"Pinochet and the Rule of Law"

-By Grahame Russell
April 1999

Justice delayed
International impunity
Concerns expressed
A call to legal action!
Pinochet's lucky day

April 15 1999 will hopefully be remembered as a bad day for dictators and other government and military officials of regimes that systematically violate political and civil rights. It will hopefully be remembered as a good day for people and organizations genuinely interested in the rule of law and the protection of all human rights (economic, political, cultural, social and civil).

After months of political wrangling and legal appeals, the House of Lords (the highest court of England) ruled that General Pinochet, former military head of Chile, did not (on the basis that he was a former head of state) enjoy immunity from prosecution for crimes against humanity committed in Chile.

Justice delayed

For human rights activists, it is a bittersweet decision. This first measure of justice pales in comparison with the violations that Pinochet's regime systematically planned and committed: rape, torture, murder, massacres, disappearances, etc.

Yet, it is a good decision. What should have been a routine legal decision -- in a world governed, let us say, by the rule of law -- is actually unprecedented. The House of Lords ruled that there is no immunity from prosecution for former heads of state, and other state agents and officials, for the commission of crimes against humanity.

Pinochet, and thousands of government and military officials and agents from across the Americas, have long enjoyed close to complete impunity for their crimes. This immunity from prosecution has been granted to them not only in their own countries, but abroad as well.

Many of these violators own property or control bank accounts in North America and Europe. During and after their reigns of repression, they have traveled freely abroad, often enjoying diplomatic status, often living off the spoils of the repression they designed and implemented.

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International impunity

Many western nations -- particularly the US -- actively supported these regimes with weaponry, military training and intelligence, and money. The World Bank, the International Monetary Fund, the Inter-American Development Bank, and many transnational banks and companies, empowered these regimes by maintaining (and profiting from) financial and commercial relations during the years of repression. The impunity that Pinochet enjoyed -- that many others continue to enjoy -- has been and is an international phenomena.

Concerns expressed

In Chile, Pinochet supporters, and others, argue that the possible Spanish trial of Pinochet (for murder, torture, disappearances, rape, and genocide) threatens Chile's democracy, as tension and strife mount between pro-impunity and pro-justice sectors of society.

Yet justice delayed or denied is impunity entrenched and enjoyed. We are not talking about unpaid speeding tickets or jay walking violations. While democracy and the rule of law can be entrenched in a society if unpaid tickets or jay walking citations are ignored, they will never become entrenched if horrendous crimes are blatantly covered up, and when the guilty parties -- who often profited from the repression -- live freely in the same society.

Some measure of political, moral and legal justice must be done. Pinochet's detention and possible extradition to Spain can only strengthen Chile's democracy, as some of the pending issues of impunity and justice delayed are confronted.

In the US, concern has been expressed that this ruling will result in the bringing of frivolous criminal suits against American military and government officials and agents for direct or indirect commission of gross political and civil rights violations.

This is nonsense. A healthy legal system provides substantive and procedural law to prevent frivolous law suits from proceeding.

Alfred Rubin, a professor of international law at Fletcher School of Law and diplomacy, is "troubled" by how international law reaches across borders. Ignoring that international law by definition reaches across borders, Rubin asks "What's to stop Spain from extraditing Henry Kissinger, who was involved in the coup?"

Yet, if Rubin believes in the rule of law and human rights, why would he object to extraditing Kissinger and trying him for crimes against humanity, if indeed Kissinger committed or knowingly contributed to the commission of such crimes?

Pinochet's detention brings media attention (albeit mostly tepid) to the fact that US officials, at the highest levels, have knowingly provided weapons, training and financial support for, let alone sometimes participating directly in some of the worst violations of political and civil rights in the Americas.

Concerns have been expressed that this case only proceeded because powerful nations (Spain and England) finally decided to apply international law, and that it involved the former leader of a weaker nation. It is worth considering what might have happened if a weaker nation, such as Chile's neighbor Bolivia, had attempted to detain Pinochet, or if it was a former high ranking US official that Britain had detained for alleged crimes against humanity.

These concerns are valid. While this case sets a long overdue precedent, it is a weak precedent and there is no guarantee that other nations will act accordingly.

A call to legal action!

This ruling provides the human rights movement worldwide with a little more legal and political space to seek legal recourse, nationally and internationally, for gross violations of political and civil rights.

Direct collaboration between human rights lawyers and NGOs worldwide should increase, setting up warning systems for when alleged systematic violators of political and civil rights are traveling to another country, and then filing criminal and\or civil proceedings against them.

Pinochet's lucky day

Hopefully, Pinochet will be extradited to Spain to stand trial, so that justice can begin to be served for the surviving victims in Chile, and so that the international human rights law system can be strengthened.

Instead of whining, Pinochet and his supporters should be thankful for international law. They should be thankful that the General was legally detained (with a judicial detention order, of all things); that the charges against him are not frivolous or trumped up; that he has not been tortured; that he has full access to lawyers and a proper defense; that he is not languishing "incomunicado" in a filthy clandestine prison; and that his body has not been found floating down river from Santiago, weeks after he was "disappeared."