Much has been written about the sea change in international politics produced by the arrest in London and committal for extradition of former Chilean dictator Augusto Pinochet. Apart from strengthening international accountability, the Pinochet saga also brought justice closer in Chile itself. It gave new hope to the country's embattled human rights movement, and especially to Pinochet's victims. It jolted Chilean society into confronting its divided past more openly. In fact, even the timing of Jack Straw's decision to send Pinochet home seems in retrospect to have been beneficial. The ailing despot would probably have died in exile without a conviction and become a martyr for a large and powerful minority, perpetuating myth and discord. As it is, he will die humbled and probably stripped of the privileges he awarded himself when he stepped down in 1990. If all goes well, Chilean democracy will be stronger because the issues will have been properly aired in a free judicial process.
A month ago I was sitting in Santiago's chilly halls of justice, chatting with wives and mothers of victims of the military dictatorship. The only international observer, I was waiting to take my seat in the chamber where 22 judges of the Santiago Appeals Court would hear why the former dictator and life-time senator should be stripped of his parliamentary immunity to face trial. The women now sitting attentively in court used to chain themselves to the railings outside in protest against a society indifferent to their demands for justice. On June 5, the Court voted 13 to 9 for the removal of parliamentary immunity. If the Supreme Court rejects Pinochet's appeal and defense pleas for him to be excused from trial on medical grounds, he may be arrested and indicted for "aggravated kidnapping" for allegedly creating a military death squad he then ordered to abduct and murder prisoners. The so-called "Caravan of Death," composed of army officers who later became notorious members of the Directorate of National Intelligence (DINA), Pinochet's secret police, toured Chile's prisons by helicopter in October 1973, removed 72 political detainees from their cells, summarily executed them, and in some cases, destroyed or hid their bodies.
Since Pinochet's return to Chile on March 3 after 17 months in British custody, he has made no effort to recover his influence in political life. The visibly infirm Senator has seen only his family, medics and closest advisors. The latest photograph shows him in a flat cap and overcoat attending the wake of his former secret police chief, who was also facing trial when a heart attack struck him down. Pinochet's only comment was, "some go first, others later." He does not refer to the court cases affecting him, and even his legal counsel claims not to have been allowed to see him.
One woman I met at the Pinochet hearings, Communist Party president Gladys Marín, was the first to file a complaint against the General for the forced disappearance of her husband, Jorge Muñoz, following his abduction in a DINA stake-out in May 1976. It is easy to see why no one had accused Pinochet until Marín filed the writ in January 1998. The former dictator still headed the army and had twice sent commandos into the streets to abort less audacious judicial actions. But Marín saw it differently. "After years of presenting habeas corpus petitions to the courts, I wanted to encourage people to lose their fear of challenging him directly," she said. "There were a lot of skeptics. But the criminal complaints started to mount and the political situation began to change."[1] Indeed, with Pinochet under house arrest in London the number of cases snowballed, reaching 113 at last count.
Human rights observers had no doubt that the prospects of a trial were infinitely better in Madrid than in Santiago. As human rights attorney Roberto Garretón argued in an affidavit presented by Human Rights Watch to the House of Lords in January 1999: "Chilean officials have recently suggested that General Pinochet should be returned to Chile so that he can face trial there. There are currently 12 cases opened against the general in Chile. In fact, however, there is virtually no chance that Pinochet would be prosecuted by a Chilean court."[2] Few at the time would have disagreed with that statement. So what happened?
First, with world attention focused for the first time on the atrocities committed in the brutal aftermath of Pinochet's coup, it was no longer possible for Chile's conservative elite to shrug off the facts. President Patricio Aylwin's Truth Commission had scrupulously documented them in 1991, but the armed forces blasted the Commission's assertion that the military was responsible for systematic human rights violations. Despite the report's robust conclusions, many rightist political leaders continued to see the atrocities as regrettable "excesses." Apologists for the military government saw Pinochet as a savior with spotless gloves and a clean conscience.
Such views are more muted now. Apart from the investigation by Spanish judge Baltasar Garzón, Washington has declassified secret documents showing the DINA's dependence on Pinochet, and U.S. and Argentine investigators are on the dictator's trail for murders committed in the 1970s outside Chile as part of "Operation Condor," which Pinochet masterminded. Although Chileans continue to disagree about the military government, the view that the armed forces at least owe the country an explanation about the fate of the disappeared is now almost universal. "Because no one could think of a political solution that both sides could accept, the human rights problem had been swept under the carpet," says human rights attorney Héctor Salazar. "The Pinochet case showed the reality that our transition was built on sand and that the underlying problems had not really been resolved and could not be deferred any longer."[3]
Some human rights experts believe that the proceedings in London even had a "demonstration effect" on the Chilean judiciary.[4] In fact, reforms were already afoot in the courts, and the "Pinochet affair" enhanced their effect. The changes were slow in coming: During most of the 1990s, Pinochet wielded enormous influence over the bench. His representative on the Supreme Court, Gen. Fernando Torres Silva, successfully blocked most human rights trials before they got off the ground. Chances of a proper investigation were limited by the 1978 amnesty law, which prevented prosecution of military personnel for crimes committed from 1973 to 1978, when most human rights crimes occurred.
Army influence in the courts began to wane when Pinochet stepped down as commander in chief of the armed forces and his successor, Gen. Ricardo Izurieta, took over in March 1998. A 1997 constitutional reform advanced the retirement age of justices of the Supreme Court. By early 1999, all the Pinochet justices had retired, and several of the new democratic appointees were reformers. In 1998 they and several appellate judges began basing decisions more consistently on international human rights and humanitarian law principles, previously a frowned-upon eccentricity in Chilean jurisprudence. The political climate strongly favored these changes. Apart from its notorious failure of nerve under the dictatorship, the judiciary had been unable to shake off a reputation for nepotism, corruption and inefficiency.[5] According to Garretón, Chilean judges saw the dynamic style and independence of their colleagues in Madrid and London as a challenge to their own professional pride.[6] Moreover, anxious to persuade Jack Straw to send Pinochet home, the government was assuring the world that Chilean courts possessed the independence necessary to try him. As Salazar put it: "I think that the changes were beginning to happen anyway, but the Pinochet affair accelerated the process. Even Pinochet's lawyers are now using international human rights principles of due process in his defense, and arguing that they take precedence over domestic law."[7]
One of the judges who broke new ground was Juan Guzmán Tapia of the Santiago Appeals Court, who was assigned to investigate all the accusations against Pinochet. The previously low-profile judge frequently appeared on news bulletins, tirelessly supervising the excavation of common graves in cemeteries and remote desert sites. In June 1999, he charged Pinochet's former associate, retired Gen. Sergio Arellano Stark, and four other retired officers for their role in the Caravan of Death executions. Since 19 victims were still unaccounted for, Guzmán held that their deaths could not be deduced from their abductions. And since the kidnappings had not been solved, whoever was responsible could not take advantage of the 1978 amnesty law. This interpretation kept the cases of the missing from being closed. It also provided, at least in theory, an incentive for the accused to provide information about the death or place of burial of the disappeared, since only their cooperation could make the amnesty applicable. In July 1999, a Supreme Court panel unanimously upheld the doctrine.
The Chilean armed forces have been searching for a pact to stem the floodtide of human rights cases in the courts and close the chapter on the military government for good. No sooner had the dust settled after Pinochet's arrest in London, than lawyers and experts from right and left, senior army and navy officers, and luminaries from the Catholic Church began to hold private "conversations" to test the ground for a possible future accord. The human rights community and especially the relatives of the disappeared objected profoundly to the idea of trading justice for meager quotas of truth. The left of the governing Concertación coalition backed them.
In August 1999, former president Eduardo Frei's defense minister, Edmundo Pérez Yoma, proposed the Roundtable for Dialogue, which he intended to be a direct debate between the Association of Relatives of the Disappeared (AFDD) and representatives of the armed forces. Other participants included human rights attorneys, representatives of civil society, and the churches. The AFDD refused to participate, denouncing the endeavor as a smokescreen to gain Pinochet's release. But Pérez pressed on. Though some human rights attorneys also refused to participate, others decided to give the initiative the benefit of the doubt. This was the origin of the accord announced on June 13, which for the first time acknowledged military responsibility, asserting that "agents of state organizations" had committed grave violations of human rights during the dictatorship. Notably absent was any language about institutional responsibility or the systematic nature of the violations. The armed forces agreed to provide the President with information on the fate of the disappeared within six months, protected by professional secrecy so that they would not be obliged in court to reveal their sources. The courts would not, however, be limited in any other way in their duty to establish the identity of those responsible. Legislation to enact the accord sped through Congress. The police carried off members of the AFDD as they protested the vote from the public gallery. Their former supporters from the Concertación were nowhere in sight.
Viviana Díaz, the AFDD's president, noted a key problem with the accord. The text says that once information on the disappeared is placed before the courts they will apply the legislation in force. In other words, says Díaz, "they'll apply the amnesty law, which means impunity, and whose promulgation we rejected at the time with a 17-day hunger-strike. We can't agree with that."[8]
Given the present conciliatory climate, legislation to annul or re-interpret the amnesty law is not even a remote possibility. Some judges might invoke international law to void the amnesty entirely, but only a small minority have done so in the past. While the agreement does not dictate how the courts should interpret the amnesty law, the Guzmán doctrine now seems to command a consensus. Lawyer Pamela Pereira, a member of the Roundtable whose father is among the disappeared, believes the agreement is a risk worth taking because without a commitment from the armed forces the relatives could be waiting forever. Whatever the quality of the information eventually provided, she says, the legal battle against impunity will continue.
ABOUT THE AUTHOR
Sebastian Brett is a researcher for Human Rights Watch based in Santiago, Chile.
NOTES
1. Author's interview, Gladys Marín, Santiago, June 16, 2000.
2. "Pinochet in Chile: Guaranteed Impunity," Human Rights Watch press advisory, January 1999.
3. Author's interview, Santiago, June 12, 2000.
4. See Human Rights Watch, When Tyrants Tremble: The Pinochet Case (New York: A Human Rights Watch Report, October 1999), pp. 4-8, 37-49.
5. See Alejandra Matus, El libro negro de la justicia chilena (Santiago: Planeta, 1999). A Santiago court banned the book when it appeared at the request of a former Chief Justice, and it is still officially censored, though available through other channels in Chile.
6. Author's interview, Santiago, June 12, 2000.
7. Author's interview, Santiago, June 12, 2000.
8. "Agrupación de Detenidos Desaparecidos desmiente acercamiento de militares," El Mostrador (Santiago), June 19, 2000, at: .
