The Strong Case for Extradition

In the suspenseful hours before the British House of Lords delivered its historic judgment on the immunity of Chile’s Gen. Augusto Pinochet, I found myself driving slowly past the Navy Mechanics School in Buenos Aires. In a city of beautiful buildings, it is one of the most handsome and imposing. With its clipped hedges, whitewashed walls and ornamental trees, it is an image of martial elegance akin to Annapolis or West Point. It is no one’s idea of what a torture chamber would look like. But that is what it was.

Truly terrible things happened here. The ESMA, as it is known, was the main detention and torture center used by the Argentine military during the years of terror known as el proceso, from 1976-1983. Pregnant women were among those who came here after being snatched from their homes in the dead of night by armed men in unmarked Ford Falcon cars. At the ESMA, the women gave birth to their babies. Afterward, the mothers were incinerated or thrown alive out of helicopters into the Atlantic Ocean. The infants were given to childless military families, to receive what the generals liked to call a “Christian upbringing.”

Argentina is now caught up in a remarkable debate over the fate of the ESMA: Demolish it and destroy all that it symbolizes, or preserve it as a monument to evil? More remarkable still, on the day before the Lords announced their verdict on Pinochet, the man who commanded the ESMA, retired Adm. Emilio Massera, was arrested on criminal charges of abducting a child--the infant son of Cecilia Vinas and Hugo Reynaldo Penino, a young couple that vanished into the darkness of the ESMA in September 1977. The abduction of minors was not included in the general amnesty that was granted to Argentina’s former military leaders in 1990. Nor was DNA testing an established science at that point. But it was DNA evidence that recently produced the positive identification of Vinas’ son, who is now 21.

The most satisfying aspect of the Massera case is that he will be brought to justice in his own country, not on foreign soil. Admittedly, dark forces still inhabit the shadows in Argentina. Human rights advocates are still snatched off the street and beaten up--the latest just two weeks ago. Judges are still suborned and threatened. But Massera’s trial, as well as that of his fellow junta member, Gen. Jorge Videla, seems likely to go forward in Argentine courts. Like the debate over the future of the ESMA, these trials are an essential step toward healing Argentina’s wounds and strengthening its democratic institutions.

But what of Chile’s wounds, and what of Pinochet? After the House of Lords’ ruling, the Chilean government maneuvered furiously to secure the return of the senator for life to Santiago. Foreign Minister Jose Miguel Insulza tried to persuade British Home Secretary Jack Straw and the Spanish authorities that Pinochet should be brought to justice at home, not abroad, and that a domestic trial was indeed a realistic option.

The possibility that Pinochet will stand trial in Chile is one of two questions that now weigh heavily on Straw’s mind as he contemplates his final decision on extradition, due Friday. The second is the nature of Britain’s obligations under international law. Pinochet is charged with torture, committed on such a widespread and systematic basis that it constitutes a crime against humanity--a crime under both domestic and international law and a crime of universal jurisdiction. States therefore have not only an interest in seeing the crime investigated and punished--they have a legal obligation to ensure that this happens. That obligation became binding on Britain in 1988, when it ratified the U.N. Convention Against Torture. This treaty is not yet as widely known as it should be, but it has an enormous potential role to play in the future enforcement of international human rights law.

International enforcement should come into play only when national legal systems are unable, or unwilling, to take action themselves to punish crimes against humanity. This is a core principle of the new International Criminal Court, which Britain has supported vigorously. So again the question comes back to Straw. Is Chile willing and able to prosecute? The answer, categorically, must be no.

Even as Insulza was delivering his seductive message in London and Madrid, the leadership of his own party was writing to European leaders to tell them that the idea of Pinochet being brought to trial in Chile was sheer fantasy. The obstacles are simply too great. First, there is the blanket amnesty that Pinochet’s military granted itself in 1978; second, the presumptive immunity that he enjoys as senator for life; and third, the failure of the Chilean government to create a judicial system that could promise a trial before an independent civilian court.

If Pinochet is returned to Chile under these conditions, Britain will be in breach of its duty under international law. Straw’s decision should therefore be a straightforward one. He should approve Pinochet’s extradition. The general’s victims would celebrate that decision, rightly, as a huge step forward for international law--even though their joy might be tinged with the chagrin of knowing that Argentina, whose military rulers were every bit as barbaric as Pinochet, has actually moved further along the road to becoming a functioning democratic society.