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Chile's justice in world glare if Britain lets Pinochet go

Other countries may take a cue if Chile, as expected, fails to try theformer dictator. London rules soon.

By James LangmanSpecial to The Christian Science Monitor / February 5, 1999



SANTIAGO, CHILE

Chilean human rights leaders cheered Britain's arrest of former Gen. Augusto Pinochet in October.

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Now, in two or three weeks, House of Lords judges are expected to decide whether the ex-dictator has diplomatic immunity and can thus escape extradition to a Spanish court. If he becomes free to go home, human rights leaders in Chile warn, Mr. Pinochet will never stand trial in his own country for the human rights violations charged to his 17-year regime.

The reason is Chile's legal system, which is chock-full of laws and loopholes to prevent that scenario from occurring. Further, there is immense pressure in Chilean society from rightist and military leaders against prosecuting Pinochet.

Other countries may take a cue from Chile and seek to sacrifice justice on human rights issues in order to achieve reconciliation in their national life.

"It is unthinkable that Pinochet can go to jail. The Chilean government ... says that he can be tried in Chile, but there is no way to do that," says Felipe Portales, project director at the Chilean Commission on Human Rights and a former director of human rights policy in Chile's government.

Fifteen criminal lawsuits accusing Pinochet of human rights violations are currently being investigated by Chilean magistrate Juan Guzman. But Mr. Portales says that Mr. Guzman may carry out his investigations to the end, perhaps even interrogate Pinochet, but none of the cases will ever reach a Chilean court.

Here are the hurdles in the way:

*According to Chile's amnesty law, all human rights crimes committed between Sept. 11, 1973, and March 10, 1978, are immune from prosecution.

*The prescription law is a common-law Chilean statute stating that crimes committed more than 15 years prior to a present date cannot be prosecuted.

*As part of Chile's Constitution enacted in 1980, designed with the guiding hand of Pinochet, all former heads of state of at least six years are afforded the privilege of being a senator-for-life in Chile's Congress. As a senator, Pinochet has immunity that can be removed only by a majority vote of the Chilean Senate.

Portales says that the lone bright spot in the legal web insulating Pinochet from prosecution was a decision by a lower court in September 1998 that says the Geneva Conventions - protecting civilians from torture, for example - have precedence over Chilean laws. However, Portales says that, in four other cases after that ruling, the courts said the conventions did not have precedence over Chilean laws.

There is another important obstacle, says Roberto Garreton, who headed the legal department of the Roman Catholic Church's Vicaria de Solidaridad human rights organization during the military regime and now works as a special human rights adviser to the United Nations.

"On the day of the military coup, Sept. 11, 1973, the then Supreme Court president, Enrique Urrutia Manzano, declared his full satisfaction with the proposed members of the governing junta," says Garreton.

"The Supreme Court justices were picked up the same day at their homes by a military bus and taken to the court to ratify what Urrutia Manzano had signed. This marked a turning point as the Supreme Court submitted to the would-be members of the military junta. And it did it during all 17 years of the regime and it has continued doing it since."

SINCE the military coup in 1973, says Garreton, only 12 cases out of the nearly 5,000 cases of human rights violations that have been brought before Chilean courts have been completed with sentences pronounced.

Garreton says that, even if Judge Guzman attempts to go the distance with his investigation into the human rights accusations against Pinochet, military courts could question his jurisdiction.

"Crimes against humanity are an international cause," says Garreton. "Unfortunately, the Chilean government has chosen the small principle of sovereignty and forgotten the more powerful one that is backed by all the international treaties to which Chile has agreed."

On Jan. 27, Chile's government announced it will seek the involvement of its State Defense Council in the investigation of human rights abuses attributed to Pinochet to show that Chile is capable of rendering justice and to promote the return of Pinochet from detention in Britain. The plan stems from suggestions for such a move by the British Foreign Office.

Chile's Foreign Minister Jos Miguel Insulza said at a press conference,"Now no one can say that in this matter the government isn't interested in assuring justice."

But Nelson Caucoto, a human rights lawyer in Chile since 1976 and the legal representative for a Chilean human rights group, Families of the Disappeared, says the government's action is only a "symbolic" measure for the benefit of the House of Lords in London.