Externalised Justice and Democratisation: Lessons from the Pinochet Case

The attempt to try Pinochet in Spain exemplified and publicised a trend to use ‘externalised justice’ to tackle impunity for human rights crimes. It also demonstrated the possibilities and limitations of externalised justice initiatives, in terms of securing democracy at the national level, and of advancing accountability for serious crimes under international law. In Chile, Argentina and Spain the Pinochet affair served to restart stalled impulses towards accountability, accelerate democratic reform and challenge the legitimacy of compromises conceded during earlier democratic transitions. With regard to the wider role of international law in limiting impunity, expectations for rapid or consistent replication of ‘the Pinochet precedent’ have not been met. Despite some notable achievements, the exercise of universal jurisdiction by national courts remains inconsistent and controversial. The International Criminal Court (ICC) provides a new mechanism for external justice. An aggressive US campaign to undermine it, and to reverse progress in international law, is a serious obstacle to fulfilment of the ICC’s enforcement role. However, at the domestic level the ICC may have similar indirect effects to the Pinochet litigation, boosting domestic enforcement prospects and strengthening democratic commitment. In both cases the key role for externalised justice is as stimulus or back‐up. This suggests that progress in tackling impunity depends on incremental and dynamic interaction between domestic and international law, and between national and transnational actors.