Thursday, July 8, 2000. A welcome agreement was reached on June 13 in talks between human rights attorneys, religious leaders, members of civil society and representatives of the armed forces and the uniformed police, known as the Mesa de Dialogo. On June 21, Congress, acting by an overwhelming majority, passed legislation enacting the agreement.
The agreement offers hope that hundreds of Chilean families may know the fate of relatives who "disappeared" following the 1973 military coup, after decades in which this information has been concealed by those responsible for their abduction, torture, and murder. However, it is now up to the armed forces and the police to comply with their agreement to provide the fullest information possible on the whereabouts or fate of the "disappeared" within the stipulated six-month period. The value of the agreement depends on the armed forces keeping their word.
Those who collect or receive this information, both in the armed forces, the police and the churches, will be protected by professional secrecy. This means that they may not be bound to reveal their sources to the courts, and indeed are obliged to keep their identity secret. At the end of the six-month period the information will be provided to President Ricardo Lagos, who will ask the Supreme Court to appoint special judges to locate, exhume and identify the bodies and establish the date and cause of death.
While the law bars those who receive information from divulging their sources, it does not punish those who conceal information or refuse to cooperate with the courts. Participants in the Mesa de Dialogo discussed but were unable to reach a consensus on this point. This serious omission may be rectified in the future, however, as it was agreed that President Lagos may, after reviewing progress in implementing the agreement in six months' time, introduce "complementary measures" if he thinks them necessary.
The norm of secrecy is intended to encourage those who have information to provide it without fear of self-incrimination. It does not restrict the action of the courts. The preamble to the implementing law passed on June 21 says explicitly that it is up to the courts to decide whether, or when, to apply Chile's amnesty law, which covers crimes committed between 1973 and 1978. While the dominant view in the judiciary is that the amnesty is applicable once the fact of death and the identity of those alleged responsible have been established, some judges have ruled the amnesty inapplicable since under international law crimes against humanity are not subject to amnesties or statutes of limitation. Given the scale and severity of the abuses committed under Pinochet, Human Rights Watch agrees with the latter view.
Nor does the amnesty law in any way allow the armed forces or the police to ignore the agreement's requirements. Since the amnesty law forms no part of the agreement, the armed forces or the police would be violating the terms of the agreement if they were to withhold information as a means of protesting court decisions adverse to their members or former members.
In what is perhaps the most important statement in the agreement, the armed forces and the police acknowledged "the responsibility of agents of organizations of the State" for grave human rights violations during the military regime. Human Rights Watch welcomes this as the armed forces' first acknowledgment of responsibility for the atrocities committed under Pinochet's dictatorship. It is still not a perfect acknowledgement of responsibility, however. Notably, the language of the statement does not do justice to the fact, clearly established by the Rettig Commission in 1991, that the human rights violations were systematic and carried out as a matter of state policy. Moreover, the statement can be easily construed to mean that the agents who committed the abuses did not enjoy official support, whereas, in fact, the full resources of the state were used to cover up or legitimize crimes against humanity. In addition, the statement should have included a specific reference to the gravest abuses committed, such as "disappearances," extrajudicial executions, and torture.
Monday, June 5, 2000. In an important step toward ending impunity for human rights violations in Chile, the Santiago Court of Appeals announced its decision to strip Pinochet of his parliamentary immunity. The case now goes to the Supreme Court.
Wednesday, May 17, 2000. "Every one in Chile knows that the disappeared are dead," opposition leaders have been repeating to the four winds. What follows, in their view, is that the courts cannot investigate the fate of the "disappeared" under the legal doctrine that forced disappearance is a continuing crime. This doctrine, they assert, is a legal fiction and a sham.
The opposition's argument is a form of "moral evasion," says Professor José Zalaquett, a participant in Chile's military-civilian dialogue on human rights and a member of the Americas advisory committee of Human Rights Watch. In an op-ed published in the Santiago daily La Tercera on May 17, he accepts the opposition's invitation to "get serious," evaluating the legal meaning of the crime of forced disappearance.
"That the disappeared are dead is a reasonable conviction from which twisted conclusions have been drawn," he argues. "To appreciate the difference between a reasonable conviction and a legal truth, it is enough to consider the responsibility of Pinochet. Common sense tells us that it is unlikely that he was not involved in many of the innumerable crimes committed by his subordinates during the many years in which he was in command of the country. He either gave the orders or backed up what his agents did. Nevertheless, legally he must be presumed innocent. Pinochet's followers understand this perfectly well . . . . Proceeding on the same logic, it is necessary to establish legally what happened to the disappeared and not simply give them up for dead and close the investigations without further steps. The last that was known of them was that they were arbitrarily deprived of their freedom . . . .
"'Getting serious' means admitting that judges did not invent legal technicalities out of persecutorial zeal. They are the inexorable consequence of the stubborn refusal of those responsible for these crimes to provide any information."
Tuesday, May 16, 2000. The climate around last December's presidential elections here prompted a certain optimism that Chile was at last emerging from the shadow of General Pinochet into the light of the 21st century. The former dictator, at that time still under house arrest in the United Kingdom, was scarcely mentioned during the election campaign. Both contendersopposition candidate Joaquin Lavin, as well as Ricardo Lagosagreed that Pinochet would be subject on his return to the jurisdiction of the Chilean courts and that it would be up to the courts to decide his fate. And the courts had begun to do their job: five generals and dozens of lower-level officers were already facing criminal prosecution for human rights violations.
It now appears that the optimism was premature. With Pinochet facing criminal prosecution rather than "dignified retirement" (as his supporters put it), Chile's "political class" has returned to familiar battle lines. Since late April, when proceeding got underway to strip Pinochet of his parliamentary immunity from prosecution, the commanders-in-chief of the armed forces and right-wing opposition leaders have been making loud and concerted protests. Every day the Chilean press reports a new comment disparaging the Chilean courts or the "lack of leadership" of Ricardo Lagos, Chile's socialist president, for his refusal to intervene. "Enough is enough!" is the message coming loud and clear from the military and its parliamentary supporters.
Sick (how sick, no one knows) and isolated in his winter quarters, Pinochet now faces 102 criminal lawsuits, a hearing to decide whether he should be deprived of his parliamentary immunity (desafuero), and the possibility of more extradition requests from Argentina (for the murder of former army chief Carlos Prats) or from the United States (for the Letelier assassination). The publication in April of a government decree showing that Pinochet controlled a secret police anti-terrorist squad implicated in extrajudicial executions in the 1980s could mean that he will face even more criminal charges in the future.
At least for now, negotiations with the armed forces and the parliamentary opposition to "finalize the transition" (as it is put here) have stalled. Opposition leaders insist that constitutional reforms (such as abolishing senators appointed by the military) cannot be considered until a political solution to the Pinochet case and other human rights trials is found. President Lagos says that the Pinochet case is not, and never will be, up for political negotiation, as it is a matter for the courts alone.
Talks between the armed forces and human rights lawyers on the problem of the "disappeared"—the so-called mesa de dialogo—are also on the point of breakdown. Before Pinochet returned to Chile on March 3, agreement was tantalizingly close between human rights lawyers and representatives of the armed forces on the establishment of mechanisms to provide information on the more than one thousand people who "disappeared" under the military government. Now, because of anger over on-going human right prosecutions, and especially the Pinochet case, the military have gone back on the basic principles of that agreement.
An effort is underway to make it appear that Chile is on the edge of confrontation over the future of Pinochet. The strategy seems to have two objectives: first, to put pressure on Chile's senior judges, and second, to force President Lagos to negotiate. Some examples:
Evidently, the purpose of all of these messages is to influence the twenty-two judges of the Santiago Appeals Court who are due to decide whether to strip Pinochet of his immunity as a senator-for-life in early June. And, ultimately, the Supreme Court, to which Pinochet can appeal if the Appeals Court rules against him. Many commentators believe that Pinochet will lose the first round, before the Appeals Court, but may win the Supreme Court appeal. Even if he loses that, he may be able to avoid prosecution on medical grounds before a trial can get underway.
Thursday, May 4, 2000. The Santiago Appeals Court ruled yesterday not to order the medical tests on Pinochet requested by his attorneys until after a decision is reached on whether to strip him of his parliamentary immunity (desafuero). The court fixed a provisional date for the debate on his immunity (May 24), but the final decision may not be known for at least a month.
The court split, with eleven votes for ordering the tests and eleven against. The court decided that an absolute majority was needed, so Pinochet lost. The votes suggest that the actual desafuero vote will be very close.
If the desafuero is approved Pinochet will appeal immediately to the Supreme Court. If it is not approved, the accusers do not have a right to appeal. There is some discussion and disagreement as to what legal action would be possible in that case.
The remaining hearings in the desafuero procedure will be closed.
Saturday, April 29, 2000. Thursday and Friday's hearings in the Santiago Appeals Court gave me a good opportunity, as the only non-Chilean observer, to capture the flavor as well as the main arguments of these historic proceedings, which may well be as near as Chile will get to a trial of Gen. Augusto Pinochet Ugarte.
On Thursday I was lucky enough to be shown to a seat on the side of the courtroom, giving me a privileged view of the litigants (who present their "alegato" in turn, seated at a table facing the court but with their backs to the public).
Each of the seven accusing lawyers and Clara Szczaranski, for the Council for the Defense of the State (which made itself a party to the desafuero petition last month), had thirty minutes to present their case, while Ricardo Rivadeneira (for Pinochet) was given an hour and 45 minutes to compensate for the imbalance. Winding up the prosecution team was Juan Bustos (a respected professor of penal law) and CODEPU lawyer Hugo Gutierrez, an expert on the so-called Caravan of Death case.
The audience consisted in the main of relatives of victims, plus Communist Party leader Gladys Marin (the first to file a complaint against Pinochet, in January 1998). On the other side, separated by a narrow aisle as at a family wedding, sat Pinochet attorneys Miguel Schweitzer and Hernan F. Errazuriz (familiar faces outside the House of Lords), and stony-faced former generals now heading the Pinochet Foundation. There were no interruptions or questions from the twenty-one judges presiding, or from the floor, in stark contrast to the dramatic legal ping-pong in the House of Lords.
Bustos presented a well constructed case, listing eight "presumptions" of Pinochet's criminal responsibility in the Caravan of Death executions. Hugo Gutierrez placed this egregious episode in a convincing historical context. He showed that the group responsible for the killings (Grupo de Asalto Santiago Centro, led by General Sergio Arellano Stark), played a key role in the repression in Santiago on the day of the coup and later became the nucleus of Pinochet's dreaded secret police, the DINA.
Gutierrez argued that by commissioning this group to secretly execute prisoners across the country, Pinochet imposed a new tough line on "lax" local army commanders (before, Pinochet had ordered executions sporadically by telephone). The case marked the beginning of the ascendency of the DINA (responsible directly to Pinochet) over the regular army command. In legal terms, Pinochet was "autor mediato" (indirect author) of the crimes. Among the eight "presumptions" listed by Bustos were the fact that Stark was acting on written authority from Pinochet, with powers to countermand local military chiefs, that he and his team were all promoted rapidly afterward, that Pinochet was informed of the crimes but did nothing to prevent them or order an investigation, and that the generals who opposed Stark were cashiered and even tortured.
In Ricardo Rivadeneira, Pino's military advisers found a defense attorney with a distinguished pedigree as a spokesman of the liberal right (he was selected but declined to be a member of the Rettig Commission). The story, as told by La Tercera, is that a decision had to be made between Rivadeneira and former fascist leader Pablo Rodriguez, when the latter was bitten by Schweitzer's Rottweiler and had to take several days of medical rest.
Rivadaneira's case rested on two separate planks. First, due process. Pinochet could not be tried because he was medically unfit. Rivadaneira insisted that he had never been able to discuss Pinochet's defense with him because Pinochet's doctors would not allow him access !! Among the evidence submitted was the medical exams conducted in London for Jack Straw. Rivadaneira made great use of a highly unfortunate phrase of Straw's in which he said that the results make Pinochet unfit for trial "in any country of the world." If Pinochet could not be tried on due process grounds, he could not be stripped of his immunity either for the same reasons. For this reason, Pinochet's lawyer called on the court to dismiss the proceedings on these grounds BEFORE ruling on immunity.
The second plank of the defense dealt with Pinochet's guilt. Here, Rivadaneira questioned the legal definition of the crimes as "aggravated kidnapping" as a legal fiction. If Pinochet were being held responsible for executions the crimes were covered by the amnesty law and he could not be charged. Precisely to get round this, said Rivadaneira, he was being charged with the "kidnapping" of nineteen victims of executions whose bodies could not be found. Yet these people were known to have been killed and to have been in detention when they died. The issue was one of disappeared "corpses," not disappeared people, he said. Ergo, Pinochet could not be accused of kidnapping. This bitter pill was sweetened by two concessions to "moderate" opinion. First, Rivadaneira praised Judge Guzman for his efforts to locate the "disappeared." Second, he recognized that Pinochet had been "politically responsible for political errors in the management of the security organizations" while stressing "it never ever crossed my mind that he participated in criminal actions."
On the way out of the courtroom there was a tremendous hullabaloo as Rosa Silva, daughter of one of the Caravan victims, confronted Hernan Guiloff of the Pinochet foundation. The disappearing Guiloff was later heard on the TV news muttering that Chilean women should stay at home where they belonged.
On Tuesday, May 2, the court is expected to decide whether to order medical tests and rule on the due process issue BEFORE the desafuero decision, or whether to leave the medical issue for Judge Guzman to resolve ONCE the desafuero is approved (assuming that it is). If they decide on the first option it is unlikely that we will get any further than we are now. If they decide on the second, there is a solid chance that Pinochet's immunity will be lifted. If that happens, the Supreme Court will have to rule on Pinochet's appeal, at which time the medical issue may reemerge. No one is certain that Pinochet will finally face trial, much less arrest.
Legal issues in the case against Pinochet. The amnesty law decreed by the military government in 1978 bars the criminal prosecution of crimes committed from 1973-1978. But in cases of "disappearances," where the bodies of the victims have never been recovered, the Chilean courts have ruled that the victims must be considered still "disappeared," and hence victims of an ongoing crime. Accordingly, the amnesty law does not apply.
The bodies of nineteen of a total of seventy-two prisoners executed by the Caravan of Death have never been found. It is their cases that are now being prosecuted in the Chilean courts.
Current dispatches from Sebastian Brett, Human Rights Watch researcher in Santiago, Chile