REPORT ON HUMAN RIGHTS
IMPUNITY ON TRIAL IN CHILE
On his return after 17 months in detention in London, former Chilean dictatorAugusto
Pinochetis greeted by the currenthead of the Chilean armed forces, General Ricardo
Izurieta.
BY SEBASTIAN BRETT
Much international politics produced by the arrest in
Londonhas been written about
and committal the sea change
for extradition
mer Chilean dictator Augusto Pinochet. Apart from
in
of for-
strengthening international accountability, the Pinochet
saga also brought justice closer in Chile itself. It gave
new hope to the country's embattled human rights
movement, and especially to Pinochet's victims. It jolted
Chilean society into confronting its divided past more
openly. In fact, even the timing of Jack Straw's decision
to send Pinochet home seems in retrospect to have been
beneficial. The ailing despot would probably have died
in exile without a conviction and become a martyr for a
large and powerful minority, perpetuating myth and dis-
cord. As it is, he will die humbled and probably stripped
of the privileges he awarded himself when he stepped
down in 1990. If all goes well, Chilean democracy will
be stronger because the issues will have been properly
aired in a free judicial process.
A month ago I was sitting in Santiago's chilly halls of
justice, chatting with wives and mothers of victims of
the military dictatorship. The only international
observer, I was waiting to take my seat in the chamber
where 22 judges of the Santiago Appeals Court would
hear why the former dictator and life-time senator
Sebastian Brett is a researcher for Human Rights Watch based
in Santiago, Chile.
34
The 1998 London
arrest of Augusto
Pinochet has been a
shot in the arm for
human rights efforts
in Chile-even as
political forces there
bargain truth for
accountability.
should be stripped of his parliamentary immunity to face
trial. The women now sitting attentively in court used to
chain themselves to the railings outside in protest against
a society indifferent to their demands for justice. On
June 5, the Court voted 13 to 9 for the removal of par-
liamentary immunity. If the Supreme Court rejects
Pinochet's appeal and defense pleas for him to be
excused from trial on medical grounds, he may be
arrested and indicted for "aggravated kidnapping" for
allegedly creating a military death squad he then ordered
to abduct and murder prisoners. The so-called "Caravan
of Death," composed of army officers who later became
notorious members of the Directorate of National
Intelligence (DINA), Pinochet's secret police, toured
Chile's prisons by helicopter in October 1973, removed
72 political detainees from their cells, summarily exe-
cuted them, and in some cases, destroyed or hid their
bodies.
Since Pinochet's return to Chile on March 3 after 17
months in British custody, he has made no effort to
recover his influence in political life. The visibly infirm
Senator has seen only his family, medics and closest
advisors. The latest photograph shows him in a flat cap
and overcoat attending the wake of his former secret
police chief, who was also facing trial when a heart
0
attack struck him down. Pinochet's only comment was, 0
"some go first, others later." He does not refer to the
court cases affecting him, and even his legal counsel
NACIA REPORT ON THE AMERICAS
 REPORT ON HUMAN RIGHTS

claims not to have been allowed to "Operation Condor," which

see him. With world attention Pinochet masterminded. Although
One woman I met at the Pinochet Chileans continue to disagree
hearings, Communist Party president focused ori Pinochet's about the military government,
Gladys Marin, was the first to file a the view that the armed forces at
complaint against the General for the atrocities, it is no longer least owe the country an explana-
forced disappearance of her husband, possible for Chile's tion about the fate of the disap-
Jorge Mufioz, following his abduc- peared is now almost universal.
tion in a DINA stake-out in May conservative elite to shrug "Because no one could think of a
1976. It is easy to see why no one
off th efacts.
actcould solution that both sides
politicalaccept,
had accused Pinochet until Marin the human rights
filed the writ in January 1998. The problem had been swept under the
former dictator still headed the army carpet," says human rights attor-
and had twice sent commandos into the streets to abort ney H6ctor Salazar. "The Pinochet case showed the real-
less audacious judicial actions. But Marin saw it differ- ity that our transition was built on sand and that the
ently. "After years of presenting habeas corpus petitions underlying problems had not really been resolved and
to the courts, I wanted to encourage people to lose their could not be deferred any longer."3
fear of challenging him directly," she said. 'There were Some human rights experts believe that the proceed-
a lot of skeptics. But the criminal complaints started to ings in London even had a "demonstration effect" on the
mount and the political situation began to change."' Chilean judiciary.4 In fact, reforms were already afoot in
Indeed, with Pinochet under house arrest in London the the courts, and the "Pinochet affair" enhanced their

Human
number of cases snowballed, reaching 113 at last count. effect. The changes were slow in coming: During most
of the 1990s, Pinochet wielded enormous influence over
rights observers had no doubt that the the bench. His representative on the Supreme Court,
prospects of a trial were infinitely better in Gen. Fernando Torres Silva, successfully blocked most
Madrid than in Santiago. As human rights attor- human rights trials before they got off the ground.
ney Roberto Garret6n argued in an affidavit presented Chances of a proper investigation were limited by the
by Human Rights Watch to the House of Lords in 1978 amnesty law, which prevented prosecution of mil-
January 1999: "Chilean officials have recently sug- itary personnel for crimes committed from 1973 to 1978,
gested that General Pinochet should be returned to Chile when most human rights crimes occurred.
so that he can face trial there. There are currently 12 Army influence in the courts began to wane when
cases opened against the general in Chile. In fact, how- Pinochet stepped down as commander in chief of the
ever, there is virtually no chance that Pinochet would be armed forces and his successor, Gen. Ricardo Izurieta,
prosecuted by a Chilean court." 2 Few at the time would took over in March 1998. A 1997 constitutional reform
have disagreed with that statement. So what happened? advanced the retirement age of justices of the Supreme
First, with world attention focused for the first time on Court. By early 1999, all the Pinochet justices had
the atrocities committed in the brutal aftermath of retired, and several of the new democratic appointees
Pinochet's coup, it was no longer possible for Chile's were reformers. In 1998 they and several appellate
conservative elite to shrug off the facts. President judges began basing decisions more consistently on
Patricio Aylwin's Truth Commission had scrupulously international human rights and humanitarian law princi-
documented them in 1991, but the armed forces blasted ples, previously a frowned-upon eccentricity in Chilean
the Commission's assertion that the military was respon- jurisprudence. The political climate strongly favored
sible for systematic human rights violations. Despite the these changes. Apart from its notorious failure of nerve
report's robust conclusions, many rightist political lead- under the dictatorship, the judiciary had been unable to
ers continued to see the atrocities as regrettable shake off a reputation for nepotism, corruption and inef-
"excesses." Apologists for the military government saw ficiency.5 According to Garret6n, Chilean judges saw the
Pinochet as a savior with spotless gloves and a clean dynamic style and independence of their colleagues in
conscience. Madrid and London as a challenge to their own profes-
Such views are more muted now. Apart from the sional pride.6 Moreover, anxious to persuade Jack Straw
investigation by Spanish judge Baltasar Garz6n, to send Pinochet home, the government was assuring the
Washington has declassified secret documents showing world that Chilean courts possessed the independence
the DINA's dependence on Pinochet, and U.S. and necessary to try him. As Salazar put it: "I think that the
Argentine investigators are on the dictator's trail for changes were beginning to happen anyway, but the
murders committed in the 1970s outside Chile as part of Pinochet affair accelerated the process. Even Pinochet's
Vol XXXIV, No 1 JULY/AUGUST 2000 35
 REPORT ON HUMAN
lawyers are now using international human rights prin-
ciples of due process in his defense, and arguing that
they take precedence over domestic law."7
One of the judges who broke new ground was Juan
Guzmrn Tapia of the Santiago Appeals Court, who was
assigned to investigate all the accusations against
Pinochet. The previously low-profile judge frequently
appeared on news bulletins, tirelessly supervising the
excavation of common graves in cemeteries and remote
desert sites. In June 1999, he charged Pinochet's former
associate, retired Gen. Sergio Arellano Stark, and four
other retired officers for their role in the Caravan of
Death executions. Since 19 victims were still unac-
counted for, Guzmnn held that their deaths could not be
deduced from their abductions. And since the kidnap-
pings had not been solved, whoever was responsible
could not take advantage of the 1978 amnesty law. This
interpretation kept the cases of the missing from being
closed. It also provided, at least in theory, an incentive
for the accused to provide information about the death or
place of burial of the disappeared, since only their coop-
eration could make the amnesty applicable. In July
1999, a Supreme Court panel unanimously upheld the
doctrine.
a pact to stem the floodtide of human rights cases
in the courts and close the chapter on the military
government for good. No sooner had the dust settled
after Pinochet's arrest in London, than lawyers and
experts from right and left, senior army and navy offi-
cers, and luminaries from the Catholic Church began to
hold private "conversations" to test the ground for a pos-
sible future accord. The human rights community and
especially the relatives of the disappeared objected pro-
foundly to the idea of trading justice for meager quotas
of truth. The left of the governing Concertaci6n coalition
backed them.
In August 1999, former president Eduardo Frei's
defense minister, Edmundo P6rez Yoma, proposed the
Roundtable for Dialogue, which he intended to be a
direct debate between the Association of Relatives of the
Disappeared (AFDD) and representatives of the armed
forces. Other participants included human rights attor-
neys, representatives of civil society, and the churches.
The AFDD refused to participate, denouncing the
endeavor as a smokescreen to gain Pinochet's release.
But Pdrez pressed on. Though some human rights attor-
neys also refused to participate, others decided to give
the initiative the benefit of the doubt. This was the ori-
gin of the accord announced on June 13, which for the
first time acknowledged military responsibility, assert-
ing that "agents of state organizations" had committed
grave violations of human rights during the dictatorship.
36
RIGHTS
President of Chile'sAssociation of Relatives of the Disappeared,
Viviana Diaz, at hearings to lift Pinochet's immunity.
Notably absent was any language about institutional
responsibility or the systematic nature of the violations.
The armed forces agreed to provide the President with
information on the fate of the disappeared within six
months, protected by professional secrecy so that they
would not be obliged in court to reveal their sources. The
courts would not, however, be limited in any other way
in their duty to establish the identity of those responsi-
ble. Legislation to enact the accord sped through
Congress. The police carried off members of the AFDD
as they protested the vote from the public gallery. Their
former supporters from the Concertaci6n were nowhere
in sight.
Viviana Diaz, the AFDD's president, noted a key
problem with the accord. The text says that once infor-
mation on the disappeared is placed before the courts
they will apply the legislation in force. In other words,
says Diaz, "they'll apply the amnesty law, which means
impunity, and whose promulgation we rejected at the
time with a 17-day hunger-strike. We can't agree with
that."8
Given the present conciliatory climate, legislation to
annul or re-interpret the amnesty law is not even a
remote possibility. Some judges might invoke interna-
tional law to void the amnesty entirely, but only a small
minority have done so in the past. While the agreement
does not dictate how the courts should interpret the
amnesty law, the Guzm.n doctrine now seems to com-
mand a consensus. Lawyer Pamela Pereira, a member of
the Roundtable whose father is among the disappeared,
believes the agreement is a risk worth taking because
without a commitment from the armed forces the rela-
tives could be waiting forever. Whatever the quality of "C
0
the information eventually provided, she says, the legal
battle against impunity will continue. 9 0
NACIA REPORT ON THE AMERICAS
 NOTES
Globalization: The Double-edged Sword
1. See Alison Brysk, ed., Globalization and Human Rights: Transnational
Problems, TransnationalSolutions? (forthcoming), based on a confer-
ence at the University of California, Irvine, January 2000.
2. See Margaret Keck and Kathryn Sikkink, Activists Beyond Borders
(Ithaca: Cornell University Press, 1999) for a discussion of the use of
information politics, leverage, and organization by transnational net-
works.
3. Ricardo Lagos and Heraldo Muhoz, "The Pinochet Dilemma," Foreign
Policy, No. 114 (Spring 1999), pp. 26-39.
4. For further discussion including Latin American cases, see Thomas
Risse, Steven Ropp, and Kathryn Sikkink, The Power of Human Rights
(London: Cambridge University Press, 1999), and Alison Brysk, "From
Above and Below: Social Movements, the International System and
Human Rights in Argentina," Comparative PoliticalStudies, Vol. 26
(October 1993), pp. 259-85.
5. For details on the Kayapo and Zapatista cases, see Alison Brysk, From
Tribal Village to Global Village: Indian Rights and International
Relations in Latin America (Palo Alto: Stanford University Press, 2000).
Impunity on Trial in Chile
1. Author's interview, Gladys Marin, Santiago, June 16, 2000.
2. "Pinochet in Chile: Guaranteed Impunity," Human Rights Watch press
advisory, January 1999.
3. Author's interview, Santiago, June 12, 2000.
4. See Human Rights Watch, When Tyrants Tremble: The Pinochet Case
(New York: A Human Rights Watch Report, October 1999), pp. 4-8,
37-49.
5. See Alejandra Matus, El libro negro de la justicia chilena (Santiago:
Planeta, 1999). A Santiago court banned the book when it appeared
at the request of a former Chief Justice, and it is still officially cen-
sored, though available through other channels in Chile.
6. Author's interview, Santiago, June 12, 2000.
7. Author's interview, Santiago, June 12, 2000.
8. "Agrupaci6n de Detenidos Desaparecidos desmiente acercamiento de
militares," El Mostrador(Santiago), June 19, 2000, at:
<httpJ//www.elmostrador.cVmodulos/noticias/constructor/detalle_noti-
cia.asp?id_noticia=5273#top>.
Truth and Justice in Uruguay
1. For an excellent account of the dictatorship, the impunity law, and the
referendum campaign, see Lawrence Weschler, A Miracle,A Universe:
Settling Accounts With Torturers(New York: Pantheon Books, 1990).
2. In Montevideo, where the electorate tends to vote for more progres-
sive options, the referendum won with 56.4% of the vote.
3. Of the 12 Uruguayan children, only four have yet to be located and
returned to their biological families. They are Sim6n Riquelo (See
"Looking for Sim6n," p. 38), Fernando y Beatriz HernAndez, and the
daughter of Blanca Altman, who was born in captivity.
4. Notably, the commission is being called a Peace Commission rather
than a Truth Commission, highlighting the nature of its limits and
objectives. It should be noted that during 1985, a congressional com-
mission received information about the disappeared, and this informa-
tion was provided to the executive and legislative branches.
5. Thousands of prisoners were systematically tortured in Uruguay, and
there were only about 160 cases of forced disappearance. During the
dictatorship, Uruguay had the highest number of political prisoners-
31 per 10,000 inhabitants-worldwide. See Servicio Paz y Justicia,
Uruguay Nunca Mhs: Human Rights Violations 1972-1985
(Philadelphia: Temple University Press, 1992).
Colombia: Memory and Accountability
1. Luis Carlos Restrepo, "Memoria o la imposible posesi6n" in Jaime
C6rdoba Trivirio et. al., eds. La memoria frente a los crimenes de lesa
humanidad(Bogota: Fundaci6n Manuel Cepeda Vargas, N.D.), p. 35.
2. Elizabeth Jelin and Pablo Azchrate, "Memoria y politica: Movimiento
de derechos humanos y construcci6n democrAtica" (Buenos Aires:
CEDES, 1991), Mimeograph, p. 8.
Defending Rights in a Hostile Environment
1. This case, along with dozens of others, is presented in Instituto de
Defensa Legal (IDL), Los Inocentes Indultados (Lima: IDL, 1996).
2. Ernesto de la Jara, "Administraci6n de justicia y terrorismo. 'En nom-
bre de los inocentes': Una experiencia exitosa de derechos humanos,"
Paper presented at the International Symposium "En camino al sigo
XXI: Desaflos y estrategias de la comunidad latinoamericana de dere-
chos humanos," Lima, Peru, July 23-24, 1999.
3. Author's interview, Susana VillarAn, Lima, June 23, 1998.
Vol XXXIV, No 11
X)(XIV, No 2000
JULY/AUGUST 2000
JULY/AUGUST
4. Instituto de Defensa Legal, eQuidnes son los inocentes? (Lima: IDL,
1997), p. 26. Torture occurs most frequently while detainees are in
police custody; during interrogation many people who were innocent
of any crime incriminated themselves after being tortured.
5. Author's interview, the Rev. Hubert Lanssiers of the Ad-hoc
Commission, June 29, 1998.
6. See the Coordinadora's annual report, Informe Annual 1998 (Lima:
Coordinadora Nacional de Derechos Humanos, March 1999).
7. Authors interview, Sofia Macher, Lima, April 5, 2000.
8. Joint statement by the National Democratic Institute and the Carter
Center, May 25, 2000.
Navigating in Uncharted Waters: Human Rights Advocacy in Brazil's
"New Democracy"
1. The Center, based at the University of SAo Paulo (USP), is an indepen-
dent, nonprofit organization dedicated to human rights research. It
has received the support of a variety of public and private sources,
both nationally and internationally, as well as UN funding for specific
projects. The Center may be reached by email at: NEV@edu.usp.br.
2. The Center promoted and contributed to the first report on police
abuse after the end of dictatorship, Police Abuses in Brazil (New York:
Americas Watch, 1987).
3. See Norbert Elias, "Violence and Civilization: The State Monopoly of
Physical Violence and its Infringement," in John Keane, ed., Civil
Society and the State (London: Verso, 1988); John Keane, Reflections
on Violence (London: Verso, 1996); and John Keane, Civil Society
(Cambridge: Polity Press, 1998).
4. Dick Messner, "Organizaciones no-gubernamentales: Nueva esperanza
y actores sobreestimados. Proceso de b6squeda en America Latina y
experiencias en pauses industrializados," in Peter Hengstenberg, Karl
Kohut and Gunther Maihold, eds., Sociedad Civil en Amcrica Latina:
Representaci6n de intereses y gobernabilidad(Caracas: Editorial Nueva
Sociedad, 1999), p. 448-449.
5. Juan Carlos Portantiero, "La sociedad civil en America Latina: Entre
autonomla y centralizaci6n," in Hengstenberg, Kohut and Maihold,
p.37-38.
6. Paulo S6rgio Pinheiro, "Democratic Governance, Violence and the
(Un)Rule of Law," Daedalus,Vol. 129, No. 2 (Spring 2000), pp. 119-
143.
7. Nancy Cardia, "Pesquisa sobre atitudes, normas culturais e valores em
realýao ý violdncia em 10 capitals brasileiras," Minist4rio da Justika,
Secretaria de Estado de Direitos Humanos, 1999.
8. Just 18% of Brazilians claimed to be satisfied with the functioning of
democracy in their country during the 1999-2000 period, and 39%
said they preferred democracy to any other form of government.
"Latino Barometer Survey," Folha de S. Paulo (Sao Paulo), May 14,
2000, p. A-23.
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