There are no guidelines that can serve societies that have endured a governing process that included crimes against humanity and gross abuses f human rights, but that are currently making a democratic transition based on constitutionalism and respect for the individual. Fashioning an appropriate approach is rendered more difficult to the extent that the former regime voluntarily gave up power as part f a bargain with the democratic opposition, and yet remains on the scene, even continuing to control the armed forces and internal police apparatus. The Southern Cone countries f Chile and Argentina pose this challenge in its sharpest possible form, but the same type f issue is posed for many other countries, including South Africa and several Central American countries.
The complexity f this challenge has been widely revealed over the course f the last year or so by the controversy surrounding the arrest f the former Chilean dictator, Augusto Pinochet. At issue most fundamentally is whether international standards governing the accountability f leaders takes precedence over the implementation f a national bargain in Chile, giving Pinochet effective immunity, and even a position f Senator for Life. Extending law to govern crimes f state has more generally resurfaced in this period as a result f the end f the Cold War, and even more so, the human abuse arising from the break-up f the former Yugoslavia during the course f the 1990s.
For one thing, a special criminal tribunal has been established at The Hague with authority over such allegations, as well as a parallel effort arising from the genocidal events that occurred in Rwanda in 1994. As well, through a transnational coalition f NGOs in collaboration with a series f governments, the Rome Treaty was signed in 1998 with the goal f establishing a permanent international criminal court. (Dammer 2006, 100-102)
How can we explain this resurgence f intergovernmental interest in criminal accountability for political and military leaders acting under the authority f their respective sovereign states The impulse to impose such responsibility originated in a half-hearted way after World War I, with the Versailles Peace Treaty recommending a criminal prosecution f Kaiser Wilhelm and a duty for Germany to carry on against lesser figures in a special court established at Leipzig. These initiatives came to nothing, the Kaiser finding asylum in nearby Holland, and the Leipzig trials exhibiting Germany's lack f political will to punish its own nationals.
International involvement between nations is not new. (Grotius 1853, 1-7) The twentieth century, however, has seen an incredible increase in the number and variety f international organizations, including the failed League f Nations f the 1920s, other post World War I agreements, and the United Nations and Bretton Woods agreements following World War II. The second half f the century has seen a virtual explosion f governmental and non-governmental organizations operating in the world arena. (Weigend 2002, 1232-1242)
Despite the phenomenal growth f international cooperation and interdependency, the world is increasingly less humane. Conflicts generating Nazi-like atrocities have increased since the end f that regime, (Brown 1999, 10-11) as exemplified by ethnic