The Honourable Jack Straw
Secretary of State for the Home Department
50 Queen Anne's Gate
London SW1H 9AT
United Kingdom
Dear Home Secretary:
We write concerning the requested extradition of Gen. Augusto Pinochet.
Human Rights Watch was granted permission by the House of Lords to intervene in both sets of proceedings before it relating to General Pinochet. On 16 November 1998, we wrote to you to urge that you take the principled actions necessary to ensure that General Pinochet was extradited to Spain. At that time, we suggested that the reasonable exercise of your discretion under the Extradition Act required that you take into account the gravity of General Pinochet's offenses, the impunity which General Pinochet would continue to enjoy on returning to Chile, and the United Kingdom's obligations under international law.
On 9 December 1998, you signed an authority to proceed in respect of General Pinochet for the crimes of torture, conspiracy to commit to torture and other charges. You are now reviewing that decision in light of the House of Lords' Judgment of 24 March 1999. We respectfully urge that the factors leading to your decision of 9 December still maintain and require that you issue a new authority to proceed.
This letter contains three annexes: 1 - Torture in Chile 1988-1989; 2 - Table of 111 cases of Torture in Chile 1988-1989; 3 - Statement of Ambassador Roberto Garretón of 12 January 1999 submitted to the House of Lords.
1. Pursuant to the United Nations Torture Convention, the United Kingdom is required to Extradite or Prosecute General Pinochet
"The purpose of the Convention was to introduce the principle aut dedere aut punire--either you extradite or you punish."
(Lord Browne-Wilkinson, Ex Parte Pinochet, Judgment of 24 March 1999, p. 15.)
A central purpose of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the United Kingdom, Chile and Spain are parties, was the establishment of universal jurisdiction in order to deny a "safe haven" to those accused of torture. Under Article 5, the United Kingdom is required to extradite an alleged perpetrator of torture who is present on its territory, or it must "submit the case to its competent authorities for the purpose of prosecution."
According to the Dutch Chairman of the United Nations Working Group entrusted with drafting the convention, and the Swedish Ambassador who prepared the text of the Convention's first draft, this article is:
"a cornerstone in the Convention, an essential purpose of which is to ensure that a torturer does not escape the consequences of his acts by going to another country. As with previous conventions against terrorism, .... the present Convention is also based on the principle aut dedere aut punire; in other words, the country where the suspected offender happens to be shall either extradite him for the purpose of prosecution or proceed against him on the basis of its own criminal law."
(J. Herman Burgers and Hans Danelius, The United Nations Convention against Torture; A Handbook on the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, p. 131.)
These provisions create the "obligation either to extradite alleged torturers or to try them on the basis of universality of jurisdiction." (Sir Nigel Rodley, The Treatment of Prisoners in International Law 2d Ed, 1999, p. 129.)
The United Nations Committee against Torture referred to these provisions on 19 November 1998 when it recommended to the United Kingdom "that in the case of Senator Pinochet of Chile, the matter be referred to the office of the public prosecutor, with a view to examining the feasibility of and if appropriate initiating criminal proceedings in England, in the event that the decision is made not to extradite him. This would satisfy the State party's obligations under articles 4 to 7 of the Convention and article 27 of the Vienna Convention on the Law of Treaties of 1969." (Concluding observations of the Committee against Torture: United Kingdom of Great Britain and Northern Ireland. 17/11/98. CAT/C/UK.)
The fact that most of the charges against General Pinochet have been ruled out by the Lords is not relevant to these obligations. As Lord Browne-Wilkinson pointed out, "A single act of official torture is 'torture' within the convention." (Ex Parte Pinochet, Judgment of 24 March 1999, p. 15.)
2. The "conspiracy to commit torture" from 1988-90 was part of General Pinochet's wide-ranging plan to torture and eliminate political opponents which began in 1973. In the latter years of Pinochet's rule, torture in Chile was "systematic but more selective."
"[I]t is important not to lose sight of the fact that the case which is being made against Senator Pinochet by the Spanish judicial authorities is that each act of torture has to be seen in the context of a continuing conspiracy to commit torture. As a whole, the picture which is presented is of a conspiracy to commit widespread and systematic torture and murder in order to obtain control of the government and, having done so, to maintain control of government by those means for as long as might be necessary."
"[T]he fact that these [conspiracy] allegations remain available for the remainder of the period is important because of the light which they cast on the single act of torture alleged in charge 30."
(Lord Hope of Craighead, Ex Parte Pinochet, Judgment of 24 March 1999, pp. 46, 58.)
Chile's official National Commission on Truth and Reconciliation has found that in the latter years of General Pinochet's rule, the "use of torture was systematic, but more selective" than in the early period, when the first secret police, the DINA, "tortured practically everyone who passed through some of its secret facilities." (Volume 2, Chap. 3, A.1.d., p. 644 of English translation.) By 1988, of course, the political situation was very different and it was much less necessary for General Pinochet to use torture to maintain political control in Chile.
The cases of official torture after September (December) 1988, while more selective than before, were the product of the same official plan to commit abuses against General Pinochet's opponents. These plans are summarized in the extradition request:
"Mr. Pinochet Ugarte from his position of command, created and led in coordination with others who were responsible, military and civil, in Chile, the Argentine and other countries of the Southern Cone of the Americas a criminal Internacional [sic] organisation whose only purpose was to conspire, develop, and execute a systematic, criminal plan of illegal detentions, kidnappings, tortures followed by death, the forced displacement of thousands of people and the forced disappearance of some four thousand people of diverse nationalities - Chilean, Argentinian, Brasilian, Spanish, English, North-American, and others, for the purpose of achieving a series of politico-economic objectives which reaffirmed the bases of the conspiracy and instilled terror in the population as they witnessed the systematic elimination of all their leaders who were not in agreement with and were opposed to the criminal plan which had been designed."
(Bound Record, Vol. 2, p. 294)
The Ad-Hoc Working Group on Chile commissioned by the United Nations General Assembly to monitor human rights conditions in Chile following the military coup made clear in its 1977 report that General Pinochet promoted torture as a means of political control.
"Torture has become an integral component of the system of intimidation. The refusal of the Chilean authorities to prosecute and punish those responsible for torture . . . reveals clear official support from the highest level and that in Chile, torture is still practiced as a powerful weapon of intimidation and political persecution." [unofficial HRW translation from Spanish](1)
In comparison with other military dictatorships in the region at the time, the system of rule introduced in Chile was uniquely centralized. As part of this plan, General Pinochet and the other junta members exerted hierarchical responsibility for all branches of the security forces until the end of the military government. The CNI, the main instrument of repression, was headed by an army general directly subordinate to the commander-in-chief, General Pinochet. Investigaciones, formally under the Ministry of Defense, implemented General Pinochet's orders on all matters of national security. General Rudolfo Stange, director general of Chile's militarized police force (Carabineros) was a member of the military junta. As the Chilean National Commission on Truth and Reconciliation concluded,
"[W]hat emerged was a new institution endowed with powers unprecedented in Chile: the President of the Republic/Commander-in-chief. The person holding this position not only ruled and administered the country but also presided over the government junta.... [H]e also commanded the entire army. The use of states of emergency during practically the whole period of military rule further deepened and extended such power...[W]hat was supposed to be the regime of the armed forces and police escaped from the collective control of these institutions and even from the control of their top leaders. Instead it became rigidly centralized around the president/commander-in-chief."
(Volume 1, part 2 Chap. 1, b.3, p. 64 of English translation.)
It was this centralized apparatus which remained in place until the end of the military regime. As Human Rights Watch reported in November 1989:
"In the year since the plebiscite [of October 1998], while the incidence of severe abuses of human rights has declined, quick resurgences at delicate moments indicate that the apparatus of repression remains intact; the level of politically-related violence and intimidation in Chile remains disturbingly high, given the circumstances of a political opening; in short, it is not possible to state that the policy of repression has been abandoned."
(Americas Watch, Chile in Transition: Human Rights Since the Plebiscite 1988-1989, p. 9, Nov. 1989.) (emphasis added).
The opinion of the Special Rapporteur on Chile, Abdoulaye Dieye, appointed by the Commission on Human Rights to continue the work of the Ad-Hoc Working Group, made a similar assessment regarding torture:
"Chilean authorities continue to inflict this type of treatment upon detainees and they tend to give it a permanent and institutional character as a part of the activities of their security organizations." [unofficial HRW translation from Spanish](2)
In his 1989 report, covering the first six months of 1989, the new Special Rapporteur Fernando Volio indicated that:
"Torture is still practiced, notwithstanding that it is applied on a smaller scale and in a more selective fashion. The Special Rapporteur considers that as long as the practice of torture is not halted, the human rights situation in Chile will conspire against the desire of the Chilean people to construct a political democratic system." [unofficial HRW translation from Spanish] (3)
These statements all stress the systematic nature of torture and its role within a policy of political repression.
A similar conclusion was reached by Chile's official National Commission on Truth and Reconciliation:
"... it can be stated with certainty that, during the final years of the military regime, the political structure that had been established by the enactment and implementation of the 1980 Constitution did not eliminate the national problem of serious and constant violations of human rights (although the frequency and numbers of victims admittedly declined). Indeed the 1978 amnesty, which its civilian promoters may well have regarded as the closing of the book on a now superseded problem, ultimately seemed to entail impunity for the past and to promise impunity for the future."
(Volume 1, Part 2, Chap. 2, A2, p. 71 of English translation.)
Indeed, the democratic government of Chile, in an official report to the United Nations Committee Against Torture in 1994 asserted that:
"The termination of permanent 'states of constitutional exception,' the institutional framework which made torture possible under the previous regime, has contributed to a change of attitude on the part of the courts regarding their duty to watch over the lawfulness of detention through the due processing of habeas corpus applications."
(Committee Against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Chile, 16 February 1994, CAT/C20/Add.3, para. 6) (emphasis added).
Visiting Chile after the restoration of democracy, the U.N. Special Rapporteur on Torture, Mr. (now Sir) Nigel S. Rodley, reported:
"A profound difference from that period was the real commitment of the civilian Governments to human rights and, in particular, to the need to eliminate the perpetration of torture or cruel, inhuman or degrading treatment or punishment by officials of the State."
(Report of the Special Rapporteur, Mr. Nigel S. Rodley, Visit by the Special Rapporteur to Chile, E/CN.4/1996/35/Add.2, 4 December 1995, para. 71.)
3. The acts of torture committed by authorities under General Pinochet's command from September (or December) 1988 to 1990 were numerous and severe.
The House of Lords ruled that General Pinochet could be extradited only for the extradition crimes of torture and conspiracy to commit torture after September or December 1988.(4)Although several Lords referred only to the "draft charges," listing one such case of torture (that of Marcos Quezada Yañez), Lord Hope noted three such cases in the Extradition request (p. 59). In fact, the Spanish Indictment refers to at least five other such cases. These are (with numbering as in the Indictment--"Documents to be Held in Readiness: Copy/Indictment"):
751- Magni Camino, Cecilia (number 9 in annex 2)
765- Pellegrin Friedmann, Raul Alejandro, M (number 10 in annex 2)
2085- Caceres Peña, Lincoyan Nery (number 46 in annex 2)
2419- Salas Rojas, Jorge Antonio Marcelo (number 1 in annex 2)
2472 - Vargas Miranda Luis Orlando (number 73 in annex 2)
In addition, Human Rights Watch has details of 111 alleged cases of torture in the eighteen month period from September 1988 to March 1990 committed by Chilean authorities under General Pinochet's command. See Annex 2. Of these 111 cases, drawn from Chilean rights groups, 41 victims were subjected to electric shock torture. At least 42 victims, though probably more, were political detainees. Twelve people died after their torture.
According to the U.S. State Department, in 1988, "[t]orture remain[ed] one of the most serious, persistent human rights problems in Chile." (U.S. State Department, Country Reports on Human Rights Practices for 1988 at 486.)
4. The hundreds of "disappearances" alleged in the Extradition Request constitute acts of torture--extradition crimes--continuing beyond September (or December) 1988.
The Extradition request alleges several hundreds of acts of forced disappearances carried out under General Pinochet's orders. These are cases in which persons, usually Pinochet's political opponents, were abducted by security forces who then simply denied the arrest or falsely claimed to have freed the prisoners. The prisoners were never heard from again. Chile's official National Commission on Truth and Reconciliation found that behind most of the 957 documented cases of "disappearance" was "a politically motivated and systematically implemented effort to exterminate particular categories of persons." (Vol. 1, Part 1, Chap. 2, B 2b p.36 of English version). According to the United Nations Working Group on Enforced or Involuntary Disappearances, "The vast majority of the 912 reported cases of disappearance in Chile occurred between 1973 and 1976 under the military government, and concerned political opponents of the military dictatorship from various social strata, most of them activists in Chilean left-wing parties. Those responsible for the disappearances were members of the army, the air force, the Carabineros and persons acting with the acquiescence of the authorities." (U.N. Doc. E/CN.4/1999/62, 28 December 1998, para. 76.)
International law considers such "disappearances" to be continuing crimes as long as the fate of the "disappeared" remains hidden. Moreover, "disappearances" are a form of torture as regards the loved ones of the "disappeared" person and potentially as regards the "disappeared person."
The U.N. Declaration on the Protection of all Persons from Enforced Disappearance adopted in General Assembly resolution 47/133 of 18 December 1992 states that "Acts constituting enforced disappearance shall be considered a continuing offence as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remain unclarified." (Article 17). The Inter-American Convention on the Forced Disappearance of Persons, adopted by the OAS General Assembly on 9 June 1994 (not in force), similarly provides that "The offense shall be deemed continuous or permanent as long as the fate or whereabouts of the victim has not been determined." (Art. III). As Sir Nigel Rodley has pointed out, "[t]he idea of 'disappearances' constituting a continuing offence is logical, since non-acknowledgment of the detention and non-disclosure of the fate or whereabouts of a detained person are key elements in the offence itself." (Nigel Rodley, "The UN Draft Declaration on the Protection of All Persons from Enforced Disappearance," paper presented at the International Conference on Political Killings and Disappearances, organized by Amnesty International, Amsterdam, 1992, p.18.)
These international definitions "mak[e] the investigation (and punishment) of this crime possible at any time, provided the fate of the victim is unknown." (Brody and Gonzalez, "Nunca Màs: An Analysis of International Instruments on Forced Disappearance of Persons," 19 Human Rights Quarterly 365, May 1997.)
The U.N. Declaration on Enforced Disappearance also makes clear that "Any act of enforced disappearance...constitutes a violation of the rules of international law guaranteeing, inter alia...the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment." (Art. 1). The U.N. Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights, has taken several decisions on individual petitions which indicate that "disappearances" amount to torture. In Quinteros v Uruguay, the Committee found that the mother of a "disappeared" woman, who suffered "anguish and stress...by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts," is "a victim of the violations of the Covenant, in particular of article 7 [torture and cruel and inhuman treatment], suffered by her daughter." (107/1981, para.14). See also El-Megreisi v Libya (detainee, "by being subjected to prolonged incommunicado detention in an unknown location, is the victim of torture and cruel and inhuman treatment.") (Report of the Human Rights Committee, Vol.II, GAOR, 49th Session, Supplement 40 (1994) , Annex IX T, paras 2.1-2.5); Mojica v. Dominican Republic ("the disappearance of persons is inseparably linked to treatment that amounts to a violation of article 7") (449/1991, para 5.7)
The European Court of Human Rights has also held that the extreme pain and suffering inflicted on the mother of the "disappeared" person violated Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Kurt v. Turkey, Eur.Ct.Hum.Rts, Case No.15/1997/799/1002, 25 May 1998, para.134). Similarly, the Inter-American Court of Human Rights, in the well-known case of Velazquez Rodriguez, held that "the mere subjugation of an individual to prolonged isolation and deprivation of communication is in itself cruel and inhuman treatment." (Inter-American Court H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988. Series C Nº 4, para.187) Thus Sir Nigel Rodley recently concluded that "there is a trend towards recognizing that to make someone 'disappear' is a form of prohibited torture or ill-treatment, clearly as regards the relatives of the 'disappeared' person and, arguably, in respect of the disappeared person him or herself." (Rodley, The Treatment of Prisoners in International Law, second edition, 1999, p. 261.)
The definition of torture under section 134 of the Criminal Justice Act 1988 is the same as that under the Torture Convention as interpreted in the U.N. decisions. See opinion of Lord Hope of Craighead, Ex Parte Pinochet, Judgment of 24 March 1999, p. 55, (Section 134 to be "[r]ead with the broad definition which the expression "torture" has been given by Article 1 of the Convention). See also opinion of Lord Browne-Wilkinson, Ex Parte Pinochet, Judgment of 24 March 1999, p. 14 ("The answer to both questions [who is "a public official or a person acting in an official capacity" in the Convention and in section 134] must be the same.") These hundreds of acts of disappearance are thus extradition crimes of torture which continue past September (or December) 1998.
5. There is No Real Prospect that General Pinochet Can Be Prosecuted in Chile
Chilean officials have suggested that General Pinochet could stand trial in Chile for the acts in question, and therefore that he may face criminal sanctions even if the United Kingdom fails to extradite him to Spain. Chile has not, however, drawn up charges against Pinochet or requested the General's extradition. As Lord Millet wrote:
"Chile insists on the exclusive right to prosecute him. The Torture Convention, however, gives it only the primary right. If it does not seek his extradition (and it does not) then the United Kingdom is obliged to extradite him to another requesting state or prosecute him itself."
Ex Parte Pinochet, Judgment of 24 March 1999, p. 105.
In any event, there are overwhelming legal and practical obstacles which leave virtually no possibility that Pinochet will be prosecuted and convicted by a Chilean court for his alleged crimes. (Statement of Ambassador Roberto Garretón Annex 3). At present there are some twelve cases pending against the General in Chile, all for acts committed before 1978. These cases cannot, however, be prosecuted through to a conviction. (Id.)
A first barrier to any prosecution in Chile of General Pinochet is the April 1978 amnesty from prosecution that the Chilean military granted itself for crimes committed between September 1973 and March 1978 -- the period encompassing the majority of Pinochet's crimes. In 1996, and again in 1998, the Inter-American Commission on Human Rights found that this amnesty decree violated the terms of the American Convention on Human Rights, the region's comprehensive human rights treaty. Indeed, the Commission chastised the democratic government of Chile for failing to eliminate the amnesty from the books. (Inter-American Commission on Human Rights, Report No. 36/96, 15 October 1996, and Report No.25/98, March 2, 1998). Yet, disregarding the self-amnesty's clear inconsistency with international norms, the Chilean Supreme Court has repeatedly upheld its validity. (see Annex 3).
In addition to the self-amnesty, and in respect to all alleged crimes committed to this day, General Pinochet enjoys immunity from prosecution under Chilean law as "senator-for-life" and, in contradiction with international norms, immunity from civil and criminal liability because his acts were committed while he was head of state. The Chilean Supreme Court theoretically could strip him of this immunity if it found him guilty of criminal acts. But since the military left office in 1990, the court has never deprived a member of congress of immunity, and there has been no judicial ruling in Chile that ever stripped a head of state of his immunity. (see Annex 3).
A final obstacle to the prosecution of General Pinochet in Chile is the likelihood that, as commander-in-chief at the time of his crimes, he would be tried before a military tribunal. Military courts in Chile are staffed by current and former military officers whom Pinochet either promoted or appointed. They have an unbroken record of preventing the prosecution of any military official for crimes committed during the 1973 coup and its aftermath. A move in November 1998 to name a Supreme Court justice to investigate the cases against Pinochet, thus barring military jurisdiction, was decisively rejected by the Supreme Court. (see Annex 3).
Conclusion
Given the gravity of General Pinochet's offenses of torture and conspiracy to commit torture, the impunity he enjoys in Chile, and the United Kingdom's obligations under international law, we respectfully submit that your previous decision to authorize extradition to proceed is both justified and required.
Sincerely,
/s/
Reed Brody
Advocacy Director
1. "La tortura se ha convertido en parte integrante del sistema de la intimidación de las personas. La negativa de las autoridades chilenas a procesar y castigar a los responsables de la tortura.... revela un claro apoyo oficial al más alto nivel y que en chile se siga practicando la tortura, como poderosa arma de intimidación y persecución política." Ad-Hoc Working Group, Report on the Situation of Human Rights in Chile. A.G.UN, A/32/227, 29 September, 1977. (para 295) (emphasis added).
2. "Las autoridades chilenas continúan infligiendo este tipo de trato a los detenidos y tienden a darle carácter permanente e institucional como parte de las actividades de sus organismos de seguridad." Abdoulaye Dieye, Report on the Situation of Human Rights in Chile, UN, E/CN. 4/1428, 28 January 1988. (para 86) (emphasis added).
3. "Todavía se practica la tortura, aunque en menor escala y selectivamente. El relator especial considera que mientras no cese del todo la práctica de la tortura, la situación de los derechos humanos en Chile conspirará contra el buen deseo de los chilenos, de construir un sistema político democrático." Fernando Volio Jiménez, "Protección de los Derechos Humanos en Chile," ONUI.A.G.,A/44/635, 17 October, 1989, (para 115) (emphasis added).
4. It is difficult to determine the relevant date. For Lord Browne-Wilkinson, the immunity ended on 8 December 1998 (p. 21). For Lord Goff of Chieveley, Pinochet never lost his immunity. Lord Hope of Craighead considered "the date as from which immunity...was lost was 30 October 1988," but was "content to accept the view of Lord Saville" that the immunity continued until 8 December 1988 (pp. 68-69). Lord Hutton placed the date at 29 September 1988 (p. 89), and Lord Saville of Newdigate at 8 December 1988 (p. 92). For Lord Millett and Lord Phillips of Worth Matravers, Pinochet never enjoyed immunity. There is thus no majority.