25 Years of Pursuing Pinochet

01 September 2001
Article

The detention and the subsequent legal proceedings against Pinochet represented an enormous victory for human rights and set an important precedent for international law.

Since the assassination of Orlando Letelier and Ronni Moffitt in 1976, IPS and our allies in Washington and around the world have worked to bring Pinochet to justice. The tenacious few who insisted that Pinochet be held accountable for this assassination were motivated not only by the desire to see justice done for their friends and colleagues, but also by the conviction that doing so would represent a victory for the thousands of others who were murdered, tortured, or disappeared during Pinochet's bloody military dictatorship.

Even those who had dared to dream that Pinochet might one day see the inside of a courtroom were stunned by the general's arrest in October 1998. A Spanish judge had charged Pinochet with genocide, torture and terrorism, arguing that international law allows these crimes to be tried in any court in the world. Scotland Yard acted on his extradition request, executing the warrant against Pinochet as he lay in a hospital bed recovering from back surgery.

Spending the next sixteen months under house arrest in London was the last thing Pinochet had expected from this visit. When he arrived in the United Kingdom, the general was on top of the world. Although a plebiscite had forced him to relinquish the Presidency in 1990, he had remained on as Commander-in-Chief of the Army until 1998, and from there moved directly into a non-elected lifetime seat in the Chilean Senate. This position afforded him special immunity from prosecution on top of the blanket amnesty decreed by his own junta in 1978.

The detention and the subsequent legal proceedings against Pinochet represented an enormous victory for human rights and set an important precedent for international law. The British Courts acknowledged that Pinochet did not enjoy immunity as a former head of state for certain egregious crimes, and a British magistrate further ruled that there was enough evidence to justify extradition. Finally, however, under increasing political pressure, British Home Secretary Jack Straw released Pinochet on "humanitarian grounds".

Chilean human rights groups greeted Pinochet in Santiago with cries of "lo sueltan por demente, no por innocente"- "they're releasing him because he's crazy, not because he's innocent". The general's detention had revitalized the public movement for justice and catalyzed political and legal changes in Chile, allowing for historic proceedings against human rights violators in the Chilean courts. Shortly after Pinochet's return, the Chilean Supreme Court stripped Pinochet of his parliamentary immunity for prosecution. A few months later, Chilean Judge Juan Guzmán indicted him and placed him under house arrest. Pinochet, once seemingly invincible, was now reduced to making highly publicized visits to the hospital for every twinge and toothache in an attempt to win sympathy from the public, politicians and judges. A bench of the Santiago Appeals Court eventually acquiesced, deciding that the general was mentally and physically unfit to stand trial.

While it appears that Pinochet may have finally escaped prosecution in Chile, proceedings in a number of countries around the world continue. Courts in Spain, Italy, France, Belgium and Germany have ongoing investigations into Pinochet's crimes. Argentina has recently requested Pinochet's extradition both for the assassination of General Carlos Prats and for the former dictator's role in Operation Condor, the campaign of terror that united South American security forces to exchange intelligence and carry out joint operations, including international assassinations.

Pinochet might also face a legal challenge from the country that helped bring him to power - the United States. After the arrest in London, public pressure led the US Justice Department to reactivate its investigation into the Letelier-Moffitt assassination, this time focusing on Pinochet. Two former FBI agents and a former Assistant US Attorney insist that it is "inconceivable" that the crime was carried out without Pinochet's authorization. Although FBI investigators traveled to Chile in 2000 to gather evidence and to observe a Chilean Supreme Court interrogation of more than 40 witnesses, the Justice Department has yet to issue an indictment. Justice Department officials insist, however, that the investigation has not been closed.

The surprising success of the Pinochet case has created a ripple effect, encouraging courts around the world to prosecute other dictators for their crimes. Guatemalan, Chadian, Haitian, Israeli, and US officials are among those under increasing legal scrutiny for their involvement in human rights violations and crimes against humanity. Not even the Parisian Hotel Ritz could protect Henry Kissinger from a summons requesting his testimony in the disappearance of French citizens in Chile. And the road ahead looks no smoother: Argentinean and Chilean courts have also decided to question Kissinger about the US role in Operation Condor and the disappearance of American journalist Charles Horman in Chile.

The Lessons

After a quarter century of lawsuits, benefit concerts, congressional resolutions, legal writs, art exhibits, declassifications, op-eds, protests, petitions, memorial services, award programs, boycotts, and books, there has finally been some measure of justice for the victims of Augusto Pinochet and his henchmen.

On this special anniversary of the Letelier-Moffitt murders and after the remarkable developments in the case against Pinochet, we have compiled some of the lessons from the ongoing efforts to hold Pinochet and other Chilean rights violators accountable for their crimes. The following observations draw from conversations with friends and allies as well as two special legal scholars conferences co-hosted by IPS and the American University Washington College of Law and a legal scholars roundtable hosted by the Transnational Institute in Amsterdam.

Persistence Pays Off

The legal case against Pinochet did not begin with his arrest in London. It resulted instead from decades of persistence and principled commitment: 'Ever since the coup and with renewed vigor since the Letelier-Moffitt assassination, the Chilean left and the international human rights community have been pressing the issue of accountability. These cases don't arise because a group of academics think that theoretically it's a good idea to strengthen democracy; they arise because of long-term, deep-rooted concerns of a community, stresses Migael Tigar, a US lawyer for the Letelier-Moffitt families.

The armor of impunity surrounding the Chilean military regime first began to crack as a result of the massive FBI investigation into the Letelier-Moffitt murders in the late 1970s. As with other challenges to the Chilean regime, the legal community and much of the public expected the US legal efforts to fail. And yet, according to Samuel Buffone, who also represented the Letelier and Moffitt families in the US, 'The legacy of the Letelier-Moffitt case is that the laughing stock of international lawyers have turned into accepted principles of international law in a relatively short period of time.'

The Letelier-Moffitt investigation uncovered overwhelming evidence of the murderous crimes committed by the Chilean secret police at home and abroad and resulted in the indictment of three of the highest-level Chilean secret police officials, including secret police chief Manuel Contreras, secret police agent Pedro Espinoza, and five Cuban-American accomplices. Six of the assassins were convicted and served time in US jails. It took 19 years, but the US prosecutors got the last laugh when a Chilean court finally convicted and imprisoned Contreras and Espinoza in 1995.

Early efforts to seek redress for other human rights violations in the Chilean courts also seemed fruitless for many years. However, the documentation amassed by Chilean human rights groups during the 17-year dictatorship and the 1991 Rettig Report, detailing human rights abuses under the military regime, ultimately served as invaluable evidence in the recent legal cases against Pinochet.

The Opportunity of Historic Openings

The prosecution of Pinochet has been technically possible for decades, and particularly since the 1945 Nuremberg Trials: 'What we had was 50 years of a lost opportunity. Though scholars have written about the Nuremberg principles and despite the fact that they have surfaced, to a degree, during situations like Vietnam, their full weight has never truly been brought to bear - until the Pinochet case. His detention in London created a space in which public officials were forced to acknowledge that certain activities such as torture are illegitimate, both in one's own country and internationally,' explains Marcus Raskin, IPS co-founder.

But why did the case succeed now? In part, because the case came shortly after the denouement of the Cold War. 'This historic thaw cost Pinochet the support of the US and gave clearly established principles of international law a chance to triumph over some strategic, military, and diplomatic priorities of the Cold War,' contends Juan Garcés, the attorney who spearheaded the case against Pinochet in Spain. The advent of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, as well as the push for a permanent International Criminal Court further set the stage for accountability.

It took the courage and dedication of individuals, though, to take advantage of this historic opportunity. In 1996, the Spanish Union of Public Prosecutors filed a case on behalf of Spanish victims of the Argentine Dirty War, and shortly thereafter, Juan Garcés added a criminal complaint against Pinochet and other military officers on behalf of thousands of Chileans who had suffered torture or who were seeking justice for their murdered or disappeared loved ones. Spanish Judge Baltasar Garzón's willingness to issue the arrest warrant when notified that Pinochet was in London and his commitment from that point forward were also crucial to development of the case. This powerful stand by the Spanish lawyers and judges served as an example for others, notably Judge Juan Guzmán in Chile.

As José Miguel Vivanco, director of Americas Watch/Human Rights Watch emphasizes, 'you wouldn't have a case against Pinochet without ... specific individuals who took the lead, crossed the line, faced serious political risks, and enforced something that has been theoretically possible for years.'

Creating the Political Will for Prosecution

The groups and individuals in Chile and around the world who were committed to pursuing justice and keeping memory alive quickly re-grouped when Pinochet was arrested in London. Their insistent and effective activism helped propel a case that many of the involved governments would have liked to see disappear. 'The law means nothing without popular support for its application and enforcement,' declares Juan Garcés. Henry Kissinger reinforces the point in his latest book, writing that universal jurisdiction 'has spread with extraordinary speed ... partly because of the intimidating passion of its advocates.'

From the time of the Letelier-Moffitt murders, IPS worked with an international coalition of groups and individuals to keep the story of Pinochet's terror and the demands for justice in the public eye. Letter writing campaigns, memorial services, and human rights awards organized by Orlando's widow and IPS Fellow Isabel Letelier complemented the documentation and advocacy work of Chilean human rights groups and other international solidarity efforts. Articles and op-eds in leading magazines and newspapers as well as books such as 'Assassination on Embassy Row' by IPS Fellow Saul Landau and journalist John Dinges also helped keep the case alive.

The Spanish case against Pinochet also benefited from public efforts to generate the political will for prosecution. In 1997, at the urging of human rights advocates and lawyers, the European Parliament and the Spanish Chamber of Deputies both passed unanimous resolutions in support of the Spanish investigation into Pinochet's crimes. Actions such as these helped to legitimize the case in the eyes of the public and government officials. Immediately after the arrest, public mobilization efforts sprung up around the world. The European, Spanish and French Parliaments continued to defend the Spanish court's attempt to extradite Pinochet. The Chilean 'Picket of London' staged daily demonstrations outside the British courts and Pinochet's temporary home in London while Chilean victims' groups returned to the streets of Santiago to air their ongoing demand for justice. The US, NGOs, and human rights activists convinced nearly 40 US Representatives to join them in sending a stream of letters asking for Administration officials to support the Spanish case, reopen the Letelier-Moffitt investigation in the US, and declassify documents on human rights abuses in Chile.

The importance of public opinion and political will in high profile cases cannot be ignored by those attempting to 'Pinochet' dictators at home and abroad. Pascale Kambale, a member of the legal team that brought a case against the former dictator of Chad in Senegal, admits that lack of public support created problems for their case: 'While we spent our time researching international law and searching for evidence, the lawyers for [former Chadian dictator] Hissène Habré were very busy persuading the public that their client was innocent. We will probably need to be more careful trying to win the case before the court of public opinion before we build the case before the court of justice.'

The More the Merrier

Diverse legal tactics in multiple jurisdictions can complement, rather than detract from each other. After Pinochet was arrested in London, courts in five other countries joined the Spanish Criminal Court in requesting the General's extradition. Shortly thereafter, the US government announced the reactivation of the Letelier-Moffitt case. In addition to serving as legal building blocks for future prosecutions, these cases contributed to the international image of Pinochet as a criminal and terrorist and lent credibility to the Spanish case. They later sent a clear message to the Chilean government that other countries were prepared to try Pinochet if the Chilean courts were unwilling or unable.

Although the recent Chilean legal proceedings have focused on the 'Caravan of Death' case, the avalanche of Chilean lawsuits filed against Pinochet since 1998 have served as a constant reminder that victims' demands for justice cannot be simply swept under the rug.

In the US, civil suits can also complement criminal investigations. In 1978, the families of Letelier and Moffitt filed a civil suit against the Chilean government, the first ever brought against a foreign nation for wrongful death. According to lawyer Samuel Buffone, this litigation was invaluable: 'By filing a civil suit, we got discovery rights, we could conduct a proper investigation, and could demand that the government give us documents. By running our own public investigation, we were also able to keep pressure on the FBI to make sure they did the same with the criminal case.'

Peter Weiss, Vice President of the Center for Constitutional Rights, also stresses the importance of civil suits in combating human rights violations, describing them as 'the most democratic, popular, and progressive way for human rights to seek justice without having to rely on the politicizing of human rights.'

Judicial Conviction Isn't the Only Measure of Justice

Just as the case against Augusto Pinochet did not begin with his arrest in London, it did not fail when the British government refused to extradite him to Spain.

Professor Richard Wilson, Director of the Human Rights Law Clinic at American University Washington College of Law, worked closely with the Spanish legal team in 1996, observes: 'This litigation had clear goals when it started and they did not necessarily include the arrest and conviction of Augusto Pinochet. This was an opportunity for the victims to tell their stories to the world. The stories could be told to a press that would listen and would be published in a protected environment in which reprisals would be less likely than at home. These stories would lead to a coherent, authoritative account of responsibility; names would be named and however the legal formalities might fall short, the world would know who had committed these wrongs and against whom. This authoritative account would apply new and undeveloped international criminal law norms that would create precedents that could be used by other victims, whether conviction occurred or not.'

Although Pinochet may never be convicted for a single crime, the cases against him have left an unforgettable public legacy. In-depth press coverage of the legal proceedings educated the world about Pinochet's crimes and international law, allowing the public to judge Pinochet's responsibility for human rights atrocities, even when the courts could not. 'The case has ultimately changed the world's perception of what is possible,' claims Hastings College of Law Professor Naomi Roht-Arriaza, opening the way for greater accountability in the future.

The case also gave human rights advocates the political space to lobby for the declassification of US documents on human rights abuses in Chile. The campaign for declassification forced the Clinton administration to conduct a special search and review of records, resulting in the release of 24,000 previously secret documents on Pinochet's repression, CIA intervention in Chile, and Washington's human rights policy from 1969 and 1990. 'These documents have provided new and fundamental evidence on dozens of critical human rights cases, ' according to Peter Kornbluh, a senior analyst at the National Security Archive and IPS associate who played a key role in the declassification campaign. 'In addition to contributing to future courtroom verdicts, they have rendered a historic verdict on Pinochet and US support for his violent dictatorship.'

Cases Abroad can Strengthen Democracy at Home

Shortly after Pinochet's arrest in London, US State Department officials expressed concerns that the prosecution of the General abroad could destabilize democracy in Chile. In fact, the case did quite the opposite.

Claudio Grossman, the Chilean Dean of American University Washington College of Law, admitted that he once thought that the only valid argument for not going after Pinochet was if it would have destroyed the possibility of expanding democracy in Chile. Today, however, he is thrilled to see that the Spanish case has created a tremendous space in Chile, opening up dialogue and strengthening the courts' ability to go forward with the investigation of what are now over 250 cases against Pinochet and many cases against other human rights violators. 'Really, any respectable Chilean is bringing a case against him,' says Grossman. 'I think that overall, Pinochet's arrest fortified Chilean democracy.'

Most human rights advocates agree that the Chilean court's efforts to try Pinochet would have been impossible prior to his 1998 arrest. Unwilling to see him extradited to Spain, the Chilean government insisted time and time again that the Chilean courts were both capable and willing to try Pinochet. According to Mireya Garcia, Vice President of the Chilean Association of Families of the Disappeared, the international community later held Chile to their defense of territorial jurisdiction. 'This was the reason that Pinochet was stripped of his parliamentary immunity in Chile and indicted for crimes committed during his 17-year dictatorship.'

Pinochet's dramatic 503 days under arrest in London also put the issue of human rights and the history of the dictatorship on the front pages of the Chilean newspapers, re-opening public debate on the issue and permanently altering Pinochet's carefully constructed public image. Eugenio Ahumada, who worked to document human rights abuses at Chilean Vicariate of Solidarity during the dictatorship, saw the changes firsthand: 'The Pinochet case created an opening in Chile, it led the right to finally start talking about what happened. It also led the Armed Forces to admit publicly for the first time that they did participate in abuses.'

Patricia Silva, President of the Chilean Association of Relatives of Excuted Political Prisoners also points out that the Pinochet case was very important for young people in Chile. 'They've become more involved, they're asking more questions. The case has been an excellent opportunity to teach people about the reality of what happened under the dictatorship.'

As we look back at the past two and a half decades, we see the convergence of history, convictions, and hard work that has brought the world much closer to the justice sought in the name of Orlando Letelier, Ronni Moffitt, and thousands of other victims of Pinochet. Personal commitments to see justice done for family and friends have grown into an international movement against impunity, which is now a wolf at the door of repressive regimes everywhere. The name that once symbolized dictatorship and state-sponsored terror now also strikes fear in the hearts of aspiring strongmen, aware that they too could one day be 'Pinocheted' for their crimes.

More than twenty-five years of demands for justice have finally begun to resonate; and we are delighted to celebrate the many victories that have resulted from this struggle. But the battle against impunity is not over. Armed with the lessons of the past twenty-five years, and with the help of a new generation of activists, the movement for human rights must now forge ahead with renewed conviction to promote the globalization of peace, justice, and dignity.