The Pinochet Precedent: Changing the Equation of Repression

September 25, 2007

The October arrest of General Augusto Pinochet in Britain for having ordered thousands of murders and disappearances in Chile is destined to change the equation of political repression, regardless of the final result of Pinochet's legal appeals. The subsequent race by European countries to try the General shows how far we have come from the days when tyrants could terrorize their own populations, secure in the knowledge that at worst they would face a tranquil exile on some foreign golf course.

Until recently, it seemed that if you killed one person, you went to jail, but if you had the power to murder thousands, you also had the power to arrange or impose your immunity, as General Pinochet did within Chile. The postwar Nuremberg trials of Nazi leaders established the principle that there should be no immunity for perpetrators of the gravest outrages, no matter who they were or where their crimes were committed. That principle was enshrined by the United Nations and repeated in the Genocide Convention, in the statutes establishing tribunals for the former Yugoslavia and Rwanda, and in the treaty for the new permanent International Criminal Court adopted last summer in Rome. In addition, the 1984 UN Torture Convention—ratified by 112 countries including Chile, Spain and the United Kingdom—requires that states try or extradite alleged torturers found in their territories. Yet few states have had the courage to put these lofty principles into practice.

That all changed last October when Spanish lawyers pursuing charges of crimes against humanity by Southern Cone military leaders were tipped off by Frederico Andreu of Amnesty International's legal office in London that General Pinochet was visiting England. Within days, British police, acting on a warrant issued by Judge Baltasar Garzón, had placed Pinochet under arrest. The provisional arrest warrant was breathtakingly simple. It alleged that Pinochet, between September 11, 1973 and December 31, 1983 "did murder Spanish citizens in Chile within the jurisdiction of the Government of Spain." Pinochet immediately brought a habeas corpus petition before the English courts, asserting that as a former head of state he had immunity from arrest and extradition in the United Kingdom.

The High Court for England and Wales agreed, holding that Pinochet's arrest for possible extradition was barred by Britain's State Immunity Act which gives immunity to "the sovereign or other Head of State acting in his public capacity." The panel held the term "public capacity" to include torture and murder carried out in exercise of the power Pinochet had by virtue of being head of state. "Unfortunately," remarked one of the judges, "history has shown that it has indeed been state policy sometimes to suppress particular groups."

The British government, acting on behalf of the Spanish authorities, appealed to the judicial committee of the House of Lords which by a 3-2 majority rejected that argument. "International law condemns genocide, torture, hostage taking and crimes against humanity," wrote Lord Nicholls, making it difficult "to maintain that the commission of such high crimes may amount to acts performed in the functions of a Head of State."

The Law Lords' decision was annulled weeks later, however, when it was revealed that Lord Hoffman, who voted with the majority, had undisclosed links to Amnesty International—which, like Human Rights Watch and three other nongovernmental groups, had been allowed to intervene in the case. It is a rich irony, of course, that a dictator, whose war tribunals conducted sham trials and ordered the summary execution of political opponents, should take advantage of the full measure of British rule of law. Yet it was precisely in the name of that rule of law that the proceedings against Pinochet were brought and which required that he receive a treatment he never gave his victims.

The annulment led to a second hearing in January 1999, this time before a panel of seven judges—who, like the first five, were all white males over 60 from Cambridge and Oxford. By this time, according to government prosecutor Alun Jones, the "context had completely changed" because the Lords could now consider not just the sketchy arrest warrant but the entire Spanish extradition request, which included assasinations committed under the rubric of "Operation Condor" in Italy, Argentina, the United States and elsewhere—acts much less likely to be within the sphere of immunity of a head of state. The political context was also different. In a controversial move, the government of Chile intervened in the second proceeding on Pinochet's behalf. Although the government took pains to stress that it was not defending Pinochet himself or his record, the effect of the intevention was to promote impunity. Chile's legal arguments—an attack on the relevance to this case of the Nuremberg precedent and an attempt to undermine the reach of the Torture Convention—were particularly disappointing from a government which in other contexts has been a firm defender of international human rights principles.

On March 24, the new panel issued its ruling. This time six of the seven judges agreed that Pinochet had no immunity. But a majority also ruled, under a strict and novel interpretation of British extradition law, that he could not be extradited to Spain for acts committed before Britain enacted the Torture Convention in late 1988. The judges' ruling was based on the extradition principle of "double criminality," which holds that an extraditable act must be a crime in both the requesting and requested countries. Previously, this had been thought to mean that the act needed to be a crime in both countries at the time of the extradition request. The Lords ruled, however, that the act had to be a crime in both Spain and Great Britain at the time that it took place. Since it was only with the 1988 incorporation of the Torture Convention that acts of torture elsewhere in the world became punishable in Britain, extradition could be granted only for acts committed after that date.

The ruling means that most of Pinochet's worst crimes are excluded from the case, although the retention of a key conspiracy charge could allow a full investigation into Pinochet's role in creating a secret police apparatus and implementing plans to torture and murder political opponents in Chile and abroad. The Lords pointedly recommended that the British Home Secretary Jack Straw review his earlier decision to allow the extradition to proceed. Pinochet's supporters, including Margaret Thatcher, took the Lords' cue and immediately began lobbying for Pinochet's release. Switzerland, Belgium, France and other European countries, however, are lining up behind Spain to seek Pinochet's extradition for crimes committed against their nationals. The United States, however, has been stubbornly silent—a silence that has been interpreted around the world as support for Pinochet's impunity.

Two U.S. citizens were murdered in Chile, including Charles Horman, about whom the movie Missing was made. A 1976 terrorist car-bombing by Pinochet's secret police killed Allende's foreign minister and ambassador to the United States Orlando Letelier and his U.S. assistant Ronni Moffitt in the heart of Washington, D.C. The U.S. silence, however, would appear to be driven by three factors: Washington's economic and political relations with the Frei government, which under pressure from Chile's right wing is seeking to have the ex-dictator returned to Chile; the complicity of several U.S. administrations in Pinochet's abuses; and, perhaps above all, the fundamental U.S. fear of any international legal mechanism that it does not totally control. On this last point, the United States was one of only seven countries to oppose the creation of a new International Criminal Court which will try future cases of genocide, crimes against humanity and serious war crimes when national tribunals are either unwilling or unable to do so.

What about other blood-stained tyrants? Sudan's Omar Hassan al-Bashir, Congo's Laurent Kabila and Syria's Hafez al-Asad are just a few of the current leaders whose travel plans may be affected by Pinochet's saga. But legal doctrines probably provide greater protection before foreign courts for sitting rulers than they do for former heads of state. Among the latter, Idi Amin sits comfortably in Saudi Arabia and Ethiopia's deposed Mengitsu Haile Mariam enjoys retirement in Zimbabwe. Paraguay's Stroessner lives in a villa outside Brasília, and Guatemala's Rios Montt—who presided over what the UN Commission for Historical Clarification describes as genocidal acts—is again a political figure in his own country. Haiti has its own crop of criminals in exile: "Baby Doc" Duvalier has gone through the millions he took to France; Emmanuel "Toto" Constant, the CIA-funded leader of Haiti's FRAPH death squad, is a free man in New York City; and Raul Cedras lives in luxury in Panama.

Can these and other torturers now be prosecuted? The answer turns in part on the laws of the states in which they live or are found. It also, of course, depends on the evidence. The Pinochet prosecution in Spain was made possible by the compilation of information over decades first by Chilean human rights activists, then by the Chilean National Commission on Truth and Reconciliation and finally by Spanish lawyer Joan Garcés and "superjudge" Garzón. "While we did not know it at the time," reflected Roberto Garretón, the legal director of Chile's pugnacious Vicariate of Solidarity during the dictatorship, "the painstaking work of documentation we did then is now being used—25 years later—to bring Pinochet to justice." Unlike many other situations of mass killings, as in Central Africa, East Timor or Central America, the names and stories of Chilean victims for the most part are well documented, and the chain of command leading up to General Pinochet is clear. While this abundance of proof may not always be required in an initial stage, some groundwork will have to be done by local prosecutors or human rights groups before the judicial machinery of a foreign state can credibly be engaged.

Finally, the answer depends on the political will of the states involved. Britain's Labor government played an honorable role in the Pinochet affair. First, the police expedited Garzón's original arrest warrant when Pinochet was about to leave England. Then, after both of the Lords' rulings, Home Secretary Jack Straw gave the political "authority to proceed" with the extradition despite intense pressure from Chile. It is easy to imagine other governments taking more expedient courses in such sensitive cases.

No European country was eager to try the Kurdish leader Abdullah Ocalan, for example. Nor is it easy to see Saudi Arabia extraditing Idi Amin. It is harder still to imagine anyone touching Henry Kissinger, even if a country like Laos or Cambodia were foolhardy enough to request his extradition.

Pinochet may yet return to the safe haven he created for himself in Chile, but future dictators are on notice: The next time they try to get away with mass murder, they may one day have to answer for their crimes.

Reed Brody is Advocacy Director of Human Rights Watch, which submitted briefs as an intervenor in the Pinochet hearings in the House of Lords, and he attended all court sessions.

Tags: Chile, Augusto Pinochet, arrest, repression, impunity

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