This is the reason why human rights defenders in Chile were unconditionally enthusiastic about foreign forums for Pinochet's prosecution and pinned their
Britain * hopes on international law. It is necessary to grasp the bleakness of this admission and the desperation it underscores before forming a judgement on their recourse to foreign jurisdictions and the vagaries of international law.
### Well-heeled cheerleaders
From soon after Pinochet's arrest in London, his supporters in Chile were anxious to influence the political debate in Britain and to counter the activities of human rights campaigners. The Pinochet Foundation in Santiago subsidised trips of his cheerleaders to London. Well-heeled women waving posters of their hero, wearing badges with his name, and screaming abuse at Chilean exiles, were brought in by the plane-load whenever the case reached a critical point. They would picket Parliament in between shopping excursions to Harrods and the pilgrimage to Kensington Palace, last home of Diana, Princess of Wales. Far removed from the women of the poblaciones who never allowed Chile to forget its disappeared who resisted the dictatorship through community initiatives, and who continue to struggle for their livelihoods against neoliberal capitalism.
While hugely out-resourced by the Pinochetistas and unlike them without the services of a public relations firm, the Chile Committee for Justice, a coalition of Chilean refugees and British leftists, politically and generationally broader than the old Chile Solidarity Campaign, led a sophisticated and media-savvy campaign which changed the climate of public opinion in Britain from indifference and ignorance to at least recognition of Pinochet's guilt. It would be mistaken to believe that campaigners were paralysed into awaiting the decisions of the Courts and the twists in the formal political process, even if these did regulate the rhythm and routine of activism.
First, it had to be established that the crimes in the warrant were extraditable crimes and that Britain had jurisdiction over the alleged offences. Second, that Pinochet, as a former head of state, did not International Viewpoint #321 May 2000 15
DUSINESS
* Britain enjoy immunity from criminal prosecution for acts committed by his government. The international law doctrine of sovereign state immunity has traditionally been interpreted as conferring absolute immunity on public officials for acts performed in the course of official duties.
Extermination state policy
The High Court, while finding that some of the charges constituted extraditable claims, upheld the traditionalist view in the present case and quashed the writs for extradition. "History shows that it has indeed on occasion been state policy to
British Home Secretary Jack Straw exterminate or to oppress particular go Therefore, Y groups."
that by the time of the 1973 coup d'état, ate upon the legal issues once more.
Therefore Pinochet enjoyed state immunity in lieu of those acts being acts of state. On appeal the case came before the Judicial Committee of the House of Lords. The point of law before them was as to the "proper interpretation and scope of the immunity enjoyed by a former Head of State for arrest and extradition proceedings in the UK in respect of acts committed while he was Head of State."
On November 25th, the House of Lords by a margin of three to two reversed the High Court ruling, finding that a former head of state had no immunity in respect of acts of torture or of acts of hostage taking. A minority among the Law Lords agreed with the High Court that sovereign immunity was absolute and did not depend on the criminality or morality of the act in question as long as these were committed in a governmental capacity. In other words, if Pinochet could prove that he was head of state of Chile and used the apparatus of state for torture then he was free of prosecution for it!
Their justification for this legal-conservative or orthodox interpretation of the doctrine being that, while the crimes of genocide, torture and hostage-taking are recognised by international Conventions as international crimes, the British legislation which incorporates these Conventions into domestic law is silent on the culpability of heads and former heads of state, suggesting that it wished to preserve absolute immunity for them.
To the relief of international human rights lawyers and activists, a majority in the House of Lords rejected this view and instead took a legal-reformist or liberal stance. Lord Steyn noted that: "The development of international law since the 16 International Viewpoint #321 May 2000
Second World War justifies the conclusion and certainly ever since, international law condemned genocide, torture, hostage-taking and crimes against humanity (during an armed conflict in peace time) as international crimes deserving punishment. Given this state of international law, it seems to me difficult to maintain the commission of such high crimes may amount to acts performed in the exercise of the functions of Head of State."
This didn't end the matter. Under the British statute the Home Secretary has quasi-judicial powers and has to make the final determination on extradition applications. Never before (nor since) has Straw's political and personal stock been higher within his own Party than when, two weeks later, on December 10th, 1998 he authorised the extradition. However intervening events had already rendered that decision redundant.
### Trustee
While Pinochet's legal team prepared to appeal against the House of Lords decision, it emerged in the right-wing press in November that one of the Law Lords of the majority was a trustee of a charitable foundation associated with Amnesty International. While Lord Hoffman had not delivered a separate judgement, his undisclosed relationship with a human rights organisation which had intervened in the case was sufficiently close to attract accusations of bias and demands for a re-trial.
On December 17th, 1998, another panel of the House of Lords having reviewed the application for re-trial set aside its earlier judgement, holding that the case should be reheard. In January 1999 a newly assembled and expanded bench of seven Law Lords was convened to deliber-
On March 24th, 1999 this group of judges held by a more authoritative margin of six to one that a former Head of State had no immunity in respect of acts of torture or conspiracy to commit such acts (he was however entitled to immunity from the charges of murder and conspiracy to murder which, unlike torture, are not presently for former heads of state an extraditable crime under international law.)
Lord Browne-Wilkinson explained "How can it be for international law purposes an official function to do something which international law itself prohibits and criminalises? Yet, if the former head of state has immunity, the man most responsible will escape liability while his inferiors (the chiefs of police, junior army officers) who carried out his orders will be liable ...
However, the Law Lords then proceeded to undermine their own decision by finding that the General could only be extradited from Britain for acts committed in Chile after December 8th, 1988 when the British legislature ratified the UN Convention Against Torture 1984 and at which point Spain and Chile had acceded to the Convention too. Invoking the principle of double-criminality, their Lordships decided that an extraditable act must not only be a crime in both Spain and Britain now, but must have been a crime in Britain when it took place in Chile.
This controversial reading of the extradition law caused dismay among human rights lawyers. Once more the British judiciary revealed itself to be insulated from international human rights norms and resistant to its extension and assimilation in the domestic legal arena.
The application before them was not to
try Pinochet in Britain but to extradite him to Spain. Leave to extradite him was not a presumption of guilt but rather a procedural hurdle to be surmounted. Instead of treating it as a technical aspect and allowing Pinochet to answer for all the charges of torture, which in any case has been unlawful at least since the 1948 Universal Declaration of Human Rights, the House of Lords was fettering the Spanish judicial authorities in striking out some charges.
The Law Lords also recommended that Jack Straw review his decision to permit Pinochet's extradition in light of the reduced number of counts. The immediate effect of the ruling was to reduce the charges from 31 to just three. Baltasar Garzon, who had by now achieved folk hero status in some quarters, promptly added 53 further cases of torture committed after 1988 to the charge-sheet.
### Presumption
The presumption following the Lords decision was that Jack Straw was obliged once more to allow extradition unless there were compelling compassionate grounds against a trial. In the summer of 1999, in meetings between British Foreign Secretary Robin Cook and his Chilean and Spanish counterparts, this was identified as the face-saving solution for all sides which would enable Straw to rid himself of Pinochet without delivering him into the hands of the Spanish judicial authorities.
In October 1999 the Chilean embassy in London formally requested that the General's medical condition be examined and the following month the Home Office appointed a panel of physicians to conduct medical and psychological tests on him.
In January 2000 the Home Office released a briefing on the medical report, according to which the General, "would not at the present be mentally capable of meaningful participation in a trial." The Home Office's interpretation of this report was that Pinochet would not be capable of understanding the charges against him, implying that a trial would not be appropriate. Jack Straw announced that based upon this report he was "minded" to halt extradition. Pinochet would be free to return to Chile.
The medical evidence was presented and considered in secret. It was not shared with anyone other than Pinochet and therefore not open to scrutiny by other medical experts. Human rights organisations felt that fitness to stand trial was something which could be established once legal hearings had begun. It was also revealed that a Chilean psychologist had been staying with Pinochet for several months in the run-up to the medical examination, suggesting that the General had been coached to fail the tests.
### Pinochet victim
Certainly the British authorities were right in surmising that Pinochet could not understand the nature and gravity of the charges against him, but for another reason. It is not the General's medical condition, but rather that he does not feel himself to be guilty of any crime. In fact he never doubted who had been wronged, who had suffered injustice, who had been victimised. "I have been the target of a political, judicial plot, cunning and cowardly, which has no moral value", he declared in an open letter to the Chilean nation. "While [in Europe] and specifically in the countries which now condemn me through spurious trials, Communism has killed many millions of human beings this century, I am pursued for having defeated it in Chile, saving the country from a virtual civil war."
In February Jack Straw was ordered by the High Court in London to release copies of the medical report to Spain, Belgium, France and Switzerland, all of which had warrants for Pinochet's arrest. This information was immediately leaked to the Spanish and Chilean press by the Spanish government, which calculated that its disclosure would torpedo any possibility of the General's extradition to Spain.
On March 3rd, Pinochet returned to Chile where he was greeted by the Commander-in-Chief of the Armed Forces. His supporters drove around Santiago in cavalcades, honking horns and holding aloft his picture. The General himself, revived by the air and sun in his homeland, seemed to have made a near miraculous recovery. He was positively jaunty as he stepped off the plane, looking mentally and physically restored, to greet the other gorillas on the tarmac.
The Pinochet case has fuelled on-going debates on the nature and future of international law. The philosophical foundations of the judgements in the House of Lords date from the late nineteenth century. In that era of crumbling empires and newly emerging European nation-states, the func-
Britain * ion of international law was thought to be the maintenance of an international order of juridically equal states which exercised absolute sovereignty over their own inhabitants and their own affairs. Except where each state individually and voluntarily decided to pool sovereignty in international institutions. This state-centred international system, which jealously guards sovereignty and preaches (but does not always practise) non-interference in each other's affairs, is the legal-conservative's weltanschauung.
Through the twentieth century it has come under two challenges. Global capital, striving to escape the constraints of national boundaries and demanding that international law protect its interests and not only that of states, has secured the lifting of state immunity for commercial transactions. It is therefore now possible for states to be sued by trans-national corporations: and not claim, as they have previously, sovereign immunity from prosecution. It is also possible for transnational investments to be legally protected from expropriation and even nationalisation with compensation, which undermines state sovereignty over foreign investment and its natural resources.
The second challenge has come from the human rights movement which emerged out of the ashes of the Second World War. This current has long been skeptical of states, which the prevailing regime of international law entrusts with the protection of human rights, but which also happen to be the primary agent for the violation of human rights. Where national laws are seen as retrograde or backward and national legal institutions as impotent or craven, international legal norms and international legal institutions are regarded as universal and undifferentiated in application, radical in content and catalysers for progressive change.
As Hugh O'Shaugnessy, author of Pinochet: The Politics of Torture commented, "People round the world cheered when it seemed that international lawyers might be made to do something more useful for humanity than protecting the profitable copyright for Mickey Mouse in Bangladesh, nurturing tax-evaders in Bermuda and ensuring that defenceless patients in sub-Saharan Africa had to pay over the odds for western pharmaceuticals." One conclusion which human rights activists seek to draw after the frustration of the British legal process is that the interInternational Viewpoint #321 May 2000 17
must be expanded to critically and selectively as a stick to beat
* Britain national system include non-state actors other than giant corporations and multilateral international organisations and that transnational legal institutions must be developed to compensate for the weakness and unevenness of national ones.
International court
Hence their enthusiasm for an International Criminal Court (ICC). In June 1998 members of the United Nations met in Rome to establish a permanent tribunal to adjudicate on core crimes of international humanitarian law such as genocide, crimes against humanity and war crimes. The jurisdiction of the ICC will include individuals and not be restricted to states, but its competence only extends to cases which cannot be heard in the state where the crimes were committed or the state of nationality of the alleged offender and where the jurisdiction of the Court is accepted. The Court remains a long way short of the minimum number of 60 ratifications needed before it becomes operational and is opposed by the US among
The sentiment of human rights internationalism is an honourable one. However a discordant note must be sounded. Even transnational institutions and a transnational legal order exist among states. States may be granted legal equality but certainly do not possess political and economic equality. The asymmetries of power which exist between states - that is, the reality of an imperialist world order — cannot be prevented from reproducing themselves within these brave new institutions anymore than they are absent from the old ones. International law does not stand above states and classes but rather is imbricated in its relations. Neither is it independent of a world economy which everywhere imposes the rule of capital.
The existing war crimes tribunals on Rwanda and former Yugoslavia were established and function because of the backing of the great powers. However, can anyone conceive of a tribunal to try Russia for its atrocities in Chechnya or the US for its war crimes in Korea and Indo-China?
To ask the question is to answer it. It is important therefore that the protagonists of human rights internationalism resist the (ab)use of human rights ideology when it is paraded as the Siamese twin of neo-liberal capitalism; when it is wielded hypo-
18 International Viewpoint #321 May 2000 the enemies of the West; when it becomes a cloak to justify aggression and armed intervention in some countries. It is essential that human rights internationalism is not snared by human rights imperialism.
Pinochet has returned to a different country from the one he left in September 1998. Chile and Chileans have changed in ways that it is still too early to fully appreciate. Opinion polls show 70% of the Chilean people want Pinochet to stand trial. The fear that any public discussion of the coup and its aftermath will bring tanks onto the streets is being conquered. On September 11th, 1999, 20,000 Chileans marched to mourn the anniversary of the coup and affirm the struggle against allowed, even in a partial way, the past to at last confront the present. The families of the disappeared and their supporters have reclaimed the memory of that long dark night of the dictatorship from the historical revisionism of the Right. They understood with Walter Benjamin the imperative of "seizing hold of a memory as it flashes up at the moment of danger ... that even the dead will not be safe from the enemy if he wins."
Already the facade of a united armed forces is beginning to crack. Retired army officers have publicly spoken of Pinochet's personal responsibility for Operation Condor, where cross-border state terrorism was co-ordinated with military dictatorships in Argentina, Bolivia, Brazil, Paraguay and Uruguay to identify and persecute dissidents and exiles. Chilean prosecutor Juan Guzmán Tapia, at tremendous personal risk, has formulated 59 separate criminal charges against Pinochet and is assiduously pursuing him through the domestic legal system.
The Concertación coalition (grouping the Christian Democrats, the Socialist Party and the Party For Democracy) has been riven by tensions over the Pinochet affair. The Christian Democrats, who occupied the presidency during Pinochet's detention in London, assumed the mantle of defenders of Chilean sovereignty and national dignity demanding Pinochet's
Their Socialist Party partners, eager not to concede patriotic credentials to the
Christian Democrats nor to relinquish their carefully cultivated respectability and trustworthiness before the Chilean bourgeoisie, supported this call, though with less enthusiasm. Nevertheless some of its parliamentary caucus and certainly most of its base are less willing to bury the past along with their dead as their leaders counsel them to.
New president
In January Ricardo Lagos of the Socialist Party won the second round of the Presidential elections, narrowly beating the ultra-rightist Joaquin Lavin. He was visibly uncomfortable when his supporters at a victory rally demanded Pinochet be prosecuted in Chile. The new President has said he will not interfere in the judicial process. Yet it is politics and not law which will determine whether Pinochet enjoys impunity or faces justice.
Lagos has declared that he will govern as the Concertación's third President and not as the Socialist Party's second. In other word, affirming the Socialist Party's strategic choice of unmooring itself from its historical roots and its association with the Popular Unity period, instead anchoring itself within the post-Pinochet political consensus of the Concertación and the economic consensus of neo-liberalism. He will be anxious to preserve the coalition through deflecting appeals for justice which will uncover the relationship between the Christian Democrats and the dictatorship and therefore its culpability in Pinochet's atrocities.
Outside of Chile the General's arrest has been an inspiration to human rights campaigners, survivors of military terror and families of the disappeared all over the world. They have found solace and strength in the prospect that even after 25 years it might be possible to hold dictators to account. Acting on a complaint of genocide including the murder of Spanish nationals, made by indigenous rights activist and Nobel Peace Prize laureate Rigoberta Menchu, Spanish investigators have turned their sights on someone else. In late April it was reported Guatemala's former military strong-man and now president of its Congress, Efrain
Rios Montt, had cancelled a trip to France after having been advised by his lawyer that an international warrant for his arrest is outstanding. Does anyone know Henry
Kissinger's itinerary for the next few months?
Justice, long-delayed for the victims and survivors of Latin America's military dictatorships, has become hard to deny. *
"We must be heretics in order to
Peru * support of the people, it was cut off from the people, as parliaments have always been in Peru. And people did not view with hostility the fact that this parliament was dissolved. The people had voted against parties and for this reason voted for Fujimori. APRA (the previous governing be Marxists"
party, linked to the Socialist International)
was a party that milked a lot of money from the state enterprises, from the
Agrarian Bank.