The Pinochet Case: International and Domestic Repercussions

José Zalaquett

A New Scenario

The detention in London of Augusto Pinochet, from October 16, 1998 to March 2, 2000, has
been widely seen as a major milestone in the emergence of a new international scenario, more
conducive to the attainment of international justice for human rights violations and war
crimes.

The Pinochet case and the events it has spawned, are taking place during what may be
considered a third stage in the development of the international human rights system
inaugurated after World War II. The first stage was marked by international trials and intense
law-making and standard-setting activities. It was a foundational time. A new international
humanitarian order was being built. Its main pillars were International Human Rights Law,1
International Humanitarian Law, and the International Law of Refugees.2 During this
foundational period the principal actors responsible for building the human rights system were
the United Nations and the leading powers of the time. In parallel, regional
intergovernmental organizations began to replicate these international developments3

A second phase in the post-war evolution of this human rights system began in the 1960s,
with the emergence of an international human rights movement. Amnesty International,
founded in 1961, acquired commanding presence in the late 60s. Other international
nongovernmental organizations were created around that time. The nascent human rights
movement gained sustained momentum in the beginning of the 70s and subsequently spread
to most parts of the world.

It was the height of the cold war. In order to be credible and successful, the best known
international human rights organizations avoided any partisan stance. Rather, they sought to
work impartially for the observance of norms whose international legitimacy could not be
disputed. From the late 60s to the early 80s, the work of the international human rights
movement consisted mainly in documenting and denouncing state abuses, and in mobilizing
pressure to defend the victims. It addressed governments who were violating human rights.

The situation in many countries was tragic and the work of the human rights movement was
arduous and complex. Nevertheless, its intellectual and ethical bases were quite
straightforward and simple: Most of those states had signed international human rights
declarations or treaties and it was in their power to continue or to cease to commit such
crimes. The human rights movement credibly documented gross violations, it captured the
attention of the international media, it mobilized public opinion and succeeded in moving its

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concerns on to the international agenda. During this second phase, the movement also
helped to energize the intergovernmental human rights machinery by bringing complaints
against states before United Nations' human rights bodies and before regional human rights
commissions and courts. However, international criminal justice remained dormant.

A third stage in the development of the international human rights system may be said to have
started in the early 80s. By then the values of human rights and democracy had gained
unprecedented international legitimacy. The ferment of political change was felt everywhere.
The demise of the Soviet Union and its allied regimes in Europe, and the end of the cold war,
had immediate reverberations in Latin America, Africa and other parts of the world. Many
countries formerly under dictatorial regimes, entered a process of what became known as a
"transition to democracy". In this new climate, the need for these countries to confront their
recent past was seen as a moral and political imperative in order to do justice, affirm the
values that had been transgressed, and prevent the recurrence of arbitrary rule and state
crimes. In parallel, in the post cold war years, internal warfare, often rooted in ethnic,
national or religious conflict, erupted in many countries, in some cases facilitated by the
debilitation or dissolution of central state authority. Crimes against humanity and war crimes
were committed in the course of these conflicts, the most dramatic occurring in the former
Yugoslavia and in Rwanda.

In response to these events, three distinct agendas developed during this last phase in the
evolution of the international human rights system. First, a cluster of issues grouped under
the term "transitional justice" or "truth, justice and reconciliation," referring to the need to
build or rebuild a democratic system and to address, in the process, a legacy of human rights
violations or war crimes committed in the recent past. The international human rights
community has monitored these situations and it has demanded incoming governments to
make special efforts to achieve truth, justice and reparations. In some cases, the UN has taken
an active role in peace-making and in helping to implement transitional policies. Also, many
governments facing the dilemmas of transitional justice have actively sought to learn from the
experiences of other countries.

A second set of issues relates to humanitarian action. It raises questions about humanitarian
assistance, peace-keeping and the legitimacy of armed intervention in foreign countries aimed
at stopping or preventing major humanitarian crises. The contemporary cases that best
illustrate the political, legal and moral dilemmas of armed humanitarian intervention are the
former Yugoslavia, Haiti, Somalia, Rwanda, and East Timor.

A third group of issues concerns international criminal justice. Since the early 90s, the
international community has shown a renewed determination to take a stance on the
prosecution and punishment of major crimes under international law. This new impulse has
run through three different channels.

• Establishment of ad hoc international courts. Since the Nuremberg and Tokyo trials,
more than 40 years elapsed before new ad hoc criminal courts were established: the

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 International Criminal Tribunal for the Former Yugoslavia4 and the International
Criminal Tribunal for Rwanda.5

• Creation of a permanent international criminal court. On July 17, 1998, the Statute of
the International Criminal Court was adopted at a conference in Rome. [Ed: On April
11, 2002, the required 60 ratifications were entered. The court will come into
existence on July 1, 2002.]

• Universal jurisdiction. Forms of universal jurisdiction were gradually being

established during the postwar period.6 Starting in the 70s, a standard universal
jurisdiction clause began to be incorporated, with minor variations, in different
conventions dealing with matters as varied as the prevention, prosecution and
punishment of terrorism7, the fight against torture,8 and the fight against corruption.9
The new standard clause permits states, or imposes on them the obligation, to
establish their jurisdiction over certain crimes based on four criteria: the criminal
offense was committed in their territory; the alleged perpetrator is a national of that
state; the victim is a national of that state; the principle aut dedere aut judicare,
according to which states should establish their jurisdiction to prosecute alleged
perpetrators of certain crimes who happen to find themselves within their territory,
unless it extradites to states which fit any of the previous three criteria.

Against this background the many implications of Pinochet's detention in London may be
better appreciated. It was the first time that a former head of state, notorious for his human
rights record, was detained upon the initiative of foreign countries acting ostensibly within the
framework of the new developments in international human rights law. Because of its
extraordinary symbolic importance, the Pinochet case seems to have given great impetus to
the machinery of universal jurisdiction. It also brought together the hitherto separate strands
of international justice and the dilemmas faced by countries undergoing a process of transition
to democracy.

International Impact of the Pinochet Case

The detention of Augusto Pinochet in London initiated lengthy and complex proceedings
involving political decisions by the British Home Secretary, Jack Straw, and many judgments
by various British courts. The latter include three judgments by the highest court of the
United Kingdom, the Law Lords of the House of Lords. It is sufficient here to recall the bare
essentials of the case.

Augusto Pinochet, de facto Head of State of Chile during the period 1973-1990, and former
Commander-in-Chief of the Chilean Army, had stepped down from this last position on
March 11, 1998, and became Senator for Life. Months later he traveled to London where he
was detained on October 16, following an extradition request by Spain, who wished to try him
for claims of genocide, terrorism, and torture brought by Spanish investigative Judge Baltazar
Garzón.

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The case raised many complex legal issues. Although international human rights
organizations regarded the case as the application of universal jurisdiction for major human
rights crimes - and for practical and symbolic purposes it had this character - the British courts
treated the question principally within the framework of extradition law and international law
concerning state immunity and the immunity of heads of state. One of the main principles of
extradition law is called "double criminality." It establishes that the charges on which the
extradition request is based must be penalized as criminal offenses in the law of both the
requesting state and the receiving state.

The charges of genocide and terrorism leveled by Judge Garzón did not survive. The legal
questions then revolved around whether torture committed outside the United Kingdom was a
crime in that country and if so, beginning when. Another issue was whether or not Pinochet
enjoyed immunity as a former head of state. In the course of the legal proceedings other
European countries also requested the extradition of Pinochet, to be tried in their respective
territories for various similar charges. The second and final substantive ruling by the Law
Lords, on March 24, 1999, concluded that Pinochet had no immunity for acts of torture. Yet,
it considered that torture committed abroad, or international torture, had become a crime in
the United Kingdom on December 8, 1988, the date the Convention Against Torture entered
into force in the UK. Therefore, only acts of torture committed outside the UK since that date
could be prosecuted in the UK and would meet the requirement of "double criminality" for
the purpose of extradition. This decision left standing just one case of torture from the
original Spanish charges, although Judge Garzón subsequently added more cases.

Jack Straw, the British Home Secretary, who under UK law has considerable discretionary
powers in cases of extradition, on April 14, 1999 issued a "Second Authority to Proceed"
within the terms decided by the Law Lords. The case returned to the courts, this time to
examine the technicalities of the extradition petition. Later in 1999, the Chilean government
argued that Pinochet's health did not allow him to stand trial. Jack Straw ordered him
examined by a team of doctors and on the strength of their report concluded that he was unfit
to be tried. The decision was contested but the British courts upheld it. Pinochet was released
and he returned to Chile where he arrived on March 3, 2000.

Cases Seemingly Inspired by the "Pinochet Effect"

The Pinochet precedent has inspired a score of cases around the world.10 Some involve
figures who may be compared to the former Chilean strongman.

Former Ethiopian dictator Mengistu Haile Mariam, who was living in exile in Zimbabwe,
sought medical attention in South Africa in late 1999. On December 2, 1999, the South
African Minister of Justice, acting at the behest of international human rights organizations
and South African lawyers, requested the National Director of Public Prosecutions to
investigate the possibility of charging Mengistu for crimes against humanity. Yet on

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December 7, 1999 Mengistu left the country, apparently prior to the receipt by the
government of a formal request for his extradition to Ethiopia.11

At the initiative of Human Rights Watch and Harvard Law School's Human Rights Program,
a criminal complaint was filed by Senegalese lawyers, in Senegal, against Hissene Habré, the
ex-dictator of Chad (1982-1990), accusing him of being responsible for the deaths of
thousands of Chadian citizens. The complaint charged him with torture. Witnesses and
victims came from Chad to testify before the investigating judge and Habré was summoned to
a Senegalese court to hear the indictment. The case was dismissed on July 4, 2000.12

Jean-Claude Duvalier, the former Haitian dictator, has lived in exile in France since 1986. In
September 1999, some of his countrymen who claimed they were tortured under his regime,
filed a complaint before the French prosecutor's office, arguing that Duvalier had committed
crimes against humanity. The complaint was rejected on the ground that the alleged facts did
not fit the judicial definition of crimes against humanity under French law.

Similar attempts have been made to call to account less notorious figures. On March 9, 2000,
the FBI detained Ricardo Anderson Kohatsu, a retired Peruvian major accused of torture in
Peru. Anderson Kohatsu had been in Washington as a Peruvian government witness before
the Human Rights Commission of the Organization of American States (OAS). He was set
free a few hours later because his visa appeared to give him diplomatic immunity. A
Mauritanian army captain, Ely Ould Dah, spent several months detained in France after
human rights groups accused him of torture. He was released on September 28, 1999 but
ordered to stay in the region until an investigation was completed. He returned to his country
in April 2000.

The case of the Democratic Republic of Congo vs. the Kingdom of Belgium stands apart
because it involves a seemingly unprecedented attempt to apply universal jurisdiction in its
broadest sense. The charges were war crimes. A Belgian judge issued an arrest warrant
against Congo's Acting Minister of Foreign Affairs, Mr. Yerodia Abdoulaye Ndombasi.
According to Congo, the crimes were allegedly committed in the territory of Congo by a
national of that state, without it being contended that the victims are of Belgian nationality, or
that the facts constitute violations of the security or dignity of Belgium. On October 17,
2000, Congo instituted proceedings against Belgium before the International Court of Justice
asking it to declare that Belgium must annul the international arrest warrant. [Ed. On February
14, 2002, the ICJ held that the Belgium arrest warrant contravened international law.]

There have been a number of civil law suits seeking damages for human rights violations
brought in United States courts against foreign nationals. These cases are based on the Alien
Tort Claims Act, 1789, which gives foreigners the right to file civil suits in U.S. courts for
injuries suffered in violation of international law. In 1980 that ancient law was revived by
American lawyers and used successfully in a civil suit against Américo Pena-Irala, a former
Paraguayan police chief accused of torturing and killing a 17-year-old boy, Joelito Filartiga,
in Paraguay. The same law was invoked in 2000 in law suits against Bosnian Serb leader

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Radovan Karadzic and against Lt. Gen. Johnny Lumintang, Indonesia's former Army Deputy
Chief.

The so-called "Pinochet effect" is thought to have spread also to Brazil, Argentina and
Uruguay. The Washington Post reported that a congressional commission in Brazil filed a
petition in August 2000, to indict Paraguay's former dictator Alfredo Stroessner. It added that
"in Argentina, which briefly jailed its military Junta before pardoning members in 1990,
former dictator Jorge Videla and eight other leaders of the 'dirty war' are back under arrest,
facing charges that they stole babies from female political prisoners." The article cites
another example of the effect of the Pinochet case: In Uruguay "a new commission has been
formed to investigate the whereabouts of people who disappeared during the nation's military
government."

International Consequences of the Pinochet Case: Hopes and Worries

The immediate impact of the Pinochet case has been on the nongovernmental human rights
community. The former dictator's detention in London was seen by the leading human rights
organizations as a major boost in their fight against impunity for grave human rights
violations and war crimes. Amnesty International was heard before British courts. Human
Rights Watch presented amicus curiae writs. Both organizations kept in touch with human
rights groups and relatives of disappeared persons in Chile. Both issued reports and press
releases as the case moved along, as did the International Commission of Jurists, the Lawyers
Committee for Human Rights, and other international human rights groups. During and after
Pinochet's detention in London important human rights NGOs have established programs
aimed at fighting impunity. Some of these organizations have encouraged and assisted
lawyers and victims in various countries in the filing of complaints against former dictators
who live in exile, or against military or police officials responsible for grave human rights
violations and war crimes.

Nongovernmental rights organizations view the Pinochet case and its after-shocks with
optimism. In many countries around the world, this optimism is shared by local human rights
groups, victims of state crimes, and common citizens. Human rights organizations put
forward a number of claims to justify their eager pursuit of international justice. They note
the legal obligations international law imposes on states, and specifically the duty to try and to
punish those who commit international law crimes, as well as the rights of the victims or their
families to have an effective legal remedy and to see justice done. However, most of the
arguments revolve around the preventive aspect of criminal justice -- if dictators, strongmen
and warlords are on notice that there would be no impunity and no safe haven for human
rights violations and war crimes, a powerful deterrent will have been established to help
prevent future atrocities.
It is premature to gauge the impact these developments will have on the work of international
human rights organizations. To actively assist in the international detection and prosecution
of perpetrators of human rights violations and war crimes, is a task which may require
significant changes in the working methods of these institutions. Will Amnesty International

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and other groups attempt to treat all like cases alike, or will priorities be established? If the
latter, how will the cases for more active involvement be selected? These questions are
related to the ad hoc character that international justice is bound to have in the foreseeable
future.13

A second consequence of the Pinochet case may be termed the "Garzón effect". The initiative
of the now world-famous Spanish investigative judge who sought Pinochet's extradition was
soon emulated by judges from other European countries who likewise petitioned the United
Kingdom to have him extradited. Garzón seems also to have inspired judges and prosecutors
in many other countries. In Chile, Judge Guzmán, who is investigating the complaints
presented against Pinochet, has often been called the "Chilean Garzón". Judge Garzón has
been invited to give lectures in many countries. He has been asked to take up the plight of
wronged groups in various nations. He seems to have ushered into the world arena a new
figure -- the international judge (or more properly, the international prosecutor).

Judge Garzón can rightly claim credit for the Pinochet precedent. Without his efforts and his
determination to overcome all difficulties (even the objections raised within the Spanish
government and judiciary) the Pinochet case would not have been. Yet, his work in the
Pinochet case has raised some technical legal questions. He will probably be remembered for
having foreshadowed a period of international judicial activism rather than as the prototype
after which a new progeny of international judges was modeled.

A third effect of Pinochet's detention and of the cases it seems to have inspired, has been to
instill fear in many dictators and former dictators. Many of them are said to think twice or to
consult their lawyers before making international travel plans. In the words of Richard
Goldstone, "travel agencies have lost the business" of perpetrators of human rights
violations.14 So far, however, the results have not gone much further. One factor is politics.
States who are requested to take legal action against visiting or resident former foreign rulers,
are likely to weigh carefully the political and diplomatic consequences. It is a well known
and widely spread speculation that, as Pinochet's detention continued, the British government
felt that the case could bring it more political costs (not to mention the expense it incurred)
than benefits, particularly if the old Chilean dictator were to die while in London. It has been
said, too, that South Africa let Mengistu leave in order not to antagonize Zimbabwe, where
the former Ethiopian dictator received refuge.

The Pinochet precedent has caused other political concerns. One of the most commonly
heard is that it may have the undesired effect of strengthening the determination of dictators
not to relinquish power for fear of becoming vulnerable to international legal claims. This is,
of course, a speculation that can hardly be proven or disproved. It should be pointed out,
though, that it ignores the historical evidence that most dictators do not think of leaving power
while they can safely retain it. The notion that if they were assured of perpetual impunity
they would consider an early departure from a position of power they firmly held, seems
strange. The point is more pertinent concerning dictators who are fighting for political
survival. Would the prospect of being prosecuted strengthen their determination to hold on to

53
power to the bitter end, with dire consequences for their countries? The case of Milosevic has
often been cited à propos this supposed dilemma. It remains unresolved.

Yet another concern is that the recent spate of international judicial activism may lead to
international disorder, a legal "pandora's box," and ad hoc "patchwork justice"15. It is said
that outsiders intervening in other nations' domestic matters "may upset delicate and perhaps
benign local political arrangements"16; that the nongovernmental organizations that play such
an important role in these cases, simply lack accountability; that everyone can play the game
and maverick judges, from any country, could initiate frivolous proceedings.

The permanent International Criminal Court has not entered into force as yet, but the pace of
ratifications seems brisk. It is difficult to predict how this court will affect the efforts of the
human rights community to breathe life into the existing rules about universal jurisdiction.
For one thing, the jurisdiction of the court will extend to only the gravest crimes, leaving aside
some offenses against international law which do not meet the standards for genocide, crimes
against humanity or war crimes as written in its Statute. Current norms about universal
jurisdiction may continue to apply to crimes not falling within the jurisdiction of the
International Criminal Court, once it enters into force. They may also apply to genocide,
crimes against humanity and war crimes involving alleged perpetrators who are nationals of
countries that have not signed or ratified the respective conventions.

What seems clear, as David Bosco states17, is that "in many cases and for years to come, ad
hoc justice will be the only brand of justice available". This appears inevitable. History
shows that moving to a higher plane of legal and political order, whether domestically or
internationally, is seldom achieved neatly, as if one could just place a ready made new story
on top of an existing building. The enthusiasm for these new developments in international
justice ought to be combined with a healthy degree of wariness about the possible drawbacks
they may provoke.

The Detention of Pinochet in London and its Effects in Chile

The detention of Pinochet in London had major political and judicial echoes in Chile. They
include, prominently, a great number of criminal suits brought against Pinochet before
Chilean courts; the establishment of the Mesa de Diálogo, a government sponsored series of
roundtable discussions on human rights, involving the military, human rights lawyers and
other participants; and the ruling of the Chilean Supreme Court lifting Pinochet's senatorial
immunity from criminal prosecution after he returned to Chile.

It has become commonplace to assume that Pinochet's detention is a sufficient condition to

explain all these developments. Such assumption must be nuanced. Of course one cannot
underestimate the enormous impact that Pinochet's detention has had in Chile. Yet, it must be
pointed out that in January of 1998, when Pinochet was still Commander in Chief of the
Army (although his tenure was due to expire two months later), and well before he traveled to

54
London in October of that year, criminal suits had already been brought against him in
Chilean courts.

It is this author's contention that increasing efforts to call Pinochet to account in Chile would
have taken place at any rate - most likely in a different shape or on a lesser scale or at a slower
pace - had the former dictator never traveled to London. Calling Pinochet to account was
perceived by many in Chile as one of the main issues yet to be confronted regarding the
legacy of abuses committed by the military regime. This goal was seen as hardly feasible
while he remained firmly in control of the Army. The approaching end of his tenure as
Commander in Chief of the Army, and a number of other factors which will be examined
below, created new, more conducive conditions to that end. Granted, this contention is
speculative. But it is equally speculative to suppose that had it not been for Pinochet's
detention in London, the incipient efforts to call him to account in Chile would have come to
nil.

With these caveats in mind, I will analyze the impact Pinochet's detention has had in Chile.
In order to do so, it is necessary to begin by summarizing some essential facts regarding the
military regime and the Chilean transition to democracy, which are often overlooked or
misunderstood.

The Nature of the Military Regime, the Human Rights Violations it Committed, and
Pinochet's Role

The military regime that ruled Chile from the time of the coup d'etat of September 11, 1973,
until March 11, 1990, had an institutional character and an overall sense of political mission

The military government's mission, as understood by the Chilean Armed Forces and their
political supporters, was to stop the nation from sliding into communism or civil war; to
immunize its citizens from the seduction of radical leftist politics; to administer the country
during the time required to build a new economic and political order; and eventually to return
it to civilian rule, but not before building legal and institutional safeguards designed to
prevent the undoing of the military regime's oeuvre.

The Chilean Armed Forces (the Army, Navy, Air Force and the Chilean police, called
Carabineros) formally declared that they were taking over power "as institutions". Their
respective commanders-in-chief formed the ruling Junta. Pinochet was not the natural leader
of the coup, having joined the conspiracy only in its final stages. However, he was named
president of the Junta, following a time-honored order of precedence among the different
branches of the Armed Forces which gave primacy to the Army. Subsequently, he was
named head of the executive office and the military Junta remained as the legislative
authority.18 In his position as head of the Junta and later Head of State, Pinochet became the
undisputed leader of the military government, but this did not alter the institutional character
of the regime nor did it bestow on him unfettered powers.19

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The human rights violations committed by the military regime are amply documented.20
More than 3,000 political opponents were victims of assassinations or "forced
disappearances". Tens of thousands were imprisoned or exiled. Torture was widespread and
systemic. Civil liberties were severely curtailed. These human rights violations shook the
world. The tragically failed social experiment of Salvador Allende had captured the
imagination of a wide sector of international public opinion. His death defending the powers
of government21 acquired the lasting mythic power of a symbol. Pinochet, in turn, became
the symbol of the ruthless dictator.22

The most numerous and gravest violations were committed during the first four years of
military rule. The main force responsible for these crimes was DINA (Directorate of National
Intelligence), the secret police created by the government, which carried out a systematic
policy of disappearances. The head of DINA, Army Colonel Manuel Contreras, answered
directly to General Pinochet. DINA was also responsible for conducting terrorist attacks
against prominent Chileans in exile in the USA, Italy and Argentina. When the involvement
of DINA in the bombing assassination of Orlando Letelier, in Washington D.C. on September
21, 1976 was made public, the Chilean military regime came under strong pressure from the
US government.23 This led to the disbanding of DINA on August 13, 1977, and the creation
of a new secret police, known by the acronym CNI (National Information Center).

CNI discontinued the policy of systematic disappearances and committed many other grave
human rights violations, including murder and torture. This new secret police was active until
the end of the military regime. It was always headed by an army official and answerable
ultimately to Pinochet, although with the passing of time he is thought to have become less
involved in the day-to-day operations of CNI.

Characteristics of the Chilean Transition to Democracy

On October 21, 1980, the military government promulgated a new constitution24, which
established an itinerary for a return to civilian rule: in 1988 a yes-no plebiscite on a person
proposed by the military Junta would take place. If approved, the candidate would become
president for another eight years. Thereafter there would be competitive presidential
elections. If the person proposed by the Junta lost, competitive elections would take place the
following year.

Not surprisingly, in 1988 the candidate proposed by the Junta, to be ratified by a plebiscite,
was Augusto Pinochet himself. He lost. It was clear that in the competitive elections
scheduled for the following year any pro-Pinochet candidate would be defeated. With that in
mind, the military government engaged in negotiations with the opposition parties which led
to a number of constitutional reforms. However, the military government refused to accept
amendments which would undermine the main safeguards it built into the constitution. Chief
among them were the following: a provision allowing Pinochet to remain as the head of the
Army until 1998; a provision which added nine designated senators on top of the elected ones
(also, former presidents who served the full term of office prescribed by the constitution

56
would become Senators for Life); the establishment of a National Security Council, with the
participation of the military, which could serve as an institutionalized vehicle to debate the
concerns of the Armed Forces on an equal level with the President and other State authorities.

Patricio Aylwin, the candidate for the Concertación para la Democracia, a coalition of
opposition parties from the center and left of center, won the 1989 presidential elections.
Aylwin was inaugurated on March 11, 1990, for a period of four years25 and the same
political coalition has won the presidency since then. Eduardo Frei was inaugurated in March
1994 and Ricardo Lagos in March 2000.

Thus, the Chilean transition to civilian rule was achieved through the ballot box and within
the framework of legal and institutional constraints which imposed limits on the power of the
new authorities to address the legacy of human rights violations. The presence of designated
senators, in combination with constitutional provisions demanding special quorums to pass
certain legislation, and an electoral system which favored the minority parties, prevented the
approval of laws opposed by the right wing. The Supreme Court was stuck with appointees
from the time Pinochet was in power. The 1978 Amnesty Law stood as a barrier against
justice. As head of the Army, Pinochet remained a formidable presence to be reckoned with.

The political parties that defeated Pinochet in the plebiscite and in the subsequent presidential
election, agreed to play by these rules because they concluded that it was far better to have a
democracy subject to some restrictions than to live under a government led by Pinochet or his
successors. The Armed Forces and their political supporters had a different interpretation of
the opposition parties' attitude, which they continue to argue until today. In their view, the
fact that in 1989 the opposition had negotiated with the military government some
constitutional amendments meant that they had validated the 1980 Constitution.26 To this,
Pinochet's opponents reply that to have agreed to improve the Constitution to some extent did
not mean renouncing the ability to seek further changes which could not be obtained at the
time. The Armed Forces and Pinochet's political supporters further contend that the way in
which the political transition proceeded implied at least a tacit understanding that Pinochet
would not be touched. Such interpretation is, of course, rejected by those who opposed its
regime.

By the time of the 1990 return to civilian rule, Pinochet's supporters in Chile regarded him not
only as a savior who rescued the country from chaos, but as the harbinger of the epic victory
against communism, long before the downfall of the Berlin Wall, and as a leader whose free
market economic policies have been replicated all over the Third World. They believed or,
perhaps more to the point, they needed to believe that the reports about human rights
violations were part of a propaganda plot. History provides countless examples of this type of
denial. Whenever intense group loyalties (political, ethnic, religious) come in conflict with
moral norms whose legitimacy cannot be questioned, the most common response is to deny
that such norms have been violated. The military government's supporters feel that if Pinochet
were to be called to account, the whole legacy of his government could be questioned and the
very worth of their own political loyalty would be undermined. Further, they fear that this

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may have the additional effect of emboldening their former political enemies and perhaps
bringing back the ghost of radical leftist politics. Pinochet's supporters are also wary of any
indictment of his subordinates which may end up implicating him. In the end, the integrity of
Pinochet's figure is the last bastion to be protected.

The Transitional Human Rights Policies in Chile up to the Time of Pinochet's Detention
in London

The Aylwin administration (1990-1994) confronted from the outset the dilemmas of what has
been termed "transitional justice".27 Its human rights policies were adopted promptly after
exhaustive consultation. Close attention was paid to the experiences of Argentina and
Uruguay, neighbor countries which had returned to civilian rule respectively in 1983 and
1985, after being governed by like-minded military regimes.

The cornerstone of the Aylwin government's policy was the establishment of a Truth and
Reconciliation Commission. In February 1991 the Commission delivered a massive report
documenting more than 2,000 political killings and disappearances. (After the work of a
successor commission, the final figure was established at nearly 3,200.) The Commission
gave an overall account of the military regime's repressive policies, institutions and methods.
Its report was widely publicized and provoked great stirrings within Chile. Political parties
across the spectrum acknowledged the revelations it contained. However, Pinochet and other
fellow commanders-in-chief refused to accept the Commission's report.

The report named the victims individually and attributed moral responsibility to the State for
the violations of their fundamental rights. It did not name individual perpetrators on the basis
that it would amount to the moral equivalent of a guilty verdict issued by a body which was
not a court of law and did not institute procedures for the accused to defend themselves.
President Aylwin sent the Commission's report to the Supreme Court with a letter stating that
in his view the Amnesty Law of 1978 should not prevent the judiciary from at least
investigating the truth concerning the crimes committed and covered by that law. Based on
the Commission's findings, Congress passed a law providing for pensions and other
reparations for the families of the victims named in the report.28

During the Aylwin administration, Pinochet's army made threatening gestures on a couple of
occasions. These were carefully designed to send a message of displeasure but at the same
time to allow Pinochet to pretend that they amounted to nothing more than routine military
exercises. In formal terms, Pinochet was a subordinate of President Aylwin and did not want
to appear in open contempt of his authority.29

By the end of President Aylwin's four-year administration his human rights policies showed
some significant results: the publication of the Truth and Reconciliation Commission's report;
the acknowledgment of its findings by most Chileans, with the salient exception of the Armed
Forces; measures of reparation for the families of the victims; cases not covered by the 1978
Amnesty Law being tried before Chilean courts;30 and many of the cases intended to be

58
covered by the 1978 Amnesty continued to be investigated by the courts, although they did
not lead to indictments or convictions. Eduardo Frei, President Aylwin's successor, was
inaugurated on March 11, 1994. During the first years of his administration there were no
significant new government initiatives concerning the legacy of human rights violations
committed by the military regime, except for a failed negotiation between the government and
right wing parties to pass new legislation. Such negotiations were aborted after they were
publicly criticized as containing elements of a "Full Stop Law".31

When in 1995 the Supreme Court confirmed the conviction of retired General Manuel
Contreras, the former head of DINA, for the assassination of Orlando Letelier, the Frei
government had to confront the difficult task of apprehending him and sending him to prison.
The process took months but finally Contreras was confined to the specially-built prison of
Punta Peuco on October 20, 1995.

Since the publication of the Truth and Reconciliation Commission report in 1991, the political
supporters of the military regime began to draw a line between DINA and Pinochet. In their
public statements they implied that Contreras and the secret police might have committed all
those foul deeds, but somehow Pinochet was exempt from responsibility. To assume that a
powerful ruler knows nothing of the many crimes perpetrated over several years by a police
body directed by his immediate subordinate, is as much an insult to intelligence as it is a
poignant illustration of the power of the impulse to deny.

During the Frei government the Chilean courts continued to investigate many cases covered
by the Amnesty Law. Progress was made, although painstakingly. The cases of disappeared
persons remained open because of a legal interpretation which held that disappearances
should be treated as kidnappings, unless it could be proven that the victims had indeed been
murdered and that the crime was committed in the period covered by the 1978 Amnesty
Law.32 During the course of these judicial investigations, scores of military men, both retired
and on active duty, were summoned for questioning. The military and their political
supporters saw this as a degrading "military parade" before the courts and claimed that the
judicial interpretation was contrary to the original spirit of the Amnesty Law.

The State of Transitional Justice in Chile at the Time of Pinochet's Detention in London

At the time of Pinochet's detention in London the main unresolved issues concerning the
legacy of human rights violations could be clearly identified:

• Over the years only 15-20% of the remains of the disappeared had been identified or
recovered. Nearly 1,000 disappeared persons remained unaccounted for.

• The Armed Forces, and in particular the Army, had yet to acknowledge the human
rights violations committed during the military regime. To the extent that they did not

59
 do so, new generations of the military would live under the burden of denial and at the
same time under the implicit doctrine that such acts were justified.

• The courts had meted out justice (or were still investigating) in the most important
cases not covered by the 1978 Amnesty Law. Yet, this law still stood as a barrier
against the possibility of justice for the crimes committed between 1973 and 1978.
Politically it was not feasible either to repeal it or to confirm it. The matter was left
entirely in the hands of the judiciary.

• Pinochet had never acknowledged any wrongdoing. He never made any gesture
towards the victims of human rights violations. He was never called to account before
a court of law. In practice, he stood above the law. In addition to his de facto
impunity, his continuing presence as a powerful figure in Chile's public life was an
obstacle to the Armed Forces’ ability to acknowledge the human rights violations of
the past, or to cooperate in discovering the truth about the disappeared.

Measures of clemency or national reconciliation (to the extent that they did not condone
crimes against humanity) could not be considered in the absence of a solution to these
matters.

The Detention of Pinochet in London: Initial Reactions in Chile

Augusto Pinochet traveled to London on an official passport extended by the Frei

government. Purportedly he was on an official mission although this did not meet the formal
requirements established by the Convention on Special Missions, affording immunity to
special envoys.33

Soon after the news of Pinochet's arrest in London, President Eduardo Frei issued a statement
claiming that he enjoyed diplomatic immunity and asserting that his detention was in
violation of Chilean sovereignty, as only Chile's courts have jurisdiction over crimes
committed in the country's territory. Both statements were incorrect. The second one ignored
provisions in Chilean law (in particular, the UN Convention Against Torture, which had been
ratified by Chile) that allow for various forms of extra-territorial jurisdiction.
The Armed Forces and the right wing parties were pleased by the stance taken by President
Frei. In turn, many politicians within the ruling coalition contested the position he adopted
and the restricted view of sovereignty being voiced by his government. Among the general
public, opinions were divided. Some protested that Chile was being treated by Spain as if it
were still its colony. Others took heart that Pinochet was being called to account before any
court. The debate was loud and acrimonious and it was feared that the old impassioned
political polarizations of Chile's past could be revived. In parallel, more and more criminal
suits were being brought against Pinochet.34 Appeals Court Judge Juan Guzmán was in
charge of investigating these complaints.

60
The Frei government's decision to give Pinochet a special passport revealed that it had failed
to calculate the political risks of such a move. It was well known that Spanish Judge Baltazar
Garzón had initiated an investigation. Also, from a technical standpoint, the UK authorities
were never notified of Pinochet's supposed official mission and therefore he was not entitled
to diplomatic immunity. But the fact that Chile had officially issued the passport compelled it
to make Pinochet's plight in London a matter of State.35 In this manner, the Frei government
appeared to be actively endorsing Pinochet's impunity, rather than tolerating a de facto
situation Frei could not change, as President Aylwin did with regard to the inherited
restrictions he had to face. In fairness, President Frei claimed that he did not seek impunity
but rather to assert the prerogatives of the Chilean courts. At any rate, the narrow view of
international law his government ended up advocating put it at odds with the position taken
by the international human rights community.

In the first months of 1999, the initial impassioned reactions Pinochet's detention provoked in
Chile, tended to subside. Soon it became apparent that the continued presence of Pinochet as
head of the Army had not allowed a new generation of the military to come forth. The Armed
Forces were now led by men who had barely initiated their careers at the time of the 1973
coup. The emergence of this new generation did not mean that the institutional continuity of
the Armed Forces was broken. Neither did it mean that they reneged from the political role
the Armed Forces had played, or from the figure of Pinochet who, more than anyone else,
symbolized that political past. Yet, the Armed Forces were redefining their mission to bring it
more in line with the professional role the military is supposed to play in a democratic society.
To that end, it was essential that the Armed Forces become an integral part of the institutions
of democracy and that they be accepted and respected by the country's citizenry. This was
seen as an inherent component of a modern conception of national security.

In this respect, the new commanders of the Armed Forces could not help noticing that
international human rights law and activism had been steadily expanding. The Chilean
judiciary, which was also experiencing a generational renovation, was slowly but perceptibly
absorbing some of the new developments in human rights law. The unresolved human rights
issues would simply not go away. It was also evident that it was untenable for the Armed
Forces to keep refusing to acknowledge what everybody knew -- that during the military
regime, systematic human rights violations were committed. In particular, the tragedy of the
disappeared and the continuing uncertainty suffered by their relatives, could no longer be
ignored. To make a serious effort to solve that situation was not only a moral imperative. It
was a political necessity.

In the first month of 1999, Admiral Jorge Arancibia, the head of the Chilean Navy, made
public statements to the effect that there was a moral duty to try and find the truth about the
disappeared. The political right wing was also undergoing a generational change of sorts.
Similar voices were heard from the leaders of UDI (Unión Democrática Independiente) and
RN (Renovación Nacional), the parties which represent the political sectors that supported the
Pinochet regime.

61
Given this new climate, the Chilean government and the opposition parties decided to explore
the possibility of agreeing on effective measures to find out the truth about the disappeared
and to recover their remains, whenever possible. Following discrete talks, by July of 1999 it
was apparent that an agreement was possible. President Frei demurred. In August, his
Minister of Defense, Edmundo Pérez Yoma, took the initiative and made public a new
proposal: to establish a Mesa de Diálogo - a series of round table discussions on how to
address the problem of the disappeared - with the participation of human rights lawyers and
the military.

The Mesa de Diálogo - Round Table Discussions on Human Rights

The initiative of Minister Pérez Yoma to establish a Mesa de Diálogo on human rights
immediately captured the attention of Chilean public opinion. The organization which
represents most of the relatives of the disappeared publicly opposed the idea, claiming that it
was part of a design to influence the course of the Pinochet case in London and to curb the
upsurge of diligence shown by the Chilean judiciary. The Communist Party also voiced its
opposition as did several well known human rights lawyers. However, other prominent
human rights lawyers agreed to participate in the Mesa de Diálogo.

The Mesa de Diálogo was officially established on August 21, 1999,36 and concluded its work
on June 15, 2000. During its nine months of activities it met 22 times. In addition there were
many drafting group meetings. The Mesa de Diálogo's activities and statements received
ample media coverage. The very fact of engaging in a face to face dialogue for countless
hours helped to create a climate of understanding among parties that had never talked to each
other and that symbolized quite opposite positions.

After several initial meetings devoted to general statements, it was agreed that the Mesa de
Diálogo would address two main points: To propose measures to establish the whereabouts
and fate of the disappeared and to formulate an acknowledgment of the responsibilities borne
by different sectors of the Chilean society for past wrongdoings. This would include an
acknowledgment of responsibilities for human rights violations committed during the military
regime and for the climate of political violence during the time of the Allende government
(1970-1973); it was stressed that these were separate responsibilities that did not cancel each
other. The issue of Pinochet's detention in London was studiously left aside. Strange as it
may seem, his name was barely mentioned during the nine months of the Mesa de Diálogo's
life.

Another major issue was left aside. The military worried that the prevailing judicial
interpretation that disappearances should be treated as abductions unless proven otherwise,
would lead to endless legal proceedings, implicating many military men, both retired and on
active duty. To this, the human rights lawyers responded that the judicial investigations
would not go on forever if the truth about the disappeared people was found. The courts
could then freely decide - having been legally established that the victims had been killed -

62
whether or not the Amnesty Law was applicable. Either way, the judicial proceedings would
come to a close.

For the human rights lawyers, the 1978 Amnesty Law was illegitimate in its origin; it
involved a self-amnesty, it covered crimes against humanity, and it had the effect of
preventing the disclosure of the truth. For the military, it was a measure designed to pacify
the country and should be complied with. They pointed out that opponents of the military
regime who were convicted of committing crimes, had been either amnestied or pardoned
long ago.37 After some discussion it was clear that there could be no accord on this issue.
While some would have liked to see the Amnesty Law reaffirmed, others wished that it could
be declared inapplicable to human rights violations. It was agreed that the matter be left to the
courts.

Clarifying the fate of the disappeared was also largely a judicial matter. The work of the
Mesa de Diálogo was to propose measures which could improve the chances of the judicial
investigations' success. Two main options were discussed. One was a recommendation
already advanced by the National Truth and Reconciliation Commission in its 1991 report: a
law should be passed declaring that anyone who had any knowledge about the fate or
whereabouts of disappeared persons was under a legal obligation to communicate it to the
proper authorities, under penalty of law. In exchange, they would have immunity from
prosecution, otherwise the proposed measure would run contrary to the basic legal principle
which prohibits compelling self-incriminatory statements.

The military stressed that the Armed Forces did not have centralized information about the
disappeared. They said that during the military government, members of their institutions
were assigned to DINA or other such government bodies, but that the military as such had
continued to perform their professional military duties. They added, nevertheless, that they
stood ready to help in the process of reconstituting this information. To that end, they could
approach the military personnel (most of them now retired) who might have relevant
information. They insisted that it was necessary to implement trust-building measures to
persuade their former comrades to disclose information they might have, because there were
no legal means to compel them to do so.
Regarding the second major issue, that is the acknowledgment of historical responsibilities, it
was agreed that on the interpretation of the coup d'etat itself, Chileans would continue to
differ.38 Instead, the key issue was to acknowledge the responsibility for the way the military
authorities exerted their power, in violation of fundamental human rights. The military no
longer denied - as Pinochet did nine years before - the findings of the Truth and
Reconciliation Commission, although they felt that they could not yet formally endorse the
report as a whole. Their main concern was that in formulating an acknowledgment of past
responsibility for human rights violations, the Armed Forces were not blamed as institutions.
This meant that they drew a subtle (and somewhat confusing) line between the military
government and the Armed Forces. Further, although they didn't state so explicitly, they
worried that by acknowledging the military government's human rights responsibilities they
could be seen as admitting Pinochet's guilt while he was still being subject to legal

63
proceedings. In any case, it was clear that it was not the role of the Mesa de Diálogo to
ascribe criminal responsibilities but only to acknowledge the historical, political or moral
responsibilities of different sectors or institutions.

The discussions proceeded through the first months of 2000. By then Ricardo Lagos had
been elected President and was due to be inaugurated on March 11, 2000. In London, Home
Secretary Jack Straw had ordered medical examinations to determine if Pinochet was fit to
stand trial. At the same time, in Chile, more and more criminal suits against Pinochet were
being brought before Judge Juan Guzmán.39 The Mesa de Diálogo was working intensely,
attempting to conclude its deliberations before the new President's inauguration. Draft final
statements were prepared. Few discrepancies remained. An agreement seemed within reach.
Then Augusto Pinochet was released from detention in London. He flew back to Chile where
he landed on March 3, 2000 to a welcoming reception by the Armed Forces and by his
political supporters. He looked fitter than was expected.

His arrival again incensed passions which reverberated in the Mesa de Diálogo. It was not
possible to reach an agreement in the following days. After President Lagos' inauguration, the
Mesa de Diálogo entered a period of relative inactivity. In Chile, the President is
traditionally expected to play a strong leading role and signals were expected at the beginning
of a new administration. In the meantime, Judge Guzmán formally petitioned the Court of
Appeals to lift the senatorial immunity of Augusto Pinochet.40 The Mesa de Diálogo resumed
a more regular schedule of meetings in April 2000. Yet, the parties now seemed further apart
than before the arrival of Pinochet. By late May, the political establishment and the media
had grown impatient. Quick results were expected, lest the Mesa de Diálogo be considered a
failure.

After intervention by President Lagos and following a final and dramatic stretch of meetings,
culminating in the early hours of the morning of June 13, 2000, an agreement was reached
and a final statement was signed. In the section devoted to the acknowledgement of
responsibilities, the most salient paragraph condemns "the grave human rights violations
committed by agents of State organizations during the military government". On the issue of
the disappeared, the Armed Forces and Police "solemnly commit themselves to develop ... all
efforts aiming at obtaining useful information to find the remains of the disappeared prisoners
or to establish the truth about their fate." To this end the Mesa de Diálogo proposed that
legislation be passed imposing the obligation of professional secrecy on those who would
seek or receive the information, so that they could not reveal the source.41 This agreement
fell short of the goal pursued by some members of the Mesa de Diálogo, namely that tougher
measures should be proposed, including legal penalties for those who withheld information.
The Mesa de Diálogo requested the President to evaluate, after six months, the progress made
and asked him to consider additional measures, if necessary, in order to obtain the truth about
the disappeared, including, among such measures, those which were debated by the Mesa de
Diálogo but could not be agreed upon.

64
The agreement was welcomed with relief by Chilean public opinion. Those who were against
the Mesa de Diálogo from the outset, rejected the results. Some of those who supported the
agreement pointed out that the acknowledgment of responsibility could have been more
specific or categorical. Yet, it was clear for the majority of public opinion that this was a
watershed statement. For the first time the Armed Forces as a whole were officially accepting
what the rest of the country knew. Comparisons were made with a similar statement issued
by General Martín Balza, the head of the Argentinean Army, in 1995. The Mesa de Diálogo
statement, if anything, went further inasmuch it was subscribed to by all branches of the
Armed Forces.

The agreement was announced in an impressive public ceremony that included the President
of the Republic, other State authorities, leaders of major political parties, commanders-in-
chief of the Armed Forces and the members of the Mesa de Diálogo. The President sent a bill
to Congress, adopting the recommendation of the Mesa de Diálogo about professional
secrecy. It was swiftly approved.

Pinochet Before the Chilean Courts

Alongside the above developments, the legal battle over Pinochet's senatorial immunity
continued. His defense team argued that before considering the lifting of his immunity, the
court should order medical tests to ascertain if he was fit to stand trial. They stressed that
British Home Secretary Jack Straw had stated that Pinochet was not fit to stand trial
anywhere.42

The issue had undeniable political connotations. Pinochet's supporters felt that if he was first
declared unfit to stand trial, there would be no need for the Court of Appeals to rule on the
lifting of his immunity. Thus, his historical image would not be tainted by a judicial decision
which, although it would not pronounce him guilty, at least it would mean that there was
reasonable cause to proceed against him. Naturally, Pinochet’s accusers expected that such a
symbolic effect was obtained, even if he was subsequently ruled unfit to stand trial.

The Court of Appeals decided against ordering medical tests before ruling on Pinochet's
immunity. On June 5, 2000, it agreed, on a close vote, to lift his immunity. This decision did
not prevent the Mesa de Diálogo from reaching an agreement a week later. On August 8,
2000 the Supreme Court confirmed, by a significant majority, the Court of Appeals' ruling.
This time the majority opinion contained some reasoning which worried the military. It
seemed to indicate that the Amnesty Law could be applied to individuals only after their full
responsibilities had been established, rather than applied once it was clear that the victim was
not abducted but had been killed within the period covered by the Amnesty.

Following the Mesa de Diálogo agreement, different branches of the Armed Forces and the
Police declared publicly that they were preparing themselves to conscientiously fulfill their
commitment to find the truth about the disappeared. However, after the ruling of the Supreme
Court, far more reserved statements were heard from the military. While continuing to assert

65
their commitment, they publicly worried that the new environment was not conducive to
obtain the cooperation of those who may know about the disappeareds’ fates. The main
argument was that the new ruling of the Supreme Court was likely to deter prospective
informers from revealing the truth about the disappeared because they would fear that such
revelations could lead to further investigations about individual responsibilities.

At the time of concluding this article, a judicial decision is pending about the medical tests
Pinochet ought to undergo and the legal conclusions which may be derived from the doctor's
findings. In the first week of January 2001, the Armed Forces and Police are due to report to
the President about the results of their efforts to find out the fate of the disappeared.

The Pinochet saga continues. An Argentinean judge who had been investigating for years the
bomb assassination of General Carlos Prats and his wife, in Buenos Aires on September 30,
1974,43 found that DINA orchestrated the assassination. The public trial of the only person so
far charged with this crime, Chilean DINA operative Enrique Arancibia Clavel, began in
October 2000. At the time of writing this, the Argentinean judiciary formally requested the
extradition of Pinochet, of Manuel Contreras, the former head of DINA, and of several other
Chileans.

Not even Pinochet's accusers expect him to end up serving time in prison. He is 85 years old
and enfeebled. Chilean legal procedures are such that trials may last for years. Many people
in Chile think that the fact that he underwent detention in London and that his immunity was
lifted by the courts, had radically changed the situation of total immunity he enjoyed until
1998. For historical and symbolic purposes, he has already been called to account, albeit late
and not fully.

Another consideration, and certainly not a minor one, is that justice cannot be pursued in
disregard of human rights norms, including those about fair trials. If a court of law finds that
Pinochet is too ill to stand trial and the charges against him are dropped, justice will not have
failed but rather it will have been realized in all its complex dimensions, including
encompassing the rights of the accused person.

Notes

1
The major postwar initiatives regarding international criminal justice were the establishment of the International
Military Tribunal of Nuremberg and the International Military Tribunal for the Far East at Tokyo. The normative
cornerstones of the postwar international humanitarian order were the human rights provision of the UN Charter;
the Universal Declaration of Human Rights; the Convention on the Prevention and Punishment of the Crime of
Genocide, 1948; the Geneva Conventions of 1949; and the Convention Relating to the Status of Refugees,
1951. Later, in 1966, the International Covenant on Economic, Social and Cultural Rights and the International
Covenant on Civil and Political Rights were signed (they entered into force in 1976).

66
2
Up to that time of World War II, international law had incorporated what we now call human rights norms only
in specific fields, such as labor rights and minority rights. International humanitarian law, which was much older
- its first instrument dates back to 1864 - received a major new impetus with the Geneva Conventions of 1949.
International refugee law was virtually nonexistent before the end of World War II.
3
The European Convention on Human Rights was signed in 1950; the American Declaration of Human Rights
was proclaimed in 1948 and the American Convention of Human Rights was signed in 1969.
4
Established by UN Security Council Resolution 808 of 22 February 1993.
5
Established by UN Security Council Resolution 955 of 1994.
6
All four Geneva Conventions of 1949 contain an identical norm (Art. 49 of Convention I; Art. 50 of
Convention II; Art. 129 of Convention III; Art. 146 of Convention IV) which establishes an obligation to search
for and bring to trial persons alleged to have committed or ordered to be committed grave breaches of the
Conventions, regardless of their nationality. Other post-war instruments and resolutions establish the non-
applicability of statutory limitations to certain crimes, or the obligations of States to cooperate in preventing and
punishing such crimes. Among them: the Convention on the Prevention and Punishment of Genocide of 1948;
the Convention on the non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity
of 1968; and UN Resolution 3074 (XXVIII), of 3 December 1973, which establishes the Principles of
International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes
and Crimes Against Humanity.
7
International Convention Against the Taking of Hostages, adopted in New York on December 17, 1979, Art. 5.
8
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of December
10, 1984, Art. 5.
9
Inter-American Convention Against Corruption, of March 29, 1996, Art. V.
10
I am grateful to Reed Brody from Human Rights Watch and Mona Rishmawi from the International
Commission of Jurists, who have forwarded to me copies of their files on the cases that are mentioned in this
section.
11
Amnesty International, News Release, 8 December 1999. AI Index: AFR 53/99.
12
The court ruled that Senegal had no jurisdiction to pursue charges that Habré was guilty of massive torture
during his rule in Chad because the crimes were not committed in Senegal.
13
Years ago Amnesty International discussed a proposal to create a separate nongovernmental organization
specifically devoted to assist in the international pursuit of criminal justice. The idea was put forward by Menno
Kaminga, a Dutch professor of International Law who had served in high level positions within Amnesty
International.
14
This statement was made during a lecture Judge Richard Goldstone gave at New York University's Law
School, on October 18, 1999.
15
In what follows I draw from the opinions cited in the article "Dictators in the Dock", by David Bosco,
published in The American Prospect, August 14, 2000.
16
As stated by John Bolton, an Assistant Secretary of State in the Bush administration, quoted by Bosco, ibid.
17
ibid.
18
Decree Law 527 of June 26, 1974, established these separate roles for Pinochet and the Junta.
19
This is clearly illustrated by two facts:
(a) On April 19, 1978, the military Junta issued an Amnesty Law covering the human rights violations committed
since the time of the 1973 coup d'etat. No second amnesty was passed in the twelve remaining years of military
rule. Pinochet is reported to have sought a second amnesty law but to have encountered the opposition of fellow
commanders-in-chief who felt that in the years since the 1978 amnesty, their respective institutions had nothing
to reproach themselves and did not want to appear as morally incriminating themselves by seeking a new
impunity measure.
(b) On October 5, 1988, a yes-no plebiscite was held to decide on the continued rule of Augusto Pinochet for
another 8 years. He lost, but late into that day's night, his spokesman was still issuing misleading interim reports
about the vote counting. Following an after-midnight meeting of Pinochet with the Junta members, the
government finally conceded its defeat. In October of 2000, the Chilean television broadcast an interview with
former Air Force General Fernando Matthei, one of the participants in that meeting. General Matthei confirmed

67
what had been widely suspected up to that time: that Pinochet had refused to accept the results and had wanted to
pull out the troops but the other commanders-in-chief did not support him.
See the report of the Chilean National Commission on Truth and Reconciliation, 2 Volumes, University of Notre
Dame Press, Notre Dame, Indiana, 1993.
21
The report of the National Commission on Truth and Reconciliation established that he committed suicide.
22
Neighboring South American countries such as Argentina and Uruguay were ruled in the 70s and early 80 by
similarly minded military regimes which exhibited, like Chile, a dismal human rights record. None of their rules,
however, attained the symbolic notoriety of Pinochet, perhaps because in those countries the military regimes
were governed by successive juntas, whereas Pinochet remained in power all along. Other factors may account
for the fact that Pinochet's image became the trademark of the ultimate dictator. Among them, and in addition to
the international sympathy towards the deposed Allende government and the attack of the palace of government,
one may count the detention of thousands of political prisoners in football stadiums, the public burning of books
and DINA's terrorist assassinations in foreign countries.
23
Orlando Letelier, a leading opponent of the Chilean military regime, had been a cabinet member in the Allende
government. The bomb planted in his car also killed Ronnie Moffit, an American citizen.
24
The text of the Constitution was approved by a plebiscite on September 11, 1980. The conditions under which
the vote was conducted did not meet the minimum standards for fair elections.
25
According to the amended Constitution the subsequent presidential administrations would last six years.
26
The 1989 constitutional amendments were ratified by a plebiscite.
27
See Transitional Justice, the three-volume compilation of theoretical writings, case studies and legislation from
different countries, edited by Neil Kritz. (United States Institute of Peace, Washington D.C., 1995).
28
Law Nº 19.123 of 8 February 1992.
29
Pinochet even responded to the written inquiries of the Truth and Reconciliation Commission (although in a
purely perfunctory manner) in order to appear as complying with the directives given by President Aylwin.
30
These trials included the 1976 assassination of Orlando Letelier in Washington, D.C., which the Pinochet
government expressly exempted from the 1978 Amnesty Law in order not to antagonize the United States.
31
The expression refers to a bill which became known as Ley de Punto Final (Full Stop Law), passed by the
Argentinean Congress at the behest of President Alfonsín, on December 24, 1986 (Law Nº 23.492). Since that
time, any measure which may be interpreted as putting an end to trials or to the possibility of initiating criminal
proceedings concerning human rights violations, is considered unacceptable by most domestic and international
human rights organizations.
32
In Chilean law, kidnapping is a continuing crime, that is, it is being committed as long as the victim is not
released or killed.
33
The reasons why Pinochet received this official passport are obscure. While he was Commander-in-Chief of
the Army, he was legally entitled to an official passport and traveled abroad carrying such document. Probably
the authorities extended this type of passport to him out of sheer inertia, since he had received it several times
before.
34
Chilean law has only recently introduced the institution of public prosecutor. A new code of criminal
procedure will be enacted gradually. In the meantime, the old system is in force whereby criminal proceedings
may be initiated, ex officio, by a judge or - what is far more frequent - it may be initiated by a private party under
the modality called "querella", which allows the "querellante" to act as a sort of plaintiff.
35
Probably it would have been difficult anyway for the Chilean government to take a back seat, given the
political reverberations of the case in Chile.
36
Participants in the Mesa de Diálogo included the Minister of Defense and some of his closest aides; five
human rights lawyers; four top level military officials designated, respectively, by the commanders-in-chief of
the Army, Navy, Air Force and the Chilean Police (Carabineros); representatives of the Catholic Church, a
coalition of Protestant churches, the Free Masons and B'nai B'rith; and some prestigious intellectuals, historians
and scientists.
37
The 1978 Amnesty Law effectively favored, in theory, people who had been convicted by military courts.
However, the trials were grossly unfair and many of them were sent to exile anyway. In 1990, after Chile
returned to democratic rule, President Aylwin set about pardoning or commuting the penalty imposed on

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opponents of the military regime who had been convicted after 1978. Many of the people favored by this pardon
had served several years in prison. They received unfair trials. Most of them were tortured.
38
The Truth Commission report had reached a similar conclusion in 1991, namely that some Chileans would
continue to consider the coup an unacceptable violent interruption of the democratic process, while others would
deem it legitimate, in view of a political situation which was leading to civil war.
39
At the time of writing this article, in October of 2000, Judge Guzmán has received 175 "querellas" that is,
criminal suits brought against Pinochet by private parties.
40
Even before the time of the military government the Chilean Constitution establishes that members of
Congress enjoy immunity from prosecution. This immunity may be lifted by the Court of Appeals, if it finds that
there are reasonable grounds to proceed against a senator or deputy. Such decisions may be appealed to the
Supreme Court. In theory, congressional immunity, common to many countries, is meant to prevent elected
representatives from being dragged to the courts on frivolous grounds.
41
This did not provide immunity to the informers if the courts obtained, through other means, incriminating
evidence.
42
The Chilean legal standards to determine if a person is fit to stand trial are a matter of controversy. Pinochet's
defense team has argued for the most progressive interpretation of international human rights law, which may
seem ironic but it is an understandable legal strategy.
43
General Prats was Pinochet's predecessor as commander-in-chief of the Army. He supported the Allende
government and resigned his post a few weeks before the 1973 coup d'etat. After the coup, he exiled himself in
Buenos Aires.

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