Yesterday, Chile’s Court of Appeals upheld the decision, made last week by Santiago judge Juan Guzmán, to indict former dictator Augusto Pinochet for allegedly ordering the kidnapping of nine people and the murder of another, between 1976 and 1977. While it is absolutely laudable that, six years after his arrest in London in 1998, the 89-year-old General Pinochet may, at last, be held to account for at least some of the abuses of his brutal regime (which lasted from 1973 until 1990), Chilean jurists must be cautious not to circumvent due process in doing so.
Gen. Pinochet seized power in Chile in a U.S.-supported coup that toppled socialist president Salvador Allende. The military dictatorship that followed resulted in appalling violence. 3,000 Chileans lost their lives and thousands more were tortured throughout the regime’s 17 years in power.
Since leaving power, Gen. Pinochet has successfully assured himself immunity from prosecution, first claiming that, as a former head of state, he could not be prosecuted for acts carried out in performing the functions of office. That defense ran out of steam in 1998, thrown out by the House of Lords (the United Kingdom’s highest court of appeal), which ruled rightly that murder, torture and hostage-taking fail to qualify as legitimate functions of a head of state and so are not immune from prosecution. Gen. Pinochet then turned to his poor health as a defense, and finagled permission to return to Chile as a free man because of it.
While the Chilean military welcomed its former leader home in 2000 with a full-dress greeting party, others were not so warm to his return, and efforts to try Pinochet domestically for his alleged abuses began almost immediately. Ever since, the General’s manifold layers of protection have been slowly stripped away. First to go was his senatorial immunity: in August 2000, Chile’s Supreme Court stripped Gen. Pinochet of the protection he enjoyed as a Senator-for-life. There remained, however, the pesky issue of Pinochet’s health: after a judge placed him under house arrest in January 2001, the Santiago Appeals Court ruled that Pinochet was indeed medically unfit to stand trial and so forced prosecutors to abandon the case against him. Until yesterday, that medical defense held fast. Though his defense counsel has pledged to appeal yesterday’s indictment to Chile’s highest court, it seems now that the slippery General may at last be at the end of his luck.
There’s just one small problem: Gen. Pinochet might actually be medically unfit to stand trial. The former president, who suffers from diabetes and arthritis and who has been diagnosed with “moderate dementia,” took ill on Saturday after reportedly suffering a stroke. Leonel Gomez, director of the Santiago army hospital where Pinochet is being treated, has said that the General is recovering and could be released in the next few days, and a statement issued by the hospital says that he has recovered consciousness and mobility and is no longer in critical condition; however, if there were even remotely-pondered questions of Pinochet’s mental capacity to stand trial before, there absolutely are now. When an 89-year-old suffers a stroke, former dictator or otherwise, there is serious cause for concern. According to the American Stroke Association, 19 percent of stroke sufferers suffer aphasia (trouble speaking or understanding the speech of others), and old age is the ultimate compounding factor when judging the impact of any ailment. While prosecutors have already dismissed the stroke itself as yet another ruse to avoid being held to account, Chile’s judicial system must now tread exceptionally lightly on the question of Pinochet’s standing trial.
The reason is a simple one: fair process must be granted to those accused of human rights breaches, lest the institutions that mete out judgments on rights violators trample on rights themselves. Though Judge Guzman may have been convinced by Pinochet’s lucidity during trial that the General was not as mad as his lawyers claimed he was, yesterday’s Court of Appeals ruling came barely a day after news that Pinochet was even recovering from his illness, and there is little evidence that the court could have known for certain Pinochet’s present capacity for standing trial, in light of his hospitalization. The decision seems disturbingly premature given the unexpected alteration of the very circumstances that prompted it in the first place.
If Augusto Pinochet is brought to trial, as believers in human rights must hope that he ultimately is, it is imperative that his trial happens in an atmosphere ripe with fairness and justice, the very things that were denied to Chileans during the General’s rule. As Professor Jacqueline Bhabha, Adjunct Lecturer in Public Policy at Harvard and executive director of the University Committee on Human Rights Studies, wrote in an e-mail: “Process is critically important to human rights, and while impunity is fundamentally undermining so is revenge. If someone is too demented, or to deluded to understand the case against him or her, justice is not done by securing a conviction.”
Though at this point Gen. Pinochet’s capacity to stand trial is unclear, Chile’s judicial system has no choice but to proceed with extreme caution, weighing the desire to hold a tyrant to account against an imperative to preserve due process in so doing; and while the preferred result is, of course, to do both, the former must absolutely be held in the weightier regard. If Gen. Pinochet, murderer or otherwise, must be left to live the rest of his life in freedom so that the end of greater justice is accomplished, then so be it.
Adam Goldenberg ’08, a Crimson editorial editor, lives in Grays Hall.