Ask Amnesty: The Pinochet Legacy
Naomi Roht-Arriaza, Professor of Law at the University of California, Hastings College of the Law, and author of "The Pinochet Effect: Transnational Justice in the Age of Human Rights (2005)," will join us this Thursday, December 14 from 1:00 to 2:00 p.m. Eastern to answer your questions about the legacy of General Augusto Pinochet, and the ground-breaking legal precedents that were set by international efforts to bring him to justice.
Read Amnesty's statement on human rights in Chile following Augusto Pinochet's Death »
Learn more about Amnesty's work to promote international justice and accountability »
Featured Guest: Naomi Roht-ArriazaFrom our featured guest: "I look forward to speaking with you on Thursday."
Question Submitted by Charles Reece:
What about President Bush? There are some legal and political scholars who insist that Bush himself would qualify a "war criminal", since he invaded Iraq, without U.N. approval; as well have the U.S. Military indiscriminately kill houndreds of thousands of civilians, under the pretext that the Iraqi victims were "collateral damage", and thus the victims were inadvertently [as supposed] caught in the midst of battle between U.S. forces and the so-called Iraqi "insurgents". If Amnesty International is so concerned that these war tribunals be applied to Third World dictators, then why not be consistent and apply the same standards of justice upon the war-guilty President George Bush?
Naomi Roht-Arriaza answers:
The standards of international justice should be just that -- international and universal. It is, obviously, harder to use law against the powerful, that's true in our own legal system as well, not just about international law. Nonetheless, there are some efforts in this direction:
A lawsuit has been filed (by the Center for Constitutional Rights in New York along with German groups) asking a German prosecutor to investigate Donald Rumsfeld and other high-ranking members of the military and Defense Dept. for war crimes and crimes against humanity for crimes committed in Iraq and at Guantanamo. The prosecutor once turned down the request on grounds that the U.S. hadn't been shown to be unable to investigate on its own, but the Military Commissions Act, by granting retroactive immunity, makes clear that the U.S. won't look into the charges. The case is pending and we'll see what happens. It's important to remember that, as the Chilean Supreme Court held TODAY, these crimes are not subject to a statute of limitations.
There are also efforts within the U.S. including a number of suits based on international law as well as constitutional law, to get at some of the worst abuses of the so-called "war on terror" - torture, extraordinary renditions to torture states, etc. It is very hard for courts to stand up to claims of executive secrecy, privilege, immunity, etc but some are doing so.
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Question Submitted by Maria Alicia:
What will happen to the the pending cases against Pinochet?
Naomi Roht-Arriaza answers:
The cases against Pinochet himself will die with him. However, most of the cases also involve other defendants. For example, the financial fraud and income tax evasion case involves his family, and so the case would go forward against them. In the human rights cases, there are other ex-military or police who are defendants in all of them, and those cases will continue. Indeed, they may get easier to prosecute: the Supreme Court today ruled that international law requires prosecution in cases of murder, notwithstanding the amnesty law or statute of limitations - it had already done so for forced disappearances but not murder or other crimes. Also, the Congress is set to debate a law annulling the amnesty law altogether.
Of course, at trial the cases must still be proved against the specific defendant.
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Question Submitted by William McLaughlin:
Certainly Pinochet should have been brought to justice for the thousands of murders and disappearances for which he was responsible. Do you think that Donald Rumsfeld and George Bush should be judged by and International Court for their alleged role in disappearances and torture? Do you support Germany's action against Rumsfeld?
Naomi Roht-Arriaza answers:
I've discussed the German action above. I think, personally, that it would be important to show that international justice can be applied even to the powerful for the German courts to accept the investigation, but note that the German prosecutor does have discretion to decide whether or not to go forward, no matter how much evidence is put before her (or him). As to an international court, that is more difficult. Since neither Iraq nor the U.S. is a party to the International Criminal Court statute, the court would only have jurisdiction if the Security Council referred the matter (like it did on Darfur). Unlikely. Same with a special or ad-hoc tribunal. However, if Germany does not agree to open an investigation, many other countries have universal jurisdiction laws re war crimes.
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Question Submitted by david jovel:
good morning my question is this: I am a victym of humans rights violations in El Salvador "CRIMES AGAINST THE HUMANITY" and now am living in Europe requesting asylum political and humanitarian protection. Th epoint is this the Humans rights Criminals are living in the United States and hwo Ican to do for make a demand civilian or get reparation and indemnization,....??? Thanks for your time and this is not a joke ok????
Naomi Roht-Arriaza answers:
Several of the human rights violators you refer to have already been successfully sued in the U.S. General Nicolas Carranza of the Treasury Police was found liable and ordered to pay $6 million to his victims in 2005; Alvaro Saravia, one of the assassins of Monsenor Romero, was found liable for crimes against humanity in 2004 and ordered to pay $10 million to Romero's family (he since fled the U.S.) and Generals Garcia and Vides Casanova were found liable for torture and ordered to pay $54.6 million by a jury in 2002. Of all this money, only some $300,000 has been collected from Garcia and Vides Casanova, but the cases have made clear that torturers are not welcome in the U.S. and will not be able to lead the easy retirements they had expected. The cases were brought under a U.S. law, the Alien Tort Statute, and the plaintiffs were represented by the Center for Justice and Accountability, based in San Francisco, which does great work on behalf of victims of human rights abusers suing individuals residing or visiting the U.S.
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Question Submitted by Stephen Nickels:
Why is Henry Kissinger not facing charges?
Naomi Roht-Arriaza answers:
There have been several attempts to investigate Mr. Kissinger over the years. Judges in Argentina and Chile asked for him to answer questions about his role in Operation Condor -- the coordinated effort among 6 South American countries in the 1970s to track down and kill opponents -- and in other crimes. He declined and they could not subpoena him unless he showed up. He hasn't done so, even turning down an opportunity to receive a prize in Brazil, apparently for fear of the investigations. A French judge also tried to get him to testify about a case involving Franco-Argentine victims of the military, but he refused and fled Paris. A British campaigner tried to have him arrested for the bombing of Cambodia, but a U.K. judge refused and he had to leave London. And the family of Rene Schneider, a Chilean general killed with Kissinger's apparent complicity, sued him in the U.S., but the case was dismissed on grounds that KIssinger had immunity for his official acts. So it's not like people haven't tried. The result has been, at least, to limit his travel plans.
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Question Submitted by Larry:
Given the legal precident, how likely is it that the international community will cooperate to prosecute individuals who participated in the overthrow of Mr. Allende (e.g. Henry Kissinger)?
Naomi Roht-Arriaza answers:
See my answer above re Kissinger. It is still an uphill battle to get states to cooperate and seriously take on these cases. Given the number and scope of crimes being committed, there are very very few responses. There have been some courageous judges in many parts of the world, however, who are beginning to take seriously the language of state legal obligations.
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Question Submitted by Marina:
What is the point of playing with a dead man? Whom will you put on trial? Where were you people before? Some says he was a hero, some says he was a dictator, which one to believe? Look at the ICC, they had Milosevic for 4 yrs and couldn't pull one hair out of his body. So what do you think you really can do now? Your hands certainly don't stretch out that far where Pinochet is now, or do they?
Naomi Roht-Arriaza answers:
Nope, can't try a dead man.
But you can influence how he goes down in history. At this point, enough evidence of Pinochet's crimes, his direct participation in setting up the system that killed, tortured and disappeared people, and his stashing away of ill-gotten wealth has emerged, through the legal cases and elsewhere, that his legacy will be seen as largely negative, and even his long-time supporters are now rushing to distance themselves from it.
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Question Submitted by ivonne:
hi, thanks for having me. In your opinion, why have things concerning the violation of human rights gotten so out of hand? every day, from every part of the world, we keep hearing the atrocities of humans against humans, what is it? what drives us to this? thanks and good luck
Naomi Roht-Arriaza answers:
Academics, religious scholars and lots of other people have been trying to figure this out for a long time, and we still don't have good answers to your question. We do know a few things: when people dehumanize others and see them as "other", "enemies", "subhuman", "not like us" that sets the stage for large-scale crimes. When people blindly accept authority and don't question, don't have access to a free and questioning press and the like, that sets the stage. When governments think they can get away with crimes because there has been impunity in the past, and so government officials think they can do what they want because the "interntional community" has a short memory and little interest in far-off places, and no justice system will ever reach them, that makes it more tempting to "solve" problems by violating human rights. That's why the fight against impunity is important.
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Question Submitted by Maria:
1)Is there any way that the millions that we now know that Pinochet stashed in various places can be legally taken and used for a higher purpose? Although I realize this probably wouldn't constitute real justice and accountability for his violations (from the perspectives of his victims), it would mean something positive could come from this tragedy. 2) More a comment and a question. Although I was just a little girl in the late '60s-early '70s, I am saddened and horrified by the U.S. role in this Chilean nightmare. I truly wish there was some way to make the truth about this come out. I know the CIA has refused release of documents from 1970-73, and that attempts to get U.S. officials to testify in Chile have been in vain. I also feel my own responsibility to pay attention to what my government does and use what little political power I have to make my wishes known. Several years back I read an op-ed that suggested that the U.S. set up its own truth and reconciliation commision concerning Cold-War actions. I agree with this, but feel like it's a pipe-dream. Do you think it would ever be possible?
Naomi Roht-Arriaza answers:
Yes, some of that has already been done. As a result of a Senate investigation, Riggs Bank of Washington DC was discovered to have helped Pinochet stash millions in offshore accounts under false names. In addition to U.S. law, this violated an order by Spanish Judge Garzon to freeze any assets he might have had in any bank. The lawyers for Pinochet's victims negotiated a plea bargain with the heads of the bank by which the Spanish prosecutors office dropped charges in exchange for bank officials putting $9 million,including $1 million of their own personal money, into a trust account for victims of Pinochet, to be administered by a board of victims representatives. If the Chilean courts find some of the family's assets were fraudulently concealed, they could possibly do the same, or the money could be returned to the government and then put into an existing effort to compensate torture victims. It would depend largely on the Chilean government's will do to so.
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Question Submitted by John:
I hear the news channels having pundits on excusing Pinochet by saying his legacy is making the economy better. Did anyone benefit from his policies? If so, who?
Naomi Roht-Arriaza answers:
I'm not an expert on the Chilean economy. What I understand he did was to re-privatize much of the land and other resources that had been distributed (but not the copper fields, which remained in state hands and a percentage of their earnings earmarked for the military). He then artificially inflated the Chilean money so imports were cheap and it seemed the economy was growing, until the money collapsed in the early 1980s, creating a crisis. He also destroyed the unions, so wages stayed low, which helped factory owners, and opened up the country to export of natural resources. He also did things like privatize pension plans, which seemed for a while to have worked well, except that 20 years later a comparison of those who stayed in the public system and those who privatized showed that the former did much better. So the showcase programs, many of which were heralded as models to follow by international financial institutions, haven't generally worked out so well. On the other hand, I suppose you could argue that wage discipline and very low government spending kept inflation low and the economy stable, but overall poor people did not do well during those years while rich people got richer. It has only been in the last 15 years or so that poverty rates have gone down significantly.
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Question Submitted by Anderson:
Will there be any adressing of Pinochet's collaboration with the Thatcher regime in the Falklands and possible violations there?
Naomi Roht-Arriaza answers:
Not that I know of.
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Question Submitted by Michael:
Can any judgments be made against Pinochet on behalf of his victims even after his death ?
Naomi Roht-Arriaza answers:
No, the criminal trials against him will end, although trials of his collaborators will continue.
Civil suits are not brought in the same way as in the U.S., they are generally tied to the criminal case, although I suppose it would still be possible to civilly sue the state, but not the individual. There may be a civil suit procedure directly against his heirs, but I'm not sure how it would work.
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Question Submitted by Donald:
I'm afraid we in America and the rest of the world will be confortible in thinking that the injustice in Chile doesn't need to be investigated any more with the passing of Pinochet, an letting others who were also responbile,and very much alive i.e. Harry Kissinger,get off scott free?
Naomi Roht-Arriaza answers:
see earlier answers re Kissinger.
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Question Submitted by Maria Alicia:
What happens now to the human rights violation cases that were in process at the time of Pinochet's death?
Naomi Roht-Arriaza answers:
They continue against the remaining defendants. There are cases pending about many of the "emblematic" crimes of the Pinochet era, including the Caravan of Death, Calle Conferencia, etc. Those cases have been awaiting trial, sometimes for a long time. It will be important now for the courts to move forward on them.
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Question Submitted by Matt:
The U.S. stands as a Christian nation,with the idea of forgiveness. My question is.. Should a person be forgiven that does not to be forgiven?
Naomi Roht-Arriaza answers:
Forgiveness, in my view, requires at the least knowledge of who to forgive and for what. Without acknowledgement of the crimes, it is hard to know what to forgive. It also seems to me unfair to put the burden on victims to forgive without a corresponding obligation on wrongdoers to atone.
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Question Submitted by solomon:
Why did the trial drag for so long until the man succumbed to his death?
Naomi Roht-Arriaza answers:
Good question. The first complaints in Chile were filed in 1998, and the first indictment (by Judge Guzman) was in 2000. Pinochet successfully fought off trial several times on grounds that he was too mentally unfit and physically sick to stand trial, but then he would do things like give long TV interviews, and the judge would have to go back to court to argue he couldn't be mentally unfit, and the case would be reopened. There's also a special pre-procedure to strip him of his parliamentary immunity which had to be pursued in each individual case. So he was able to drag it out -- barely, since trial was set to start very soon in at least one case.
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Question Submitted by aubry:
How have the criminal tribunals helped the contries and do you think that they should have a deadline? Also, how can normal people or students like myself truly help out?
Naomi Roht-Arriaza answers:
In Chile, it's clear that criminal prosecutions have helped deepen and consolidate the country's democracy. In other places it's still less clear - we may have to ask the question in the long term as well as the short.
Students and other people can get involved in Amnesty's International justice work (look at the website) and also by working to educate people around you about international institutions for justice and why the U.s. should support them.
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Question Submitted by Sarah:
Hello Professor Roht-Arriaza, Thank you for sharing your time with us! I've been reading about efforts to bring Gen. Rios Montt Guatemala to justice for crimes against humanity. Where does his case currently stand? What can we do, as American human rights activists, to demonstrate our support for investigating Montt's crimes?
Naomi Roht-Arriaza answers:
Thanks for the question! As the case stands now, Spanish judge Pedraz has issued arrest warrants for Rios Montt and 7 others for genocide (against Mayans), terrorism and torture. The Guatemalan courts have ordered two of the defendants arrested, two others have fled, and the rest are contesting the arrest orders. The judge is expected to ask for extradition soon, and the defendants will no doubt challenge that in the Guatemalan courts as well. It will be important for U.S. activists to call for the crimes to be investigated, and support the Guatemalan judges independence and safety. Guatemala has international obligations to either extradite torture suspects or to try them at home. Eventually, the government will have to decide on extradition, and then it will be important to let them know that the world is watching. Contact the Center for Justice and Accountability to support their work on this case, or AI's International Justice project for updates and actions.
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Question Submitted by ILO:
Do you think Central and South America learned its lesson from those atrocities? How much likely is it to create another Pinochet era by a possible US intervention? Thanks
Naomi Roht-Arriaza answers:
In Latin America I think it is difficult to imagine. Elsewhere in the world, I'm not so sure...
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Question Submitted by Richard:
What are young chileans being taught in the schools now about this period and by whom? From my experience as a N.Am. teacher in private schools in Santiago, both pro and con Pinochet versions exist in the personal views...I question whether that may manifest into bias in the classroom.
Naomi Roht-Arriaza answers:
There has been an effort to introduce the findings of the Chilean Truth and Reconciliation Commission into high school curriculum. The Commission focuses on the facts of the violations, recognizing that there are different views as to why it happened.
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Question Submitted by Claire:
Were amnesties for crimes committed in Chile during Pinochet's rule originally intended to promote peace and reconciliation in the country? Are amnesties and immunity laws for perpetrators of crimes against humanity, torture, and "disappearance" in the name of peace ever acceptable under international law?
Naomi Roht-Arriaza answers:
Amnesties are always passed in the name of peace and reconciliation. But in practice, there was little or no armed opposition to Pinochet when the amnesty was passed, and non-state combatants had already been arrested or (mostly) killed or disappeared. So the beneficiaries were the military and security forces who engaged in killing, disappearances, torture and the like from 1973 to 1978.
The Inter-American Court of Human Rights recently told the Chilean government that the amnesty law violates the American Convention's right to a remedy and right to a hearing provisions and so is unlawful. the Human Rights Committee of the U.N. has agreed; in addition, treaties on Genocide, Torture and Enforced Disappearance prohibit amnesty. It's pretty clear that the kind of blanket, self-granted amnesty the Chileans had is unlawful under international law. Where there is more disagreement among international scholars is with conditional amnesties like South Africa's or amnesties for non-state combatants for crimes that don't rise to the level of crimes against humanity or grave breaches.
It is also true that the lack of an amnesty doesn't mean that everyone who has committed crimes will be prosecuted right away -- there may be reasons to wait. Nor does an amnesty law preclude prosecutions by international or transnational courts, and as we've seen, amnesties may not last. So to build a peace agreement around them may not be a good idea, anyhow.
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Question Submitted by Maria Alicia:
The Pinochet precedent or effect has had significant influence on international law, would you say this is true for Chilean law as well?
Naomi Roht-Arriaza answers:
Until recently, I would have said there was little to no impact on Chilean law. The Chileans have prosecuted based on their own penal code, and have found loopholes in the amnesty law based on a theory of "continuing crime" that is domestic (although common to several Latin American countries). However, a recent spate of decisions references international law, especially the 1949 Geneva Conventions and Inter-American law, and I would say this new openness to international sources of law is in part due to the influence, and publicity about, the Pinochet cases abroad.
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Question Submitted by Maria Alicia:
What important issues concerning U.S laws and/or changes to the law have been brought on by the Letelier/Moffit case?????????
Naomi Roht-Arriaza answers:
There were several decisions involving the Alien Tort statute and the Foreign Sovereign Immunities act around this case, in the end the families received compensation through a diplomatic accord with the Chilean government.
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Question Submitted by Maria Alicia:
It is certainly disquieting to see the the Chilean Army bury Pinochet (who was charged and under house arrest at the time of his death) with all the honors assigned to a general and commander in chief, could you comment on the implications of this in terms of the division of powers in the Chilean system and how it concerns the Law insofar the man in question was being processed for enormous crimes against Chileans and others?
Naomi Roht-Arriaza answers:
I agree, but at the same time it was not a state funeral, the government has taken the position that this was an army matter not one of state. They are obviously balancing, not wanting to seem to provoke the military. At the same time, the military is doing its own balancing -- they just fired Pinochet's grandson for making disparaging remarks about the judiciary.
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Question Submitted by Ilhan:
What about his corruption and money that his relatives benefit from it now?
Naomi Roht-Arriaza answers:
The corruption and money laundering cases continue against the rest of the family. The problem is really finding the assets, only some of which have been discovered.
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Moderator's comment:
Thanks, Naomi, for joining us again to discuss this important issue. And thanks to everyone who participated in today's online discussion. We'll be sure to keep you updated on this and other issues relating to internationla justice. Be sure to check our Web site for updates on our work to promote international justice and accountability.
- Milo
Moderator
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