Latin American Report
Pinochet Menu -- Some Post-Decision Comments
Lots of reports/ comments - Here are some snips.
(London, March 24, 1999)Human Rights Watch today expressed satisfaction that the House of Lords rejected Augusto Pinochet's bid for blanket immunity and that his extradition case would move forward. At the same time, the group criticized the Lords's ruling that Pinochet could not be pursued for crimes committed in Chile before Britain adopted the United Nations Torture Convention in 1988.
"The Lords' ruling on retroactivity does not make sense as a matter of law or of public policy. Torture was firmly prohibited in international law, Chilean law, British law and Spanish law well before Pinochet took power, even before the Torture Convention was adopted. Certainly Pinochet knew that torture was a crime."
"This decision dispels any doubts," said Reed Brody, advocacy director of Human Rights Watch, which was authorized by the Lords to take part in the case. "Not even a self-proclaimed president like General Pinochet can claim immunity for torture, or give himself amnesty for his crimes."
Brody, who attended all of the Law Lords' hearings on the issue, nevertheless questioned the Lords' decision to bar Pinochet's arrest and extradition for crimes committed before 1988. "The Lords' ruling on retroactivity does not make sense as a matter of law or of public policy," said Brody. "Torture was firmly prohibited in international law, Chilean law, British law and Spanish law well before Pinochet took power, even before the Torture Convention was adopted. Certainly Pinochet knew that torture was a crime."
The group regretted that the case would now have to proceed in Britain with a narrower focus. Pinochet's worst crimes were committed during the period of state of siege between 1973 and 1978. According to Chile's official National Truth and Reconciliation Commission, torture was "systematic but more selective" from 1978 until Pinochet stepped down in 1990. One case raised by the Crown prosecutors which would not be barred by the Lords' ruling is that of 17 year old student Marcos Quezada Yanez who, according to the Truth Commission, was killed by electric shock torture on June 24, 1989. The Spanish extradition request contains at least 28 cases of torture and executions which occurred after September 1988.
In their ruling, the Law Lords gave validity to the charges of conspiracy to commit torture. Although the Lords limited conspiracy to the years after 1988, their ruling should allow a full investigation into Gen. Pinochet's role in creating a secret police apparatus and implementing plans to torture and murder political opponents in Chile and abroad.
Brody noted that the Lords explicitly mentioned the discretionary powers of British Home Secretary Jack Straw in the Pinochet extradition. "The ball is really in Jack Straw's court," said Brody. "He can still turn Pinochet over to Spain for prosecution of his full range of crimes."
Human Rights Watch also suggested that despite the Lords' ruling, Spain could still try Pinochet for the full range of crimes for which he is accused. The European Convention on Extradition, to which both Britain and Spain are parties, limits a state to trying an accused for those crimes for which he was extradited, but expressly provides that the sending state can consent to a wider prosecution. Human Rights Watch called on the Spanish authorities to seek, and the British government to consent to, a broader Spanish prosecution, which the Lords' ruling would not preclude.
In light of the Lords' narrow ruling, Human Rights Watch called on the United States to seek the ex-dictator's extradition for the 1976 car-bombing by Pinochet's secret police which killed former Chilean Foreign Minister Orlando Letelier and his American colleague Ronni Moffitt in Washington D.C. "This clear act of terrorism on U.S. soil - a simple act of murder wouldn't face the same legal obstacles the Lords found in applying the torture convention retroactively," said Brody. Human Rights Watch also called on the United States to turn over documents sought by Spanish magistrate Baltasar Garzon on Pinochet's role in abuses. A recent Clinton administration directive asks U.S. government agencies to release documents by mid-May, but the Pentagon and C.I.A. are resisting. "It has been three months since the U.S. announced that it would review its records, but not one document has been released," said Brody. "The State Department, the Pentagon and the C.I.A. should cooperate with this investigation by making a full disclosure regarding Pinochet's crimes."
Brody said that since Pinochet's arrest in October, Human Rights Watch and victims' groups have been exploring avenues to bring other leading human rights criminals to justice. "This definitive rejection of immunity will inspire victims' groups all over the world," said Brody. "There are a lot of former tyrants out there who had better watch out."
For Further Information: London:
Reed Brody (44) 468-202-440 (mobile)
Wilder Tayler (44) 171-713-1995
Jean-Paul Marthoz (44) 467-311-096 (mobile)
New York: Kenneth Roth (1) 212-216-1201
Washington, DC: Josi Miguel Vivanco (1) 202-371-6592 x145
Santiago, Chile: Sebastian Brett: (562) 226-7714
HUMAN RIGHTS WATCH HOME
In a ruling which reduced to a skeleton the case against the 83-year-old and put the spotlight back on the British government, four Lords rejected 29 of the 32 charges against the general because they dated from before December 8, 1988, before torture outside Britain was an offence. They also threw out a further charge of conspiracy to murder.
However, by a majority of 6-1, seven senior judges of Britain's highest court ruled extradition proceedings to Spain could still continue on the basis of one remaining charge of torture and one of conspiracy to torture. However, by a majority of 6-1, seven senior judges of Britain's highest court ruled extradition proceedings to Spain could still continue on the basis of one remaining charge of torture and one of conspiracy to torture.
"The result of the decision is to eliminate the majority of the charges laid by the government of Spain," Law Lords chairman Lord Browne-Wilkinson told the House of Lords.
Browne-Wilkinson said that "in view of the very substantial reduction in the number of extraditable charges" Home Secretary Jack Straw had to reconsider his decision on December 9 to allow the case to proceed.
One Law Lord, Lord Hope of Craighead, also said that when the case returned to Bow Street Magistrates Court in central London, the magistrate should reflect on whether there was enough evidence to support the conspiracy charge. Within hours, Straw accepted the Lords' demand. "The Home Secretary will reconsider the matter and will do so in the light of the House of Lords judgment, which covers extremely complicated legal issues," the Home Office said in a statement.
The Home Office added that while there were "no precise guidelines" in British law for such a reconsideration of his "Authority to Proceed", Straw hoped to resolve the matter "as swiftly as possible".
"The Home Secretary will be guided by general principles of fairness." Straw must now decide whether to allow the case on the basis of a much-reduced range of allegations compared with those on which he originally authorised extradition proceedings. The charges which the Law Lords ruled irrelevant detailed mass torture, hostage-taking and multiple murder in the run-up to and aftermath of the 1973 militry coup d'etat which brought Pinochet to power.
Those on which the case could continue are one allegation of electrical torture of a 17-year-old girl, Marcos Quezada Yanez, on June 24, 1989, and a general one of conspiracy to torture relating to the period between December 8, 1988 and the end of his rule in mid-1990.
Immediately after the judgment, Pinochet's lawyers upped the pressure on Straw by appealing against his "Authority to Proceed" and making a separate application for habeas corpus -- a demand the defendant be produced in court. The case was adjourned until Monday.
One member of the ex-dictator's legal team, Fernando Barros, proclaimed the Lords' decision a "victory".
The rightwing British former premier Margaret Thatcher, an admirer of Pinochet, also said Straw "should bring an end to this damaging episode" and allow the senator to return to Chile.
INDEPENDENT (London) (March 24)
ARIEL DORFMAN - I was blessed to be here on this happy day It is a great day for humanity, a great, final gift to conclude this terrible and murderous century. Fate blessed me by letting me arrive in London yesterday, just in time to stand outside the House of Lords to hear the good news that Augusto Pinochet Ugarte does not enjoy immunity for having been head of state when he ordered people to be killed and tortured. I was able to hear from the mouths of the English judges that the Chilean dictator could not hide behind the spurious mantle of sovereignty to escape justice. I know a rocky road lies ahead, and that the process promises to last for years, embroiled in appeals and pressures, but our impossible dream in all these years - that the General would have to sit in the same place as his victims - appears ever nearer.
I recognise that this process creates a dilemma, at least for Chileans. The fact that Pinochet will be judged far from his home absolves Chileans from having to do so themselves. The same distance that has enabled him to be imprisoned may serve as a cushion and a screen to prevent us confronting our past.
If Pinochet is imprisoned today in England and perhaps one day in Spain, the General has us Chileans imprisoned in turn, arguing ad infinitum over his image.
What I need to know more than Pinochet's future is Chile's future: how can we go beyond his figure, beyond his legacy? What will happen, now that his trial in Europe will go ahead? There are so many factors and so many actors that it would be stupid and foolhardy to prophesy the future. Will the armed forces react, as they have threatened, with some action that expresses their "state of tension", pressurising the government even more than they are already doing? Will the right wing now see the chance to rid themselves of the burden of the ex-dictator that brands them as supporters of a man who has crushed human rights and is the pariah of the planet? And, the crucial question: how will the legal proceedings affect the forthcoming presidential elections?
The challenge that faces us can be summed up in a scene I witnessed a few months ago, on my last visit to Chile. It was one of those typical scenes of Chilean daily life that contain more insights than all the political analyses.
We had gone out, Angelica and I, to walk through downtown Santiago. Suddenly I heard a roll of drums and saw in the distance red flags that fluttered in the warm summer breeze of the Paseo Ahumada. I thought it must be another march to demand that the General be extradited to Spain.
But it was about 100 university students dressed like medieval fools, their faces painted with many colours, some advancing on stilts, others jumping about in a happy caravan that daringly invited the public to a theatre festival. It was a carnival celebration of arts, full of tricks and good humour.
However, hardly had this band of youngsters passed by than another group appeared, marching slowly and solemnly on the same street: the mothers and sisters and wives of the "disappeared", the association of relatives of those murdered for politics, members of a movement against torture. Here were the women who - for more than 25 years - had fed the fire of memory, refusing to forget their loved ones who had succumbed in some dark and sordid cellar in this very city. They had been waiting for this day when the man who had scorned them could no longer ignore them, when this man had to take responsibility for his violations of human rights.
While I watched these mothers of the Chilean dead pass by, I heard a female voice: "Shitty communists! Liars! We should have killed all of you." I turned and saw a slender woman, fashionably dressed, elegant, fifty-ish. Reactionary, bitter, she spat the words as if to herself, but making sure that everyone heard her clearly.
Watching this woman, who looked with fury at the same march that filled me with so much emotion, seeing her rigid body, her stony inability to understand another's pain, I felt a return to the worst moments - not of the dictatorship, but of the Fascist protests against the Allende government, and I felt my stomach knot with an irrational fear. I knew to what this hatred could lead; I knew what happens when a woman like her rises up with all the power in her hands and does what she likes and thinks that no one will ever ask her to account for herself. She spoke those words so that people like me would never forget who had won that war.
And I learnt something else on that street corner: General Pinochet is the anchor of the identity of that woman and she wasn't going to let anything in the world bring him to justice. This woman represents a third of the country. A third that has ruled for decades, perhaps centuries in Chile, but has discovered that it doesn't rule abroad. The future of the country cannot be built with this woman. But we cannot imagine and form the future without her. Can we advance beyond Pinochet?
* The author will be reading from his latest novel, 'The Nanny and the Iceberg', in London this week as part of the Word festival
INDEPENDENT (London) March 24
Bad News for Torturers
The real beneficiary of the Law Lords' ruling on General Pinochet is the Home Secretary, whose decision whether to extradite him to Spain for crimes committed between 1988 and 1990 is now straightforward and non-political. Pinochet is charged with ordering, on 24 June 1989, the torture by electric shock of a 17-year-old girl, Marcos Quezada Yanez, who died as a result. Just as Spain will extradite Kenneth Noye over a road-rage killing, so Britain must send there for trial a man who is accused of a more cold-blooded barbarity.
What is clear from yesterday's long and complex judgments is that this decision - by six opinions to one - confirms the historic achievement of the first House of Lords in ruling that the armour of sovereign immunity, which has hitherto protected tyrants and torturers, has an Achilles' heel.
It was located, in Pinochet's case, in the allegation that he instigated widespread and systematic torture, "a crime against humanity" which Britain, Spain and Chile had bound themselves by Convention to punish wherever it occurred. It was a crime of such unforgivable moral blackness that all the respect and dignity owed to Chile as an independent sovereign state could not be permitted to shield its former head from the consequences of his actions.
That said, the Law Lords went on to consider a special extradition point that had not been taken at the previous hearing, although it would undoubtedly have been raised in the course of the extradition proceedings (by taking it at this stage, the judges have in fact saved further delay).
Most of them found that the "double criminality" rule limited extradition crimes to those taking place after 1988. No doubt Jack Straw will be pressed with the argument that "only" three cases of torture are alleged in this later period, but he should carefully read page 59 of Lord Hope's key speech. This explains that the true significance of these particular acts was to show that even in the last years of his dictatorship "he was a party to the use of torture as a systematic attack on all those who opposed or might oppose his government". On this basis, Pinochet's mind was as guilty in 1988 as it had been in 1973 - more so, in fact, because by that later stage he had no armed opposition.
There will be disappointment among torture victims that Pinochet cannot, as a result of an obscure extradition rule, be put on trial for the murders and tortures he ordered during, and for years after, his overthrow of democracy in 1973. This is regrettable, but has one great merit: it pulls the rug entirely from under Pinochet's supporters. They have, in the last few months, created a cottage propaganda industry claiming that the General had to kill Chileans in order to save them from Cuba-style communism - that they were better dead (or destroyed by torture) than red. This argument may be a perversion of history, but on any view it cannot apply to torture and murder in 1988, 15 years after Salvador Allende's death. There may be only three charges left in the Spanish prosecution, but they allege such a degree of indefensible wickedness - a dictator's determination to abuse his unthreatened power - that the case for extradition is overwhelming.
What has become crystal clear in recent months is that Pinochet will never stand trial in Chile. There have been cases brought against him by relatives of those who disappeared under his orders, all consolidated before Judge Juan Guzman of the Santiago Appeals Court, who recently explained, "I am prevented from issuing any kind of arrest warrant", because of the amnesty Pinochet bestowed on himself in 1978 and because he will always enjoy immunity as "Senator for life". Even if these immunities were in some way ended, the issue of any warrant against the General would automatically remove his case to a military court, where his acquittal would be a foregone conclusion.
The other false claim his supporters make is that Chile has reached a South Africa-style "national reconciliation". It did have a truth commission, chaired by Senator Rettig, which reported in 1992 on the extent of the killings and the torture, but which was prohibited from "naming names" and identifying those responsible. Bishop Tutu's Commission was altogether different, offering "plea bargain" immunity only to those who were prepared to confess the full truth apologetically and in public, and to give evidence for the prosecution in future criminal trials.
Pinochet has never apologised, although he has joked that the "disappearances" saved the cost of coffins. If he remains out of the country, fighting extradition and then a trial in Spain, the Chilean government may have the courage to set up a proper truth commission to unmask the pre-1988 crimes of Pinochet and his executioners.
The Pinochet case marks a signal advance in international human rights law. The breach in "sovereign immunity" has been hailed by Mary Robinson, Richard Goldstone and other leading jurists, and it must not be tarnished by allowing Pinochet to return to a hero's welcome from his followers in Chile. In fact, the ruling should be followed up by making an immediate application for Idi Amin's extradition from Saudi Arabia. His position as a former head of state would not make him immune from prosecution at the Old Bailey for the murders of British citizens during his rule in Uganda.
There will, inevitably, be disappointment that Pinochet cannot be prosecuted in Spain for the bulk of his crimes, but this should be tempered by the advances the case has made in human rights law. Britain can take some credit, too, for the fact that its courts have bent over backwards to be fair to this man, compared with the utter lack of fairness he meted out to his victims who were denied any form of legal process. At least, if there is retribution for just one family, that of Marcos Quezada Yanez, some justice will have been done.
* Geoffrey Robertson QC is author of 'The Justice Game', published in paperback this month by Vintage
GUARDIAN (London)Thursday March 25,
Shining through the House of Lords' final verdict on General Pinochet is a single, revelatory truth. A lot of static crackles round the judgment. The second batch of Law Lords found refuge in a point which the first had hardly considered.
As a result, the politics of extradition will take over from the law. But the heart of the matter remains. What three LawLords decided in November, six more have agreed in March: that a former head of state cannot claim sovereign immunity in a foreign court from trial for certain crimes he committed or supervised when he was in power.
When the first hearing reached that conclusion, it was regarded as aberrant. And it was certainly surprising. Those who didn't like it offered insidious explanations. Two members of the court, it was noted, were South Africans: a serious disablement. And one of them, by his reckless failure to declare an interest, poisoned the decision of the whole tribunal, with the result that the case had to be heard again.
The second hearing, unique in the history of the legal system, put in jeopardy the entire standing of the Lords as our court of indisputable finality.
On the central issue, such anxiety can now be set aside. There is no confusion. Lord Hoffmann's dreadful blunder, far from being the start of an unravelling of both the case and the court, turned out to be the pretext for reinforcement of a vital point. No fewer than nine law lords have said that Pinochet, as a former head of state charged with torture, can claim no immunity from extradition. The opinion is no aberration.
In this, moreover, Britain's top court is a global pathfinder. During the second hearing, a search was made for any other domestic court in the world that has refused immunity to a former head of state in such situation. Not one, apparently, has ever done it before.
So the Law Lords have saved their court. In addition, the extra time and the armies of counsel helped produce a set of speeches more fully reasoned and more subtly copious than first time round, which will add weight to the international role they can be expected to play. Lord Browne-Wilkinson's, in particular, was a model of de-obfuscation.
The new limit placed on Pinochet's predicament - that he cannot be extradited for alleged crimes dating from before December 1988 - is of no significance to the future impunity of travelling former despots. They risk being detained and tried, at any rate if they come to Britain. This is a definitive assertion of the primacy, in certain circumstances, of international human rights.
We come, though, to the new departure, on the basis of which the Law Lords almost seem to be seeking a different outcome as far as Pinochet himself is concerned.
The 1988 cut-off point was barely argued in the previous courts. It rests on the claim that extradition for torture, from Britain, was not legally available until the international Torture Convention became part of British law, which it did late in 1988. Any crimes Pinochet committed before that, all Law Lords but one asserted, should be struck out of his extradition charge-sheet. The eight judges who had previously heard the case at different levels, including those who opposed the general's extradition, all dismissed this point as empty. But it is now the given law, with which the Home Secretary has to deal.
For his is now the decision. To cut out everything Pinochet did before
1988 is to cut out a lot of crimes, and alters the factual basis on which Jack Straw made his original decision to let extradition proceedings begin. Their lordships made a lot of this, time after time urging him to look again at what he had done. The 'drastically reduced charges', said Lord Browne-Wilkinson, changed the picture.
Perhaps this was just a reminder to Mr Straw that, if he didn't look again at the case and review his own decision - which some lawyers say he doesn't have the power to do - he might face review by the judges. What its iteration sounded like was a plea for clemency. This will be amplified by others. The old political pleadings will resume. Well, I can hear them say, Pinochet is an old man. He was always a friend of Britain. He has been given a disgracefully hard time, thanks to an officious Spanish magistrate who has vastly overreached himself in the charges he thought he could bring. Now that the strict illegality of extradition has been shown in all but a handful of cases, the minister's decision, if he reaffirms it, will be sheer vindictiveness, if not proof that those student days in Santiago make him devoid of impartiality. Thus will sing the piety of Latin America's new discovered champion, Lord Lamont.
The claim that while many torture charges are unconscionable, a single torture charge can be excused and forgotten, exposes a startling moral imbecility. Such relativism can perhaps be explained, but surely never excused, by weight of expectations: the belief that, when scores of crimes are eliminated, those that remain somehow lose their critical mass. Yet in any other circumstance, a single charge of torture, if disclosed by an extradition claim, and if in all legal respects fully in order, would not be deemed insufficient simply because it was alone. Torture doesn't acquire immunity, as an international crime, merely because there isn't enough of it.
And actually, while urging Mr Straw to look again, some Law Lords took this point. Even if the charge-sheet was confined to crimes committed after the cut-off date, Lord Hope acknowledged without demur, 'the allegation is that [Pinochet] was a party to the use of torture as a systematic attack on all those who opposed or who might oppose his government.'
The residue of these uniquely lengthy hearings is that Pinochet, when everything is pared down to strict law, is charged with a handful of extraditable offences, from the consequences of which he has no immunity. Torture, and conspiracy to torture, late in his time, stand against him. The most thorough judicial process ever conducted in this country has concluded with a clear assertion of international morality and how it should be enforced.
Half- ducking the particular implications of this general rule, the Law Lords were behaving in a very British way. Leave Pinochet to the minister, they said. Let him think again. But the minister too has Britain's reputation in his hands. Where they have found a path, he should follow - or let this proclamation of the limits of tolerable evil be subverted by the compromising habits of a politician.