Heads of state have been customarily accorded immunity for acts they approved while in office, but recently that precedent has been eroded by several well-known cases, including that of former Liberian President Charles Taylor.
Two former heads-of-state arrested in recent years were Latin American. Chile’s Gen. Augusto Pinochet was arrested in 1998 after an order placed by Spanish Judge Baltasar Garzón. Former Peruvian President Alberto Fujimori was detained in 2005 in Chile, and sent for trial in Peru.
Should the infirm Castro, who handed the Cuban presidency over to his brother Raúl in 2008, require medical treatment outside Cuba, he would be especially vulnerable to arrest in a third country on orders by an activist judge in the mold of Garzón.
Pinochet was arrested while seeking medical treatment in London, a watershed event in international law that took even his longtime enemies in human rights circles by surprise.
Despite Cuba’s well-known investments in its hospitals, medical complications often push notorious exiles to take chances they would not otherwise.
The deposed Shah of Iran was prepared to spend whatever it took to bring equipment to Cuernavaca, Mexico, where Mexican president Jose López Portillo had granted him asylum.
Yet, as the Shah’s health deteriorated rapidly, and he was forced to travel to New York for medical treatment — and only after U.S. President Jimmy Carter authorized his entry on humanitarian grounds.
The episode had disastrous repercussions. Students in Tehran, enraged in part by the Shah’s arrival in New York, stormed the U.S. Embassy, taking hostages. The resulting hostage crisis led to the botched U.S. rescue mission and a major geopolitical rift that still hasn’t mended.
The Shah died of cancer weeks later, and Ronald Reagan humiliated President Carter at the polls in the presidential election the following year. Prosecuting former heads of state is a complex matter that is still evolving as cases unfold, but courts around the world have set precedents for “universal jurisdiction.”
There is a significant legal risk for Castro if he ventures outside of Cuba. This universal jurisdiction principle seeks to give judges and prosecutors wide-ranging authority to pursue criminal and human rights cases worldwide, even against former heads of state and military chiefs.
Mexico, Switzerland and Spain are three states where courts have sought prosecutions or pursued investigations under some form of universal jurisdiction (in Spain’s case a crime must have been committed against a Spanish subject), according to Amnesty International.
And international courts have exercised authority over several former heads of state.
Judge Garzón himself, when still seated in the Spanish Courts, had spoken of the possibility of an international court bringing charges against Castro (Garzón is now at the International Criminal Court in The Hague).
It is clear that the legal precedents that embolden the claim of universal jurisdiction cut both ways, as far U.S. officials are concerned.
Recent revelations of American-run secret prisons around the world, where torture has been practiced also leave U.S. officials more vulnerable to arrest and prosecution.
Fidel Castro’s health appears fragile enough that he may never test those groups seeking his trial. These include Castro exiles in the United States who point to incidents such as the 1996 shoot-down of “Brothers to the Rescue” exiles’ flights, and hundreds of death sentences handed out by Castro’s revolutionary courts.
It is ironic that Cuba, which severely restricts the overseas travel of its people, is now an open-air hospital without a clear exit sign for Fidel Castro.
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