The Overthrow of Allende
On September 11, 1973, the armed forces led by General Pinochet overthrew the left-wing government of President Salvador Allende Gossens in a ruthlessly executed coup, in the aftermath of which more than a thousand people died. President Allende shot himself after the Chilean air force bombed the presidential palace where he was holding out with his personal bodyguards and a small group of advisors. Imposing a state of siege across the country, the military junta, presided over by Pinochet, hunted down members and sympathizers of the Allende government, especially members of the Socialist Party, the Communist Party and the extreme-left Movement of the Revolutionary Left (Movimiento de la Izquierda Revolucionaria, MIR).
Most of the repression was carried out by a new entity, the Directorate of National Intelligence (Dirección de Inteligencia Nacional, DINA), which first emerged in October 1973. This body, headed by Pinochet's former pupil, army Col. Manuel Contreras Sepúlveda, accrued enormous power, largely supplanting the intelligence branches of the armed forces, until it was dissolved in 1977. The DINA was formally subordinate to the military junta but in practice responded solely to the orders of General Pinochet. Contreras initiated and coordinated a plan of cooperation between the DINA in Chile and parallel military intelligence agencies in Argentina, Uruguay, Paraguay, Bolivia, and Brazil. The plan's purpose was to trade prisoners and intelligence in an effort to eliminate left-wing opposition activity in the participating countries, as well as to monitor the activities of exiles in the United States and Europe. The plan, which included the surveillance, "disappearance," and assassination of political targets, went by the code-name "Operation Condor." Documents found in the archives of the Paraguayan police intelligence services following the fall of dictator Gen. Alfredo Stroessner in February 1989 confirmed the extent of this coordination. Chilean and Argentinian state agents were responsible for the abduction in Argentina and "disappearance" in both countries of scores of Chileans seeking to escape the repression in Chile. The DINA conspired with anti-Castro Cuban terrorists and Italian neo-Fascists to murder prominent Chilean opposition leaders in exile. On September 30, 1974, Gen. Carlos Prats, Pinochet's predecessor as army commander-in-chief, and his wife Sofía Cuthbert, were killed by a car bomb in Buenos Aires. A year later, on October 6, 1975, Christian Democrat leader Bernardo Leighton and his wife Anita Fresno were gravely wounded in a shooting attack in Rome by a DINA-contracted Italian terrorist. The most notorious crime committed as part of Operation Condor was the September 21, 1976 car-bomb assassination in Washington D.C. that claimed the lives of Allende's former foreign minister, Orlando Letelier, and U.S. citizen Ronni Moffitt.
There were 3,197 victims of executions, "disappearance" and killings from 1973 to 1990, according to the Rettig Commission and its successor, the National Corporation of Reparation and Reconciliation. Government agents secretly disposed of more than 1,000 of these victims presumably after their torture and murder. Except in 178 cases, the fate or burial places of the "disappeared" remains unknown to this day. General Pinochet suppressed members of the Chilean armed forces who opposed the growing power of the DINA and its notoriously abusive behavior and called for an early return to democracy. In addition to extrajudicial executions, "disappearances," and torture, Pinochet's regime was also responsible for widespread arbitrary detention, lack of due process, exile and internal banishment of government opponents, and other systematic violations of civil and political rights.
In August 1977 the military junta, by now with Pinochet as its formal head, dissolved the DINA and replaced it with a more innocuous-sounding body, the National Information Center (Central Nacional de Informaciones, CNI). In the following year the dictatorship ended the state of siege which had been in force since the coup. However, these measures did not signify a real break with the past. Many of the powers conferred on the executive by the state of siege were added to the continuing state of emergency, which remained in force. The CNI was tasked with "protecting the normal development of national activities and the maintenance of the institutional order," concepts drawn verbatim from Decree 1,009 which regulated the state of siege. The CNI inherited the DINA's files and much of its personnel, including General Contreras. In November 1977, however, Pinochet fired Contreras as its director due to the scandal caused in the U.S. by the Letelier assassination.
On April 19, 1978, the Pinochet government decreed an amnesty (Decree Law 2,191), which applied to "all those persons responsible for the commission of crimes, as accomplices or guilty of their cover-up, during the State of Siege in force from September 11, 1973 until March 10, 1998, provided that they are not presently committed fortrial or sentenced."1 The 1995 conviction of General Contreras and Brig. Pedro Espinosa for the Letelier-Moffitt assassinations is the only crime in that period for which members of the military or the police have been found guilty and sentenced, and this was possible only because the case was specifically exempted from coverage by the amnesty.2
With all political parties banned or in recess, it took fourteen years for a viable opposition to Pinochet's rule to emerge. A new constitution, drafted by Pinochet's civilian political advisors, entered into force in October 1980, naming him president for an eight-year term.3 After this term a plebiscite would be held to decide if he would hold power for another eight years. The 1980s were punctuated by violence, as an armed group affiliated to the Communist Party and other extreme-left groups tried unsuccessfully to overthrow the dictator by force. Government efforts to combat these groups and to quell mounting street protests against Pinochet's rule, in both of which the CNI played a leading role, provided the pretext for persistent human right abuse. The moderate opposition, which renounced violence, agreed to accept the 1980 constitution and to edge forward the transition by negotiating with the military and its civilian allies. Pinochet lost the October 1988 plebiscite and held presidential elections in December 1989, as the Constitution required. The victorious party, the center-left Coalition of Parties for Democracy (Concertación), took power on March 11, 1990, and its veteran Christian Democrat leader, former senator Patricio Aylwin Azócar, became president.4
Pinochet's constitution ensured that the powers of his elected opponents would be tightly circumscribed by a voting system unfavorable to the majority coalition, a Senate of whose forty-eight members nine were non-elected, by military presence in the judiciary, and by the armed forces' influence in government decisions through a National Security Council in which the military had half the votes.
Apart from threatening any legislative program that does not have opposition support, the system makes constitutional change very difficult unless the government commands a large majority in the Senate. Constitutional reforms require congressional majorities of three-fifths or two-thirds of Congress members in office, depending on the importance of the amendment proposed.5 There is no mechanism for a referendum if Congress vetoes a constitutional amendment proposed by the president. As noted below, these restrictions have drastically limited the ability of elected governments to tackle the institutional legacy of the military government or to reverse laws that promote impunity for past gross abuses of human rights. It was in this political and institutional context that a group of lawyers, including Juan Garcés, a former legal adviser to Allende, looked for justice outside Chile.
Political Genocide: the Spanish Accusation
In 1996, Spain's Progressive Association of Prosecutors (Unión Progresista de Fiscales) filed complaints of genocide, terrorism, torture, murder, and other charges against the military juntas that ruled Argentina from 1976 to 1983 and against General Pinochet and other members of the military junta in Chile. Although the case initiallyfocused on the murder or "disappearance" of people of Spanish nationality, both in Argentina and in Chile, it expanded to include thousands of crimes of kidnapping and murder committed during Argentina's so-called "dirty war" and Chile's military dictatorship. These events were linked by the criminal conspiracy Operation Condor, involving both countries, as well as their Southern Cone neighbors, in the secret detention and murder of political dissidents.
The legal case was set in motion using a procedure known in Spain as a "popular action" (acción popular). Such cases may be brought by any Spanish citizen, not necessarily an injured party, in the public interest. These actions are private in the sense that they may be pursued whether the public prosecutor participates or not. If the public prosecutor opposes the action, its chances of success are diminished but not eliminated. In the Chilean case, a 1958 Spanish-Chilean convention on dual citizenship permits any Chilean, whether resident in Spain or not, to file suit in Spanish court with the same rights as any Spanish citizen.6 The investigation was inspired and coordinated by the Salvador Allende Foundation, under the direction of Madrid lawyer Juan Garcés, and assisted by several human rights organizations in Chile that campaigned vigorously against impunity throughout the military dictatorship and under the subsequent governments.
Under its domestic law, Spain has jurisdiction to try certain serious crimes committed outside its territory. These include genocide, terrorism, piracy and the hijacking of airplanes, forgery of foreign currency, prostitution, and drug trafficking.7 International treaties Spain has ratified, such as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, allow it to prosecute nationals of another country for acts committed outside Spain.8 Jurisdiction in such cases is exercised by the Penal Chamber of the Audiencia Nacional, Spain's highest court. Their investigation is the job of the Audiencia Nacional's Central Courts of Instruction. The Chilean and Argentinian cases were assigned respectively to investigating judges Manuel García Castellón of Central Court of Instruction No. 6 and Baltasar Garzón, of Court No. 5, who was also in charge of the investigation into Operation Condor. Shortly after Pinochet's arrest, García Castellón relinquished his part in the Chile case, and Garzón took full charge of the investigation.
Judge Garzón's inquiries faced constant challenges from the Audiencia Nacional's chief prosecutor (fiscal jefe), Eduardo Fungairiño, and other members of the Spanish Public Prosecutor's office. Fungairiño argued that Spain could not judge the crimes because they were not committed on its territory or by its citizens and did not fit either the United Nations', or the Spanish, definition of genocide. The charge of terrorism was inapplicable, he argued, because the military regimes were seeking only "a temporary substitution of the established constitutional order, by means of an institutional act whose purpose was precisely to remedy the insufficiencies of that constitutional order in maintaining the peace."9 In addition, he stated, the cases were res judicata, in that they had been subject to an amnesty andtherefore already dealt with by national courts. 10 On November 5, 1998, however, the eleven members of the Penal Chamber of the Audiencia Nacional confirmed unanimously that Spain was qualified to investigate crimes of genocide, terrorism, and torture committed by members of the military governments of Chile and Argentina. The court also upheld the investigating judge's claim that the court could exercise universal jurisdiction to try a non-citizen for crimes against non-citizens committed outside of Spain's national territory. This was vital to the progress of the case. Jurisdiction rules in Spanish law do not provide for jurisdiction based on the nationality of the victim, on which the original criminal complaint had been based. The Audiencia Nacional decision allowed the charges to be expanded to include crimes against non-Spaniards in both countries and elsewhere.11
On December 10, 1998, Judge Garzón indicted General Pinochet for genocide, terrorism, and torture, combining the findings of the Chilean and Argentinian investigations. The indictment details the crimes of a political regime that killed or made "disappear" more than 3,000 of its citizens and tortured tens of thousands to maintain itself in power, conspiring to commit these crimes outside as well as inside its borders and then ensuring that those responsible enjoyed permanent impunity. The indictment states:
...[T]he objectives of the conspirators are the partial destruction of that segment of the Chilean nation made up by all those who oppose them ideologically by means of the selective elimination of the leaders of each opposing sector through kidnapping, followed by disappearance, torture, and the death of persons from the group, inflicting the most grave physical and mental damage. 12
According to the indictment, Pinochet's secret police chief, Gen. Manuel Contreras, conceived and directed Operation Condor on Pinochet's orders for the purpose of "following the tracks and taking care of Chilean exiles outside the country to the point of killing them or getting them handed over and then making them disappear permanently."
The charge sheet names fifty-eight people killed or "disappeared" immediately after the coup and sixty-eight prisoners who were removed from jail in four northern cities by a helicopter-borne commando led by Gen. Sergio Arellano Stark, acting on Pinochet's orders, and summarily executed (the so-called Caravan of Death).
The DINA, the indictment states, answered directly to General Pinochet. Its director, Gen. Manuel Contreras, "owed absolute and personal loyalty and obedience to Augusto Pinochet, without any possibility of his taking decisions without the order and consent of the latter."13 The indictment describes the brutal treatment of detainees seized immediately after the coup and lists fourteen secret torture centers used by the DINA and seven used by air force intelligence and an adjunct clandestine group, the Joint Command (Comando Conjunto). "The system was instituted by express order of Pinochet and the other military commanders," the indictment states, and eventually claimed more than 50,000 victims of torture. As further evidence of Pinochet's responsibility, the indictment cites his comments during a 1974 interview with Lutheran Bishop Helmut Frenz and Roman Catholic Bishop Fernando Ariztía, both founding members of the ecumenical human rights office, Committee for Peace (Comité pro Paz): "General Pinochet, to the puzzlement of the two churchmen, asks them if when they talk of `physical chastisement' (apremios físicos)14 they are referring to torture, to which they answer yes. At this moment, after leafing through and carefully studying thedocuments they have presented him, Augusto Pinochet tells them: "You are priests and have the luxury to be merciful; I am a soldier and the President of the whole Chilean nation. The people were attacked by the bacillus of communism and they have to be extirpated, the marxists and communists, they have to be tortured because otherwise they don't sing."15
Genocide is a crime against humanity under customary international law and is proscribed by the Convention for the Prevention and Punishment for the Crime of Genocide.16 In Chile, the Spanish indictment holds, the elimination of a part of the "national group" considered contaminated by beliefs, such as communism or atheism, that were contrary to the values of the military government, constituted genocide. Garzón argued that the concept of genocide is applicable not only to the whole or partial elimination of groups based on nationality, race, ethnicity or religion but also to minorities sharing the same racial, ethnic or religious characteristics as the rest of the population, singled out solely on ideological grounds.
In its unanimous November 5, 1998 decision confirming Spain's right to try General Pinochet for genocide, the Audiencia Nacional argued that it was necessary to respect a customary definition of genocide and not to straitjacket the concept in the narrow language of the convention. Referring to Argentina, the court rejected the argument advanced by the prosecutor that there was no genocide because the repression was political rather than directed against a national, ethnic or religious group:
It was an action of extermination, not done by chance, in an indiscriminate manner, but that responded to the will of destroying a determinate sector of the population, a very heterogeneous, but distinctive, group. The persecuted and harassed group was composed of those citizens who did not fit within the type pre-established by the promoters of the repression as proper to the new order to be installed in the country.
The court used similar arguments in relation to Chile.17
The Audiencia Nacional also rejected the Spanish public prosecutor's contention that the Genocide Convention permitted prosecutions only in the country in which the offense was committed.18 It argued:
It would be against the spirit of the Convention - which seeks a commitment of the Contracting Parties to use their respective penal laws to pursue the crime of genocide as a crime of international law and to avoid that a crime of such gravity go unpunished - to treat Article 6 as a rule limiting theexercise of jurisdiction, excluding any jurisdiction different from that contemplated in the precept. That the Contracting Parties have not agreed on the universal persecution of the crime by each of their national jurisdictions does not prevent the establishment by a member State of this kind of jurisdiction for a crime of enormous importance in the whole world and that affects the international community directly, as the Convention itself recognizes.19
Although the British home secretary ultimately rejected the genocide charge as a basis for extradition, the Spanish court's views upholding international jurisdiction set an important precedent for future genocide proceedings.
Torture has been a crime in Spain since 1978 and is prohibited under articles 173 and 174 of the penal code. In addition, Spain has ratified the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture. The Audiencia Nacional argued briefly that torture was subsumed as an accessory crime to genocide and that if the court's jurisdiction on genocide were established, the investigation and judgment of torture was ipso facto included. However, torture, evidently considered of lesser significance by the Spanish judges, was to occupy center stage when the Pinochet case reached the House of Lords.
Restricted Immunity: Pinochet in the House of Lords
The international warrant for Pinochet's arrested requested by Judge Garzón was delivered by Interpol to a London magistrate on October 16, 1998. The magistrate issued a provisional arrest warrant under the U.K. Extradition Act, following which General Pinochet was detained at the private clinic where he was recovering from back surgery.20 A second magistrate issued another provisional warrant on October 22, based on five new charges tailored to British laws: "intentionally inflicting severe pain or suffering on another in the performance or purported performance of his official duties" (torture), conspiracy to commit torture, the taking of hostages, conspiracy to take hostages and conspiracy to commit murder in a [European Extradition] Convention country."21 Many of the offenses were committed in Chile, but a number of the charges related to crimes or conspiracies taking place in Spain, Italy, France and elsewhere.22
This marked the first time a former foreign head of state had been detained in the United Kingdom for extradition on charges of grave human rights abuse in his own country. The guiding doctrine on the immunity of heads of states and diplomats has been traditionally based on an established norm of customary international law, the principle of state immunity (Act of State Doctrine). This recognizes that all states are sovereign and equal in international law and essentially restrains one state from sitting in judgment on the acts of another. State immunity in the United Kingdom is governed by the State Immunity Act of 1978, which extends to heads of state the provisions of theDiplomatic Privileges Act of 1964. It holds that heads of state or former heads of state are not accountable to British courts for crimes committed in pursuit of their official functions.23
Four days after his arrest, General Pinochet's lawyers lodged habeas corpus appeals and moves for judicial review against the two provisional warrants against him. The High Court, presided by Lord Chief Justice Bingham, heard the appeals and evidence for the Crown Prosecution Service (CPS) acting on behalf of the government of Spain, on October 28.24 The court overturned the first warrant on the grounds that the murder of nationals in other countries was not an extraditable crime under British law. Consideration of the second warrant turned on the interpretation of British extradition law, in particular its 1989 Extradition Act and the 1978 State Immunity Act. Lord Bingham ruled that Pinochet had immunity under British law as a former head of state for acts carried out as part of his official functions. There were no grounds, the court held, to make an exception to the doctrine of state immunity just because atrocious crimes were involved. Justice Graham Collins argued:
The submission was made, as my Lord has indicated, that it could never be in the exercise of such functions to commit crimes as serious as those allegedly committed by the applicant. Unfortunately, history shows that it has indeed on occasions been state policy to exterminate or to oppress particular groups. One does not have to took very far back in history to see examples of that sort of thing having happened. There is in my judgment no justification for reading any limitation based on the nature of the crimes committed into the immunity which exists.25
The High Court allowed the Crown Prosecution Service to appeal and stayed an order for General Pinochet's release. He was moved under police guard from the clinic to a private psychiatric rehabilitation hospital in a north London suburb.
While the appeal was pending, the Spanish government submitted its formal request for extradition on November 11, greatly expanding on the list of offenses, which now included conspiracy to take over Chile by a coup and thereafter to commit genocide, murder, torture and hostage-taking. In addition, the Swiss and French Governments also submitted formal extradition requests on November 11 and 13 respectively and were subsequently joined by Belgium. Meanwhile Pinochet, whose medical treatment had long since been completed, left the hospital and was allowed to move to a rented house in Wentworth, Surrey, where he has since been held under house arrest.
The appeal was heard by five judges of Britain's highest court, the judicial committee of the House of Lords, on November 4 to 12. 26 They delivered their judgment on November 25. By three votes to two they held that Pinochet was not entitled to claim state immunity in respect of any of the crimes of which he was charged. Unusually, the House of Lords granted leave to intervene, jointly, to several U.K.-based organizations and individuals: Amnesty International, the Redress Trust, the Medical Foundation for the Care of Victims of Torture, Sheila Ann Cassidy (a British doctor who had been tortured in Chile), and the family of William Beausire (a Briton who "disappeared" in Chile in July1975). Human Rights Watch was granted leave to intervene separately through written submissions. The court also arranged the appointment of a neutral jurist to act as amicus curiae.
The critical issue throughout the hearing was whether torture and the other crimes alleged could be considered to be official functions of a head of state and thus attract immunity. The Lords considered that they could not. In categorical language, Lord Nicholls stated:
... [I]nternational law has made plain that certain types of conduct, including torture and hostage-taking, are not acceptable conduct on the part of anyone. This applies as much to heads of state, or even more so, as it does to everyone else; the contrary conclusion would make a mockery of international law.
Lord Steyn agreed:
...[I]nternational law condemn[s] genocide, torture, hostage taking and crimes against humanity...as international crimes deserving of punishment. ...[I]t seems to me difficult to maintain that the commission of such high crimes may amount to acts performed in the functions of a Head of State.27
The Lords in the majority refused to consider arguments advanced by Pinochet about the effect of Britain's diplomatic relations with Chile, Pinochet's self-amnesty, and pending prosecutions in Chile. They argued that these were political matters for consideration by the home secretary.
On December 9, Home Secretary Jack Straw signed an order authorizing London magistrates to proceed. As noted, Straw had to consider not only the legal arguments, such as whether the offenses were extradition crimes, but also political ones, such as the effect of the decision on the stability of Chilean democracy and on the U.K. national interest. He rejected the charge of genocide as not satisfying the conditions of an extradition crime.
Elation in the pro-extradition camp at the House of Lords' decision was intense but short-lived. Pinochet's counsel lodged a petition to the Law Lords that the November 25 order be overturned on the grounds that one of the judges who had voted against Pinochet, Lord Hoffman, had undisclosed connections to Amnesty International, an intervenor in the case, giving the appearance of potential bias.28 In a ruling unprecedented in British legal history, a hastily convened panel presided by Lord Browne-Wilkinson ruled unanimously on December 17 that it "reluctantly felt bound to set aside" the November 25 order, and called for a new hearing before a different panel.29 The judges reasoned that, as an intervenor, Amnesty was in practice a party to the appeal. Applying the principle that no one may be a judge in his own cause, the judges held that Lord Hoffman was disqualified from sitting on the case.
The original appeal had, therefore, to be heard all over again, this time before a new set of seven judges, including four of those who had set aside the earlier decision.30 Recourse to a panel of seven judges reflected the exceptional importance and complexity of the case. The hearings began on January 18, 1999 and lasted two weeks. The same intervenors were permitted to participate, but on this occasion they were joined by the Government of Chile arguing that state immunity should be upheld. Judgment was rendered on March 24. This time a panel of seven judges agreed by six to one that in principle General Pinochet was not entitled to claim state immunity.
The essence of the arguments set forth in Pinochet's defense had been summarized by Lord Slynn of Hadley, one of the dissenters from the first Law Lords verdict:
It does not seem to me that it has been shown that there is any State practice or general consensus let alone a widely supported convention that all crimes against international law should be justiciable in National Courts on the basis of the universality of jurisdiction. Nor is there any jus cogens in respect of such breaches of international law which require that a claim of State or Head of State immunity, itself a well established principle of international law, should be overridden. 31
In addition, the two Lords in the minority had clearly listened to Pinochet's arguments concerning pending prosecutions in Chile, though their decisions were not based on this point. In his opening paragraph, Lord Slynn stated: "In the course of 1998, eleven criminal suits have been brought against [Pinochet] in Chile in respect of such crimes."32 Lord Lloyd also noted that Pinochet's alleged "crimes were the subject of a general amnesty in 1978, and subsequent scrutiny by the Commission of Truth and Reconciliation in 1990. The Supreme Court in Chile has ruled that in respect of at least some of these crimes the 1978 amnesty does not apply." 33
Accordingly, Amnesty International and Human Rights Watch stressed that there was in fact no real prospect that Pinochet could be prosecuted in Chile, where overwhelming obstacles - including a military self-amnesty, Pinochet's immunity as senator-for-life, and the jurisdiction of military tribunals - insured his immunity. Human Rights Watch presented the Lords with a declaration to this effect by a leading Chilean jurist.34
The Lords voted to limit drastically the number of charges on which the former dictator could be extradited. They excluded extraterritorial murder (murder committed in countries other than Spain) as an extraditable offense and declared charges of hostage-taking or conspiracy to take hostages, although in principle extraditable under British law, inadmissable on the grounds that the nature and circumstances of the acts involved did not meet the specifications of the United Kingdom's 1982 Taking of Hostages Act.35 The crux of the case, then, centered on the crime of torture and interpretation of the extraterritoriality provisions of the United Nations Convention Against Torture. Pinochet's lawyers, as well as the government of Chile, sought to discount the convention's requirement that states parties prosecute or extradite suspects found in their territories. As pointed out by Human Rights Watch in terms adopted by Lord Browne-Wilkinson, however, the very purpose of the convention was to introduce the principle aut dedere aut judicare - either you extradite or you try.
In a dramatic new interpretation of the extradition principle of "double criminality," the judges held that the alleged crimes had to be recognized as crimes in the U.K. at the time they were committed.36 Thus, British courts could exert jurisdiction only in the few offenses of torture and conspiracy to torture which took place after September 29 1988, when the U.K. enacted Section 134 of the Criminal Justice Act, making torture an extraterritorial offense (thatis, an offense punishable in the U.K. regardless of where it was committed or the nationality of the perpetrator).37 This reduced the list of charges from over thirty to a mere handful of allegations of torture alleged to have been committed after this date. 38
One member of the panel, Lord Millett, dissented from this drastic restriction of the charges. Citing Resolution 95 of the General Assembly of the United Nations in 1946, which unanimously affirmed the principles of the Charter of the Nuremberg Tribunal, Lord Millett contended that international jurisdiction over crimes against humanity already existed in international law before the Convention Against Torture was adopted.39
In his concluding comments, Lord Browne-Wilkinson noted that the drastically reduced number of extraditable charges would "obviously require" the home secretary to consider again the authority to proceed he had issued the previous December. Judge Garzón attached fifty-three new torture cases to the extradition request, all of them dating from October 8, 1988, to March 1990. In addition, he included 1,198 "disappearance" cases under the rubric of torture, on the grounds that the suffering caused to the relatives of the "disappeared" was a form of mental torture that continued unabated until the present. On April 15, after considering submissions from all the parties, Home Secretary Jack Straw issued his second authority to proceed.40 In a carefully drafted statement, Straw explained that the remaining charges of torture and conspiracy to commit torture in the Crown's extradition request were sufficiently serious to warrant extradition on their own, and that Pinochet could not be returned to Chile since there had been no extradition request from the Chilean government.
Unlike the November 1998 decision of the House of Lords whose unequivocal defense of international accountability had electrified world opinion, the second decision was confusing and hard to interpret, causing perplexity in both the pro- and anti-Pinochet camps, both of which claimed it as a victory. Nevertheless, the vicissitudes of the British courts had a positive outcome. In the first place, the doctrine of state immunity, enemy number one of international accountability, had received a stunning defeat in two successive hearings in which nine out of twelve of Britain's most senior judges had rejected it. Second, the issue of extraterritorial jurisdiction had received a thorough and dispassionate examination. Extraterritoriality had been vindicated, strengthening the future effectiveness of the Convention Against Torture. Third, the quashing of the first Law Lords verdict and its confirmation by the second in respect of essential principles, enhanced the credibility of the proceedings against challenges of political bias.
Chile: a Custom-Made Safe Haven
Pinochet's October 1998 arrest hit an unsuspecting Chile like a bolt out of the blue. As army chief, Pinochet had made three discreet visits to London in earlier years, sometimes at the invitation of British Aerospace, whose ordnance division was under contract with the Chilean munitions company FAMAE. He gave himself time to enjoy the shopping opportunities and tourist sights of London, a city in which he liked to think of himself as a distinguished visitor. He had been well treated.41
Although the Castellón-Garzón investigations had been sporadically reported in the Chilean press during the year prior to Pinochet's arrest, the Chilean authorities believed that the Spanish judges had overstepped the limits of their jurisdiction. The trial would not prosper, they believed, because Spanish law does not permit trials in absentia, among other reasons. Chilean Foreign Minister José Miguel Insulza, Justice Minister María Soledad Larraín, and President Frei himself stated repeatedly that the Chilean government did not recognize the jurisdiction of the Spanish court. Considerable press coverage was given to the Spanish Public Ministry's opposition to the investigation. Its chief prosecutor, Eduardo Fungairiño, gave an exclusive interview to Chile's conservative establishment paper, El Mercurio, outlining his reasons. Little attention was given in Chile to the legal case advanced by the prosecution, except by low-circulation leftist publications.
Before Pinochet's arrest, Foreign Minister Insulza assured the Chilean public that the senator's diplomatic passport gave him immunity from being questioned by Spanish judges.42 As Senate leader Andrés Zaldívar explained to the press two days after the arrest, "[T]he government has considered it prudent that Pinochet always travel with immunity, because it thinks that any legal situation that might arise should be resolved in Chile."43 It was quickly evident that the passport provided no guarantee of immunity under British law since Pinochet was not officially accredited as a representative of the Chilean state. The passport had been issued expressly at the request of the army, as Insulza later admitted. 44
The Chilean government's position was based, as already noted, on an assertion of territorial jurisdiction, the mutual recognition under international law of states' exclusive right to adjudicate crimes committed on their national territory. Under the terms of the Convention against Torture, moreover, states must either exercise jurisdiction themselves or allow subjects accused of torture to be tried elsewhere. Yet Chilean courts had failed to exercise jurisdiction in Pinochet's case, for which it was necessary first to end Pinochet's immunity from legal process in Chile.
Even following his return to civilian life in March 1998 after a quarter-century as Chile's supreme military leader, Pinochet has never been prosecuted by Chilean courts for any offense. No judge had even begun to investigate his responsibility for human rights crimes until January 12, 1998, when Appeals Court Judge Juan Guzmán Tapia began investigating a private accusation of genocide lodged against General Pinochet by Gladys Marín Millie, secretary-general of the Chilean Communist Party.45 As we note below, the investigation of this and more than twenty other cases presented against Pinochet has now run for eighteen months without Pinochet being charged with any offense.
Apart from his revered status in the armed forces as former head of state and commander-in-chief,46 Pinochet enjoys incalculable influence with his former military associates in the Senate and with leaders of the parliamentary opposition, many of whom served in his government. He still has influence in the highest echelons of the judiciary, some of whose senior members he appointed, although this influence has much diminished in recent years.
On March 10, 1998, Pinochet handed over his military command to his successor, Gen. Ricardo Izurieta, chosen by the government from the five most senior generals eligible, as the constitution requires.47 On the following day he transferred his headquarters to the Chilean Senate, occupying a permanent position in government as a senator for life. Here he was to join a group of former military colleagues and cabinet ministers, who, like himself, occupied unelected seats and collectively exercised a veto on government-proposed legislation.
Pinochet's parliamentary position gives him constitutional immunity as a member of Congress from arrest or criminal process. For him to be arrested or indicted, an appeals court must first cancel his immunity and suspend him from parliamentary office, a decision appealable to the Supreme Court.48 As a senator, Pinochet also has privileges under the Law of State Security to take legal action against his detractors that could lead to their arrest or imprisonment if they make public criticisms deemed by the courts to be offensive.49
As former head of state, Pinochet is protected by the self-amnesty described at the beginning of this chapter, which covers the period from September 11, 1973 to March 10, 1978, when military repression and human rights violations were at their height. Unlike many of his subordinates, Pinochet has never applied for or been granted any benefit under the amnesty decree, since he has never been named as a defendant in any judicial proceedings. However, in the unlikely event that a criminal prosecution were to proceed, his lawyers would apply to the court to grant him immunity under the amnesty law without being required to stand trial. In its representations to Home Secretary Straw, the Chilean government denied that Pinochet was necessarily immune from prosecution under the amnesty, since the courts decide each case that comes before them on its own merits. While it is true that jurisprudence does not fix binding precedent in the Chilean legal system, in the twenty-one years the law has been in force the courts have not yet convicted anyone of a crime to which the amnesty is legally applicable, and an exception would scarcely be made in Pinochet's case.
Under the rules applying in Chile Pinochet, as head of the armed forces at the time of the commission of the crimes he is accused of, in all probability would be tried by a military court, composed of military officials previously under his command. Such a court would not offer guarantees of a fair and impartial hearing of the charges against him,in which the army would be a judge in its own cause. Appeals would be heard by the military appeals courts (Corte Marcial), only two of whose five members are civilians. A final appeal in the Supreme Court would be heard by the court's Penal Chamber (Sala Penal), on which the army auditor general (Pinochet's former army subordinate) would sit. Under current laws, military officials would also be responsible for the collection of evidence inside any police establishment or army installation.
Political circumstances, however, are much more likely to weigh here than legal ones. It is hard to imagine that an event as divisive as a trial of Pinochet would be allowed to occur. Indeed, Pinochet's immunity in the past has extended beyond human rights crimes to investigations of his business affairs and those of his family. In the early 1990s, government auditors were investigating Pinochet's son, Augusto Pinochet Hiriart, in an approximately U.S.$3 million case of alleged corruption involving a military-run business, known in Chile as the "Pinocheques affair." To halt the investigation, as well as due to other grievances, in May 1993 Pinochet sent combat troops into the street, creating the most serious civil-military incident since the return to civilian rule.50 The Frei government called on the prosecutor's office to close the investigation in July 1995, citing national interest, and the case was subsequently closed.
The government firmly opposed other legislative investigations of Pinochet's actions aimed at unseating him in the Senate.51 Former President Patricio Aylwin gave crucial evidence that helped block a parliamentary motion presented in January 1998 by leftist congress members calling for Pinochet's impeachment for the boizano and other similar incidents. President Frei and most of the Christian Democrats, the majority party in the government coalition, opposed the motion, which accused Pinochet of "gravely affecting the honor and security of the country." Any impeachment of Pinochet for his acts as head of state during the military government was ruled out by a decree he issued in the months before stepping down, which barred congressional investigation of events prior to March 11, 1990.52
1 The ostensible purpose of reconciliation was clearly contradicted by the law's actual effects. Article 2 of Decree Law 2,191 granted amnesty to those convicted by military tribunals since September 11, 1973, potentially benefiting hundreds of political prisoners. In practice, however, most of these prisoners had had their sentences commuted to exile and had already left Chile. Although the amnesty law canceled their penalties, the government issued administrative decrees preventing their return indefinitely. See Humberto Lagos Schuffeneger, "El derecho de vivir en la patria," in Comisión Chilena de Derechos Humanos, Encuentro Internacional de Magistrados "Poder Judicial y Derechos Humanos," Santiago, October 1987.
2 The background and evolution of the Letelier case are described in several of our earlier reports, among others, Americas Watch, Human Rights and the "Politics of Agreements": Chile During President Aylwin's First Year, (New York: An Americas Watch Report, July 1991), pp. 61-63. See, also, Human Rights Watch, World Report 1996, pp. 75-76, for an account of the drawn-out saga of Contreras's imprisonment in October 1995.
3 The constitution was adopted by a referendum held on September 11, 1980, under the state of emergency, with all political parties banned and without electoral registers or independent supervision. For a detailed analysis of this process, see Americas Watch, Chile: Human Rights and the Plebiscite (New York: An Americas Watch Report, July 1988), pp. 19-29.
4 The Concertación includes the Christian Democrat Party (which had opposed the Allende government), the Radical Party, the Socialist Party, and the Party for Democracy (Partido por la Democracia, PPD).
5 Constitution, Article 116.
6 See Richard Wilson, "Prosecuting Pinochet: international crimes in Spanish domestic law," Human Rights Quarterly 927, November 1999 (forthcoming)..
7 Article 23.4 of the Spanish Ley Orgánica del Poder Judicial.
8 Article 4 of the U.N. Convention Against Torture requires that each State Party must "[e]nsure that all acts of torture are offenses under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. Each State Party shall make these offenses punishable by appropriate penalties which take into account their grave nature."
Article 5, which deals with jurisdiction, requires that "[e]ach State Party shall take such measures as may be necessary to establish its jurisdiction over the offenses referred to in Article 4 in the following cases: (a) When the offenses are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) When the alleged offender is a national of that State; (c) When the victim is a national of that State if that State considers it appropriate.
Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offenses in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to Article 8 to any of the States mentioned in Paragraph 1 of this article."
9 Cited in Norbert Bermúdez and Juan Gasparini, El testigo secreto, Buenos Aires: Javier Vergara, 1999, p. 27.
10 "Nota Sobre la Jurisdicción de los Tribunales Españoles" Unsigned document presented to the board of prosecutors and attributed to Fungairiño. Available on the Internet at http://www.derechos.org/nizkor/arg/espana/fuga.html.
11 See Richard Wilson, "Prosecuting Pinochet."
12 Reprinted as La Acusación del Juez Baltasar Garzón Contra el General (R) Pinochet: Texto Integro del Auto De Procesamiento de Fecha 10.12.98, Santiago: Ediciones Chileamerica CESOC, January 1999, p.12. All translations from the indictment are by Human Rights Watch.
13 As evidence for this assertion, the Spanish indictment quotes a long passage from a 300-page appeal made by Contreras to the Chilean Supreme Court against his conviction, in which he insisted that he answered on a daily basis to Pinochet, to whom he was " absolute subordinate and dependent."
14 This term is from the Chilean Penal Code (art. 255) and is widely used as a euphemism for torture.
15 La Acusación del Juez Baltasar Garzón, p. 64.
16 It is defined by the United Nations in the Convention for the Prevention and Punishment of the Crime of Genocide (1948) as " any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group."
Article 2, Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277.(e)
17 "Fue una acción de persecución y hostigamiento tendente a destruir a un determinado sector de la población, un grupo, sumamente heterogéneo, pero diferenciado. El grupo perseguido y hostigado lo formaban aquellos ciudadanos que no respondían al tipo prefijado por los promotores de la represión como propio del orden nuevo a instaurar en el país."Auto de la Sala de lo Penal de la Audiencia Nacional confirmando la jurisdicción de España para conocer de los crímenes de genocidio y terrorismo cometidos durante la dictadura chilena. Madrid, November 5, 1998, V.
18 Article 6 of the Genocide Convention states: "Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction."
19 Audiencia Nacional, November 5, 1998. Available on the Internet at http://www.derechos.org/nizkor/chile/juicio/audi.html. Translation by Human Rights Watch.
20 According to the warrant, it was alleged that Pinochet "between 11 September 1973 and 31 December 1983 within the jurisdiction of the Fifth Central Magistrate of the National Court of Madrid did murder Spanish citizens in Chile within the jurisdiction of the Government of Spain." First provisional warrant, dated October 16, 1998.
21 A facsimile of the arrest warrant is published in Jaime Lagos.
22 Extradition is the return of a wanted criminal from a country where s/he is found to the country where s/he is accused of (or has been convicted of) a criminal offense. In Britain it is governed by the 1989 Extradition Act and the European Convention on Extradition. The offences must be recognized as crimes in the U.K. punishable by a least twelve months in prison. If extradition is requested for extraterritorial crimes (acts committed outside the territory of the requesting state) they must also constitute extraterritorial crimes in the U.K. Once the fugitive has been arrested, the home secretary (equivalent to minister of the interior) must issue an "authority to proceed" before the case can go on to the next stage in the magistrates court, which examines the matter and decide whether to order extradition. British extradition law is intricate and considered one of the most exigent in Europe. The complex appeals procedure can extend for several years and the final decision whether or not to extradite is taken by the home secretary, who may base his decision on political and humanitarian considerations as well as purely legal ones.
23 The Diplomatic Privileges Act enacts into British law the 1961 Vienna Convention on Diplomatic Relations and refers principally to heads of diplomatic missions. Article 31 of the State Immunity Act gives diplomats immunity from criminal proceedings. Article 39(2) governs the situation when the diplomat's term of office ends and indicates that immunity ends when s/he leaves the country but will continue with respect to official acts undertaken during the past term of office. A former head of state would therefore enjoy immunity for acts committed in an official capacity while in office, but not afterwards.
24 The High Court of Justice (High Court) is an appellate court divided into three divisions: the Chancery Division, the Queen's Bench Division, and the Family Division. The Divisional Court, part of the Queen's Bench Division, hears appeals for judicial review or habeas corpus in criminal cases. It is composed of two or more judges and sits in London.
25 Judgment, October 28, 1998.
26 The House of Lords, the senior chamber of the British Parliament, is the highest court in the United Kingdom. Final appeals against court verdicts in civil and criminal cases are heard by a panel selected from a committee of twelve Law Lords, appointed for life (life peers). The judges were Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead, Lord Steyn, and Lord Hoffmann.
27 Judgments - Regina v. Bartle and the Commissioner of Police for the Metropolis and others EX Parte Pinochet (on appeal from a Divisional Court of the Queen's Bench Division). Regina v. Evans and another and the Commissioner of Police for the Metropolis and others EX Parte Pinochet (on appeal from a Divisional Court of the Queen's Bench Division). Available on the Internet at http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm
28 Lord Hoffman's wife was a member of AI's administrative staff, and Hoffman himself was a director of the group's charity division.
29 Judgment in Re Pinochet, Opinions of the Lords of Appeal, December 17, 1998.
30 Lord Browne-Wilkinson, Lord Hope, Lord Hutton, Lord Saville, Lord Millett, Lord Phillips, and Lord Goff.
31 Judgments - Regina v. Bartle and the Commissioner of Police for the Metropolis and
others Ex Parte Pinochet.
34 Statement of Amb. Roberto Garretón, January 12,1999.
35 "The statutory offense consists of taking and detaining a person (the hostage), so as to compel someone who is not the hostage to do or to abstain from doing some act. But the only conduct relating to hostages that is charged alleges that the person detained (the so-called hostage) was to be forced to do something by reason of threats to injure other non-hostages, which is the exact converse of the offense." Lord Browne-Wilkinson, Judgment - Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen's Bench Division), March 24, 1999.
36 Section 2 of the 1989 Extradition Act provides: (1)... "extradition crime means (a) conduct in the territory of a foreign state ...which if it occurred in the United Kingdom would constitute an offense punishable with imprisonment for a term of 12 months, or any greater punishment, and which...in the law of the foreign state...is so punishable under that law."
37 This issue first arose in the High Court, where Pinochet's lawyers argued that extradition crimes had to have been crimes in the U.K. at the time that they were committed, not as of the date of the extradition request. The High Court had held that this was essentially a question for the extradition magistrate to consider. However, the court did state its view that the wording of the Extradition Act indicated that it was sufficient if the crimes were crimes in the U.K. at the time of the extradition request. Lord Lloyd, the only judge to address the issue in the November 1998 House of Lords ruling, had taken the same view.
38 There were two critical dates which were repeatedly referred to in the judgment. Applying the new-style double criminality rule, the judges decided that, in respect of torture committed outside Spain, it was only those offenses carried out after September 29, 1988 which were extraditable. The second date was December 8, 1988, when the UK ratified the Convention against Torture. Since most of the judges relied on the terms of this convention in concluding that state immunity was not available, the majority of them decided that Pinochet's immunity was lifted only from this date when the UK became a state party. Spain and Chile were already parties to the convention by this time.
39 "In my opinion, the systematic use of torture on a large scale and as an instrument of state policy had joined piracy, war crimes and crimes against peace as an international crime of universal jurisdiction well before 1984. I consider that it had done so by 1973. For my own part, therefore, I would hold that the courts of this country already possessed extraterritorial jurisdiction in respect of torture and conspiracy to torture on the scale of the charges in the present case and did not require the authority of statute to exercise it." Judgment - Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet Regina v. Evans and Another and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen's Bench Division. Opinion of Lord Millett.
40 Evidence included a legal submission by the Chilean government against Spain's claim to jurisdiction, and arguments from Amnesty International and Human Rights Watch. The latter submitted a paper including 111 denunciations of torture during the period in question received from human rights sources in Chile.
41 The London Observer noted: "In 1994, when Pinochet visited Britain under a Conservative government, he was greeted with honors and protection. British Aerospace showed him their multiple rocket launchers and the National Army Museum laid on a tour. Amnesty International tried to get the Major government to use its powers under the 1988 Criminal Justice Act to arrest him as a torturer, responsible for, among other crimes, systematic assaults on Sheila Cassidy, a British doctor. The Major administration dismissed the appeals instantly." "The arrest of an evil tyrant at last," The Observer, October 18, 1998. See also Rory Carroll, "The dictator with a fondness for Fortnum and Mason and a taste for the River Café," The Guardian, October 19, 1998.
42 "De España solicitan interrogar a Pinochet," El Mercurio (Santiago), October 14, 1998.
43 "Zaldívar: la razón de la defensa importa más que ofendido," La Tercera (Santiago), October 19, 1998.
44 On May 15, 1999, Chileans learned that a circuit judge, Carlos Escobar, had ruled that the issue of the passport was a criminal offense for misrepresenting facts in a public document. A government clerk reportedly declared in the hearing that he had received instructions from the ministry of foreign affairs to add an inscription referring to Pinochet's special mission. "Sopresa por fallo sobre pasaporte de Pinochet," El Mercurio, May 16, 1999. Government statements suggest that Pinochet's supposed task as "ambassador extraordinary and plenipotentiary on special mission for the Republic of Chile" (embajador extraordinario y plenipotenciario en misión especial del Gobierno de Chile) was a fiction. In a letter to Home Secretary Jack Straw dated November 26, 1998, the Chilean government stated that the special mission was to pay a visit to Royal Ordnance. "Presentación de gobierno de Chile con relación a las `autorizaciones para proceder' a la extraición," cited in Jaime Lagos Erazo, El `Caso Pinochet' ante las Cortes Británicas, Santiago: Editorial Jurídica de Chile, 1999, pp 237-238, para 3. In May 1997, however, former President Patricio Aylwin visited Spain and was also given the rank of ambassador on special mission, to avoid his being subpoenaed as a witness before the Spanish judges. Paz Rojas, et al, Pinochet ante la Justicia Española, p. 20.
45 See Chapter IV for information on the Guzmán investigations.
46 On his retirement, the army awarded Pinochet a special honorific status as "Commander-in-Chief Benemeritus" (Comandante en Jefe Benemérito).
47 Under Article 93 of the constitution not only is the elected president limited in the choice of candidates for top military posts, but he is also prevented from removing them during their four-year term of office except with the consent of the National Security Council.
48 Constitution, Article 58.
49 Article 6(b) of the Law of State Security makes it a criminal and imprisonable offense to "insult" authorities of state, including commanders-in-chief of the armed forces and senators. Using his army position, Pinochet has made frequent use of this law to silence his critics, both in the latter years of his government and throughout the 1990s. A motion is currently under debate in the Chilean Congress to repeal Article 6(b) and other articles of the Law of State Security that allow the confiscation of books and articles. For a full analysis and critique of this law, see Human Rights Watch, The Limits of Tolerance: Freedom of Expression and the Public Debate in Chile, (New York: Human Rights Watch, 1998,) pp. 48-53, 88-98).
50 The incident, known in Chile as the boinazo for the berets (boinas) used by special troops, is described in Human Rights Watch/Americas, "Unsettled Business: Human Rights in Chile at the Start of the Frei Presidency," A Human Rights Watch Short Report, Vol. 6, No. 6, May 1994, p. 9, FN. 19.
51 See Jon Lee Anderson, "Autumn of the Tyrant," The New Yorker, October 19, 1998.
52 Law 18,918, the Ley Orgánica del Congreso, January 26, 1990.