The Human Rights Actions Network
www.derechos.org/human-rights/actions/
ACTION REQUEST
Nizkor International Human Rights Team
Derechos Human Rights
Serpaj Europe
Urgent Solidarity
27Jan99
THE LEADER OF A CRIMINAL ORGANIZATION IS NOT ENTITLED TO IMMUNITY AS
HEAD OF STATE. HENCE AUGUSTO PINOCHET UGARTE MUST BE EXTRADITED TO
SPAIN.
DESCRIPTION OF FACTS
Even though United Kingdom's highest court issued a resolution on
November, 25, 1998 denying Augusto Pinochet immunity, this decision was
set aside on December 17, 1998 due to allegations of bias on the basis
of personal links of one of the members of the first panel of Law Lords,
Lord Hoffman, with the organization for the defence of human rights
Amnesty International.
This House of Lords' decision has not been understood by many
international activists who do not find any sort of contradiction
between the fact of belonging to the Magistracy and the fact of
belonging to a certain human rights organization. In general, this
possibility has been duly recognized within the European Magistracy. Not
doing so would be equal to assuming that a Judge is not a member of the
democratic society. We do hope that this decision is not the
anticipation of an unfair resolution on the part of the last medieval
institution that still remains in Europe.
This setting aside has resulted in the re-opening of the hearings on
immunity. Therefore, on January 18, 1999 the Britains's highest court,
now composed of a 7 Law Lords panel, restarted the appeal sessions in
order to decide once more whether former Commander-in-chief of the
Chilean Armed Forces who set himself up as Chilean dictator and current
Senator for Life is entitled to immunity or not in relation with the
extradition request issued by Spain.
At this very moment in which sessions are still being held and before
they get to their end, we consider it to be convenient to underline the
legal foundations of the principle of individual responsibility of the
authors of serious crimes against human rights.
LEGAL FOUNDATIONS
Under international law in force, those responsible for crimes against
humanity, including genocide, not only can, but also must be prosecuted
in relation with their membership in a criminal organization and in
application of the principle of command responsibility.
A) Membership in a criminal organization
"A criminal organization is analogous to a criminal conspiracy in that
the essence of both is cooperation for criminal purposes. There must be
a group bound together and organized for a common purpose." (Office of
United States Chief of Councel For Prosecution of Axis Criminality,
"Nazi Conspiration and AggressionOpinion and Judgment" (Washington
United States Government Printing Office 1947), p. 88). The group must
be formed or used in connection with the commission of crimes
attributable to the accused, crimes against humanity in this case (as it
occurred in Nuremberg), including genocide, and the necessary and
systematic planning of the illegal and criminal operations.
Augusto Pinochet Ugarte violated, as Commander-in-chief, the orders of
his legitimate Chief (the democratically elected President Salvador
Allende), thus committing treachery. In order to do so, he created a
criminal organization which started functioning in 1972 and whose unique
objective lay in the commission of civil and military crimes. He
established this criminal organization by illegitemately using the means
whose protection he had been commended to by the Chilean state,
including the life guarantee of all citizens.
To give free rein to his irrationality he was assisted by hundreds of
Chilean officers who belonged to the DINA (Directorate of National
Intelligence) and who are certainly identified. It is obvious that since
1972 he relied too on the Argentinian Navy, whose assistance lay mostly
in granting him the concealment of the criminal operations by protecting
his communications, as it was discovered by virtue of the financial
examination carried out by the Universidad Nacional del Sur (National
University of the South) in the Instituto Argentino de Oceanografia
(Argentine Institute of Oceanography), where evidence corroborating
theses facts and which was handed over to the Argentine Foreign Affairs
Ministry was found.
The Operation Condor is simply a multinational corporation created to
spread terror around; an international criminal organization whose only
objective relied on the criminal cooperation and the performance of
criminal operations in the territory of its members (mainly countries of
the Southern Cone of Latin America). This illegal proceeding made it
possible to optimize the economic and operational expenses of the
different criminal organizations it was composed of, one of which was
the Chilean DINA. Their leaders also act in foreign countries in order
to exterminate political opponents or mere suspicious citizens. Suffice
it to remember the case of the 119 Chileans, most of them of Jewish
origin, who were exterminated in Chile and whose bodies were supplanted
by 119 corpses of political opponents found dead in Argentina; this fact
was registered within the image campaign conducted by the illegitimate
government headed by Augusto Pinochet and which was organized by an
international marketing agency. It is the same kind of operation that
today aims at turning Agusto Pinochet Ugarte into an "old, frail and
sick" general, as it seems Lady Thatcher said.
Laws against membership in a criminal organization date back over one
hundred and fifty years. As Justice Jackson made it clear in his
argument before the Nuremberg Tribunal (which was established to bring
to trial to the major nazi criminals), on February 28, 1946"The
substantive law which governs the inquiry into criminality of
organizations is, in its large outline, old and well settled and fairly
uniform in all systems of law." (Office of United States Chief of
Councel For Prosecution of Axis Criminality, "Nazi Conspiration and
Aggression" (WashingtonUnited States Government Printing Office 1946),
I I, p. 9)
The Nuremberg minutes also assert that precedents in English law for
outlawing organizations and punishing membership therein are old and
consistent with the Nuremberg Charterin 1836, British India enacted a
statute designed to supress thuggery that made membership in "any gang
of thugs" punishable by life imprisonment (British India Act No. 30,
November 14, 1836). Other precedents in English legislation are the
"Unlawful Societies Act" of 1799 ( 3 George III, Chapter 79);
"Seditious Meeting Act" of 1817 (57 George III, Chapter 19); "Seditious
Meeting Act" of 1846 (9 and 10 Victoria, Chapter 33); "Public Order Act"
of 1936 and "Defense Regulation" 18 (b). The last was intended to
protect the integrity of the British Government against the fifth-column
activities of the nazi conspiracy.
In that same line, Article 265 of the French Penal Code, enacted in
1863, criminalizes the formation of associations whose aim it is to
prepare or commit crimes against persons or property. The German
Criminal Code enacted in 1871, Section 128, criminalized participation
in associations whose existence, constitution or purposes were kept
secret from the Government; due obedience to superiors in this kind of
organizations was also punishable. Most significant of all is the fact
that twenty-two years before the Neremberg trials began, on May 30, 1924
the German courts rendered judgement that the whole Nazi Party was a
criminal organization. This decision referred not only to the Leadership
Corps, but to all other members as well. In order to do so, the German
courts proceeded on the theory that all members were held together by a
common plan in which each one participated even though at various
levels. In 1940, the United States enacted the Smith Sedition Act making
it a crime to be a member of an organization which sought to overthrough
the government of the United States by force or violence.
Under international law both the London and the Far East Charter for the
International Military Tribunals established the possibility of
prosecution of individuals for their membership in a criminal
organization.
As it has been stated in the Nuremberg minutes, organizations with
criminal ends are regarded as in the nature of criminal conspiracies,
and their criminality is judged by the application of conspiracy
principles. The Charter, in Article 6, provides that "Leaders,
organizers, instigators and accomplices participating in the formulation
or execution of a common plan or conspiracy to commit any of the
foregoing crimes [crimes against humanity among them] are reponsible for
all acts performed by any person in execution of such plan." Articles 9,
10 and 11 of the Charter contain provisions concerning liability for
membership in a criminal organization. The last of these articles
establishes that the same individual may be punished for participating
in a criminal organization and additionally for having perpetrated
certain crimes.
A criminal organization, from the point of view of serious crimes
against humanity, is not equal to whatever armed band; in order to
constitute a criminal organization its formal or secret objectives must
consist of the planning, organization and execution of operations which
violate the international human rights law and international
humanitarian law and in order to do so they must use the state
institutions and/or the armed forces.
The Nuremberg records also read that the criteria for determining the
collective guilt of those who adhered to a common plan obviously are
those which would test the legality of any combination or conspiracy.
Did it contemplate illegal methods or aim at illegal ends?. If so, the
liability of each member of one of these organizations, aimed at the
extermination of the political opponent, for the acts of every other
member is not essentially different from the liability for conspiracy
enforced in courts of the United Stated against business men who combine
in violation of the antitrust laws, or of other defendants accused under
narcotic drugs laws.
Also Section II, Article 5 of the Charter of the International Military
Tribunal for the Far East, enacted January 19, 1946 criminalized
"participation in a common plan or conspiracy" as the Nuremberg Charter
did.
The Nuremberg Judgement, as it has been said, stressed that a criminal
organization is analogous to a criminal conspiracy in that the essence
of both is cooperation for criminal puerposes. The Nuremberg Tribunal
subsequently found four of the seven indicted nazi organizations to be
criminal within the meaning of the Charter. With regard to the Gestapo
and S.D., the Tribunal stated" The Gestapo and SD were used for
purposes which were criminal under the Charter involving the persecution
and extermination of the Jews, brutalities, and killings in
concentration camps, ..., and the mistreatment and murder of prisoners
of war." [1, INTERNATIONAL MILITARY TRIBUNAL, TRIAL OF THE MAJOR WAR
CRIMINALS 277]
In the same way and as a necessary condition of this type of
organizations, a systematic organization of illegal detention camps and
extermination camps was carried out in Chile. The intelligence services
selected previously those who were going to be carried to these places,
a product of the irrationality of human mind. The DINA was the
functional and hierarchic responsible for this type of instrumental
activities within the planning of the extermination. There is nothing of
accidental in this sort of repression and extermination.
Also the Allied Control Council, following the lead of the Tribunal,
prosecuted individuals for membership in a criminal organization under
Control Council Law No. 10. In the case of "United States v. Otto
Ohlendorf" (4 TWC 412) twenty-two of the defendants were found guilty
for their membership in the S.S. through the Extermination Units.
It is necessary to recall that the UN General Assembly declared the
Nuremberg principles to be international law, and therefore, it stated
that participation in a common plan or conspiracy to comit illegal acts
such as those being mentioned is a crime under international
law.(Principles VI and VII).
Article. 3 b) of the Convention on the Prevention and Punishmet of the
Crime of Genocide, of 1948, also penalizes conspiracy to commit
genocide. The commentary to the Secretary-General's draft observes that
"genocide can hardly be committed on a large scale without some form of
agreement. Hence the mere fact of conspiracy should be punishable even
if no ‘preparatory act' has yet taken place." (Draft Convention on the
Crime of Genocide, Commentary, U.N. Secretary-General, at 31, U.N. Doc
E/447, 1947).
The Statutes governing the International Tribunals for the Former
Yugoslavia and for Rwanda also recognize conspiracy to commit genocide
and complicity in genocide as punishable (Articles 4 and 2
respectively).
Therefore, due to the fact that the detainee, Augusto Pinochet Ugarte,
not only belonged to, but also planned, organized and directed a
criminal organization that aimed at exterminating citizens on religious,
social, ethnic and political grounds, he must be found responsible under
the principle of functional responsibility inherent to his rank
Commander-in-chief of the Chilean Army. It is necessary as well to
underline that the Chilean Supreme Court itself, while dealing with the
case of the assassination of Orlando Letelier, ruled that the DINA was a
criminal organization.
B) Criminal responsibility under the Principle of Command
Responsibility.
This principle is not new neither. As early as 1439 Charles VII of
France issued an Ordinance at Orleans through which he ordered that each
captain or lieutenant be held responsible for the abuses committed by
members of his company. This principle is also to be found in the
Articles of War issued by Gustavus Adolphus of Sweden in 1621
establishing that those Colonells or Captains who command their soldiers
to do any unlawful thing shall be punished. As to modern codes, we find
somewhat abbreviated version of the issue of command responsibility in
Article 71 of the Lieber Code, which governed the behaviour of American
troops during the Civil War. This principle was also applied against
Napoleon when he violated the agreement that exiled him to St. Helena,
considering that he had been completely unconcerned with humanitarian
law. The Commission on Responsability of the Authors of the War and on
Enforcement of Penalties, created by the Allied and Associated Powers at
the end of World War I, established the criminal liability, without
distinction of rank, of all those who had been guilty of offenses
against the laws and customs of war or the laws of humanity.
The first treaty obligation making a superior liable for breaches of
humanitarian law committed during war is to be found in Article 3 of the
IV Hague Convention (1907). Previously, in 1902, Brigadier-General Jacob
H. Smith had been retired from the active list by President Roosevelt,
for it was considered that he issued unlawful orders to his subordinates
while exercising his military functions.
The general principles of international responsibility of the individual
in criminal matters arise from the Statute and Judgement of the
Nuremberg Tribunal, on which British judges then served. The London
Charter establishing the Tribunal expressly provides that"The official
position of defendants, whether as Heads of State or responsible
officials in Government Departments, shall not be considered as freeing
them from responsibility or mitigating punishment" (Article 7). As for
criminal responsibility of state agents, Principle III states"The fact
that a person who committed an act which constitutes a crime under
international law acted as a Head of State or responsible government
official does not relieve him from responsibility under international
law". The United Nations General Assembly declared this principles to be
international law in its Resolution 95 (I) of 11 December 1946.
In the Judgment of the Nuremberg trials, the principle of individual
responsibility of the accused is once more brought to light, for
"international law imposes duties and liabilities upon individuals as
well as upon states..." The Judgment states that in the case of Ex parte
Quirin (1942 317 U.S.1), Chief Justice Stone emphasized the principle of
individual responsibility and gave a list of cases tried by the courts,
where individual offenders were charged with offenses against the laws
of nations.... "Crimes against international law are committed by men,
not by abstract entities, and only by punishing individuals who commit
such crimes can the provisions of international law be enforced." ("Nazi
Conspiration and AggressionOpinion and Judgment" op. cit., pp. 52-53).
Many higher ranking officials, political as well as military commanders
(positions into which Commander-in-chief Augusto Pinochet fits), were
found guilty of war crimes or crimes against humanity based upon the
"evidence of the officials' participation in conferences at which
policies of persecution or extermination were agreed upon" or instances
in which orders that breached international law were issued [22, TMWC
411]
This type of encounters to conspire for the commission of crimes took
also place among the leaders of the Southern Cone Dictatorships in order
to establish and implement what they called "Operation Condor". This
international terrorist network had its starting point in the contacts
held between General Contreras -Executive Director of the Chilean DINA
who received direct orders from Augusto Pinochet (General Contreras'
statements asserting these facts are part of the record conducted by the
Chilean Supreme Court and the Spanish National Criminal Court)- and
General Guanes Serrano, from Paraguay. Reasonable evidence of this fact
can be found in a letter belonging to the Condor files and that
Contreras sent to Guanes. In this letter Contreras calls "Primer
Encuentro de Trabajo de Inteligencia Nacional" (first working meeting of
national intelligence) to the enterprise that afterwards will become the
"Condor Operation". The meeting mentioned by Contreras took place at the
DINA compounds, in Santiago de Chile, in October 1975.
Command resposibility and, in general, responsibility of superiors, is a
recognized principle.
The principle of responsibility, applicable to both civilian superiors
and military commanders, includesa) a duty to exercise authority over
subordinates; b) equality of responsibility with the subordinate; c)
actual knowledge of the unlawful conduct planned or carried out by the
subordinate or sufficient information to enable the superior to conclude
that such conduct was planned or had occurred; d) failure to take
necessary steps to prevent the wrongdoing; e) the feasibility of such
steps; and f) prosecution and punishment of the crime. [Amnesty
International, THE INTERNATIONAL CRIMINAL COURTMAKING THE RIGHT
DECISION, AI IndexIOR40/01/97 (January 1997)].
Today, the principle of individual criminal responsibility for ordering
a crime to be committed is expressly recognized in Art. 49 First Geneva
Convention; Art. 50 Second Geneva Convention; Art.129 Third Geneva
Convention; Art.146 Fourth Geneva Convention; as well as in the Statutes
creating the ex-Yugoslavia (Art. 7.1) and Rwanda (Art. 6.1)
International Criminal Tribunals. Furthermore, common par. 2 of Arts. 7
and 6 of the ex-Yugoslavia and Rwanda Statutes, respectively, provides
once more"The official position of defendants, whether as Heads of
State or responsible officials in Government Departments, shall not be
considered as freeing them from responsibility or mitigating
punishment."
Superiors are as well responsible for the acts committed by their
subordinatesthe Yamashita case [In re Yamashita, 327 U.S. 1 (1946)],
commander of the Japanese occupying forces and acting Governor during
World War II in the Philippines, served to set two requirements in order
for the subordinate's criminal act to be charged to the superiora)
actual knowledge about the commission of the crime, or knowledge of
enough facts to conclude the crime; and b) there is an affirmative duty;
superiors, once aware of the commission of such crimes, must take all
necessary measures within their power to prevent or repress the crime.
The Yamashita holding, among others, makes any officer criminally
liable, just by virtue of his status and geographic area of command, if
those operating under the officer's command commit criminal acts. Should
a commander issue orders which lead directly to lawless acts, the
criminal responsibility is definite and has always been so understood.
The decision of the Canadian Military Court which tried
Brigadier-General Kurt Meyer (Abbaye Ardenne Case) throws further light
on the issue of command responsibility. In order to find the accused
guilty it is not necessary to be convinced that a particular formal
order was given, it is enough with being satisfied that words were
uttered or some clear indication given by the accused to his
subordinates that unlawful acts were to be committed. Even further, the
superior may be held responsible for not having prevented his officers
from participating, as it was the case, in an extrajudicial execution,
and also for not bringing them before a military tribunal.
In the same line, Article 6 of the Draft Code of Crimes Against the
Peace and Security of Mankind, drafted by the UN International Law
Commission, provides that "The fact that a crime against the peace and
security of mankind was committed by a subordinate does not relieve his
superiors of criminal responsibility, if they knew or had information
enabling them to conclude, in the circumstances at the time, that the
subordinate was committing or was going to commit and if they did not
take all feasible measures within their power to prevent or repress the
crime." (Draft Articles on the Draft Code of Crimes Against the Peace
and Security of Mankind corresponding to 48th. Session of International
Law Commission, May 6 to July 26, 1996).
In the matter of the extradition of retired General Carlos Guillermo
Suarez-Mason, which was requested by the State of Argetina to the US,
the US District Court for the Northern District of California argumented
that Suarez Mason, as head of Zone One (In 1975 Argentine was broken
down into five military zones), was personally responsible for the
issuance of secret Operational Order 9/77, which set forth in detail the
manner and means by which those in his command were to carry out the
necessary operations in the fight against subversion. By most estimates,
somewhere in the range of 5,000 people disappeared in Zone one during
Suarez-Mason's tenure as Zone Commander. The court thinks it highly
impossible that any commander could be unaware of such massive
violations occurring under his nose. Suarez-Mason was not charged with
personally committing either the homocides or the kidnappings. Intead,
he was charged as a "principal who directed and controlled the acts of
murder and kidnapping in that a) Suarez-Mason was the Commander of the
First Army; b) the charged offenses were committed pursuant to a system
of secret verbal orders controlling conduct of members of the First Army
Command; and therefore, c) the inescapable inference is that these
orders were given by Suarez-Mason. The court concluded that "where
Argentina establishes that a particular offense was committed by persons
under Suarez-Mason's command, and the circumstances of the offense
support the conclusion that they were acting pursuant to the directions
of the system put in place by Suarez-Mason, such a showing will
generally be sufficient to satisfy" probable cause that he committed the
charged offense. (N.D. Cal. Apr. 27, 1988). He was finally extradited to
Argentina.
To name a recent precedent, the indictments and warrants issued against
Radovan Karadzic and Ratko Mladic, the putative leader and commanding
general, respectively, of occupying Bosnian Serb forces in Bosnia,
indicate that reasonable grounds exist for believing that the accused
has committed the offenses in relation with their position. They are
accused of having committed, from 1992 to 1995, genocide, crimes against
humanity, violations of the laws and customs of war,....The link that
ties these superiors to their crimes is the principle of responsibility
of superiors, both civil and military.
General Augusto Pinochet occupied the highest possible position as
Commander-in-Chief of the Chilean Army and while exercising as such, he
committed the crimes he is being accused of (abductions, forced
disappearances, tortures, that is to say, crimes against humanity
including genocide, which were committed thanks to the conspiracy of the
military that usurped the democratic rule of Chile and that also served
to create the terrorist organization, endowed with international range,
known as "Operation Condor").
General Augusto Pinochet and other high officers had knowledge of all
those acts and used their power to enable the commission of the
atrocities that remained impunished. The victims' appeal to Justice just
seeks an end to the ill circle of impunity.
While dealing with this kind of situations the application of the
humanitarian laws has been questioned, for many have thought that their
application would be equal to recognizing the existence of a war. This
is a false principle. There is sufficient evidence to demonstrate that
there was not such a war. But it is beyond all doubt that General
Augusto Pinochet transformed the armed forces into a criminal
organization and created a criminal organization using them. His
condition and the condition of his subordinates place them all under the
principles of the military rules and the Geneva Conventions. They
designed in their General Staff (Estados Mayores Militares) the
operations aimed at the extermination of thousands of persons, issued
their orders by means of the military communication systems and used the
hierarchic military system to achieve their goals; hence, they must be
judged under these principles which they have consciously, and also
voluntarily, violated.
REQUESTED ACTIONS(taking into account the above arguments)
i) to write to the Law Lords emphasizing the legal irrationality they
could fall into if Senator for Life Augusto Pinochet Ugarte is finally
entitled to immunity as Head of State, due to the kind and seriousness
of the perpetrated crimes and due to his reponsibility as leader of a
criminal organization;
ii) if you are resident in one of the countries that have requested
Augusto Pinochet extradition (or if you are interested in the
undertaking of actions by one of those countries) and on the assumption
that the Law Lords ended up by recognizing the immunity of the Head of
State and highest responsible of the criminal organizationto request
to the government of that country to undertake the necessary judicial
actions in order to file an appeal before The Hague Court (International
Court of Justice) on the presumed violation of international norms and
treaties on the part of Great Britain.
It is important that these actions are prepared to be able to put them
into practice in order to paralyse judicial actions until the question
is solved by The Hague Court.
SOME USEFUL ADDRESSES
- The Leader of the House of Lords, The Rt Hon Baroness Jay of
Paddington House of Lords , London SW1A OP, UK. Fax+44 171 219 3051
- The Leader of the House of Commons, The Rt Hon Margaret Beckett, MP,
House of Commons, London SW1A OAA, UK. Fax+ 44 171 270 0511
- The Prime Minister, The Rt Hon Tony Blair, MP, 10 Downing Street,
London SW1, UK. Fax+44 171 270 0196
- Secretary of State for Home Affairs. Rt. Hon, Jack Straw, MP, Home
Office, 50 Queen Anne's Gate, London SW1 9AT, UK. TelegramsJack Straw
MP, Home Office, London, UK. Fax+44 171 273 3965 SalutationDear
Secretary of State
- Secretary of State for Foreign and Commonwealth Affairs. The Rt Hon
Robin Cook, MP, Foreign and Commonwealth Office, Downing Street. London
SW1A 2AL, UK. TelegramsRobin Cook MP, Foreign Office, London, UK. Fax
+ 44 171 270 3539. SalutationDear Foreign Secretary
Please, send copies to the British Embassy in your respective countries
and also to the newspapers
- The Guardian, 119 Farringdon Rd, London EC1R 3ER, UK. Fax+44 171
8372114
- The Times, 1 Pennington St. London E1 9XN, UK. Fax+44 171 782 5046
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FOR FURTHER INFORMATION
- Informacion sobre el jucio en espanha contra el senador vitalicio
Augusto Pinochet Ugarte / Info on the Spanish trial against the senator
for life Augusto Pinochet Ugarte.
http//www.derechos.org/nizkor/chile/juicio/
- Informacion sobre el caso del juicio en espanha por desaparecidos en
Argentina / Info on the Spanish trial in favor of the disappeared in
Argentina.
http//www.derechos.org/nizkor/arg/espana/
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