One of the most important developments in the slow but determined journey of the international community toward a system of justice and accountability is the increasing acceptance of the duty to prosecute those responsible for mass human rights violations, regardless of rank or position. The historical unspoken presumption that heads of state may act with impunity has finally begun to crumble, but progress continues to be extremely difficult, unsteady, and hard fought.

The strong and conflicting reactions in Sudan and elsewhere to the request by the prosecutor of the International Criminal Court for the arrest of President Omar Hassan Ahmad al-Bashir of Sudan, and the response in Bosnia and Herzegovina to the arrest of Radovan Karadžić, show the political sensitivities that can become significant bumps in the road.

It is important that the lessons learned on this difficult journey are available to us all. However, until now there has been no detailed review of major attempts at bringing national leaders to justice.

Prosecuting Heads of State fills this void and is a fascinating and readable account of efforts to bring senior political leaders to justice for human rights and financial crimes. It considers the background and political circumstances that have enabled these cases to proceed and the effect they have had on transitions to peace and democracy in the countries concerned.

In December 2006, as the news filtered out about General Augusto Pinochet's death at the age of ninety-one in Chile, both his supporters and detractors took to the streets. Despite granting himself an amnesty when he stepped down from power, Pinochet spent the final years of his life under criminal investigation and indictment for massive human rights violations and corruption. His detractors lamented that he had gone to his grave without standing trial; his supporters cheered, “No le condenaron” – “They never got him.” Pinochet's case, like the others in this book, raises questions about the relationships between justice and power, justice and popular demands for accountability, and justice and societal change. Motivated by changes in international and domestic political willingness for holding former heads of state or government accountable, national judges increasingly have overturned amnesties and other legal impediments to prosecuting leaders for crimes committed on their watch.

The existing transitional justice literature that analyzes trials of those responsible for serious human rights or humanitarian law violations shows that trials have the potential for a strong positive impact on the rule of law in situations when a country is transitioning from an authoritarian regime to a democratic one, or from conflict to peace.

In September 1985, nine members of Argentina's military junta, whose successive regimes covered the period in Argentine history known as the “dirty war, ” walked into a courtroom in downtown Buenos Aires. Until that day, they had absented themselves from their trial, which had already gone on for months and during which hundreds of witnesses testified about their torture, the disappearance of loved ones, arbitrary arrest, cruel detention, and even crueler methods of extrajudicial execution. The city was mesmerized by the trial. Long lines for seats in the observation gallery formed days in advance of each court session. By eight in the morning, all the copies of El Diario del Juicio, the unofficial newspaper report of the testimony of the previous day, were sold out.

Entering the courtroom, some of the generals and admirals were stone-faced. Others whispered among themselves. None displayed any signs of remorse, and only one, Lieutenant General Lami Dozo (who later was acquitted), appeared agitated. The two most notorious of the accused made the greatest impression on the gallery. Admiral Emilio Eduardo Massera, an imposing figure who had been head of the navy – which ran the Navy Mechanics School where some five thousand disappeared persons were held between 1976 and 1979 – appeared in court in full navy dress regalia. By contrast, his army cojunta member, General Jorge Videla, appeared in court in civilian clothes and refused to appoint counsel for his defense (a court-appointed defender represented him).

This book owes its origins to Ferdinand Marcos, former dictator of the Philippines and a tyrant who died with the blood of some ten thousand victims of torture, disappearance, and extrajudicial execution on his hands. In early 1986, just a few months after an Argentine court found five of that country's nine former dictators guilty of torture, disappearance, and extrajudicial execution, Marcos was deposed by a populist uprising and fled to Honolulu. Then an idealistic new lawyer with some human rights experience, I was determined that he would pay for his crimes, if not in the Philippines then in the United States. In law school, I had studied the landmark Filártiga v. Peña-Irala decision, in which a U.S. appellate court ruled that an alien can be sued for human rights abuses that violate “the law of nations” even if those acts took place in another country. If Marcos could not be criminally charged in the United States, his victims could at least enjoy a measure of justice by suing him here for damages.

One of America's great human rights lawyers, Paul Hoffman, a colleague who then was the legal director at the American Civil Liberties Union of Southern California, offered to lead the litigation team and our twelve-year battle against Marcos in U.S. federal courts began. Our odyssey was so fraught with legal challenges that a good professor could base an entire year of law school instruction on that case alone.

Introduction

After twenty-four years of illegal military occupation by Indonesia, in late 1999 East Timor emerged into a transition period of United Nations administration for two and a half years. Recovery from the violence and devastation wrought by the departing Indonesian forces was not yet complete when the new nation of the Democratic Republic of Timor Leste was declared on May 20, 2002. During the intervening period, the first trial for crimes against humanity committed by pro-Indonesia militia members took place before Timor Leste's Special Panels for Serious Crimes in the capital Dili, opening and closing with the grand aspirations described in the above quotations. Like Sierra Leone and other states described in this volume, Timor Leste adopted a twin track to the question of accountability and reconciliation with the country's difficult past, combining retributive and restorative justice through criminal trials as well as a Commission for Reception, Truth and Reconciliation (CAVR). Simultaneously, neighboring Indonesia has now conducted its own trials for crimes committed in 1999 in Timor Leste, through its Ad Hoc Human Rights Court.