Pinochet Watch no 55

28 မေလ 2004
Article

Pinochet Watch is an electronic news service of the Institute for Policy Studies.

TNI and the Pinochet precedent

In this issue:


SANTIAGO APPEALS COURT STRIPS PINOCHET OF IMMUNITY FROM PROSECUTION

In a surprising move, the Santiago Appeals Court today ruled 14-9 in favor of stripping former Chilean dictator Augusto Pinochet's immunity from prosecution. This decision paves the way for further legal proceedings against Pinochet in a case involving crimes committed as part of Operation Condor.

Operation Condor was a coordinated campaign uniting the security forces of Southern Cone dictatorships to carry out joint operations against political opponents, including kidnapping and assassinations. The 1974 Buenos Aires assassination of Chilean General Carlos Prats and his wife Sofia Cuthbert and the 1976 Washington, DC assassination of Chilean Orlando Letelier and American Ronni Karpen Moffitt, are two of the most well-known Operation Condor crimes.

Last year, Chilean Judge Juan Guzmán indicted several other Chilean military officers for their role in kidnappings committed by Operation Condor. In order to indict Pinochet for these crimes, however, Judge Guzmán had to first ask the Appeals Court to strip the 88-year-old former dictator of his immunity from prosecution. Although Pinochet resigned as Senator-for-Life in 2002, he still enjoys immunity from prosecution as a "Former President of the Republic."

In 2000, the Santiago Appeals Court upheld a request to strip Pinochet of his immunity to stand trial for his role in the kidnapping and murder of over 70 political opponents carried out by the notorious "Caravan of Death". However, in 2001, the same Appeals Court put an end to the Caravan of Death proceedings against Pinochet, arguing that the former dictator was mentally unfit to stand trial. The Chilean Supreme Court upheld that decision in July 2002.

Since then, the Appeals Court has consistently denied other requests to strip Pinochet of his immunity from prosecution. In August 2003, for example, in a 15-8 vote, the Appeals Court turned down a request to strip Pinochet of his immunity for the 1976 murder and disappearance of 10 Communist Party members.

Although the Appeals Court will not release its written decision for at least another week, it seems likely that today's ruling was influenced by a lengthy television interview that Pinochet gave to a Miami station in November 2003. In the interview, Pinochet spoke at length about events that happened during the dictatorship. "If he can answer a journalist's questions for almost an hour coherently and reasoning in a logical manner, remembering events that happened more than 30 years ago," argued victims' lawyers Francisco Bravo and Sergio Concha, "then he certainly can respond to questions from a judge." (More information on the November 2003 interview

Lawyer Juan Subercaseaux, who argued before the Appeals Court in favor of stripping Pinochet of his immunity, told press that today's decision was a "miracle." Prosecution lawyer Francisco Bravo told Associated Press, "We receive this with deep surprise but also with deep pride. We stress that what was at stake today was not Pinochet's health, but the principle of equality before the law." Viviana Diaz, Vice President of the Association of Families of the Disappeared, reaffirmed these sentiments in an interview with Chilean paper El Mercurio, adding "It is truly great news that will be good for our country."

Pinochet's lawyers will certainly appeal today's ruling to the Chilean Supreme Court. In the meanwhile, according to Chilean paper La Nación, Judge Guzmán can move forward with his investigation, taking Pinochet's deposition and indicting the former dictator for his role in Operation Condor crimes.

For more information:

See Stacie Jonas The Ripple Effect of Pinochet Case, under subheading Impact of the Pinochet Case in Chile
Santiago Appeals Court Rules Against Stripping Pinochet's Immunity from Prosecution Pinochet Watch 53, 16 October 2003
Pinochet Interview Prompts New Trial Efforts Pinochet Watch 54, 14 April 2004
Eduardo Gallardo Court Strips Chile's Pinochet of Immunity AP, 28 May 2004
Court Lifts Pinochet's Immunity BBC, 28 May 2004
Golpe A Pinochet: desaforado por la operación Condor La Nación, 28 May 2004
AFDD espera que tras desafuero, Pinochet vaya a la cárcel El Mostrador, 28 May 2004
Corte acogió desafuero contra Augusto Pinochet El Mostrador, 28 May 2004
Carolina Venezuela Operación Cóndor: Corte acoge desafuero de Pinochet El Mercurio en Internet, 28 May 2004
Marlis Pfeiffer y Fernando Cardoch, "Corte de Apelaciones Desaforó a Pinochet," La Tercera, 28 May 2004
Human Rights Watch Celebra Desafuero de Pinochet El Mostrador, 28 May 2004
John Dinges Blowback of a Criminal Alliance: The Central Role of the Condor Investigations in 25 Years of Pursuit of Justice presented at IPS/FLACSO-Chile Conference El Caso Pinochet: Lecciones de 30 años de una lucha transnacional contra la impunidad, 14 November 2003


CHILEAN COURT RULING MAY DEFINE FUTURE OF RIGHTS PROSECUTIONS:
HRW Update on Sandoval Case Appeal

Key doctrine on Pinochet era "disappearances" at stake Human Rights Watch, 27 May 2004

The Chilean Supreme Court on Friday will hear an appeal by former military officers convicted for the "disappearance" of an opposition activist in 1975. The court's ruling may be decisive in determining whether Chile will finally bring to justice those responsible for serious human rights violations following the 1973 military coup, Human Rights Watch said today.

The court is considering an appeal lodged by a former intelligence chief against his conviction for the "disappearance" of an opposition activist. The court will examine the validity of a legal interpretation of Chile's 1978 amnesty decree that has allowed hundreds of former military and police officers to be prosecuted in the last few years for "disappearances" and killings during the first five years of the Pinochet dictatorship.

"This promises to be a historic decision," said José Miguel Vivanco, executive director of the Americas Division of Human Rights Watch. "Chile's top judges should fully back the efforts made by their colleagues to clarify these terrible crimes and hold those responsible accountable."

Among the issues the court must resolve is the validity of the "permanent crime" doctrine, which holds that enforced disappearance is an ongoing crime until the victim's remains have been recovered or the fact of death established. In recent years special judges appointed to investigate killings and "disappearances" under military rule have repeatedly cited the doctrine as grounds for side-stepping an amnesty decreed by the military government in 1978 to protect officers from facing trial for human rights abuses. They have charged about 250 officers-and obtained 15 convictions-for crimes committed during the period covered by the amnesty.

In the doctrine's best-known application, Judge Juan Guzmán indicted General Pinochet for kidnapping in December 2000. In July 2002, however, the Supreme Court terminated the prosecution after deeming Pinochet mentally unfit to stand trial.

The case now before the Supreme Court is an appeal by Pinochet's former head of intelligence, Manuel Contreras, and several other army officers against their conviction for the "disappearance" of Miguel Angel Sandoval, a 26-year-old tailor. Secret police agents abducted Sandoval in January 1975 and held him in secret detention in the Villa Grimaldi, a clandestine camp in Santiago, where he was tortured and later "disappeared." Sandoval was one of 119 missing detainees who were later falsely reported in the press to have been found dead in Argentina, a ruse concocted by the secret police to cover up their secret execution.

Contreras's lawyer is expected to argue that the "permanent crime" doctrine is a legal fiction, and that there is no evidence that the victim is still being held captive. In December 2003, a Santiago Appeals Court panel accepted this argument when it dismissed charges against Contreras in a separate case. Most other appeals court panels, however, have upheld the "permanent crime" thesis.

The 21-judge court will also hear lawyers representing the victim and the Council for the Defense of the State, a legal body that represents state interests in judicial proceedings. Normally, criminal appeals go before the court's criminal chamber, but on this occasion the court accepted a request from Contreras's defense lawyer to hear the case in plenary. Although jurisprudence is not legally binding in Chile, a decision of the full Supreme Court carries great weight and could have a decisive impact on future human rights cases.

"The prosecution of these crimes is fully consistent with the principles of international law," said Vivanco. "The Supreme Court should uphold those principles."

A fundamental principal of international human rights law is that crimes against humanity are not subject to statutes of limitation or amnesties. In 1999 the U.N. Human Rights Committee stated that Chile's amnesty decree "prevents the State party from complying with its obligation ... to ensure an effective remedy to anyone whose rights and freedoms under the Covenant have been violated." Last week, on May 19, the U.N. Committee against Torture issued a report criticizing Chile for failing to abolish the amnesty decree. The Inter-American Commission on Human Rights declared in 1996 and again in 1998 that the Chilean amnesty decree is incompatible with the Chile's international obligations under international law.

The appeal court that convicted Contreras based its decision in part on Article 3 of the Inter-American Convention on Forced Disappearance of Persons, which states specifically that "this offense shall be deemed continuous or permanent as long as the fate or whereabouts of the victim has not been determined." Chile has signed this treaty, indicating a commitment to abide by its principles.

For more information:

See Human Rights Brief article The Ripple Effect of the Pinochet Case under subheading: Chilean Cases Against Other Military Officers
Full text of Santiago Appeals Court Sandoval Case decision
Jorge Escalante La hora decisiva para la amnistía La Nación, 27 May 2004
Jorge Molina Tribunales en Día Clave por Casos de Derechos Humanos El Mostrador, 28 May 2004


Esmeralda Day Certificate

LA ESMERALDA SAILS AGAIN:
Hawaiian Governor Proclaims "La Esmeralda Day"

In the midst of renewed international outrage about torture, the Chilean Naval ship La Esmeralda, used to house and torture political prisoners shortly after Pinochet's 1973 coup, once again sails the high seas touted as a "goodwill ambassador" of Chile.

Every year, La Esmeralda makes a trip around the world to train new naval recruits, and every year, its arrival is met with protests in international ports. When the ship came to New York in 1986, Senator Edward Kennedy remarked that "the Statue of Liberty would weep at the sight of La Esmeralda entering the gateway of freedom at New York Harbor". That same year, the US Congress passed a resolution expressing deep regret at the fact that the ship had been invited to participate in 4th of July festivities. Just last year, the ship was forced to changed its itinerary due to mounting protests in European cities.

According to Amnesty International, the Organization of American States, and an official Chilean truth commission, over 100 political prisoners were tortured aboard the ship La Esmeralda. At least one prisoner, British-Chilean priest Michael Woodward, died as a result of the torture he suffered on board. No one has been held accountable for these crimes, and high-ranking Chilean military officers still deny the ship's well-documented, sordid history.

Despite this controversial history and recent reminders of the horrors of torture, in April of this year, the Chilean government and military allowed La Esmeralda to be used to host a meeting of business leaders in San Diego. And when the ship docked in Hawaii earlier this month, the Hawaiian Governor's office declared May 14 "La Esmeralda Day" in honor of the six ships in Chilean naval history bearing that name. This, despite the fact that Michael Woodward's sister, Patricia Bennetts, had written to the governor's office telling them of the atrocities committed aboard the ship.

Full text of Hawaiian proclamation of La Esmeralda Day in Spanish
Full text of Patricia Bennetts' letter to Hawaiian authorities and response from Hawaiian Governor's office

"La Esmeralda Day" is an insult to those who suffered aboard the ship and to all torture victims around the world. Write to the Hawaiian Governor's office expressing outrage at their decision honor the ship instead of denouncing the torture committed on board: Governor Linda Lingle, c/o Bob Awana, Chief of Staff, Executive Chambers, State Capitol, Honolulu, Hawaii 98613; fax: 808-586-0006; email: www.hawaii.gov/gov/email.

La Esmeralda will also soon dock in Japan, Korea, China, Papeete and New Caledonia (France). For information about upcoming actions and background on La Esmeralda, see:


KISSINGER TRANSCRIPT HIGHLIGHTS US ROLE IN CHILEAN COUP

The following was posted on the website of the National Security Archive: www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB123/dobrynin.htm

KISSINGER TO NIXON: "WE HELPED" COUP FORCES IN CHILE:
New Telephone transcript records conversation with President

TELCON: September 16, 1973, 11:50 a.m. Kissinger Talking to Nixon (pages 1,2)

Washington DC, 26 May 2004 - In one of his first conversations with President Richard Nixon following the bloody military coup in Chile, Henry Kissinger stated "we helped them," according to declassified transcripts of a telephone conversation obtained today by the National Security Archive. "That is right," Nixon responded.

The transcript records a call made by President Nixon to Kissinger's home on the weekend following General Augusto Pinochet's violent overthrow of the democratically elected government of Salvador Allende in Chile. Kissinger reports to the president that the new military regime was "getting consolidated" and complains that the press is "bleeding because a pro-Communist government has been overthrown." When Nixon notes that "our hand doesn't show on this one though," Kissinger responds that "We didn't do it" [referring to the coup itself]. I mean we helped them... created the conditions as great as possible."

The September 16, 1973, "telcon" was found by the Archive's Chile analyst, Peter Kornbluh, among thousands of pages of transcriptions of Kissinger's telephone calls dated between 1969 and 1974, declassified today at the initiative of the Archive. Kornbluh, the author of The Pinochet File, called the new document "damning proof, in Kissinger's own words, that the Nixon administration directly contributed to creating a coup climate in Chile which made the September 11, 1973, military takeover possible."

In his confirmation hearings as Secretary of State that very week, Kissinger denied that the US Government played any role whatsoever in Allende's overthrow. A year later, after details of a CIA destabilization program had leaked to the press, he again testified before the Senate Foreign Relations Committee that "the intent of the United States was not to destabilize or to subvert [Allende]... Our concern was with the election of 1976 and not at all with a coup in 1973 about which we knew nothing and [with] which we had nothing to do..."

In his conversation with Nixon, Kissinger suggested that the press should be "celebrating" instead of being critical of the coup. "In the Eisenhower period we would be heroes," he tells the President. "But listen," Nixon replies to his national security adviser, "as far as people are concerned let me say they aren't going to buy this crap from the Liberals on this one."

Watch this site for more "telcons" on the US role in Chile.