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October 2000

PINOCHET LOSES LEGAL IMMUNITY

Even after retiring from the army, Augusto Pinochet, the general who ruled Chile with an iron fist for 17 years, had plans to continue wielding influence over the country’s political life, as a senator-for-life. These plans were wrecked by his decision to visit London, where he was arrested for alleged human rights violations. The latest development in his ongoing trial, which could last more than three years, is the 8 August ruling by the Supreme Court that he no longer has immunity from prosecution.

By Nibaldo Fabrizio Mosciatti


Augusto Pinochet had meticulously constructed the script for the final episode of his film. It was a happy ending. From his post as senator-for-life, he was going to continue wielding influence over Chile’s political life, not only defending what his government had built, but also limiting his interventions to major issues, given that he did not intend to attend all Senate sessions.

This plan to clean up his image was evident when he proposed that 11 September, the anniversary of the coup d’etat that brought him to power in 1973, should no longer be a holiday because it divided the Chilean people.

All was going smoothly until he gave in to the temptation to visit England, a country he had always admired, and where he underwent surgery for his intensifying back pain. Spanish judge Baltazar Garzon took immediate action and had him arrested there.

It was the beginning of the end. The unthinkable end to his story, which has left him without  parliamentary immunity and  facing more  than 150  criminal lawsuits in his country’s courts  (as of  August 2000,  but more are filed every week).  In  mid-1998,  not even the most optimistic of the retired general’s opponents would have imagined he would end up in his current situation.

Pinochet’s visit to London underscores the confidence with which he acted. Ignoring his advisers’ warnings, he insisted on making the trip. Two years earlier, with the Chilean democracy already installed, Pinochet had travelled to the British capital. One day, the Chilean ambassador to London ran to the former dictator’s hotel to urge him to leave immediately because the diplomat’s military contacts had reported that human rights organisations were planning to demand his arrest. Pinochet hurriedly packed his bags and left the country.

The fact that he returned to London after that incident shows not that he underestimated the risks, but rather that he had grown accustomed to living in impunity. He felt untouchable. It was a valid assessment in Chile, but not overseas.

All Chilean lawyers who have been involved in cases against him agree that the London arrest was the blow that destroyed the armour the former dictator had erected around himself.

Though many of its officials celebrated Pinochet’s arrest in London, the Chilean government insisted that the country’s own courts were the only ones with jurisdiction to try the former commander-in-chief of the army. It was a sort of promise to the international community that led to an inevitable scenario: the acceptance of criminal lawsuits filed against Pinochet in Chile and the assertion of a truism - that all citizens are equal under the law.

But it cannot be overemphasised that Pinochet’s arrest in London opened the way for lawsuits against him in his home country. His detention in Great Britain served as a kind of exorcism that eliminated the former dictator’s status of ‘untouchable’.

The repeal of Pinochet’s legal immunity means the courts have determined there exist ‘well-founded suspicions’ that he has some responsibility in 19 of the crimes attributed to the ‘caravan of death’ (a military mission in October 1973 that toured Chile’s prisons, summarily executing 72 people and ‘disappearing’ their bodies). It has also been an opportunity for Chilean judges, at least in part, to clean up their image as collaborators of the military government

It should be noted that the Chilean Supreme Court endorsed the 1973 coup, recognising the legitimacy of the Military Junta just days after it occurred. Now, with reason,  Pinochet regrets  that he did not shut down the courts,  that he did not remove the magistrates from their posts (though he did handpick those who would be promoted), and that he provided them with powers they had not previously held.

The collaboration of the justice system with the military had meant that judges applied the letter of the law (dictated by the legislative branch, which was the Military Junta), rejected more than 5,000 legal petitions, and stayed the proceedings without investigating cases regarding human rights violations. It was commonplace for a lawsuit about an illegal arrest to be rejected after the Ministry of Interior reported to the judge that no police agency had arrested the person in question - and that would be the end of the matter.

This is why the judges’ change in attitude has so infuriated the Chilean right wing. In particular, the Independent Democratic Union (UDI) party, made up of former Pinochet collaborators, claims that the Pinochet trial is fundamentally a political case. Furthermore, the retired admiral Jorge Martinez Bush, who is now a designated senator and formerly served as commander-in-chief of the navy, declared that the stripping of Pinochet’s immunity is equivalent to a ‘judicial coup d’etat’.

Over the last year, the Chilean judges have modified their interpretation of the Amnesty Law, decreed in 1978 and covering the period from the military coup to that date. They now say that first the cases should be investigated to determine if crimes were committed, establishing their circumstances and perpetrators, and then grant amnesty to those found guilty.

Additionally, the continuation of investigations into the cases of the detained-disappeared is due to the fact that they created the category of ‘permanent kidnapping’, which means the crime is ongoing as long as the victims’ bodies are not found to verify their deaths, thus impeding the application of amnesty. This has led some right-wing leaders to argue, without a hint of dissimulation, that this is but a ‘fiction’ because the detained-disappeared are dead. In other words, they were assassinated. How? Why? It doesn’t matter to them. What matters is that the amnesty is upheld.

But the veritable ‘revolution’ in the courts has meant the filing of a mounting number of criminal lawsuits which involve more than 50 military officials, retired and active. On this point it is important to emphasise that the human rights lawyers themselves say the military officers involved in the crimes probably number less than 100, with the same names appearing repeatedly in the cases of repressive crimes committed under the dictatorship.

The removal of Pinochet’s legal immunity as senator-for-life occurred shortly after the so-called Panel for Dialogue on Human Rights, created by the former Eduardo Frei government,  signed an accord  to gather  information on the fate of  the disappeared, guaranteeing confidentiality for whoever provided such data. The panel includes lawyers known for their human rights work, nationally known religious, cultural and academic figures,   and  officials  from  the  various  military  branches  acting  on  behalf  of   their commanders-in-chief. It could be said that this forum is the first in which the military has taken part in negotiations during the democratic transition so far.

The Supreme Court ruling triggered immediate turmoil. The retired military officers said it meant the end of the human rights panel because they had lost trust, and that no one who had information on the disappeared would come forward for fear of facing trial.

The political right wing insisted there had been an ‘implicit’ agreement that the functioning of the panel was conditioned upon Pinochet being left in peace, with his longed-for impunity intact. This was their response even though the Ricardo Lagos government had stressed that the Pinochet case would unfold in the judicial branch while the case of the disappeared would continue in the panel, with no relationship between the two.

The show of solidarity by the military commanders - visiting Pinochet at his home or releasing statements of support - was, of course, expected, though it likely proved disconcerting for anyone trying to analyse Chile as just any democracy, without taking into account the after-effects of the 17-year military government.

The commander of the army, lieutenant general Ricardo Izurieta - the first to visit Pinochet after the Supreme Court ruling was announced - told journalists that as far as the Pinochet case is concerned, history’s ruling ‘is still pending’, and when that day comes the former dictator is going to have ‘the seat of honour he deserves’. Izurieta’s idea of that ‘seat’ is surely something completely different from what most of the world imagines.

And in that profound divergence lies one of the greatest challenges for the Chilean democracy: the full democratisation of its institutions, which includes limiting the power of the armed forces. It must not be forgotten that they, according to the Constitution approved in 1980, are the ‘guarantors’ of institutional order, which makes them the overseers of all government branches.

In other words, the military leaders, based on the Constitution, could push for a sort of ‘silent coup’ if they decide the authorities have deviated from the correct route. It is what  El Mercurio columnist  Hermogenez  Perez de Arce asked  for,  in part,  when he pointed out that the National Security Council - made up of the three armed forces commanders and the head of the military police, as well as the national president and the presidents  of  the  Senate,  the  Supreme  Court  and  the Comptroller’s  Office  -  should convene because the ruling to strip Pinochet of his legal immunity constituted a violation of institutional order.

No such thing happened because that alternative is not really an option. The ruling of the Supreme Court, which is devoted to the law and in compliance with the formalities of the case, could hardly be accused of transgressing institutional order. It was, simply, the first arrow to pierce a man who in London saw his armour begin to crumble. - Third World Network Features

About the writer: Nibaldo Fabrizio Mosciatti is a Chilean journalist and political analyst.

2102/2000

 


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