The Pinochet Precedent: Changing the Equation of Repression
Brody, Reed
"International law condemns, genocide, torture, hostage taking and crimes against humanity," wroteLord Nicholls. These are not functionss of aIHead of State.. BY REED BRODY The October...
...silence, however, would appear to be driven by three factors: Washington's economic and political relations with the Frei government, which under pressure from Chile's right wing is seeking to have the ex-dictator returned to Chile...
...Chile's legal arguments-an attack on the relevance to this case of the Nuremberg preceto undermine the reach of the Torwere particularly disappointing which in other contexts has been a national human rights principles...
...By this time, according to cue and immediate government prosecutor Alun Jones, the "context had release...
...The U.S...
...Yet few states have had the courage to put these lofty principles into practice...
...and Wales agreed, holding that Pinochet's arrest for possible extradition was barred by Britain's State Immunity dent and an attempt Act which gives immunity to "the sovereign or other ture ConventionHead of State acting in his public capacity...
...The High Court for England for Pinochet's impunity...
...Haiti has its own after both of the Lords' rulings, Home Secretary Jack crop of criminals in exile: "Baby Doc" Duvalier has Straw gave the political "authority to proceed" with gone through the millions he took to France...
...ly recommended that the British k Straw review his earlier decision ition to proceed...
...While their crimes...
...While this abundoctrines probably provide greater protection before dance of proof may not always be required in an initial foreign courts for sitting rulers than they do for for- stage, some groundwork will have to be done by local mer heads of state...
...Yet it was precise- investigation into P ly in the name of that rule of law that the proceedings police apparatus a against Pinochet were brought and which required that and murder politick he receive a treatment he never gave his victims...
...But a majority also and novel interpretation of British at he could not be extradited to mitted before Britain enacted the in late 1988...
...In a controversial move, ing Charles Hormai the government of Chile intervened in the second proceeding on Pinochet's behalf...
...It alleged that Pinochet, between September 11, 1973 and December 31, 1983 "did murder Spanish citizens in Chile within the jurisReed Brody is Advocacy Director of Human Rights Watch, which submitted briefs as an intervenor in the Pinochet hearings in the House of Lords, and he attended all court sessions...
...But legal ing up to General Pinochet is clear...
...and Raul Cedras lives in luxury No European country was eager to try the Kurdish in Panama...
...Until recently, it seemed that if you killed one person, you went to jail, but if you had the power to murder thousands, you also had the power to arrange or impose your immunity, as General Pinochet did within Chile...
...International law condemns geno- was based on the cide, torture, hostage taking and crimes against criminality," which humanity," wrote Lord Nicholls, making it difficult be a crime in both t "to maintain that the commission of such high crimes tries...
...The Pinochet prosecution in hardy enough to request his extradition...
...assistant Ronni Moffitt in the heart of Washington, D.C...
...It also, of course, even if a country like Laos or Cambodia were fooldepends on the evidence...
...the new panel issued its ruling...
...A 1976 terrorist carbombing by Pinochet's secret police killed Allende's foreign minister and ambassador to the United States Orlando Letelier and his U.S...
...The subsequent race by European countries to try the General shows how far we have come from the days when tyrants could terrorize their own populations, secure in the knowledge that at worst they would face a tranquil exile on some foreign golf course...
...First, presided over what the UN Commission for Histori- the police expedited Garz6n's original arrest warrant cal Clarification describes as genocidal acts-is again when Pinochet was about to leave England...
...Among the latter, Idi Amin sits prosecutors or human rights groups before the judicial comfortably in Saudi Arabia and Ethiopia's deposed machinery of a foreign state can credibly be engaged...
...s were murdered in Chile, includn, about whom the movie Missing was made...
...That principle was enshrined by the United Nations and repeated in the Genocide Convention, in the statutes establishing tribunals for the former Yugoslavia and Rwanda, and in the treaty for the new permanent International Criminal Court adopted last summer in Rome...
...Pinochet immediately The United States has been brought a habeas corpus petition before the English courts, stubbornly silent-a silence asserting that as a former head that has been interpreted of state he had immunity from arrest and extradition in the around the world as support United Kingdom...
...ruled, under a strict The British government, acting on behalf of the extradition law, th Spanish authorities, appealed to the judicial committee Spain for acts com of the House of Lords which by a 3-2 majority reject- Torture Convention ed that argument...
...Previously, th may amount to acts performed in the functions of a the act needed to b Head of State...
...hat about other blood-stained tyrants...
...time of the extraditi The Law Lords' decision was annulled weeks later, ever, that the act ha however, when it was revealed that Lord Hoffman, Great Britain at th who voted with the majority, had undisclosed links to was only with the Amnesty International-which, like Human Rights Convention that act Watch and three other nongovernmental groups, had became punishable been allowed to intervene in the case...
...Since it 1988 incorporation of the Torture s of torture elsewhere in the world in Britain, extradition could be s committed after that date...
...Then, a political figure in his own country...
...fear of any international legal mechanism that it does not totally control...
...Britain's Labor government side Brasilia, and Guatemala's Rios Montt-who played an honorable role in the Pinochet affair...
...ing work of documentation we did then is now being used-25 years later-to bring Pinochet to justice...
...The political Two U.S...
...The United States, however, nly silent-a silence that has round the world as support for...
...Nor is it easy Can these and other torturers now be prosecuted...
...Unfortunately," n March 24 remarked one of the judges, "history has shown that it This time si has indeed been state policy sometimes to suppress Pinochet had particular groups...
...The judges' ruling extradition principle of "double holds that an extraditable act must he requesting and requested counis had been thought to mean that e a crime in both countries at the on request...
...to see Saudi Arabia extraditing Idi Amin...
...That all changed last October when Spanish lawyers pursuing charges of crimes against humanity by Southern Cone military leaders were tipped off by Frederico Andreu of Amnesty International's legal office in London that General Pinochet was visiting England...
...The Lords ruled, howd to be a crime in both Spain and e time that it took place...
...leader Abdullah Ocalan, for example...
...Paraguay's Stroessner lives in a villa out- the states involved...
...the complicity of several U.S...
...administrations in Pinochet's abuses...
...one of only seven countries to oppose the creation of a new International Criminal we did not know it at the time," reflected Roberto GarCourt which will try future cases of genocide, crimes ret6n, the legal director of Chile's pugnacious Vicariagainst humanity and serious war crimes when nation- ate of Solidarity during the dictatorship, "the painstakal tribunals are either unwilling or unable to do so...
...diction of the Government of Spain...
...x of the seven judges agreed that no immunity...
...Switzerland completely changed" because the Lords could now pean countries, how consider not just the sketchy arrest warrant but the seek Pinochet's e entire Spanish extradition request, which included against their nation assasinations committed under the rubric of "Opera- has been stubbor tion Condor" in Italy, Argentina, the United States and been interpreted a elsewhere-acts much less likely to be within the Pinochet's impunity sphere of immunity of a head of state...
...s that most of Pinochet's worst From the case, although the retenpiracy charge could allow a full inochet's role in creating a secret nd implementing plans to torture l opponents in Chile and abroad...
...It is a rich irony, granted only for act of course, that a dictator, whose war tribunals con- The ruling mean ducted sham trials and ordered the summary execution crimes are excluded of political opponents, should take advantage of the tion of a key cons full measure of British rule of law...
...and, perhaps above all, the fundamental U.S...
...citizen context was also different...
...It is harder The answer turns in part on the laws of the states in still to imagine anyone touching Henry Kissinger, which they live or are found...
...Mengitsu Haile Mariam enjoys retirement in Finally, the answer depends on the political will of Zimbabwe...
...On Parque de la Paz in downtown Santiago, a memorial created from the former Villa this last point, the United States was Grimaldi, a torture and detention center...
...The postwar Nuremberg trials of Nazi leaders established the principle that there should be no immunity for perpetrators of the gravest outrages, no matter who they were or where their crimes were committed...
...Although the government took pains to stress that it was not defending Pinochet himself or his record, the effect of the intevention was to promote impunity...
...Spain was made possible by the compilation of infor- Pinochet may yet return to the safe haven he cremation over decades first by Chilean human rights ated for himself in Chile, but future dictators are on activists, then by the Chilean National Commission notice: The next time they try to get away with on Truth and Reconciliation and finally by Spanish mass murder, they may one day have to answer for lawyer Joan Garc6s and "superjudge" Garz6n...
...BY REED BRODY The October arrest of General Augusto Pinochet in Britain for having ordered thousands of murders and disappearances in Chile is destined to change the equation of political repression, regardless of the final result of Pinochet's legal appeals...
...the extradition despite intense pressure from Chile...
...In addition, the 1984 UN Torture Convention-ratified by 112 countries including Chile, Spain and the United Kingdom--requires that states try or extradite alleged torturers found in their territories...
...The provisional arrest warrant was breathtakingly simple...
...The Lords pointed The annulment led to a second hearing in January Home Secretary Jac 1999, this time before a panel of seven judges-who, to allow the extrad like the first five, were all white males over 60 from porters, including 1 Cambridge and Oxford...
...Within days, British police, acting on a warrant issued by Judge Baltasar Garz6n, had placed Pinochet under arrest...
...The panel from a government held the term "public capacity" to include torture and firm defender of inte murder carried out in exercise of the power Pinochet had by virtue of being head of state...
...It Emmanuel "Toto" Constant, the CIA-funded leader is easy to imagine other governments taking more of Haiti's FRAPH death squad, is a free man in expedient courses in such sensitive cases...
...Unlike many other situations of mass killings, as in Sudan's Omar Hassan al-Bashir, Congo's Central Africa, East Timor or Central America, the Laurent Kabila and Syria's Hafez al-Asad names and stories of Chilean victims for the most part are just a few of the current leaders whose travel are well documented, and the chain of command leadplans may be affected by Pinochet's saga...
...Pinochet's supIargaret Thatcher, took the Lords' ly began lobbying for Pinochet's , Belgium, France and other Euroever, are lining up behind Spain to tradition for crimes committed als...
...New York City...
Vol. 32 • May 1999 • No. 6
