The extradition proceedings due to begin in London on September 27, 1999, will examine Britain's obligations under the Convention Against Torture, as well as interpretations of the definition and scope of the acts that the convention applies to. Some of the key issues likely to come under scrutiny are discussed below.
Aut Dedere Aut Judicare
Under Article 5 of the Convention Against Torture, the United Kingdom is required to extradite an alleged perpetrator of torture who is present on its territory or to "submit the case to its competent authorities for the purpose of prosecution." Accordingly, the British government is not entitled to return Pinochet to Chile in the absence of a formal extradition request from that country. According to the Dutch chairman of the United Nations Working Group entrusted with drafting the convention, and the Swedish ambassador who prepared the convention's first draft, this article is:
... a cornerstone in the Convention, an essential purpose of which is to ensure that a torturer does not escape the consequences of his acts by going to another country. As with previous conventions against terrorism...the present Convention is also based on the principle aut dedere aut punire; in other words, the country where the suspected offender happens to be shall either extradite him for the purpose of prosecution or proceed against him on the basis of its own criminal law.53
The United Nations Committee Against Torture reminded Britain of these obligations in November 19, 1998. It recommended to the United Kingdom "that in the case of Senator Pinochet of Chile, the matter be referred to the office of the public prosecutor, with a view to examining the feasibility of and if appropriate initiating criminal proceedings in England, in the event that a decision is made not to extradite him. This would satisfy the State party's obligations under Articles 4 to 7 of the Convention and Article 27 of the Vienna Convention on the Law of Treaties of 1969."54
A Single Act of Torture is Enough
The fact that most of the charges against Pinochet have been ruled out by the Lords is not relevant to these obligations. As Lord Browne-Wilkinson pointed out, "A single act of official torture is `torture' within the Convention." 55 In issuing his "authority to proceed," British Home Secretary Straw did not refer to other cases of torture during the period defined by the Lords, although dozens had been attached to the extradition petition by the CPS on behalf of Spain.56 Nor did Straw refer to arguments and evidence submitted by nongovernmental organizations, including Human Rights Watch, which showed that torture continued to be a systematic practice during the final fifteen months of the military government. There is nothing in the Convention Against Torture to limit its application to multiple or systematic acts.
Torture as State Policy
The evidence against Pinochet will rest on his role in instigating, supervising, and defending a policy to torture. The new cases appended are relevant to establishing this high-level government complicity in torture since they help demonstrate a pattern of conduct emanating from top-level official commands.57 The "conspiracy to commit torture" from 1988-90 was part of General Pinochet's wide-ranging plan to torture and eliminate political opponents which began in 1973. In the last years of Pinochet's rule, torture in Chile was systematic but more selective than in previous years. Principles of chain-of-command responsibility are the relevant standards from which to judge the criminality of Pinochet's actions. 58 This doctrine has been established in Article 86(2) of the Additional Protocol to the Geneva Conventions of August 12, 1949, and is invoked in Article 28 of the Rome Statute for an International Criminal Court, which Chile has signed. The verticality of the command structure in the Chilean armed forces has been commented on in, among other sources, recently declassified U.S. military intelligence documents. 59
Evidence that torture was used systematically against political opponents from 1973 to 1990 is readily available from reports of relevant United Nations bodies and the Inter-American Commission on Human Rights throughout the period.60 The democratic Chilean government has itself noted the fact in reports submitted to the Committee Against Torture referring to human rights abuses under the military government.61 The Rettig Commission reported in 1991:
It can be stated with certainty that, during the final years of the military regime, the political structure that had been established by the enactment and implementation of the 1980 Constitution did not eliminate the national problem of serious and constant violations of human rights (although the frequency and numbers of victims admittedly declined). Indeed the 1978 amnesty, which its civilian promoters may well have regarded as the closing of the book on a now superseded problem, ultimately seemed to entail impunity for the past and promise impunity for the future.62
Contemporaneous reports issued by Human Rights Watch (then Americas Watch) and Amnesty International in 1989 during the last years of the Pinochet regime both concluded that torture continued to be implemented as government policy. Americas Watch reported:
In the years since the plebiscite [of October 5, 1988], while the incidence of severe abuses of human rights has declined, quick resurgences at delicate moments indicate that the apparatus of repression remains intact; the level of politically-related violence and intimation in Chile remains disturbingly high, given the circumstances of a political opening; in short it is not possible to state that the policy of repression has been abandoned.63
In its April 1999 letter to Home Secretary Straw, Human Rights Watch appended details of 111 alleged acts of torture in the period from September 1988 to March 1990 involving the CNI, Carabineros and Investigaciones, respectively the uniformed and plainclothes divisions of the police. In over one-third of the cases, the use of electric shock torture, a hallmark of the military government, was alleged. This list has expanded as other cases became known.
The Supreme Court appointed by Pinochet failed to enforce the constitutional prohibition of torture by ensuring that those responsible for it were brought to justice.64 Absolute impunity prevailed. Even after April 1978, when torture was not covered by an amnesty decree, only a handful of courts undertook serious investigations, and there were only two convictions.65 Some judges conscientiously pursuing human rights cases were intimidated by state agents, and the most persistent were reprimanded by their seniors in the Supreme Court. The effects of this systematic impunity may be irredeemable, as torture is subject to a five-year statute of limitations in Chile. Any torture charge relating to the period of the military government could now be impugned in Chilean courts as exempt from prosecution.
"Disappearance" as Torture
The supplement to the extradition request issued by Judge Garzón in April 1999 includes 1,198 acts of forced disappearance alleged to have been carried out under General Pinochet's orders. These are appended as extraditable crimes of torture committed in the relevant period from December 1988 to March 1990, on the grounds that thevictims' continued "disappearance" causes mental anguish to both victim and relatives equivalent to torture and that torture is an inseparable element of the act itself. In effect, Garzón sustains, the crime of "disappearance" constitutes a continuing act of torture until the fate of the victim is known.
The U.N. Human Rights Committee, the European Court of Human Rights, and the Inter-American Court of Human Rights have all issued decisions on individual petitions that deal with the issue of "disappearances" amounting to possible acts of torture. 66 In an authoritative academic work, U.N. Special Rapporteur on Torture Sir Nigel Rodley recently concluded that "there is a trend towards recognizing that to make someone `disappear' is a form of prohibited torture or ill-treatment, clearly as regards the relatives of the `disappeared' person and, arguably, in respect of the `disappeared' person him or herself."67
53 J. Herman Burgers and Hans Danelius, The United Nations Convention against Torture; A Handbook on the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, p. 131. Kluver Law International, August 1988.
54 Concluding observations of the Committee Against Torture: United Kingdom of Great Britain and Northern Ireland, November 17, 1998. Cat/c/uk (concluding observations/ comments). Recommendations para.(f)
55 House of Lords: Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet. Available on the Internet at http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990324/pino2.htm
56 As noted in Chapter II, Judge Garzón attached fifty-three new torture cases to the extradition request, all of them dating from October 8, 1988 to March 1990.
57 As Lord Hope of Craighead pointed out: " [T]he case which is being made against Senator Pinochet by the Spanish judicial authorities is that each act of torture has to be seen in the context of a continuing conspiracy to commit torture. As a whole, the picture which is presented is of a conspiracy to commit widespread and systematic torture and murder in order to obtain control of the government and, having done so, maintain control of government by those means for as long as might be necessary.... [T]he fact that these [conspiracy] allegations remain available for the remainder of the period is important because of the light which they cast on the single act of torture alleged in charge 30. Judgment - Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet.
58 "In addition to rules of international criminal law on determining whether a former president or commander in chief of the armed forces of a country is criminally responsible for crimes under international law such as torture or conspiracy to torture, under long-settled principles of international criminal law, it is not necessary to prove beyond reasonable doubt that in any individual case the superior ordered the person concerned to be tortured. Indeed, it is not even necessary to prove that the president or commander in chief of the armed forces knew that the particular victim was tortured. What the prosecution must prove beyond a reasonable doubt is that the superior had a duty to exercise authority over subordinates, that the superior either knew the unlawful conduct was planned or carried out by the subordinate or had sufficient information to enable the superior to conclude that such conduct was planned or had occurred, and the superior failed to take necessary and feasible steps to prevent or punish the subordinate." Amnesty International, "Torture: an International Crime: Even one torture victim is too many." AI Index AMR 22/10/99, April 7, 1999.
59 In February 1976, U.S. military intelligence agents observed prisoners being taken into an air force hangar for torture After a graphic description of how a prisoner "emerged from the building in obvious agony and rolled on the ground unable to stand", their report notes that the "proximity of interrogation building to Chilean AF transport group (group 10) strongly infer [sic] knowledge of such activity by unit commander. Further, Chilean military tendency to share responsibility up the chain of command suggests awareness by senior officers, as well." U.S. Department of Defense cable declassified on June 30, 1999.
60 See, inter alia, Ad Hoc Working Group on Chile, "Report on the Situation of Human Rights in Chile." A.G.UN, A/32/227, September 29, 1977, para 295; report of the Special Rapporteur on Chile, Abdoulaye Dieye, on the Situation of Human Rights in Chile, U.N., E/CN. 4/1428, January 28, 1988, para 86; report of Special Rapporteur Fernando Volio Jiménez, U.N. A/44/635, para 115; Inter-American Commission on Human Rights Annual Report for 1988 OEA/Ser-L/V/II.74 Doc., September 16, 1988; report of the Special Rapporteur on Torture, Sir Nigel Rodley, on his visit to Chile, E/CN.4/1996/Add.2 December 4, 1995. In this last report Rodley stated "a profound difference from that period [the military government] was the real commitment of the civilian Governments to human rights and, in particular to the need to eliminate the perpetration of torture or cruel, inhuman or degrading treatment or punishment by officials of the State" (para. 71).
61 See the November 16, 1990 Addendum submitted by the democratic Government of Chile to the initial report to the Committee Against Torture presented by the Pinochet government on November 23, 1989, U.N. Doc. CAT/C/SR. Paras 40 and 41, and the later report submitted to the committee by Chile in February 1994, U.N. Doc. CAT/C20/Add. 3, para 6.
62 Report of the National Commission on Truth and Reconciliation, Vol. 1, Part 2, A2,
p. 71 of the English translation.
63 Americas Watch, "Chile in Transition: Human Rights since the Plebiscite 1988-1999," A Human Rights Watch Short Report. p. 9, emphasis added. See also Amnesty International, "Chile: Reports of torture continue," AMR 22/07/89, February 1989, pp. 1-2. Amnesty International found that "torture continued in the last three months of 1988 in spite of the Chilean government's ratification of the United Nations Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment and the Inter-American Convention to Prevent and Punish Torture." Amnesty noted that for the first time some allegations were being investigated by the courts but that, "in some cases, these judges have faced sanctions by the Supreme Court, which has remained largely subservient to the military authorities, and also threats and other forms of intimidation by clandestine squads."
64 Article 19 (1) of the 1980 constitution protects "the right to life and the physical and psychological integrity of the person."
65 In December 1991 three former CNI agents were convicted for the death under torture of transport worker Mario Fernández López in October 1984. The handful of judges investigating torture cases included José Benquis Camhi and René García Villegas. Judge René García received death threats when investigating torture allegations against the CNI in 1986-1987.
66 In Quinteros v Uruguay, the U.N. Human Rights Committee found that the mother of a "disappeared" woman, who suffered "anguish and stress...by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts," is "a victim of the violations of the Covenant on Civil and Political Rights, in particular of Article 7 [torture and cruel and inhuman treatment], suffered by her daughter" (107/1981, para.14). See also El-Megreisi v Libya (detainee, "by being subjected to prolonged incommunicado detention in an unknown location, is the victim of torture and cruel and inhuman treatment.") (Report of the Human Rights Committee, Vol.II, GAOR, 49th Session, Supplement 40 (1994) , Annex IX T, paras 2.1-2.5) ; Mojica v. Dominican Republic ("the disappearance of persons is inseparably linked to treatment that amounts to a violation of Article 7") (449/1991, para 5.7). The European Court of Human Rights has also held that the extreme pain and suffering inflicted on the mother of the "disappeared" person violated Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Kurt v. Turkey, Eur. Ct. Hum. Rts, Case No.15/1997/799/1002, 25 May 1998, para.134). Similarly, the Inter-American Court of Human Rights, in the well-known case of Velásquez Rodríguez, held that "the mere subjugation of an individual to prolonged isolation and deprivation of communication is in itself cruel and inhuman treatment" (Inter-American Court H.R., Velásquez Rodríguez case, Judgment of July 29, 1988. Series C Nº 4, para.187).
67 Nigel Rodley, The Treatment of Prisoners in International Law, (Oxford: Clarendon Press, 1999), p. 261.