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Creating the Conditions for Human Rights Prosecutions
The Necessary Measures Include:
legislation declaring the self-amnesty "null and void," not simply repealing the measure, which would be barred as ex-post-facto legislation. Such a nullification would have to be upheld by the courts;
Pinochet waiving immunity by resigning as a "senator-for-life" and foreswearing any claim to immunity as commander in chief of the armed forces; alternatively, the Supreme Court would have to strip him of this immunity;
assurances that the Pinochet case would be handled by civilian courts, and that these courts would have access to military information and premises.
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Human Rights Watch rejects the notion that any head of state, current or former, can be immune from prosecution for such serious crimes. The notion that torture and murder could be construed as acts in "public capacity" ignores the fact that they are completely illegitimate -- illegal, under international law, the domestic law of the U.K., Chile, and just about everywhere else.
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5. Military Jurisdiction
Even if the general lost his senatorial immunity and were subject to prosecution, Chile's military tribunals would claim jurisdiction over the case, arguing that Pinochet's acts were committed as part of his military service. In solving past conflicts over jurisdiction, Chile's Supreme Court has demonstrated a very expansive view of "acts of service" and would certainly hand the case to military courts, which are staffed by current and former military officers for whom Pinochet would be untouchable.
In 1991, the civilian government failed to pass legal reforms to ensure that civilian courts would hear human rights cases. To this day, the political right in Chile refuses to contemplate such a change. In the context of Pinochet's possible extradition to Spain, the right has said it would not contemplate legal reforms to strip military tribunals of jurisdiction until the general is back in Chile and has refused to commit to such reform even in that case.
Short of legislation, the government could prevent military courts from assuming jurisdiction if the Supreme Court were to appoint one of its members as the investigation judge, replacing Judge Guzmán. Article 52 (2) of the Organic Code of Courts (Código Orgánico de Tribunales) amended in 1991, provides that "a Supreme Court judge, appointed by the Court, will hear in the first instance crimes under the jurisdiction of Chilean courts when they may affect the relations of the Republic with another State." This law led to the appointment of Supreme Court judges Adolfo Bańados to investigate the Letelier case and Marcos Libedinsky to probe the killing of Spanish U.N. official Carmelo Soria, both of which cases had been, until then, in military courts.
On November 11, 1998 the Chilean Foreign Ministry requested the Supreme Court to appoint a judge to replace Guzmán. It argued that the events investigated by Guzmán were also under investigation by foreign courts, whose jurisdiction was contested by the Chilean government, generating a conflict which "gravely affect the international relations of the republic with those States." The Supreme Court rejected this request two days later by 13 votes to 3. Unbelievably, the court ruled that Chile's relations with Spain were not affected by these crimes.
Under these circumstances, if Guzmán's investigations begin to threaten Pinochet or the army, military courts will claim jurisdiction, and the Supreme Court is virtually certain to rule in their favor.
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