On October 8, 1999, London Magistrate Ronald Bartle committed General Augusto Pinochet for extradition to Spain where he could stand trial for 34 counts of torture and one count of conspiracy to commit torture. Bartle's ruling was particularly significant for its treatment of the conspiracy charge and of the allegations of "disappearances" by Pinochet's regime.
October 16 marks the first anniversary of General Pinochet's arrest. Human Rights Watch, which took part in the Pinochet hearings before the House of Lords, has prepared the following update to explain the status of the extradition proceedings as well as to examine other legal issues that the case presents. This supplements the Human Rights Watch Update of September 20, 1999.
What did the Magistrate decide?
The Magistrate decided that Pinochet was properly accused of acts constituting crimes in both Spain and the United Kingdom. In making its case under the European Convention on Extradition, the Crown Prosecution Service (CPS), representing Spain, was not required to present proof of Pinochet's guilt.
What is the significance of the Magistrate's ruling on evidence of conspiracy?
The House of Lords, in its second decision on March 24, 1999, ruled that the only crimes for which General Pinochet could be extradited were torture and conspiracy to torture after December 8, 1988, when the U.N. torture convention took effect in the U.K. Magistrate Bartle specifically ruled, however, that Pinochet's conduct before 1988---which would include the creation of the secret police and the establishment of Operation Condor targeting Pinochet's opponents abroad---could be examined by the Spanish courts in proving the existence of a conspiracy which continued after December 1988. This ruling is in line with the language of the House of Lords decision. Secretary of State Jack Straw also took pre-December 1988 conduct into account when issuing his Authority to Proceed on the conspiracy count.
The conspiracy charge goes to the heart of the case because it alleges that Pinochet used torture as a weapon of intimidation and political persecution. By allowing evidence of conduct that occurred before 1988, Bartle's ruling clearly permits the Spanish prosecutors to prove that General Pinochet built a state apparatus that relied on torture and that he was fully aware that torture was practiced systematically.
What was the Magistrate's ruling on the "disappearance" cases?
The Spanish extradition request details the cases of 1,198 "disappearances" carried out by Pinochet's regime, and these were presented to the Magistrate as part of the conspiracy count. "Disappearances" are considered continuing crimes as long as the fate of the "disappeared" remains hidden---and thus they continue past 1988 even if the victims were abducted earlier. Bartle ruled that "the effect on the families of those who disappeared can amount to mental torture," (thus bringing the acts within the "torture" conspiracy ) and that Spanish prosecutors could seek to prove that this was General Pinochet's intention.
Although there have been U.N. declarations and U.N. and European court rulings on the subject, this appears to be the first time that a national court has ruled that disappearances can be a form of torture for the loved ones of the "disappeared." For the Magistrate to uphold these allegations is thus a historic acknowledgment of the families' continuing anguish. In the context of this case, it also constitutes an invitation to Spain to detail these cases and show that Pinochet used this cruel practice as a form of terror.
What are the grounds on which Pinochet can appeal the Magistrate's ruling?
General Pinochet has fifteen days from the date of the Magistrate's ruling within which to bring a habeas corpus petition before the Divisional Court (High Court). Britain's Extradition Act provides that discharge may be warranted on any of the following grounds: the trivial nature of the offense, the passage of time since the offense was committed, or the bad faith of the accusation. If one of these grounds is met, the judge may then examine whether the ground alleged, having regard to all the circumstances, creates a situation where it would be "unjust or oppressive" to send him to Spain. In reviewing the habeas corpus petition, the Divisional Court will not be acting as an appeals court with respect to questions of fact, as long as the Magistrate had sufficient evidence before him to order committal.
What is meant by "unjust or oppressive?"
In examining whether extradition would be "unjust or oppressive," the British courts regularly return to the test that Lord Diplock set out in Kakis v. Government of Cyprus. "‘Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, ‘oppressive' as directed to hardship of the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration."
If the Divisional Court upholds the Magistrate's decision, can Pinochet appeal?
If leave is granted, General Pinochet may take his habeas corpus petition to the House of Lords. Although some lawyers assert that he may do this as of right, without seeking leave to appeal, Magistrate Bartle's decision indicates otherwise.
What happens when Pinochet's appeals are exhausted?
The matter returns to Home Secretary, Jack Straw, who will make a final decision on extradition. If Straw ultimately decides to extradite General Pinochet, Pinochet can seek judicial review of the decision at the Divisional Court if he is granted leave to appeal. At this stage, the Divisional Court could only rule that the Home Secretary used his discretion unreasonably. Given the Secretary's wide discretion, the likelihood of success is extremely narrow. The decision of the Divisional Court can be appealed to the House of Lords if leave is granted. What will be the effect of the case Chile is filing against Spain at the International Court of Justice?
The case that Chile is filing against Spain at the International Court of Justice (ICJ) is not likely to impact the case against General Pinochet. Under the Statute of the International Court of Justice and Article 30 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the ICJ is competent to settle disputes regarding the interpretation of the Convention. The Torture Convention stipulates that parties with a dispute as to the meaning of the Convention are to submit to arbitration if unable to settle the dispute through negotiation. If, after six months, the dispute cannot be resolved, the parties may refer the dispute to the ICJ.
The Chilean Government requested that Spain submit to bilateral arbitration to resolve the question of whether a Spanish court has the authority to try General Pinochet under the Torture Convention. Chile asserts that Spain's attempt to exercise jurisdiction over General Pinochet is improper as the alleged crimes occurred in Chile. Because Spain refused to submit to arbitration, Chile proceeded directly to the ICJ.
Given Spain's refusal to arbitrate, it seems likely that the case will ultimately go forward at the ICJ if pressed by Chile. An ICJ proceeding could take up to two years, however, and it is unlikely that the ICJ would order that Pinochet's extradition to Spain or his prosecution should be stayed pending the ICJ decision. If Chile decides to go forward, it would more likely serve only to settle the scope and applicability of the Torture Convention. Given the principle of universal jurisdiction embodied in the Convention, Human Rights Watch is confident that the ICJ would find Chile's interpretation of the Convention erroneous.
Given the assertion that Pinochet is ill, should he be released by the British courts?
General Pinochet's request to be released due to his poor health raises two issues under international law. First, all people deprived of their liberty are entitled to be treated with dignity. General Pinochet is thus entitled, for instance, to adequate medical care (which he appears to be receiving). Second, those facing trial must be able to participate in their own defense, which is an essential component of the right to a fair trial. This means that a person should be mentally capable of understanding the charges and participating in his defense, as well as physically fit to attend the trial if he chooses.
Because of the gravity of the offenses with which General Pinochet is charged, any decision regarding his release should be made with caution. The mere fact that a person is ill does not place him above enforcement of the law. General Pinochet should only be released upon a judicial determination that he is not, and will not be, fit to stand trial.
How have the British courts ruled when considering an applicant's ill health as a ground for discharge under the Extradition Act?
Many applicants have asserted that their extradition would be "oppressive" due to the "passage of time" since the alleged crimes were committed (see above), when considered in light of their current ill health. Recent British cases have shown little leniency on health grounds in habeas corpus proceedings, however, to those who have been committed for extradition. Courts have ruled that "it needs to be shown that it is the passage of time that has caused the oppression."
If the courts do not release Pinochet, is it possible that the Home Secretary will release him on "humanitarian" grounds?
Jack Straw, the Home Secretary, may refuse extradition on any of the grounds reviewed by the Divisional Court (see above), or under his general discretionary powers. The Home Secretary, in issuing his second Authority to Proceed on April 15, stated that in his final decision, he would "consider the extradition request afresh...tak[ing] into account any findings in the committal proceedings and any habeas corpus proceedings as well as any representations which Senator Pinochet may wish to make against return."
In particular, the Secretary indicated that the question of whether Pinochet's "age and health would render it unjust or oppressive" to extradite him was a "question, among others, [which could] be re-examined in the light of any developments, at the stage when he comes to exercise his final discretion at the end of the extradition process."
If the Home Secretary is considering a "humanitarian" release, he should appoint independent physicians to examine General Pinochet and not rely solely on the information provided by his physicians. Any refusal by General Pinochet to be examined by appointed doctors should weigh against a decision to return him to Chile on humanitarian grounds.
Human Rights Watch believes that a full and fair trial could be tremendously valuable in establishing a record of Pinochet's crimes, even if he doesn't serve a day in prison. General Pinochet should be therefore be returned to Chile on "humanitarian" grounds only if there is a determination that he is not likely to survive the legal process. Having a long term-illness, even one which might eventually be fatal, does not exempt someone from criminal responsibility.
How have other tribunals treated ill defendants accused of crimes against humanity?
In four recent high-profile cases---the prosecutions in France of Klaus Barbie, Paul Touvier and Maurice Papon, and in Germany of Erich Honecker---perpetrators of crimes against humanity argued that they should be awarded leniency due to old age and/or ill health.
- The Vichy France Defendants: Barbie, Touvier, and Papon Pro-Nazi war criminals Klaus Barbie, Paul Touvier, and Maurice Papon were all of advanced age when their prosecution commenced; Papon was quite ill during the course of the trial. Despite this, none of the three was excused from standing trial and each was sentenced to terms in prison.
Klaus Barbie, the former Lyon Gestapo chief known as "the Butcher of Lyon," was sentenced to life imprisonment in 1987 at age 77 for his role in the deportation of French and expatriate Jews between 1942 and 1944. Barbie died of cancer in solitary confinement in 1991.
Paul Touvier, the former French militia chief and assistant to Barbie known as the "Hangman of Lyon," was tried and convicted in 1994 for ordering the death of seven Jews. Touvier became quite sick while incarcerated from prostrate cancer; his family asked twice for a presidential pardon. Both requests were denied and Touvier died in prison in 1996 at the age of 81.
Maurice Papon, who was convicted for ordering the deportation of 1,560 people while serving as secretary-general for Jewish affairs in Bordeaux from 1942 to 1944, was 87 years old at the beginning of his trial and had recently undergone triple bypass heart surgery. Before trial, the French court appointed two doctors to rule upon the state of his health. Based on their findings, the prosecution against Papon commenced. Due to Papon's poor health, the trial was delayed several times but it was completed and Papon, then aged 88, was sentenced to 10 years in prison on April 2, 1998. Due to his poor health, he was allowed conditional freedom pending his current appeal.
- The Honecker Case Former President of the German Democratic Republic Erich Honecker was indicted for thirteen manslaughter charges resulting from shootings by East German border guards. At the time of the indictment, Honecker was suffering from terminal liver cancer and was not expected to live more than a few months. The Berlin Constitutional Court released Honecker, reasoning that although he might be fit to stand trial, he was not fit enough to withstand punishment. The court wrote: "A trial loses its purpose of handing down a binding judgment . . . when, with great probability, the accused will not make it to the end. The trial then becomes self-serving." The Court determined that the trial violated the human dignity guaranteed in the Germany's Basic Law because the defendant's punishment was unlikely to actually occur, making the trial appear to be an end in itself. Later, however, it was discovered that Honecker was not in the last stages of cancer, as the Berlin court appeared to believe. The lower court decision was subsequently overruled and it was ordered that Honecker stand trial. Honecker had already fled upon his release in January 1993 to Chile, however, where he lived until his death in April 1994.
As noted above, Human Rights Watch believes that, whether or not General Pinochet actually serves a sentence, a trial can serve the important purpose of establishing the truth about his crimes and provide a measure of justice to his victims.