Carlos Castresana Fernández “The Legacy of the Pinochet Case” January 27, 2005

Carlos Castresana Fernández (right), with Professor Harley Shaiken, answers questions at Berkeley on January 27.

-BBC article on Pinochet's recent release on bail from house arrest in Chile, with links to other reporting on the case's history.

The Pinochet Case and Human Rights Precedents
By Sarah Schoellkopf

Comparing the prosecution of General Augusto Pinochet to a flowing river, Judge Carlos Castresana Fernández said: “It is the same and yet it is always different.” One of the Spanish judges responsible for the extradition request that led to the former Chilean dictator’s 1998 arrest in London, Judge Castresana has a unique insider’s view of the legal and political issues at stake in the landmark case. Insisting that such prosecutions strengthen rather than weaken nascent democracies, the judge added: “We can think about the world differently because of the Pinochet case …The choice is not between democracy and justice. These two can work together.”

When Pinochet was arrested, 25 years and one month after he seized power in a bloody coup d’état, justice for the thousands of disappeared, murdered, tortured and imprisoned Chileans finally seemed within reach. Speaking on the sixtieth anniversary of the Liberation of Auschwitz, “a much more important day,” Castresana mentioned that moment as an example of an event that changed the world. A quarter of a century after Chilean democracy fell, “we also sent a message.”

The detention of General Pinochet in London on October 16, 1998, triggered celebration among human rights organizations worldwide. It finally seemed that justice might be done regarding the vicious human rights abuses that occurred in Chile during Pinochet’s seventeen-year rule in Chile. General Pinochet, who had been in London for medical and business reasons, was arrested on a warrant drafted by Judge Castresana and other progressive prosecutors in Spain, including Judge Baltasar Garzón. The indictment accused the former dictator of ordering crimes against humanity, genocide and international terrorism, including abduction, torture, rape, “disappearance” and the execution of thousands of political opponents.

Until his arrest, Pinochet appeared to have eluded justice, having granted himself immunity in Chile by passing several layers of legislation preventing prosecutions in his homeland. After losing the presidency in 1990, Pinochet also named himself “Senator for Life,” a post providing immunity from criminal prosecution. However, a quiet sea-change in international human rights legislation had gone unnoticed by Pinochet.

In truth, the legal principles underpinning the Pinochet case been established much earlier. As Castresana noted, after World War II, crimes against humanity should have been prosecuted by all countries, regardless of the origin of the accused. He cited international laws, including the Universal Declaration of Human Rights, the Convention against Genocide, both established in 1948, and the Geneva Conventions, of 1949. “Perpetrators are not prosecuted, and then the crimes, again and again, are repeated,” he noted.

Judge Castresana also argued that, despite some resistance from the U.S., many of the laws used against Pinochet have become part of the fabric of international law, and that cooperation among nations in enforcing them is increasing.

Witnessing the demonstrations marking the 20th anniversary of Argentina’s coup d’ état on March 24, 1996, the need for an international precedent became clear. Led by Las Madres de la Plaza de Mayo, hundreds of thousands of citizens paraded through the streets of Buenos Aires. At that time, Castresana was on the board of directors of Spain’s Union of Progressive Prosecutors. He admitted that Argentina had made huge strides in the human rights arena by conducting its own trials against the military junta in 1985, two years after democracy had been restored.

But when President Carlos Menem pardoned the admirals and generals in 1989, justice was not served. “International law gave [the people of Argentina] the right, but the doors of the tribunals were closed,” said Judge Castresana. “There has been no due process for these people.” The Spanish prosecutors thus began preparing two human rights investigations, one for Argentina and the other for Chile, compiling files, interviews and hard figures — in order to put both General Jorge Rafaél Videla, the first leader of the Argentine junta, and Pinochet, on trial.

Among the many perpetrators of human rights abuses, Pinochet was targeted for a number of reasons, Castresana explained. The “symbol of the death of the dream of [Salvador] Allende,” Latin America’s first democratically-elected socialist president, Pinochet had destroyed the oldest uninterrupted democracy in Latin America. “In the middle of a cold war, Pinochet created a very hot one.” Also, Pinochet, who had been appointed commander of the army by Allende, was the ultimate symbol of treachery. Pinochet “is a man with a heart full of scorpions,” added Castresana.

One particularly blatant assassination was that of General Carlos Prats and his wife, killed by a massive car bomb in Buenos Aires in September 1974. Prats, Pinochet’s predecessor as army commander, had publicly favored a resumption of democracy and was understandably viewed as a threat to Pinochet’s status. Another threat to Pinochet was Bernardo Leighton, a Christian Democrat and the former Vice President of Chile, who had also condemned the coup. He and his wife were shot while in exile in Rome in October 1975. Both were gravely injured but survived.

Arguably the most provocative and reckless assassination was that of Orlando Letelier and his U.S. assistant Ronni Moffitt, killed in a car bombing on Washington’s Embassy Row in September 1976. Letelier, who was working at the Institute for Policy Studies at the time, had served as Defense Minister under Allende. After these assassinations, no one aggressively disagreed with Pinochet, even abroad.

Moreover, Pinochet — “in some ways, the perfect criminal because he had no compassion for his victims” — had an estimated 5,000 Chileans murdered, 1,200 of whom are still classified as “disappeared.” Many more were tortured. Hundreds of thousands of people were also imprisoned. Pinochet’s brand of state terrorism set a terrifying precedent in South America; the terror network known as “Operation Condor” was created by Pinochet’s head of secret police, Colonel Manuel Contreras. The network became formally established by an act of the First Inter-American Reunion on Military Intelligence in Chile in November 1975. From that point on, Argentina, Uruguay, Brazil and Paraguay, among others, collectively participated in the extermination of political dissidents within their borders.

For two years, Castresana and his associates worked freely, meeting with victims, compiling data, without the political pressure that would come to mar the proceedings in London. On October 16, Pinochet, surprised as he recovered from a minor back operation in a London clinic, was put under house arrest by Scotland Yard. While the extradition application ultimately failed and Pinochet returned to Chile 500 days later for “health reasons,” his homeland had changed. “Chile was a very different country,” attested Castresana. Pinochet was stripped of his post as senator for life and with it, his immunity from prosecution. Public opinion, which had initially seen Pinochet’s arrest as a threat to Chilean sovereignty, had changed.

Now the former dictator’s true legacy was widely perceived as one of death and silence. Castresana cited recent Chilean criminal proceedings against Pinochet, including the case against him for money laundering: On October 1, 2004 Chile’s internal revenue service filed a lawsuit against Pinochet, accusing him of fraud and tax evasion in investment accounts at Riggs Bank between 1996 and 2002. If convicted, Pinochet faces prison time and fines totaling 300 percent of the amount owed.

Whether or not the 89-year-old former strongman’s health can stand trial, the dream of justice finally seems attainable in Chile. Stressing the importance of the Nuremburg principles, Castresana said that a state’s duty to respect and promote human rights must be honored at home and abroad. Immunity should not be possible if crimes against humanity have been committed. “Solidarity works,” Castresana affirmed. “The real question is: who do we get next?”

Carlos Castresana Fernández is currently a visiting professor of law at the University of San Francisco. He served as a public prosecutor in Spain for many years and was a prominent member of the Public Prosecutors of Spain where he worked in the Office against Corruption. He gave his CLAS presentation, “The Legacy of the Pinochet Case,” on January 27, 2005.

Sarah Schoellkopf is a graduate student in the Department of Spanish and Portuguese.

Judge Castresana is teaching international law at the University of San Francisco this semester.