Foreign Policy: The Pinochet Dilemma

Foreign Policy
Spring 1999

The Pinochet Dilemma

By Ricardo Lagos & Heraldo Muñoz _*

This abstract is adapted from an article appearing in the Spring 1999 issue of Foreign Policy.

The indictment and arrest of Chilean ex-dictator Augusto Pinochet has become a metaphor for profound questions about ethics, international law, and foreign policy. In Chile, the event threatens to fracture further a tenuous democracy that remains deeply embittered and divided over Pinochet’s legacy. In the international community, Pinochet’s arrest has forced nations to tackle tough questions on global justice: Who has the right to judge the accused and where? Will the principle of universal jurisdiction in humanitarian law be applied thoroughly, or will it be a case of strong states imposing their jurisdiction on the weak?

Pinochet’s detention in London has shown that globalization has now expanded from economic affairs to the institutions of politics and justice. International human rights law has evolved toward the establishment of supranational penal norms. While war criminals from Rwanda and the former Yugoslavia were tried by an international court, Pinochet was detained by national courts that took upon themselves the role of enforcing international law.

In Chile, nearly a decade after Pinochet stepped down, many cases involving human rights violations remain unresolved. Unlike South Africa, Chile has failed to draft legislation to determine how much to judge and how much to forgive, despite meritorious judicial actions such as the jailing of the former secret police chief or the congressional approval of important measures of humanitarian reparation.

But Chileans face a dilemma that is more complex than how much justice and how much forgiveness to strive for. They must also grapple with the issue of how much popular sovereignty to regain. Unlike former dictatorships such as Brazil and Spain, which returned to full democracies and even held constituent assemblies, Chile did not regain popular sovereignty entirely. Prodictatorship forces were able to preserve authoritarian enclaves, including the “institutional senators ” who are not elected but rather appointed through mechanisms that favor the right-wing opposition. Moreover, the military still exercises considerable influence through the National Security Council. Incomplete popular sovereignty in Chile has meant that although Chileans have voted consistently and overwhelmingly for the center-left coalition government (the Concertación), the executive does not hold a majority in the Senate and continually sees its projects vetoed by the opposition. The question at hand is how to consolidate the process of transition to democracy.

Pinochet’s ordeal has provoked a setback in that transition, reawakening the deep divisions still lingering in Chilean society. His arrest revived the worst moments of polarization among Chileans and turned the former dictator into the undisputed leader of the Right, thus once again making him the central actor in Chilean politics. The government coalition has been strained by the case, as Socialists and Christian Democrats have differed over how the government should defend the principles of national jurisdiction and diplomatic immunity without actually defending Pinochet.

Political leaders of the Concertación argue that despite existing obstacles, the ex-dictator should stand before Chilean tribunals. At the same time, prodemocracy forces argue that the country’s popular sovereignty must be expanded through additional constitutional reforms, such as a modification of the electoral system. Meanwhile right-wing forces in Chile prefer to leave Pinochet abroad as a symbol rather than face the prospect of negotiating with democratic forces to uproot the authoritarian enclaves. Consequently, the recuperation of full popular sovereignty in Chile may still be a long process.

Pinochet’s arrest has demonstrated that the globalization of justice requires mechanisms to minimize potential chaos. A treaty creating the International Criminal Court (ICC), approved 120-7 last year and pending national ratifications, meets the dual objective of curtailing impunity on serious human rights violations while ensuring just and fair processes subjected to clear rules accepted voluntarily by all countries.

The ICC’s statute contains numerous safeguards that will guarantee the court’s cases are neither frivolous nor politically motivated. An independent prosecutor will be empowered to conduct an investigation on the basis of referrals from members of the UN Security Council, nongovernmental organizations, and victims of purported crimes. The prosecutor must inform sovereign states that he or she is investigating a crime within their borders and must allow those states the option of investigating the crimes themselves. A third country cannot hand over accused criminals to the court unless the country where the crimes were committed has also ratified the treaty.

Admittedly, the creation of the ICC will mean that nations will have to concede some degree of sovereignty. But as the Pinochet debacle amply demonstrates, sometimes a nation must relinquish a degree of sovereignty to gain better control over its own affairs. Chileans have learned that a transition to democracy must address the legacies of a troubled past since these may eventually reemerge. But if nations are to deal with the tyrants in their midst, they should retain the option to do so within the confines of their own laws, with a functioning international-law regime as a backup instrument against impunity.

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