PINOCHET UGARTE MUST BE EXTRADITED TO SPAIN.
DESCRIPTION OF FACTS: Even though United Kingdom's highest court issued a resolution on November, 25, 1998 denying Augusto Pinochet immunity, this decision was set aside on December 17, 1998 due to allegations of bias on the basis of personal links of one of the members of the first panel of Law Lords, Lord Hoffman, with the organization for the defense of human rights Amnesty International. This House of Lords' decision has not been understood by many international activists who do not find any sort of contradiction between the fact of belonging to the Magistracy and the fact of belonging to a certain human rights organization. In general, this possibility has been duly recognized within the European Magistracy. Not doing so would be equal to assuming that a Judge is not a member of the democratic society. We do hope that this decision is not the anticipation of an unfair resolution on the part of the last medieval institution that still remains in Europe. This setting aside has resulted in the re-opening of the hearings on immunity. Therefore, on January 18, 1999 the Britains's highest court, now composed of a 7 Law Lords panel, restarted the appeal sessions in order to decide once more whether former Commander-in-chief of the Chilean Armed Forces who set himself up as Chilean dictator and current Senator for Life is entitled to immunity or not in relation with the extradition request issued by Spain. At this very moment in which sessions are still being held and before they get to their end, we consider it to be convenient to underline the legal foundations of the principle of individual responsibility of the authors of serious crimes against human rights. LEGAL FOUNDATIONS: Under international law in force, those responsible for crimes against humanity, including genocide, not only can, but also must be prosecuted in relation with their membership in a criminal organization and in application of the principle of command responsibility. A) Membership in a criminal organization: "A criminal organization is analogous to a criminal conspiracy in that the essence of both is cooperation for criminal purposes. There must be a group bound together and organized for a common purpose." (Office of United States Chief of Counsel For Prosecution of Axis Criminality, "Nazi Conspiration and Aggression: Opinion and Judgment" (Washington: United States Government Printing Office 1947), p. 88). The group must be formed or used in connection with the commission of crimes attributable to the accused, crimes against humanity in this case (as it occurred in Nuremberg), including genocide, and the necessary and systematic planning of the illegal and criminal operations. Augusto Pinochet Ugarte violated, as Commander-in-chief, the orders of his legitimate Chief (the democratically elected President Salvador Allende), thus committing treachery. In order to do so, he created a criminal organization which started functioning in 1972 and whose unique objective lay in the commission of civil and military crimes. He established this criminal organization by illegitimately using the means whose protection he had been commended to by the Chilean state, including the life guarantee of all citizens. To give free rein to his irrationality he was assisted by hundreds of Chilean officers who belonged to the DINA (Directorate of National Intelligence) and who are certainly identified. It is obvious that since 1972 he relied too on the Argentinian Navy, whose assistance lay mostly in granting him the concealment of the criminal operations by protecting his communications, as it was discovered by virtue of the financial examination carried out by the Universidad Nacional del Sur (National University of the South) in the Instituto Argentino de Oceanografia (Argentine Institute of Oceanography), where evidence corroborating theses facts and which was handed over to the Argentine Foreign Affairs Ministry was found. The Operation Condor is simply a multinational corporation created to spread terror around; an international criminal organization whose only objective relied on the criminal cooperation and the performance of criminal operations in the territory of its members (mainly countries of the Southern Cone of Latin America). This illegal proceeding made it possible to optimize the economic and operational expenses of the different criminal organizations it was composed of, one of which was the Chilean DINA. Their leaders also act in foreign countries in order to exterminate political opponents or mere suspicious citizens. Suffice it to remember the case of the 119 Chileans, most of them of Jewish origin, who were exterminated in Chile and whose bodies were supplanted by 119 corpses of political opponents found dead in Argentina; this fact was registered within the image campaign conducted by the illegitimate government headed by Augusto Pinochet and which was organized by an international marketing agency. It is the same kind of operation that today aims at turning Agusto Pinochet Ugarte into an "old, frail and sick" general, as it seems Lady Thatcher said. Laws against membership in a criminal organization date back over one hundred and fifty years. As Justice Jackson made it clear in his argument before the Nuremberg Tribunal (which was established to bring to trial to the major nazi criminals), on February 28, 1946: "The substantive law which governs the inquiry into criminality of organizations is, in its large outline, old and well settled and fairly uniform in all systems of law." (Office of United States Chief of Councel For Prosecution of Axis Criminality, "Nazi Conspiration and Aggression" (Washington: United States Government Printing Office 1946), I I, p. 9) The Nuremberg minutes also assert that precedents in English law for outlawing organizations and punishing membership therein are old and consistent with the Nuremberg Charter: in 1836, British India enacted a statute designed to supress thuggery that made membership in "any gang of thugs" punishable by life imprisonment (British India Act No. 30, November 14, 1836). Other precedents in English legislation are the "Unlawful Societies Act" of 1799 ( 3 George III, Chapter 79); "Seditious Meeting Act" of 1817 (57 George III, Chapter 19); "Seditious Meeting Act" of 1846 (9 and 10 Victoria, Chapter 33); "Public Order Act" of 1936 and "Defense Regulation" 18 (b). The last was intended to protect the integrity of the British Government against the fifth-column activities of the nazi conspiracy. In that same line, Article 265 of the French Penal Code, enacted in 1863, criminalizes the formation of associations whose aim it is to prepare or commit crimes against persons or property. The German Criminal Code enacted in 1871, Section 128, criminalized participation in associations whose existence, constitution or purposes were kept secret from the Government; due obedience to superiors in this kind of organizations was also punishable. Most significant of all is the fact that twenty-two years before the Neremberg trials began, on May 30, 1924 the German courts rendered judgement that the whole Nazi Party was a criminal organization. This decision referred not only to the Leadership Corps, but to all other members as well. In order to do so, the German courts proceeded on the theory that all members were held together by a common plan in which each one participated even though at various levels. In 1940, the United States enacted the Smith Sedition Act making it a crime to be a member of an organization which sought to overthrough the government of the United States by force or violence. Under international law both the London and the Far East Charter for the International Military Tribunals established the possibility of prosecution of individuals for their membership in a criminal organization. As it has been stated in the Nuremberg minutes, organizations with criminal ends are regarded as in the nature of criminal conspiracies, and their criminality is judged by the application of conspiracy principles. The Charter, in Article 6, provides that "Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes [crimes against humanity among them] are reponsible for all acts performed by any person in execution of such plan." Articles 9, 10 and 11 of the Charter contain provisions concerning liability for membership in a criminal organization. The last of these articles establishes that the same individual may be punished for participating in a criminal organization and additionally for having perpetrated certain crimes. A criminal organization, from the point of view of serious crimes against humanity, is not equal to whatever armed band; in order to constitute a criminal organization its formal or secret objectives must consist of the planning, organization and execution of operations which violate the international human rights law and international humanitarian law and in order to do so they must use the state institutions and/or the armed forces. The Nuremberg records also read that the criteria for determining the collective guilt of those who adhered to a common plan obviously are those which would test the legality of any combination or conspiracy. Did it contemplate illegal methods or aim at illegal ends?. If so, the liability of each member of one of these organizations, aimed at the extermination of the political opponent, for the acts of every other member is not essentially different from the liability for conspiracy enforced in courts of the United Stated against business men who combine in violation of the antitrust laws, or of other defendants accused under narcotic drugs laws. Also Section II, Article 5 of the Charter of the International Military Tribunal for the Far East, enacted January 19, 1946 criminalized "participation in a common plan or conspiracy" as the Nuremberg Charter did. The Nuremberg Judgement, as it has been said, stressed that a criminal organization is analogous to a criminal conspiracy in that the essence of both is cooperation for criminal puerposes. The Nuremberg Tribunal subsequently found four of the seven indicted nazi organizations to be criminal within the meaning of the Charter. With regard to the Gestapo and S.D., the Tribunal stated: " The Gestapo and SD were used for purposes which were criminal under the Charter involving the persecution and extermination of the Jews, brutalities, and killings in concentration camps, ..., and the mistreatment and murder of prisoners of war." [1, INTERNATIONAL MILITARY TRIBUNAL, TRIAL OF THE MAJOR WAR CRIMINALS 277] In the same way and as a necessary condition of this type of organizations, a systematic organization of illegal detention camps and extermination camps was carried out in Chile. The intelligence services selected previously those who were going to be carried to these places, a product of the irrationality of human mind. The DINA was the functional and hierarchic responsible for this type of instrumental activities within the planning of the extermination. There is nothing of accidental in this sort of repression and extermination. Also the Allied Control Council, following the lead of the Tribunal, prosecuted individuals for membership in a criminal organization under Control Council Law No. 10. In the case of "United States v. Otto Ohlendorf" (4 TWC 412) twenty-two of the defendants were found guilty for their membership in the S.S. through the Extermination Units. It is necessary to recall that the UN General Assembly declared the Nuremberg principles to be international law, and therefore, it stated that participation in a common plan or conspiracy to comit illegal acts such as those being mentioned is a crime under international law.(Principles VI and VII). Article. 3 b) of the Convention on the Prevention and Punishmet of the Crime of Genocide, of 1948, also penalizes conspiracy to commit genocide. The commentary to the Secretary-General's draft observes that "genocide can hardly be committed on a large scale without some form of agreement. Hence the mere fact of conspiracy should be punishable even if no ‘preparatory act' has yet taken place." (Draft Convention on the Crime of Genocide, Commentary, U.N. Secretary-General, at 31, U.N. Doc E/447, 1947). The Statutes governing the International Tribunals for the Former Yugoslavia and for Rwanda also recognize conspiracy to commit genocide and complicity in genocide as punishable (Articles 4 and 2 respectively). Therefore, due to the fact that the detainee, Augusto Pinochet Ugarte, not only belonged to, but also planned, organized and directed a criminal organization that aimed at exterminating citizens on religious, social, ethnic and political grounds, he must be found responsible under the principle of functional responsibility inherent to his rank: Commander-in-chief of the Chilean Army. It is necessary as well to underline that the Chilean Supreme Court itself, while dealing with the case of the assassination of Orlando Letelier, ruled that the DINA was a criminal organization. B) Criminal responsibility under the Principle of Command Responsibility. This principle is not new neither. As early as 1439 Charles VII of France issued an Ordinance at Orleans through which he ordered that each captain or lieutenant be held responsible for the abuses committed by members of his company. This principle is also to be found in the Articles of War issued by Gustavus Adolphus of Sweden in 1621 establishing that those Colonells or Captains who command their soldiers to do any unlawful thing shall be punished. As to modern codes, we find somewhat abbreviated version of the issue of command responsibility in Article 71 of the Lieber Code, which governed the behaviour of American troops during the Civil War. This principle was also applied against Napoleon when he violated the agreement that exiled him to St. Helena, considering that he had been completely unconcerned with humanitarian law. The Commission on Responsability of the Authors of the War and on Enforcement of Penalties, created by the Allied and Associated Powers at the end of World War I, established the criminal liability, without distinction of rank, of all those who had been guilty of offenses against the laws and customs of war or the laws of humanity. The first treaty obligation making a superior liable for breaches of humanitarian law committed during war is to be found in Article 3 of the IV Hague Convention (1907). Previously, in 1902, Brigadier-General Jacob H. Smith had been retired from the active list by President Roosevelt, for it was considered that he issued unlawful orders to his subordinates while exercising his military functions. The general principles of international responsibility of the individual in criminal matters arise from the Statute and Judgement of the Nuremberg Tribunal, on which British judges then served. The London Charter establishing the Tribunal expressly provides that: "The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment" (Article 7). As for criminal responsibility of state agents, Principle III states: "The fact that a person who committed an act which constitutes a crime under international law acted as a Head of State or responsible government official does not relieve him from responsibility under international law". The United Nations General Assembly declared this principles to be international law in its Resolution 95 (I) of 11 December 1946. In the Judgment of the Nuremberg trials, the principle of individual responsibility of the accused is once more brought to light, for "international law imposes duties and liabilities upon individuals as well as upon states..." The Judgment states that in the case of Ex parte Quirin (1942 317 U.S.1), Chief Justice Stone emphasized the principle of individual responsibility and gave a list of cases tried by the courts, where individual offenders were charged with offenses against the laws of nations.... "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." ("Nazi Conspiration and Aggression: Opinion and Judgment" op. cit., pp. 52-53). Many higher ranking officials, political as well as military commanders (positions into which Commander-in-chief Augusto Pinochet fits), were found guilty of war crimes or crimes against humanity based upon the "evidence of the officials' participation in conferences at which policies of persecution or extermination were agreed upon" or instances in which orders that breached international law were issued [22, TMWC 411] This type of encounters to conspire for the commission of crimes took also place among the leaders of the Southern Cone Dictatorships in order to establish and implement what they called "Operation Condor". This international terrorist network had its starting point in the contacts held between General Contreras -Executive Director of the Chilean DINA who received direct orders from Augusto Pinochet (General Contreras' statements asserting these facts are part of the record conducted by the Chilean Supreme Court and the Spanish National Criminal Court)- and General Guanes Serrano, from Paraguay. Reasonable evidence of this fact can be found in a letter belonging to the Condor files and that Contreras sent to Guanes. In this letter Contreras calls "Primer Encuentro de Trabajo de Inteligencia Nacional" (first working meeting of national intelligence) to the enterprise that afterwards will become the "Condor Operation". The meeting mentioned by Contreras took place at the DINA compounds, in Santiago de Chile, in October 1975. Command resposibility and, in general, responsibility of superiors, is a recognized principle. The principle of responsibility, applicable to both civilian superiors and military commanders, includes: a) a duty to exercise authority over subordinates; b) equality of responsibility with the subordinate; c) actual knowledge of the unlawful conduct planned or carried out by the subordinate or sufficient information to enable the superior to conclude that such conduct was planned or had occurred; d) failure to take necessary steps to prevent the wrongdoing; e) the feasibility of such steps; and f) prosecution and punishment of the crime. [Amnesty International, THE INTERNATIONAL CRIMINAL COURT: MAKING THE RIGHT DECISION, AI Index: IOR40/01/97 (January 1997)]. Today, the principle of individual criminal responsibility for ordering a crime to be committed is expressly recognized in Art. 49 First Geneva Convention; Art. 50 Second Geneva Convention; Art.129 Third Geneva Convention; Art.146 Fourth Geneva Convention; as well as in the Statutes creating the ex-Yugoslavia (Art. 7.1) and Rwanda (Art. 6.1) International Criminal Tribunals. Furthermore, common par. 2 of Arts. 7 and 6 of the ex-Yugoslavia and Rwanda Statutes, respectively, provides once more: "The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment." Superiors are as well responsible for the acts committed by their subordinates: the Yamashita case [In re Yamashita, 327 U.S. 1 (1946)], commander of the Japanese occupying forces and acting Governor during World War II in the Philippines, served to set two requirements in order for the subordinate's criminal act to be charged to the superior: a) actual knowledge about the commission of the crime, or knowledge of enough facts to conclude the crime; and b) there is an affirmative duty; superiors, once aware of the commission of such crimes, must take all necessary measures within their power to prevent or repress the crime. The Yamashita holding, among others, makes any officer criminally liable, just by virtue of his status and geographic area of command, if those operating under the officer's command commit criminal acts. Should a commander issue orders which lead directly to lawless acts, the criminal responsibility is definite and has always been so understood. The decision of the Canadian Military Court which tried Brigadier-General Kurt Meyer (Abbaye Ardenne Case) throws further light on the issue of command responsibility. In order to find the accused guilty it is not necessary to be convinced that a particular formal order was given, it is enough with being satisfied that words were uttered or some clear indication given by the accused to his subordinates that unlawful acts were to be committed. Even further, the superior may be held responsible for not having prevented his officers from participating, as it was the case, in an extrajudicial execution, and also for not bringing them before a military tribunal. In the same line, Article 6 of the Draft Code of Crimes Against the Peace and Security of Mankind, drafted by the UN International Law Commission, provides that "The fact that a crime against the peace and security of mankind was committed by a subordinate does not relieve his superiors of criminal responsibility, if they knew or had information enabling them to conclude, in the circumstances at the time, that the subordinate was committing or was going to commit and if they did not take all feasible measures within their power to prevent or repress the crime." (Draft Articles on the Draft Code of Crimes Against the Peace and Security of Mankind corresponding to 48th. Session of International Law Commission, May 6 to July 26, 1996). In the matter of the extradition of retired General Carlos Guillermo Suarez-Mason, which was requested by the State of Argetina to the US, the US District Court for the Northern District of California argumented that Suarez Mason, as head of Zone One (In 1975 Argentine was broken down into five military zones), was personally responsible for the issuance of secret Operational Order 9/77, which set forth in detail the manner and means by which those in his command were to carry out the necessary operations in the fight against subversion. By most estimates, somewhere in the range of 5,000 people disappeared in Zone one during Suarez-Mason's tenure as Zone Commander. The court thinks it highly impossible that any commander could be unaware of such massive violations occurring under his nose. Suarez-Mason was not charged with personally committing either the homocides or the kidnappings. Intead, he was charged as a "principal who directed and controlled the acts of murder and kidnapping in that a) Suarez-Mason was the Commander of the First Army; b) the charged offenses were committed pursuant to a system of secret verbal orders controlling conduct of members of the First Army Command; and therefore, c) the inescapable inference is that these orders were given by Suarez-Mason. The court concluded that "where Argentina establishes that a particular offense was committed by persons under Suarez-Mason's command, and the circumstances of the offense support the conclusion that they were acting pursuant to the directions of the system put in place by Suarez-Mason, such a showing will generally be sufficient to satisfy" probable cause that he committed the charged offense. (N.D. Cal. Apr. 27, 1988). He was finally extradited to Argentina. To name a recent precedent, the indictments and warrants issued against Radovan Karadzic and Ratko Mladic, the putative leader and commanding general, respectively, of occupying Bosnian Serb forces in Bosnia, indicate that reasonable grounds exist for believing that the accused has committed the offenses in relation with their position. They are accused of having committed, from 1992 to 1995, genocide, crimes against humanity, violations of the laws and customs of war,....The link that ties these superiors to their crimes is the principle of responsibility of superiors, both civil and military. General Augusto Pinochet occupied the highest possible position as Commander-in-Chief of the Chilean Army and while exercising as such, he committed the crimes he is being accused of (abductions, forced disappearances, tortures, that is to say, crimes against humanity including genocide, which were committed thanks to the conspiracy of the military that usurped the democratic rule of Chile and that also served to create the terrorist organization, endowed with international range, known as "Operation Condor"). General Augusto Pinochet and other high officers had knowledge of all those acts and used their power to enable the commission of the atrocities that remained impunished. The victims' appeal to Justice just seeks an end to the ill circle of impunity. While dealing with this kind of situations the application of the humanitarian laws has been questioned, for many have thought that their application would be equal to recognizing the existence of a war. This is a false principle. There is sufficient evidence to demonstrate that there was not such a war. But it is beyond all doubt that General Augusto Pinochet transformed the armed forces into a criminal organization and created a criminal organization using them. His condition and the condition of his subordinates place them all under the principles of the military rules and the Geneva Conventions. They designed in their General Staff (Estados Mayores Militares) the operations aimed at the extermination of thousands of persons, issued their orders by means of the military communication systems and used the hierarchic military system to achieve their goals; hence, they must be judged under these principles which they have consciously, and also voluntarily, violated. REQUESTED ACTIONS: (taking into account the above arguments) i) to write to the Law Lords emphasizing the legal irrationality they could fall into if Senator for Life Augusto Pinochet Ugarte is finally entitled to immunity as Head of State, due to the kind and seriousness of the perpetrated crimes and due to his reponsibility as leader of a criminal organization; ii) if you are resident in one of the countries that have requested Augusto Pinochet extradition (or if you are interested in the undertaking of actions by one of those countries) and on the assumption that the Law Lords ended up by recognizing the immunity of the Head of State and highest responsible of the criminal organization: to request to the government of that country to undertake the necessary judicial actions in order to file an appeal before The Hague Court (International Court of Justice) on the presumed violation of international norms and treaties on the part of Great Britain. It is important that these actions are prepared to be able to put them into practice in order to paralyse judicial actions until the question is solved by The Hague Court. SOME USEFUL ADDRESSES: - The Leader of the House of Lords, The Rt Hon Baroness Jay of Paddington House of Lords , London SW1A OP, UK. Fax: +44 171 219 3051 - The Leader of the House of Commons, The Rt Hon Margaret Beckett, MP, House of Commons, London SW1A OAA, UK. Fax: + 44 171 270 0511 - The Prime Minister, The Rt Hon Tony Blair, MP, 10 Downing Street, London SW1, UK. Fax: +44 171 270 0196 - Secretary of State for Home Affairs. Rt. Hon, Jack Straw, MP, Home Office, 50 Queen Anne's Gate, London SW1 9AT, UK. Telegrams: Jack Straw MP, Home Office, London, UK. Fax: +44 171 273 3965 Salutation: Dear Secretary of State - Secretary of State for Foreign and Commonwealth Affairs. The Rt Hon Robin Cook, MP, Foreign and Commonwealth Office, Downing Street. London SW1A 2AL, UK. Telegrams: Robin Cook MP, Foreign Office, London, UK. Fax: + 44 171 270 3539. Salutation: Dear Foreign Secretary Please, send copies to the British Embassy in your respective countries and also to the newspapers: - The Guardian, 119 Farringdon Rd, London EC1R 3ER, UK. Fax: +44 171 8372114 - The Times, 1 Pennington St. London E1 9XN, UK. Fax: +44 171 782 5046
Procedures Against Pinochet
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