A Monthly Journal of the IDSA
The Pinochet Case: Implications for Chile, Latin America and the World
By Manpreet Sethi *
In mid-October 1998, the Chilean Senator for life, ex-Commander-in-Chief of his countrys armed forces (1990-98), and former President of the oblong Andean nation (1973-90), General Augusto Pinochet Ugarte was arrested in London on charges of torture, kidnappings and genocide that took place during his dictatorial regime in Chile. When the General alighted at the airport and decided to undergo surgery in London, none, including he himself, could have anticipated the events. He was still in hospital after the operation when the arrest orders were presented to him pending his extradition for trial in Spain on charges of violation of human rights of some 79 Spanish nationals and 15 non-Spanish citizens during his military regime.
Over the last four months, the twists and turns in the Pinochet case have indeed been most unexpected, as much for him and his supporters, as for those gunning for his trial. It has not only inconvenienced him and put the government in his country on the defensive but also brought to the fore a host of issues relevant for other countries in Latin America and elsewhere.
At the regional level, the case opens old wounds on which the nascent Latin American democracies had attempted to apply the band aid of amnesty for military in the hope of facilitating national reconciliation. With Pinochets arrest, the sanctity of this amnesty has come under a cloud, especially its extra-territorial applicability. Concomitantly, the still relatively recent democratic process in the South American countries is deemed to be under test. It is being widely conjectured that the case shall also have a bearing on civil-military relations. Until the recent advent of democracy, the military had enjoyed wide ranging powers which the civilian administration has been trying to curtail, with mixed results, over the last decade or so. Pinochets arrest has once again brought into focus the contentious issue of civilian control over the military since in the Latin American society and polity, the military has traditionally occupied a position of strength. On a broader level, the case focusses attention on the subject of diplomatic immunity, the reach or the limits of jurisdiction where human rights abuses are in question and the actual implementation of international law and human rights conventions.
While it seems very likely that the legal technicalities and complexities of the case shall keep it hanging for a long time, nevertheless, irrespective of the outcome, what is significant are the wider ramifications of the casefor the present and the future of the Chilean polity; for other nascent Latin American democracies whose military dictators are guilty of similar crimes; and, for international law in general. This paper attempts an analysis of these issues.
The trouble began for General Pinochet when on October 16, 1998, on the behest of a Spanish Magistrate, Judge Baltasar Garzon, the British government placed him under arrest, ignoring his claim to diplomatic immunity as a Senator and a former head of state. The Generals lawyers appealed against the arrest and started a process wherein the British judicial system has been struggling to sort out the technical intricacies of the case.
In a first judicial pronouncement, on October 28, 1998, Thomas Bingham, Englands Lord Chief Justice of High Court ruled that the General did enjoy immunity on account of being a former head of state. Yet, only a few days later, the judicial committee of the House of Lords, the UKs highest court overruled Judge Binghams decision and declared that Pinochet could be extradited. This was announced on November 25, 1998, after hearing representations from Amnesty International and 55 more lawyers of Pinochets other victims. 1
However, this did not ring down the curtain on the British chapter of the court drama. Within days of this judgement, Pinochets lawyers alleged that one of the Law Lords, Lord Hoffmann, who had cast the decisive vote in the 3-2 verdict, had faulted in not disclosing his links with Amnesty International. Therefore, it was pointed out that his ruling could have been influenced by this association since the organisation was canvassing against the General. This plea was upheld on December 17, 1998, when the House of Lords, in a rare admittance, set aside its decision denying him immunity and scheduled another hearing a month from then to be considered by a new panel of five judges. 2
However, while the review of the decision of the Law Lords was still pending, the British Home Secretary, Jack Straw, announced that his government would allow extradition proceedings to go ahead. The announcement was made on the eve of the 50th anniversary of the declaration of human rights and was widely welcomed as a victory by human rights activists all over the world. On the other hand, the reaction of the Chilean government and military was understandably that of anger and indignation. The situation was somewhat pacified by the Law Lords new ruling and in the light of it, the Chilean government sought a revision of Straws decision.
Meanwhile, at the urging of the relatives of victims and survivors of Pinochets brutal regime, prosecutors in France, Switzerland and Belgium have also lodged cases seeking his extradition. Investigations against him are also being pursued in Germany, Luxembourg, Sweden and Italy. What shall be the final outcome of the case, only time will tell, but for the moment it becomes essential to examine the possible repercussions of the case on various levels.
The Rise of Pinochet
In order to understand the possible ramifications of General Pinochets trial, if ever conducted, on Chile it becomes pertinent to briefly examine the conditions in which he had first seized power in 1973 and the circumstances in which he relinquished it in 1990.
A democratic Chile had been witnessing peaceful transfer of power through elections until 1970. In fact, in the 1960s, under President Kennedy, the US had made the country the focus of special attention and appreciation in an effort to showcase its democracy and the consequent US aid and thereby to contrast it with the state of Communist government-run Cuba. Fearful of a leftist President in Santiago, the USA had been aiding the Chilean Christian Democratic Party to ensure the defeat of the Socialist Party in the national elections of 1958 and 1964. However,for the elections scheduled for 1970, the Presidential candidate of the Socialist Party, Salvador Allende was deemed to be doing well enough for Henry Kissinger to have said, I do not see why we need to stand by and watch a country go Communist due to the irresponsibility of its own people. 3
Nevertheless, despite shoring up the campaign of the Christian Democrat candidate, Salvador Allende did win the elections and Chile had its first Socialist President in 1970. Understandably, his overtly Marxist leanings induced apprehensions not only in Washington but also amongst the conservative Chileans. Declassified US government documents detail the Nixon Administrations dislike of Allendes government and its efforts to overthrow it. These included Central Intelligence Agency (CIA) efforts over the next couple of years to do their best to undermine his [Allendes] government, imposing economic sanctions and spending more than $8 million on a programme to disrupt the Chilean economy. 4 The US government feared that Chiles decision to reduce the profit margins of American corporations would be imitated by other Latin American states and, therefore, made all efforts to turn the tide against the country. Consequently, EXIM bank credits fell from $234 million in 1967 to zero in 1971. Loans from the International Development Bank (IDB) fell from $42 million to $2 million. 5 Also, the USA prevailed upon its allies and other European nations not to lend to Chile, thus mounting a virtual blockade of investments into the Chilean economy.
At another front, it also tested the possibilities of engaging the military officers in a coup detat, but this was not to happen until three years later and by none other than Augusto Pinochet. Of course, the CIA efforts did create the necessary circumstances for the action by bringing about the removal from the scene of General Rene Shneider, a democrat and defender of the Constituion.He had remained unresponsive to the CIA feelers for staging a coup, leading the CIA to incite some right wing officers to kidnap him. In the operation, the General got killed and thereby a crucial obstacle to Pinochets successful coup was removed.
Pinochet then came to power and with the tacit approval of the USA set out to purge the country of all elements exhibiting Marxist-leftist leanings. The years 1973-1978 are infamous for being the bloodiest period in Chiles dirty wars. During these years 2,095 persons are believed to have been murdered and 1,102 disappeared. Nearly a decade ago, conclusive proof was found of a long held assumption that during these years, the military regimes in six Latin American countries, Argentina, Brazil, Bolivia, Chile, Paraguay and Uruguay, had colluded with one another to conduct a coordinated attempt under Argentine General Menendez to eliminate all evident signs of Marxism from the region. 6 The sordid details of kidnappings, murders and disappearances conducted under this Operation Condor are believed to be contained in the files of terror, weighing five tonnes and which were discovered by a Paraguayan military officer in 1989. 7 Pinochets Chile is believed to have provided generous support and training while serving as a sanctuary for the right wingers. 7a
More recently, the 1980 winner of the Nobel Peace prize, an Argentinian, Adolfo Perez Esquivel, has prepared a research report on the operation and handed it over to the Spanish Magistrate handling the Pinochet case. 8 It has also been discovered that the foundation of Operation Condor had been laid at the School of Americas in Panama where the CIA had trained 40,000 high ranking Latin American soldiers to undertake operations of this nature.
However, General Pinochet had promulgated an Amnesty Law in 1978 thereby absolving himself and his officers of all responsibility for human rights abuses. Rather, these were justified as having been necessary to save the nation from sliding into anarchy. He ruled Chile with an iron hand for the next decade and the military enjoyed sweeping powers. All political activity was either curbed or regulated because political parties had been banned, the Congress was shut down and a night curfew imposed that lasted over a decade. These actions, were, and continue to be, justified by the military as having been necessary given the emergency war-like situations existing then. The military has argued that these excesses must now be forgotten as part of the reconciliation implicit in their very return to the barracks. Pinochet himself is convinced that he saved the country from chaos and in his retirement speech he stated, Mission accomplished. 9 Even more recently, in what is being described as his political testament, he has said, I have been the object of an artful and cowardly politico-judicial machination, which has no moral value... Communism has murdered many millions of human beings this century. I am being prosecuted for having defeated it in Chile, saving the country from a virtual civil war. 10
Convinced of the righteousness of his actions, it was not until 1988 that he allowed a national plebiscite and then too he had hoped to use it as an instrument to legitimise his power. However, the result came out overwhelmingly in favour of democracy and in deference to it, he initiated the necessary procedures to finally let Chile have elections in 1989.
Yet, in an attempt to not completely renounce all military control over the administration, he retained himself as the Commander-in-Chief of the armed forces until March 1998. Also, before the elections, he had introduced a constitutional provision that stipulated that military commanders could continue in their posts for another eight years after the elections. Subsequently, he retired from the position of C-in-C only after he had ensured diplomatic immunity for himself in Chile by becoming a Senator for life.
While the opponents of President Frei have criticised him for allowing Pinochet to take up the Senate seat, the fact is that neither the Senate nor the President could have stopped him from doing so. It was his by right given the constitutional provision that any former President who has served for more than six years can become a Senator for life. Therefore, while framing the Constitution, Pinochet had cleverly secured the institutionalisation of a military bloc in the legislature. As intended, this has thwarted any attempt to amend the Constitution to curtail military control over civilian administration, as also blocked all moves towards prosecuting military leaders. Yet, unfortunately for the General, he had not bargained for the fact that no national amnesty could guarantee him international immunity.
The Present Domestic Situation
Since the beginning of the case, the ruling centre-left coalition in Chile has been walking a tightrope. Heading a government comprising the centrist Christian Democrats as well as two left wing parties, President Eduardo Freis defence of the General has been an attempt to keep the peace in a country that is still relatively volatile on the issue of human rights abuses of the military period. At the same time, he has worked to ensure that the government stays in one piece since the Pinochet case and the larger question of human rights have the potential to break up the coalition.
Ever since democracy returned to Chile, the elected governments have been attempting to wrestle with the simmering anger of the public over human rights abuses and the extreme sensitivity of the military over the issue. A truth commission was instituted in 1991 to look into the crimes but few of the accused were put on trial in the belief that the best insurance against the past was to follow the conciliatory path of repentance and forgiveness. As pointed out by Chilean writer Ariel Dorfman, There is a consensus in Chile in the last eight years in the transition to democracy whereby Pinochet is forgotten or left apart. Both the left and right agree on thisbut the victims dont agree and the great part of the country doesnt agree. 10a This was made amply evident when in a public poll conducted some time before the Generals arrest, nearly two-thirds of the respondents had said that he and his accomplices should be brought to trial.
Given this background, the arrest of General Pinochet understandably injected new hope and optimism amongst the survivors and families of victims of that era. Salvador Allendes daughter expressed her happiness at the marvellous Pinochet ruling. 11 Also, the leftist parties have opined that it is time to bring in new legislation and make progress towards finding a solution to the outstanding human rights problems. The Socialist Party Presidential candidate for the national elections due later this year followed up his appeal to Britain to release Pinochet by another appeal to his countrymen to undertake a commitment to do justice in the case within the country. He called for a national pact to guarantee that Pinochet faces justice if he returns to Chile. 12
At the other end of the political spectrum, the right wing pro-Pinochet parties have been criticising the government for not doing enough to bail out the General. Alongwith Pinochets son, they have been alleging that the case made out against the General is part of a socialist conspiracy on a worldwide level being conducted by Judge Garzon who is an agent of international socialism. 13 This camp has been advocating a larger involvement of the state machinery in the countrys fight to free the General.
Expectedly, the state of the General has led to a lot of criticism and counter criticism between the rightists and the socialists. While the right has accused the Socialist Party of being traitors and persistent in their revengeful attitude, the Socialists have responded by calling the Opposition bloc cowards. 14
The government stuck somewhere in the middle of the two camps has been trying to follow a balanced path based on a principled approach. While the government has put across its appeal for the Generals freedom, the Chilean President, Eduardo Frei has been cautious enough to maintain his distance from appearing to condone Pinochets crimes. He has repeatedly pointed out that what his government is defending is not really Pinochet the person, but the principle of a former head of states diplomatic immunity and the territorial jurisdiction of Chilean courts. As the Foreign Minister has clarified, We shall not defend Senator Pinochet as a person and much less against possible crimes he may have committed. What we shall defend is the Chilean states jurisdictional sovereignty... the right of the sovereign state of Chile as a democratic state with a rule of lawto make its own justice, to lay down its own laws and to have its own courts and, therefore, to judge crimes committed in Chile by Chileans. 15
The government has expressed itself in favour of universalization of justice in the area of crimes against humanity but it has also asserted its desire to do so in an independent manner, without being forced by unilateral decisions of other countries. It is significant that Chile had been one of the promoters of the creation of the international criminal court brought into existence by the Treaty of Rome and in the Pinochet case has stated that such a court, as and when it comes into existence, would be the ideal authority to judge such crimes.
In the pursuit of the middle path, however, the government has invited criticism from its allies as well as the Opposition. The latter which has been advocating a more hardline approach towards the UK and Spain, has questioned the governments sincerity in the matter. And yet, when the government, after Jack Straws decision, recalled its Ambassador from London, suspended all official visits to the two countries and also suspended Chilean flights to Falklands, 16 its socialist allies were quick to accuse it of succumbing to rightist demands.
Caught as it is in an entangled web, is the Chilean democracy at risk? Interestingly enough, a majority of the Chileans do not seem to think so. In a countrywide poll, 66 per cent responded that they did not think that democracy was at risk, and 71 per cent said that Pinochets arrest did not affect them. Significantly though, while 64 per cent believed that he was guilty, nearly 57 per cent wanted his trial to be conducted at home. 17 In a similar vein, even government officials have denied any risk to the Chilean democracy, while conceding nevertheless that the arrest of Pinochet had resulted in some amount of tension and polarization within the country. 18 Another indication that the democratic business is continuing as usual is provided by the fact that all the political parties in the country are preparing themselves for national elections due later this year. In fact, in a significant development, the Pinochet crisis has also had the effect of uniting the two centre right parties which had until recently been maintaining their differences and rivalries, especially over the decision of a common Presidential candidate.
The Military Reaction
However, since any threat to the Chilean democracy at this time can only arise from the military, it would be pertinent to examine its reaction to the arrest of its former C-in-C. Ever since the case first cropped up, the President has attempted to keep the military not only informed of the governments actions but also involved in them. On the night of the adverse British ruling, Eduardo Frei had summoned an emergency meeting of the eight-member National Security Council. Significantly, this comprises the four serving military commanders alongwith the President and three other civilians, clearly a means to even out all decisions that are taken by it.
Yet, as could only have been expected, the Chilean military did express its unhappiness over the case. After the Law Lords ruling, the Army stated that the ruling has provoked deep frustration, indignation and uneasiness within the Army and the military community.... 19 Some former military officials too voiced their indignation over the case. For instance, Senator Fernando Cordero, a former Director of Carabineros said that the Law Lords decision had not only threatened Chilean sovereignty but that we have lost part of our sovereignty.... 20
In a manifestation of their ire over the case, the Chilean Army, Navy and Air Force threatened to review their military purchases from, and contracts with, the UK and Spain. For instance, in a first warning of its kind, the Navy cautioned Spain in November that the Spanish state owned ship building company, Empresa Nacional Bazan, would be excluded from its submarine contract to build two Scorpene class submarines worth 60 billion pesetas if the process to extradite Pinochet continued. 21 However, a few days later, Chilean military sources ruled out any freezing of the contract since it would entail a hefty penalty to be paid by the rescinding party. Also, the Navy is keen on a renovation and modernisation of its old fleet and has expressed a desire to keep the issue of the contract separate from the outcome of the Pinochet case.
In December, the Chilean Air Force announced that it would defer a final decision on the purchase of European made weapons, especially those from Spain and the UK until the Pinochet case came to a definitive end. At the same time, the Air Chief clarified that the purchase of aircraft from Spain had not been abandoned. 22 By mid-December, when it had become certain that the case was not in sight of a quick solution, the Chief had once again expressed the hope that the effect of the case on sales would be minimal. 23 He argued that it would be impossible to break off relations completely with Britain since replacement parts and supplies were needed for the British planes operative in the Chilean Air Force.
Therefore, it is evident that the military has adopted a pragmatic approach to the Pinochet problem. While openly expressing solidarity with the former C-in-C, it has not been hasty in cancelling any arms deals with the two European nations, keen as it is to refurbish its existing military assets and to acquire new ones. Hence, while the rumblings of indignation have been heard, it may not be surmised therefrom that a military coup is about to be staged. Such a possibility becomes even more unlikely given the changed regional and international environment as obtains today and which mounts pressure to maintain some form of democracy. Neither is the US any likely to be in favour of a military takeover, in the fear of triggering off a chain reaction of sorts in an area that is now famous for cyclical changes of government. At the same time, the other countries of Latin America too are keen to cling on to democracy and hence their support for the stand taken by the Chilean government as is discussed in the following paragraphs.
Chiles Regional Relations
The arrest of General Pinochet came as much as a shock to the other countries of Latin America. For a majority of them it immediately became a cause for concern since they themselves had granted amnesty to their former military dictators and were wary of adverse military reactions upsetting the still fragile process of democratic transition. Consequently, it is natural that most of them expressed solidarity with the attempts of the Chilean government to plead for the return of General Pinochet to Santiago.
Chiles immediate neighbour and with whom Santiago had not sided during the latters war with the UK over the Falklands islands, Argentina, was quick to endorse the Chilean position in an explicit attempt to strengthen Chilean democracy. Buenos Aires reaffirmed its position in defence of the territorial jurisdiction of the courts, of the principle that laws cannot be enforced retroactively.... 24 The Argentine government expressed itself in favour of the basic principle of penal law to be applied where the crimes were committed and on this ground it backed Chile.
Chiles neighbour up north, Peru, voiced its disagreement with the Law Lords ruling since it fails to respect the independence of nations. 25 Colombia opined that such cases could not be tried by national courts and that there should be an international court to try the crimes against humanity. 26 Cuba too questioned the legality of the case against Pinochet since it contravened the principle of territoriality. 27
In contrast to the reactions from the above mentioned nations, the Brazilian President refused to comment on the ruling for a long time describing it as a bilateral matter between Chile and the UK. He publicly expressed his support for Chilean opposition to Pinochets extradition only in early December 1998 and that too through an official declaration signed by the heads of the state of the five Mercosur countries. He emphasised Brazilian support for the creation of international legal mechanisms to punish human rights violations but cautioned that arbitrariness was not the solution to the problem. 28
Meanwhile, the Secretary General of the Organisation of American States (OAS), Cesar Gaviria, stated that the crimes that may have been committed in Chile fall within the jurisdiction of the Chilean courts. He, therefore, expressed concern that such a ruling could set a precedent for the extra-territorial enforcement of laws passed by any country. 29
Implications for International Law
From the point of view of international law, the Pinochet case throws up question marks over two major issues: does a former head of state enjoy sovereign immunity? And under whose jurisdiction, territorial or extra-territorial, does the case of such a nature fall? On the first subject, it cannot be denied that a range of treaties exist that explicitly rule out immunity for any official, including a former head of state, in cases where crimes of such nature are concerned. But since these international provisions have not been translated into national laws, the issue remains ambiguous and prone to be judged on a case to case basis. On the second subject, while the Chilean government has been defending the principle of territoriality, human rights groups have claimed universal jurisdiction i.e. that all countries have a right and an obligation to try or extradite those accused of human rights crimes. Until now, the Nuremberg trials and the Tokyo war crimes courts remain the only recallable attempts by the international community to try human rights violators. More recently, in 1993, the Yugoslav and Rwandan tribunals were set up, but their efficacy is still not clear.
However, while universal jurisdiction is a laudable concept, it tends to overlook three crucial factors. Firstly, there are practical difficulties involved in mounting an international prosecution. The process is complicated further by extraditions and international arrests posing political hurdles. Secondly, it tends to clash with the concept of national sovereignty and the jurisdiction of national courts over crimes committed in their territory. Thirdly, in cases such as the one under study, univeral jurisdiction could jeopardise a national reconciliation process in progress in a country in which democracy is not yet firmly institutionalised.
The jury is still out on the fate of General Pinochet. It also remains debatable as to what kind of a signal the Pinochet case shall leave for others. If the former dictator is tried, and convicted, would it then discourage other dictators from handing over power to elected governments in the fear that they could at some time in the future be brought to trial for any wrongs committed? Or, in case Pinochet escapes the trial, would it then encourage others to seize power and abuse it with impunity, secure in the faith that they would be able to escape on the pretext of having committed the barbarities since they were the need of the hour? And, does not every sovereign nation have the right to make its own choice of reconciliation or revenge after having suffered a long and brutal dictatorship? Did not Spain too grant amnesty to the former dictator General Franco and his men and did not South Africa too opt for the same course? Could and should these human rights violators too be brought to trial in a third country?
Unfortunately, there can be no easy answers to these questions. While it would definitely be a victory for human rights if justice could be meted out to the victims of Pinochet, at the same time, it would be counter-productive to upset the Chilean democratic transition in the process. If at all Pinochet is to be tried, it should be done in Chile and with national consensus. In fact, it would be very important to have the military on the side of the trial since only then can an assurance of the continuance of democracy be obtained. It is, therefore, required from the military to rise above its vested interests in order to clear its name and image and thereby also bring peace and stability to a nation that is still suffering from the scars of the dictatorship.
Note 6: The lawyers investigating crimes committed by the military in Argentina and Chile have asked Judge Garzon to issue an international arrest warrant against the Argentine Generals Menendez and Bussi. Pinochet Case Plaintiffs to Request Arrest of 2 Argentine Generals, SWB, AL/3401, December 4, 1998, p. L/1. Back.
Note 16: The Chilean government, in protest against the adverse decision of Jack Straw had instructed its national airlines to suspend flights to the Falklands islands. LAN-Chile, however, decided to fulfill its pending commitments to passengers and freight clients. This route is a profitable one for the airline since it transports not only passengers but also undertakes significant freight operations. Back.