|No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.|
On September 11, 1973, the armed forces led by General Pinochet overthrew the left-wing government of President Salvador Allende Gossens in a ruthlessly executed coup, in the aftermath of which more than a thousand people died. President Allende shot himself after the Chilean air force bombed the presidential palace where he was holding out with his personal bodyguards and a small group of advisors. Imposing a state of siege across the country, the military junta, presided over by Pinochet, hunted down members and sympathizers of the Allende government, especially members of the Socialist Party, the Communist Party, and the extreme-left Movement of the Revolutionary Left (the "Movimiento de la Izquierda Revolucionaria," or " MIR.")
Most of the repression was carried out by a new entity, the Directorate of National Intelligence (the "Dirección de Inteligencia Nacional" or "DINA,") which first emerged in October 1973. This body, headed by Pinochet's former pupil, Army Col. Manuel Contreras Sepúlveda, accrued enormous power, largely supplanting the intelligence branches of the armed forces, until it was dissolved in 1977. The DINA was formally subordinate to the military junta but in practice responded solely to the orders of General Pinochet. Contreras initiated and coordinated a plan of cooperation between the DINA in Chile and parallel military intelligence agencies in Argentina, Uruguay, Paraguay, Bolivia, and Brazil. The plan's purpose was to trade prisoners and intelligence in an effort to eliminate left-wing opposition activity in the participating countries, as well as to monitor the activities of exiles in the United States and Europe.
The plan, which included the surveillance, "disappearance," and assassination of political targets, went by the code-name "Operation Condor." Documents found in the archives of the Paraguayan police intelligence services following the fall of dictator Gen. Alfredo Stroessner in February 1989 confirmed the extent of this coordination. Chilean and Argentinean state agents were responsible for the abduction in Argentina and "disappearance" in both countries of scores of Chileans seeking to escape the repression in Chile. The DINA conspired with anti-Castro Cuban terrorists and Italian neo-Fascists to murder prominent Chilean opposition leaders in exile. On September 30, 1974, Gen. Carlos Prats, Pinochet's predecessor as army commander-in-chief, and his wife Sofía Cuthbert, were killed by a car bomb in Buenos Aires. A year later, on October 6, 1975, Christian Democrat leader Bernardo Leighton and his wife Anita Fresno were gravely wounded in a shooting attack in Rome by a DINA-contracted Italian terrorist. The most notorious crime committed as part of Operation Condor was the September 21, 1976 car-bomb assassination in Washington D.C. that claimed the lives of Allende's former foreign minister, Orlando Letelier, and U.S. citizen Ronni Moffitt.
There were 3,197 victims of executions, "disappearance," and killings from 1973 to 1990, according to the Rettig Commission and its successor, the National Corporation of Reparation and Reconciliation. Government agents secretly disposed of more than 1,000 of these victims presumably after their torture and murder. Except in 178 cases, the fate or burial places of the "disappeared" remains unknown to this day. General Pinochet suppressed members of the Chilean armed forces who opposed the growing power of the DINA and its notoriously abusive behavior and called for an early return to democracy. In addition to extrajudicial executions, disappearances, and torture, Pinochet's regime was also responsible for widespread arbitrary detention, lack of due process, exile and internal banishment of government opponents, and other systematic violations of civil and political rights.
The Spanish Action
In 1996, Spain's Progressive Association of Prosecutors (the "Unión Progresista de Fiscales") filed complaints of genocide, terrorism, torture, murder, and other charges against the military juntas that ruled Argentina from 1976 to 1983 and against General Pinochet and other members of the military junta in Chile. Although the case initially focused on the murder or disappearance of people of Spanish nationality, both in Argentina and in Chile, it expanded to include thousands of crimes of kidnapping and murder committed during Argentina's so-called "dirty war" and Chile's military dictatorship. These events were linked by the criminal conspiracy Operation Condor, involving both countries, as well as their Southern Cone neighbors, in the secret detention and murder of political dissidents.
Torture has been a crime in Spain since 1978 and is prohibited under articles 173 and 174 of the penal code. In addition, Spain has ratified the International Covenant on Civil and Political Rights ("ICCPR") and the Convention against Torture. The Penal Chamber of the Audiencia Nacional has jurisdiction to try certain serious crimes committed outside its territory. These include genocide, terrorism, piracy and the hijacking of airplanes, forgery of foreign currency, prostitution, and drug trafficking. In addition, international treaties Spain has ratified, such as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment allow it to prosecute nationals of another country for acts committed outside Spain.
The Audienca Nacional argued briefly that torture was subsumed as an accessory crime to genocide and that if the court's jurisdiction on genocide were established, the investigation and judgment of torture was ipso facto included. However, torture, evidently considered of lesser significance by the Spanish judges, was to occupy center stage when the Pinochet case reached the House of Lords.
Peter Danchin, Columbia University