Statement apropos the judgment issued by the Metropolitan Magistrate, Ronald David Bartle, on Pinochet extradition.
By the Equipo Nizkor. 10oct99.
The Equipo Nizkor, as it has done at each phase of the proceedings on the Spanish disappeared in Argentina and Chile, would like to issue the following statement:
1) The judgment on Augusto Pinochet extradition involves the application, for the first time and in all its terms, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter Torture Convention) on the part of an ordinary court and on facts committed by a non national of that State in the territory of a foreign State.
2) This ruling contains five characteristics that surpass the virtualities of a simple extradition proceeding, such as the recognition:
- a) of the existence of the double criminality rule by virtue of the application of the Torture Convention;
- b) of the international criminal jurisdiction implicit in the Torture Convention;
- c) of the relatives of the detainees and disappeared persons as necessary victims of the crime of torture;
- d) of the conspiracy to torture as a continuing offense and therefore an offense prior to 08dec88; and
- e) of the crime of enforced disappearances as a continuing offense and therefore an offense prior to 08dec88.
3) This decision has been very welcome by all those who, since the very beginning of the proceedings in Spain, have maintained that the application of the Torture Convention was a necessary condition in order to be able to try all those responsible for serious crimes against human rights; we have also mantained that the application of the Torture Convention was a determinant factor in order to pave the way towards the legal foundations of criminal organization, all of which lays the ground for the consolidation of the genocide figure as recognized by the writs issued by the Spanish Audiencia Nacional.
4) The crime of conspiracy to commit torture opens the door for: a) the prosecution not only of the Senator for Life Augusto Pinochet Ugarte but also of all those who belonged to the criminal organization that was needed in order to commit the said acts; and b) for the application of the principle of command responsibility as anticipated by International Humanitarian Law; this principle also applies to civil servants responsible for the referred crimes, as it has been sentenced by the International Criminal Tribunal for Rwanda in the Akayesu case.
5) This ruling lays the ground for the consolidation of the so called International Criminal Jurisdiction as a complementary instance to the future International Criminal Court, as it has been set up in the Rome Statute (principle of complementarity). This type of procedures makes it possible for this Court not to be overburdened with multiple cases or limited by the political will of the UN Security Council, as it is the case of the ad-hoc Tribunals.
6) It is the first time since the Nuremberg (including the judgment of 01oct1946, and the subsequent trials held between 1946 and 1948) and Tokyo trials in which civil justice, exercised by ordinary tribunals, has the oportunity to imposse the rule of international human rights law and international humanitarian law, in opposition to the criterion of letting the solution of these cases in hands of the military jurisdiction.
7) As direct participants in these proceedings we whish to expressly declare that this new situation is a consequence of the work of human rights activists and organizations, including those which represent the victims and their relatives since more than 25 years ago. These proceedings exist and they have been possible thanks to the anonymous work, many times clandestine work, which enabled to recover thousands of data on the criminals and their offenses.
8) The writs issued by the Audiencia National on November 4 and 5, 1998, have consolidated one of the two legal strategies that were outlined during these judicial proceedings. Now Magistrate Bartle's judgment consolidates this line that the Audiencia National had opened and his decision also involves the expiration of the legal arguments held by the Spanish Attorney's Office in defense of the Argentine and Chilean members of the military who have been indicted.
9) This new situation also shows the failure of the two state impunity models that were arranged in Argentina and Chile. Regrettably, these models were formalized with the advice and acquiescence of the Former Spanish President, Felipe Gonzalez. Milton Friedman and Margaret
Thatcher are equally responsible, direct and indirectly, for the elaboration and implementation of the economic doctrine needed by these regimes.
Not only both models entail a continuous violation of civil and political rights, but they also have very serious implications over the violation of economic, social and cultural rights, thus demonstrating the interdependence between both types of human rights and the need for developing the protection of all of them as a necessary condition, and not only sufficient, so that human rights may have universal and full enjoyment.
The policies above-mentioned involved the practical disappearance and marginalization of a whole generation and they provoked hundred of thousands of victims all over Latin America.
10) As the increasing and massive appearance of documentary evidence deposited in US archives is revealing, there were leaders as Henry Kissinger, among others, who helped in the planning and consolidation of the criminal organizations in Latin America. We have confidence that the time and the law will one day determine their responsibilities before a criminal court.
The fact of hiding these crimes has led Senator Jesse Helms to launch an ardent assault against the international criminal jurisdiction of the future International Criminal Court and to create certain type of instruments to obviate it, such as the already existing and known "Visiting Forces Agreements".
11) Finally, this judgment puts an end to all the legal arguments of Augusto Pinochet's defense, which now can only resort to two possible non legal strategies, a) the utilization of humanitarian reasons to avoid the continuation of the proceedings, something that has never been taken into account in any case of serious crimes against humanity and, b) the formal accusation of political conspiracy motivated by revenge desires on the part of those who support the current proceedings in Spain and as form to take away their legitimacy.
EU, October 10, 1999.
Electronic edition by the Equipo Nizkor. 19oct99.
Published online by Equipo Nizkor and Derechos Human Rights