The Pinochet Affair: We need a Law that complies with
the moral demands of our time
Open letter from the victims of the Chilean dictatorship, their relatives, their friends, and from all men and women of good will to the House of Lords of the United Kingdom
We, the undersigned, are all either direct victims of former General Augusto Pinochet’s military dictatorship in Chile, or friends and relatives of victims, and/or European citizens and residents, who are aware of the inhuman nature of the former regime.
Chilean-European Co-ordination Against Impunity and for Democracy in Chile.
As Chileans or Europeans we have set up the “Committees Against Impunity in Chile and Latin America” in various European countries.
We are addressing you today in the name of the “Chilean-European Co-ordination Against Impunity and for Democracy in Chile”, a body which co-ordinates the committees in Sweden, Norway, Denmark, Germany, Italy, the Netherlands, Switzerland, Austria, Belgium, Luxembourg, Spain, France and the United Kingdom. This letter also represents the Committees in Canada and in the United States.
Once again we appeal to you, at this delicate juncture when British Justice has once more to decide on an issue whose implications reach far beyond the Chilean situation.
The difficult task of the House of Lords
As we wrote to your colleagues, we fully understand how difficult your position is, considering that common law, limited as it is to the trials of Nuremberg, to the International Tribunals on Bosnia and Rwanda, and to the International Conventions on the issue, calls for an innovative action which would conciliate the English Law on sovereign immunity, the international law on crimes against humanity, and the ethical values which we uphold at the end of the millennium.
Perfecting the Law
Consequently, we respectfully beg that your sentence be fair and in compliance with the principle that any legal innovation must lead towards perfecting the Law. Considering the circumstances, including the fact that even Mr Pinochet’s lawyers have publicly acknowledged their client’s responsibility as head of the DINA, (the country’s “Gestapo”) and his active involvement in the notorious “Operation Condor”, and considering the fact that, as they pointed out, even Hitler could probably not have been tried under English Law, you will understand that it would not be a step forward in our eyes if you failed to innovate in such a way that doubt is no longer possible. Establishing that sovereign immunity is only valid where Human Rights are not violated.
A trial in Europe : the only possibility for Justice to be done!
It seems to us that the only possibility for Justice to be done is for the former dictator to be tried in Spain or in another European country. We would have preferred a trial in Chile, unfortunately the immunity and amnesty measures which still protect him over there as a life senator, rule out this solution. And as you know the International Penal Court has not yet been established and cannot avail itself of the legal instruments which are necessary to try Mr Pinochet.
The Chilean Government tries to put forward a appearance which occults reality
Following on a meeting with commanding officers, the Chilean government decided to intensify measures to try and have the former dictator returned to Chile, insisting that he can be tried in his own country. They even attempted to have your High court broaden the issue beyond the question of sovereign immunity.
On the other hand, lawyers on the side of Human Rights confirmed in a statement published last December by the FASIC that it is impossible that Mr Pinochet be tried in Chile, considering that the Chilean Supreme Court of Justice twice ignored the reprimand addressed by the Commission for Human Rights of the OEA (Organisation of American States) observing a denial of justice in this country in 1997 and in 1998.
Therefore, any suggestion that Mr Pinochet should be tried in Chile is a dilatory move that only aims to remove him from the hold of Justice.
Moreover, it is well-known that in November 1996 a high magistrate appointed by the Supreme Court to prepare the case of the murder by the DINA of the Spanish diplomat Carmelo Soria removed the case to a military jurisdiction which applied the Amnesty Act and that subsequently the crime was left unpunished.
As the lawyers for Human Rights organisations in Chile put it, “It is our intimate conviction based on our experience as Human Rights lawyers that neither the objective nor the subjective conditions necessary to try the former dictator currently exist in Chile, and that the mild condemnation of some underlings responsible for the violation of essential human rights in no way implies that Pinochet could be tried in a Chilean Court. Indeed, you have to remember that so far in Chile no one has been tried for the crime of detention followed by disappearance and that those were condemned turned out to be former soldiers whose responsibility was rarely proven, the trials themselves being a consequence of international pressures. On the other hand, about 99.5 % of cases involving a violation of Human Rights were left without a trial, indeed, without even having attemptd to identify the criminals.”
The rights of the defendant and the rights of the victims
When it cancelled the decision made on 25 November 1998 was set aside, the House of Lords preserved the appearance of impartiality of the Law and thus ensured both the correction of the procedure and the rights of the defendant. This is as it should be. Yet we do not wish to conceal our continued suffering, as victims, friends or relatives of victims, who have been waiting for Justice to be done for over 25 years.
Pinochet thus benefits from the kind of justice that he denied his victims.
Yet we want you to know that we are pleased that British Justice should guarantee the defendant Pinochet his right to a bona fide defence, a right that was denied to our summarily executed relatives and friends. After finding bodies riddled with bullets in their backs, their eyes banded, their hands tied with wires, their bones broken, it is reasonable to believe that the disappeared have suffered a similar destiny, and their remains are scattered throughout the valleys and mountains of Chile, without graves.
But a necessary care to preserve the rights of the defence should not mean that the former general should not be tried. The rights of the defendant ought not to deter from the rights of victims.
Reality and appearance, Justice and ethics
It is important to match an appearance of impartiality with the reality of an impartial justice. It is important too that the United Kingdom should not be seen as a safe heaven for former dictators. It is all the more important to match justice without ethical values, as written out in the Universal Declaration of Human Rights, the fiftieth anniversary of which has just been commemorated.
The next century would not understand if immunity was given to someone who reached power by violating Human Rights and stayed there thanks to similar violence.
Faced with the need to innovate, you can serve humankind as a whole by taking a measure that will bring justice closer to perfection.
We are confident that you too will wave the claim to immunity and thus take a decision that will honour your country, Europe, and the very notion of Justice.
Yours truly, For the Chilean-European Co-ordination, Omar Saavedra Marcelo Calfuquir