chiletortureaninternationalcrime.pdf

CHILE

TORTURE: AN INTERNATIONAL CRIME

Even one torture victim is one too many

On 24 March 1999, the United Kingdom (UK) House of Lords ruled that former General

Augusto Pinochet can be extradited only for the crimes of torture and conspiracy to torture

alleged to have been committed after 8 December 1988, the date on which the Convention

against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UN

Convention against Torture) became binding on the UK, Spain and Chile.

Although the House of Lords judgment clearly stated that during the government of General

Augusto Pinochet (1973-1990) "appalling acts of barbarism were committed in Chile and

elsewhere in the world: torture, murder and the unexplained disappearance of individuals all on

a large scale", the majority of the charges were eliminated. The House of Lords held that

crimes other than torture and conspiracy to torture, included in the Spanish extradition request

were either not extraditable offences, that the description of the conduct did not satisfy the

requirements of English law or the crimes were not crimes under international law.

The panel of seven Law Lords ruled, by a majority of six to one, that Augusto Pinochet was not

entitled to state immunity on torture charges. Three Lords placed the loss of his immunity at the

date of the UK ratification of the UN Convention against Torture, 8 December 1988, one at 29

September 1988, when internal UK legislation came into force and two Law Lords held that

the former general was "never at any stage entitled to immunity".

The Law Lords confirmed that a former head of state cannot show that to commit an

international crime is to perform a function which international law protects by giving immunity.

The six Law Lords agreed on the principle that torture is an international crime over which

international law and the parties to the UN Convention against Torture have given universal

jurisdiction to all courts wherever the torture occurs. Indeed, even one case of torture would be

sufficient to permit extradition to a state able and willing to try the person accused.

In their ruling, the Law Lords indicated that the UK Home Secretary, Jack Straw, can therefore,

if he thinks fit, permit the extradition proceedings against Augusto Pinochet to continue on the

reduced number of charges. On 29 March 1999, the Home Secretary invited all interested

parties to make representations by 7 April 1999 concerning whether he should renew his

authority to the UK courts to proceed to consider the extradition request by Spain in the light of

the ruling by the Law Lords. He said that he would reach a decision by 15 April 1999.

Eight cases of victims of torture after 29 September 1988 are included in the current extradition

request filed by the Spanish judge, Baltasar Garzón. The eight cases are recorded in the reports

of the Chilean official bodies, the National Commission on Truth and Reconciliation ( Comisión

Amnesty International 7 April 1999

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CHILE: TORTURE: AN INTERNATIONAL CRIME - Even one torture victim is one too many

Nacional de Verdad y Reconciliación) and the National Corporation for Reparation and

Reconciliation ( Corporación Nacional de Reparación y Reconciliación ) 1 . In each case the

relevant body has concluded that the person had been a victim of human rights violations.

The cases include:

Marcos Quezada Yañez , a 17-year-old student who was active in the Pro-Democracy Party

( Partido por la Democracia ). He was arrested on 24 June 1989 in the town of Curacautín, IX

Region, by members of Carabineros , uniformed police, and taken to a police checkpoint. A few

hours later he died. According to the autopsy report he died as a result of "shock, probably from

an electric current". In rejecting the official report that he had committed suicide, the National

Commission on Truth and Reconciliation, taking into account the evidence gathered, was

convinced that Marcos Quezada Yañez had died as a result of torture applied by government

agents in violation of his human rights.

On 21 October 1988, Cecilia Magni Camino and Raúl Pellegrin Friedmann led an attack

by a group of the armed opposition group “Manuel Rodríguez Patriotic Front" ( Frente Patriótico

Manuel Rodríguez ) in the village of Los Queñes in southern Chile. As a result, a police

corporal was killed. The bodies of Cecilia Magni Camino and Raúl Pellegrin Friedmann were

found on 28 and 31 October 1988 respectively. According to the autopsy reports both bodies had

injuries from blunt instruments and showed marks of electric shocks. The cause of death of Raúl

Pellegrini was given as asphyxiation by being under water. The National Commission reached

the conclusion that they were caught while fleeing and were tortured and executed by

government agents.

According to a witness, Wilson Fernando Valdebenito Juica was arrested in the town of

Cabildo, V Region, on 15 December 1988 by members of Investigaciones, civilian police.

Witnesses indicated that he belonged to a left-wing group which was trying to reorganize miners.

His body was found hours later near the locality of Molinas. His right hand was tied with an

electric cable which was tied around his waist. According to the autopsy report, he died as a

result of extensive burns to his body. The conclusion was that his death was due to contact with

high electric current. The Corporation for Reparation and Reconciliation concluded that he died

1 Following the return to civilian rule in 1990, two bodies were created in succession to gather

information that would help clarify the truth about “disappearances”, extrajudicial executions and

deaths resulting from torture by Chilean state agents. The National Truth and Reconciliation

Commission ( Comisión Nacional de Verdad y Reconciliación ) was created by Supreme Decree No.

355, signed on 25 April 1990. As recommended by the National Truth and Reconciliation Commission,

legislation was submitted to Congress creating a successor body. The Corporation for Reparation and

Reconciliation ( Corporación de Reparación y Reconciliación ) was established under Law 19.123 on

February 1992. The combined findings of the two bodies recorded a total of 3,197 cases of human

rights violations that were officially recognized by the state.

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Amnesty International 7 April 1999

CHILE: TORTURE: AN INTERNATIONAL CRIME - Even one torture victim is one too many

as a direct result of torture committed by government agents. It therefore concluded that he had

been a victim of human rights violations by government agents.

On 26 March 1999, the Spanish Judge, Baltasar Garzón, supplemented the extradition request

by adding 42 additional cases of victims of torture or conspiracy to torture after 29 September

1988. The additional information includes at least 29 victims allegedly tortured after 8 December

1988.

A State Policy to Torture

In Chile the repressive policy of the state, initiated by the military coup d’état of 11 September

1973, continued until 1990. This is clearly established in the Addendum submitted in November

1990 by Chile to the initial report to the UN Committee against Torture 2 : “This policy was

characterized by very serious forms of human rights violations: executions without trial;

executions following trials in which due process was not guaranteed; mass arrests of persons

who were taken to concentration camps where they were subjected to very degrading conditions

of detention and many of whom "disappeared"; widespread torture and ill-treatment[ ...]. This

is the context in which the use of torture and other cruel, inhuman or degrading treatment or

punishment was situated during the previous regime."

Torture was a policy used during the entire period of military government to instill widespread

fear in the population and to eliminate real or alleged opposition. The Addendum states that

although torture was used throughout “the entire term of office of the previous government”

the practice of torture underwent a number of phases. By 1983, in reaction to national protest,

this practice was directed towards public intimidation and extracting information as a matter of

priority.

During this phase, the Addendum establishes, “torture normally continued to be carried out by

the Central Nacional de Informaciones (CNI), National Information Agency, in their secret

places of detention, while cruel treatment was practised primarily by Carabineros, although

CNI officials and to a lesser extent the Police Department and the Army also took part.”

The consolidation of power in the hands of the military government facilitated the “systematic

use of arbitrary detention and torture by the security forces”. The continued practice of such

repressive policy was extended until the end of the military government. This is also the

2 U.N. Doc. CAT/C/7/Add.9, 16 November 1990. The Addendum contains additional

information requested by the UN Committee against Torture at its third session at the end of the

consideration of the initial report of Chile on 23 November 1989, U.N. Docs. CAT/C/SR.40 and 41.

Amnesty International 7 April 1999

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CHILE: TORTURE: AN INTERNATIONAL CRIME - Even one torture victim is one too many

conclusion reached by Judge Baltasar Garzón in his supplement on 26 March 1999 to the current

extradition request.

Ratification of the Convention against Torture and reports of torture

Amnesty International had long been concerned that in spite of the Chile’s ratification of the UN

Convention against Torture in September 1988, testimonies received by the organization showed

that torture continued in the last months of 1988. The information received at the time and

published in an Amnesty International document 3 indicated that most of the detainees were held

by Carabineros or members of Investigaciones , but that the CNI, which had been responsible

for most cases of torture in previous years, could have been involved in the interrogation and

torture. The cases reported showed that certain forms of torture, associated with the early

years of the military government, were still being used, such as the practice of attacking victims

with police dogs.

The 1988 cases highlighted in Amnesty International’s document included:

José Luis Donoso Cáceres, who in his testimony described the torture to which he was

subjected. He was arrested on 26 October 1988 together with another man, Jose Antonio

Ugarte González , in the area known as Las Peñas by members of the Special Operations

Group, of the Carabineros (Grupo de Operaciones Especiales de Carabineros) . José Luis

Donoso Cáceres said they were beaten, handcuffed, thrown to the ground and kicked. He said

that when he did not provide the information asked for by his interrogators, they set specially

trained dogs to bite him, inflicting multiple wounds to his arms, legs and upper part of the body.

The two men were ordered into a vehicle where the interrogation continued. José Luis Donoso

Cáceres was subsequently ordered out of the vehicle and made to take his shoes off. He was

made to walk the rest of the way up a hill barefoot, while being punched, hit with the butts of

guns and bitten by a dog. His head was repeatedly submerged in a stream until he nearly

suffocated. His eyes were poked and his head stuck into a beehive.

The two men were accused of carrying out an attack on a police post in the village of Los

Queñes and charged under the Arms Control Law. They were held 35 days incommunicado

after which time they were given access to their lawyers and relatives.

In another testimony, Luis Carlos Godoy Cortes , who was arrested in the town of Talca, VII

Region, on 3 October 1998 and charged under the Arms Control Law, provides details of the

treatment to which he was subjected. He said that he was beaten, handcuffed and had his head

covered with a hood. He was pushed into a vehicle and taken to a place he could not identify.

3 See: Chile: Reports of torture continue (AI Index: AMR 22/07/89), February 1989.

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Amnesty International 7 April 1999

CHILE: TORTURE: AN INTERNATIONAL CRIME - Even one torture victim is one too many

He was warned not to shout, otherwise he would be killed. He was put on to a metal frame

( parrilla ) with his hands and feet tied to it. Electric current was applied all over his body,

particularly to his genitals and head.

Continuing torture: more than 1,000 cases of “disappearance”

In his supplement to the extradition request, Judge Baltasar Garzón included the record of 1,198

victims of torture which has been continuing since 8 December 1988: the 1,198 people who

remain “disappeared” without any resolution of their fate.

It is now settled law, not only that forced disappearances on a widespread or systematic basis

are crimes against humanity, as the United Kingdom recently recognized when it signed the

Rome Statute for an International Criminal Court, Article 7 of which gives the Court jurisdiction

over forced disappearances as crimes against humanity, but also that forced disappearances

constitute severe pain or suffering amounting to torture, both for the families of the

“disappeared” person and the victim, as long as the “disappearance” remains unresolved. This

emerging consensus has been recognized by the United Nations Special Rapporteur on torture,

Sir Nigel Rodley ( The Treatment of Prisoners under International Law (Oxford: Clarendon

Press 2d ed. 1999), p. 261).

Each of the 1,198 still unresolved cases of “disappearance” in the current extradition request

continue to inflict such severe pain or suffering until the fate of the “disappeared” is resolved

by the “reappearance” of the person, those responsible acknowledge the facts, an independent

and impartial body resolves the fate of the victim or the body of the person is found. Article 17

(1) of the United Nations Declaration on the Protection of All Persons from Enforced

Disappearance (United Nations Declaration), adopted by the United Nations General Assembly

in Resolution 47/133 of 18 December 1992, states: “Acts constituting enforced disappearance

shall be considered a continuing offence as long as the perpetrators continue to conceal the fate

and the whereabouts of persons who have disappeared and these facts remain unclarified”.

Similarly, Article III of the Inter-American Convention on the Forced Disappearance of Persons,

ratified by Chile, states that the offence of forced disappearance “shall be deemed continuous

or permanent as long as the fate or whereabouts of the victim has not been determined”.

An enforced disappearance constitutes torture for the families of the “disappeared”. Article 1

(2) of the United Nations Declaration states:

“Any act of enforced disappearance . . . inflicts severe suffering on them and their

families. It constitutes a violation of the rules of international law guaranteeing, inter

alia , . . . the right not to be subjected to torture and other cruel, inhuman or degrading

treatment or punishment”. The Human Rights Committee concluded with regard to the

Amnesty International 7 April 1999

AI Index: AMR 22/10/99

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