The Chilean Supreme Court's decision stripping Augusto Pinochet of immunity reflects a sea change in the treatment of former dictators around the world. As the Chilean justices were voting 14 to six to allow the indictment of Pinochet for human rights violations, Indonesia's former dictator, Suharto, was charged with corruption while Haiti's former military rulers are about to be tried, in absentia, for crimes of torture and murder.
These prosecutions were unfathomable in October 1998 when Scotland Yard detained Pinochet in London in response to an extradition request from Spain. That request came from Judge Baltasar Garzon of Spain's National Court, who acted on behalf of Chilean exiles and Spanish citizens whose relatives had been tortured and assassinated in Chile under Pinochet's rule.
Before Pinochet abandoned power in 1990 he had issued an amnesty decree and imposed a constitution that limited the courts' ability to prosecute military officers. Pinochet continued on as commander-in-chief of the armed forces, finally stepping down in early 1998 to become senator-for-life. No judge in Chile dared touch the general...
However, the detention of Pinochet in London opened up a new chapter in international law that eventually led to a turnabout in Chile's judicial system. In England, Pinochet's barristers, or lawyers, initially argued that he could not be prosecuted because he enjoyed diplomatic immunity, and as a former head of state, was exempt from prosecution for any actions while in power.
An opposing team of barristers, including representatives of Amnesty International, argued in Britain's highest court, the House of Lords, that Pinochet had violated international precedents and laws established by the Nuremberg trials and by conventions of the United Nations.
In March 1999 a judicial panel appointed by the Lords made
legal history by ruling six to one that Pinochet could be extradited
to Spain under the United Nations Convention on Torture, which
had been incorporated into British law in the Criminal Justice
Act of 1988.
The decision of the House of Lords was applauded by anti-Pinochet
demonstrators in England, Chile and many other countries... Even
more importantly, the demonstrations and discussions of Pinochet's
crimes against humanity raised public consciousness around the
world concerning other dictators who had also ruled with impunity.
However, in Chile, the country's centre-left coalition government,
led by Christian Democrat Eduardo Frei, sided with the military
and the country's right-wing political parties. Frei called for
the release of Pinochet, asserting that Chile's "national
sovereignty" was violated...
Under British law, the home secretary [in effect, minister of
internal affairs] has the final say on any extradition process.
At first [Home Secretary] Jack Straw ... ruled that the general
should be extradited. But in early March 2000 he reversed himself
and ordered that Pinochet be released for health reasons, allegedly
dementia and impaired physical mobility...
Once back in Chile, the general's physical ailments seemingly
disappeared. Disembarking from the military plane sent to fetch
him, he rejected the use of a wheelchair and walked across the
tarmac, waving his crutch in the air to the military delegation
that had come to greet him. After a physical exam, he retired
to his country estate, south of Santiago.
But the situation in Chile had changed dramatically during the
general's 16-month detention in London. A new Socialist president,
Ricardo Lagos, took office a week after Pinochet's return. Even
more importantly, Pinochet's arrest in London had unleashed a
catharsis of remembering among Chileans...
During Pinochet's absence human rights groups and a few Chilean judges were emboldened to move against high-ranking officers of the Pinochet regime. The courts found a legal loophole in the cases of over a thousand "disappeared", victims whose bodies were never found. The legal argument, which the country's Supreme Court upheld, was that these cases were not covered by Pinochet's amnesty decree because they constitute ongoing crimes that have not been resolved.
Pinochet, however, enjoyed immunity from prosecution as senator-for-life.
Human rights lawyers opted to challenge this immunity with the
case of the "Caravan of Death" - a special military
expedition that travelled around the country, carrying out at
least 72 summary executions shortly after Pinochet seized power.
The bodies of 19 of these victims were never found. This case
went all the way to the Chilean Supreme Court, resulting in [the]
ruling lifting Pinochet's immunity.
This is not the last repercussion of Pinochet's detention in London.
Along with Spain, the countries of Belgium, France and Switzerland
have all filed charges against Pinochet. The US Department of
Justice is also involved. It has deposed more than 40 Chileans
in relation to the assassination of Orlando Letelier and Ronnie
Moffit with a car bomb set off by Chilean secret police in Washington
D.C. in 1975. The depositions have reportedly provided evidence
that incriminate Pinochet and could lead to his trial in the United
States or Chile. The former head of the Chilean secret police,
Manuel Contreras, is already languishing in prison for his role
in the Letelier assassination.
All these international efforts to prosecute Pinochet have put
dictators and military officers around the world on notice that
they too can be charged for crimes against humanity. Efrain Rios
Montt, the former military ruler of Guatemala in the early 1980s,
does not travel abroad for fear of being arrested.
Judge Garzon of Spain has also filed charges against Argentine
generals who executed or disappeared more than 10,000 people,
a number of whom were Spanish citizens... Argentina's amnesty
laws exempted the military from prosecution for most human rights
violations. But baby-trafficking - a practice that the military
engaged in with the children of parents who were assassinated
or disappeared - was not included. Nine high ranking military
officers have been jailed on this charge, including General Leopoldo
Galtieri who was president of Argentina's military junta in 1981-82.
Even Henry Kissinger has reportedly curtailed his international
travel plans to avoid being prosecuted for his actions in supporting
military coups and the war in southeast Asia when he was head
of the US National Security Council and secretary of state. An
International Criminal Court is currently being set up in Rome
that will be able to try human rights violators and war criminals.
The US government under Clinton refuses to sign the treaty establishing
the Court, fearing that its military officers could be charged
with war crimes.
The international ambience has clearly shifted against governments
and military rulers that systematically violate human rights.
In a certain sense this is the product of globalization, which
until now has been limited to the fostering of trade and corporate
investments. For the first time, the families of victims of repression,
along with a growing number of judges, feel they can use international
and national laws to prosecute former rulers for their crimes
against humanity.