COLUMN: Bringing a former dictator to justice

From Michael Pereira's, "Vox," Fall '98 From Michael Pereira's, "Vox," Fall '98Two conventions in Vienna in the early 1960s codified most modern diplomatic consular practices, but the concept of diplomatic immunity dates back to antiquity. Warring tribes had to communicate through messengers who often carried unwelcome tidings. To protect them, chieftains agreed on certain rules of the game, including interdictions against the exercise of local wrath. Today, immunity protects the channels of diplomatic communication (not to be confused with diplomats personally), to ensure that foreign officials can conduct their countries' business with freedom, independence and security. Pinochet took power in Chile in 1973 after a U.S.-supported coup which toppled Salvador Allende, the first democratically-elected Marxist president in the hemisphere. According to Amnesty International and the U.N. Human Rights Commission, 250,000 people were detained for political reasons and concentration camps appeared throughout Chile during the rule of Pinochet's military junta from September 1973 to June 1974. A recent report estimates that the number of killed or disappeared totaled 3,197. The Spanish court that issued the warrant alleged that Pinochet was guilty for atrocities committed during his 17-year reign (to get a sense of how atrocious they were, visit the Web site http://www.trentu.ca/~mneumann/chile3a.html); and indeed, Pinochet's direct responsibility for torture, killing and disappearances was publicly stated in February 1998 by former secret police chief Manuel Contreras. In short, the brutal excesses of Pinochet's regime are no secret. Anyone who has seen Costa-Gavras' movie Missing or read Thomas Hauser's now out-of-print nonfiction account of the same story, The Execution of Charles Horman, will realize that the junta's stated redirection toward law and liberty was a bloody fib. In a briefing memorandum from Jack Kubisch to Secretary of State Henry Kissinger entitled "Chilean Executions," recently declassified in the U.S. National Security Archives, the following account is given: "The Chilean leaders' code of military justice permits death by firing squad for a range of offenses, including treason? and auto theft. Sentences handed down by military tribunals during a state of siege are not reviewable by civilian courts.? The purpose of the executions is in part to discourage by example those who seek to organize armed opposition to the junta." In other words, executions, torture and disappearances were staged for their performative aspect, as much to intimidate and confuse civilians as to weed out enemies of the state. But further, this went on with U.S. support. With U.S. backing (including arms, training and financing), General Pinochet led the Chilean military to absolute control of the country in less than a week in September 1973. After losing a 1990 plebiscite to determine whether he should serve another term, Pinochet handed the presidency over to the elected civilian president, Patricio Aylwin (a Christian Democrat). Pinochet stepped down as commander-in-chief of Chile's armed forces on March 10 of this year, and the next day became a senator-for-life (a position defined in the 1980 constitution promulgated at the height of his dictatorship). As part of the group of "life senators," he defends a minority sufficient to defeat any attempts to reform the 1980 constitution. Hence it is unlikely that Pinochet will be brought to justice in his own country. In six days (on December 10) we will celebrate the 50th anniversary of the Universal Declaration of Human Rights, a formal statement of inviolable principles that apply to people of all nations, in all states. Since the establishment of the International Military Tribunal of Nuremberg, crimes against humanity have been, theoretically at least, subject to universal jurisdiction. This means that according to international law, even heads of state can stand trial for their crimes. No state should be exempt, and all states have an equal duty to prosecute criminals against humanity. Last week England's highest court denied Pinochet diplomatic immunity. But senior United States officials expressed deep concerns that a Spanish judge could reach across borders and try a former foreign leader (though the legality of Pinochet's leadership has been in question for some time now). The U.S. has opposed the idea of a permanent international tribunal for crimes against humanity for the same reasons that officials have been uneasy about the Pinochet case. Should local courts and governments be empowered to enforce local decisions on international rulers? As Carroll Bogert asked on The New York Times' Op-Ed page on December 2, would this set a precedent in which, for instance, "George Bush [could] be prosecuted in a third country for the deaths of Iraqi civilians in the Gulf War?" (She answers in the negative: the president cannot be held accountable for the Pentagon's miscalculations.) But the legalities surrounding Pinochet's extradition, as well as his legacy, remain contested -- even despite his obvious atrocities. He has strong supporters, mostly wealthy Chileans, and equally vehement opponents, mostly Chilean exiles in Europe, victims of his terror and their families. Lady Margaret Thatcher, who had tea with the general before his back surgery in October, reminded her countrymen in a letter to the editor that "General Pinochet was a good friend to this country during the Falklands War." And Gary Kasparov, chess champion and Wall Street Journal editorialist, reminds us that "nearly all the so-called right-wing dictatorships have been transformed into successful market economies and stable democracies," citing modern day Spain, Portugal, Chile, Taiwan and South Korea versus Communist states like China, North Korea, Cuba, Cambodia and Yugoslavia. Indeed, Pinochet's economic and social policies were widely regarded as the laboratory experiment in free market economics. His team of University of Chicago economists -- known in Chile as Los Chicago Boys -- helped to institute a private pension system which was touted in the U.S. and Britain. Democracy, complemented by an export-led economy, is slowly taking hold in Chile. Perhaps market economics is part of Pinochet's legacy. But it is not the whole story. Chile must confront its past, just as the U.S. must confront the local repercussions of its Cold War foreign policy. The Clinton administration's decision to declassify more documents related to U.S. involvement in Chile in the last three decades might answer some long-standing questions. But to set a lasting and necessary precedent, Pinochet must answer to 3,197 counts of murder. This will not, as is argued, influence present dictators to hold that much more tenaciously to power; rather, it will create a context of real political accountability backed by the force of international law and opinion.