The arrest and probable trial in Spain of former Chilean dictator Gen. Augusto Pinochet have rekindled hopes of justice for thousands of victims of his brutal seventeen-year rule. The Spanish court's action and the United Kingdom's decision to initiate extradition proceedings reflect a new international determination - spurred on by the twin genocides in Bosnia and Rwanda and facilitated by the end of the Cold War - to bring to an end impunity for crimes against humanity. The case opened up new possibilities for the exercise of universal jurisdiction, in that the Spanish court sought to judge crimes alleged to have been committed by a former head of state in his own country and against his own subjects. The court verdicts establishing the lawfulness of Pinochet's arrest and extradition were a dramatic lesson in the implementation of international human rights law. At this writing, growing rumors of Pinochet's ailing health are fueling speculation that the U.K. authorities might order his release on humanitarian grounds. Whether or not Pinochet is eventually sent back to Chile, the international repercussions of the case have been and will continue to be enormous.
Human Rights Watch has been deeply concerned about human rights in Chile since the establishment of its Americas division in 1981, and has monitored closely developments since Pinochet stepped down in 1990. Human Rights Watch intervened in support of the jurisdiction of the Spanish court in the hearings of Pinochet's appeal in the House of Lords, pointing out that political and legal constraints in Chile made it impossible for Pinochet to be tried in his own country. As this report shows, a year from Pinochet's arrest steps which must be taken to make Pinochet's trial in Chile possible have still not been taken. The former dictator continues to benefit from parliamentary immunity and an amnesty law that has been invoked repeatedly in past years to prevent human rights prosecutions. However, the Pinochet case has had important and largely unforeseen consequences in Chile. The case has helped foster a more open debate about the legacy of the military government, has stimulated the action of the courts, and has created greater awareness of Chile's international obligations in the field of human rights. Although the institutional, political, and legal obstacles to accountability remain in place, there is a sense that Chile has at last embarked on an effort to confront its past, the outcome of which is no longer easy to predict.
Forebodings expressed by opponents of Pinochet's prosecution that "reopening old wounds" would destabilize Chile's allegedly fragile democracy were shown to be greatly exaggerated. Except for moments of political tension and noisy street demonstrations when decisions went against Pinochet, there have been only isolated episodes of violence. Now under the command of a more youthful leadership, the military has avoided the menacing postures of the Pinochet years and has generally used constitutional levers to influence government decisions. Nor have the deep political divisions over Pinochet's rule prevented contacts and discussions among all the political parties in a search for points of agreement on the human rights issue. The armed forces for the first time are participating in an open-ended debate, sponsored by the government, with human rights lawyers and representatives of civil society. Yet a fundamental shift in the military's attitude on the substantive issues still seems a long way off. The big hurdle - a truthful and unconditional acknowledgment by the military leadership that the systematic violations of human rights under Pinochet's rule were carried out in execution of a criminal government policy - has yet to be crossed.
The most encouraging development has been in the courts, which in the course of the year have charged three generals, including a former member of the military junta, and at least thirty officers and former officers of the army and air force for grave human rights crimes, including extrajudicial executions, political assassinations, torture, and kidnapping. The Supreme Court has allowed prosecutions to proceed despite an amnesty law in force since 1978, due to a new doctrine which in theory permits the conviction of those responsible for "disappearances." It does not, however, improve prospects of justice for other crimes, such as extrajudicial executions and torture. There have been notable advances in the investigation of two egregious human rights crimes committed in the 1980s and not covered by the amnesty law.
The Pinochet crisis re-focused attention on the undemocratic parts of the Chilean Constitution, in particular on the need to abolish appointed seats in the Senate, the upper house of Chile's Congress. President Frei announced in May a proposal to enable the executive branch to hold a referendum on constitutional change. Safeguarding the courts' independence and prioritizing constitutional change should now be key government objectives.
A Dictator's Arrest
On October 16, 1998, officers of the London Metropolitan Police, acting at the request of Spanish magistrate Baltasar Garzón, arrested General Pinochet while he was recovering from back surgery in a private London clinic. Pinochet, now eighty-three and a senator with life tenure, led the Chilean army in a violent military coup against elected President Salvador Allende on September 11, 1973, proclaimed himself president, and held power until 1990. The military regime he headed dismantled Chile's long-established democratic institutions, privatized its economy, and tried to eradicate left-wing parties and organizations in a reign of terror that claimed more than 3,000 lives, involved the torture of many tens of thousands more, and forced over a quarter-million Chileans into exile. At this writing, Pinochet remains under house arrest in England facing extradition proceedings that could bring him, within months, before a court in Madrid to face charges of torture and conspiracy to commit torture.
The House of Lords, Britain's highest court, found in two successive rulings that Pinochet's arrest was lawful and that he did not enjoy immunity as a former head of state from extradition for these crimes. The House of Lords itself annulled its first verdict in an unprecedented ruling which accepted that it might be tainted with the appearance of bias due to the association of one of the Law Lords with Amnesty International, which intervened in the hearing. In its second ruling, the House of Lords based its judgment on the United Nations Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment, which Chile, Spain, and Britain ratified and incorporated into their domestic law at the end of the 1980s.
These historic decisions were evidence of a growing consensus in the international community that human rights transcend national boundaries, limiting the immunity of former heads of state and even the prerogatives of national sovereignty. They added to an impressive list of historical precedents, starting with the Nuremberg trials after the Second World War, which established the principle that there should be no immunity for perpetrators of the gravest crimes, no matter who they are or where their crimes were committed. That principle was enshrined in Resolution 95 of the United Nations General Assembly (1946), in the statutes establishing tribunals for the former Yugoslavia and Rwanda, and in the treaty for the new permanent International Criminal Court adopted in July 1998 in Rome. Yet few states had shown the courage to put these principles into practice. The drama of the London events was enhanced by the unusual notoriety surrounding Pinochet, the brutality of his regime and his invulnerability, until now, from the action of the law.
The Spanish investigation of Pinochet's crimes began with a criminal action filed in July 1996 by the Association of Progressive Prosecutors, acting in a private capacity, for the murder or "disappearance" in Chile of seven Spanish citizens. From these limited beginnings, the prosecution expanded into a massive indictment for genocide, murder, and the torture of thousands of Chilean subjects, both inside and outside Chilean borders, covering the full span of Pinochet's rule. Subjected to the exigencies of British extradition law in the habeas corpus hearings before the House of Lords, the case was to crystallize around the single issue of torture. Moreover, the Law Lords limited the time span during which torture cases were admissible to the final year of Pinochet's rule, subsequent to December 1988, when the provisions of the Convention Against Torture were in force in each country. Yet the approval by the Law Lords of the charge of "conspiracy to torture" as an extraditable offense meant that the extradition proceedings would probably focus, not only on post-1988 cases, but also on Pinochet's alleged role in instigating, supervising, and defending a policy to torture opponents throughout the military regime.
After the arrest, Switzerland, Belgium, and France joined Spain in seeking Pinochet's extradition for crimes committed against their nationals, and German and Swedish authorities opened investigations. In the United States, a District of Columbia judge continued to investigate Pinochet's implication in the 1976 car-bomb murder in Washington of former Allende minister Orlando Letelier del Solar and U.S. citizen Ronni Karpen Moffitt, whose perpetrators - agents of Pinochet's secret police, the National Directorate of Intelligence (Dirección de Inteligencia Nacional, DINA) and Cuban exiles they contracted in the U.S. - had been tried and convicted in the U.S. and Chile. Should the U.S. request Pinochet's extradition for this crime, the Chilean government has said that it would not contest the jurisdiction of a U.S. court as it did that of the Spanish court, since the crime was committed in the U.S. capital.
The Dispute over Territoriality
The events in London presented a serious and unexpected challenge to the Concertación de Partidos por la Democracia, the center-left coalition currently led by President Eduardo Frei Ruiz-Tagle, which has held power since Pinochet stepped down in March 1990. After the conviction and imprisonment of former DINA chief Gen. ManuelContreras in 1995, and the subsequent breakdown of political negotiations on the issue of human rights trials, human rights scarcely featured on the agenda of the Frei administration.
The government, hemmed in by the combined weight of the military and the political right, had consistently rejected judicial action against Pinochet. His immunity was one of the unstated rules of the transition Concertación leaders negotiated with the military after Pinochet lost a crucial plebiscite in 1988. Ten years later, after stepping down as army chief in March 1998, Pinochet assumed a lifetime Senate seat, provided to presidents who have served six years in office. This gave him parliamentary immunity from criminal process. Article 58 of the Constitution requires the Supreme Court to authorize the prosecution of a member of Congress before trial proceedings can be instituted, except for crimes detected in the act. For years it was considered unthinkable that a court still dominated by Pinochet's appointees might vote for his indictment for human rights crimes. Although most of these justices have been replaced by democratic appointees, no judge has yet applied for Pinochet's immunity to be lifted.
Chile's civilian government is respected in international fora for its democratic credentials and policies supporting international human rights. On September 11, 1998, the twenty-fifth anniversary of the military coup and barely a month before Pinochet's arrest in London, Chile signed the Rome Statute for the establishment of an International Criminal Court (ICC). Chilean officials say that the nation's own experience contributed to their government's enthusiastic adhesion to the ICC project. By signing, Chile pledged to support efforts to set up the international machinery to try heads of state and government officials responsible for crimes again humanity, war crimes, and genocide when such trials cannot be held in their own country. A bill to ratify the statute is currently under debate in Chile's Congress.
The government has, however, drawn an artificial line between international justice exercised by a recognized international court like the ICC and justice delivered by a domestic court exercising extraterritorial jurisdiction. It maintains this objection even though extraterritorial jurisdiction is provided for in international law, expressly so in the Convention Against Torture, which the Pinochet government ratified in 1988. From the outset, Frei and his ministers stated their opposition to the Spanish proceedings publicly and refused to cooperate with the Garzón investigation. Having demanded initially that the United Kingdom respect Pinochet's diplomatic immunity as a "special envoy" of the Chilean state, President Frei held that the former dictator's arrest and possible judgment in Spain were an illegitimate invasion of the jurisdiction of Chilean courts. The Chilean military brought pressure to bear in a series of urgently called meetings of the National Security Council, in which the four commanders-in-chief pressed the government to take more extreme measures.
Although Frei resisted calls from the army and the right to sever diplomatic ties with the U.K. and Spain, his government mounted an intense diplomatic campaign for Pinochet's release, and took symbolic reprisals against both countries. The government intervened in defense of Chilean jurisdiction in the March 1999 hearing of the House of Lords. It lobbied to gain support for its position among its Mercosur trading-bloc partners, in the Vatican, and at the United Nations. It called on Britain to release the former dictator on humanitarian grounds, citing his age and purported ill-health. It pressed the administration of Spanish President José María Aznar to agree to arbitration of the dispute between the two countries, invoking a mechanism contemplated in Article 30 of the Convention Against Torture. In September 1999, Chile recalled its ambassador in protest when Spanish Foreign Minister Abel Matutes turned down the Chilean request, arguing correctly that his government may not intervene in a judicial decision. Despite bitter complaints by Pinochet's supporters that the government could have done more to bring him home, its persistence has been striking, especially since these diplomatic initiatives were spearheaded by two successive foreign ministers, both of them as Socialists declared opponents of Pinochet.
In reply to domestic critics who questioned this flurry of diplomatic activity in favor of the former dictator, Frei administration officials asserted that the government of Chile was not protecting Pinochet in person but defending a principle of international law, that of equality between states and the autonomy of their legal systems. In reality, however, the choice presented was not between two competing jurisdictions but between a trial in Europe or no trial at all. Human Rights Watch argued in a detailed legal submission to the House of Lords that, government assurances notwithstanding, a trial of Pinochet in Chile was virtually impossible under current political and legal constraints. Announcing his decision in April 1999 to proceed with the extradition hearing, Home Secretary Jack Straw pointed out that Chilean courts had made no formal claim for jurisdiction or asked Great Britain for Pinochet's extradition.
Chile remains deeply divided by its violent past, in many ways symbolized by the figure of Pinochet himself. As rival demonstrators took to the streets following the general's arrest and the first House of Lords decision, many observers believed the U.K.'s action placed the transition and even Chile's democratic stability in jeopardy by re-opening old wounds that time had begun to heal. The events did, indeed, reactivate bitter divisions that are still deeply etched beneath the country's apparently tranquil surface.
Despite its abysmal human rights record, Pinochet's regime retained until the end the support of some 40 percent of the electorate (as seen in the plebiscite and the 1989 elections that brought the regime to a close, both generally held to be fair) and the abiding gratitude and loyalty of most of the political right and of the business community. These sectors believed that only military intervention had rescued the country from communism, chaos or civil war. In their view, the much-maligned Pinochet carried out beneficial surgery on the Chilean political system and revolutionized its economy, bringing a backward country into the modern world. The politicians and businessmen who benefited from the political opening and the bonanza of privatizations in Pinochet's final years defended the regime to the hilt, claiming that human rights violations were isolated and committed by both sides and were best forgotten in the interests of future generations.
Their view of Pinochet differed radically from that held by a majority of Europe's new political generation, experiencing a new post-Cold War climate in which human rights had gained increasing acceptance as currency in the political debate. During the dictatorship, only a besieged minority in Chile was aware of the atrocities committed by government agents during the 1970s and 1980s. The refusal of most of the conservative opposition to accept the facts so well-known abroad, especially in countries that received thousands of exiles from Pinochet's rule, was only slightly mitigated by the publication in 1991 of the report of the National Commission of Truth and Reconciliation (known as the Rettig Commission). The commission's 2,000-page report and a follow-up issued in 1996 by its successor, the National Corporation of Reparation and Reconciliation, established an official record of 3,197 victims who lost their lives due to violation of their human rights under the military regime, including 106 who were killed by armed opposition groups. The two bodies did not have a mandate to investigate or quantify cases of torture or other abuses apart from killings. Although the Rettig Commission was politically balanced and reached its conclusions by consensus, all the branches of the armed forces, and particularly the army, vehemently rejected its analysis of the scope, causes, and responsibility for human rights violations. Their congressional allies, many of whom had participated in Pinochet's government, continued to hold the toppled government of President Salvador Allende responsible for the coup and for its tragic aftermath. They regarded human rights as a banner of their traditional political adversaries, the center-left parties that now comprise the government coalition. Many saw efforts for justice as simply a tool for political revenge. The Concertación's weakness in the Senate, dominated by supporters of the military regime thanks to the presence of non-elected senators, made it impossible to implement many of the Rettig Commission's most important recommendations for the protection of human rights.
As a result of Pinochet's arrest, it is now obvious in Chile for the first time that this implacable position is seriously out of step with world opinion. The current year has seen the first relatively open debate in the media since the early years of the Aylwin administration (1990-1994) about the human rights legacy of the military government. After years of neglect, the right of relatives to know the fate of 1,158 people who "disappeared" at the hands of Pinochet's agents, without any accounting or explanation, is now widely considered the most important moral issue facing the nation. Concern has spread for the first time across the political board that the victims are owed answers by those responsible and that the success of Chile's political transition hinges on answers being provided. Some politicians on the conservative right are now willing to consider that human rights violations were the result of a government policy, a possibility hard to imagine a year ago.
As Chile nears December 1999 presidential elections, the political climate does not bear out the doom-laden predictions of opponents of Pinochet's arrest who claimed that it would bring chaos, instability, and violence, upsetting Chile's progress toward full democracy. As the campaign gets underway, politicians on both sides of Chile's left-right divide clearly wish to avoid the shadow of Pinochet and the human rights issue. This mutual interest in claiming the center ground was seen in the rounds of private conversations held by parties across the spectrum to explore solutions to the demands for justice, hopefully to be implemented before the winning candidate takes office in March 2000. Moreover, although historical ideological divisions still weigh heavily in Chilean political life, a majority of public opinion is increasingly indifferent to them. Opinion polls at explosive moments of the Pinochet crisis showed that morethan two-thirds of the respondents did not think that the crisis affected their personal lives or that democracy was in danger. A solid majority wanted Pinochet to face justice, and most wanted this to happen in Chile.
Signals from the military suggest that there are differences of opinion among the generals about what action should now be taken. The Chilean armed forces, in particular the army, are caste-like and highly disciplined institutions, and internal dissent is rarely perceptible to the outsider. Observers believe that Pinochet's arrest has made it more costly for the current military chiefs to continue to defend his government's actions unconditionally. Under Pinochet's leadership until March 1998, the army rigidly denied responsibility for anything but isolated abuses and used its powers to the full to block human rights investigations in the courts. Chile's current military leaders, led by Army Commander-in-Chief Gen. Ricardo Izurieta, belong to a different generation, and their commitment to their institutions' credibility as non-political, professional institutions makes them more sensitive to international opinion. Against this trend must be set the indelible imprint left by Pinochet on the Chilean army and the continuing influence in the army of the generals, mostly now retired, who led the repression.
Statements in favor of a national accounting for the events of the coup and its aftermath of human rights violations have come from Navy Commander-in-Chief Adm. Jorge Arancibia. He is one of a group of military officials who have met with party leaders and human rights lawyers in recent months to explore proposals to obtain information on the "disappeared." The airforce has taken an unprecedented step by declining to contest jurisdiction in a human rights trial implicating some of its former officers. However, the armed forces' publicly stated position has not changed in its essentials. General Izurieta continues to deny the institutional responsibility of the army for human rights violations and has repeatedly stated that the army possesses no information on the fate of the missing. As this report went to press, Admiral Arancibia first denied that the navy committed torture, and on the following day corrected himself and said that abuses had occurred but were committed without official consent by officers confronting extreme circumstances.
Only time will tell whether the military's professed commitment to reconciliation will translate into an honest acknowledgment of responsibility, or simply be another evasion, as these statements unfortunately suggest. That this question is being posed at all, even though its answer is still very uncertain, is a positive consequence of the international attention focused on the Pinochet case.
The Struggle for Justice
More significant changes have occurred in the Chilean courts, in particular the consolidation of a new doctrine on the 1978 amnesty law, until now the most important obstacle to accountability in Chile.
The military's recipe for national reconciliation was to bury the past with a decree seeking to prevent any legal accounting. In April 1978, having declared an end to the state of siege that had provided legal cover for systematic human rights violations, the military junta issued Decree 2,191, the "amnesty law," ostensibly as a measure to promote reconciliation. The law was an attempt to prevent the prosecution of serious crimes committed between September 11, 1973 and March 10, 1978. Although it also led to the pardon of several hundred political prisoners (many of them earlier expelled from Chile and not allowed to return), in the long term the law benefited overwhelmingly those who had participated in the military repression at its height.
The Concertación's electoral program in 1989 included the derogation or annulment of the amnesty law, but the policy was abandoned even before President Aylwin took office. Moreover, both Aylwin and Frei have refused to back legislation to limit the amnesty law's effects. Instead, the first post-Pinochet government pledged, in Aylwin's much-quoted phrase, to seek justice "to the extent possible" (en la medida de lo posible). Both the United Nations Human Rights Committee and the Inter-American Commission on Human Rights have condemned Chile's amnesty law as incompatible with international law and held that it prevents Chile from fulfilling its obligation to provide justice and reparation to victims of gross violations of human rights.
Although the amnesty law has led to the closure of court investigations into the "disappearance" of 170 victims, about one-sixth of the total, it has not been applied across the board. Decisions in individual cases have ultimately depended on the composition of the Supreme Court chambers issuing final rulings on appeals against the application of the law. Chile's highest court, while extremely jealous of its autonomy, has often acted like a thermometer of the political temperature existing at the time.
While Pinochet was in power, his hand-picked judges on the Supreme Court closed scores of "disappearance" cases with disgracefully little investigation. During the Aylwin government, many first-instance judges and someappeals court panels began to insist that the facts be fully clarified and those claiming immunity under the amnesty law identified before the amnesty could be applied. As a result of this so-called "Aylwin doctrine" (it was personally advocated by President Aylwin), scores of senior officers, including retired generals, were summoned to testify in the courts.
In 1995, the Supreme Court convicted former DINA head Gen. Manuel Contreras and his deputy. Brig. Pedro Espinosa, for the 1976 car bomb attack that killed former Allende minister Orlando Letelier and U.S. citizen Ronni Moffitt in Washington D.C. (due to insistence by the U.S. government, the Pinochet government had expressly excluded the case from the amnesty law). With Contreras in jail, the Supreme Court back-pedaled on the amnesty law, closing emblematic cases like that of Carmelo Soria, a Spanish citizen and United Nations diplomat who was abducted and murdered by military agents in 1976 (the case was a key one in the early investigations of the Spanish judges). The military's congressional allies introduced motions into Congress aimed at putting an end to these court investigations once and for all, in exchange for a non-judicial mechanism to investigate the fate of the "disappeared." Measures proposed by Aylwin in 1993 and by Frei in 1995, although more nuanced, also limited the transparency of judicial investigations; they justified these measures as the inevitable price of obtaining the "truth." In each case, the proposals were defensive responses to military pressure to put a stop to court investigations, and all of them failed to pass Congress due to political divisions on the issue within the Concertación parties.
By mid-1999, however, there were signs of a significant change of attitude among senior judges, due in large part to a 1997 reform of the structure of the Supreme Court and the appointment of a new slate of justices in 1998. In September 1998, the Second Chamber of the Supreme Court, now composed entirely of democratic appointees, for the first time invoked Common Article 3 of the Geneva Conventions of 1949 to reverse the closure of a "disappearance" case. On July 20, 1999, the same chamber rejected a habeas corpus appeal lodged by former Gen. Sergio Arrellano Stark and four other army officers who had been arrested and charged with kidnapping in the "Caravan of Death" case, a particularly egregious episode involving multiple executions and "disappearances" in October 1973 which implicated soldiers allegedly acting with special authority from Pinochet himself. The case was part of an investigation opened in January 1998 by Judge Juan Guzmán Tapia into a series of criminal complaints lodged by individuals and organizations against Pinochet (at the last count there were more than forty separate proceedings, all of them under investigation by Judge Guzmán). In its July 1999 ruling, the Supreme Court unanimously endorsed Guzmán's decision to exempt from the amnesty law cases in which the fact of death could not be legally certified and in which the victim, abducted, therefore must be presumed to be still missing.
This decision implied that the amnesty law was inapplicable to other "disappearances," and it opened the door to hundreds of new appeals against the closure of these cases. It meant that only in cases where the death could be certified to have happened between September 11, 1973 and March 10, 1978 would the author of the crime be exempt from prosecution. If the information was withheld, the case would remain open indefinitely and could even lead to convictions. Experience dictates caution in interpreting the lasting significance of a Supreme Court verdict. Since, under Chilean law, jurisprudence has no binding effect on future cases, there is room for the Supreme Court to reverse or modify its doctrine. However, it is notable that a subsequent decision by the Fifth Chamber of the Santiago Appeals court on the "Caravan of Death" case upheld the Guzmán doctrine while rejecting an appeal for the indictment of other officers for the crimes of murder and torture.
The July 1999 Supreme Court verdict sparked an immediate reaction from the military and its parliamentary allies. The pro-military bloc in the Senate accused the court of invading the powers of the legislature by tacitly derogating laws in force. The army generals assembled for three days to discuss the implications of the verdict. The four service chiefs met Minister of Defense Edmundo Pérez Yoma on July 23, 1999 to express their concern that the "parade" of officers and former officers before the courts diverted the armed forces from their professional role and hampered efforts at national reconciliation.
By its unanimous verdict the Supreme Court undoubtedly gave some support to the arguments advanced by the Chilean government in the House of Lords that current conditions permitted Pinochet and other military officers to be judged for their crimes in Chile. Press reports in late September that Judge Guzmán was preparing to send a letter rogatory to the U.K. authorities requiring Pinochet to answer a list of questions relating to the Caravan of Death case and other human rights crimes also suggested that the courts were inching closer to this goal. If Pinochet were granted clemency and repatriated on humanitarian grounds, his withdrawal from public life in Chile would be a likely outcome, and his trial for human rights violations no longer the extravagant fantasy it had been when he was arrested. If, on thecontrary, Pinochet faced extradition to Spain, chances that his ailing health might fail while appeals in the British courts dragged on, would mean that Chile might finally be given a martyr instead of justice.
The Frei administration was pulled in opposite directions by the need to satisfy international demands that the former dictator be brought to justice and its fears for the stability of the transition. Even though Concertación officials defended judicial autonomy against the criticisms of the right, the army's protest at the Supreme Court's July decision spurred the government to return to the quest for a political solution involving limits to judicial accountability.
A series of private meetings held since Pinochet's arrest between lawyers close to the Concertación and members of the armed forces and the parliamentary opposition appear to have convinced government officials that the new military leadership was prepared to provide information on the "disappeared." However, due to the failure of earlier initiatives, ministers have been reluctant to commit to any new proposal unless prior agreement could be reached between the two sides. In the immediate wake of the controversy caused by the "Caravan of Death" decision, Defense Minister Pérez Yoma announced the bold idea of hosting face-to-face meetings between the armed forces and the relatives of the victims, the first direct contact ever between them. He was unable, however, to secure the participation of the major organizations representing the relatives, who considered that any negotiations might debilitate the role of the judges precisely when they seemed poised to challenge the amnesty law. The opening conversations, held on August 31, 1999, included human rights attorneys acting in their own capacity, delegates of the armed forces, and representatives of civil society intervening in a personal capacity as observers and guarantors.
At this writing it is impossible to predict the results of these talks. Earlier proposals discussed in Congress in 1993, 1995 and 1998 contemplated either extrajudicial mechanisms to receive information on the "disappeared" or offers of immunity or secrecy to witnesses in court proceedings. If measures limiting the scope or transparency of court investigations are proposed in the talks, as the military undoubtedly want, lawyers representing the victims have said they will not support them. It is very doubtful that this deadlock will be broken unless a vital new ingredient is added to the talks, such as a frank acknowledgment of responsibility by the armed forces, and their unconditional commitment to assist judicial investigations. While the discovery of physical remains is, to be sure, of major importance for humanitarian reasons, truthful descriptions by the institutions concerned of the methods used, acknowledgment of their absolute wrongfulness, and a public renunciation of the use of such methods in the future are also required. Moreover, government policy must give priority to securing justice for the victims of the military regime, as established by international standards to which Chile is committed.
Human rights reforms radical enough to secure these guarantees of justice and to bring Chilean legislation into line with international standards have been obstructed throughout almost a decade of democratic rule by the authoritarian Constitution introduced by Pinochet in 1980 and accepted by his political opponents as the ground rules of the transition. Several provisions of this Constitution violate political rights protected by international instruments, such as Article 25 of the International Covenant on Civil and Political Rights, which refers, inter alia, to the right
"[t]o vote and be elected at genuine periodic elections which shall be by universal and equal suffrage." After a decade of democratic rule, Chile has a only a partially elected legislature. Under the Constitution, nine members of the forty-eight-person Senate (the legislature's upper chamber) are appointed by the president, the Supreme Court, and the National Security Council (Consejo de Seguridad Nacional, CSN). They include two former Supreme Court justices, a former comptroller general of the republic, four former generals, a former rector, and a former cabinet minister. Under two elected governments, these appointed senators have held the balance of power in the Senate and acquired the power to veto or drastically modify government proposals approved in the Chamber of Deputies, the lower house.
Through the CSN the armed forces also have powers to bring to the president's attention their views on any matter that they consider may affect the stability of the country or national security, effectively an institutionalized channel for military pressure on government decisions. While the Concertación has consistently criticized this constitutional provision, it has been unable to revoke or amend it. Resolute opposition to constitutional change by the political parties that supported the Pinochet regime, together with the substantial majorities required for reforms, have left Chile on the brink of the millennium with a political system designed to confront the challenges of the Cold War.
Both Presidents Aylwin and Frei attempted constitutional reforms but later abandoned them due to blocking tactics by pro-military legislators and the appointed senators (a notable exception was a 1997 reform of the procedure for appointments to the Supreme Court). Many prominent Concertación leaders, including Aylwin himself, consideredthe "transition to democracy" to be over by 1994, when a working relationship had been established with the armed forces and the parliamentary opposition. A pragmatic acceptance of the "military enclaves" (residues of de facto military power established in the Constitution) became firmly established as a hallmark of the governing coalition. As a result, neither government was able to implement much of the program on which it was elected, including important measures to strengthen protection of human rights.
The fate of measures to restrict the ambit of military justice in human rights cases provide an example of the effects of the undemocratic composition of the Senate. Reforms introduced by Aylwin's justice minister, Francisco Cumplido, fell far short of their initial objectives due to objections by unelected senators, including former members of the Pinochet government. Under current laws, military tribunals usually have jurisdiction in crimes involving military personnel on active duty - including the Carabineros police force. The civilian judges who initiate the investigation must frequently surrender the case to these courts when it comes to trial. Civilian judges do not have authority to investigate on military premises. Three of the five members of the military appeals courts (Cortes Marciales) are officers on active service, and therefore lack functional independence. The army's general auditor, a ranking general, occupies a seat on the Supreme Court, which has the final word on cases previously heard in military courts. These arrangements contribute to military impunity, particularly in relation to crimes committed during the Pinochet era. They are inconsistent with Chile's obligations under international law and contradict the views of international human rights bodies like the United Nations Human Rights Committee and the Inter-American Commission on Human Rights.
Declassification: the United States Opens Its Books
During 1998 pressure mounted on the Clinton administration to cooperate with the Spanish investigation by declassifying and releasing official documents on the military government in Chile. Investigations in a Senate Select Committee studying U.S. intelligence operations in the mid-1970s (the Church Committee) established that during the Nixon administration the Central Intelligence Agency (CIA) had been involved in a covert plan to prevent the 1970 election of socialist President Salvador Allende, and to destabilize his government thereafter. To what extent the CIA was involved in the planning or execution of the September 11, 1973 coup remains tantalizingly unclear, as does the question of whether it had an operational relationship with Chilean intelligence agencies during the Pinochet era.
By comparison with many European states, the Clinton administration's reaction to Pinochet's arrest was low-key, even sympathetic to the predicament of the Chilean government, a position U.S. officials termed neutral. While refusing to comment on the judicial aspects of the case, in November 1998 Secretary of State Madeleine Albright said, "In Chile, the citizens of a democratic state are wrestling with a very difficult problem of how to balance the need of justice with the requirements of reconciliation...[and] I think significant respect should be given to their conclusions." The United States had refused to sign the Rome Statute for the establishment of the International Criminal Court and was known be deeply preoccupied about the effects of international accountability on its own soldiers and policy makers. However, the U.S. also had an immediate interest in the Pinochet case. Although the Justice Department initially decided against making a request for Pinochet's extradition to the U.S. to stand trial for the Letelier-Moffitt assassination, the case remained open.
Most sensitive of all for Washington were requests from Pinochet's victims in the U.S. and members of Congress for the declassification of documents relating to the CIA's activities during the first years of the military government, and in particular its relations with Pinochet's secret police, the DINA. Documents declassified in 1998 and 1999 showed that U.S. officials had detailed information on the extent and severity of the atrocities that followed the coup and had even cooperated with the DINA in tracking political suspects.
On June 30, 1999, the U.S. released 5,300 documents relating to the period 1973-1978, totaling more than 20,000 pages, the first installment of a potentially explosive accounting known as the Chile Declassification Project. These documents throw light on the inner workings of the military regime and in particular on the relationship between the DINA, Pinochet, and other high-ranking military officers. They leave no doubt about the direct responsibility of Contreras to Pinochet himself and show that other army officers who vehemently opposed the DINA's methods were repeatedly overruled by Pinochet. This information is of obvious importance to the Spanish trial.
Moreover, the documents confirm that U.S. officials had detailed knowledge of human rights violations during this period. They knew of systematic torture practiced by the DINA and other intelligence agencies. They knew about Operation Condor, a plan to carry out terrorist attacks on political targets in other countries, before a car-bomb claimedthe lives of Letelier and Moffitt in Washington. According to a declassified cable from then-Amb. Nathaniel Davis, the Chilean air force requested U.S. assistance to establish a detention center for political detainees "to ensure that detainees are given humane treatment," a request Washington rejected.
Despite these revelations there are conspicuous gaps in the documents so far declassified. Nothing is revealed about the operational activities of the CIA at the time and its relationship with the Pinochet's regime's security agencies. The Clinton administration deserves credit for its efforts to declassify information that can help establish the truth about this tragic period of Chilean history; only by revealing the full story, however, can the U.S. provide answers to questions inevitably raised about its own role in the events.
Justice Department prosecutors continue to investigate the Letelier-Moffitt case. On September 1, 1999, a rogatory letter was sent to the Chilean Supreme Court asking for cooperation with the U.S. investigation. The letter allegedly requested, among other things, documentary evidence collected by Supreme Court Justice Adolfo Bañados during the investigation that led to the conviction of Contreras and Espinosa. According to Chilean press reports, the Justice Department also requested tapes of reported conversations between Pinochet and Contreras, potentially crucial evidence in establishing the role of Pinochet in the assassination of Letelier and Moffitt.
Recommendations to the Chilean Government
Human Rights Watch welcomes the Chilean government's early signature of the Rome Statute for the Establishment of the International Criminal Court. The signing, on September 11, 1998, the twenty-fifth anniversary of the military coup, showed Chile's clear commitment to international efforts to end impunity. Every effort should be made to speed the ratification bill through Congress.
Given the demands it faces for a consensual formula on human rights trials, the government must not lose sight of Chile's international obligations to provide effective channels for relatives of the victims to obtain justice. The government should continue to ensure that the courts discharge their obligations without pressure from the other branches of government. Measures that limit the action of the courts or that protect the identity of witnesses in exchange for information leading to clarification of human rights crimes only perpetrate impunity and diminish the transparency of the judicial process, preventing Chilean society from knowing the full truth about what occurred. In order to meet its international obligations, Chile must:
· Ensure that the amnesty law is not used to close court investigations of crimes against humanity such as extrajudicial executions, "disappearances," and torture, preventing the prosecution and punishment of those responsible;
· Reform the system of military justice, restricting the jurisdiction of military courts to properly military offenses, and eliminating their powers to try civilians for any offense;
· Enable civilian judges or officials of the civilian judiciary to carry out investigations on military premises without impediment;
· End the representation of the armed forces on the Supreme Court;
· Ensure that the investigation currently being conducted by Judge Juan Guzmán Tapia remains under civilian jurisdiction;
· Cooperate with the Spanish court investigating the case against General Pinochet by making available information requested by Judge Garzón and respecting petitions to appear to testify.
The political parties should seek a clear mandate in the forthcoming elections on the measures needed to make Chile's Constitution fully democratic and to ensure respect for political rights. They should note the Final Observations in March 1999 of the Human Rights Committee established to monitor compliance with the International Covenant on Civil and Political Rights that "[t]he powers accorded to the Senate to block initiatives adopted by the Congress and the powers exercised by the National Security Council, which exists alongside the Government, are incompatiblewith article 25 of the Covenant. The composition of the Senate also impedes legal reforms that would enable the State party to comply more fully with its Covenant obligations." To ensure compliance with its international obligations under the covenant, Chile must:
· Abolish the system of appointed senators and ensure that all members of Congress are elected by popular vote;
· Abolish the National Security Council or replace it with a purely advisory body on which civilians have a majority.
Any proposal, such as those discussed in Congress in 1996, that seeks to limit human rights in exchange for constitutional reforms should be firmly rejected.
Recommendations to the United States Government
The Clinton administration should cooperate fully with investigations underway in courts in Spain and Argentina into crimes committed during the Pinochet government by making available its confidential records and allowing key witnesses to be interviewed. Furthermore, it should continue with the process of declassification, ensuring that the public has access to documents, particularly those of the CIA and the Department of Defense, that help establish objectively the role played by the U.S. government in Chile's human rights tragedy.