Update of the situation after the failure of the arbitration proposal as a solution to the Pinochet case.

By Nizkor International Human Rights Team


On August 4, 1999, the Equipo Nizkor disseminated among its members all around the world an Urgent Solidarity Action where it said that there was an attempted agreement between the Foreign Affairs Ministers of the governments of Spain and Chile aiming at putting an end to the conflict generated by the detention of Senator for Life and ex Commander-in-Chief of the Chilean Army, A. Pinochet Ugarte, and his possible extradition in order to be tried in Spain.

Given the numerous commentaries, the press conferences and even the diplomatic measures taken by the Foreign Affairs Minister of the Chilean government, we have thought it to be necessary to make a summary of the situation.

The Equipo Nizkor is working since more than two years ago together with organizations of several countries in the follow-up of the Mapuche conflict in the VIII Region, the Biobio area, because we consider that this case constitutes a model applicable to all those conflicts dealing with impunity in Economic, Social and Cultural Rights. Some of the Equipo Nizkor members have participated in very elaborated studies of this model as a part of their ordinary activities in the area of impunity in Economic, Social and Cultural Rights.

Even though this conflict does not have any causative relationship with the Pinochet case, the fact of having directly collaborated with the same has allowed us to acquire punctual knowledge and discernment on some aspects of the negotiation that otherwise could hardly been visualized.

We wish to place on the record the fact that the Chilean team who is working on the Biobio conflict has no relation at all with the Pinochet case: neither with the judicial proceedings that are taking place in Spain, nor in other countries.

Having explained the foregoing and having illustrated the real context of the facts, we call your attention upon the following aspects:

  • 1) By the middle of July, 1999, the President of Chile and the Foreign Relations Minister of this country received a personal envoy from the Spanish government -not only this envoy had no diplomatic range but the Spanish Parliament was also unaware of the existence of this iniciative-charged with the mission of presenting the draft of a proposal that would be submitted to deliberation of the Spanish State Council and that would permit an arbitration in the terms provided for under a diplomatic agreement elaborated by the Dictatorship of Primo de Rivera in 1927; also, this proposal intended to use as an instrumentation Article 30 of the Convention against Torture.
  • 2) This proposal was submitted by Mr. Rodolfo Martin Villa: President of Endesa España SA, responsible for the conflict to the South of the Biobio and a person subject to investigation by the Chilean attorney's office due to the financial engineering operations with which his company operated in the purchase of Chispas, a necessary operation for the total absorption of Endesa Chile .
  • 3) These conversations counted on the explicit and public approval of the Spanish Former President, Felipe Gonzalez, who declared so in Santiago de Chile and also with the approval of the Spanish Foreign Affairs Minister, who wrote a long article in the Newspaper 'El Mercurio', located in Santiago de Chile.
  • 4) Even though we can not demonstrate the causative relationship at the moment, between August 3 and 10, 1999, the government of Chile proceeded to declare the "regime d'exception" in the VIII Region, arresting numerous Mapuche leaders and proceeding to the occupation of the territory using the carabineer forces. At the same time, intimidation operations, which included bulldozing operations, were implemented in that area and it was a known fact that the Chilean executive would promulgate a law that would solve Endesa's legal problems in Chile. This never occurred, among other reasons, because a civil judge suspended the Ralco works. It is necessary to underline that the lawyer who represents the legal interests of Endesa Espanha in Chile was the founder of the Nazi organization 'Patria y Libertad', Dr. Gres.
  • 5) During an informal meeting on the occasion of the King of Morocco's funerals, Hassan II, the Spanish Foreign Affairs Minister informed the Secretary-General of the Spanish Socialist Party, Mr. Almunia, on the arbitration operation in the exposed terms. The public information on the offer and the denial on the part of the socialist party -against Felipe Gonzalez's opinion- signified the beginning of the end of the "political solution" proposal to the problem.
  • 6) As we have timely argued, this solution was not feasible because of several reasons, among them: a) because Chile had opposed a reservation to Article 30 of the Convention against Torture, even though by the middle of August Chile informed that it had proceeded to withdraw from the same; b) because it is impossible, in legal terms, to find an extrajudicial solution; c) because it is the United Kingdom which has applied the said Convention since the Spanish justice has defined the case as falling into the Genocide offense and d) because the only possible way to be taken by the Chilean Government if it considers that Spain and Great Britain (as well as the other countries that have promoted the extradition) do not have the necessary jurisdiction, is to appeal to The Hague International Court of Justice, denouncing the mentioned States.
  • 7) Regarding the Foreign Affairs Minister of Spain, he has tried to minimize the risks derived from his responsibility, both in his public appearances and in the meeting held with the MP's belonging to the Spanish Parliament Foreign Affairs Commission.

To our understanding, his way of proceeding and his attempted negotiation are beyond the Spanish Minister's faculties; this fact clearly raises the question of obstruction to justice, in addition to using as intermediary a person who, regardless of the personal confidence he might be worthy of, could not represent Spain due to a) the evident collusion of economic and legal interests converging on Mr. Martin Villa and Endesa Espanha in Chile and b) not counting on the diplomatic representation required by Spanish legislation.

  • 8) Regarding the Foreign Relations Minister of Chile, he has tried to show a hardness rather unusual in someone who had to exile himself on account of Mr. Pinochet's repression and also to demonstrate before the international public opinion that the fact of defending a criminal is a question of national sovereignty. On the other hand, and simultaneously, the Chilean Defense Minister, worked on a premeditated attempt to split the Chilean human rights organizations up by using the so called proposal "Mesa de Dialogo" (Dialogue Platform). All of this was happening at the same time than members of the military belonging to the criminal organizations known as DINA (National Intelligence Directorate) and CNI (Information National Center) were imputed for the first time by a Chilean judges' historical decision.
  • 9) None of the two governments has collaborated with the justice system, something which is in and of itself a serious responsibility; but furthermore, they have intended to maintain the impunity situation, not taking into account the victims at any time. It is necessary to recall that none of the two governments or States is a party to the British and Spanish proceedings and, therefore, any action against these procedures is nothing but simple obstruction and complicity with the authors of the crimes, who in due time created an authentic "criminal organization" in the terms anticipated by the Nuremberg Statute and subsequent judgments.
  • 10) Now we have public knowledge of facts we knew about through the statements of direct witnesses of that period, such as the Spanish participation -particularly the participation of Felipe Gonzalez, who was at that time President of the Spanish government- in the elaboration of the Chilean transition impunity model. A variant of the same model was formalized in Argentina with the same recommendations. This is the model that has revealed itself as a failure beyond all theories elaborated by its defenders.

In both countries the impunity models were accompanied by social and economic models which were incompatible with the economic and social rights as well as with the necessary conditions of a Rule of Law .

This way of proceeding brings clearly to light the perversity of these governments' thought when they reject the international criminal jurisdiction in order to bring to trial all those responsible for crimes against humanity and accuse the victims, real promoters of the judicial proceedings, of interfering with the national sovereignty, while accepting that same "interference" to mould the political constitution and to build the economic and social model of social exclusion which is today in evident crisis in both countries.

Taking into account the foregoing, we recommend the following:

1) To be on the alert in relation to the international pressures elaborated in interest collusion by the lobby which defends Agusto Pinochet's freedom, making it clear in any case that the different judicial proceedings are an instrument for the fight against impunity in the world and that they should be defended as such.

2) The strategy of human rights groups and activists committed to this case must be associated to the fact that the trial takes place actually; therefore we expressly support the investigation requested in London by Amnesty International, as well as the extradition petition submitted by Belgium, which is a consequence of the coordinated work of human rights activists of this nationality, coordination which begun more than one year ago.

3) Impunity is a model of systematical human rights violation that has global effects and that as such, must be faced. The governments committed to the maintenance of these models based on the systematical concealment of crimes against humanity must be aware of the fact that their members are under a real risk of being tried by a justice court sooner or later. They should remember that this type of offenses are imprescriptible, those responsible for them not being able to benefit from any sort of amnesty.

4) International criminal jurisdiction for serious crimes against human rights is not incompatible with a system of International Criminal Court, as some intend to transmit; its is exactly the opposite: it permits to make use of a complementary element which is necessary in processes of this nature, as the domestic courts of some countries involved in this type of conflicts are beginning to recognize. The last decision of this kind has been the recent judgment of the Argentine Supreme Court on child robbery, defining it as an offense against humanity and, therefore, subject to international persecution.

EU, September 20, 1999

Electronic editon by Equipo Nizkor 25sep99

Pinochet Trial

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