The Trials of Augusto Pinochet
The International Military Tribunal (the Nuremberg Tribunal) which was established by the four Allied Powers at the conclusion of the Second World War to try the major war criminals, ruled in its judgment the very essence of the Charter of the Court was " ... that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the rules of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorising action moves outside its competence under international law . . . The principle of international law, which under certain circumstances protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law..."
The principles of the Charter of the International Military Tribunal and the Judgment of the Tribunal were unanimously affirmed by Resolution 95 of the General Assembly of the United Nations in 1946. Thereafter it was no longer possible to deny that individuals could be held criminally responsibility for war crimes and crimes against peace and were not protected by state immunity from the jurisdiction of national courts. Moreover, while it was assumed that the trial would normally take place in the territory where the crimes were committed, it was not suggested that this was the only place where the trial could take place.
In 1954 the International Law Commission proposed that acts would constitute international crimes only if they were committed at the instigation or the toleration of state authorities. The very official or governmental character of the acts which is necessary to found a claim to immunity, and which still operates as a bar to the civil jurisdiction of national courts, was now to be the essential element which made the acts an international crime.
The 1998 arrest of former Chilean dictator Augusto Pinochet, on a Spanish warrant, was the first application of the principle of Universal Jurisdiction - the notion that some crimes are so egregious, that a state is entitled to prosecute no matter where the crime took place. Mr. Pinochet was detained in Britain for 16 months before being released on health grounds.
Pinochet was the Head of State of Chile from 11 September 1973 until 11 March 1990. It is alleged that during that period there took place in Chile various crimes against humanity (torture, hostage taking and murder) for which he was knowingly responsible. In October 1998 Pinochet was in the UK receiving medical treatment. In October and November 1998 the judicial authorities in Spain issued international warrants for his arrest to enable his extradition to Spain to face trial for those alleged offences. The Spanish Supreme Court has held that the courts of Spain have jurisdiction to try him. Pinochet was arrested.
From in or about 1994 until 2002, Pinochet and his wife, Lucia Hiriart Rodriguez, maintained multiple bank accounts, investments, and certificates of deposits at Riggs Bank (the “Pinochet Accounts”). The Pinochet Accounts were located at Riggs Bank in the United States and at its London branch. Additionally, in 1996 and 1998, Riggs Bank assisted Pinochet in the establishment of two offshore shell corporations in the Bahamas – Ashburton Company Ltd. and Althorp Investment Co., Ltd. Both shell corporations were listed as nominal owners of bank accounts and certificates of deposits maintained by Pinochet. The OCC’s publicly-available Bank Secrecy Act/Anti-Money Laundering Comptroller’s Handbook (September 2000) generally identifies offshore corporations, as well as financial transactions involving bank secrecy jurisdictions, as being a high risk for money laundering.
During this time period, Pinochet deposited more than $10 million into the Pinochet Accounts. Riggs Bank failed to conduct sufficient due diligence as to the source of the funds being deposited into the Pinochet Accounts, and failed to report transactions it knew or had reason to know were suspicious.
Riggs documents show that the efforts of Riggs senior offi- cials to solicit business from Pinochet were part of a wider bank strategy to develop and strengthen the bank’s relationship with the Chilean military during the 1990s. Riggs had enjoyed a profitable relationship with the Chilean military during the 1960s and 1970s. In 1979, however, according to a memorandum written by Mr. Pinochet’s private banker at Riggs, the Chilean Military Mission closed most of its official accounts at Riggs and moved them to the Bank of Nova Scotia in Canada, in response to the 1976 assassination of Chilean Ambassador Orlando Letelier in Washington, DC.
From the early 1980’s and continuing for more than a decade, Riggs International Bank Corporation (“RIBC”), an Edge Act subsidiary of Riggs Bank, maintained bank accounts, nominally for various Chilean military attaches, but which appear to have been used by Pinochet himself. An internal Riggs Bank investigation located documents that described two of these accounts as “fronts” for Pinochet, and that internal investigation further revealed transfers of funds into and out of those accounts from accounts belonging to Pinochet and his family, at other banks. Riggs Bank has since closed RIBC.
During the 1990s, Riggs officials decided to try to restore the earlier relationship. In 1994, Riggs senior officials traveled to Chile, met with senior military and government offi- cials, including Mr. Pinochet who was then Commander-in- Chief of the Army, and were successful in convincing the Chilean mili- tary to return many of their accounts to Riggs Bank in Wash- ington, where they remained until 2004.
Certain Riggs Bank officer(s) and employee(s) avoided using Pinochet’s last name, even in routine internal communication, referring to him as “our prominent client in Chile,” “the Washington client,” or other aliases, including his wife’s maiden name or his maternal family name. Files involving the Pinochet account would not be labeled with his name, but rather with a code, such as “Red Fox – Chile.” On August 9, 2000, the day after Pinochet was stripped of immunity in Chile, a Riggs Bank employee noted in a memorandum Pinochet’s “change in legal status” and stated that “overseas legal proceedings also included legal ‘freezing’ of assets in a third country”. It is possible that Riggs might receive legal and applicable instructions to ‘freeze’ the client’s assets and to reveal all information “regarding the client.” The memorandum avoided referring to Pinochet by name.
In general, a state only exercises criminal jurisdiction over offences which occur within its geographical boundaries. If a person who is alleged to have committed a crime in Spain is found in the United Kingdom, Spain can apply to the United Kingdom to extradite him to Spain. The power to extradite from the United Kingdom for an "extradition crime" is now contained in the Extradition Act 1989. That Act defines what constitutes an "extradition crime". For the purposes of the present case, the most important requirement is that the conduct complained of must constitute a crime under the law both of Spain and of the United Kingdom. This is known as the double criminality rule.
The UK Crown Prosecution Service (which conducted the proceedings on behalf of the Spanish Government) while accepting that a foreign Head of State would, during his tenure of office, be immune from arrest or trial in respect of the matters alleged, contends that once he ceased to be Head of State his immunity for crimes against humanity also ceased and he can be arrested and prosecuted for such crimes committed during the period he was Head of State. On the other side, Senator Pinochet contends that his immunity in respect of acts done whilst he was Head of State persists even after he has ceased to be Head of State.
Amnesty International ("AI"), two other human rights bodies and three individuals petitioned for leave to intervene in the appeal. Such leave was granted. The hearing of this case, both before the Divisional Court and in the House of Lords, produced an unprecedent degree of public interest not only in this country but worldwide. The case raises fundamental issues of public international law and their interaction with the domestic law of the UK.
The conduct of Pinochet and his regime have been highly contentious and emotive matters. There are many Chileans and supporters of human rights who have no doubt as to his guilt and are anxious to bring him to trial somewhere in the world. There are many others who are his supporters and believe that he was the saviour of Chile. Yet a third group believe that, whatever the truth of the matter, it is a matter for Chile to sort out internally and not for third parties to interfere in the delicate balance of contemporary Chilean politics by seeking to try him outside Chile.
Judgment in the Lords was given on 25 November 1998. The appeal was allowed by a majority of three to two and your Lordships' House restored the warrant of 23 October 1998. As a result of this decision, Senator Pinochet was required to remain in this country to await the decision of the Home Secretary whether to authorise the continuation of the proceedings for his extradition. It was subsequently revealed that Lord Hoffmann, one of the five Lords hearing the case, was a Director and Chairperson of Amnesty International Charity Limited (AICL).
On 10 December 1998, Pinochet lodged the present petition asking that the order of 25 November 1998 should either be set aside completely or the opinion of Lord Hoffmann should be declared to be of no effect. The sole ground relied upon was that Lord Hoffmann's links with AI were such as to give the appearance of possible bias. It is important to stress that Senator Pinochet makes no allegation of actual bias against Lord Hoffmann; his claim is based on the requirement that justice should be seen to be done as well as actually being done. As a result there was a re-hearing of the appeal before a differently constituted Committee of the Lords.
The appeal came on again for rehearing on 18 January 1999 before the Lords. In the meantime the position had changed. First, the Home Secretary had issued to the magistrate authority to proceed under section 7 of the Act of 1989. In deciding to permit the extradition to Spain to go ahead he relied in part on the decision of this House at the first hearing that Senator Pinochet was not entitled to immunity. He did not authorise the extradition proceedings to go ahead on the charge of genocide: accordingly no further arguments were addressed to us on the charge of genocide which has dropped out of the case.
Secondly, the Republic of Chile applied to intervene as a party. Up to this point Chile had been urging that immunity should be afforded to Senator Pinochet, but it now wished to be joined as a party. Any immunity precluding criminal charges against Senator Pinochet is the immunity not of Senator Pinochet but of the Republic of Chile. Leave to intervene was therefore given to the Republic of Chile. The same amicus, Mr. Lloyd Jones, was heard as at the first hearing as were counsel for Amnesty International. Written representations were again put in on behalf of Human Rights Watch.
Thirdly, the ambit of the charges against Senator Pinochet had widened yet again. Chile had put in further particulars of the charges which they wished to advance. In order to try to bring some order to the proceedings, Mr. Alun Jones Q.C., for the Crown Prosecution Service, prepared a schedule of the 32 U.K. criminal charges which correspond to the allegations made against Senator Pinochet under Spanish law, save that the genocide charges were omitted. Britain’s highest court ruled that former Chilean dictator Augusto Pinochet was legally arrested. Opponents of General Pinochet welcomed the news. One of them said, “We have waited for years for this man to face the music.” Belgium and France, also applied to have him extradited.
But Pinochet successfully used a mental illness argument to avoid extradition after his arrest for human rights violations while in London in 1999. Four doctors in Britain who examined General Pinochet for the Home Office, three physicians and a neuropyschologist, unanimously concluded that, following recent deterioration in the state of General Pinochet's heath, he was currently unfit to stand trial. British MPs and human rights campaigners were furious in January 2000 when the home secretary, Jack Straw, announced that he was “minded” to refuse to extradite the former Chilean dictator Augusto Pinochet to Spain on health grounds. Straw told MPs that the decision was backed by the “unequivocal and unanimous” conclusions of three eminent medical specialists and a neuro-psychologist that General Pinochet was “unfit to stand trial and that no change to that position can be expected.” Pinochet was allowed to return to Chile in March 2000 on health grounds.
Chile's judiciary struggled for years to deal with Pinochet's appalling human rights legacy, and judicial rulings on his fitness to stand trial had flipflopped to either side. Pinochet used the defence of mental illness and dementia successfully for seven years since the age of 82 to avoid standing trial in Chile to face allegations of human rights violations committed during his 17 year dictatorship. He was regularly hospitalised just before important court decisions concerning him. In July 2005 the Santiago Court of Appeal finally ruled that Pinochet was mentally competent to stand trial and ordered a criminal investigation into his role in the 1973 disappearance of two brothers in southern Chile, one of several cases pending against him. General Pinochet died in December 2006, leaving incomplete many court cases that had charged him with human rights violations.
In September 2009 Chilean police arrested some two dozen former officials accused of purging critics of former dictator General Augusto Pinochet in the 1970s. The arrests followed an order issued by Chilean judges to detain more than 100 former military and Dina secret police officials suspected in the political murders and kidnappings of hundreds of leftists and opposition activists during the Condor, Colombo and Street Conference military operations in 1974-1977.
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