The Pinochet Decision: `If Pinochet is not in Chile I will have to go to wherever he happens to be'

Isabel Hilton, a Latin American expert, looks at the judge seeking justice in Chile for the 3,000 `disappeared'

THE NEWS that General Augusto Pinochet is to face extradition proceedings was received with comparative calm by his supporters in Santiago. The proceedings risk being lengthy and the general's lawyers will continue to fight in the hope that the Home Secretary, Jack Straw, might still exercise the option of expelling him to Chile.

It is not just the Pinochet supporters who will continue to campaign for the general's return. The Chilean government, despite its political differences with the former dictator, has argued, belatedly, that he can and should face trial in his own country. Yesterday, it signalled its disappointment by withdrawing the Chilean ambassador from London.

But the decision was also likely to be a disappointment to Judge Jaime Guzman, the man who, since the beginning of this year, has been pursuing his own judicial action against the general in Chile.

Ten days ago, Judge Guzman was supervising the excavation of a cemetery in Copiapo, in Chile's northern desert, looking for the remains of three men executed illegally by the Chilean army in October 1973. "To prosecute someone for homicide in Chile," he explained, "you have to find the body, even if someone has confessed." In this case, confession is unlikely.

Judge Guzman is one of Chile's senior judges and sits on its court of appeal. As he explained, in his temporary office in the Copiapo police station, his assignment to a case such as this is an admission that a more junior figure might be intimidated by the importance of the person under investigation.

There is much to be intimidated by: Until earlier this year, such a prosecution would have been unthinkable. Under the many provisions in Chile's constitutional arrangements that General Pinochet crafted to cover his departure from power was his grip of the armed forces, relinquished only in March. Once he had stepped down from that role, he assumed a lifetime seat in the Senate, a perpetual affront to his democratic opposition.

General Pinochet's continuing power protected him, but until the intervention of Judge Guzman the threat was, in any case, minimal.

Under General Pinochet's dictatorship, Chile's judges had played an undistinguished role. Many came from the wealthy families that had cheered as the tanks began to roll in September 1973. They were deaf to the entreaties of the growing numbers of distressed relatives who tried to present writs for habeus corpus for loved ones who had vanished in the night. Those judges who might have been inclined to be bold quickly realised the risks involved.

Even after 1989, when General Pinochet was no longer president, the judges hardly rushed to glory. They concluded that the amnesty law passed by Pinochet in 1979 meant that it was not worth even investigating any cases since no conviction could possibly result.

If a judge did take a case, he did not have it long before the military judges demanded the files, claiming that any case involving a military officer came under their jurisdiction.

Had it not been for the efforts of the Catholic Church's Vicaria de la Solidaridad, even the sketchy truths that are recorded about the fate of the more than 3,000 disappeared might have been lost. It was there, in an office by the cathedral in Santiago, that human rights lawyers listened patiently to the relatives, documented cases, collected evidence and presented useless writs to the courts.

Judge Guzman, as he admits, was no better than the rest of Chile's judges. "I was happy to archive cases that fell under the amnesty," he said. "You had to be heroic in those days to take those cases and most judges were not heroic."

When the dictatorship ended, there were symbolic gestures to the festering question of the disappearances. The new government set up a commission to investigate and a report was published, based largely on the Vicaria's files, but with the names of the guilty purged. A memorial was built to the disappeared in recognition that they had once existed, despite the claims of the dictatorship that those missing were an invention of the Left.

But Chile's new democracy did not offer justice, except to let the families continue to shout at the deaf ears of the judges.

Then, suddenly, Jaime Guzman Tapia became the exception to this rule. There was little in his record to suggest that heroism would finally claim him. Judge Guzman, too, had grown up in the life of culture and privilege of the Chilean upper middle classes. He had pursued a judicial career under the dictatorship, first in the provinces, then, after the 1973 coup, in the criminal courts of the capital. He was promoted to his present position in 1989, just as Chile's dictatorship ended, the reward for a man who had known where duty to justice ended and prudence began.

But in January, to the astonishment and delight of human rights lawyers, Judge Guzman agreed to pursue a case brought by the general secretary of the Communist Party, Gladys Marin, over the disappearance of her husband, Onofre Munoz, in 1973. It was the first time a Chilean judge had taken such a case.

Others rushed forward and now Judge Guzman has a portfolio of 11 cases on which to pursue charges against General Pinochet of complicity in multiple homicide, kidnapping, illicit association, illegal burial and illegal expropriation of property.

These cases led him to the graveyard in Copiapo. Most of them concern the torture and murder of prisoners in what is known as "the convoy of death".

Between 5 October and 19 October 1973, on the orders of General Pinochet, an army general, Arrellano Starck, was sent on a tour of northern Chile to ensure that local army commanders were prosecuting their mission to exterminate potential opposition with sufficient zeal. Wherever Starck's helicopter convoy touched down, prisoners were taken out of jail, tortured and murdered.

When Starck's authority was challenged, he showed his written orders - signed by the commander in chief of the army, Augusto Pinochet.

By the time Starck's helicopter returned to Santiago, 72 men were dead. One of them was Ricardo Garcia, manager of a copper mine. In 1973, when the army occupied the mine after the coup, there was no resistance, but Mr Garcia was arrested nonetheless.

Days later his wife, Rolly Baltiansky, was told to go to Copiapo cemetery to identify his body. She was never allowed to see it. The coffins of her husband and two trade union leaders presumed to have died with him disappeared while she was told by army officers to go and buy flowers.

The workers at the cemetery were also told to leave. When they returned, they noticed a freshly dug patch of earth. They said nothing about it for nearly 25 years. Now, on the basis of their nervous recollection, the search for the evidence of those murders has begun. Since they began to testify, each has received anonymous threats.

It is easy to understand why Ms Baltiansky wants to find her husband's remains. Most of all, she says, she just wants to give him a proper grave.

It is possible, too, that when Judge Guzman opened this case, he had in mind little more than the humanitarian gesture of returning the remains of their loved ones to those who have searched for them so long. But since General Pinochet's arrest in London, there are altogether bigger stakes at play.

Until General Pinochet's arrest, those who insisted on looking for the remains of the victims of his dictatorship were not popular in Chile: Rummaging through cemeteries was an unwelcome reminder of a past Chileans had been told to forget.

But now, a reluctant Chilean government has been forced to offer that implicit bargain to the international community - if the Spanish courts can yet be cheated of their prize, General Pinochet can and will be tried in Chile.

Judge Guzman argues that case with conviction. Now that the attention of the world is on the unresolved crimes of the dictatorship, he feels these cases offer a chance to rehabilitate the tarnished reputation of a judiciary in which he has spent his working life. "Our justice," he said, "used to be honest and good. This is an opportunity to demonstrate that justice is possible in Chile, even if the law impedes it."

He has already taken evidence from an impressive list of henchman and, when the moment comes, he insists that, if he has found the evidence, he will formally charge General Pinochet and demand that he present himself in court.

But now, the judge had been cheated of his prize. Under Judge Guzman's timetable, he planned to interrogate General Pinochet later this month or early in the new year. He insists that he will not be deterred by the actions of international justice. "If General Pinochet is not in Chile," he said, "I shall simply have to go to wherever he happens to be."

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