Extradite Pinochet to Spain!

Nizkor International Human Rights Team
Derechos Human Rights
Serpaj Europe
Information & Urgent Solidarity
02Apr99

THE PINOCHETIST LOBBY RESORTS TO SUBTLETIES BORDERING THE RULE OF LAW IN
ORDER TO TAKE ADVANTAGE OF THE OBSCURE AND CONFUSED LAW LORDS' JUDGMENT;
IN PRACTICE, THIS LOBBY SEEKS THE VIOLATION OF HUMAN RIGHTS
INTERNATIONAL LAW ON THE PART OF THE BRITISH HOME SECRETARY.

The pinochetist lobby in Great Britain counts on a clear support on the
part of British personalities whose profile corresponds with
ultraconservative sectors whose asseverations and acts, at the very
least, reflect a political intention quite distant from the ethical and
moral considerations that impregnate human rights declarations and
conventions. We refer especially to Baroness Margaret Thatcher and to
all those who are promoting and financing the image campaign on behalf
of a criminal who has admitted his guilt; these actions are beyond the
right to an appropiate defense that has to be guaranteed to all the
accused and that Senator for Life Augusto Pinochet has been granted by
the Chilean government.

>From a legal, ethical and moral point of view, there is an overwhelming
distance between the fact of defending civil liberties, human rights and
the right to truth and justice and the fact of defending and give
support to, in political terms, the Senator for Life who not only
planned a genocide system but who also created an impunity machinery
that excels the democratic system.

The same occurs with some statements issued by Augusto Pinochet's legal
defense disqualifying the Spanish instructing judge and the popular
actions (also known as "popular accusations"); with these statements
they have surpassed their rights as defending attorneys; these
qualifications on actions undertaken by  judges, human rights activists
and law defenders almost touch prevarication.

In this sense, the Nizkor Team would like to stress that Spanish Popular
Actions are using a constitutional right known as "accion popular"
(popular action); it is a procedural device embodied in several
provisions of Spanish lawArticle 125 of the Spanish Constitution
("Citizens may exercise popular action and participate in the
Administration of Justice..."); Leyes Politicas del Estado (Political
Laws of the State) (1996), at 90; Law of Criminal Procedure, Articles
101 and 270; the latter states that "(a)ll Spanish citizens, whether or
not they are victims of the crime, may file a complaint (querellarse) by
exercising the popular action established in article 101 of this Law."
Id., at 218.  Article 20.3 of the Organic Law of the Judicial Branch
guarantees that the popular action can be exercised without cost.

The accion popular is considered a figure of customary use within
Spanish law; Popular actions may be brought by any Spanish citizen,
regardless of injury or other standing, in the public's interest.  They
permit the party filing to continue to pursue the matter as a private
prosecutor, whatever may be the public prosecutor's position. Its
foundations have to be found in the principle of equality before the
law, so that judicial expenses may not become an unsurmountable barrier
for the exercise of the right to justice on the part of those less
favoured.

We consider that this figure has made it possible for the proceedings in
favour of the Spanish disappeared in Chile and Argentina to be initiated
and consolidated;  it is a genuine contribution of the Spanish domestic
law to the international community; in fact, the accion popular
constitutes an operative and effective form of participation of the
victims in the judicial process; it would be desirable that this figure
could be assumed by the correspondent working group on the development
of the ICC Statute within the frame of its Preparatory Commission.

The whole of the Pinochetist lobby maneuvers could end up by being
considered as a form of collaboration with the offenses committed by
August Pinochet and as a form of obstruction to  justice, in the sense
that they are using the law lords' ruling in order to take away the
British Home Secretary's legitimacy and also, the legitimacy of all
those who defend the right to justice and who grant a voice to the
thousands of General Pinochet's victims, who could never finance the
millionaire honoraries that, on the other hand, the Chilean goverment
can afford and is wasting on granting the defense and safety of this
criminal; this constitutes a perverted interpretation of the principle
of equality before the law and it takes away the legitimacy of any
pretension on the part of the Chilean government to procecute and try
Augusto Pinochet in that country whereas guaranteeing such equality to
all the victims.

THE SEVEN LAW LORDS JUDGMENT

Through a judgment that can only be qualified as confused, obscurantist
and scholastic, the seven Law Lords have ruled, as it could not be other
way, that heads of state are not entitled to immunity, since the United
Kingdom is legally bound by the international humatitarian law
provisions establishing the lack of immunity of heads of state and other
officials in government departments, especially from 1945, such as
Article 7 of the Charter of the Nuremberg Tribunal, the Judgment of this
Tribunal, the Draft Code of Crimes Against the Peace and Security of
Mankind, Article 7 and 6 of the Statutes of the ad-hoc international
tribunals for the former Yugoslavia and Rwanda respectively, as well as
the recently approved Statute of the International Criminal Court. The
ruling clearly states that international treaties override the legal
principle of "sovereign immunity" that traditionally has protected heads
of state from criminal prosecution.

This judgment's vital importance lies in the fact that it is the first
time that an European court uses the Convention against Torture, which
opens up the path to its regular application by the ordinary courts in
the cases recognized by this human rights international law instrument.
The legal foundations provided by Lord Millett on that score are
especially clear and in agreement with international law in force. Lord
Millett states that "The Convention against Torture (1984) did not
create a new international crime. But it redefined it. Whereas the
international community had condemned the widespread and systematic use
of torture as an instrument of state policy, the Convention extended the
offence to cover isolated and individual instances of torture provided
that they were committed by a public official. (...). Whereas previously
states were entitled to take jurisdiction in respect of the offence
wherever it was committed, they were now placed under an obligation to
do so..." Therefore, those charged with violating international human
rights treaties, the Law Lords ruled, can be charged, tried, convicted
and jailed almost anywhere in the world.

The issue submitted to the seven Law Lords was the same that had been
submitted to the first panel of Law Lords and was referred exclusively
to the fact of whether Senator for Life Augusto Pinochet had sovereign
immunity or not. This question should have been answered only through a
"yes" or a "no", although supported by the arguments that correspond to
such an extraordinary case.

But the seven Law Lords will become part of the history of judicial
indignity upon seeking, through obscure arguments, a way to request the
Home Secretary, Mr. Jack Straw, to review the case. The chief judge
himself, Lord Browne-Wilkinson, has recognized "the obscurity of the
opinions we have just heard" just after having made public the judgment.
Aiming at determining the extradition proceedings, and having had
recourse to the sophistry of the "recommendation", they have used the
Convention against Torture as an instrument to fix an arbitrary date
that would enable them to reduce the offenses that Augusto Pinochet
would have to face. The fact of admitting acts of torture committed only
after 1988 entails a breach of customary international law to which
States were bound before 1973. In Lord Millett's words"(...) the
systematic use of  torture on a large scale and as an instrument of
state policy had joined piracy, war crimes and crimes against peace as
an international crime of universal jurisdiction well before 1984. I
consider that it had done so by 1973."

For this the seven Law Lords have used a dialectical subtlety more
characteristic of a medieval court and have left aside the international
law instruments ratified by the United Kingdom, not taking into account,
by a majority, the fact that custom is precisely one of the sources of
international law. They have followed the path pretended by counsel for
Senator Pinochet and which consists of turning crimes against humanity,
which have a massive and collective character, into individual offenses
committed while exercising power. The last stage of this strategy would
be to take the case to Chile but only for individual offenses that could
hardly been proven. No witness would have seen Senator Pinochet killing
someone personally or, at least, this is what his legal counsel thinks.

Actually, what is at stake is that using the path to justice in the
Pinochet case would pave the way in order for many others to be judged
before a court for crimes such as genocide, criminal organization and
other crimes against humanity. In fact, this is what frightens Senator
Jesse Helms in relation to the International Criminal Court; it stands
to reason that this might frighten those who think that because of their
birth and position are "beyond the law" or that they are the law itself.

As the "perfect crime" is quite difficult, much more in a democratic
society, one must take into account that torture and conspiracy to
torture are included under the crime of enforced disappearance. We can
not forget that until the approval of the "Declaration on the Protection
of All Persons from Enforced Disappearances", in 1992, this offense was
considered as an "aggravated form of torture"; upon referring to the
International Convention against Torture, the said Declaration defined
the crime of enforced disappearance as "a form of torture". On the other
hand, the European  Human Rights Court established, in the case Kurt v.
Turkey (May 25, 1998), the doctrine according to which the "detention-
disappearance" of a person entails a torture situation that falls into
the cases of torture established in the Convention of December 10, 1984.

Furthermore, this declaration is based on the previous recognition of
resolution 33/173, in which enforced disappearance was also defined as
form of torture, the Geneva Conventions of August 12, 1949 and their
additional protocols of 1977. Also, this declaration alludes to the
"Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment", as well as the "Principles on the Effective
Prevention and Investigation of Extra-legal, Arbitrary and Summary
Executions", formulated by the  ECOSOC in its resolution 1989/65,
24May89 and endorsed by the UN General Assembly through its resolution
44/162, 15dic89.

This ruling also omits the fact that the Senator for Life was a General
on active service and that he used the army as a task force in
operations; therefore the Geneva Conventions should be applied in this
case and, more widely, all international humanitarian provisions, which
have been violated by him in a systematic, planned and permanent manner.

Hence, it is necessary to request Mr. Straw to make use of his judicial
and political attributions in order to enable -always within the most
strict fulfilment of the law- the already initiated proceedings against
Augusto Pinochet to keep on going, extending the charges to all those
contemplated in the human rights and humanitarian law international
conventions to which the United Kingdom is a State party; all this in
compliance with the request for extradition issued by Spain and other
countries, guaranteeing at all times a fair trial to Senator for Life
Pinochet and preventing impunity from becoming a necessary complement to
crimes against humanity and other serious offenses against human rights.

ADDRESSES

Please, send messages, letters and faxes to
The Ret. Hon. Jack Straw, MP
Secretary of State for Home Affairs
Home Office
50 Queen Anne's Gate
London SW1H  9AT
Fax +44.171.273.3965
gen.ho@gtnet.gov.uk
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