20th anniversary of Pinochet's arrest in London, 16th October 1998
______________________________________________________________English version: https://andrewmcentee.blogspot.com/2018/10/english-trans-la-tercera-andy-mcentee.html
[English, this longer version below: https://andrewmcentee.blogspot.com/2018/10/english-version-interview-in-la-tercera.html ]
actor Peter Capaldi is human rights lawyer Andy McEntee
"Pinochet In Suburbia" [UK title] / "Pinochet's Last Stand" [USA title]
(BBC & HBO, 2006)
"Pinochet In Suburbia" [UK title] / "Pinochet's Last Stand" [USA title]
(BBC & HBO, 2006)
(extract duration: 0 mins, 49 secs)
Andy McEntee, the lawyer who was key to the arrest of Pinochet: “Frei had no interest in challenging the regime”
By: Alejandra Jara | 16 October 2018
 |
| Andy McEntee, Chairman of Amnesty International UK (High Court, London, 27 January 2000) |
______________________________________________________________
 |
10th of December 1998 - Human Rights Day
Led by Andy McEntee and Jeremy Corbyn, Amnesty International marches with the Chilean community through Parliament Square. Jack Straw, Home Secretary, gave his approval for Pinochet to sit in the dock at Belmarsh Court the following day.
|
There is an episode that marked the life and career of the renowned Human Rights lawyer Andrew McEntee: it occurred on the 11th of December 1998, and is intimately related to the history of the Chilean transition. That day McEntee -at the time Chairman of Amnesty International UK- was a witness to the moment when Augusto Pinochet Ugarte for the first time came face to face with the forces of justice in Belmarsh Court, south London, where he was committed for trial in the extradition proceedings against him.
 |
| 11th of December 1998 Augusto Pinochet Ugarte in the dock at Belmarsh Court |
______________________________________________________________
NOTE about the English-language version of the Questions & Answers section:
Since the Q & A published in La Tercera is itself an edited-down version of a longer exchange, below is the ‘fuller treatment’, including parts edited out of the interview before publication, and other background comments and notes, photos and web links.
* I have asterisked those paragraphs that correspond to the published interview. I hope that is an OK compromise for Alejandra and La Tercera
______________________________________________________________
Andy McEntee - 1998
In 1998 I was Chairman of Amnesty International, United Kingdom section, beginning in May of that year. Since 1994 I had been Chairman of the Lawyers Group of Amnesty UK, working on issues such as ‘international jurisdiction’ for crimes against humanity - for example, the possible arrest of Pinochet outside of Chile beginning with his first visit to England in 1991 - and for the creation of a future International Criminal Court. But my relationship with Amnesty International had begun in 1978, as a student, including being the Scottish Representative of Amnesty between 1984-1986, and a member of the British Council of Amnesty from 1984.
I should add that between 1986-1991, in London, my job was Coordinator of the organisation ‘Chile Committee for Human Rights’ (CCHR), an organisation created in 1973 and supported by British charities, with the aim of securing the respect for human rights in Chile through the return of democracy. There were other similar organisations for Argentina, Peru, Colombia, El Salvador, Guatemala, and we all knew each other. In fact, from 1993-1996 I was also head of the Central America Human Rights Committee (CAHRC).
The Chile Committee closed its doors in 1991, after the newly elected civilian government’s ‘Rettig Commission’ published the ‘Rettig Report’ that established state responsibility for thousands of torture cases - but still we were concerned by the weakness of President Aylwin’s government, and the ‘protected democracy’ model underpinned by the new Chilean Congress, the Chilean Army, the courts, and others, that suggested 'continuation' rather than 'transition'.
Originally, my knowledge of the situation in Chile began on the 11th of September 1973, when I saw the military coup on television, including the use of airplanes sold to Chile by my own country, that the FACh [Chilean Air Force] was using to attack Allende in La Moneda presidential palace. Soon after, in 1975 as a student of Spanish language at Stirling University in Scotland, I met many refugees from Chile and Argentina, who were students there thanks to grants of the World University Service and other donors. For the first time I learned of ‘Operation Condor’.
[Operation Condor explainer - a cooperation agreement formed in 1975, originally between the security services of Chile and its neighbour Argentina, to exchange intelligence, track down each other’s dissidents on each other’s soil, and either detain and transfer them to their home country or simply liquidate them locally. Soon ‘Operation Condor’ expanded to involve the security services of Bolivia, Brazil, Paraguay and Uruguay. Pinochet’s head of secret police, Manuel Contreras, was the official international coordinator.]
For me, the situation in the dictatorships of South and Central America had echoes of the European fascist states of the Second World War, and the military operations of the Nazis that included aerial attacks over my own city in Scotland. Although I was young, I believed that I understood plenty about daily life under an authoritarian state, whether fascist or communist, with its secret police, its puppet judges and police, oppressed media, concentration camps, secret detention centres for torture and murder, etcetera. Even at secondary school history lessons on World War Two, I learned the German phrase “nacht und nebel”, effectively the secret arrest and disappearance of people under cover of the night - a technique also used by Pinochet after his military takeover, and internationally by him through Operation Condor.
The Spanish Connection
Pinochet was known to be an admirer of the Spanish dictator Franco and his methods. Sooner or later I learned that Pinochet and other Chilean officials had attended Franco’s funeral in November 1975.
Twenty years later, Pinochet’s visit to Spain would have legal consequences after his 1998 arrest in London - namely, Spanish investigating Judge Garzón’s allegation of a conspiracy amongst Pinochet and others while in Spain in 1975, to commit crimes against humanity in Chile, across South America and farther afield through Operation Condor, against citizens of Spain and other countries (for example the British citizens, Bill Beausire who is detained-disappeared, Doctor Sheila Cassidy who was tortured, and the priest Michael Woodward who was murdered).
As a student of Spanish language and history in Scotland, I learned a lot about the Francoist regime that was still ruling Spain even after Franco’s death in 1975. I first visited Franco’s Spain with a school group one Easter break. Later, through a university exchange programme I lived in Spain for a year, in Barcelona, with a job as English-language assistant in a secondary school. In the centre of Barcelona I experienced armed security checkpoints where I had to show my Ministry of Education credentials in order to pass, while others waiting in line were detained and taken into a waiting police van.
One time, some local students coincidentally got caught with me and my international friends at a pop-up checkpoint of the Guardia Civil, on the Ramblas at Plaça Reial. To make sure that they wouldn’t be detained, we successfully pretended that they were simply our friends on the way to a restaurant with us. One of the local students took fright and tried to run away from the checkpoint, but was hit in the face by a Guardia Civil baton, then dragged into a police van. He’ll never know how fortunate he was not to be killed. Just a few metres behind him, a Guardia Civil had pointed his rifle to fire a dum-dum bullet at the youth’s back; it could have snapped him in half, but the baton strike to his face proved the lesser of two evils.
I watched the violent repression of protesters on street marches calling for democracy and freedom of expression, and arrests of foreign journalists and photographers covering the event, including cameras being smashed on the ground. A key moment was the imprisonment of members of the satirical theatre group Els Joglars by a military tribunal - for producing a play ("La Torna" / "The Round-off") that satirised an earlier military tribunal for executing an innocent man.
"llibertat d’expressió" .
(Barcelona, 1977-1978; in Catalán language)
(the red strike across the actor's mask refers to the military trial of Els Joglars satirists)
Similar events were happening across the country at simultaneous demos. None of it was being reported properly, if at all, in the state-controlled media. The morning after one demo for “llibertat d’expressió” that was heavily repressed, the demo was reported in the pro-Franco daily La Vanguardia along the lines of, “Vandals last night rampaged along the Ramblas - many detained”.
"without freedom of expression there is no democracy"
(Barcelona, 1977-1978)
It was my direct experience of these events that turned me on to human rights activism. As soon as I returned to my Scottish university I became an activist in the Amnesty International group, the Chile Support Group, and similar groups for Argentina, Anti-Apartheid and other causes. In Spain, immunity measures prevented prosecution for the human rights crimes of the Franco dictatorship. Even the fate of Spain's ‘disappeared’ was out of bounds, in spite of their shallow grave resting places often being almost certainly identified by relatives, except for the prohibition on actual exhumations. No trials, no truth commission, no justice, no national reconciliation for Spain.
Twenty years later, when I saw large rallies across Spain in support of Judge Garzon’s Pinochet extradition warrant, and other demos opposed to his warrant, I knew immediately that these mass mobilisations around Pinochet were also mass mobilisations about Franco, by proxy.
______________________________________________________________
Q.1 ~ In 1998 you were Chairman of Amnesty International UK. What was your opinion of the Chilean transition?
A:
* By the time of Pinochet’s 1998 arrest in London I had a good understanding of Chile’s so-called ‘transition’ to democracy, or, as I saw it, the ‘continuation’ that the regime was trying to assure through:
- a 1980 Constitution that still lacked the reforms necessary for a democratic system;
- an unreformed and unreformable Congress that guaranteed a majority number of seats favouring ‘continuation’ supporters; a weak civilian court system, led by timid judges;
- impunity for crimes against humanity - including the continuing silence of state institutions about the fate and whereabouts of those citizens ‘disappeared’ by state agencies; and
- an Army that remained under the command of General Pinochet until March of 1998 - without neglecting to mention that Pinochet appointed his own successor as Army commander in 1998, outside of the control of the civilian President of Chile.
These are just a few of the available headlines for reflecting the problems of the ‘transition’ before the arrest of Pinochet in London.
* In 1998 it was well known that former President Aylwin and incumbent President Frei had benefited plenty from Pinochet’s military coup, that both had applauded in 1973. Comfortable at finally having become Presidents, both of their governments proceeded with timidity in the face of the ‘continuity’ of the regime - the visible ‘state within the state’ that was underpinned by the Army and other regime actors, in Congress and other places. While there had been a certain regime ‘accommodation’ with democratic forces of the political parties and the broader civil society opposition, such as the Association of Lawyers, still there was a long way to go by October 1998.
* This could be seen by the way that Frei’s government responded after Pinochet’s arrest. Chile protested to Spain and the UK, asserting to the world that Pinochet was a victim, because he had a ‘diplomatic passport’ - but without any evidence, and without any active diplomatic function - that guaranteed him immunity during his ‘special mission’ to London. All contrary to the legal advice to Pinochet since 1994 from his London law firm, Kingsley Napley, to stay away from London. And all while neither the Chilean embassy in London, nor the UK Foreign Office, knew anything about Pinochet’s visit, effectively a private journey. Also, Frei’s government came across as absurd by shouting to all the world that Pinochet’s arrest could endanger the road to democracy in Chile due to his absence.
It was the absence of Pinochet between October 1998 and March 2000 that opened up space for accelerating the process of necessary legal and institutional reforms; until they had to hit the brakes again due to Pinochet’s return to Chile, a free man but a defeated one. Declared fit by a Chilean judge for trial in Chile, suddenly it wasn't unusual to think of Pinochet as a prisoner, an accused man in the dock, his crimes being listed publicly by judges and journalists, even in school textbooks, while more and more of his underlings were seen on trial and being imprisoned in Chile.
The underlying problem for the civilian state was the 1980 Constitution, introduced by Pinochet as a sixteen-year project - a legal roadmap for assuring the continuity of the regime until the beginning of 1997 at least. After the first eight years, on 5 October 1988 there would be a referendum (plebiscito) that should confirm, or crown, Pinochet for another eight years as President.
Even though the "NO" vote defeated Pinochet in the 1988 ballot with 56% of the votes, the dictatorship could still continue for many more years, in the form of a ‘dictablanda’ - a ‘soft’ [blanda] rather than ’hard’ [dura] dictatorship. This would be by means of a civilian government that would run from March 1990 - a kind of political theatre with puppets, its strings being pulled on one side by a Congress stuffed with lifetime senators, and pulled on the other side by an Army still under the command of Pinochet until March 1998. And the Army now had independent sources of income, including a share of the profits of the state copper industry that continues to be the largest source of national GDP.
 |
| 5th of October 1988 56% of Chile votes "NO" to eight more years of Pinochet |
Even though the "NO" vote defeated Pinochet in the 1988 ballot with 56% of the votes, the dictatorship could still continue for many more years, in the form of a ‘dictablanda’ - a ‘soft’ [blanda] rather than ’hard’ [dura] dictatorship. This would be by means of a civilian government that would run from March 1990 - a kind of political theatre with puppets, its strings being pulled on one side by a Congress stuffed with lifetime senators, and pulled on the other side by an Army still under the command of Pinochet until March 1998. And the Army now had independent sources of income, including a share of the profits of the state copper industry that continues to be the largest source of national GDP.
______________________________________________________________
Q.2 ~ How did you know that Pinochet was visiting London to undergo surgery?
A:
* Beginning with Pinochet’s first visit to England in 1991, I always received phone calls to tell me that Pinochet was about to leave Chile, or had arrived already in London. In 1991 he was still head of the Chilean Army, and so was required to inform his superiors before he could travel outside of Chile. Information like that leaked across the government and Congress, and on to the Chilean community in exile. I received similar calls again in 1994, 1995 and 1997. Pinochet finished being head of the Army in March 1998, so his visit to Europe in September for surgery was a ‘private’ visit. But still he had to inform the authorities at the Senate about his departure from Chile, and again when he decided to extend his stay in London.
News like that leaks, but not only from the Congress. His whereabouts was uncertain to begin with, due to his initial plan to have surgery in France, but rumours of his arrival in London had begun circulating on 22nd September.
* Once it was confirmed that Pinochet was in London for a medical procedure, his exact location was confirmed by the Chilean community in London, on the morning of 9th October. Normally it would be Pinochet’s hotel that was identified. This time there were additional calls around the public and private hospitals. Some hospitals had Chileans or other Latin Americans working there, but generally the British people considered Pinochet a monster, so would be pleased to help identify him. It was presumed that he would be hiding behind a false name, but eventually ‘Ugarte’ was identified at the London Clinic. Although the media gave priority to finding Pinochet, of course I knew that he was never invisible to the UK police and security services.
* My priority was to prepare the legal case, documents and procedures, and then line up a team of British lawyers willing to spend time assisting me and Amnesty, without payment of course. If a judge was willing to issue an order for the arrest of Pinochet, then the police would take action immediately, without the need for me or anyone else to tell them where to find him. All the stuff about finding him, getting him on camera, protesting outside his window, is very important in a democratic society, but was largely irrelevant for my work. Mostly I needed to know that this time he would not be flying out of England before the courts and police could be mobilised.
One of my biggest problems in previous years had been that it was never the same person in the Metropolitan Police, International Serious Crime Unit, who dealt with the previous year’s Pinochet File. The file had been growing year by year, with case histories, testimonies provided by victims in Chile through the Agrupaciones, Vicaría, CODEPU, FASIC, CChDDHH. Also, growing legal and procedural advice for the police from senior English lawyers in my circle. I just wanted Pinochet to spend more time in London on this occasion - time to get the police and courts on board.
____________________________________________________
Q.3 ~ What was your role in bringing about Pinochet’s arrest?
A:
My role in bringing Pinochet to justice was as a lawyer based in London - as a human rights lawyer with a personal and professional responsibility to act upon the information and evidence available to me, to seek accountability and punishment for the individuals responsible for the organised criminal activities of the dictatorship, whether they took place in Chile, or elsewhere via ‘Operation Condor’ and other operations. For example, political imprisonment, torture, enforced disappearance, political killings of prisoners (in secret detention centres or as 'enfrentamientos falsos’, etc), or in targeted attacks by car-bomb in Washington etc.
Specifically on the detention of Pinochet, I opened a private file at the time of his first visit to the UK in April 1991. My aim was to bring about either his arrest in my country and a criminal trial in front of a jury, or a successful civil suit to establish the facts and to have a judge order redress for victims, in the form of financial compensation, social rehabilitation, etc.
During this one-day visit to England in 1991, I went to Bow Street Magistrates Court with a team of barristers. Pinochet’s visit lasted around four hours (private airplane-to-helicopter/helicopter-to-private airplane, limited to a private airport and a British Aerospace helipad), and so there wasn’t enough time to reach an accord with the judge who at least had consented to listen in private to our legal argument for an arrest warrant, to be enforced by the London Metropolitan Police.
By his 1994 visit, Pinochet had obtained legal advice from a firm of London lawyers, Kingsley Napley, that he should consider not returning to England due to the legal case that I had begun and was developing further in collaboration with a team of lawyers - barristers Peter Aeberli and Daniel Crowley, and solicitors Geoffrey Bindman, Rosemary Bloom and Allison Clare. We submitted various pieces of evidence on victims and perpetrators, relevant UK and international laws, procedural guidance for the Metropolitan Police. I arranged necessary contributions towards these submissions, from the Chilean community in the UK and my human rights contacts in Santiago.
By 1998, my role included liaison with victims and their representatives or lawyers, not only in Chile, but in Spain, France, Belgium, Netherlands, Switzerland, Sweden, amongst others. 'No Hiding Place’ was the title of a research project that I elaborated with Amnesty lawyers in England, Scotland and Northern Ireland from the end of 1991 - but Pinochet was only one of the sample cases we built the research around. By 1996 there had been a first arrest in the UK, of a Sudanese military doctor working in a British hospital, who had maltreated political prisoners in a Khartoum prison, and was arrested in Scotland.
Around the same time I saw that a Spanish judge, Baltasar Garzón, had issued an international arrest warrant for the Argentine dictator Galtieri - but I knew there was no possibility of Galtieri being extradited from his own country. Even so, by October 1998 everything was connected and certain options were possible.
It took seven and a half years to bring about Pinochet’s arrest in London, but we got there. It was as much to do with Pinochet’s own bad judgment in rejecting his lawyers’ warnings to stay away from London. He came back once too often.
______________________________________________________________
Q.4 ~ In the book “Pinochet, 503 days trapped in London”, by Chilean journalist Mónica Pérez, it is revealed that you advised the Spanish lawyer Joan Garcés how to get going the measures that could permit the capture of Pinochet. What do you remember about your conversation?
A:
I haven’t seen the book by Mónica Pérez. After Pinochet’s arrest she interviewed me often in London, for camera and by phone for background, and is well informed. But I did read a correct account of my conversations with Joan Garcés in "Yo Augusto" [“I, Augusto”], a book by Ernesto Ekaizer of the Spanish daily, El País.
So here goes…
* On Saturday 10th October 1998, I learned that Pinochet currently was in the London Clinic. It was through a phone call from Vicente Alegría, one of the members of the Chilean Human Rights Commission of London. It was Vicente’s role to pass information to me from the Commission, and he had been correct every time since 1991. At the same time, Jimmy Bell of the Commission was calling to Joan Garcés in Madrid, the lawyer representing many Chilean victims, who was in touch with the two judges investigating Pinochet in separate complaints - judges García-Castellón (investigating Chile) and Garzón (investigating Argentina with Operation Condor). Vicente and Jimmy recommended that I call Joan Garcés to discuss the case, as Garcés had been waiting for news of something, anything, happening in London. But specifically hoping for news of an arrest.
Similar to Amnesty in the UK, in Spain the Chilean exiles and their Spanish lawyers had been making statements calling for Pinochet to face justice in the UK. Jimmy understood from Garcés that what he needed right now was to speak to a British lawyer who knew about these things.
* I called Joan Garcés at home, while he was quietly enjoying a Spanish long-weekend. Crucially, the Monday would be a public holiday in Spain, so the courts and law firms would be closed, at a time when the pace of legal intervention should be speeding up. Although my Spanish had been described as fluent in the past, now it was unpracticed. Fortunately, Joan’s English was good, so we bounced in and out of each other’s mother-tongue as the need to be coherent dictated. Joan was pleased to be speaking with a British lawyer, and an Amnesty International lawyer at that.
* Joan’s core question was simple, “Can you have Pinochet arrested in London, by a judge, for genocide?” My short answer was “No.” The substance of our conversation, including the many anomalies between British and Spanish law, would be well argued in several London courts during the next sixteen months.
I outlined for Joan my efforts since 1991 to have Pinochet arrested, otherwise sued, in London. Joan and other Spanish lawyers had read about some of this in newspapers over the previous years, but the differences between the British and Spanish legal system meant they didn’t really understand what was happening and how it might or not develop. Now that two Spanish judges were investigating crimes committed in Argentina and Chile, including having taken testimonies from survivors and witnesses, there was a presumption that an identical or at least similar legal initiative could begin in London.
~ ‘British judges do not have the power to arrest and interrogate suspects’ ~
* We discussed for some time the relevant British laws and procedures, mostly in terms of what had been tried, what had and hadn’t worked, and why or why not.
A key point, I explained, was that British judges cannot simply take control of a complaint made to them - unlike the Spanish ‘investigating judge’ system - open a case-file, begin to gather evidence, issue an arrest warrant, and interrogate the accused before reaching a decision.
The British system requires the police to become aware of a serious crime and to investigate it, then to decide whether to pass it to the Crown Prosecution Service [CPS, for England and Wales]. If so, the CPS has to make its own decision about whether their prosecutor can win the case in court, in front of a jury. Even in court, the judge does not question the accused, but ‘merely’ presides over the competition between the prosecutor and the defence lawyer. The accused person may or not have been detained along the way, or be free on bail.
In terms of Pinochet, this process so far had been insuperable for us. The police had exercised their discretion during each of Pinochet’s visits to the UK since 1991, each time deciding not to make a move beyond asking for more information from us. In 1994, we had provided the International Serious Crimes Unit with as much evidence as they had requested, and in the form they had demanded, but then we had been informed repeatedly that it was ‘insufficient’ evidence. Frustratingly, there was never any clarification as to what we should then provide in order to make it 'sufficient'.
We had even provided the police with written legal opinion from senior London lawyers, to give them the confidence to act. For example, advice about how torture committed anywhere in the world is also a crime in Britain, thanks to sections 134 to 138 of the Criminal Justice Act 1988, and the clear obligation under the 1988 Act - and the UN Torture Convention that it came from - to investigate Pinochet. Also according to the 1988 Act, the government’s chief lawyer, the Attorney General - who is a political party member of the Cabinet - must personally approve a prosecution for torture. But so far he was not approving. In practice, the police and Attorney General were using their legal right to do nothing.
Joan’s preference for an accusation of genocide, or at least of murder, also needed some unpicking, although it was relatively straightforward. In essence, British law defines ‘genocide’ more narrowly than Spanish law. For example, whatever evidence may be presented about repression of Chile’s indigenous Mapuche people and culture by Pinochet’s regime, the treatment would not be accepted as ‘genocide’ under the British version of the Genocide Convention - our Genocide Act of 1969. Spanish law, on the other hand, seemed willing to accept that the Mapuches had suffered ‘genocide’ under Pinochet’s dictatorship. Neither would repression of Chilean political parties be accepted as genocide under British law. The ‘genocide’ approach could not be reconciled.
Instead, I insisted that the strongest basis for the Pinochet case in the UK had to be accusations of widespread and systematic torture. This should include enforced disappearances, that also are crimes of ‘continuing torture’ according to a case already decided by the European Court of Human Rights.
~ Spanish judges have the power to arrest and interrogate suspects ~
On the theme of the powers of a Spanish investigating judge, I mentioned that I had read about the investigating magistrate, Judge Garzón, in 1997 issuing a warrant for the arrest in Argentina of the former dictator Galtieri, for extradition to Spain. Although the authorities in Argentina had not acted on Judge Garzón's warrant, it seemed to me that Garzón could also issue an extradition warrant for Pinochet’s arrest in London, rather than wait for him to return to Chile.
The extradition process was a standard procedure between the UK and Spain, used regularly to arrest and transfer wanted criminals, in both directions. Provided that Garzón followed the correct procedure for judicial cooperation between Spain and the UK, then it could be more effective than me trying again to mobilise the London police. Possibly the extradition procedure would get around the problem of the London police continually using their discretion not to take action in response to our evidence and legal arguments. Instead, possibly a London judge would be obliged to provide the police with an arrest warrant for Pinochet, on the orders of a Spanish judge wishing to extradite Pinochet to Spain? Could Joan discuss this idea with Judge Garzón?
* After a long while, our conversation drew to a close. Joan said he would go consult with colleagues about our discussion.
* On the following day, Sunday mid-afternoon, Joan called me at home. He had some questions arising from our previous discussion, and wanted to push the genocide issue again. So we had another long conversation about genocide, torture, judges’ powers, 1991, 1994, 1995, 1997. Eventually we bade farewell again, satisfied with the collaboration, and scope and direction of our discussions. Joan’s final words to me were, “Andy, we’re going to do what we can. We’re working on it.”
______________________________________________________________
~ Joan Garcés talks about processing the arrest warrant, in a BBC radio interview in 2016 [segment begins at 25 min 10 sec, in English] ~
______________________________________________________________
During the following days there were many hoops to jump through, and hurdles to jump over. Most of them were headline news across the UK, Spain and Chile. These included Judge Garzón’s radical attempt to obtain permission to come to London for a face to face questioning at Pinochet's bedside.
Also, his suggestion to send his questions to London so that an officer could put them to Pinochet - a so-called ‘rogatory letter’. But it seemed this could require the original questions to be translated into English for the London officer, but spoken to Pinochet in Spanish through an interpreter - to be appointed by the London authorities - for Pinochet’s replies then to be translated into English for the officer to note down, but then have to be translated back into Spanish for Judge Garzón, unless the replies were written down by a professional Spanish-language transcriber - to be appointed by the London authorities - and the transcription sent directly to Judge Garzón instead. It could be a technical nightmare and a huge loss of time - although Pinochet would also have the right to say nothing at all.
Judge Garzón seemed to be trying everything except sending a warrant to London for Pinochet’s arrest and extradition. Time was running out, as information began circulating that Pinochet’s people were bringing forward by several days his flight out of the UK, against medical advice. Possibly a private jet with private doctors and equipment, departing from a private airport, after a journey out of central London under cover of the night.
Later I discovered that one of the hurdles confronting Judge Garzón was that the Spanish Ministry of Justice and the Foreign Ministry were trying to block his efforts. Isolated, he was obliged to fall back on his own scarce resources.
Yet another hurdle was his lack of English language, so that his research into the details of the extradition process with the UK (he had no experience of this particular process) was slow, and he could not communicate directly with his peers in London who themselves lacked Spanish language ability. If he sent a warrant by fax to the office of his counterpart in London, it would be unintelligible to them, as would any reply they tried to send him in English. Anyway, he had never dealt with anyone in London - courts, police, Home Office, Foreign Office - and so a request not sent through the proper channels risked freezing the whole process. It required a political breakthrough by Garzón in Madrid, with the support of the victims and their lawyers, sympathetic political parties, the media, and the mobilised general public.
On the morning of Saturday 17th October, I was sitting in a seminar organised by Amnesty UK at the LSE, being addressed by a government minister from The Home Office, about the refugee situation.
I received a text message on my small electronic pager, from Vicente Alegría, with a message that simply informed:
“The gentleman has been arrested.”
______________________________________________________________
Q.5 ~ What was your opinion of the measures undertaken by the government of President Eduardo Frei to bring Pinochet back to Chile?
A:
If Chile really was willing and able to prosecute Pinochet through extradition from Britain to Chile, then why had they waited until Pinochet's arrest in London, only then to claim that Chile should be first in line to prosecute him, by transfering him from London to Santiago for trial?
* From the beginning it was clear that the efforts of the Chilean government to extradite Pinochet from London were a politico-theatrical manoeuvre, not desiring his return at all, but intended to placate Pinochet’s supporters. Chile’s English lawyer had merely turned up in the London court to argue that Chile had the superior (priority) right to extradite, not Spain, but without Chile actually having filed for extradition. It was not a serious attempt to secure Pinochet’s transfer to Santiago under arrest, as a prisoner.
Under international rules governing extradition, as well as the legal obligation to transfer Pinochet to Santiago as a prisoner, the Chilean government would have to ensure that he remained a prisoner from the moment he entered Chile, and until processed by a judge at a First Instance civilian court, if not also until the end of a criminal trial. Possibly he could be released under bail conditions, if a judge approved at some moment.
The London court decided that the established procedure was that the first state to request arrest and extradition, Spain, should have the priority right to extradite. Other states that later applied properly for extradition should wait in line for Spain to have a trial, and then Spain could make a decision about whether to allow extradition to other countries for another trial, such as Chile, France, Belgium. The only country that might automatically take precedence over Spain would be Britain itself, if it decided to put Pinochet on trial in London rather than transfer him to Spain.
Frei’s government probably knew that would be the outcome, therefore they could shout as loud as they wanted about extraditing Pinochet to Chile, without worrying about it actually being approved, and the political and logistical horror of actually having to take Pinochet to Santiago as a prisoner until a civilian judge decided what to do with him.
* There was no way that Chile could uphold the international requirements for extradition of Pinochet. From the moment that Pinochet landed in Santiago, the military would intervene over the head of the civil justice system, and the judiciary would comply with Pinochet’s requirements. The Chilean court system was still weak in 1998, almost colonial, not only because most of the senior judges had been appointed during the Pinochet regime, but also they knew everything about the human rights abuses, and were too scared to investigate.
The judiciary had aligned or accommodated themselves to the dictatorship, with some honourable exceptions, such as Judge René García Villegas of the 20th Criminal District (Juzgado del Crimen) in Santiago, who was dismissed by the Supreme Court for insisting on investigating the CNI and DICOMCAR concerning torture and other serious crimes.
"I have a doubt... When I go in front of the judge... Do I interrogate him? Or does he interrogate me?" (cartoon by Rufino, in HOY magazine, Chile)
I met don René in his office in 1988 after hearing about his great work of trying to bring perpetrators to account, but opposed by the Supreme Court. Later I spoke to him by telephone from London to his home, on the day that he was suspended by the Supreme Court, allegedly for bad performance as a judge - but unofficially because he was making progress in nailing the CNI for torture. The regime wanted him stopped. He said, “My friend, how good to hear from you on a day like this. Do you know what they did to me today? Let me tell you - AND EVERYONE ELSE WHO IS LISTENING…” . Twenty minutes later he finished telling his story and opinions to me - but mostly it was said for the official ‘secret’ recording of the security services. A magnificent judge, and an inspirational man. He lived long enough to see Pinochet arrested by the London police and being processed by London judges.
* Also, I had met Eduardo Frei around ten years earlier, during his visit to London organised by the British Foreign Office. Frei came to my office for a discussion about the current role of his party, the DC, and his own vision for Chile. Chilean politicians regularly visited my office, for example Andrés Allamand of RN was a ball of energy and vision, and he later received me in his office in Santiago in 1987. Also, Roberto Lagos. But Frei was detached and disinterested, with little to say, seeming to confirm that he was a mere figurehead underpinned by his father's name, and with no interest in challenging the regime, the ‘continuación'. By 1998, I could see that Frei, now President, had not changed much. Nobody in London believed that the Frei government's so-called extradition request was genuine.
- "They're proposing we have indirect elections for President" .
- "Good idea! We could ask the Queen of England to select one for us"
(cartoon by Rufino, in HOY magazine, Chile)
- "Good idea! We could ask the Queen of England to select one for us"
(cartoon by Rufino, in HOY magazine, Chile)
______________________________________________________________
Q.6 ~ What was the impact on Pinochet’s image of his arrest in London?
A:
* It is certain that Pinochet lost the battle for control of Chile's history books, and how he will be portrayed. I knew it as soon as the High Court in London began reading out its list of hundreds of cases of torture, murder and enforced disappearance of men, women and children that he was responsible for. I saw that, by the time of his return to Chile in 2000, even the official school history textbook ("Historia Escolar de Chile") had been rewritten in his absence. Already children were learning about his responsibility for torture, rape and mass murder, his arrest in London and his appearance in the dock, subjugated in front of a judge.
* I recall the absurd theatre of a powerful Chilean general trying to escape a meeting with an ordinary London judge by riding a wheelchair into the courtroom attached to Belmarsh Prison, and pleading to be allowed to go home after ordering his doctor to tell the judge that he is unwell and has lost his memory.
______________________________________________________________ |
11th of December 1998
Pinochet rode a wheelchair into the courtroom attached to Belmarsh Prison, London.
Here he is sitting in the dock - armed police watch over prisoner Pinochet.
|
Q.7 ~ Pinochet finally returned to Chile and was never arrested for his connection to crimes against humanity.
A:
Pinochet was freed unconditionally by Home Secretary Jack Straw’s ‘quasi-judicial’ manoeuvre on the 3rd of March 2000. Straw’s official reason was Pinochet’s supposed mental inability to be cross-examined fairly during a future trial - Straw’s evidence for this included Pinochet’s public use of a wheelchair from time to time. The unofficial reason was to free the Blair government - and the Spanish one - from the ‘Pinochet problem’. On the day of Pinochet’s return to Santiago, after seeing him stand up and walk from his wheelchair on the airport tarmac, Straw stated that obviously Pinochet had fooled him about his incapacity - but again without caring to differentiate physical from mental capacity.
Of course, Pinochet was later charged and arrested in Chile, including being put under house arrest, and in 2004 he lost his immunity from prosecution, and was declared fit for trial.
* It is regrettable that Chile was not strong enough actually to prosecute Pinochet and ALL of his collaborators for their crimes against humanity, and their embezzlement of millions of dollars into overseas bank accounts. Still, I note the large number of people who by now have been found guilty and sent to prison, even if usually for too few years.
* An important part of the justice process is to establish the truth. The truth was widely known in Chile and internationally even before his arrest in London, even though it was being denied by Pinochet supporters in Chile.
It took until 2005 for the new Army chief Gen. Cheyre to admit the institution’s responsibility for past human rights abuses. That was a move to admit that it all happened, but not to admit to legal liability, as such, of the Army or its individual officers.
By 1998, any judge, or legislator in Congress who says that he or she didn’t know what was happening during the dictatorship would be a liar, or possibly even an accomplice to human rights abuse. For years the Colegio de Abogados [Lawyers Association] under my colleague Alejandro Hales had been shouting about the abuses and about the silence and complicity of judges. Indeed, even judge Juan Guzmán, in a BBC interview in 2016 [issue is raised at 18 mins 13 sec, in English], said that he knew nothing about the regime’s human rights violations while he was a young judge during the dictatorship - clearly not true.
[Judge Guzmán explainer - Just before Pinochet went to London, an investigative magistrate in Chile, Judge Juan Guzmán Tapia, became the lead judge for cases mounting up against Pinochet, including the “Caravan of Death” army death squad that rampaged south to north by helicopter, and the “119 case” or "Operation Colombo" in which the regime publicised an imaginary shoot-out (enfrentamiento falso) involving 119 disappeared detainees in order to be able to declare them officially dead]
* By the time of Pinochet’s return to Chile he had suffered a string of defeats and humiliations, mostly brought about by his own bad judgment. For example, his bad judgment in ignoring the advice of his London lawyers year after year after 1991, believing he was above the law of civilised nations, until he visited London once too often.
Also, his bad judgment in pretending to be unfit for trial in London and then in Santiago, at the same time as saying he was impatient to return to his seat in the Senate, and giving international television interviews. His bad judgment in siphoning off tens of millions of dollars into overseas bank accounts in the names of his wife and children, and leading them in a collective and public auto-amnesia about how it got there - his actions led to his wife and children being arrested during an investigation after his death, including into tax evasion.
* By the time of Pinochet’s return to Chile in March 2000, the hundreds of human rights complaints filed in Chilean courts were well established. But of course the courts, the laws, the Constitution continued to be weak, and he continued to claim immunity and ill-health so unfit for trial, while denying he knew anything about leaves (hojas) being tortured in Chile.
['hoja' explainer - When at the height of his power, Pinochet famously once said that not even a leaf (hoja) moves in Chile without him knowing about it: "En este país no se mueve una hoja sin que yo lo sepa”]
Q.8 ~ 45 years after the military coup, the figure of Pinochet continues to provoke divisions in Chilean society. What does the country need in order to bring about reconciliation?
A:
Since the day Pinochet left London I haven’t spent as much time as I would like observing Chile, although I have visited a couple of times since then. Mainly I‘ve been investigating human rights and supporting 'transition to democracy' in eastern Europe and the countries of the former-Soviet Union. For four of those years I was living in post-conflict Serbia, and I was even investigating war crimes in Afghanistan for a television documentary. The challenges of ‘transition’ vs ‘continuation’, and of ‘reconciliation’ vs ‘impunity’, are still big issues in many of those countries that I have visited during the past twenty years.
* In Chile in the year 2000, it was bad luck for Roberto Lagos that Pinochet returned to Santiago several days before Roberto assumed the presidency. But it was good for President-elect Lagos that a momentum for change had set in already, that some welcome changes had indeed happened, and that President Lagos could bring about more reforms to the Constitution, among other reforms.
* In 2018 I still receive the regular bulletins of FASIC that inform about human rights cases in Chile’s courts. In spite of many prosecutions and imprisonments, clearly the situation remains mixed and unstable. For example, the 2018 decision of three judges of the Supreme Court to release five regime criminals responsible for crimes against humanity at Punta Peuco, including the disappearance of Dr. Eduardo Gonzalez Galeno.
* And of course President Piñera in 2018 displayed no shame in pardoning Col. René Cardemil, who murdered six citizens but received only a ten-year sentence.
* The Pinochet legacy has to be rejected by the democratic civilian government, not embraced by it, and the agents and criminal methods of Pinochet have to remain marginalised by state institutions and leaders, not embraced by the Supreme Court and the President.
"Yes, buddy! There are more important things than freedom"
(cartoon by Rufino, in HOY magazine, Chile)
(cartoon by Rufino, in HOY magazine, Chile)
* Slogans from street demonstrations during Chile’s dictatorship era:
“¡Verdad Y Justicia!”
["Truth And Justice!"]
“No + porque somos +”
[“No More, Because We Are More!”]
[“No More, Because We Are More!”]
…even in 2018... maybe, but maybe not, yet.
______________________________________________________________
______________________________________________________________
Andy McEntee, International Human Rights Lawyer, London, October 2018
No comments:
Post a Comment