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May 2000 The
Pinochet Prosecution: Gains, Losses, Lessons |
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Even though Britain ultimately refused to extradite Augusto Pinochet to Spain to stand trial for torture and other atrocities committed during his dictatorship, the proceedings have already had quantifiable effects for international human rights law. As the case made its way from Spain to the UK, the allegations (originally genocide, terrorism, and torture) actually changed because of differences in the Spanish and British criminal codes and the ways in which each country incorporates international laws, treaties, and conventions. The international judicial trail is in itself illuminating and may hold clues about how transnational human rights cases are likely to unfold in the future. I The proceedings against Augusto Pinochet in Madrid and London mark a pivotal moment in international human rights law. Longstanding assumptions about sovereignty, impunity, and jurisdiction have been re-arranged in a new calculus that promises to make the world less hospitable to abusive heads of state and former heads of state. One of the chief ironies of the Pinochet prosecution is that it was instigated by Spain — which for the last century had one of the most anachronistic and provincial legal cultures in all of Europe. Its domestic legislation went unrevised from 1870 until the early 1970s. Yet under Franco the country developed some unexpectedly helpful laws — originally directed against Basque separatists — which enable it to reach out internationally in order to prosecute acts of terrorism. In 1973 (two years before Franco died), Spain made the extraordinarily bold step to codify genocide as a crime in domestic law, specifically in Article 607 of the Penal Code. (It had ratified the UN Convention on the Prevention and Punishment of the Crime of Genocide in 1968.) Upon the death of Franco, the country incorporated most of the remaining major international treaties and conventions — "in one fell swoop," as I was told by one Spanish judge. Almost overnight, Spain acquired a legal system that was nothing short of avant-garde. In the mid-1980s, jurisdiction for universal crimes was inscribed into the Spanish Penal Code and other bodies of domestic law. The Spanish Constitution makes explicit (in Article 96) that "validly enacted international treaties, once officially published in Spain, shall form part of the internal legal order." [emphasis added] A remarkable feature of the Pinochet prosecution is that Spain's jurisdiction was established primarily through domestic, rather than international, laws or conventions. Yet this host of extraordinarily modern legal instruments had mostly lain fallow. In fact, until the explosion of the Pinochet case, many Spanish jurists remained unclear as to their substance, scope, and significance. For example, in the arguments between Judge Baltasar Garzón and his opponents in the Audiencia Nacional [the Federal Court empowered to deal with international crimes], it was asserted that because Pinochet had been amnestied in Chile (a pardon that he himself had written into the Constitution in 1978), he could not now be prosecuted in Spain. Garzón prevailed in his rebuttal since, according to Spanish law, no amnesty or pardon can be given where there has not previously been a trial culminating in conviction or acquittal. He also cited the United Nations and the OAS Inter-American Commission on Human Rights, which ruled years before that domestic amnesties do not apply to universal crimes. Experts close to Garzón affirm that, in winning over his conservative opponents in Madrid, the Judge's strategy was to privilege domestic statutes, and use international treaties, conventions, and theories as secondary support. On October 16, 1998, when Spanish investigating magistrate Baltasar Garzón issued his original extradition order for Augusto Pinochet, the action seemed to many like a bolt from the blue. But in truth it was the logical result of two years of painstaking investigation in Spain into both the Argentine and Chilean dictatorships (1976-83 and 1973-91, respectively). If Garzón had not previously been investigating Argentina, he never would have gotten to Pinochet. And neither would anyone else. By October 1998, the Chilean case had been dormant for about five months because the investigating magistrate (Manual García Castellon) had buckled under pressure from political, military, and business factions. Within hours of learning that Pinochet was in England, Garzón called for his extradition. The reason he could move so quickly was that he used his Argentine case as a "template," transferring charges, strategies, and evidence from one prosecution to the other. Garzón's direct link to Pinochet was Operation Condor, the code name for what Chile, Argentina, Paraguay, Uruguay, and Bolivia jointly established in 1973-74 as an "Interpol for subversives." Since 1996, Garzón had gathered mountains of incriminating evidence on Condor, including documents from the FBI, CIA, and DINA (Chilean secret police). Operation Condor was headquartered in Santiago, and worked closely with the DINA, which reported directly to Pinochet. According to a 1976 FBI cable sent from Buenos Aires, the group's operatives were "to travel anywhere in the world...to assassinate so-called [leftists, communists, and Marxists]." Judge Garzón's original extradition warrant called for the general to stand trial for genocide, terrorism, and torture: Article 23.4 of the 1985 Ley Orgánica del Poder Judicial, or the Organic Law of the Judicial Branch, specifically grants Spain jurisdiction for these crimes. Garzón further charged Pinochet with "crimes against humanity," as defined by the 1946 Nuremberg Principles. These "universal crimes against basic humane standards" (which include systematized torture, killings, torture, disappearance, etc.) have no statute of limitation and can be tried at any time in any nation. Garzón also cited the major international human-rights treaties and conventions to which Chile, Spain, and the UK are all signatories. On native ground, Garzón could establish transnational jurisdiction by relying primarily on domestic law. The British legal system works differently, and this changed the case as it unfolded in London. II It was the job of the Crown Prosecution Service to argue the Spanish case within the parameters of British law. And some features of Garzón's case literally got lost in translation. Upon being arrested, Pinochet immediately protested that Chile's sovereignty was being violated, and that as former head of state, he could not be prosecuted. His lawyers cited the State Immunity Act of 1978, and at first the British High Court decided in his favor. That ruling — handed down on October 28, 1998--was overturned on appeal. Setting crucially important precedent, the Law Lords ruled on November 25, 1998 that the severity of the charges against Pinochet trumped the State Immunity Act. Now the major task was to determine which charges were "transferable" from Spain to Britain. The key document here was the British Extradition Act of 1989; because this law does not provide for genocide or crimes against humanity, the Lords ruled, on December 9, 1998, that those charges could not be sustained. However, attempted murder, conspiracy to murder, torture, conspiracy to torture, hostage-taking, and conspiracy to take hostages were all ruled in. The charge that most clearly galled the Law Lords was torture, and this quickly became the focus of the proceedings. The 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment became a key weapon in the arsenal of the prosecution. But because Britain did not ratify the Convention until 1988, it was ruled that no acts of torture committed before that date would be admissible. The president of the court, Lord Browne-Wilkinson, set the tone early on: "If torture is not an international crime, then what is?" For the first time in a British court, the UN Convention Against Torture was not only used, but shown to have "teeth." Through diplomatic, political, and journalistic channels, Chile argued that Spain and the UK were "interfering with [its] transition to democracy," that salt was being thrown on "old wounds." Conservatives in Chile and Britain called the proceedings "a judicial kidnap." In the early months of the proceedings, Santiago insisted that the 1978 Amnesty for Pinochet was crucial to the peaceful strengthening of democratic institutions. Later, Chile abandoned this line, choosing to dangle the possibility that Pinochet could--and should--be tried at home. Made by supporters of the ex-dictator, the argument seemed disingenuous, especially in light of the complicated welter of legal immunities Pinochet himself had put in place. As the century turned, it was clear that Pinochet's legal defenses were running out. Citing frail and deteriorating health, his lawyers asked that the ex-dictator be released. As evidence, they provided a report from a medical exam--done without the presence of physicians called by the prosecution and without the appropriate neurological, gerontological, and psychiatric specialists. No specific details were provided at this point, nor was the prosecution provided with a copy of the report. Nonetheless British Foreign Minister Jack Straw ruled to release Pinochet revealing that, according to the exam, the defendant had suffered two small strokes and would be unable to adequately manage his defense. The prosecution made a predictably vigorous appeal, asking that it also be allowed to examine the defendant. In an extraordinary action, the president of the Ethics Committee of the British Medical Association also lodged a protest, arguing that "medical confidentiality" was being mis-used. As a defendant, Pinochet's medical condition was of "forensic importance," with the public issues far outweighing concerns for personal privacy. Adding to the controversy was public disagreement among the examining physicians as to Pinochet's condition and prognosis. The secrecy surrounding the exam itself, and the ambiguity of the findings, tainted the proceedings, which appeared simply to collapse under political pressure. On March 8, 2000, Augusto Pinochet flew home to Chile. While in London, he was always photographed sitting weakly in his wheelchair; on the tarmac in Santiago, he spontaneously rose to his feet, and walked to his supporters, without even using his cane. III
Yet the gains from this aborted trial outweigh the losses.
Marguerite Feitlowitz is the author of A LEXICON OF TERROR: Argentina and the Legacies of Torture (Oxford University Press), a 1998 New York Times Notable Book and a Finalist for the PEN New England/Winship Award. She has had two Fulbrights to Argentina, most recently as a Senior Scholar in 1999 when she taught her book and lectured widely around the country. She was a Mary Ingraham Bunting Fellow in Nonfiction at Radcliffe in 1992-93, and taught at Harvard from 1994-1999.
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