Human Rights Developments
The coalition government of President Eduardo Frei struggled in its final year to cope with the twin challenges of Chile's first recession in fifteen years and the complex political problems posed by the arrest in London of former dictator Augusto Pinochet. Divisions over Pinochet's legacy rose immediately to the surface as embassies were besieged by furious protesters, national flags appeared overnight in prosperous neighborhoods, and for a few tense weeks fear of a return to violence stalked the Santiago streets. Yet apart from moments of extreme tension when court verdicts were announced in London, Chileans adapted to these momentous developments with little overt violence. Pinochet and his legacy of human rights violations, a theme purposefully avoided by the government for several years, were front page news for most of the year.
Pinochet's arrest, and the ensuing legal battle over his extradition to Spain, were the fruit of a three-year investigation conducted by Spanish magistrate Baltasar Garzón into systematic violations of human rights, including murder and torture, under Pinochet's seventeen-year rule.
Immediately after Pinochet's arrest in October 1998, his British lawyers won a habeas corpus appeal to the High Court, which held that Pinochet, as a former head of state, was immune from legal process in the United Kingdom. On appeal, Britain's highest court, the House of Lords Judicial Committee (the Law Lords) reversed the ruling. In a dramatic judgment handed down on November 25, 1998, the House of Lords concluded that sovereign immunity did not extend to crimes against humanity. Unusually, the court granted leave to intervene in the hearing to four concerned organizations, including Amnesty International and Human Rights Watch. Pinochet's counsel challenged the November 25 decision on grounds that one of the Law Lords, Lord Hoffmann, a director of Amnesty International's charity division, might have been biased against General Pinochet. In a decision almost without precedent, another panel of Law Lords vacated the November 25 decision, ruling that as an intervenor Amnesty International was in practice a party to the appeal. On March 24, 1999, a third panel of Law Lords pronounced General Pinochet's arrest to be lawful and consistent with Britain's obligations under the United Nations Convention against Torture, ruling that as a former head of state Pinochet did not enjoy immunity from extradition on charges of torture and conspiracy to torture. But the Law Lords held that Pinochet could only be extradited for acts of torture or conspiracy to torture committed after December 8, 1988, when the United Kingdom ratified the Convention against Torture. On April 15, British Home Secretary Jack Straw approved the extradition proceedings, arguing that the reduced charges were serious and sufficient for extradition, and that Spanish jurisdiction was valid in the absence of a competing request from the Chilean government. Pinochet remained under house arrest in an exclusive private estate in the county of Surrey. On October 8, a magistrate committed Pinochet for extradition on thirty-four charges of torture and one of conspiracy to torture. He ruled that Pinochet's conduct before 1988 could be examined in proving the conspiracy.
The Chilean government refused to recognize the jurisdiction of the Spanish court from the beginning of Judge Garzón's investigation and failed to cooperate with it. Indeed, the government had tried to ease Pinochet's passage through Europe with a diplomatic passport attributing to him a special official mission. Engaging counsel in London after Pinochet's arrest, the government intervened in defense of the Chilean state in the House of Lords (not, it insisted, in Pinochet's defense), and lobbied Home Secretary Straw to allow Pinochet to return to Chile, arguing that Chilean courts were competent to judge him and had a superior right to do so over Spanish courts. In practice, however, no charges had been brought against the former dictator since he stepped down in March 1990. In January 1998, Santiago Appeals Court Judge Juan Guzmán Tapia began investigations into more than forty criminal complaints filed against Pinochet. As a senator-for-life under the constitution he introduced in 1980, Pinochet enjoyed full immunity from criminal process. In October, Judge Guzmán sent Pinochet a list of seventy-five questions about the crimes that he was required to answer. Before he could be charged, however, the Supreme Court had to first rescind his parliamentary immunity.
Apart from his parliamentary immunity, Pinochet was also protected by an amnesty proclaimed by the military government applicable to crimes committed between September 11, 1973, the date of the military coup that overthrew the government of Salvador Allende, and March 1978, when the nation-wide state of siege was lifted. Eighty percent of the approximately 3,000 extrajudicial executions, "disappearances," and deaths under torture committed by state agents throughout the military government date from this period, according to figures published by a government commission in 1996.
The strength of pro-Pinochet sentiment among the country's two most powerful groups, the armed forces and the business community, coupled with Chile's undemocratic constitution, had severely limited the power of two successive elected center-left governments to introduce much needed human rights reforms. By the time of Pinochet's arrest, a modus vivendi had been established with the military, an unstated assumption of which was that no legal action would be taken against the former ruler. President Eduardo Frei opposed the jurisdiction of the Spanish court from the beginning of Garzón's investigation in 1996. Although the government said it was merely advocating the principle of territorial jurisdiction, its position reflected the same fear of political instability that repeatedly slowed human rights-related reforms over the last decade. Having maintained in its interventions in the House of Lords in January that only Chilean courts had the right to try Pinochet, the government took no measures to remove legal barriers to his prosecution at home. By October no Chilean court had charged him with any offense.
While strategies to bring Pinochet home occupied both government and opposition, Pinochet's arrest also generated much discussion about justice and reparation for victims of human rights violations committed under his rule, a topic swept under the carpet for years. In this new and more open climate, the courts issued several key decisions limiting the effects of the 1978 amnesty law, which had hitherto prevented prosecutions for crimes during the coup and its violent five-year aftermath. In July the Supreme Court unanimously upheld the detention and prosecution of five senior army officers, including a general once close to Pinochet, for their participation in a series of mass killings in October 1973. Amid military discontent at this ruling and the increasingly frequent citation of officers for court appearances in other cases, Defense Minister Edmundo Pérez Yoma organized a series of trust-building meetings in August between representatives of the armed forces, lawyers who litigate for relatives of victims of human rights violations, and representatives of civil society. Even its proponents recognized, however, that this initiative's purpose was ill-defined and its chances of success limited.
Freedom of expression continued to be restricted by laws introduced by Pinochet or predating his rule that inhibit political debate. Most of the parties making up the Concertación government coalition, however, strongly opposed the censorship in April of a book considered defamatory by the country's former chief justice. Members of congress from the ruling coalition parties proposed legislation to amend provisions of the Law of State Security that prohibit criticism of government officials and permit prior censorship.
Due to differences of legal interpretation by the Chilean courts, the amnesty law had been applied selectively and extraordinarily inconsistently in past years. Seventy-seven cases, involving 261 victims, had been closed by the courts, but hundreds of cases remained open for investigation. The position of the armed forces and their parliamentary allies was that the amnesty should be implemented to close the books forever on excesses committed by both sides. Relatives of the victims of human rights violations, and the center-left parties in Congress closest to them, wanted the courts to provide truth and justice. Taking a middle position, politicians close to Frei believed that closing the books forever was unethical and that achieving truth and justice was unrealistic. They considered that the most pressing moral issue was to discover the fate of the "disappeared." To overcome the refusal of those implicated in human rights violations to cooperate with the courts, they argued, guarantees should be devised to ensure that the identity of those providing information would be withheld and no legal reprisals would follow their declarations. The most positive developments were in the courts. In December 1998, a judge ordered the arrest of eight former members of the National Information Center (Central Nacional de Informaciones, CNI), successor to Pinochet's notorious secret police, the National Directorate of Investigations (Dirección Nacional de Informaciones , DINA), for the 1987 deaths of seven people, an incident known as the Albania Operation (Operación Albania). CNI agents detained, tortured, and killed the suspects, and then dressed the scene to make it appear that they had been shot in combat. Although not covered by the amnesty law, the case had been under military jurisdiction until the Supreme Court transferred it to a criminal court judge in March 1998. A long-stalled investigation into the 1982 murder of trade unionist Tucapel Jiménez was shaken back to life by the Third Chamber of the Santiago Appeals Court when it removed from the case a judge linked by family ties to the CNI. By September, Gen. Humberto Gordon, a former CNI director and member of the military junta from 1986-1988, and Brig. Roberto Schmied, the commander of the CNI's metropolitan division, were among eighteen suspects charged in the case.
In July 1999, Judge Carlos Cerda of the Fifth Chamber of the Santiago Appeals Court indicted Edgar Ceballos Jones, former head of air force intelligence, for the murder and "disappearance," respectively, of Communist Party leaders Alfonso Carreño Diaz and José Luis Baeza Cruces in July 1974. Judge Cerda argued that the facts had to be exhaustively investigated before the amnesty question could be considered, noting that Baeza's continued disappearance made it impossible to establish that the crime was committed within the period covered by the amnesty law. Ceballos Jones was arrested on February 3 and detained in the air force hospital.
On June 8, Judge Juan Guzmán Tapia, investigating more than thirty criminal complaints against Pinochet and other members of the military junta, ordered the arrest on kidnaping charges of five senior retired army officers: Gen. Sergio Orellano Stark, Brig. Pedro Espinosa Bravo (who was already serving a prison sentence for the September 1976 car bombing murder of Orlando Letelier and Ronni Mofffitt in Washington, D.C.), and Cols. Marcelo Morén Brito, Sergio Arredondo, and Patricio Díaz, who were implicated in the so-called Caravan of Death case, a notorious episode involving the extrajudicial execution of seventy-five prisoners in October 1973. They were members of a helicopter-borne commando task force, acting with authority from Pinochet himself, which toured prisons in the north and south of Chile, removing inmates from their cells and secretly executing them. In view of the fact that the bodies of nineteen of the victims had never been located, Judge Guzmán held that their abduction was still current, and hence excluded from the amnesty law. The five former officers were detained in military bases.
On July 20, the Supreme Court unanimously rejected a habeas corpus appeal against the officers' arrest and upheld the doctrine underlying Judge Guzmán's decision, namely that "disappearance" is a permanent crime until the victim's death is legally ascertained. In theory, this meant that the officers could be convicted unless the fate of the nineteen unaccounted-for victims could be established. In several of these cases, former Pinochet government ministers, who had since become members of the Senate, were called to give evidence.
The July Supreme Court decision produced a hostile reaction by pro-military senators, who accused the court of remaking the law. The armed forces held a three-day conclave at a beach resort to discuss its implications. On July 23, the four service chiefs met Defense Minister Pérez Yoma to press the government to seek a political solution to the matter. In August Pérez Yoma announced his idea of establishing a dialogue between relatives of the victims, to be represented by the Group of Relatives of the Disappeared (Agrupación de Familiares de Detenidos Desaparecidos, AFDD), and delegates of each of the four branches of the armed forces. The AFDD immediately rejected the invitation to participate in what they saw as a negotiation aimed at preserving impunity. The group held its first sessions at the end of August, excluding the AFDD but including four representatives of the armed forces, lawyers litigating human rights cases, human rights experts, representatives of religious institutions, and other civilians. Formal expositions by the representatives of army Commander-in-Chief Ricardo Izurieta and navy chief Adm. Jorge Arrancibia did not betray any change of institutional position, despite a softening of language. Izurieta's insistent denials that the army had any information about the whereabouts of the "disappeared" fell like a shadow over the talks.
Chilean courts requested the extradition of at least two suspects in human right crimes. In April the Supreme Court authorized a request for the extradition from France of Galvarino Ancavil, a former civilian CNI agent wanted in the Tucapel Jiménez case. In August a court issued a request for the extradition from the United States of DINA agent Armando Fernández Larios, allegedly a member of the Caravan of Death, who had served time in U.S. prisons for his role in the Letelier-Moffitt assassination.
The press continued to be restricted by anti-defamation laws and other legal norms limiting freedom of expression. Within hours of its April 13 launch, police removed from bookshops The Black Book of Chilean Justice by journalist Alejandra Matus, an exposé of venality and improper conduct in the upper echelons of the judiciary. Behind the banning order was former Chief Justice Servando Jordán, one of the targets of the book, who accused Matus and the publishers, Planeta, of defamation under the Law of State Security. Matus left for Buenos Aires and subsequently the United States after learning of her imminent arrest.
Also charged were Bartolo Ortíz, manager of the publishing house Planeta, and Carlos Orellano, its editor. Police arrested both of them on June 16 and held them for two days. The court summoned for questioning prominent journalists who had read or exhibited extracts from the book on television.
The action against Matus and Planeta was taken under the Law of State Security, which prohibited what it deemed offensive criticism of government authorities. Following the storm caused by Judge Jordán's action, a group of congressmen presented a bill to eliminate provisions of the Law of State Security that made it an imprisonable offense to insult government officials and allowed the confiscation and banning of publications. Although this was the first parliamentary effort to revise these authoritarian provisions since the return of democracy, amendments to the bill made its passage under the current administration unlikely. Among the proposals under discussion was the inclusion in the penal code, rather than the security law, of an article to criminalize the defamation of government authorities.
By October, Matus's book was still banned from Chilean bookshops, although the full text was available on the Internet and pirate copies circulated. The special rapporteur on freedom of expression of the Organization of American States, Santiago Cantón, visited Santiago on June 23, advancing a trip scheduled for August, on receiving news of the arrest of the Planeta editors. Apart from this egregious case, there were no other reports of defamation prosecutions under the Law of State Security, a notable improvement on 1998.
Defending Human Rights
Chile's much-depleted nongovernmental human rights community campaigned vigorously to defend the Pinochet prosecution and played a vital role in providing information to the Spanish court. The atmosphere turned ugly in the final three months of 1998, when scores of politicians, journalists, former political prisoners, and human rights activists received anonymous death threats, many by e-mail. Members of congress who supported the Pinochet prosecution were "bombarded" by death threats, in the words of Socialist Party leader Ricardo Núñez, who was threatened himself. After being repeatedly menaced in October 1998, Carmen Soria, daughter of Spanish diplomat Carmelo Soria, who was murdered by Pinochet's agents in 1976, followed diplomatic advice and took her family to Spain.
On December 27 various members of the Corporation for the Rights of the People, (Corporación por los Derechos del Pueblo, CODEPU) received threatening messages by e-mail, sent by a group calling itself the Fatherland and Liberty Nationalist Front (Frente Nacionalista Patria y Libertad). The messages said: "People like us are not going to allow communists/socialists like yourselves to get away with it, take care because your elimination is close." CODEPU was an outspoken defender of the Pinochet prosecution and its lawyers represented relatives of the victims of the Caravan of Death. On November 13, an anonymous message from a group calling itself Organized Extreme Right (Extrema Derecha Organizada) was posted on the Internet, in which the authors threatened human rights lawyer Hernán Montealegre, and claimed responsibility for a bomb-hoax and an incendiary attack on an Antofogasta newspaper.
During the last week of November 1998, a fax arrived at the office of broadcaster José Gómez López at the University of Chile radio station, awarding him the "Red Tie Award, just like some friends of yours in Quilicura were given a few years ago in Quilicura." This was a reference to three communists whose throats were cut by police agents in 1985.
The Role of the International Community
In March, the U.N. Human Rights Committee published its Concluding Observations on Chile's reports on compliance with the International Covenant on Civil and Political Rights. The committee expressed concern at the undemocratic composition of the Senate, which, it stated, "impedes legal reforms that would enable the State party to comply more fully with its Covenant obligations." During the same month, High Commissioner for Human Rights Mary Robinson said of the second House of Lords decision: "The ruling today by the United Kingdom's highest court in the case of Senator Augusto Pinochet is a vigorous endorsement of the view that torture is an international crime subject to universal jurisdiction. National courts can try torturers even when the crime has been committed elsewhere."
Following Pinochet's detention in London, Belgium, France, and Switzerland also moved to prosecute the general and filed extradition requests of their own. Members of the European Parliament, reacting to the arrest, urged Spain to seek Pinochet's extradition as quickly as possible.
The White House said little at Pinochet's arrest, and when pressure in Europe for his extradition mounted, the State Department went to Chile's defense. Refusing to comment on the judicial aspects of the case, Secretary of State Madeleine Albright called in November 1998 for understanding of Chile's dilemma: "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." However, while keeping its distance on the extradition issue, the administration decided to help the truth-telling process.
On February 1, the White House issued a directive ordering U.S. agencies to collect and review for release documents "that shed light on human rights abuses, terrorism, and other acts of political violence in Chile." On June 30 the government released an estimated 5,300 declassified documents relating to events during the period from 1973 to 1978, from agencies including the Federal Bureau of Investigation, the Central Intelligence Agency, and the Defense Department. Thousands more documents from the pre-coup period were promised later in the year. The U.S. made declassified files available under a bilateral Mutual Legal Assistance Treaty to Judge Garzón, and to Argentinean judge María Servini de Cubría, who was investigating the 1974 assassination of former Chilean army commander Carlos Prats in Buenos Aires. The judge determined that Argentina had jurisdiction over the case and informed Pinochet that he should appoint a lawyer.
Although heavily censored, the released documents confirmed the direct chain of command between Pinochet and the head of the DINA, Manuel Contreras. They also showed that U.S. Secretary of State Henry Kissinger had received detailed intelligence about the extent and gravity of human rights violations, even as the U.S. continued to shower the Pinochet government with military and economic assistance. Freedom of information advocates in the U.S. continued to press the White House to declassify documents still withheld, particularly by the CIA and the Defense Department.
Justice Department prosecutors continued to investigate the Letelier-Moffitt murder 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 Espinoza. 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.