The Condor Years (7 page)

For Pinochet’s trip to London, the ever solicitous Chilean Foreign Ministry provided the fledgling senator with a diplomatic passport, even though he was not engaged in any official business for the government. Within days, Amnesty International, with headquarters in London, was alerting its chapters around Europe of his presence and organizing protests in London.

But Joan Garcés, learning from the Chilean press of Pinochet’s presence, had another idea. There had been encouraging developments in both Spanish cases. Judge García-Castellón had issued a decree on September 15 reaffirming his court’s jurisdiction to investigate the crimes, a preliminary step to issuing an indictment. Garcés also joined Pinochet to the parallel Argentine case in the court of investigating Judge Baltasar Garzón, based on Pinochet’s participation in Operation Condor. In March, Garcés filed a criminal complaint in Garzón’s case with details about Condor, accusing Pinochet of crimes against Chileans who had disappeared in Argentina. The petition not only introduced Condor and Pinochet into Garzón’s case, it also contained a specific demand for Pinochet’s arrest. Mirroring the arguments Garcés had made in his 1996 filing, Garzón now was able to identify Pinochet as a participant in the Condor criminal conspiracy and thus a potential defendant in the Argentine investigation. As both courts neared the indictment stage, both now had a common target: Pinochet.

Garcés reasoned that the British government would not move against Pinochet on its own, but might be amenable to cooperating in the Spanish cases. Britain and Spain were signatories of a European extradition treaty that made extradition among European countries almost as easy as among states in
the United States. About the time Pinochet was having tea at Margaret Thatcher’s home in London, Garcés in Madrid was drafting the legal justification for Spain to ask British authorities to question Pinochet. The request, citing the pledge of international cooperation in the European Convention Against Terrorism, was issued by judges in both the Argentine and Chilean cases. Urgent telegrams transmitted the request—called “letters rogatory”—via Interpol to London’s Scotland Yard on Thursday October 15. The requests from the two judges to Scotland Yard were identical; that of Judge Garzón arrived first and was given precedence.

Meanwhile, reports surfaced that Pinochet had checked into an unnamed London hospital for routine surgery to repair a herniated disk in his back. The rogatory petition asked that Pinochet be questioned “when he recovers from surgery and that in the meantime British police should take whatever measures necessary to ensure that he does not leave the United Kingdom until the requested action has been completed.” When the pending request was made public, Garzón commented there was no question of trying to extradite Pinochet, only to submit written questions to him.

October 16, 1998, began as a normal Friday at the National Court in Madrid, a low-key prelude to a relaxing weekend. Joan Garcés arrived in late morning and spent more than an hour with Judge Garzón, discussing the case. Less than twenty-four hours had passed since the interrogation request had been transmitted to London and no developments were expected until the coming week. Garzón was glancing at his watch. He said he had plans to drive with his wife to Andalucía, to attend a bullfight. Garcés said his good-byes, wished the judge a pleasant weekend, and left around 2
P.M
.

A few minutes later, a fax from Scotland Yard was delivered to Garzón’s desk. The message acknowledged receipt of his petition to interrogate Pinochet, but also contained a warning and some unsolicited advice. Scotland Yard had located the hospital where Pinochet was being treated, and had been informed he was well enough to be discharged. An airplane was being readied to fly him back to Chile early the next morning. “We cannot guarantee that the senator will remain here during these proceedings. He is free to leave whenever he wishes,” the fax said, adding: “We will be able to hold him only if you decree an order for his arrest.”

Garzón’s dilemma was acute. An arrest order would include a request for Pinochet’s extradition to Spain for trial. Time had suddenly become a critical
factor. If he was to dictate an arrest order, it had to arrive in London in time to be executed before Pinochet got away. Garzón had to decide within a very few minutes what he was going to do, and without the benefit of consultations with anyone else involved in the case—Judge García-Castellón had already left the office.

Neither court case had as yet reached a formal indictment, although sufficient evidence had been gathered and it was within the judge’s discretion to act. But this was no ordinary criminal case. Judge Garzón was asserting jurisdiction over Pinochet on the grounds that Pinochet’s alleged crimes were against humanity as a whole, not just against the societies where the crimes were committed. Pinochet had been a head of state—a status that confers certain protections under international law. He was not a citizen of Spain. His alleged crimes had taken place neither in Britain nor in Spain.

A decision to order Pinochet’s arrest was clearly consistent with Garzón’s own prior decisions in the case. It would be a decision, however, that would be subjected to worldwide scrutiny of the kind few judges experience in their lifetime. To justify his actions, Garzón had to rely on legal foundations that floated in the nebula of unused and barely defined areas on international law. It would set new precedents of vast impact. If successful. A wrong decision would expose him to ridicule, even put his career at risk. Caution would dictate ignoring the late-arriving fax and letting fate take its course over the weekend.

Instead, Garzón looked at his watch again, opened the safe where the case files were kept, and sat down to write 720 words that were about to change history. In a world of legal documents often running hundreds of pages, Garzón’s arrest warrant was stark and showed the roughness of a hurried draft:

General charges weren’t enough. Garzón knew he had to include concrete cases. He quickly extracted details from Garcés’s March 1998 complaint on Condor. There were at least seventy-nine cases of Condor crimes, he stated in the warrant, and named one prominent victim, Edgardo Enríquez Espinosa, who disappeared April 10, 1976. It was a name Pinochet was sure to recognize. Enríquez had been the top leader of Chile’s most radical revolutionary group, MIR. His capture in Argentina in April 1976 was the culmination of Condor operations in Paraguay, France, Argentina, and Chile. In his haste, Garzón mistakenly wrote that Enríquez had been kidnapped in Chile and transported to Argentina, when in fact the reverse was true.

As important as the facts were the legal justifications. Promising to expand on the presentation later, Garzón stated that the facts presented constituted crimes of genocide and terrorism under the Spanish law designated as article 23.4, which established “Spanish jurisdiction as competent . . .” He therefore proceeded to charge Pinochet for the crimes of genocide and terrorism and to issue a warrant for his arrest and extradition.

Garzón printed out the order and gave a copy to the only staff member still in the office with instructions to fax it immediately to Interpol Madrid, which would transmit it to Interpol London.

Just before 11
P.M.
, Sergeant David Jones of Scotland Yard arrived at the London Clinic with a detective, a uniformed policeman, and an interpreter. In accordance with British custom, none of the policemen was armed. On the eighth floor, where Pinochet’s private room was located, they confronted a Chilean army captain who was in charge of Pinochet’s guards.

“You have to leave at once,” Jones said.

“I cannot leave my general,” the captain responded in Spanish. “I’m a Chilean military officer, and I only take orders from my superiors.”

“You can either leave nicely, or you can leave by force,” Jones said through the interpreter. One of the Chilean guards reached in his pocket. There was a moment of wide-eyed tension, which was diffused when it became clear the guard was pulling out nothing more threatening than a cell phone. The guards then mildly allowed themselves to be led outside the building.

A nurse entered Pinochet’s room to wake him and help him sit up in bed. The Scotland Yard officers waited a respectful quarter hour, then entered the room. Pinochet was alert and visibly angry. “Listen to what the sergeant is going to say,” the interpreter said. She translated the order of arrest “for the murder of Spanish citizens in Chile, within the jurisdiction of the government of Spain.”

Sergeant Jones read Pinochet his rights to counsel and to remain silent, but Pinochet was sputtering with rage. “I’m a head of state, I’m a diplomat, I’m not a criminal or a terrorist,” he said, in apparently genuine protest and surprise. Then came a flash of comprehension:

“I know who is behind this,” he growled to the interpreter, “that communist Garcés.”

The arrest was the opening act of a legal drama that would last for sixteen months, with advances and retreats on both sides. The British Court granted extradition in principle, then in March 2000 declared Pinochet to be of diminished mental and physical capacity. He was released to return to Chile. It was a technicality that many considered a thinly veiled deal worked out with the Chilean government. Nevertheless, through it all the legal principal of universal jurisdiction for crimes against humanity survived intact. Pinochet’s arrest was a revolutionary advance in international law not because it created new law; it didn’t. It was revolutionary because it was the first time the principles developed by the victors in World War II were used to prosecute an ally rather than an enemy of the countries bringing the charges. It was the case, arguably, that brought down the curtain on the Cold War, ending its role as spoiler in international human rights law.

On a world stage, the proceedings on Pinochet’s extradition were a total vindication of the Nuremberg principles. As military commander, Pinochet
was being held accountable for crimes against humanity committed by those under his command. He was denied the traditional shelter that heads of state and former heads of state had enjoyed from prosecution by other states. And Spain’s right to put Pinochet on trial was reaffirmed under the Nuremberg principle that his crimes—torture and terrorism—offended all humanity and therefore were subject to prosecution by any state anywhere.

The case broke the tacit agreement among nations that the Nuremberg principles were to be applied solely as “victors’ justice”—against the crimes committed by the losing side in a military struggle. Bringing such cases against sitting governments and their former officials was not only a diplomatic nightmare, it raised the specter of tit-for-tat retaliation against a country’s own officials—a danger that has colored the United States’ opposition to almost all such international prosecutions. For Latin America, where sitting military governments had negotiated transitions to democracy on the condition that they would not be held accountable for past crimes, the prosecution of Pinochet was perceived as an earthquake destabilizing the delicate balance of power with the military establishment.

Chile at the moment of Pinochet’s arrest was governed by the same coalition of leftist and centrist parties (including Allende’s Socialist Party) that had fought so hard against Pinochet. Yet the arrest of their old enemy brought consternation, not smiles. Chile’s ambassador in London rushed to Pinochet’s side, and within hours President Eduardo Frei Ruiz-Tagle protested the arrest, saying initially that Pinochet’s “diplomatic immunity” had been violated. That claim was swiftly swept aside by Britain (which pointed out that such immunity was a privilege reserved for accredited diplomats and members of government on official visits—not to anyone who happened to hold a diplomatic passport). Chile then centered its opposition on the very nationalist argument Nuremberg was designed to defeat: claiming that since the alleged crimes were committed in Chile, only Chile as a sovereign country had the right to try Pinochet.

Chile’s credibility was onion-skin thin on its pledge to bring Pinochet to justice in Chile, considering that Pinochet in recent years had twice used the threat of a new coup to force the government to back off its mild efforts to bring even his subordinates to trial. Chile’s position, its leaders said, was that Spain had no right to try Pinochet, and that he should be returned to Chile to allow the Chilean legal system to take its course.