The World Today
December 1998

Getting Away With Murder?

By Alexandra Barahona de Brito

 

The arrest of General Augusto Pinochet Ugarte in the London Clinic last month has brought to the fore various debates about the juridical, ethical and political legitimacy of inter-state prosecutions. The almost exclusive focus in the international press on the complications surrounding this particular case, however, has meant that little attention has been paid to the story behind the arrest of the former dictator.  The episode reveals a lot about the successes and failures of Chile’s attempt to redress past injustices in its transition from authoritarian military rule to democracy.

The Chilean commission for truth and reconciliation set up by President Patricio Aylwin in 1990 produced two volumes of evidence about  planned repression by the Armed Forces and listed thousands of cases of disappearances, death and torture. The findings were officially announced and supported by the government, provoking intense debate between the government coalition, the victims of repression and the military and their civilian supporters.

Chile’s truth telling policy is widely considered a success, although the report did not contain all cases of human rights violations. The country’s justice policy was less successful. First, there was an amnesty law in place and, given the strength of right-wing forces within the legislature and the continued power of the military in political life, the government was unwilling and unable to reform the constitution and overturn it. Furthermore, although crimes committed after the period covered by the law could be prosecuted, the conservative attitude of many courts, and the Supreme Court in particular, made it difficult to actually try and imprison a number of known violators.

Despite these and other political limitations, some police and military officers were judged and jailed. These included  members of the police responsible for the murder of three communist activists in the early 1980s, as well as the former head of the secret police, General Manuel Contreras, for the assassination of Ambassador Orlando Letelier in Washington in the 1970s. It was agreed, however, that one man — General Pinochet — should remain untouchable. Limited justice was seen as the price for stability and democratic consolidation further down the road.

 

Trade-off

Chile’s lack of success in prosecuting human rights violators was in large part because of the nature of its transition to democratic rule. The transition was constitutionally restricted and peacefully negotiated. Unlike in Argentina, the repressors had not been defeated; they even had a degree of political legitimacy because of their voluntary withdrawal from power and participation in transitional negotiations with democratising civilian elites. For this reason, the alliance of socialists and christian democrats that won the transitional elections had to find a balance between its desire to pursue accountability for past abuses and to maintain the stability of the transition.

With variations, this trade-off between justice and stability was made in most countries of the region. In Uruguay, a parliamentary commission as well as a human rights organisation produced ‘truth-telling’ reports, but a closely disputed popular referendum that took place in a climate of increasing civil-military tensions determined that there would not be prosecutions.

In Brazil, truth-telling was undertaken by individuals from the Catholic Church in partnership with the World Council of Churches. The political class agreed to maintain the amnesty passed by the military, not least because of the continued political power of the armed forces.

In Argentina, justice did go further, given the total collapse of the military regime in the wake of the Falklands War. President Raúl Alfonsín created an official truth telling commission and set up a special tribunal that prosecuted the ruling military junta. Subsequent military rebellions deemed to threaten democratic stability under Presidents Alfonsín and Menem, however, led to the liberation of those jailed and an amnesty that attempted to put an end to the problem.

These and other cases demonstrate that the intensely political nature of the pursuit of accountability for past human rights violations, as well as the legal problems involved, introduce an immediate tension between the absolute and ethical nature of demands for truth and justice, and the political conditions in which attempts to fulfil those demands are made.

The restoration of a democracy for example, generally limits the capacity of governments to pursue all-encompassing justice. Democratic pluralism gives still-powerful violators and their allies, as well as their victims, a voice. Successor governments have to negotiate solutions rather than impose them.

It should also be remembered that the pursuit of backward looking justice has to comply with recognised standards of due process, and in many cases courts are unable legally to establish the guilt of those who ‘everyone knows’ have committed atrocities. A democracy cannot permit indiscriminate purges and mass trials as this form of rough justice, however just, debilitates the rule of law and democratic legitimacy itself. Furthermore, there is a clear link between the inability to prosecute and the fact that these democracies are not consolidated.

Successful prosecution depends upon the existence of a democratically informed judiciary, and police or military apparatus. It is only with a fully functioning and independent judiciary, whose members are imbued with the principles of human rights, that accountability can be ensured.

Similarly, it is only with a tamed military whose mission has been radically reformulated that one can prevent rebellion in the face of abuse as well as further abuses. Chile, along with many other countries that have attempted to implement truth and justice policies in transition, has not met either of these conditions.

Thus, while many countries have undertaken more or less successful exercises in ‘truth-telling’, successful experiences with prosecution for past abuse or other forms of punitive action have been few and far between.

Prosecutions have been undertaken by officially created national tribunals as in Argentina and some Eastern European countries, by international tribunals such as Nuremberg and The Hague set up to judge the Nazis as well as war crimes in the former Yugoslavia and Rwanda.

Individuals have taken cases to court as in Chile, Paraguay and Uruguay. Non-governmental groups in regional or international courts have played this role in the cases of Honduras, Uruguay, and Paraguay. Processes of disqualification or purges were undertaken during the transitions in Portugal in the 1970s and in Eastern Europe in the 1990s.

Given limitations and political calculations, many countries such as El Salvador, Uruguay, Brazil and post-Sandinista Nicaragua, have opted for blanket or successive amnesties. Others chose selective pardons or laws limiting prosecution, as in Argentina. Yet others, such as Chile and South Africa, inherited constitutionally enshrined amnesties from the dictatorial or transitional periods. They have attempted to formulate innovative policies which link immunity from prosecution, or the definitive application of amnesties, with confession to truth commissions.

It is against this backdrop of national limitations that international efforts to try human rights violators have emerged. There are crimes that victims and international public opinion will not lay to rest, whatever the agreements reached by individual countries when negotiating a transition from authoritarian rule. This problem is particularly likely to shift into the international arena if victims of repression do not belong to the country where the abuse took place, as in the present case.

 

Double-Standard

Yet, the General’s arrest has raised complex legal, ethical and political questions. From a legal standpoint, it has been disputed whether the General has immunity as a former head of state and, in the absence of an International Criminal Court, whether it is legitimate for the courts of one country to prosecute an individual from another. Ethically, the claims are also mixed.

On the one hand, it seems obvious that heads of state responsible for gross human rights violations, particularly crimes against humanity, should not go unpunished. On the other hand, some question the morality of prosecuting one former president when others responsible for similar crimes remain unpunished and are even received in international political fora without condemnation by their peers. The welcome for Fidel Castro and Hugo Banzer, presidents of Cuba and Bolivia at the Ibero-American Summit last October in Lisbon, has been put forward as an example of this double-standard.

 

Shifting Sovereignty

More importantly, however, this case highlights the tensions from the shifting boundaries between the primacy of national sovereignty and that of an evolving ‘universal’ justice that recognises no territorial boundaries. National sovereignty leads some to feel that they must act as Chileans in response to the interference of Spain and the United Kingdom in their internal affairs. Other Chileans feel that certain crimes should be judged regardless of sovereign decisions, and their vision is legitimised by the expanding arena of universal justice.

This conflict is not easy to solve, as both positions have a large quota of legitimacy. On the one hand, Chilean citizens determined that the price to pay for a peaceful transition to democracy — albeit a limited one — was to leave the General in peace.

This decision, while not unanimous, reflected the popular will and that of those elected to represent it. What right, then, have other countries, particularly countries that opted to bury the past as Spain did with its amnesty law of 1977, to generate dangerous tensions in Chile and upset a sovereign decision in the zeal to ‘moralise’ foreign policy or prosecute old dictators?

On the other hand, international law and custom have created a climate whereby certain crimes transcend sovereign boundaries and are non-prescribable and subject to international prosecution. Such prosecutions have been undertaken by special international courts, and there are some, if not many, precedents for trials by the courts of third parties.

For the states involved, the question of the trade-off between prosecution and maintaining good trade and political relations has been of great importance. The executive branch of government in Spain and the United Kingdom have been caught between a desire to resolve the problem without offending Chilean sensibilities and an inability and unwillingness to openly intervene in decisions taken by independent judiciaries.

This is part of a wider dynamic of shifting sovereign boundaries in a world poised between a state logic and a transnational or global one. After almost thirty years of a ‘human rights revolution’ in the international arena and a process of gradual globalisation of a culture of human rights, it would appear that national decisions to bury the past are subject to legitimate international challenges according to a ‘higher’ human rights morality based on the individual regardless of nationality.

Yet democracy or popular sovereignty still reside overwhelmingly in national states and their executive, legislative and judicial powers. Thus, challenging decisions taken within that arena leads one to ask whether there is another, more powerful, ‘right’ that legitimises the overturning of a sovereign choice. More importantly, it begs the question of who has the right to engage is such an exercise.

This question is likely to gain increasing weight. Truth and justice have become part of transitional politics world-wide. Individuals are gaining juridical identity under international human rights law and, are therefore able to resort to regional or international courts in attempts to overturn national amnesties. Importantly, with human rights law increasingly transnationalised, governments face the problem of a challenge to the executive branch’s primacy in international affairs by their own judiciaries.

Traditionally, the executive branch has been the protagonist in the international arena. Today, the British and Spanish executive branch find themselves in the uncomfortable position of ‘competing’ with the judiciary in the resolution of a potential international dispute.

The problem of consistency is also important. One Spanish judge has called for the extradition of Pinochet while another has denied a Portuguese request for the extradition of a former head of the Salazar regime’s political police, accused of being involved in the assassination of General Humberto Delgado, a former presidential candidate. For a public uninformed about legal niceties and varying juridical interpretations by Spanish courts, this reeks of double-standards and does nothing to promote Spain’s image as a fair country.

 

The Past is Never Past

The countries involved, as well as those potentially subject to similar situations in the future will see that once the Pandora’s Box has been opened, it is difficult to lock it again. The past is never quite past, no matter how many efforts are made to bury it. Calls for extradition have been made by five other countries, including France and Sweden. Other states could follow and should they fail to do so, organisations such as Amnesty International and Human Rights Watch will initiate proceedings of their own on behalf of the victims of repression.

The Pinochet case may stimulate others to similar action. Cuban exiles in Miami have announced that they will attempt to try Fidel Castro for his crimes in the same way. As the passage of the Helms-Burton law showed, nationally driven prosecutions can create a climate of tension between states.

What this case and others like it may do is highlight the absolute necessity for the International Criminal Court, agreed this summer in Rome, where such cases can be taken without the intervention of national judiciaries. By inadvisedly travelling to London, Pinochet has perhaps rendered the embryo court a service. His case has shown how complicated it is to prosecute crimes against humanity in current circumstances.

Governments that are either opposed to the court or intent on making it ‘toothless’ may begin to reconsider the wisdom of their positions. This may take some time. In the meantime, one thing seems to be clear: however many amnesties are passed, it may not be as easy to get away with murder as it was thirty years ago.