Pinochet for beginners
INTRODUCTION: PINOCHET'S ARREST
THE CRIMES: PINOCHET'S CHILE
MANUEL CONTRERAS AND THE BIRTH OF THE DINA
On 16th October 1998, the human rights status quo was shaken. The arrest, in London, of General Augusto Pinochet Ugarte came as a stunning surprise to both his friends and his foes. The British Government found itself in a political storm at home and in a diplomatic nightmare with Chile - a country which had experienced a dark age of dictatorship under the General and which its government, at least, seemed determined to forget.
Opinion was deeply divided. Prominent figures in Britain spoke out strongly both for and against Pinochet's arrest, and the divisions and painful memories of the past in Chile were rekindled. The eternal play between idealism for the rights of the individual and the expediency of real politick was suddenly brought home and into sharp relief. A legal and political decision had to be made one way or the other. Which would win the day, the striving for human rights or the pragmatism of international relations?
Sovereign Immunity: Could extradition proceedings even begin?
A Spanish judge, Baltasar Garzón, had presented Britain with an extradition warrant to bring Pinochet to trial in Spain. The warrant accused the General of human rights abuses under his dictatorship, and Britain's High Court did accept that he had a prima facie case to answer. However, the High Court also accepted the main defence presented by Pinochet's lawyers - that since he was Chile's head of state at the time of the alleged crimes, English and international law granted him sovereign immunity from prosecution. And since, also, the Chilean government protested at the arrest, refusing to exercise its power to waive Pinochet's immunity, the High Court ruled that it had no legal right to begin extradition proceedings against him.
Despite the High Court's unanimity and certainty of its decision, leave to appeal against it was granted, in view of the international importance of the case. Dramatically, the appeal in Britain's highest court, the House of Lords, succeeded, this time ruling by the narrowest three to two majority that crimes against humanity could not be considered as the normal acts of a head of state. Therefore, Pinochet's claimed sovereign immunity did not extend to the allegations spelled out in the Spanish extradition warrant, and extradition proceedings could commence after all.
But the plot thickened. It was revealed that one of the law lords, Lord Hoffman - who had been one of the three to judge against Pinochet - had strong links with Amnesty International, a human rights campaigning group that had contributed towards the case against Pinochet's claim of immunity. As a result, a team of law lords took the highly unusual step of annulling its own ruling: the risk of bias in Lord Hoffmann's deliberations meant that even if his decision were just and impartial, doubts would remain and justice would not be seen to have been done.
And so, as General Pinochet spent an unexpected Christmas in Wentworth, Surrey, another team of law lords was selected to re-hear the case. This repeat hearing in the House of Lords ended on 4th February, and we await the third - and presumably final - judgement with baited breath...
...On 24th March 1999, the law lords announced a verdict, by six to one, that General Pinochet was, indeed, not entitled to absolute immunity from the legal proceedings of our domestic courts. However, this was only from 8th December 1988 and only regarding certain of Spain's draft charges. The lords now decided - contrary to their earlier judgement - that before this date Pinochet does have immunity from legal proceedings in our courts.
Bizarrely, the lords' reasoning had become quite different. Previously, they had argued that Pinochet did not have state immunity because crimes against humanity could not be regarded as the actions of a head of state; only actions of the state brought immunity with them. Since this was an argument based on the scope of immunity as such, this judgement said in effect that any former head of state lost their immunity once they engaged in crimes against humanity. Now, however, the restriction of immunity was argued for in a more clearly legally grounded way, by explicit reference to an international treaty signed, ratified and - in theory - made effective by, among others, Britain, Chile and Spain. According to the law lords, immunity was removed from crimes covered by the United Nations Convention Against Torture when this convention came into effect for the states concerned. It came into effect in Britain on 8th December 1988: therefore, Pinochet had immunity before that date (law does not normally act retrospectively) but no immunity after that date for crimes covered by the convention.
The result of this was that most of the charges drafted by Spain could not be levelled against Pinochet in our courts for the purpose of extradition proceedings. This was either because they related to events prior to 8th December 1988 or because they were not crimes covered by the Convention Against Torture. Of the 32 charges, only two now remained - one of torture and one of conspiracy to torture.
The law lords therefore decided that the Home Secretary, Jack Straw, would have to reconsider his earlier Authority to Proceed with moves to extradite Pinochet. As the ruling on the basis of which Straw had issued his first Authority had now been overruled, he would have to consider the case afresh.
The case against Pinochet was now significantly weakened. Almost immediately, the Spanish prosecutor Baltasar Garzón sent further allegations to the Crown Prosecution Service, allegations which fall within the new criteria for Pinochet's lack of immunity: Garzón presented 43 new cases of torture and conspiracy to torture occuring after 8th December 1988. Secondly, Garzón argued that all unresolved cases of disappearance are regarded, under the 1992 UN Declaration on the Protection of Disappeared Persons, as currently open cases of torture.
On the other side, General Pinochet's lawyers also responded on two fronts. Firstly, they applied for a judicial review of Jack Straw's earlier Authority to Proceed. Secondly, they applied for a writ of habeas corpus to release Pinochet from house arrest. However, the High Court adjourned both of these hearings until 15th April, to give the Home Secretary time to reconsider his Authority to Proceed. Lord Justice Laws reasoned that some order should be maintained in the legal developments: going ahead immediately with the application for habeas corpus, "might allow Gen Pinochet to be discharged and leave the country without the Secretary of State having the opportunity to reconsider the merits of this matter."
Extradition: An executive decision
Despite the reduction in the number of charges remaining after the law lords' second ruling against Pinochet, on 15th April Jack Straw gave the go-ahead for extradition proceedings by issuing a new Authority to Proceed. The Home Secretary made the judgement that the remaining charges still meant that Pinochet appeared to be legally extraditable. Furthermore, while the Home Secretary had the executive power to exercise his "wide" discretion to block extradition proceedings, he saw no reason to do so, neither on the humanitarian grounds of Pinochet's alleged ill health - "it does not appear that Senator Pinochet is unfit to stand trial", Straw concluded - nor on political grounds, such as "the stability of Chile and its future democracy" or "the UK national interest".
Pinochet's lawyers responded to this second Authority to Proceed by applying to the High Court for a judicial review of Straw's decision. However, on 27th May, the application was turned down. Despite having the legal option to make a second, similar application, on 7th June Pinochet's legal team decided against this. Extradition proceedings would finally commence.
The extradition hearings began on 25th September at Bow Street Magistrate's Court, under Ronald Bartle, Deputy Chief Metropolitan Magistrate, and lasted for four days. He ruled, on 8th October, that under the 1989 Extradition Act, it was clear that Pinochet could indeed be extradited to Spain, subject to the Home Secretary's final decision. Bartle allowed the inclusion of the further charges added by Garzón since the Lords' judgment: this brought the extraditable charges to 35, one a wide-ranging charge of conspiracy to torture and 34 charges of torture. Furthermore, he ruled that charges of conspiracy and of disappearance prior to 8th December 1988 could be included, because "conspiracy is a continuing offence", and "the effect on the families of those who disappeared can amount to mental torture".
But even this was by no means the end of the story. As well as Pinochet's lawyers, on 22nd October, appealing against the Bow Street magistrate's decision (in the form of an application for a writ of habeas corpus), on 5th November Jack Straw, under pressure to consider releasing Pinochet on health grounds, asked him to submit to independent medical tests.
To be continued...
Some of the sites of detention and torture, or concentration camps, used by the Pinochet regime.
26th February 1994 saw the consecration of the Monument to the 'Disappeared' and Executed, in the General Cemetry, Santiago.
"Every so often, democracy has to be bathed in blood."
"There is not a leaf in this country which I do not move."
From a legal point of view, England's courts have had to decide whether General Pinochet has a case to answer and whether they have the jurisdiction to begin pursuing that case by commencing extradition proceedings against him. It must be remembered that the High Court accepted that Pinochet does have a case to answer, and his defence lawyers have never seriously denied this fact. The evidence of massive human rights abuses by Pinochet is so overwhelming that he can only effectively be defended on the legal technicality of his claimed sovereign immunity under English and international law.
The High Court was told of Chile's official, authoritative and thorough report on the systematic abuse of human rights that was carried out with the full knowledge of General Pinochet. Pinochet's direct rule came to an end when he was defeated in the plebiscite of 5th October 1988, and the Commission for Truth and Reconciliation (or Rettig Commission) was set up under President Patricio Aylwin by his decree of 25th April 1990. The Commission's findings were presented to the nation on 4th March 1991:
Although the Chilean panel's report is not yet widely available, its publication is bound to have [a] cathartic impact on a sophisticated society in which many members of the elite refused to believe that the authorities could perpetrate such horrors.
The report, based on nine months of testimony and research, describes several stages of repression. In the weeks after the military seized power in a coup Sept. 11, 1973, thousands of Chileans sympathetic to the socialist government were detained. Many were tortured, and several hundred were tried and executed by military war tribunals.
A woman described the corpse of her son, the manager of a state cement plant, who turned himself in after the coup and died in custody five weeks later: "He was missing one eye, his nose was torn off, one ear was separated and hanging, there were marks of deep burns on his neck and face, his mouth was very swollen."
In the next stage, the army's secret police squads waged a "systematic campaign to exterminate" leftist dissidents from 1974 to 1977, the report states. Inside clandestine prisons, people were tortured with electric shocks, choking, confinement and even animal rape. There were 957 victims who never reappeared and are presumed dead.
The report was strongly critical of the military's claim that Chile was in a state of war after the coup, which had been the justification of the continued activity of military courts. It also criticised the military courts for imposing retroactive punishment for actions that had occurred before they were made illegal, for refusing to make the bodies of those executed available to their families, and for "infraction of fundamental legal norms and essential ethical principles." The commission was still more critical of the civilian judiciary, which, it said, "because of the constitution, the law, and the nature of its functions" was the state institution "responsible for the protection of such rights." It accused the judiciary of "worsening the process of the systematic violation of human rights, both by not offering protection to the persons whose cases were denounced to it, and by providing the agents of repression with increasing certainty that they would not be punished for their criminal acts." Examples cited by the commission included indefinite delays in responding to habeas corpus requests and inaction on persons held incommunicado for periods of up to a year.
Pinochet's military junta had justified its intervention as a response to a breakdown in law and order under the government of President Salvador Allende. And yet, they succeeded in instituting a breakdown that, by comparison, made life under Allende a model of socialist paradise. If this were the price of fighting socialism, then "Better Red than dead" took on a new, humanitarian meaning. Is it any wonder, then, that General Pinochet became an icon of American-inspired capitalist aggression, after the revelations of the US state, CIA and corporate contribution to Allende's violent downfall.
The Rettig Commission was mandated to investigate only cases of human rights abuses that had resulted in death. (We shall return to this point below.) Even so, the Report set out the following statistics: Out of a total of 2920 such cases investigated by the Commission, a definite conclusion was reached on 2279. The vast majority of these 2279 cases concerned individuals who had been killed by the state; in other words, murdered by those very people - from the police, intelligence services and the armed forces - who, in principle, were supposed to be protecting citizens from violence. The Commission received a further 508 cases which did not fall within its mandate. It also received 449 names with no accompanying information; the Commission decided - perhaps rather curiously - that for these, therefore, "there was no basis for carrying out an investigation."
On the recommendation of the Rettig report, a follow-up organisation, the Reparation and Reconciliation Corporation, was established on 8th February 1992. Its original mandate was to run until 15th July 1993, but this was extended several times. Eventually reporting in 1996, it took over the
continuing investigations on the 641 cases the Rettig Commission had been unable to resolve, and receiving and investigating those cases which had not been presented during the Rettig Commission's one year period of operation... [It] officially recognised a further 123 'disappearances' and 776 extrajudicial executions and death under torture during the military period. Combined with the findings of the Truth and Reconciliation Commission this brought the number of 'disappearances' to 1,102 and extrajudicial executions and death under torture to 2,095, making a total of 3,197 cases that were officially recognised by the Chilean state.