratic Marxist-oriented government of Salvador Allende in Chili and set up a Fascist-style regime in its place. Ocalan heads the Kurdish Workers Party (PKK) and has spearheaded the armed movement for an autonomous Kurdistan within the boundaries of the Turkish state. It is a movement that falls within the scope of the definition of movements for self-determination which, under the UN Charter, enjoy full legitimacy, even if the means they use to reach their objective include resorting to armed struggle.

In response to a request from a Spanish judge that Pinochet be held in London for extradition to Spain to stand trial on charges of terrorism, torture and genocide against Spanish citizens in Chile during his term in office, British authorities arrested Pinochet during a recent visit to London. Invoking his immunity from prosecution in his capacity as a former head of state, the Chilean dictator succeeded in obtaining a ruling upholding his claim from England's High Court. However, this ruling was overturned by a 3-2 verdict by the Law Lords of the House of Lords, England's highest court, which ruled that crimes like those attributed to Pinochet are not protected by sovereign immunity because they cannot be considered functional acts of a head of state. This landmark decision not only reconfirms the principle established at Nuremberg that there can be no statute of limitations on crimes against humanity, but represents a turning point in international law in so far as it places human rights above state interests.

As to Ocalan, he was detained by Italian authorities on 13 November as he crossed into Italy from Germany requesting political asylum. Ankara demanded his immediate extradition to Turkey to stand trial for the murder of thousands of Turkish citizens in the bloody confrontations that have raged between the PKK and Turkish forces since the Kurdish uprising began in 1984. But despite pressure, including threats of economic reprisal, from Ankara, the leftist Italian government of Massimo d'Alema refused to extradite Ocalan. Rome maintained that its decision was based on law, not on political considerations, and that the Italian constitution prohibits the extradition of any person seeking political asylum to a country which still applies the death sentence. The European Union has backed Rome's decision unequivocally.

However, this does not mean that Ocalan is home free. For the Europeans, a trial is still on the cards, either in Rome, where he is currently under house arrest, in Germany, where there is an arrest warrant out against him, or before an international tribunal like the one set up to try war criminals accused of crimes against humanity in Bosnia. The last formula would spare Germany and Italy the inevitable fallout such a controversial trial would provoke. Germany, with its large immigrant communities of Turks and Kurds (including an estimated 11,000 members of the PKK), is reluctant to further inflame the tensions already existing between the two communities by holding the trial on its territory. And Italy, though keen to uphold the rule of law, is equally keen to avoid unnecessary friction with Turkey. Moreover, resorting to an international (or European) court would give Ocalan a public forum from which to express his views on the Kurdish problem, and open the file on this complex and many-faceted issue before world public opinion.

In the final analysis, calling Pinochet and Ocalan to account serves as a cautionary tale for political leaders who believe they are above the law. The list of former rulers who can be charged with crimes against humanity is a long one: Indonesia's General Suharto; the members of the military junta who ruled Argentina in the late seventies; Baby "Doc" Duvalier who ruled Haiti until the mid-eighties; former Ugandan President Idi Amin; the leaders of the Khmer Rouge in Cambodia; etc. Whatever the outcome of the trials, the very fact that they can be held at all would set an important precedent in international law and strike a blow for democracy and human rights that is bound to reverberate around the world, and, hopefully, give the notion of justice greater weight in the world order.

But the most important signal sent out by the concomitance of the Pinochet and Ocalan affairs is that Europe does not consider the two cases comparable and makes an obvious distinction between armed struggle for national liberation on the one hand and fascism on the other. This places Europe on a different wavelength than the US when it comes to defining terrorism, a difference that could become the nucleus of divergent assessments of the present world order, specifically, whether it should remain unipolar under US leadership or become multipolar, with the European Union as one of its main poles.

With eleven out of the fifteen states making up the European Union run today by Social-Democrats; with the most prominent of these states talking of a "third way", which is neither neo-liberal capitalism patterned on the American model nor centralised economics based on the former Soviet model; with Europe acquiring a personality of its own despite the growing globalisation of the world system, Europeans are reassessing their security concerns, including the problems of terrorism. For Europeans, Pinochet is a fascist, and, as such, condemnable a priori, even if the Chilean government is interested in rescuing him from a trial for internal reasons related to "national reconciliation"; while Ocalan is not -- a priori -- a criminal, even if the government of Turkey brands him a terrorist.

Few of the former rulers threatened by the finding of the British House of Lords are European; most belong to the Third World -- many to countries of central Africa, which, according to the French African summit meeting held in Paris this week, are not only facing the threat of a breakdown of law, but of the State itself. The strains and stresses that marked the deliberations of the Paris summit reflected differences over how African problems should be tackled between states closer to the US perspective on the one hand and those closer to the EU (mainly French) perspective on the other. In his opening speech, French President Chirac criticised Washington's African policy, without mentioning it by name. France, he claimed, had a permanent presence in Africa. It did not intervene sporadically only when crisis situations erupted, but considered that Africa's salvation entailed a systematic and continued commitment to promote its development rather than rely on trade as the springboard for its takeoff. Chirac reassured his African guests that France would not abandon its obligations to ensure the security of their states. But he made it clear that Paris wanted the Africans to assume an ever more important role in that field.

The controversial new Congolese leader, Laurent Désiré Kabila, was the central figure at the summit. He hoped to use the summit to end his isolation and normalise his relations with many other African states. The summit succeeded in formulating guidelines for a peaceful solution of inter-African conflicts, but Kabila's bid for reconciliation was undermined by the uproar over the Pinochet affair, which gave new impetus to the charges of genocide leveled against the Congolese president. France would have liked to come to Kabila's rescue against the African leaders who oppose him, not least because they enjoy the support of Washington, but found it difficult to reconcile such a stand with Chirac's statement condemning Pinochet on the grounds that crimes of genocide cannot be tolerated, and that whoever commits them must be put on trial. The present situation in central Africa does not inspire hope that the rule of law can be generalised to the entire globe at any time soon.