Pinochet in England: High Court Ruling Violates International Law

The Nizkor Human Rights Team (Equipo Nizkor) and Derechos Human Rights are profoundly dismayed by the October 28th ruling of the British High Court which granted General Augusto Pinochet immunity from prosecution as a former Head of State. We would like to express our condemnation of what constitutes a flagrant violation of International Human Rights Law. The decision adopted by the British Justice ignores that there is no immunity for crimes against humanity, including genocide, under international law.

The individual responsibility of General Augusto Pinochet for the commission of crimes against humanity is evident - not only was he Commander-in-Chief of the Chilean Army during the period when these crimes against humanity of which he is accused were committed, but he ordered the commission of those crimes.

General principles of international responsibility of individuals in criminal matters arise from the Statute and Judgement of the Nuremberg Tribunal, which tried Nazi criminals for crimes against humanity. British judges served on that tribunal. 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). Article 6 of the same Charter makes it clear that individuals are responsible for criminal acts as defined by the Charter.

The United Nations General Assembly declared these principles to be international law in its Resolution 95 (I) of 11 December 1946. With respect to the criminal responsibility of state agents, Principle number 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".

Many high ranking political and military officials (such as General Augusto Pinochet is), have been 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 [Judgement of the Nuremberg Tribunal, 22, INTERNATIONAL MILITARY TRIBUNAL, TRIAL OF THE MAYOR WAR CRIMINALS 411 (1948)]. This shows that command responsibility and more generally, the responsibility of superiors for crimes against humanity, is a recognized principle of international law.

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)].

The Investigating Court Number Five of the Spanish Audiencia Nacional (National Criminal Court) has decreed the detention of General Augusto Pinochet on the grounds that there is reasonable existing evidence of his participation in the orchestration of an International Terrorist Network known as "Operation Condor". Operation Condor constituted a conspiracy of the dictatorships of the Southern Cone to commit crimes; one of its objectives was the elimination of political adversaries in Chile and other countries. Operation Condor had its starting point in the contacts held between General Contreras, Executive Director of the Chilean DINA (Directorate of National Intelligence) and General Guanes Serrano, from Paraguay. A 1975 letter from Contreras to Guanes calls for the "Primer Encuentro de Trabajo de Inteligencia Nacional" (first working meeting of national intelligence), for the enterprise that afterwards would become the Operation Condor.

This meeting took place at the DINA compounds, in Santiago, in October 1975. It was attended by the heads of military intelligence of Argentina, Brasil, Paraguay and Uruguay. One month later, Contreras met with Guanes Serrano and the Chief of the Paraguayan Police Francisco Brites. The Operative Condor was conceived in this meeting to include "a database, an information center and several workshops". The innocuous name "workshops" ("talleres") refers to the planning sessions of multilateral groups of agents in charge of the watching, arresting, imprisoning, torturing and "repatriation" of opponents to the different regimes.

On February 13, 1998, the statement of General Manuel Contreras before the Chilean Supreme Court was added to the record of the Chilean case in Spain. In his statement, General Contreras reiterates that the DINA was a military organization directly dependent on Pinochet, whom he "briefed daily". We underline that the Chilean Supreme Court found DINA to be a "criminal organization" of the kind found at Nuremberg Trials, a fact also underscored by the European Parliament in a Resolution passed last year condemning General Pinochet. General Contreras is still in prison.

The murder of Orlando Letelier (former Foreign Affairs Minister of Chile) on September 21, 1976, in Washington, is but one of the terrorist acts committed by this criminal organization. US Attorney Ernest Lawrence Barcella, who was in charge of the prosecution of that case, testified before the Spanish Magistrate (official pages 1727-1731) that the DINA as an organization conspired to commit terrorist attacks in Spain, France, Portugal, Italy, USA, Argentina, Chile and other countries. Furthermore, these were terrorist activities of which Augusto Pinochet Ugarte had complete knowledge and in which he participated. The so called "Plan Condor" estructured the terrorist activities directed by Pinochet and that had extraterritorial lethal effects.

Today, the principle of individual criminal responsibility for ordering the commission of a crime is expressly recognized in Art. 49 of First Geneva Convention, Art. 50 of Second Geneva Convention, Art.129 of Third Geneva Convention, Art.146 of the Fourth Geneva Convention, as well as in the Statutes creating the Criminal Tribunals on the ex-Yugoslavia (Art. 7.1) and Rwanda (Art. 6.1). Furthermore, common par. 2 of Arts. 7 and 6 of the ex-Yugoslavia and Rwanda Statutes, respectively, provides again 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."

Under international law, superiors are also responsible for the acts committed by their subordinates. The Yamashita case [In re Yamashita, 327 U.S. 1 (1946)], involving the commander of the Japanese occupying forces and acting Governor of the Philippines during World War II, served to set the two requirements in order for finding the responsibility of superiors for criminal acts committed by subordinates. These are: a) actual knowledge about the commission of the crime, or knowledge of enough facts to conclude the crime; and b) once aware of the commission of such crimes, the accused not 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. 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 military position in Chile as Commander-in-Chief of the Chilean Army during the period in which the crimes of which he is accused were committed. These crimes include abductions, forced disappearances and torture; that is to say, crimes against humanity. They 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".

There are reasonable grounds for concluding that General Augusto Pinochet Ugarte, along with other high officers, had knowledge of all those acts and used their power to make it possible to commit the atrocities which remained unpunished. The victims' appeal to Justice seeks an end to the ill circle of impunity.

The Nizkor Human Rights Teams hopes that the claims of thousands of victims whose more fundamental rights have been violated might be satisfied through the application of the existing international and national norms against impunity.

The United Kingdom must comply with international law and extradite Agusto Pinochet.

Juicio contra Pinochet

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Este documento es publicado en la internet por Equipo Nizkor y Derechos Human Rights