On November 25, the eve of the fiftieth anniversary of the universal declaration of human rights, the British Law Lords gave human rights activists around the world a reason to celebrate. By a margin of three to two, the Lords overturned a lower court ruling giving the Chilean Senator-for-Life Augusto Pinochet immunity from prosecution under the argument that he was head of state at the time his crimes were committed. Torture, terrorism and genocide, Lord Nichols argued, are no more a public function of a sovereign than “murdering one’s gardener.” Lord Steyn concurred. According to the lower court’s exculpatory logic, he wrote, even Hitler’s “final solution” would have to go unpunished “as an official act deriving from the exercise of his functions as head of state.”
Though appeals are keeping the extradition on hold, the ruling by Great Britain’s highest court was immediately celebrated throughout Europe as a breakthrough in international human rights law. “Tremble tyrants,” trumpeted a Paris newspaper. The British have ratified the precedent first set at Nuremburg and endorsed by international conventions, that those guilty of crimes against humanity—including heads of state—will be tried where they are found, or will be extradited to a state willing and able to try them fairly.
The United States, however, has been conspicuously silent or “absent without leave,” as one trenchant observer put it. For 25 years the U.S. government has refused to declassify documents related to the Chilean military coup, the creation and operation of the Chilean secret police organization DINA, the murder of U.S. citizens Charlie Horman and Frank Teruggi, the activities of the six military dictatorships participating in Operation Condor and their efforts to annihilate the left, and the planting of the terrorist bomb that killed former Ambassador Orlando Letelier and his assistant Ronnie Moffit in Washington, D.C. The Spanish courts have been pleading with the U.S. government since 1997 to turn over these files as evidence of Pinochet’s engagement in international terrorism. Yet, even now, Washington balks at the prospect.
In what many saw as a signal to British Home Secretary Jack Straw that the United States would prefer that Pinochet be allowed to return to Chile, U.S. Secretary of State Madeline Albright stated: “The citizens of Chile are wrestling with a very difficult problem of how to balance the need for justice with the requirements of reconciliation. I think significant respect should be given their conclusions.” In other words, Washington claims that providing evidence against Pinochet will undermine Chilean democracy—a claim which did not move Straw in his decision to let the extradition hearings proceed.
In fact, the claim that there is a conflict between the goal of seeking justice in the case of Pinochet and that of preserving democracy in Chile is entirely fallacious. First, the insistence that Pinochet’s trial would undermine a negotiated settlement between Pinochet’s supporters and opponents is based on a misreading of the Chilean transition to democracy. The Chilean transition was not the result of a pact between two equally matched adversaries. The return to civilian government in Chile was the outcome of sustained underground resistance and four years of widespread open protest in the mid-1980s. The only agreement reached between Pinochet and opposition leaders was to participate in a national plebiscite according to the rules set by Pinochet’s own 1980 Constitution. Pinochet’s defeat in the plebiscite paved the way for Chile’s transition to democracy, but it also implied recognition of Pinochet’s Constitution—and with it, guarantees of lifelong immunity from prosecution for the General himself.
The resulting inability of human rights lawyers to try Pinochet for his crimes in Chile led Spanish prosecutor Joan Garces, a one-time advisor to Salvador Allende, to initiate a case against Pinochet in Spain, where the law defines genocide, torture and terrorism as universal crimes and authorizes Spanish courts to prosecute them anywhere in the world. This points to the second faulty premise of the argument that justice and democratic stability are at odds. While the official position of the Chilean government is that Chilean democracy depends on Pinochet’s return home, the Chilean public thinks otherwise. According to recent polls, 68% of Chileans would like to see Pinochet stand trial and more than two-thirds would like to see him punished. Over 70% say it would not distress them if Pinochet never returned to Chile.
Finally, if Pinochet is returned to Chile, both domestic and international pressure to try him would be very strong. But it is extremely unlikely that Pinochet supporters would allow the General to stand trial, let alone be sent to prison—and they have been engaged in a frightening campaign of intimidation against democratic politicians, relatives of the disappeared, and English and Spanish journalists based in Chile. Given this situation, Chilean officials may secretly hope that the problem is taken out of their hands. If the current government continues to seek Pinochet’s freedom, and Pinochet is nevertheless sent to stand trial in Spain, it faces a win/win situation. It would have cooperated with Pinochet supporters and would not have to risk their wrath, nor would they have to deal with domestic pressure for a trial.
What then are the real reasons for the U.S. reluctance to declassify the secret documents and turn them over to Spain as evidence? Perhaps it is the damning secrets they contain. What is the untold story of CIA’s relationship with Chile’s secret police during the 1970s? What was the U.S. role in Operation Condor? Perhaps the real U.S. fear is that the next time the Europeans charge someone for crimes against humanity it will be Henry Kissinger, Gerald Ford or George Bush.
ABOUT THE AUTHOR
Cathy Schneider teaches at the School of International Studies at American University. She is the author of Shantytown Protest in Pinochet’s Chile (Temple).
