DEFENDANT DESPOT: PINOCHET AND THE PROSPECT OF CHILEAN JUSTICE

By JOANNE MARINER


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Thursday, Aug. 17, 2000

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

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

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

Guaranteed Impunity?

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

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

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

Whose Courts? Whose Defendant?

The debate in the U.K. courts over Pinochet's prosecution centered on whether his status as a former head of state protected him from prosecution and also, more generally, on whether it was appropriate to base a criminal prosecution in foreign courts on human rights crimes committed in Chile. The position of the Chilean government on these issues was a nationalist one. Relying on the principle of state sovereignty, the government claimed that the former dictator's arrest and potential prosecution were an illegitimate invasion of the jurisdiction of the Chilean courts.

realistic possibility of prosecuting Pinochet. But no one in Chile seriously believed this -- at least not at first. The legal obstacles to Pinochet's prosecution in Chile were so formidable as to guarantee the failure of such an effort. Added to the amnesty law and Pinochet's parliamentary immunity was the likelihood that military courts -- which have an unbroken record of preventing the prosecution of military officials for crimes committed during the 1973 coup and its aftermath -- would take jurisdiction over the case.

Welcome Home, You're Just in Time For The Trial

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

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

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

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

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

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