By Dr George Venturini
Heinz Alfred ‘Henry’ Kissinger obtained a Ph.D. at Harvard University in 1954. His interest was on Castelreagh and Metternich – two empire builders. He devoted his life to sublimate them.
In an incendiary, studiedly defamatory book the late Christopher Hitchens described him as “a mediocre and opportunist academic [intent on] becoming an international potentate. The signature qualities were there from the inaugural moment: the sycophancy and the duplicity; the power worship and the absence of scruple; the empty trading of old non-friends for new non-friends. And the distinctive effects were also present: the uncounted and expendable corpses; the official and unofficial lying about the cost; the heavy and pompous pseudo-indignation when unwelcome questions were asked. Kissinger’s global career started as it meant to go on. It debauched the American republic and American democracy, and it levied a hideous toll of casualties on weaker and more vulnerable societies.”
The story is all here: from the martyrdom of Indochina to becoming the real backchannel to Moscow on behalf of his new client: Donald Trump.
Editor’s note: This outstanding series by Dr Venturini is published bi-weekly (Wednesdays and Saturdays). Today we publish Part Nine. Here is the link to Part Eight; The Bank of Crooks.
A pioneer and advocate of universal jurisdiction, Judge Baltasar Garzón of the Audiencia Nacional would gain worldwide recognition by securing the arrest of Pinochet in London in 1998 for crimes committed in Chile in the 1970s. This ushered in the heyday of international justice.
The Pinochet case inspired victims of abuse throughout Latin America to challenge transitions from dictatorship which allowed the perpetrators of atrocities to go unpunished. These temporary accommodations with the anciens régimes did not extinguish the thirst of victims and relatives to find out the truth and to bring their tormentors to justice. International and national courts ruled that amnesties could not stand in the way of a state’s duty to investigate the worst international crimes.
On 10 October 1998 Judge Garzón issued an international arrest warrant when he learned that Pinochet was in London for a medical check-up. Pinochet was arrested on 16 October. At the heart of the indictment were the deaths and ‘disappearances’ of Argentines, Chileans, Spaniards and others during Pinochet’s dictatorship.
The charges included 94 counts of torture of Spanish citizens, the 1975 assassination of Spanish diplomat Carmelo Soria, and one count of conspiracy to commit torture – allegations of abuses had been made numerous times before Pinochet’s arrest, including since the beginning of his rule, but never acted upon. Still struggling with the conditions set by the difficult transition to democracy, the Chilean government of the Concertación – the Consultative Government, then headed by President Eduardo Frei, opposed his arrest, extradition to Spain, and trial.
Initially, Judge Garzón sought the indictments because of the murder of Spanish citizens, but later he broadened his jurisdiction on the basis of crimes against humanity regardless of the nationality of the victims. This was no rash decision; it was the logical result of at least two years of painstaking investigation in Spain into both the Argentine and Chilean dictatorships. Had he not investigated the crimes committed in Argentina, Judge Garzón – quite likely – might not have reached Pinochet. Another judge before him had been exposed and had yielded to pressure from political, military and business circles, and placed the case aside. The Chilean case fell on Judge Garzón’s lap because of that surrender of judicial independence.
Investigation of the Argentine case led Judge Garzón to Operation Condor. Since 1996 Judge Garzón had gathered mountains of incriminating evidence on Condor, including documents from the C.I.A., D.I.N.A. and the F.B.I. Based in Santiago, Operation Condor had worked closely with the D.I.N.A., and reported directly to Pinochet.
Judge Garzón’s original extradition warrant called for Pinochet to stand trial for genocide, terrorism and torture: Art. 23.4 of the 1985 Ley Orgánica del Poder Judicial – Organic Law of the Judicial Power, specifically confers on Spanish courts jurisdiction for these crimes. Garzón further charged Pinochet with ‘crimes against humanity,’ as defined by the 1946 Nuremberg Principles. These ‘universal crimes against basic humane standards’ – which include systematic torture, killings, ‘disappearance’, et cetera – are not subject to the statute of limitations and can be tried at any time in any nation under the principle of universal jursdiction. Judge Garzón also cited the major international human-rights treaties and conventions to which Chile, Spain and the United Kingdom are signatories.
Judge Garzón was quite familiar with the work of The [Chilean] National Commission for Truth and Reconciliation, the Rettig Commission and with the Retting Report, issued in February 1991. The Rettig Commission had strengthened the basis for the warrant, marking an unprecedented use of universal jurisdiction to attempt to try a former dictator for an international crime.
Pinochet would be held under house arrest for seventeen months in London, pending a decision on his extradition to Spain, until March 2000, when the Home Secretary of the Blair Government decided to release him on the ground that the dictator was deemed unfit to stand trial.
The British Establishment, still under the spell of Margaret Thatcher who had long been a visceral admirer of Pinochet’s ‘radical free market economic policies’ and who wrote immediately a letter to The Times demanding the release of her friend, found itself in a political storm at home and in a diplomatic difficulty with Chile.
For seventeen months a battle would be hard-fought through the English legal system. Immediately upon his arrest Pinochet protested that Chile’s sovereignty was being violated and claimed immunity from prosecution as a former head of state under the State Immunity Act 1978. On 28 October 1998 the Divisional Court of the Queen’s Bench Division decided in his favour. Meanwhile the Chilean Government protested at the arrest.
On appeal, on 25 November 1998 the House of Lords reversed the lower court’s decision and held, by a three to two decision, that a former head of state is not entitled to immunity for such acts as illegal detention, torture and crimes against humanity committed while he was in his post.
On 10 December 1998 the Home Secretary issued an ‘Authority to proceed’ in order to allow the continuation of extradition proceedings. In so ordering he said to have had regard to such relevant considerations as the health of Pinochet, the passage of time since the commission of the acts and the political stability of Chile. While denying ‘Authority to proceed’ on the charge of genocide, the Home Secretary stated that all the other charges in the Spanish request of extradition amounted to extradition crimes and were not of a political character.
But things did no proceed that smoothly. There was a glitch. Lord Hoffman who had voted with the majority was known as a strong supporter of Amnesty International, and this was considered as a possible stain on the judgment.
Dramatically, on 17 December 1998 the Appeals Committee of the House of Lords reconsidered the decision and decided that, in the interest of transparency in justice, it was proper to set aside its prior judgment and to grant a re-hearing of the case. A new hearing before a panel of seven Law Lords was scheduled for 24 March 1999.
Immediately, the Fédération Internationale des Ligues des Droits de l’Homme – International Federation for Human Rights, F.I.D.H., which gathers 164 human rights organisations throughout the world, expressed its disappointment about the 17 December 1998 decision by the Appeals Committee, which invalidated the previous decision taken by the members of the same Court on 25 November 1998, a decision which legitimately refused Pinochet the status of immunity. At the same time, however, the F.I.D.H. noted that the decision was exclusively motivated by a legal irregularity consisting in a suspicion of partiality weighing on Lord Hoffmann – which was a debatable point seeing that Amnesty International was not a litigant in the Pinochet case, but rather auditioned as a third party during the trial. The F.I.D.H. therefore called upon the judges of the House of Lords, who were to be asked to examine the substance of the case, to uphold the previous decision and thus to confirm that it was not possible to invoke immunity status for an ex-head of state suspected of massive human rights violations – that he had even attempted to justify – and which could not, in any case, be considered as part of his functions.
In F.I.D.H.’s view British justice should play its duty to join in the struggle against a finally unsteadied impunity, which had recently – with the adoption of the International Criminal Court and the Pinochet case – witnessed an exceptional international movement mobilised to enable the prosecution of those responsible for the worst human rights violations.
The F.I.D.H. finally recalled that legal procedures against Pinochet had not only been undertaken by Spain, but also by other European countries, which had consequently prepared formal extradition requests. Furthermore, certain complaints, including those lodged in France, did not even raise the issue of immunity of jurisdiction since they concerned facts which occurred either before Pinochet was proclaimed as head of state, or crimes of ‘forced disappearance’ which were to be regarded as crimes of a continuous nature.
In the meantime the Chilean Government requested the release of the former dictator on the basis of various legal arguments, and stated the wish to have him returned to Chile for trial before the Chilean courts following complaints lodged against him there.
The F.I.D.H., along with its affiliated organisation in Chile, the Corporación de Defensa y Promoción de los Derechos del Pueblo – Commission for the Promotion of Peoples’ Rights, C.O.D.E.P.U. sent an International Mission of Enquiry to study the present state of complaints against Pinochet and against Chilean Army officers in general. This Mission worked in Santiago from 3 to 10 March 1999. It was composed of Messrs. Claude Katz, a barrister in Paris and Secretary General of the F.I.D.H., Antonio Donate, a Spanish judge and member of the ‘Judges for Democracy Association’, and Juan Carlos, barrister in Buenos Aires and member of the ‘Legal Action Committee’. The Mission found various obstacles to bringing a legal case against Pinochet : 1) Decree Law of 19 April 1978 granting amnesty for acts occurring from 11 September 1973 to 10 March 1978, the period in which the most serious crimes were committed by the Chilean dictatorship, 2) a full interpretation of constitutional and legal texts giving jurisdiction to military courts over civil courts, 3) the immunity enjoyed by Pinochet as Senator for life, appointed under Art.45 of the 1980 Constitution.
There was no evidence which would allow the Mission to anticipate the removal of these obstacles to allow prosecution of Pinochet. More generally, the Mission noted that out of 3,197 cases brought before Truth and Reconciliation Commission only 19 had resulted in convictions since 1990, the year of Chile’s transition to democracy. These were mainly convictions of low-level officers.
Certainly these obstacles could be formally removed, but the Constitution then in force, drawn up in 1980 by Pinochet himself, conferred a primary role on the Senate, in view of its power to nominate Supreme Court judges and to lift the immunity of Pinochet. The Mission acknowledged the important investigations accomplished by Judge Juan Guzmán Tapia, who would gain international recognition for being the first judge to prosecute Pinochet on human rights charges after Pinochet’s return to Chile from London. As at 16 March 1999 Judge Guzmán was in charge of 18 cases covering several thousand victims, following substantial evidence of crimes committed by Pinochet and other military officers. Judge Guzmán held that the crime of illegal detention followed by ‘disappearance’ is a crime not affected by any amnesty law.
On 24 March 1999 the House of Lords rendered its final decision on the case. By a vote of six to one it was held that Pinochet was not entitled to absolute immunity, but only as from 8 December 1988 and only with respect to some charge as brought by Spain. The judgment held that before that date Pinochet had immunity from legal proceedings in English courts. A narrow view of an international treaty signed and ratified by several countries, including Britain, Chile and Spain, was the ground for the decision. This invalidated most, but not all, of the charges against Pinochet; but the outcome was that extradition could proceed.
These judgments are historic and constituted a new step forward in the evolution of international criminal law and the exercise of universal jurisdiction.
The F.I.D.H. welcomed the new ruling by the House of Lords, partially confirming the preceding decision of the same jurisdiction, dated 25 November 1998, which had been invalidated the following 17 December.
The decision confirmed the advance of International Law in the fight against impunity and responded to the requirement of justice for victims.
Nevertheless, the F.I.D.H. had some reservations about the ruling of the House of Lords in which it had restricted the extradition of Pinochet to Spain to the sole acts of torture that he committed after 1988. The F.I.D.H. considered that these acts of torture were part of a larger category of crimes against humanity, and could not be subject to any statute of limitations or amnesty. The F.I.D.H. recalled that, in any case, this restriction had no impact on the other grounds invoked by Judge Garzón, and employed to justify the extradition request with international warrants against Pinochet, in particular the crime of terrorism and the crime of ‘disappearance’, the latter being considered a continuous crime. The F.I.D.H. asked the British authorities to proceed rapidly in extraditing Pinochet to Spain, so that he could be judged following the complaints lodged against him.
The F.I.D.H. underlined, on the other hand, that several procedures had been started in other European countries in regard to Pinochet with extradition requests made, and reiterated its request to the British authorities to follow up on these demands.
In April 1999 former Prime Minister Margaret Thatcher and former President George H. W. Bush called upon the British Government to release Pinochet. They urged that Pinochet be allowed to return to his homeland rather than be forced to go to Spain. On the other hand, United Nations High Commissioner of Human Rights, Mary Robinson, hailed the Lords’ ruling, declaring that it was a clear endorsement that torture is an international crime subject to universal jurisdiction. Furthermore, Amnesty International and the Medical Foundation for the Care of Victims of Torture demanded Pinochet extradition to Spain. Finally, in protest against Spain’s action, Chile withdrew for a time its ambassador from Madrid.
Strangely, the House of Lords’ reasoning had become quite different. Previously, they had argued that Pinochet did not have state immunity because crimes against humanity could not be regarded as the actions of a head of state; only actions of the state brought immunity with them. Since this was an argument based on the scope of immunity as such, this judgment said in effect that any former head of state lost their immunity once they engaged in crimes against humanity. Now, however, the restriction of immunity was argued for in a more clearly legally grounded way, by explicit reference to an international treaty signed, ratified and – in theory – made effective by, among others, Britain, Chile and Spain.
It followed that immunity was not recognised from crimes covered by the United Nations Convention Against Torture when the convention came into effect in Britain on 8 December 1988. Pinochet had immunity before that date but no immunity after. Therefore, most of the charges brought by Spain could not be of consequence in British courts for the extradition of Pinochet. Only two of the charges could be considered: one of torture and another of conspiracy to torture.
The case was returned to the Home Secretary, Jack Straw, so that he might reconsider his position vis-à-vis the ‘Authority to proceed’ to extradition. The ruling on the basis of which Straw had issued his first Authority had now been overruled, and therefore he would have to consider the case afresh.
Judge Garzón wasted no time in submitting further allegations to the Crown Prosecution Service which would meet the requirements laid down by the Law Lords. He proffered 43 additional charges of torture and conspiracy to torture which had taken place after 8 December 1988. He further argued that all cases of ‘disappearance’ should be considered under the 1992 United Nations Declaration on the Protection of Disappeared Persons as cases of torture.
Pinochet’s lawyers applied for a judicial review of the Home Secretary’ earlier ‘Authority to proceed’; and, further, they requested a writ of habeas corpus for the release of Pinochet from house arrest. The Law Lords adjourned the hearings to 15 April on both requests to give time to the Home Secretary to reconsider his position. On that date the Home Secretary anew issued an ‘Authority to proceed’, on the ground that what charges remained were sufficient for the extradition of Pinochet. There were no apparent reasons to stop extradition proceedings, either on humanitarian grounds of Pinochet alleged ill-health or on political grounds: consideration for a budding democracy in Chile and the pass-partout ‘national interest’. Pinochet’s lawyers application for a judicial review was turned down on 27 May 1999. They could have made another, similar application, but on 7 June the defence team decided against this. Extradition proceedings would finally commence.
On 8 October 1999 Ronald Bartle, Deputy Chief Metropolitan Magistrate ruled that under the 1989 Extradition Act it was clear that Pinochet could indeed be extradited to Spain, subject to the Home Secretary’s final decision. The Deputy Magistrate allowed the additional charges proffered by Judge Garzón and, importantly, decided that charges of conspiracy and of ‘disappearance’ before 8 December 1988 could be included, on the ground that conspiracy is a continuous offence and “the effect on the families of those who disappeared can amount to mental torture.”
It was clear that Pinochet’s legal defences were quickly running out. So his lawyers, citing frail and deteriorating health, asked that Pinochet be released. As evidence, they provided a report from a medical examination – done without the presence of physicians called by the prosecution and without the appropriate neurological, gerontological, and psychiatric specialists.
On 5 November 1999 the Home Secretary requested that Pinochet submit himself to independent medical tests to ascertain whether in fact he was as ill as he claimed to be. No specific details had been provided at this point, nor was the prosecution provided with a copy of any report.
After some medical tests, the Home Secretary ruled in January 2000 that Pinochet should not be extradited. This triggered protests from human rights non-government organisations, and led the Belgian Government, along with six human rights groups – including Amnesty International – immediately to file a complaint against Straw’s decision before the International Court of Justice. Belgium, as well as France and Switzerland, had filed extradition requests in the wake of Spain’s request. For the first time several European judges had applied the principle of universal jurisdiction, declaring themselves competent to judge crimes committed by former heads of state, despite local amnesty laws.
On 12 January 2000 the F.I.D.H. sent an open letter to the Home Secretary. In it, it indicated that it was “extremely preoccupied by your latest decision to free the former Chilean dictator, Augusto Pinochet, for ‘medical reasons’. The F.I.D.H. finds this decision shocking as it supposes that Pinochet’s failing health condition would absolve him of any responsibility with regards to crimes committed during his dictatorship.” Furthermore, although this decision is said to be based on medical expert reports which conclude that “Pinochet would be unfit to stand trial, and that no change to that position can be expected,” the F.I.D.H. was concerned by the fact that the medical reports had been evaluated in secret by the Home Secretary, rather than by a court, and without any possibility for the prosecution to challenge the medical examinations.
“Your office – wrote the F.I.D.H. – has repeatedly maintained that the Pinochet case was a judicial matter for the courts, yet, it appears that the medical examinations and reports relating to Augusto Pinochet’s health have not been subject to judicial supervision. The F.I.D.H. thus requests that a counter medical examination be undertaken and that the prosecution be entitled to see and challenge the medical reports. Furthermore, it should be up to the courts and not a political official to decide whether Augusto Pinochet is fit to undergo trial on torture and crimes against humanity.”
Despite all that, the Home Secretary decided to release Pinochet on the ground that, according to the examination, the defendant had suffered two small strokes and would be unable adequately to manage his defence. The prosecution made a predictably vigorous appeal, asking that it also be allowed to examine the defendant. In an extraordinary action, the president of the Ethics Committee of the British Medical Association also lodged a protest, arguing that ‘medical confidentiality’ was being mis-used. As a defendant, Pinochet’s medical condition was of ‘forensic importance,’ with the public issues far outweighing concerns for personal privacy. Adding to the controversy was public disagreement among the examining physicians as to Pinochet’s condition and prognosis.
The secrecy surrounding the examination itself, and the ambiguity of the findings, tainted the proceedings, which appeared simply to collapse under political pressure.
On 3 March 2000 Pinochet flew back to Chile. While in London, he was always photographed sitting weakly in his wheelchair; on the tarmac in Santiago, he spontaneously rose to his feet, and walked to his supporters, without even using his cane. He was first greeted by his successor as head of the Chilean Armed Forces, General Ricardo Izurieta!
That very month the Chilean Congress approved a constitutional amendment introducing the status of ‘ex-president,’ which granted Pinochet immunity from prosecution and guaranteed him a financial allowance. In exchange, it required him to resign from his seat of senator-for-life. Of the legislators, 111 voted for, and 29 – mostly, if not all, from the Left – against.
On 7 August 2000 the Chilean Supreme Court lifted Pinochet’s parliamentary immunity with regards to the events of the Caravana de la muerte – the Caravan of death case. The Caravan of death was a Chilean Army death squad which, following the coup, flew by helicopter from south to north of Chile between 30 September and 22 October 1973.
On l December 2000 Judge Juan Guzmán Tapia’s was able to charge Pinochet for the kidnapping of 75 opponents in the Caravan of death case. Judge Guzmán advanced the charge of kidnapping as the 75 were officially ‘disappeared’: even though they were all most likely dead, the absence of their corpses made any charge of homicide quite difficult. But ten days later the procedure was suspended by the Court of Appeal of Santiago for medical reasons. Beside the Caravan of death, 177 other complaints had been filed against Pinochet.
In January 2001 court-appointed examining physicians stated that Pinochet was suffering from a ‘light dementia’, which did not impede him from facing Chilean justice. Therefore, on 29 January 2001 Judge Guzmán indicted Pinochet for his responsibility as indirect perpetrator of crimes of kidnapping and murdering of 57 people and as a direct perpetrator of 18 more murders, and ordered his arrest. However, the judicial procedure was again suspended on 9 July 2001 because of alleged ill-health reasons.
In July 2002 the Supreme Court dismissed Pinochet’s indictment in the various human rights abuse cases, on the ground that he suffered with ‘vascular dementia’. The debate on Pinochet’s mental faculties continued, his legal team claiming that he was senile and could not remember, while others specialists claimed that he was only physically affected but retained all control of his faculties.
Pinochet would spend the last four years of his life in the indignity of pleading, maybe simulating, dementia and the sadness of suffering from it.
Shrewdly, he resigned from his senatorial seat shortly after the Supreme Court’s July 2002 ruling, thus benefiting from the 2000 constitutional amendment granting him some immunity from prosecution. Thereafter, he tried to live quietly – or so he hoped, rarely made public appearances and was notably absent from the events marking the 30th commemorations of the coup on 11 September 2003. But on 28 May 2004 the Court of Appeals overturned its precedent decision, and ruled that he was capable of standing trial. In arguing their case, the prosecution submitted a recent televised interview that Pinochet had given for a Miami-based television network, which raised doubts about his alleged mental incapacity. The judges agreed and, on 27 August 2004 – in a 9 to 8 vote, the Supreme Court confirmed the decision that Pinochet should lose his senatorial immunity from prosecution, this time with regards to the forced disappearances during the Operación Cóndor.
Pinochet was charged with several crimes on 2 December of that year – including the 1974 assassination of General Prats, and the Operation Colombo case which cost 119 lives – and was again placed under house arrest. Questioned by his judges in order to know if, as President, he was the direct head of D.I.N.A., he answered: “I do not remember, but it is not true. And if it were true, I do not remember.”
On 13 December 2004 Judge Guzmán indicted Pinochet over the ‘disappearance’ of nine opposition activists and the killing of one of them during the regime. In January 2005 the Chilean Army accepted institutional responsibility for past human rights abuses. The Supreme Court reversed the Court of Appeals ruling in the Prats case on 24 March 2005, and thereby affirmed Pinochet’s immunity.
In the Operation Colombo case, involving the killing of 119 dissidents, the Supreme Court decided on 14 September 2005 to strip Pinochet of his immunity. The following day he was acquitted of the human rights case due to his ill-health. Late in November he was again deemed fit to stand trial by the Supreme Court and was indicted on human rights offences, for the ‘disappearance’ of six dissidents arrested by Chile’s security services in late 1974, and again placed under house arrest, on the eve of his 90th birthday.
On 9 September 2006 Pinochet was stripped of his immunity by the Supreme Court and indicted by Judge Alejandro Madrid – Judge Guzmán’s successor in the case – for kidnappings and torture at the ‘Villa Grimaldi’ detention centre and on other grounds.
On 26 September 2006 the Inter-American Court, in the case of Almonacid Arellano confirmed the incompatibility between the amnesty decree and the American Convention of Human Rights and therefore decided that the amnesty had no legal effect.
On 18 October 2006 Judge Alejandro Solis interrogated Pinochet, who was then under house arrest for his role in the torture of 23 survivors and the ‘disappearance’ of 36 others in the ‘Villa Grimaldi’ torture centre. Furthermore, Pinochet was indicted in October 2006 for the assassination of D.I.N.A. biochemist Eugenio Berrios in 1995. On 30 October Pinochet was charged with 36 counts of kidnapping, 23 counts of torture, and one of murder for the torture and ‘disappearance’ of opponents of his regime at ‘Villa Grimaldi’.
On 27 November 2006 Pinochet was again ordered to house arrest for the kidnapping and murder of two bodyguards of Salvador Allende who were arrested on 9/11 and executed by a firing squad of the Caravan of death. The day after Judge Víctor Montiglio charged Pinochet in the Caravan of death case, and ordered him to house arrest.
Still charged of a number of crimes, Pinochet died on 10 December 2006 – ironically on Human Rights Declaration Day, possibly demented, possibly unable to distinguish the time when he was pray of dementia from that when he found it convenient to simulate it, possibly unconscious, hence un-haunted by his crimes, and anyway without having been convicted in any case, at least in life.
At the end of 2010 Pinochet was tried in absentia with 14 other Chilean officers before a French court.
Next installment Saturday: Henry Kissinger – the man behind the rise of a dictatorship.
Dr. Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. He may be reach at George.Venturini@bigpond.com.au.