DERIVADOS DE COBERTURA (DEUDORES Y ACREEDORES)

Augusto Pinochet Ugarte was arrested in London in October 1998, accused by Spanish judge Baltazar Garzón for crimes of genocide and torture. An eighteen-month long extradition process followed, ending with the decision not to extradite Pinochet to Spain because of medical reasons. Notwithstanding, the precedent was set: a former head of state was accused by the courts of another country of crimes committed during his time in power. This precedent provoked an effect worldwide that included Pinochet’s indictment in Chile in 2000 and 2004, the conviction by the Spanish National Court of former Argentinean officers in 2005, and a criminal investigation for acts of genocide against former military officials from Guatemala, including former president Efraín Ríos Montt.

The Pinochet case and its implications to transitional justice is discussed by Naomi Roht- Arriaza in The Pinochet Effect: Transnational Justice in the Age of Human Rights (2006). Roht- Arriaza, professor at the University of California Hastings College of Law, narrates the ordeal of relatives of victims of the dictatorship, lawyers, and human rights groups to finally bring Pinochet to face criminal charges. Her narrative also includes references to records. The criminal investigation against Gen. Pinochet included requests from Judges Garzón and García Castellón to the Clinton administration,176 _{asking for documentary evidence about Pinochet, which led to}

175 _{Caswell, “Khmer Rouge Archives,” 36} 176 _{Roht-Arriaza, The Pinochet Effect, p. 26}

the Chile Declassification Project. Also, the lawyers that presented the Argentine case used records of the Argentinean truth commission to build their case.177

In order to better understand what led to these events it is important to look at three main components. First, the accusations in Spain were based on the concept of universal jurisdiction. Roht-Arriaza explains,

Under this type of jurisdiction, the connection to the prosecuting state is not made through any particular connection of the state to the criminal event, but rather to the nature of the crime itself. Certain crimes are so universally agreed to be heinous, so potentially disruptive of international peace, and so difficult for any one state to adequately prosecute, that all states have the right to try anyone accused of them.178

The criminal complaints filed in the Spanish court are also based on a particular statute of Spanish law that allows the courts’ jurisdiction over cases involving non-Spaniards accused of crimes committed abroad. It was Carlos Castresana, a Spanish anti-corruption prosecutor, who first identified this statute to file a complaint against torturers in Argentina.179

The tireless work of NGOs, human rights groups, and individuals like Castresana is the second important component. Ellen Lutz and Kathryn Sikkink argue that this wave of trials, which they call the “justice cascade,” was “a result of the concerted efforts of small groups of activist lawyers who pioneered the strategies, developed the legal arguments, often recruited the plaintiffs and/or witnesses, marshaled the evidence, and persevered through years of legal challenges.”180 _{Roht-Arriaza underscores the close coordination and networking among these} groups to obtain and present evidence to the courts. “Sifting through the wealth of declassified U.S. government documents, or the reams of police files in the Archive of Terror in Paraguay, to

177 _{Roht-Arriaza, The Pinochet Effect, p. 16-17} 178 _{Roht-Arriaza, The Pinochet Effect, 7.} 179 _{Roht-Arriaza, The Pinochet Effect, 2.}

180 _{Ellen Lutz and Kathryn Sikkink, “The Justice Cascade: The Evolution and Impact of Foreign Human Rights}

find the nuggets that would fuel Operation Condor-linked prosecutions in numerous countries required a high degree of cross-border cooperation and coordination,”181 _{Roht-Arriaza states.}

The availability of documentary evidence provides the third important aspect to understand the Spanish trials. Lutz and Sikkink provide an excellent rationale:

Since the mid 1970s, human rights NGOs in Chile, Argentina, Guatemala, and elsewhere, to the extent their governments allowed them to operate at all, dedicated themselves to protesting and documenting human rights violations and ensuring that the evidence they uncovered was protected. This served multiple functions. It served as a clearinghouse of information that domestic attorneys could use when demanding information about the whereabouts of a disappeared person or seeking the release of a political prisoner. It preserved a record that could one day be used to hold perpetrators accountable and ensure that history was accurately recorded.182

Other scholars echo this explanation. Human rights lawyer Reed Brody affirms that the case against Augusto Pinochet did not start in London in 1998, but rather soon after the 1973 coup d’tat that brought the General into power, when human rights activists and organizations started to document every single case of human rights abuse carried out by the military regime.183 Brody also cites Roberto Garretón, who was Legal Director of the Vicaría de la Solidaridad (Vicariate of Solidarity) in Chile,184 _{who states that, “while we did not know it at the time, the} painstaking work of documentation we did then is now being used – 25 years later – to bring Pinochet to justice.”185 _{Prominent Chilean writer Ariel Dorfman also accentuates the significance}

181 _{Roht-Arriaza, The Pinochet Effect, 211} 182 _{Roht-Arriaza, The Pinochet Effect, 8}

183 _{Reed Brody, “The Case of Augusto Pinochet,” in Reed Brody and Michael Ratner, eds., The Pinochet Papers:}

The Case of Augusto Pinochet in Spain and Britain (The Hague; Boston: Kluwer Law International, 2000), 8.

184 _{The Vicaría de la Solidaridad was founded in 1976 and served under the umbrella of the Chilean Catholic}

Church. During its existence, the Vicariate not only offered legal support and social assistance to the victims, but also created a valuable documentation of their investigations about the disappeared and about human rights violations by the dictatorship. Following the transition to democracy, the Catholic Church decided to close the Vicariate and in 1992 created the Fundación de Documentación y Archivo de la Vicaría de la Solidaridad. The archive is considered the main repository about repression during the Pinochet years, with over 85,000 judicial documents as evidence of the over 45,000 persons that received attention from the Vicaría.

of the archives of the Vicaría de la Solidaridad. In his reflections of the Pinochet case in London, Dorfman acknowledges the archive of the Vicaría.

Without those archives, there would have been no lawsuits against Pinochet, no detailed charges by the relatives, no Truth and Reconciliation Commission or Report, no material for the lawyers abroad to quote from, no articles by journalists telling Chile’s story, no trial and, of course, no book like this one.186

National Security Archive Senior Analyst Kate Doyle, writing about her testimony during the trial of Alberto Fujimori in Peru and during Spain’s National Court investigation of the Guatemala Genocide, also points to the importance of records as evidence.187 _{She explains that} after the arrest of Pinochet in London, courts in Latin America increasingly started to implement their own trials for past human rights violations and faced the challenge of obtaining documentary evidence. Declassified records provided by the National Security Archive were critical. Doyle also points to the discovery of hidden archives in Latin America.

Judicial procedures over human rights abuses have also taken place in the United States, not because of universal jurisdiction, but because of a one-sentence provision from the 1789 Judiciary Act. This statute, known as the Alien Tort Claims Act (ATCA) or the Alien Tort Statute (ATS), states that, “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”188 _{Peter Henner underscores that this provision is just jurisdictional.}189 _{Indeed, litigations} filed under this act do not lead to a criminal sentence but rather to monetary compensation. The

186 _{Ariel Dorfman, Exorcising Terror: The Incredible Unending Trial of General Augusto Pinochet (New York:}

Seven Stories Press, 2002), 210.

187 _{Kate Doyle, “Un Testimonio Inédito de Kate Doyle, del National Security Archive. Por Qué Testifiqué Contra}

Dos Dictadores: Fujimori y Ríos Montt,” Emequis (September 28, 2009): 19-26.

188 _{Alien’s Action for Tort, U.S. Code 28, § 1350.}

http://www4.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001350----000-.html (Accessed April 9, 2010)

189 _{Peter Henner, Human Rights and the Alien Tort Statute: Law, History and Analysis (Chicago: American Bar}

first instance where the ATS was used for a case of human rights violations was in 1980, with Filártiga v. Peña-Irala,190 _{with the number of cases considerably growing since the year 2000.}191

The precedent of Filártiga v Peña-Irala opened the doors for human rights cases in the U.S. courts. Jeffrey Davis, assistant professor at the University of Maryland-Baltimore County Department of Political Science, examines this wave of court cases in his book Justice Across Borders: The Struggle for Human Rights in U.S. Courts (2008). Like Roth-Arriaza in The Pinochet Effect, Davis recognizes the tireless efforts of NGOs in the struggle for accountability as one of the main reasons for achieving justice through the courts. The work of this human rights groups, Davis explains, have been “absolutely indispensable” in the successful use of the ATS, and that this success is driven by the groups’ capacity for mobilization and networking.192 One of the NGOs more predominantly discussed by Davis is the Center for Justice of Accountability (CJA), who has received assistance from the National Security Archive in multiple cases.

Although briefly, Davis also addresses issues related to records. In his explanation of the importance of networks in the human rights movement, he describes the challenges of gathering sufficient evidence for the case. He quotes Matthew Eisenbrandt, Litigation Director for CJA, who talks about the difficult, and usually ineffective, use of the Freedom of Information Act to obtain documentary evidence. Eisenbrandt mentions the case against a participant of the

190 _{The complaint was filed by the Center for Constitutional Rights in New York on behalf of the family of Joelito}

Filártiga, kidnapped and murdered by the Paraguayan Police in 1976, during the dictatorship of Alfredo Stroessner. Norberto Peña-Irala, then inspector general of the police in Asunción, was responsible for Joelito’s dead. Joelito’s sister, Dolly, was living in the United States late in the 1970s and learned that Peña was illegally living in New York. She decided to pursue legal action against Peña. For an account of this case see Henner, Human Rights and

the Alien Tort Statute, p. 51-57, and Jeffrey Davis, Justice Across Borders: The Struggle for Human Rights in U.S. Courts (Cambridge: Cambridge University Press, 2008), 17-22.

191 _{Henner, Human Rights and the Alien Tort Statute, 2.} 192 _{Davis, Justice Across Borders, 51.}

assassination of Monsignor Oscar Romero in El Salvador in 1980,193 _{where they received} declassified records long after the case was filed, documents that were “absolutely irrelevant.”194 Davis also echoes the argument from transitional justice scholars, discussed above, that view these legal proceedings as an opportunity to create a historical record.195 _{Lawyers and plaintiffs} usually see these legal cases as an opportunity to finally tell their stories, and be heard.