{"id":51670,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/defendant-despot.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"defendant-despot","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/defendant-despot.html","title":{"rendered":"Defendant Despot"},"content":{"rendered":"\n
\n \n
\n
\n \n \n \n \n \n\n \n
<\/a><\/td>\n

DEFENDANT DESPOT: PINOCHET AND THE PROSPECT OF CHILEAN JUSTICE<\/h1><\/td>\n <\/tr>\n

By JOANNE MARINER<\/h2>
\n<\/a>—-\n
Thursday, Aug. 17, 2000<\/div><\/td>\n\n <\/tr>\n <\/table>\n

Framed copies of the British arrest warrant for Augusto Pinochet Ugarte, dated \n October 16, 1998, have become a familiar sight in the offices of human rights \n activists. For all of us unaccustomed to seeing war criminals, despotic leaders \n and other abusers called to account for their crimes, the dictator’s arrest \n and subsequent detention were the human rights equivalent of a shot of adrenalin.<\/p>\n

Even better, the effects of the U.K.’s dramatic action have not worn off. In \n Chile, to the surprise of everyone who has followed the country’s recovery from \n military rule, the prolonged detention of Pinochet in Britain revitalized the \n judiciary. Indeed, the Chilean courts have been allowing criminal prosecutions \n to proceed against officials implicated in the thousands of killings and “disappearances” \n during Pinochet’s brutal seventeen-year rule, despite an amnesty law designed \n to bar such prosecutions.<\/p>\n

The most recent — and certainly most dramatic — evidence of the fundamental \n shift in the Chilean judiciary’s approach to such prosecutions was last week’s \n ruling by the country’s Supreme Court to uphold the lifting of Pinochet’s parliamentary \n immunity from prosecution. The ruling means that human rights activists may \n soon draw inspiration from another equally meaningful and equally unprecedented \n source: the criminal indictment of Pinochet in Chile.<\/p>\n

Guaranteed Impunity?<\/b><\/p>\n

Not so long ago, the idea of a Chilean prosecution of Pinochet would have been \n unimaginable. When Pinochet left power a decade ago, no one thought he would \n ever face charges. And for good reason — Pinochet had taken every conceivable \n step to bar such a possibility.<\/p>\n

Besides decreeing the amnesty law — which covers crimes committed from 1973 \n to 1978, the bloodiest period of his rule — Pinochet packed the Supreme Court \n with his appointees. And he reserved for himself more tangible control over \n events by remaining commander of the armed forces until March 1998. The army’s \n occasional displays of saber-rattling, particularly in the early 1990s, helped \n curb the civilian government’s enthusiasm for criminal prosecutions of past \n human rights crimes.<\/p>\n

For his retirement, Pinochet arranged a safe haven for himself as senator-for-life, \n complete with parliamentary immunity from prosecution. Indeed, had he remained \n in Chile, the story would most likely stop here. His error — obvious in retrospect, \n but a huge surprise at the time — was in traveling to London. On foreign soil, \n his amnesty law, his military support, and his parliamentary immunity meant \n little.<\/p>\n

Whose Courts? Whose Defendant?<\/b><\/p>\n

The debate in the U.K. courts over Pinochet’s prosecution centered on whether \n his status as a former head of state protected him from prosecution and also, \n more generally, on whether it was appropriate to base a criminal prosecution \n in foreign courts on human rights crimes committed in Chile. The position of \n the Chilean government on these issues was a nationalist one. Relying on the \n principle of state sovereignty, the government claimed that the former dictator’s \n arrest and potential prosecution were an illegitimate invasion of the jurisdiction \n of the Chilean courts.<\/p>\n realistic possibility of prosecuting Pinochet. But no one in Chile seriously \n believed this — at least not at first. The legal obstacles to Pinochet’s prosecution \n in Chile were so formidable as to guarantee the failure of such an effort. Added \n to the amnesty law and Pinochet’s parliamentary immunity was the likelihood \n that military courts — which have an unbroken record of preventing the prosecution \n of military officials for crimes committed during the 1973 coup and its aftermath \n — would take jurisdiction over the case.\n

\n\nWelcome Home, You’re Just in Time For The Trial<\/b><\/p>\n

Yet when Pinochet was returned to Chile on medical grounds, after 503 days \n of detention in Britain, he found himself in a different country than the one \n he had left. Over the course of Pinochet’s detention, the Chilean courts had \n opened an unprecedented series of prosecutions of former military officials \n implicated in past abuses, including generals linked to the intelligence services. \n Apparently the Chilean government’s vigorous protestations about the strength \n of its courts had worked as a sort of self-fulfilling prophecy — giving Chile \n the needed encouragement to make good on the representations it had made abroad \n that it could, indeed, provide justice for the victims of Pinochet and of his \n military officers.<\/p>\n

Most crucially, the criminal cases against Pinochet himself, originally brought \n in 1998, no longer seemed willfully quixotic. A key difference was the development \n in 1999 of a legal doctrine that treated “disappearances” as continuing crimes \n — and thus not covered by the amnesty law, because they could not be confined \n to the time period for which amnesty had been granted. Another difference was \n a new readiness to strip Pinochet of his parliamentary immunity, a step taken \n in June and confirmed by the Supreme Court last week.<\/p>\n

These developments do not, of course, guarantee that Pinochet will be prosecuted, \n let alone convicted of his crimes. The possibility that military jurisdiction \n will be asserted, or that the proceedings will be discontinued on medical grounds, \n still lies ahead. But the case in Chile has already gone further than anyone \n — including, most notably, Pinochet himself — would ever have expected.<\/p>\n

Victims of Pinochet’s crimes found great solace in seeing him detained in London. \n Yet the prospect of justice in Chile may be even more meaningful to them. Having \n been Chilean General, Chilean President, and Chilean Senator-for-life, Pinochet \n is now facing a long stretch under a different, but much more fitting title: \n Chilean defendant.<\/p>\n\n<\/span>\n\n\n

\n\n\nJoanne Mariner, a graduate of Yale Law School, is deputy director of the \n Americas division of Human Rights Watch. Human \n Rights Watch<\/i><\/a> took part in the <\/i>Pinochet<\/i><\/a> \n hearings before the U.K. courts, submitting several briefs to the House of Lords.\n

\n\n<\/i><\/p>\n <\/div>

\n \n Was this helpful?<\/span>\n \n Yes<\/span>\n \n \n \n <\/path>\n <\/g>\n \n \n <\/rect>\n <\/clipPath>\n <\/defs>\n <\/svg>\n <\/i>\n <\/button>\n \n No<\/span>\n \n \n \n \n <\/g>\n \n \n \n <\/clipPath>\n <\/defs>\n <\/svg>\n <\/i>\n <\/button>\n <\/div>\n <\/span>\n