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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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Introduction
Chilean officials have recently suggested that General Pinochet should be returned to Chile so that he can face trial there. There are currently twelve cases opened against the General in Chile. In fact, however, there is virtually no chance that Pinochet would be prosecuted by a Chilean court.
As a general principle, Human Rights Watch believes that those responsible for atrocities are best prosecuted by their national authorities. Local prosecution can serve as an acknowledgment of the wrongfulness of an accused's crimes, and the proximity of justice enhances its meaning to the accused's victims. But there is also an essential, legally mandated role for international justice when national authorities are unwilling or unable to proceed against an accused - as is the case of Pinochet.
The foremost obstacle to Chile's prosecution of Pinochet is the April 1978 amnesty from prosecution that the Chilean military granted itself for the crimes committed from the September 1973 coup through March 1978 – the period in which the bulk of Pinochet's crimes were committed. The Chilean Supreme Court has repeatedly upheld the constitutionality of this self-amnesty.
In addition to the self-amnesty, under Chilean law Pinochet enjoys immunity from prosecution as "senator-for-life." The Chilean Supreme Court theoretically could strip him of this immunity if it found him guilty of criminal acts.
A final obstacle to the prosecution of Pinochet in Chile is the likelihood that, as commander-in-chief at the time of his alleged 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.
In sum, the "offer" to try Pinochet in Chile has no real meaning in the absence of extraordinary legislative steps. There are no signs that such steps are on the horizon.
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