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Seeking Justice in Chile: A Personal History
by Steven Volk
The cases of Horman and Teruggi are part of a growing body
of legal cases brought against Pinochet and his lieutenants, cases that
are also drawing closer to U.S. officials involved in designing and implementing
U.S. policy in Chile. When Pinochet left the presidency in early 1990,
he left under the terms of a Constitution that he had written in 1980
to reflect his own perspective. He decreed an amnesty for all criminal
charges against the military arising before 1978, and he declared that
all former presidents (himself included) would be given a life tenure
in the Senate, where they would be covered by congressional immunity from
prosecution. To add to his sense of protection, Pinochet continued as
Commander-in-Chile of the Armed Forces until 1998, always ready to remind
his critics that he would be ready to do it all again if he thought that
was necessary.
Although the former
dictator could control events in Chile, he was not able to cow foreign
judges interested in pursuing him, and was arrested during a 1998 London
visit on a warrant from Spanish judge Baltazar Garzón. After more
than a year of deliberations, the British Law Lords, Britain's highest
court, decided on appeal that no government official could claim "sovereign
immunity" from prosecution and that Pinochet could be extradited to stand
trial in Spain for crimes against humanity. In other words, in the monumental
decision of the British justices, government leaders could not escape
the consequences of their actions simply by arguing that they acted as
legitimate political officials. Pinochet ultimately
was sent back to Chile rather than to trial in Spain, but the process
that Judge Garzón began would not be halted. A divided Chilean
parliament stripped Pinochet of his congressional immunity in at least
one case (the so-called "Caravan of Death" prosecution which involved
the deaths of 72 Allende supporters rounded up after the coup) and forced
him to respond to the growing number of cases brought against him in Chile
as well as requests for his extradition from Spain, Belgium, France, and
Argentina. Pinochet's lawyers have argued that he is mentally incompetent
to stand trial, a case still before Chile's Supreme Court, although it
is likely that this court will confirm the lower court's ruling. The audacious actions
of Baltazar Garzón and Juan Guzmán put in stark relief the
Bush Administration's May 6 decision to "unsign" the treaty establishing
an International Criminal Court. Under the banner of U.S. sovereignty,
the Administration has rejected international solutions on such diverse
issues as arms control, the laws of war, human rights and environmental
protection. The administration justifies this specific "unsigning" on
the grounds that the criminal court will create an unchecked prosecutorial
power that could bring U.S. citizens to the dock, even though the probability
of successfully pursuing a politically motivated case against U.S. citizens
is virtually nil. More to the point are Secretary of Defense Donald Rumsfeld's
objections. "By putting U.S. men and women in uniform at risk of politicized
prosecutions," Rumsfeld said, the court " could well create a powerful
disincentive for U.S. military engagement in the world." The point remains
that U.S. citizens already can be brought before foreign and international
tribunals for the limited set of offenses--crimes against humanity, war
crimes and genocide--in the category of "universal crimes" over which
the international court will have jurisdiction with or without a U.S.
signature. With this in mind, Congress recently approved the "American
Service Members Protection Act" authorizing the President to use "all
means necessary" to free any American held by the tribunal. The decision by the
British Law Lords that no political leader can claim "sovereign immunity"
as a defense is of importance for one U.S. citizen in particular, Henry
Kissinger, the one U.S. official who has been charged, by journalists
at least, of "universal" crimes for his actions in Vietnam, Cambodia and
Chile, among other places. The lawyers and participants in the Horman
and Teruggi cases have prepared a series of questions for Kissinger to
answer. Predictably, Washington reacted with fury to this request. A Bush
administration official condemned the move, suggesting that this highlighted
what was wrong with the (then pending) International Criminal Court. "It
is unjust and ridiculous that a distinguished servant of this country
should be harassed by foreign courts in this way." This, of course, is
the same distinguished servant who authorized the kidnapping and (unplanned)
assassination of the Commander-in-Chief of a legitimate and friendly government--Schneider--and
who is charged with orchestrating "Operation Condor," the coordination
of terror operations among the militaries of Chile, Argentina, Uruguay,
and Brazil during the 1970s and early 1980s. For his part, Judge Guzmán
is said to be so frustrated by Kissinger's lack of cooperation that he
is considering issuing an extradition request to force him to come to
Chile and testify in connection with the Horman case. As I sat in Judge
Guzmán's chambers some weeks ago and thought of what he and Judge
Garzón, and judges in France and Belgium, and Commissions on Truth
and Reconciliation in Chile, Argentina, South Africa, and elsewhere were
doing, I realized more clearly than ever that the fight against terrorism
is being waged many places, but surely some of the most meaningful locales
are not the battlefields of Afghanistan, the Philippines or Colombia,
but in the very courtroom that I sat. And if the U.S. Government opposes
these proceedings, then it will never be able to claim with the least
shred of credibility that it is truly interested in waging a war on terror.
Please send comments, questions, and suggestions about Oberlin Online news and feature articles to online.news@oberlin.edu.
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