The Progressive ResponseVolume 3, Number 3
Editor: Tom Barry (IRC)
Table of ContentsTHE PINOCHET PRECEDENT WAR IN THE CONGO
THE PINOCHET PRECEDENT
On October 16, 1998, former Chilean dictator Augusto Pinochet was arrested in London on an international arrest warrant issued by a Spanish judge and accused of crimes against humanity including genocide, torture and terrorism. Pinochet was charged with responsibility for the killing of at least 4000 people before, during, and after the 1973 coup by which he came to power in Chile, and for Operation Condor, a secret police conspiracy to murder people in Argentina, the U.S., Spain, Italy, and elsewhere. The House of Lords is determining whether or not Pinochet's extradition can go forward. Spain requested that Pinochet be extradited to face trial, and extradition requests to the United Kingdom from other countries quickly followed: France and Switzerland wanted Pinochet as well. Chile objected strongly. The U.S. did not support Spain's action. While claiming neutrality, Clinton administration officials have clearly tilted toward Chile; according to the British press, Secretary Albright has lobbied the Blair government to return Pinochet to Chile. In response to Spain's request for classified U.S. documents related to the Pinochet case, it has submitted no useful documents. The State Department did admit that the Operation Condor murders in Washington D.C. of the Chilean Orlando Letelier and the American Ronni Karpen Moffitt merited "special attention." Nonetheless, Secretary of State Madeleine Albright said that Chile's opposition to Pinochet's extradition deserved "significant respect." Principle of Universal Jurisdiction The principle of international law underlying Pinochet's arrest by Spain is based on what is termed universal jurisdiction; under it national courts can try individuals for genocide, crimes against humanity, and war crimes, even if these acts took place outside the prosecuting country. Perpetrators of such crimes are considered, much like pirates of old, as hostis humanis generis, enemies of all humankind, who can be brought to justice wherever found. The exercise of such jurisdiction is recognized under international law and by U.S. courts. Chile and other critics of the arrest, however, condemned Spain's attempt to extradite and prosecute Pinochet, saying that it interfered with national sovereignty. Underlying this objection is the notion that the courts of one state cannot adjudicate the legitimacy of the political acts of another state within that other state's borders. Pinochet argued that as a former head of state, he was immune from prosecution and that as a "senator for life"--a title granted by the government in exchange for his leaving office--he was protected from arrest in England by diplomatic immunity. Human rights lawyers and many international law experts believe these objections are unfounded. The various international law doctrines that shield officials from suits in foreign courts do not protect those who engage in gross violations of human rights. And under international law, a former head of state has no immunity for crimes against humanity committed as a head of state. Nor does the title "senator for life" entitle its holder to diplomatic immunity; only accredited diplomats receive such protection. Chile's objections would be stronger if any efforts had or could be made in Chile to bring Pinochet to justice. But there is no possibility that Pinochet will be prosecuted in Chile, where he has been amnestied for the majority of his crimes and is immune from prosecution under Chilean law. Political Objections The other objections to Pinochet's arrest are more political than legal. The U.S. is reluctant to allow international examination of its own role in the destabilization of Chile, its support for Pinochet's coup, and the CIA's close relationship to the Chilean secret police during Operation Condor. It fears, furthermore, that opening up Pinochet to prosecution would "destabilize" Chile, and argues that countries making a "transition to democracy" must be able to guarantee immunity from prosecution to human rights offenders in order to move forward. Finally, the precedent set by a Pinochet trial could make it possible for former U.S. officials responsible for crimes against humanity to be arrested and tried in another country. These political objections are not convincing. Concern about its own reputation should not lead the U.S. to cover up crimes against humanity. Pinochet's arrest did not destabilize Chile, and national political concerns do not override the international duty to prosecute genocide. And crimes against humanity by American officials deserve prosecution as much as crimes committed by nationals of any country--even though, practically speaking, it is very unlikely that any country would risk prosecuting any U.S. official because of U.S. influence and power. Some criticisms have also been heard from the left. Noam Chomsky and others make the point that leaders of powerful nations will never allow their officials to be subjected to arrest and trial. They are right. It is very unlikely that any country would arrest a high level U.S. official. But there is an important aspect to the precedent that these critics may be missing: for the first time a means is available for prosecuting human rights violators that is free from U.S. control through its veto at the United Nations. This is why the U.S. is opposed to the precedent; it could provide a means for bringing to justice, if not U.S. officials, dictators and collaborators supported by the United States. What is true is that Pinochet's arrest may make justice more likely and provide a precedent for the prosecution of other major human rights violators--even if they, like Pinochet, were at one time aided and abetted by the United States. U.S. Weakens Quest for International Justice The U.S. reluctance to support efforts to prosecute Pinochet weakens the quest for international justice. It ignores murders carried out in the U.S., disregards the killing of U.S. citizens, and undermines the principles of accountability for crimes against humanity. The 1976 Washington, D.C. car-bomb murder of Orlando Letelier and his colleague at the Institute for Policy Studies, Ronni Karpen Moffitt, by agents of Chile's secret police was a terrorist act. To prosecute murders on American soil, no claim of universal jurisdiction need be invoked, just simple criminal law. Yet despite released documents suggesting Pinochet's involvement in the case, the U.S. has failed to actively investigate this murder, provide further documents that would shed more light on it, or request Pinochet's extradition from England. Nor has the U.S. vigorously investigated the murders of two U.S. citizens, Charles Horman and Frank Teruggi, Jr., killed in Chile in the immediate aftermath of the coup; and it has ignored the illegal detention and torture of other Americans. The U.S. has denied Spanish requests for documents relevant to their cases. This denial is despite the language of the Intelligence Authorization Act of 1998 which directs the Secretary of State to provide "information regarding the killing, abduction, [and] torture..." of American citizens abroad to their families. Spain has also made a formal request to the U.S. under the bilateral Mutual Legal Assistance Treaty (MLAT) for documents relating to Pinochet and Operation Condor. By releasing only worthless documents and failing to provide those that are believed to contain very important evidence against Pinochet, the U.S. is damaging efforts to bring him to justice. The problems with U.S. policy go beyond the Pinochet case. They are exacerbated by the U.S. opposition to the treaty establishing the International Criminal Court ( ICC) because it could not veto the initiation of prosecutions and feared that U.S. soldiers would be subject to the court's jurisdiction. The U.S. has repeatedly seemed to reject any system of international justice it cannot unilaterally control. It does not want its officials, its soldiers, or its allies subject to prosecution. It does not want the crimes of past U.S. administrations laid bare. Avoiding Responsibility for Its Crimes By avoiding responsibility for its own crimes, the U.S. insures that there will be no independent accountability for abuses that may be committed by its officials in the future. Those answerable for the Phoenix program which murdered tens of thousand in Vietnam, for aiding and abetting terror in Latin America, and for supporting the invasion of East Timor will never face justice. American officials will continue to be able to act with impunity. U.S. reluctance to expose its own abuses is demonstrated by its recent proposal to establish an international tribunal to prosecute crimes committed by the Khmer Rouge in Cambodia. The U.S. has requested that charges be limited to crimes committed between 1975 and 1979, subsequent to its carpet bombing of Cambodia and before the U.S. began collaborating with the Khmer Rouge. At the same time, however, the U.S. seeks to invoke international law to prosecute its enemies and claims that fighting terrorism is a cornerstone of its foreign policy. This double standard is demonstrated by the case of the extradition from Italy to Turkey of Abdallah Ocalan, a leader of the Kurdish Workers Party. In contrast to its failure to support the extradition of Pinochet, the State Department announced that Ocalan "should be extradited and brought to justice... We have no doubt this man is a terrorist, and he, therefore, should receive no safe haven." Serious problems arise from these attitudes. Not only do they make it difficult for the U.S. to condemn other countries' gross violations of human rights, they undercut the legitimacy of tribunals supported by the U.S., such as the International Tribunal on the Former Yugoslavia. If the U.S. will not prosecute its own citizens or its allies for crimes against humanity, the prosecution of other international crimes will remain inevitably mired in charges of hypocrisy and political expedience. Toward A New Foreign Policy on International Criminals The arrest and requested extradition of Pinochet was a watershed moment in the struggle for the protection of international human rights. The exercise by Spain of universal jurisdiction over Pinochet is the culmination of a fifty year march that began at Nuremberg to ensure that persons suspected of committing crimes against humanity can be brought to justice by any country. The U.S. failure to support the Pinochet prosecution sets back this advancement and seriously damages its professed commitment to principles of accountability and justice and its stated concern with countering international terrorism. A new policy with regard to the Pinochet case can remedy these problems and restore, in part, U.S. credibility. The required policy changes are straightforward and have been supported by the families of those tortured and killed by Pinochet, including the relatives of Orlando Letelier and the three murdered U.S. citizens. The U.S. should: (1) support publicly and privately Pinochet's extradition to Spain; (2) release all documents regarding the crimes of the Pinochet regime, even those that might implicate the U.S.; (3) reopen and vigorously pursue the investigation of Pinochet's involvement in the Letleier-Moffitt killings and in the disappearance and murder of Charles Hormon and Frank Teruggi, Jr. and uncover its own role, if any, in those murders; and (4) initiate its own extradition proceedings against Pinochet for the murders of Letelier and Moffitt. Publicly and privately supporting Pinochet's extradition to Spain would represent a major advance in the fight to bring international criminals to justice. It would demonstrate that the U.S. can apply justice impartially, even against a dictator it once supported. It would enhance the likelihood that in the future, when the U.S. addresses human rights issues it will be listened to not simply as the world's only superpower, but as a genuine moral voice as well, one that holds itself and others accountable. The U.S. has made a small step in the right direction with the recent announcement that it has undertaken a search of documents related to Pinochet's crimes and will begin a declassification process. But it has not yet committed itself to releasing all relevant documents fully and expeditiously. One example of the potential importance of documents held by the U.S. comes from a U.S. military attache's report demonstrating Pinochet's control over the secret police (DINA) and its terrorist activities: "[S]ince the promulgation of Decree Law No. 521, officially establishing DINA as the national intelligence arm of the government, Colonel CONTRERAS has reported exclusively to, and received orders only from President Pinochet." Colonel Contreras, the head of DINA, was convicted of directing the Letelier-Moffitt murders. Documents like these show that it is time for an impartial, ambassador-level official to be placed in charge of disclosures to ensure that there is no cover-up. The U.S. has successfully prosecuted those who detonated the bomb that murdered Letelier and Moffitt, and it has forced the jailing of the head of the Chilean Secret Police for the crime. But Pinochet, despite the strong evidence against him, was never indicted for his role in the murders. It is time for this to happen. And it is time to get to the bottom of the murders of Horman and Teruggi. Finally, the U.S. should demand Pinochet's extradition from England, or from Spain if he is tried there, or from Chile if he is allowed to return there. Even without invoking universal jurisdiction, the U.S. has the right and the obligation under basic criminal law to bring Pinochet to trial for murders committed on American soil. It will take more than lip service to the prosecution of Pinochet for real changes to occur in U. S. policy. As long as the U.S. holds its officials above prosecution, and does not allow international prosecution of crimes against humanity committed by itself or its allies, the case of Pinochet will not bring justice in a broader sense. Real change will come when the U.S. stops aiding and abetting those who commit crimes against humanity and adheres to its United Nations treaty obligations to employ force only when authorized by the Security Council. These are long term goals that are not easily achievable, but support for the extradition and prosecution of Pinochet can begin to open a new and much-needed chapter in U.S. foreign policy. Sources for More Information on PinochetAmnesty International, USA Center for Justice and Accountability Chile Committee for Justice Human Rights Watch Institute for Policy Studies Lawyers Committee For Human Rights NGO Coalition for an International Criminal Court
WAR IN THE CONGO
The bloody war in the Democratic Republic of the Congo, the largest nation in Central Africa, is in one sense a civil war and in another sense an invasion. As in 1997, Congolese seeking to overthrow the leader in Kinshasa (Mobutu Sese Seko, then, and now Laurent Kabila) are backed by Rwanda and Uganda. The second war is dangerous not only to the survival of the Congolese state but also to peace throughout the region because of the unprecedented scale of outside intervention. Combatants supporting Kabila's Congo government include the armed forces of Angola, Zimbabwe, Namibia and Chad. On the opposing side is an alliance of Rwanda, Uganda, and Congolese opponents of Kabila. Burundi apparently participates as an ally of Rwanda and Uganda. There have been reports of Sudanese aid to Kabila, in the form of bombing raids on Kisangani and other northern towns. Libya reportedly has aided Kabila and in particular has supported the Chadian troops. Long before the fall of Mobutu, his regime had been undermined by a powerful internal movement for democratic reform that emerged in 1990. Because of his resistance to reform, Mobutu faced declining support after 1990 from his main external backers, the U.S., France, and Belgium. Disappointing many early backers, Kabila ignored the internal political opposition. He established a dictatorship, relying heavily on a small group of fellow Katangans. Arbitrary arrests and incitement to ethnic violence against Tutsis were common in the first months of the war, although they have recently lessened in response to international criticism. Kabila now promises a rapid return to political parties and elections. The Congo Democracy Movement (CDM, as the rebels call themselves) does not represent a plausible alternative to Kabila. Violence against civilians is common in rebel-held zones. Progressive intellectuals such as the historian and CDM leader Ernest Wamba dia Wamba have little in common either with the soldiers--Rwandan, Ugandan, or Congolese, who represent the real force of the movement--or with the Mobutist politicians, beyond a dislike of Kabila. In the event of a rebel victory, it is hard to see how Wamba could avoid being pushed aside by military men or by rival civilians with closer ties to the soldiers. Problems with Current U.S. Policy The United States claims to seek a peaceful resolution of the conflict, but its policy, past and present, is part of the problem. The U.S. supported Mobutu's dictatorship for more than 30 years before backing his overthrow by Kabila. However, Washington's support for Kabila was subordinated to its relationship with Rwanda and Uganda. In 1998, the U.S. apparently accepted the assurances of its allies that Kabila could be overthrown quickly and easily. In fact, the insurgents were at the gates of Kinshasa before being turned back by Kabila's forces and their Angolan, Zimbabwean, and Namibian allies. American policy in Congo is in a shambles. Drawing Libya into the conflict and legitimizing the participation of Hutu forces of the former Rwandan regime cannot be intended results. American policy contributed to the present impasse, in which casualties are high, especially among civilians, and neither side is able to win. Possible outcomes include an east-west partition of Congo or even its collapse into a welter of warlord states. The United States is handicapped by its prior involvement in Congo politics, beginning with independence in 1960. It is associated, factually and in Congolese minds, with the murder of Prime Minister Patrice Lumumba and with the installation and maintenance in power of the kleptocrat Mobutu Sese Seko. This problem is reinforced by U.S. backing for the regimes of Yoweri Museveni in Uganda and Paul Kagame in Rwanda. Whatever the real extent of American involvement in the invasions/insurrections of 1996-97 and 1998 in Congo, many Central Africans believe that the U.S. either initiated or encouraged these events and continues to back the rebels. Thus, when Assistant Secretary of State Susan Rice declares Rwanda's acknowledgment that it has troops in Congo to be an important step toward peace, this declaration is greeted with derision. Likewise, her attempt to persuade Angola and Zimbabwe to withdraw their troops is seen as absurdly one-sided. One of the constants of U.S. policy during the Mobutu regime (along with cold war anticommunism) was the maintenance of the territorial integrity of the huge, centrally located Congolese state. For that reason, the U.S. was less inclined than Belgium, Britain, or France to support the Katanga secession. However, partition of Congo into two or more successor states seems a likely outcome of the currently stalemated war. Although Rwanda and Uganda might be pleased with such an outcome, the two successor regimes would be weak. Kabila's regime excludes too many important political forces based in Kinshasa and western Congo to be stable, while the insurgents are unpopular with the majority of the population of the eastern region, who correctly perceive them as violent and Tutsi-dominated. Another problem has been Washington's inconsistent promotion of democracy in Africa, which has been an avowed objective of American foreign policy, at least since 1990. The U.S. entered into an informal alliance with France and Belgium (the so-called troika) to pressure the Congolese dictator Mobutu to open his political system. This policy was successful for a time; a combination of internal and external pressures led Mobutu to allow the convening of a national conference in which various parties and citizen groups were represented, and to accept a prime minister designated by the conference. But Washington and its partners were inconsistent in their support for democratization and for Etienne Tshisekedi, the prime minister designated by the conference. The troika collapsed in 1993 when French President Mitterand broke the diplomatic boycott and met with Mobutu at the Francophone summit in Mauritius. More consistent support for the process of democratization in Congo could have hastened the transition from dictatorship and obviated the invasion of 1996-97 that brought Kabila to power. Even today, while Washington preaches democracy and peace, there is widespread suspicion that its main objective is to create stable conditions for U.S.-led economic investment, trade, and development. President Clinton's policy as reflected in the Africa Growth and Opportunity Act, which calls for increased U.S. trade and investment with Africa, is questionable. Even if it is in the long-term interests of both the U.S. and the states of Central Africa, this policy is irrelevant in the short term. Peace will have to be established and infrastructure rebuilt before it is time for "trade, not aid." Considerable aid will be needed, starting with international peacekeepers along Congo's borders with Uganda, Rwanda, and Burundi. If there is a general principle demonstrated by the present foreign policy disaster in Central Africa, beyond the desirability of avoiding simplistic formulas such as "new Africans," it surely is that unilateral non-African involvement in African affairs is self-defeating. The United States and France each has demonstrated that point in recent years, at the cost of many Central African lives. The U.S. should participate in peacekeeping, conflict resolution, and the promotion of democracy mainly through multilateral structures, preferably the United Nations in collaboration with the Organization of African Unity. France should be encouraged to do likewise. (Thomas Turner <thomas.turner@planet.tn>, professor of political science at the law faculty of the University of Tunis III, is the coauthor of Rise and Decline of the Zairian State and author of Racines de Lumumba.) Sources for More Information on the CongoAfrica Faith and Justice Network Africa Policy Information Center All North America Conference on Congo (ANACCO) Association of Concerned Africa Scholars Harvard Human Rights Program Human Rights Watch/Africa Info-Congo/Kinshasa International Crisis Group UN OCHA Africa News Online All North America Conference on Congo (ANACCO) Congo Democracy Movement Democratic Republic of Congo Forces of Freedom in Democratic Republic of Congo Harvard Human Rights Program Marek Inc. One World News--Congo R e l i e f W e b PublicationsNzongola-Ntalaja, Georges. The Crisis in the Great Lakes Region. Speech prepared for delivery at African Renaissance Conference, Johannesburg, 28-29 September 1998. Available from Africa Policy Information Center at: http://www.africapolicy.org/ Reno, William. "Sovereignty and Personal Rule in Zaire." African Studies Quarterly (electronic journal, Gainesville) I (1 1997). Available at: http://www.clas.ufl.edu/africa/asq/ Turner, Thomas. "Kabila Returns, in a Cloud of Uncertainty." African Studies Quarterly (electronic journal, Gainesville) I (1 1997). Available at: http://www.clas.ufl.edu/africa/asq/
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