The Pinochet case
The relatives of those who “disappeared” or were extrajudicially
executed during the military government of General Augusto Pinochet are
still waiting to find out what happened to their loved ones. Thousands
of victims of arbitrary detention, torture and exile also await justice.
The vast majority of those who abused their positions in the Chilean
state apparatus to order and carry out human rights violations under
the military government (1973 to 1990) remain unpunished.
Augusto Pinochet was arrested in the United Kingdom (UK) on 16 October
1998, and at the end of the year he was still in detention waiting
for the UK courts to decide his future. His arrest led to a number
of positive developments in the application and interpretation of international
human rights law. Fundamental principles were reaffirmed, such as the
scope of universal jurisdiction and the absence of immunity from prosecution
for former heads of state accused of crimes such as crimes against
humanity and torture.
On 11 September 1973 General Augusto Pinochet led a bloody coup in
Chile, and his military junta immediately embarked on a program of
repression: constitutional guarantees were suspended, Congress was
dissolved and a country-wide state of siege was declared. Torture was
systematic; “disappearance” became a state policy.
In November 1974 AI published its first report on the gross human
rights violations in Chile, following a fact-finding mission to the
country in the early months after the coup. Since then AI has published
hundreds of documents and appeals on behalf of the victims and has
supported the struggle of victims and their relatives seeking truth
and justice. The fate of most of those who “disappeared” in
Chile during the military government remains unknown. However, there
is overwhelming evidence that the “disappeared” were victims
of a government program to eliminate perceived opponents.
In the course of a long search by relatives, human remains have been
discovered in clandestine graves and hundreds of former detainees have
made statements confirming that the “disappeared” were
held in detention centres.
Following the return to civilian rule in 1990, two institutions were
created to contribute to establishing the truth about “disappearances”,
extrajudicial executions and deaths from torture by state agents. The
National Commission on Truth and Reconciliation and its successor,
the National Corporation on Reparation and Reconciliation, documented
the cases of more than 3,000 victims of these human rights violations.
For more than 25 years, relatives of the victims in Chile have campaigned
for justice and truth. They have been blocked by several mechanisms
which guarantee impunity to those responsible and prevent effective
judicial investigations within Chile. The government of President Eduardo
Frei Ruiz-Tagle has pursued all possible avenues to secure the release
of Augusto Pinochet, to obtain his return to Chile and to prevent his
trial in Spain. The Chilean government has justified its endeavours
in the name of national sovereignty, the right of the Chileans to deal
with their own past, and national reconciliation.
While the Chilean authorities have repeatedly stated that Augusto
Pinochet can be tried in Chile, no attempts have been made to remove
the obstacles to such a trial. Chief among these are the fact that
Augusto Pinochet, as a senator for life, enjoys parliamentary immunity;
that cases involving members and former members of the armed forces
accused of human rights violations come within the jurisdiction of
military courts; and the application of the Amnesty Law by military
and civilian courts.
Crimes committed in Chile between 11 September 1973 and 10 March 1978
fall within the scope of the Amnesty Law decreed in 1978 by General
Augusto Pinochet, then President of Chile. Although the Amnesty Law
was declared constitutional by the Chilean Supreme Court, the Inter-American
Commission on Human Rights and the UN Human Rights Committee have
stated that it is incompatible with Chile’s obligations under international
law. The Amnesty Law, which can only be annulled by Congress, effectively
guarantees impunity to those responsible for systematic and widespread
human rights violations and remains a major obstacle to bringing
Augusto Pinochet to justice in Chile.
The crimes against humanity committed in Chile since 1973 are subject
to universal jurisdiction. This principle has been recognized under
international law since the establishment of the International Military
Tribunal of Nuremberg with jurisdiction over crimes against humanity
irrespective of where those crimes had been committed.
The principles articulated in the Nuremberg Charter and Judgment were
recognized as international law principles by the UN General Assembly
in 1946. Similarly, torture is a crime which under international law
is subject to universal jurisdiction.
The judicial investigation initiated in Spain by the Spanish National
Court at the request of victims and relatives, the Spanish government’s
submission of a formal request for the extradition of Augusto Pinochet,
together with the UK House of Lords rulings against his immunity
as a former head of state constitute some of the most important developments
in human rights since the adoption of the Universal Declaration of
Human Rights in 1948.
The ruling of UK Magistrate Ronald Bartle, of Bow Street (London)
Magistrates’ Court, that the extradition of Augusto Pinochet
should be allowed to proceed represents another step towards the acceptance
of universal jurisdiction in cases of human rights violations and the
universality of international human rights standards. The Magistrate
considered that the effects of “disappearances” can amount
to mental torture for the relatives of the “disappeared” and
left it to a trial in Spain to decide.
International human rights mechanisms have already provided this definition.
Article 1(2) of the UN Declaration on the Protection of All Persons
from Enforced Disappearance of December 1992, states: “Any act
of enforced disappearance... inflicts severe suffering on them and
their families. It constitutes a violation of the rules of international
law guaranteeing, inter alia,... the right not to be subjected to torture
and other cruel, inhuman or degrading treatment or punishment”.
The Inter-American Court of Human Rights, the European Court of Human
Rights, the UN Human Rights Committee and the Inter-American Commission
on Human Rights have all stated that “disappearances” per
se violate the right of the relatives of the “disappeared” not
to be subjected to torture or ill-treatment.