Why Pinochet should not go free
– a briefing –
prepared by former members of Chile Solidarity Campaign
November 1 1998
SummaryGeneral Pinochet, who was dictator of Chile from 1973–1990 is a cruel tyrant who has never to this day shown a moment’s regret for his actions nor a hint of compassion for the victims of his regime. His arrest in London provides a unique opportunity to demonstrate to dictators everywhere that they cannot expect to jaunt around the world with impunity.
Now the British High Court has ruled that a former Head of State has ‘sovereign immunity’, no matter the nature of the acts s/he committed. Yet Pinochet was not Head of State when most of his crimes were committed: he was the traitor general who usurped power by force. The British Government meanwhile has been excessively cautious, fearing that the General’s arrest threatens to destabilise democracy in Chile.
The High Court ruling is perverse and should be struck down by the House of Lords. Robin Cook and Jack Straw need to be persuaded that democracy in Chile can neither be complete nor safe while Pinochet and his subordinates remain both immune from prosecution and in control of the lion’s share of economic, military and constitutional power.
While relatives of British victims of the Pinochet regime are preparing a case against him, it was Spanish judges who requested his arrest in London with a view to extradition. In addition, Switzerland, Sweden and France are all interested in extraditing Pinochet to answer for crimes committed against their nationals.
Pinochet’s arrest has been a humiliation for the General. It has already significantly weakened his political standing in Chile and raised hopes that his self-elected position as Life Senator may not be impregnable. The longer he remains under arrest (in Britain, Spain or elsewhere), the more the families and friends of his victims in Chile are strengthened in their search for justice and the greater the chance that Chile’s fragile democracy can escape from the stifling custody of its military ‘protectors’.
What’s going on with Pinochet?*
Chronology of Pinochet’s arrest*
The main arguments about the arrest*
The political and human rights issues:*
The legal issues before the British courts*
Who is General Pinochet?*
The 1980 Constitution*
The Transition to Civilian Rule*
The Truth (Rettig) Commission*
Chile 1973 – 1998: a brief chronology*
What’s going on with Pinochet?
Chronology of Pinochet’s arrest
1998:A Spanish judge, Baltasar Garzón has for some time been pursuing investigations of the murder and disappearance of several Spanish citizens in Argentina and elsewhere, caught in Operación Condor, a combined security operation by the Argentinian, Chilean and other South American security forces.. A second investigation is being pursued by another judge, Manuel García Castellón, into the deaths of Spaniards in Chile at the time of and after the military coup in 1973.
September 21: General Pinochet leaves Santiago to travel to London, accompanied by 5 Army Officers, and travelling on a ‘diplomatic’ passport, though not formally accredited as a diplomat. His wife Lucia Hiriart either travels with him, or arrives slightly later in London. Pinochet is refused a visa to enter France.
September 26: the General gives an interview to New Yorker magazine, but subsequently cancels other appointments including, allegedly, a tea appointment with Lady Thatcher and a visit to a Royal Ordnance arms factory. Pinochet has been ill for some time with back troubles. In London he consults doctors and is warned that unless he has an urgent operation on a herniated disc, he could be permanently paralysed. The General is operated on and then stays to convalesce at the exclusive London Clinic in Devonshire Place.
early October: The Spanish judges are alerted to the presence and prolonged stay of Pinochet, and then to the likelihood that he will soon leave London. Garzón applies to Interpol for Pinochet to be arrested in London and held pending questioning with a view to extradition.
October 16: Pinochet is arrested at the London Clinic, where he remains under armed guard until October 29, when he is moved to another London hospital.
October 22: A second arrest warrant for Pinochet is issued by a Bow Street magistrate to replace the first, which had been issued in haste and was defective.
October 26: Lord Chief Justice Bingham sits to hear a high court application by Pinochet’s lawyers for a writ of habeas corpus, alleging that the original arrest warrants were defective, and that replacement warrants should not have been issued.
October 28: the High Court rules in favour of Pinochet, arguing that "the applicant is entitled as a formed head of state to immunity from civil and criminal proceedings of the English court". However Lord Bingham also rules that Pinochet should remain in detention "pending the termination of any appeal against this decision". An appeal was immediately lodged to the House of Lords and is likely to be heard in the first week in November.
October 28: The Attorney General rules that there is insufficient admissible evidence for Pinochet to be tried in Britain in a private prosecution brought by a group of Chilean exiles in Britain. However a second group of cases, including that of the Anglo-Chilean businessman William Beausire, is still being pursued and could lead to action in the British courts.
October 28: At least two other extradition requests for Pinochet are pending: one has already been applied for by Switzerland in relation to the disappearance of the Swiss national Alexis Jaccard in Buenos Aires in 1977, in which Chilean secret agents are implicated; a possible application from Sweden is being prepared. France, also has shown interest, with Justice Minister Elisabeth Guigou telling the French Senate that it would be ‘intolerable’ if Pinochet escapes justice. None of these is likely to be successful if the House of Lords upholds the High Court judgement.
October 29: Pinochet is moved under armed police guard from the London Clinic to Grovelands Priory Hospital, Southgate, in north London.
October 30: Spain’s National Court confirms that Judge Garzón does have jurisdiction and is able to continue with his investigations into Pinochet’s crimes.
October 30: General Pinochet is granted bail on condition he remains at the Grovelands Priory Hospital.
October 31: French public prosecutors open a judicial investigation into the kidnapping and torture of French nationals. Justice Minister Elizabeth Guigou promises to deal immediately with any application for Pinochet’s extradition from the UK.
The main arguments about the arrest
The political and human rights issues:
Q: Doesn’t Pinochet’s arrest endanger the democratic transition in Chile?
A: No. Despite a good deal of commotion in the short-term organised by Pinochet’s supporters and mainly confined to the wealthier areas of Santiago, there is no serious threat to the Government of President Frei and no likelihood whatsoever of another military coup. However, the longer Pinochet remains under arrest the weaker he and his supporters become, the greater the encouragement to his victims to seek legal redress in Chile and the sooner democrats in Chile will be able to consolidate the transition by changing the Constitution promulgated in 1980 at the height of the dictatorship.
The right in Chile, Chilean parliamentarians who visited London and some Chilean government spokesmen, as well as the right-wing press and Conservatives in Britain, have argued that Pinochet’s arrest is ‘upsetting the delicate democratic transition’ in Chile. They hint, darkly, at the possibility of a new period of chaos, or even a military coup, if the General is not promptly released.
Chilean Foreign Minister José Miguel Insulza said that European politicians fail to understand the Chilean transition process and "should leave the democratic forces in Chile and Chile as a whole to reach its own reconciliation". Contradictorily, however, Insulza went on to say that "Pinochet should return to Chile as soon as possible and retire from public life... Chile cannot go on and on discussing things with Pinochet after 25 years... He has done and is still doing enormous damage to this country, and it would be good if he left the stage." The proof of the pudding is that Insulza would not have made such statements prior to Pinochet’s arrest.
It is true that since the arrest there has been unrest in Chile, rowdy street demonstrations which the police repressed, some burning of British and Spanish flags, and some implied threats against British citizens and trade with Britain and Spain. The Foreign Office has now advised UK citizens not to travel to Chile.
However, the threat of a new military coup is at best fanciful. The Chilean Armed Forces (for the most part), Chilean business and bankers, and the entire panoply of Western governments and economic interests are all well content with the civilian government of President Frei. Its economic policies are admirably orthodox and to a large extent continue the pro-business and anti-interventionist stance of Pinochet’s own economic team.
Chilean Socialist MP Alejandro Navarro stated categorically in London on October 26 that "in Chile the transition to democracy is very firm. It’s not true, as reported, that it is shaking. The stability is economic and social as well as political."
Grassroots organisations in Chile have not been afraid to welcome the General’s arrest. A message received in London from some of them said:
For the majority of people, those who have links with us and people from a wide sector of civil society, along with the joy of knowing that for the first time a decision has been taken that helps to establish justice, there is an enormous sense of gratitude towards the British people... So many leaders of community organisations have been in touch with our office to express their feelings [of gratitude] towards the British government.
The events which have taken place here demonstrate to what extent impunity has become a part of our history... Many of us are ashamed and embarrassed by what we are seeing on our TV screens... The Pinochet supporters –mayors, senators and ex-generals among them– have made violent protests outside the British and Spanish embassies... Clearly we have two separate countries with different feelings and interests which co-exist.
Unfortunately, those people who applaud the detention of Pinochet have not made public their expressions of support, perhaps because of fears of what may happen to them: as always they feel threatened.
We send our heartfelt gratitude to you on behalf of at least fifty community organisations and leaders who have been in touch with us but who are from the poorest sectors of society who have not yet dared to raise their voice.
FASIC, the Social Assistance Foundation of Christian Churches in Chile, an ecumenical body prominent in the defence of human rights throughout the period of dictatorship, wrote on October 16 to Tony Blair, stating:
The particular characteristics of our transition to democracy in Chile have made it impossible for said dictator [Pinochet] to be caused to answer for his crimes before the courts of our country, given the most brutal and rigid impunity extended to him and his associates... We request you to intervene personally to provide the Spanish judges currently investigating the criminal responsibility of ex-dictator Pinochet the opportunity they seek to question him on the charges brought. The presence of Pinochet in your country offers a unique opportunity to make decisive and effective advances in this matter.
Q: So why are Pinochet’s supporters and the Chilean Government so upset?
A: Pinochet’s civilian supporters and the Chilean right, because they fear losing political power and influence; President Frei and the Government because they have to be seen to be doing something.
The right in Chile has enjoyed enormous power and privilege since the military coup in 1973. After the change to a civilian President in 1990, their position was entrenched under Pinochet’s 1980 Constitution by the blocking vote of the 13 nominated senators, of whom Pinochet is now one. They fear losing their present advantage and are also manoeuvring in the hopes of making electoral gains in December on the basis of injured nationalism.
The Chilean government has had to make strong gestures in defence of its leading citizen. Considering, however, that Pinochet is a former Head of State, its actions have scarcely passed the level of formal gesture: no recall of ambassador; no expulsion of diplomats or tit-for-tat arrest; no economic measures other than the temporary suspension of negotiations to buy second-hand British warships. The Chilean Foreign Minister has made highly ambivalent statements in which repudiations of Pinochet figure almost as prominently as criticisms of the British Government.
Q: If Pinochet is guilty, shouldn’t he be brought to trial in Chile.
A: Ideally, yes. But many attempts to do so have either been quashed by the courts, invoking Pinochet’s 1978 Amnesty Law, or have been met with threats of violence, libel suits or arrests.
Pinochet has not been brought to trial in Chile only because the Army will not permit it and because he took care to promulgate an Amnesty Law in 1978, long before the transition to civilian rule but covering the worst period of human rights violations.
On numerous occasions since the hand-over to a civilian president in 1990, those who have suggested that General Pinochet be prosecuted, have themselves been threatened, attacked, arrested or imprisoned, and actions against human rights violators have been frustrated. Among these events are:
26.09.90 Three journalists are jailed by military courts for ‘offence to the armed forces’.
26.01.91 The Supreme Court suspends Judge Carlos Cerda for refusing to invoke the Amnesty Law to dismiss a case relating to the disappearance of 13 persons.
23.09.92 Pinochet announces that he intends to file a criminal complaint against a former Army Intelligence Service (DINE) officer who blows the whistle on continuing phone-tapping operations.
03.03.93 A book entitled Ethics and Intelligence Services is confiscated and its author, a retired Naval Captain, is arrested.
28.05.93 Armed soldiers in camouflage uniform appear near the Moneda Palace in a calculated threat to the continuation of human rights trials. Military courts subsequently close (dismiss) 14 cases and the Supreme Court applies the Amnesty law to 7 others.
23.09.93 The Supreme Court upholds the decision of a military court to apply the Amnesty Law to close the investigation of the clandestine cemetry at Pisagua, where 19 bodies of disappeared prisoners were discovered.
10.93 The Supreme Court refuses an application by the Chamber of Deputies for a special prosecutor to investigate the assassination of General Carlos Prats in Buenos Aires in 1973.
19.07.95 Pinochet sues Arturo Barrios for libel after the student leader calls for criminal charges to be filed against the General for human rights violations. Barrios is jailed briefly.
05.10.96 Communist Party General Secretary Gladys Marin is jailed for two days on charges of defamation after calling Pinochet ‘a psychopath who reached power by means of intrigue, treason and crime’.
04.06.97 Pinochet threatens to sue members of Congress who criticised the Army in the case of the murder of Army conscript Pedro Soto Tapia.
However, on January 20 1998, Pinochet for the first time faced criminal charges, when a Court of Appeals judge agreed to hear a criminal complaint of genocide brought by the Communist Party, and in March eleven Christian Democrat deputies filed a constitutional accusation against Pinochet charging him with threatening national honour and security by his actions as Commander-in-Chief of the Army between 1990 and 1998. The Chamber of Deputies subsequently defeated the motion by 62 votes to 52.
Q: Perhaps Pinochet was not personally responsible for human rights violations?
A: Pinochet was in absolute control, effectively from midday on September 11 1973 until he handed over the Presidential sash to Patricio Aylwin in 1990. He was directly in charge of the armed forces (including the police) and the DINA and CNI security agencies which carried out the most brutal torture, killings and disappearances. Pinochet’s responsibility was publicly stated in February 1998 by former DINA chief Manuel Contreras.
Perhaps some of Pinochet’s subordinates committed excesses, and perhaps he didn’t know about all of them (as in Steve Bell’s memorable cartoon, this would seem to constitute a new Nuremberg defence: ‘I was only giving orders’)? It is notable that the Chilean Army, under Pinochet’s command, refused to co-operate with the Rettig Truth Commission set up by President Aylwin in 1990 and rejected the Commission’s entire report when this was published in March 1991.
After the first few weeks of military rule, many of the worst human rights violations (especially abduction, torture and disappearance) were committed by the DINA, initially a grouping of middle-ranking army officers of extreme views, later constituted by Pinochet as a secret police force directly answerable to himself. The Truth Commission found that:
The regime of the Armed Forces [soon] escaped from their own collective control and even that of their commanders-in-chief and was centralised and rigidly unified in the [combined] office of the President of the Republic and Commander-in-Chief of the Army. This process was complete by the end of 1974. Only the President/Army C-in-C could have neutralised the DINA group. This was not done until later (see below). What is certain is that these offices displayed not the slightest interest in controlling the DINA group, and when Decree Law 521 established the DINA as an autonomous public service, it made it directly dependent upon the Junta. In practice, however, the Junta never established control over the DINA which was, instead, directly answerable to the office of the President of the Republic...
Another common defence advanced by the Chilean right, and echoed by some conservatives in Britain, is that the chaotic situation in Chile in 1973 made ‘stern’ and possibly regretable measures inevitable, but these were ‘the lesser evil’. Such arguments echo Kissinger’s famous saying "I don’t see why we should stand idly by and see a country turn Marxist because of the stupidity of its own people". Such a defence is too contemptible to merit argument.
A final and even more astonishing defence was advanced by Lady Thatcher, who argued that Pinochet deserved the gratitude of the British people for his assistance during the Falklands War. As one observer commented, presumably Stalin should have been exonerated for his crimes because of his assistance to the Allies during World War II.
Q: Isn’t this just a matter for the Chileans
A: No. Pinochet was responsible for the deaths of people of many nationalities, and the Spanish, Swedish, French and British cases all involve their own nationals. In addition, the Chilean secret services (DINA, and later the CNI) operated in many countries, committing or commissioning terrorist acts in Argentina, the United States and Italy.
Q: But haven’t the Chileans granted Pinochet immunity? Should we not respect that?
A: No-one has granted Pinochet immunity, other than Pinochet himself. Any immunity or amnesty in Chile is clearly limited to cases involving Chilean citizens. However, there is no clarity in Chile itself concerning the nature and extent of immunity for Pinochet and his subordinates .
The Amnesty Law was decreed by Pinochet in 1978 at the conclusion of the prolonged State of Siege and covers only acts committed between 1973 and 1978. The law was not part of the process of transition, but long pre-dated it. Similarly, the transition was largely governed by the 1980 Constitution, drawn up by Pinochet’s advisors with only the most cursory public debate and nominally endorsed by a flawed plebiscite. Since 1990 there have been numerous attempts in the Chilean courts to prosecute members of the Armed Forces, DINA and the CNI for human rights violations, and frequent legal arguments about whether their actions are covered by the Amnesty Law. Some of these prosecutions have been successful, and there are now cases pending against Pinochet himself.
The legal issues before the British courts
These have been resolved pro-tem by the High Court Judgement and will be definitively pronounced on by the House of Lords within the next two weeks or so. They revolve around:
The Chilean Government claims that Pinochet has diplomatic immunity, both as a Senator, a former Head of State, and because he was travelling on a diplomatic passport.
Pinochet was travelling on a Chilean diplomatic passport, but was not a diplomat accredited to the Court of St.James. The holders of such passports (each country has its own criteria governing eligibility) are not automatically protected by the Vienna conventions, which normally apply only to members of diplomatic missions formally accredited by the host government and certain key government officials on official missions.
The legality of the warrants and the arrest process
Arguments as to whether the Spanish magistrates had the authority to apply for Pinochet’s detention and whether the British magistrates had the power to issue an arrest warrant, and whether the warrants they issued (both the original and the replacement) were properly executed.
Whether Pinochet can be extradited
Whether the extradition agreements of the European Community and between Britain and Spain cover the Pinochet case. Whether the Home Secretary can or should intervene (e.g. on humanitarian grounds, given Pinochet’s age and state of health).
Jurisdiction of courts in one country over crimes committed in another
These are arguments about the merits of the case brought by the Spanish magistrates, whether it is competent under Spanish law, and whether international law and precedent exists. The Spanish courts have now confirmed their competence.
The responsibility of a head of state
Whether Pinochet, as a former Head of State, can be held responsible for his actions and those of his subordinates while carrying out that function. There is a possible further argument as to whether and on what date Pinochet became Head of State, and whether he can be held accountable for acts committed before that date.
Who is General Pinochet?
Augusto Pinochet Ugarte was appointed Commander-in-Chief of the Chilean Armed forces by President Allende on August 23 1973, taking over from the loyalist General Carlos Prats who was virtually forced to resign by a calculated rebellion among senior officers using the façade of a demonstration by their wives outside Prats’ house. Allende believed Pinochet too to be loyal to the constitution.
However, General Pinochet was included in the coup conspiracy (allegedly at a late stage), and emerged as the leading member of the 4-man military junta which seized power on September 11 1973. He declared himself, successively, President of the Military Junta in 1974 and then President of Chile in 1981.
Pinochet was in every sense an absolute ruler, in complete control of the Army, and from 1974 onwards he gave only subordinate roles to the leaders of the other armed forces. He directly controlled the main security services, notably DINA and its later replacement, the CNI.
Often depicted as an unintelligent philistine, Pinochet displayed great political astuteness and complete ruthlessness. He held his nerve through several economic crises and knew how to choose from the traditionally fractious Chilean right the most able civilian advisors and ministers.
His economic and social policies were widely regarded as the laboratory experiment in free market economics. His economics team were known in Chile as Los Chicago Boys, and the private pension system they later put in place is now being widely touted in both the USA and Britain.
He is now admired by the Chilean right with a devotion similar to but far stronger than that which attends Lady Thatcher in some sections of the British Conservative Party.
Pinochet remained President until 1990, when he lost the plebiscite held to determine whether he should serve another term. He handed the presidency over to the elected civilian (Christian Democrat) president Patricio Aylwin. Pinochet remained Commander-in-Chief of the Army until March 10 1998. The following day, despite widespread protests, he became a Senator for Life a post to which he entitled himself under the new constitution of Chile, promulgated in 1980 at the height of the dictatorship. As one of the group of Life Senators he helps to defend a minority sufficient to defeat any attempt to reform the 1980 Constitution.
Human rights violations during and after the coup
According the Rettig Commission, Chile’s Truth Commission, at least 2,025 persons disappeared or were killed at the hands of agents of the State (Armed Forces, police or security services) during the period of military rule. Many thousands more were tortured and imprisoned and/or forced into exile. Some of those imprisoned were later allowed to commute their prison sentences for exile. Chilean refugees were accepted by almost every country in Europe, by Canada, Australia, New Zealand and elsewhere. Some 3,000 came to Britain.
Among the more notorious of Pinochet’s crimes were:
Violations continued until 1989
Although the continuous State of Siege ended in 1978 and the DINA secret police was formally dissolved, assassination, abduction and torture continued throughout the period of military rule. Among the more notorious crimes were:
Murders and attacks committed in third countries
The Chilean military regime did not hesitate to pursue those it regarded as its enemies beyond its frontiers in calculated acts of international terrorism. The three best known cases are:
This was an international operation created by DINA chief Col.Manuel Contreras to co-ordinate ‘the collection, exchange and storage of intelligence data related to left activists, communists and marxists, with the aim of eliminating marxist terrorists and their activities in the region’. Contreras travelled in 1974 to Argentina, Bolivia, Paraguay, Venezuela and the US to explain his project to intelligence officials of those countries. In August 1975, Contreras met with Vernon Walters, Assistant Director of the CIA, and he had high-level meetings in each of the other countries he visited. Agreements emerged between the intelligence agencies of Argentina, Bolivia, Chile, Paraguay and Uruguay, and there were hopes of expanding the network to include Brazil and Peru. Facilities were established to facilitate travel within the region by agents of the secret services involved, to expedite joint operations and to form joint special operations teams which could be sent to any part of the world to eliminate opponents. The national airlines of Chile and Paraguay were enrolled in the work and a whole range of commercial companies was established to channel funds and provide cover for operations.
Details of Operation Condor emerged in part thanks to the accidental discovery in Paraguay in 1992 of a huge archive of state security documents. These were located by a judge investigating the disappearance of a Paraguayan citizen, Martín Almada.
From May 1975 onwards numerous Chilean exiles were arrested by the Argentine and Paraguayan police and handed over to the Chilean DINA. The Rettig Commission gives the names of 33 Chilean citizens who disappeared in Argentina, Paraguay and Brazil between 1975 and 1976.
Among the cases of British or British-Chilean citizens who became victims of the military regime in Chile are:
Michael Woodward was an Anglo-Chilean priest working in Valparaiso at the time of the coup. He was arrested, interned on the Chilean Navy vessel Lebu and killed in September 1973.
Alejandro Avalos Davidson, son of a Chilean father and a British mother, was a university lecturer at the Catholic University in Santiago who was abducted on the street by DINA agents on November 20 1975 and disappeared. His body was discovered and given burial in the 1990s.
Dr.Sheila Cassidy, an English medical doctor, was working as a plastic surgeon at a Santiago hospital. She was asked by a priest to treat an injured man on the run. She agreed and was taken to the house of some Americans. There she treated MIR-leader Nelson Gutierrez, who had a bullet-wound in the leg. A week later Dr Cassidy was arrested when DINA agents burst into her house, shooting dead the maid. She was taken for interrogation and tortured, stripped, and had electrodes applied to her body and inserted in her vagina. After 5 weeks she was released after a public outcry in Britain and pressure from the British Government.
William Beausire was a British businessman with a British father and a Chilean mother, who had dual nationality. He was abducted by plain clothed agents in November 1974 at Buenos Aires airport in Argentina. From there he was taken to Chile to the offices of DINA, the Chilean secret police, in Calle Jose Domingo Canas, Santiago, and subsequently to the Villa Grimaldi torture centre.
Beausire was a target for DINA because his sister, Mary-Ann, was the partner of Andres Pascal Allende, a nephew of the deposed Popular Unity president and leading member of the MIR, now in the underground opposition to the military regime.
Witnesses say that Beausire was given electric shocks, had sticks forced into his rectum and was hung in the air. On May 17 1975 we was taken to another DINA centre in Calle Irán, Santiago. DINA officers were seen taking him away on July 2, since when he was never seen again. His mother, Ines Beausire and sister Diana have pursued a fruitless search for him. In 1976 the British Government referred his case to the United Nations.
The Beausire case is being pursued by London solicitor Geoffrey Bindman, who still hopes that the Attorney General will initiate or sanction a prosecution of General Pinochet.
The 1980 Constitution
Chile’s present constitution was drafted over a period of several years by a Constitutional Commission appointed by General Pinochet, and largely reflected the concerns of the regime. There was no Constituent Assembly and no public debate.
This Constitution-by-fiat was approved in a sham plebiscite held on September 11,1980. Opponents were marginalised by a combination of harassment and exclusion from television air-time, while the Government launched a massive campaign for a yes vote. There was no electoral registration system (the electoral registers had been destroyed on the orders of the regime in 1974) and no provision for write-in votes. Allegations of widespread fraud were given substance when one group of investigators found that in some regions voter turnout was higher than the total population. The regime announced that 67% of voters supported the new Constitution.
Whilst appearing to offer guarantees of individual and social rights, in reality the document ratified the power situation existing since the coup in 1973. Political power became further concentrated in the executive, political activities and participation were further excluded, and the rights of Chileans, both individually and collectively, were left unprotected.
The document contained 120 permanent articles and 34 ‘transitional’ ones which were to apply to the period from March 11 1980 to March 11 1990. The transitional articles provided the regime with sweeping powers and outlined the procedures for a plebiscite in 1988-89 on the election of a legislature. Transitional Article 24 gave the President broad powers to curtail the rights of assembly and free speech and to arrest, exile or banish into internal exile any citizen, with no right of appeal except to the President himself.
The permanent articles were designed to create a ‘modern and protected democracy’, an authoritarian version of representative government that guarantees ‘national security’ by severely circumscribing the will of the people. This was to be accomplished in three ways: through the establishment of a permanent role for the armed forces as ‘guarantors’ of the nation’s institutions; through the imposition of restrictions on political activity, including the banning of movements or ideologies hostile to democracy; and through the creation of institutional mechanisms to limit popular sovereignty.
Articles included the exemption of the Military Courts from Supreme Court oversight when dealing with ‘terrorist’ crimes ; the right to habeas corpus was revoked during regime-declared ‘states of siege’; Article 8 of the Constitution outlawed, as well as any group advocating violence, ‘doctrines that offend the family’, or a concept of society ‘based on class conflict’. Article 19 bars political parties from intervening in any activities that are ‘alien to them’, including trade unions and local or community politics. The State also had the power to exile anyone, with no right of appeal, if they had the ‘reputation’ of being Marxist or antifamily. Article 32 established that provincial governors (intendentes), and mayors of large cities would all be nominated by the President, not elected. Constitutional reform was made extraordinarily difficult by the requirement that it could only be done with the agreement of the President and a 60% majority of the legislature which must be confirmed, after elections, by the successor legislature.
The Inter-American Human Rights Commission remarked that the nature of these laws was such that they ‘gravely injure the international order in matters of protecting human rights’.
The Constitution provided for Pinochet to continue as head of Government for a further eight years, followed by a referendum featuring a single candidate to be chosen by the junta. He was specifically exempted from a ban on re-election.
The Transition to Civilian Rule
On October 5 1988, General Pinochet lost the plebiscite held to determine whether he should serve a second 8-year term as President. An open and increasingly confident No campaign had been led by an exceptionally broad coalition that encompassed the entire centre and left of the Chilean political spectrum and delivered 55% of the vote. The referendum result paved the way not only for elections for a civilian president and congress, to be held in 1989, but for urgent constitutional reform.
It was immediately apparent that the resurgent opposition to the military regime could not accept the 1980 Constitution in its entirety. Equally, it was apparent that Pinochet and the Armed Forces would not permit radical changes, let alone its complete rejection. After lengthy and acrimonious negotiations which exposed, for the first time, major divisions among the Armed Forces and the right, 54 key reforms were approved by an overwhelming majority of voters (85.7%) on July 30 1989.
The major reforms were to Article 8 (which imposed ideological vetting on political parties); the removal of the ban on party membership for trade union and community leaders; reduction of the majority required for constitutional reform and removal of the requirement that such reform be confirmed by a vote of a successor legislature; and increasing the number of elected Senators to 38, thus diminishing the bloc vote of the ‘designated’ senators. The role of the National Security Council was also reduced.
The hand-over to civilian government
At the subsequent elections, on December 14 1989, the ‘Concertación’ coalition of centre and left won 72 out of 120 seats in the Chamber of Deputies, but only 22 of the 38 senate seats. The key outcome of the vote for senators was that the Concertación fell short of the proportion of the vote required to make any further changes to the Constitution, thanks to the presence of the 13 designated senators, all of them of the right and nominated directly or indirectly by Pinochet.
Despite the shortcomings of this process and the limitations on the democracy it created, most Chileans celebrated the hand-over of the presidential sash to the Christian Democrat Patricio Aylwin on March 11 1990 as an historic moment.
President Aylwin’s term was limited to a single one of 4 years. Contrary to the expectations of the military, the civilian government proved stable and popular, and the new candidate of the Concertación, Eduardo Frei, won the December 11 1993 election with 57.4% of the vote to 24.7% for the candidate of the right.
The Truth (Rettig) Commission
The National Truth and Reconciliation Commission was established on April 25 1990, and lawyer Raul Rettig was appointed to head it. It was confined to investigating the ‘most serious human rights violations’ committed during the period of military rule, including illegal executions, disappearances and death, but was excluded from examining the even more numerous cases of torture and imprisonment. It had no judicial authority or subpoena powers.
Despite its limited remit, the Truth Commission produced an immensely thorough, harrowing and impressive Report. Although it did not bring justice, it did establish at least part of the truth and was clear in pointing the finger at the Armed Forces and it denouncing their refusal to provide information which could have cleared up many cases.
Above all, the report clearly established that at least 2,025 persons were killed or disappeared at the hands of agents of the State during the period of military rule, while a further 90 were killed by civilians for political motives and 164 others died as a result of ‘political violence’.
When the report was published on March 4 1991, several Chilean newspapers published the entire text in huge supplements. News-stands in Santiago and other towns were surrounded by mountains of newsprint and successive editions were sold out in a matter of hours.
President Aylwin went on national television and wept openly as, on behalf of the Chilean state, he asked the relatives of the victims for forgiveness and called for a gesture from the military acknowledging the pain and suffering inflicted.
The Chilean Air Force responded by acknowledging a measure of responsibility. The Army, however, rejected the Rettig Commission’s ‘unforgivable lack of knowledge concerning the real causes that motivated the action of national restoration initiated September 11, 1973’. In its sole allusion to the human rights violations enumerated by the Rettig Report, the Army added, ‘War is never bloodless and always brings pain, hatred and injustice".
Chile 1973 – 1998: a brief chronology
11.09.73 The military coup in Chile. President Allende dies in the Moneda Palace. A State of Siege and 24-hour curfew proclaimed.
12.09.73 The commanding officers of the four armed forces (including the police) establish the Governing Military Junta. Pinochet is designated President of the Junta.
12.09.73 The National Stadium in Santiago is set up as a temporary prison, holding, according to Red Cross estimates, some 7,000 prisoners. Other concentration camps established at Pisagua, Chacabuco and Dawson Island.
14.09.73 The Junta dissolves the National Congress
14.09.73 World famous folk singer Victor Jara is tortured and shot to death by military guards in the Chile Stadium, Santiago.
18.09.73 Spanish priest Joan Alsina is arrested at the San Juan de Dios Hospital, tortured and shot. His body is found on the bank of the Mapocho River.
23.09.73 Soldiers raid the San Borja flats in Santiago and openly burn books in the street.
30.09.73 Allende loyalist and former Army Commander-in-Chief General Carlos Prats Gonzalez is killed in Buenos Aires, Argentina by a car bomb. His wife dies with him. In April 1998 Argentine courts held the Chilean secret police, DINA, responsible.
05.10.73 General Sergio Arellano Stark is sent by Pinochet to ‘firm up’ action against former supporters and officials of the Allende government in the north of Chile. Stark and his crew summarily execute 72 people in La Serena, Copiapo, Antofagasta and other towns, many of them prisoners who had voluntarily surrendered to the military authorities immediately after the coup.
14.06.74 DINA, the National Intelligence Agency, is formally established under the direction of General Manuel Contreras, and continues in operation until mid-1977.
14.06.74 Decree 527 vests all executive powers in the President of the Junta, General Augusto Pinochet.
06.74 Chile’s electoral registers are declared invalid and burned.
25.03.75 Milton Friedman, founder of the Chicago School of Economics, visits Chile and is favourably impressed.
06.10.75 Leading Christian Democrat and former MP Bernardo Leigton and his wife are shot and seriously injured in Rome. DINA is held responsible.
16.07.76 Spanish economist Carmelo Soria found dead two days after disappearing in Santiago. DINA held responsible.
21.09.76 Orlando Letelier, Allende’s former Ambassador the the United States, is murdered by a car bomb in Washington DC, along with his American assistant Ronnie Moffit. DINA held responsible.
13.08.77 DINA, the secret police, is replaced by the National Information Centre (CNI) which continues the same functions.
10.03.78 State of Siege, in force ever since the coup, is suspended.
19.04.78 Amnesty Law promulgated to pardon all individuals who committed crimes during the period of the State of Siege, 11.09.73 - 10.03.78. While some political prisoners are released, the main purpose is to amnesty the military.
01.08.78 US requests extradition of Manuel Contreras, head of the CNI, for the murders of Orlando Letelier and Ronnie Moffit.
30.11.78 The bodies of 15 disappeared prisoners are discovered in abandoned lime kilns at Lonquén, south of Santiago, the first of many such finds.
11.09.80 A rigged plebiscite approves Pinochet’s new constitution which makes Pinochet President for 8 years after which a ‘protected democracy’ will be created.
20.10.80 Andres Zaldivar, President of the Christian Democrat Party, expelled from Chile for denouncing the new constitution as illegal.
11.03.81 General Pinochet sworn in as President of Chile for 8 years.
11.09.81 The New Constitution is enacted.
27.02.82 Trade union leader Tucapel Jimenez murdered. The CNI is held responsible.
16.03.83 Irish priests Brendan Ford and Desmond MacGuillicudy expelled from Chile.
04.09.84 French priest Andre Jarlan shot dead by police in the La Victoria shanty town.
05.09.84 Military government issues a list of 5,000 Chileans prohibited from returning to their country.
28.02.85 Returned exile Carlos Godoy Etchegoyen tortured to death in the Quinteros police station.
30.03.85 Three Communist Party members found murdered, their throats cut, near Santiago airport. All three had been previously abducted, almost certainly by the CNI.
02.07.86 Carmen Gloria Quintana and Rodrigo Rojas arrested by a military patrol during protests in the Nogales area of Santiago, doused in kerosene and set on fire. Rojas dies, but Quintana survives with 60% burns.
07.09.86 President Pinochet narrowly escapes assassination attempt on his motorcade. 5 bodyguards are killed.
08.09.86 Pinochet proclaims new state of siege. Various publications closed down and opposition leaders arrested.
24.03.87 Four Popular Unity leaders, including former Foreign Minister Clodomiro Almeyda, defy Pinochet and return from exile, but are promptly ‘relegated’ to internal exile in remote villages.
15.06.87 12 members of the armed opposition group FMPR shot dead in different parts of Santiago by the CNI, in ‘Operation Albania’.
30.09.88 The Pinochet regime puts an end to exile for all except 177 named persons.
05.10.88 Pinochet loses the plebiscite held to determine whether he should serve another presidential term, paving the way for presidential elections.
30.07.89 85% of voters approve reforms to the 1980 constitution, paving the way for transition to a civilian government, but falling short of creating a full democracy.
12.89 Christian Democrat Patricio Aylwin elected President in the first free elections for 16 years. The ‘Concertación’ coalition of centre and left wins 72 out of 120 seats in the Chamber of Deputies, but only 22 of the 38 senate seats.
11.03.90 Patricio Aylwin takes office as President. Pinochet remains Commander-in-Chief of the Armed Forces.
25.04.90 The National Truth and Reconciliation Commission (the Rettig Commission) established to investigate the most serious human rights violations during the military regime.
02.06.90 Discovery of bodies of 19 disappeared prisoners at Pisagua sets off new wave of similar finds.
24.08.90 Chile’s Supreme Court upholds the 1978 Amnesty Law, thus precluding prosecutions for pre-1978 human rights violations.
21.09.90 Military courts jail three journalists for ‘offending the armed forces’
19.12.90 Pinochet confines troops to barracks in a calculated act of sabre-rattling to deter the government from prosecuting his son for fraud, and to warn President Aylwin against ‘interfering’ in the promotion of senior officers.
03.01.91 Army Capt. Pedro Fernandez Dittus sentenced to 300 days in prison for ‘failing to summon medical attention’ for Rodrigo Rojas who was doused with petrol and burned to death on 02.07.86
04.03.91 The Truth Commission (the Rettig Commission) presents its report, concluding that at least 2,025 persons were killed or disappeared during the period of military rule.
01.01.91 Jaime Guzmán, a senator, author of the 1980 constitution and one of the main civilian advisers to General Pinochet, is assassinated in Santiago by the FPMR left-wing guerrilla group.
28.05.93 ‘The Boinazo’: armed soldiers in camouflage uniform appear near the Moneda Palace while President Aylwin is out of the country, apparently as a warning against proceeding with human rights trials against army officers. 14 cases pending before army courts are dropped.
11.12.93 Christian Democrat candidate Eduardo Frei elected President to replace Aylwin.
30.05.95 Former DINA chief Manuel Contreras sentenced to 7 years for the assassination in Washington of Orlando Letelier. Tried in his absence in Italy, Contreras is sentenced to 20 years for the attempted murder of Bernardo Leighton.
19.07.95 Pinochet sues a student leader for defamation and gets him jailed briefly for suggesting that the General should face criminal charges.
05.07.96 Spain’s highest court accepts a suit filed against Pinochet and others on behalf of Spanish citizens killed during the military regime.
17.07.97 A bill to eliminate the designated senators established in the 1980 Constitution fails in Congress.
20.01.98 A Chilean court for the first time accepts a criminal complaint of genocide against Pinochet brought by the Communist Party.
10.03.98 Pinochet steps down as Army Commander-in-Chief at the age of 82 and is replaced by General Ricardo Izurieta.
11.03.98 Pinochet becomes Senator-for-Life, despite massive demonstrations against him.
09.04.98 The Chamber of Deputies narrowly defeats a constitutional accusation against Pinochet, filed in March, which would have prevented him taking his Senate seat.
21.09.98 Pinochet flies to London, to seek medical treatment and to visit UK arms suppliers and Lady Thatcher.
16.10.98 Pinochet is arrested and detained under armed guard at the London Clinic, after Spanish lawyers apply for a warrant via Interpol.
28.10.98 Lord Justice Bingham, in the High Court, finds that the arrest warrant against Pinochet is invalid and declares that he cannot be held under English law for crimes committed while a Head of State. But Pinochet remains under arrest while the case is appealed to the House of Lords.