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Rethinking pacts : dealing with Pinochet in an altered world Burnside, Ross 2001

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R E T H I N K I N G P A C T S DEALING WITH PINOCHET IN AN ALTERED WORLD by R O S S B U R N S I D E M.A. , The U n i v e r s i t y o f G l a sgow, 1999 A T H E S I S S U B M I T T E D IN P A R T I A L F U L F I L M E N T O F T H E R E Q U I R E M E N T S F O R T H E D E G R E E O F M A S T E R O F A R T S i n T H E F A C U L T Y O F G R A D U A T E S T U D I E S ( D E P A R T M E N T O F P O L I T I C A L S C I E N C E ) W e accept this thesis as conforming to the required standard T H E U N I V E R S I T Y O F B R I T I S H C O L U M B I A August 2001 © R o s s Burnside, 2001 U B C Specia l Co l lect ions - Thesis Author i sat ion F o r m Page 1 o f 1 In presenting t h i s t h e s i s i n p a r t i a l f u l f i l m e n t of the requirements f o r an advanced degree at the U n i v e r s i t y of B r i t i s h Columbia, I agree that the L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r reference and-study. I f u r t h e r agree that permission f o r extensive copying of t h i s t h e s i s f o r s c h o l a r l y purposes may be granted by the head of my department or by h i s or her r e p r e s e n t a t i v e s . I t i s understood that copying or p u b l i c a t i o n of t h i s t h e s i s f o r f i n a n c i a l gain s h a l l not be allowed without my w r i t t e n permission. Department of The U n i v e r s i t y of B r i t i s h Columbia Vancouver, Canada http://www.library.ubc.ca/spcoll/thesauth.html 8/29/00 ABSTRACT Since the midd le o f the 1980s a scholarly consensus has bui l t up around the purportedly pos it ive role that " pac t s " can play in La t in Ame r i c an democratic transitions. It has been contended that pacts, although an undemocratic route to democracy, may w e l l u lt imately have a posit ive role in establishing a democracy, and prov ide a pos it ive mode l for other countries in the region to emulate. Today, however, there are signs that attitudes towards these pacted transitions may be changing. In recent years, pacts in Venezuela, Co l omb ia , and Ch i l e have col lapsed or unraveled as a consequence o f changing domestic and international condit ions. The situation that has been left i n the wake o f these alterations suggests the legacy o f the pacted democratic transit ion type may not be as impressive as was once thought. Observat ion o f the current situation in these nations unvei ls a str ik ingly different picture than was painted in the in i t ia l literature on them. Far f rom pacts being benef ic ia l to the future development o f stable and effective democracy, what can be seen most clearly i n these instances is a background o f impunity, corruption, lack o f accountabi l i ty or responsiveness, and the distortion o f the most basic features o f polyarchy, a l l overshadowing a procedural democratic foreground. Th i s study argues that the scholarship on "pac t s " has some important f laws, yet has largely gone unchallenged. It also argues that some quite fundamental change has been, and is going on in the wor l d today, and this change can have a cruc ia l impact on domestic institutions. Comb in i n g these two ideas w i th empi r ica l analysis f r om contemporary Ch i l e and the Pinochet saga, I contend that it is t ime to r e t h i n k the consensus that seems to have bui lt up around the not ion o f pacts i n La t i n Amer i c a . C O N T E N T S A B S T R A C T C O N T E N T S A C K N O W L E D G E M E N T S C H A P T E R 1: INTRODUCTION Defining Democracy C H A P T E R 2: PACTS Logic of Pacts Importance of Pacts Pacts in Latin America Flaws within the Literature Conclusion C H A P T E R 3: T H E C H I L E A N E X P E R I E N C E The 1980 Chilean Constitution Signs of Conflict in Chile Conclusion C H A P T E R 4: C H A N G E S IN T H E I N T E R N A T I O N A L C O N T E X T : T H E P I N O C H E T SAGA AND T H E C O L L A P S E O F P A C T S Pinochet in International Context The Arrest of Pinochet National Implications and Lessons of the Pinochet Case International Implications and Lessons of the Pinochet Case Transition in Peru - Lessons from Pinochet? Regional Conditionality C H A P T E R 5: C O N C L U S I O N - RETHINKING P A C T S R E F E R E N C E S Websites Newspapers and Magazines A C K N O W L E D G E M E N T S T h a n k - y o u M a x Cameron prov ided wonderfu l support and guidance. H i s endless enthusiasm is an inspiration. Ded i ca ted To who I owe what I value most: Irene, Gordon, and Gre ig Burnside. For love, support and editor ial assistance: Jessie Sohal. CHAPTER 1: INTRODUCTION In 1970, Dankwart Rustow began his seminal article on "Trans i t ions to Democ ra c y " 1 w i th the f o l l ow ing question: " W h a t conditions make democracy poss ible and what condit ions make it th r i ve ? " (1970, 337) In seeking an answer to this, most scholars in the last two decades, in contrast to the previous generation o f academics, 2 have focused on the interests and values o f elites in try ing to understand variations i n states' democract ic stabil ity. 3 Indeed the literature that emerged in response to La t in Amer i c an democrat ic transitions f rom the late 1970s to early 1990s emphasised the importance o f " sett lements " and " pac t s " designed to protect the core elites in the previous authoritarian regime. 4 " A pact can be def ined as an expl ic i t , but not always pub l i c l y expl icated or jus t i f ied, ' Rustow's article established a groundbreaking perspective in which democratisation was a dynamic process of change. He believed that the literature on the causes and conditions of democracy conflated the two and argued that: "the factors that keep a democracy stable may not be the ones that brought it into existence; explanations of democracy must distinguish between function and genesis." B y arguing this, Rustow opened possibilities for considering democratic transitions separately from democracy. He argued that the factors that brought democracy into existence were a variety of economic and cultural predispositions mixed with contingent developments and individual choice. His rejection of the then consensus over "preconditions" for democracy, like wealth and literacy, cleared the path for work that considered the potential for democracy in countries with little chance of meeting so called democratic "preconditions" in the near future. Rustow's work left open the "possibility o f democracies (properly so called) in premodern, prenationalist times and at low levels of economic development." 2 The initial post Wor ld War II literature studied the relationship between political culture and democracy (Almond and Verba 1963, Dahl 1966), placing emphasis on the role of social values in maintaining democracy. For example, Almond and Verba make the case that stable democacy is a consequence of a social consensus over a certain set o f values - what they termed the "civic culture" (1963, chapters 1, 13). Barry reversed the logic o f Almond and Verba by arguing that democracy is not created by, but creates a set o f consensual social values (1970, 48-52). 3 The most notable studies of elite roles in transitions have come from O'Donnel l and Schmitter 1986, K a r l 1990, Przeworski 1991, and Higley and Gunther 1992. Although these works differ in that O 'Donne l l , Schmitter, Kar l and Przeworski talk of "elite pacts", while Gunther and Higley talk of "elite settlements", when discussing the pact literature I include them in the same group - it appears to me that "elite settlements" are a type of transitional pact. The differences between the concepts o f elite settlements and elite pacts w i l l be addressed later in this study. Not all contemporary scholars, however, have emphasised elites. Putnam's (1993) influential study argued for a return to the study of values with far less attention to elite behaviour. 4 There is debate in the literature over what separates an "elite settlement" from an "elite pact". I consider "elite settlements" (Higley and Gunther 1992) to be a type of political pact, albeit the broadest type of political pact in that it is inclusive of all or almost all significant elites. 1 agreement among a select set o f actors wh i ch seeks to define (or, better, to redefine) rules governing the exercise o f power on the basis o f mutual guarantees for the ' v i t a l interests ' o f those entering into i t " ( O ' D o n n e l l and Schmitter 1986, part IV, 37). " The e l i t e " whose " v i t a l interests" the pact is designed to protect are largely defined i n the literature as the people who are able, through their positions in powerfu l organisations, to affect national po l i t i ca l outcomes regularly and seriously. " E l i t e s thus constitute a nat ion ' s top leadership i n a l l sectors - po l i t i ca l , governmental, business, trade union, mi l i tary, media, rel igious, and intel lectual - inc lud ing both 'establ ishment ' and ' counterel i te ' fact ions " (Burton and H i g l e y 1987, 296). A national elite cou ld be said to include " a l l those persons capable, i f they wish, o f mak ing substantial po l i t i ca l trouble for h igh of f ic ia l s (i.e., other elite persons who happen to be incumbents o f authoritative posit ions) without being promptly repressed" (F ie ld and H i g l ey 1973, 8). Emerg ing f rom the consensus over the expediency o f el ite- led pacts was the idea that transitions to democracy wou l d be inherently conservative. Transit ions f r om authoritarian rule wou l d be constrained by the need to accommodate elite groups, p rov id ing them w i th the confidence that their interests wou ld not be touched by the democrat izat ion process. Undoubtedly pacts, wh i ch are usually contingent on prov id ing wide-ranging amnesties to the previous regime, have amounted to considerable constraints on democratic consol idation. Indeed, work on transitions has recognised this. Scholars have agreed that pacts made by elites may be "undemocrat ic means " (Hagopian 1990, K a r H 9 8 6 ) o f achiev ing democracy, but may we l l be necessary and, ult imately, benef ic ia l to the success o f democracy. Thus, in the La t in Amer i c an context, the Pact of Punto Fijo (1958) i n Venezuela, Co l omb i a ' s National Front pact (1958), and the more 2 implicit pact negotiated by the Pinochet regime in Chile in 1988-9, have been viewed favourably and offered as evidence to explain the relative durability and greater robustness of democracy in cases where pacts have been formed. 5 I should make clear that I use the word "implicit" to describe Chile 's pact as a way to differentiate it from the more "explicit" pacts of Venezuela and Colombia. The pacts to occur in Venezuela and Colombia produced documentation outlining the strict terms and conditions of the agreement between elites. Written agreements made the pact explicit and committed elite factions publicly to the concessions and guarantees they had made privately. In both nations, the problems and conflicts of the recent past were very much in mind. The pact in Chile was more implicit in that it was a negotiation process that did not produce any kind of written agreement. Rather, the negotiation among the elites occurred within the confines of the constitution written by the Pinochet regime in 1980 and was intended to be a mechanism for forgiving and forgetting the brutality of the recent past. Today, however, there are signs that attitudes toward these "pacted" transitions, both explicit and implicit, may be changing. In recent years, pacts in Venezuela, Colombia and Chile have collapsed or unraveled as a consequence of changing domestic and international conditions. The situation that has been left in the wake of these alterations suggests that the legacy of the "pacted" democratic transition type is not 5 See O 'Donne l l and Schmitter (1986), part 4, 45. Here it is argued that in Venezuela and Colombia where pacts have occurred, the "social costs" have not been as bad as in places where pacts did not take place. The "transitions in the contemporary scene" [of 1986] "- those of Peru, Bol iv ia , Ecuador, the Dominican Republic, and Argentina - are characterized by the absence of political (and economic) pacts. The least that can be said in those cases is that the prospects o f consolidation of their democratic regimes looks less encouraging." The Chilean transition in the late 1980s was also hailed as a paradigm for other countries to emulate. Gerardo Munck praised Chile 's rapid growth towards democratic consolidation, claiming that Chile "has undoubtedly made greater strides toward democratic consolidation than any other country in Latin Amer ica" (1994, 1). See, also, Tulchin and Varas (1991), O 'Donnel l (1994, 64, 68). 3 nearly as impress ive as was once thought. Observat ion o f the current situation i n each o f these nations unvei ls a str ik ingly different picture than was painted i n the in i t ia l literature on them. Far f rom pacts being benef ic ia l to the future development o f stable and effective democracy, what can be seen most clearly in these instances is a background o f impunity, corruption, lack o f accountabi l ity or responsiveness, and the distortion o f the most basic features o f polyarchy, a l l overshadowing a procedural democratic foreground. In 1998 Hugo Chavez was able to successful ly run for the presidency in Venezue la on a p lat form that promised to abol ish the po l i t i ca l arrangements o f the Pact of Punto Fijo6 Chavez vo iced frustrations w i th a pact that had decayed into a corrupt and exc lus ive f o rm o f "partyarchy. " 7 The irony o f this is that Chavez has successful ly attacked a system that for the better part o f four decades la id foundations for a stable democracy that was a source o f pride for many Venezuelans. Since elected president, Chavez has ca l led a succession o f elections, inc lud ing most recently, "mega-elect ions, " new elections for every off ice in the country, in order to " re - leg i t imate " his rule. He used his power to convene a constituent assembly, enabl ing h i m to rewrite the nat ion ' s constitution and remove the clause deeming the mi l i tary to be a non-del iberative institution. These events have further strengthened the power o f the presidency (and the mi l i tary) leading many observers to vo ice concerns that there may be very few checks and balances remain ing in Venezue la ' s once stable democratic government (See M c C o y 6 The Pact of Punto Fijo was signed by the two major political parties, the Acc ion Democratica ( A D ) and the Christian Democrats (COPE1) and agreed to exclude the Communists and share power and patronage between the two parties. Although by no means perfect, the flaws in Venezuela's democracy seemed slight when compared to the brutal repression that was taking place in much of Latin America in the two decades following the Cuban Revolution of 1959. 7 Michae l Coppedge defines "partyarchy" as existing when parties control most aspects o f the democratic process. He argues that Venezuela "is probably the most extreme case of a pathological kind o f political control that 1 call partyarchy. If democracy is government o f the people, by the people, for the people, then partyarchy is government o f the people, by the parties, for the parties" (1994, 2). 4 1999, Cameron and Ma jo r 2001). The direction in wh i ch Chavez is leading Venezue la raises questions that pact theorists d id not consider: namely, the democracy to emerge in nations where pacts occur may be o f poor quality. Pacts may create condit ions that contribute to widespread disenchantment w i t h the " democra t i c " regime - ferti le ground for manipu lat ion and further distort ion o f polyarchy by popul ist autocrats l i ke Chavez. S imi la r l y , Co l omb i a ' s National Front pact appears to have decayed as the country falls into an abyss o f ungovernabi l i ty and c i v i l war. Jonathan Hart lyn and John Dugas (1999) have even suggested that the exc lus ion o f certain po l i t i ca l groups in the Nat iona l Front has exacerbated the problems the nation has had, and continues to have, w i th strong and v io lent non-state actors. Bas ic state structures and c i v i l rights continue to be chal lenged by mult i faceted v io lence f rom left w i n g guerril las, drug traff ickers, state security forces and right w ing paramil itary groups. State weakness is manifested i n po l i t i ca l v io lence and human rights v iolat ions carried out by non-state actors (some in col laborat ion w i t h state agents) on one hand, and, on the other, widespread c r im ina l v io lence carr ied out w i th more or less impunity. Thus, Co l omb ian governments have confronted a g rowing challenge f rom various directions. The largest and most important oppos it ion group has been the peasant-based Fuerzas Armadas Revoluc ionar ias de Q C o l o m b i a ( F A R C ) w i th its strong l inks to the Commun i s t Party - a po l i t i ca l party that was exc luded f rom Co lombia ' s Nat iona l Front democracy (Hart lyn and Dugas 1999). The current po l i t i ca l tu rmoi l in C o l o m b i a reflects the d i f f i cu l ty in mov ing beyond a constraining and h igh ly exclusionary pact that left out several interested groups. 8 Officially formed in 1964, F A R C and many of its leaders evolved politically during and after la violencia - a decade, preceding the 1958 pact, o f primarily rural fighting that left 200,000 dead. For a history of F A R C , see Molano (2000). Molano argues that the roots of F A R C are sunk deep in the issue of class and peasant exclusion from elite group domination of power levers in Colombia. 5 Add i t i ona l l y , there is Ch i l e - the case w i th wh i ch this study is p r imar i l y concerned. The October 1998 arrest o f Augusto Pinochet in London has ruptured the pact made between the c i v i l i an grouping o f the Concertacion de Partidos por La Democratic? and the previous authoritarian regime as Ch i l e made its transit ion to democracy in the late 1980s. When Pinochet returned to his homeland on 3 M a r c h 2000, after his arrest in Br i ta in , he returned to a country where courts were beginning to avo id the 1978 Amnes ty Law, wh i ch had previously, due to the negotiated pact , 1 0 prevented the tr ial o f those accused o f human rights abuses. H i s arrest created a " po l i t i c a l moment " where long-buried issues regarding the country ' s brutal past cou ld now be addressed. Yet, the arrest also highl ighted the f laws o f the Ch i lean pacted transit ion and the strong enclaves o f authoritarian power st i l l i n place. Today, pact mentalit ies remain pervasive among Ch i l ean po l i t i c ians , 1 1 and undemocratic elements that P inochet ' s regime enshrined in the 1980 Const i tut ion endure, g iv ing Ch i l e one o f the strongest and most " u n c h e c k e d " 1 2 presidencies in La t in Amer i ca . A s indicated by the polar izat ion o f Ch i l e in the y Although 16 different parties originally constituted the Concertacion, the dominant parties were the Christian Democrat Party ( P D C , Partido Democratica Cristiano), the Socialist Party (PS, Partido Socialista), the Radical Party (PR, Partido Radical), and the newly formed Party for Democracy (PPD, Partido por la Democracia). 1 0 Despite Chile undergoing a transition to democracy with the election of Patricio A y l w i n in 1990, the transition occurred within the confines of a negotiation process in which those who had ruled under the dictatorship would continue to have their interests "protected". Because Chilean democrats were unable to bring about a complete ruptura democratica, they chose to attempt to democratise within the confines of the fundamentally undemocratic constitution set up by the Pinochet dictatorship in 1980. 1 1 Witness the reaction of the Frei Government to the arrest o f Pinochet in Britain. They were opposed to the arrest in part because this was a violation o f the immunity Pinochet had negotiated v ia the pact. Questions o f sovereignty aside, there was never any question of the government's defense o f Pinochet, because the rules o f the pact called for such a response. Those who opposed the government's position were deemed to be breaking the pact. For an excellent portrayal of "pact mentalities" that were evident among Chilean politicians in the wake of the arrest, and in the lead up to the December 1999 Presidential election, see Moulian (1999). 1 2 The Chilean President has extraordinary legislative powers. Shugart and Mainwaring (1997, see especially the introduction and conclusion) rank the Chilean president highest in Latin America when it comes to legislative prerogatives. The work of Shugart and Mainwaring points to a strong correlation between presidential strength in the legislative arena and problems of democratic government and efficacy. It is weaker presidential systems that have had more success in sustaining democracy. 6 aftermath of Pinochet's arrest, Chile remains a country bitterly divided over its past. Controversies surrounding Pinochet's arrest reveal that the divisions that contributed to the breakdown of democracy and the imposing of authoritarian rule have not been fully put to rest. Indeed, it is contended that Chile's experience under Pinochet's dictatorship served to further exacerbate social divisions. Peter Siaveles argues that "economic transformations that occurred during the military regime have fundamentally altered the socioeconomic structure of the country and provided a context of attenuated social and class conflict" (2000, xi i i ) . Chile 's pact has been unable to remove old scars. The Venezuela, Colombia and Chile of today provide evidence that goes against the grain of the earlier consensus among "transitologists": that elite "settlements" or "pacts" may "constitute the only direct and rapid route to consolidated democracy that is available in today's world" (Higley and Gunther 1992, 24). These three cases raise serious questions of the pacts literature. What constitutes a successful pact? This is an issue that has not been fully addressed, evidenced by the fact that pacts in Venezuela, Colombia and Chile have all been hailed as "successful," yet have recently collapsed to reveal a less than impressive model of democracy. These three cases indicate that the question of time has not been properly addressed in extant scholarship on pacted transitions. When can a pact be said to be consolidated? Indeed, can a pact ever be said to be consolidated? I am not arguing that pacts are necessarily negative for democracy. In fact, certain pacts throughout history seem to have resulted in an outcome conducive for solid democratic frameworks. The cases of England in 1688-9 1 3, and Sweden in 1809 (see 1 3 Elite pacts have rarely been associated in the literature with the Anglo-American democracies - an exception to this is Burton, Higley and Gunther (1992). Nonetheless, pacts did represent crucial steps in the 7 Hig ley and Gunther 1992, introduction) seem to have stood the test o f suff ic ient t ime to a l l ow one to say that they have been elite agreements that have a l l owed for democrat ic consol idat ion. What I am arguing, however, is that pacts do not necessarily lay so l id foundations for democracy, and that there are gaping cracks in the literature that should be addressed. Fo r example, the pacts literature pays little attention to the international context w i th i n wh i ch national level pacts occur and evolve. In my opin ion, this is a major shortcoming. In the 1990s, global isat ion o f the international capitalist economy has become more deeply entrenched. The accompanying enthusiasm for l ibera l economic arrangements and po l i t i ca l institutions, not to ment ion the increasing prominence o f human rights w i th i n international norms and legal structures, has had an important impact on the context w i th in wh i ch national level debates are waged. Scholarship on pacts should not lose sight o f the potential role played by the international commun i ty i n determining whether a democracy survives or dies. In order to carry out the arguments I have la id out, a tour o f the pacts ' literature is necessary. The next chapter w i l l do this, w i th the remainder o f the work addressing in detail the case o f Ch i l e and the impl icat ions o f the Pinochet arrest for pacts i n general. It appears to me that the t ime is right to r e t h i n k the not ion that elite pacts enhance the probabi l i ty o f a v iable and stable democracy. Before these issues and their impl icat ions for pacts in La t i n A m e r i c a can be fu l l y addressed, however, a def in i t ion o f democracy must be established. evolution o f representation and the consolidation o f democracy in both Great Britain and the United States. The most famous English pact is the Magna Carta o f 1215. Barry Wiengast (1997) looks closely at the Missouri Compromise o f 1820 and makes the argument that U .S . history also reflects a series o f pacts. 8 Defining Democracy When analysing the pacts literature and its links to "democracy," it is important to be clear about what exactly democracy constitutes. In Latin America, nations have been labeled democratic, despite lacking some key attributes (O'Donnell 1996, 34). This invites us to try bridging the gap between democratic theory and practice. A s Giovanni Sartori correctly argues, what democracy is cannot be evaluated without reference to what it should be (1962, 4-5). Any study of weaknesses in democratic structures must be clear in ensuring a definition of what it is measuring these weaknesses against. For the purposes of this study, the definition of democracy being used is a fairly middle-range one, rooted in Robert Dahl's classic criteria for "polyarchy": 1) elected officials; 2) free and fair elections; 3) inclusive suffrage; 4) the right to run for office; 5) freedom of expression; 6) alternative information; and 7) associational autonomy (Dahl 1971, 3). To this definition, I make four additions. One is that elected (and appointed) officials should not be arbitrarily terminated before the end of their constitutionally mandated terms - Alberto Fujimori in Peru and Russia's Boris Yeltsin may have been elected in free and fair elections, but they created regimes that fell short of polyarchy when they forcefully closed their countries' Congresses and fired their Supreme Court Justices. The second criterion is that elected authorities should not be subject to severe constraints, vetoes, or exclusion from certain policy domains by other, nonelected actors, especially the armed forces. In other words, there should be civilian control over a non-deliberative military. This definitional addition seems to be of especial importance in the Latin American context (O'Donnell 1996, 35-36). A third criterion is that people should be able to count on regularity in the rule of law that is applicable to all. A vital aspect of 9 democratic government lies in the ability of citizens to oversee political authorities, but this cannot happen when political elites are above the law. Equality before the law is also an important addition in the Latin American context in that the problem of impunity - the repeated and systematic failure to investigate and sanction those guilty of both past and ongoing abuses of human rights (Sieder 1995, 1) - has affected the transition to democratic rule in both South and Central America, and continues to condition the nature of democracy throughout the region today. Finally, there should be an effective division of powers. The father of the theory of the separation of powers, Montesquieu, correctly argued that democracy is threatened when power is centralised in the executive or any one branch of government. Checks and balances between constitutionally separated branches of government are essential for the well functioning of democracy. "When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws wi l l execute them tyrannically" (Montesquieu 1989, 157). In my view, free elections do not make a democracy. The additional criteria outlined above provide the definitional acid test for what I consider to be basic features of polyarchy. A definition of this sort avoids the problem that David Collier and Steven Levitsky (1997) have labeled "conceptual stretching". 1 4 Definitions of democracy may be 1 4 Col l ier and Levitsky examine some of the strategies of conceptual innovation used by analysts o f recent democratisation as they attempt to meet a two fold challenge: increasing analytic differentiation in order to adequately characterise the diverse regime types that have arisen in recent years and maintaining conceptual validity by avoiding conceptual stretching (1997, 448). Having outlined the strategies analysts have used, Col l ier and Levitsky suggest two potential problems that political scientists must be aware of. Due to the complex structures used to define so many different democratic regime types, the potential for confusion and miscommunication in the literature is rife. It is crucial, therefore, that scholars clearly define and explain the conception of democracy they are using. The second problem stems from the increase in concepts and terms in the literature for describing basically the same thing. Again, the danger is that with the proliferation o f terms, the literature faces the risk of being thrown into confusion. T o control these potential problems, Col l ier and Levitsky propose that scholars aim for "parsimony and avoid excessive proliferation o f new terms and concepts" (1997, 451). 10 too narrow, mak ing the mere presence o f elections a requisite feature (most nations i n the wor l d hold regular elections, but most are far f rom meeting the above criteria), and o f being too broad, assuming social and economic equality (such a def in i t ion wou l d mean that no democracies currently exist as not even the most democratic nation on earth can have complete socia l and economic equality). The pacts literature fails to acknowledge that pacts may actually interfere w i t h the proper funct ion ing o f my four addit ional elements o f polyarchy. Pacts may contribute to the short-term stabil ity o f a democracy by creating condit ions that prevent protests and demands f rom reaching levels that cou ld threaten the survival o f the regime. But it is possible that the long-term effects o f pacts on democracy can be negative. Long-term damage can be done to a pol i ty when negotiations protect the v i ta l interests o f the o ld authoritarian regime. For example, i f the mi l i tary is assured that they w i l l be immune f rom prosecution for human rights v iolat ions as a cond i t ion o f the pact, then there is no equality for a l l before the law. Impunity creates an atmosphere where the mi l i tary feel an exaggerated sense o f their own importance and power, something that may make them more l i ke l y to return to a deliberative po l i t i ca l role. Where a pact agrees to d iv ide power, regardless o f the election result, between certain po l i t i ca l parties, the way is left open for a situation where corruption and c l ient i l i sm dominate governance, and where d iv i s ions o f power become ineffective, or non-existent. W h e n po l i t i ca l parties monopol i se the electoral process, dominate the legislative process and b lock in formal channels o f representation, l ike the media and interest groups, the funct ioning, not to ment ion the spirit, o f polyarchy is v iolated. C H A P T E R 2: PACTS This chapter serves as a means o f presenting the ma in features o f the pacts literature, and out l in ing what I consider to be the major f laws w i th in it. Scholars have agreed that pacts that protect the " v i t a l interests" o f outgoing autocrats are l i ke l y to lead to more enduring and viable democracies. Certainly, transitions to democracy in La t i n A m e r i c a have often been contingent on prov id ing continued impunity to authoritarian elites for their human rights crimes, and for a number o f years the stabil ity o f Venezue lan and C o l o m b i a n democracy has prov ided grist for those deeming pacts essential for democratic transitions ( O ' D o n n e l l and Schmitter 1986, 45). This, in turn, has contributed to strengthening the power, not to ment ion the egos, o f mi l i tary personnel who have considered themselves to be perpetually above the law. Yet, I bel ieve that i n the contemporary international context this situation is changing. Changes in international norms and conventions in the post C o l d W a r era have the potential to contribute to different types o f democratic transitions occurr ing in the future: transitions that are less contingent on prov id ing widespread amnesties to human rights violators. In my op in ion, the international context in wh i ch a democratic transit ion occurs is extremely cruc ia l and formative to the course a nation w i l l f o l l ow. Cho ices made by early develop ing states at a particular point in t ime influence not only their future range o f options, but also the options o f later developing states. " The functions that are v i ewed as proper and legit imate for the state are inf luenced by general international norms and practices. In the modern system the institutional characteristics o f states in more industr ial ly developed areas have set an agenda for states in less developed areas" (Krasner 1984, 241). R ight ly or wrongly, history has shown that nations use precedents 12 made in other nations as a template for their o w n course - precedents that are then inf luent ia l for a long period thereafter. 1 6 Numerous scholars have focused on major, rapid watersheds in po l i t i ca l l i fe, arguing that these transitions establish certain directions o f change and foreclose others in a way that shapes pol i t ics for years to come. Seymour Ma r t i n L ipset and Stein Rokkan ca l l such transitions " c r i t i ca l junctures " (L ipset and Rokkan 1967). Stephen Krasner calls short bursts o f institutional change f o l l owed by a long per iod o f stasis, "punctuated e q u i l i b r i u m " . 1 7 1 5 Influenced by the ethos of modernisation theory (developed in the 1950s, modernisation theory talked o f economic "requisites" for democracy, see Lipset 1959), many new nations born out o f colonialism have, since W W I I , attempted to follow the economic route taken by some of the older industrialising nations. Modernisation theory fairly crudely established a directly proportional relationship between a country's economic strength and the chances of that country becoming democratic. This has resulted in imposing certain economic or political structures on unprepared and ill-equipped countries. Even in recent times, we have witnessed cases of nations following a particular path, used by others, when it has perhaps not been appropriate. For example, in post-communist Russia, "shock therapy" market reforms were imposed with disastrous consequences after they were successfully carried out in Poland. Economists failed to account for the different structural, historical and cultural conditions in Russia. Samuel Huntington has labeled this idea "snowballing" but also highlighted the issue of national idiosyncracies that may hinder the imposing o f certain democratic or economic structures. As he says: "the democratization o f countries A and B is not reason for democratization in country C, unless the conditions that favoured it in the former also exist in the latter" (1996, 7). 1 6 Once a particular path is taken by a country, it moulds future developments. To use Przeworski 's words, "the final destination depends on the path" (1991, 51). Sidney Verba has referred to this conceptualisation as the branching o f the tree model o f sequential development. A critical choice forecloses other options in part because the "choice to set up a program in relation to a particular problem area may lead almost inevitably to the maintenance and even expansion of the program because of the vested interests it creates" (Verba 1971, 308). It is impossible to simply change paths with every alteration in wants, needs and power capabilities. Past choices constrain and preclude certain strategies or make them very costly. A s Stephen Krasner put it, "institutions generated by functional demands of the past can perpetuate themselves into the future whose functional imperatives are radically different" (Krasner 1984, 240). 1 7 Punctuated equilibrium refers to a set of arguments about evolution whose main proponents are Stephen Jay Gould and Niles Eldredge. Gould and Eldredge attacked the conventional Darwinian synthesis that pictures evolutionary progress as a slow, continuous process of change in which entire species slowly adapt to environmental conditions. They have argued instead that change tends to take place rapidly in geographically isolated groups which may then displace their ancestral populations. Such displacements are rare. Generally species can only undergo substantial changes over evolutionary time. Evolutionary change, they argue, is concentrated in geographically instantaneous events. "Is our world primarily one o f constant change (with structure as a mere incarnation of the moment), or is structure primary and constraining, with change as a 'difficult ' phenomenon, usually accomplished rapidly when a stable structure is stressed beyond its buffering capacity to resist and absorb?" Gould 's answer to this question is the latter. This description of the basic nature of the debate in evolutionary theory is similar to the debate in social and political analysis. Punctuated equilibrium is an apt description of an analytic stance that sees political institutions enduring over long periods once they are established. From Krasner (1984, 242-243). Gould quote, originally in "Darwinism and the expansion of Evolutionary Theory," in Science, 216 (Apr i l 23, 1982). 13 It w i l l be demonstrated later (in chapter four) that the arrest o f P inochet i n B r i ta in and his potential prosecution in Ch i l e is a watershed international event i n terms o f deal ing w i t h elites i n the previous regime. It is indicat ive o f a wo r l d w i th different pr ior it ies and is bound to have (and indeed already has produced) profound " k n o c k - o n " and lasting effects, wh i ch has the potential to mou ld future developments i n many nations. I w o u l d argue that the Pinochet arrest is reflective o f the cr i t ica l juncture i n the post C o l d War international context whereby human rights are more, instead o f less, important than any strategic "balance o f power. " It is no accident, therefore, that pacts i n Ch i le , Venezue la and C o l o m b i a have a l l fa l len apart i n the 1990s. In the first decade after the C o l d War, the agenda o f the international communi ty changed. Exc l u s i on o f the Communi s t s f rom the po l i t i ca l arena, wh i ch for so long was the excuse o f elites in Venezue la and C o l o m b i a for hav ing their respective pacts, is no longer considered a strategic necessity. 1 8 S imi lar ly , in Ch i l e the post C o l d W a r international environment lost Pinochet any k ind o f jus t i f i cat ion for brutal ly repressing dangerous leftist elements. W i t h humanitarian concerns now f i rm l y on the international agenda, manifested in processes l ike the creation o f the International C r i m i n a l Court ( ICC) and other legal declarations and structures 1 9 , the po l i t i ca l context is 1 8 Despite this new reality, the defenders o f the Pact of Punto Fijo in Venezuela have been at pains to recreate a C o l d War ambience by sharply criticising Chavez's close ties with Fidel Castro and Cuba. There is clearly awareness that the Co ld War milieu reinforced Venezuela's domestic pact. Rather than concerning themselves with Chavez's more damaging and autocratic moves, many political figures seem intent on clinging nostalgically to a bygone era. There was also a near hysterical Co ld War era reaction by members of Chi le ' s Right to Socialist candidate Ricardo Lagos's successful presidential bid of 1999. They feared that a Socialist president would return the country to what they deemed the polarised "chaos" of the early 1970s. 1 9 The 1993 Vienna Declaration on Human Rights declared that all human rights were of legitimate concern to the international community, and it rejected any kind of international-domestic division or cultural relativist excuse on human rights violations. The next step was to establish that external intervention was occasionally needed to protect human rights and to accomplish justice when states were not capable o f punishing previous regimes for human rights violations due to amnesty laws of domestic impunity. This led to the establishment of ad hoc international tribunal - l i k e in concrete cases of massive human rights 14 right for countries mak ing democratic transitions i n the future to be less lenient to human rights abusing members o f the previous regime. P inochet ' s arrest has served to change institutional structures in Ch i l e and send out an international message to a l l future dictators that they may one day be held responsible for their crimes. N o w that there is international momentum in favour o f prosecuting human rights violators, pacts o f the future may not need to be so generous to the previous governing elite i n terms o f granting them c r imina l immunity. Consequently, exist ing scholarship on pacts may become out o f step w i t h the phenomenon it seeks to explain. Compromises , l ike the one i n Ch i l e , that forget the past in order to face the future may become an anachronism in a wo r l d w i th established structures, l ike the ICC, designed to hold everybody on earth to codes o f international law. If this occurs, it is important that academic work on negotiated transitions remains in step w i th reality. Let us now look to the pacts literature. Logic of Pacts A s footnotes f rom my opening paragraph make clear, in i t ia l theorists o f comparative pol i t ics sought to understand democracy in developing countries by searching for its prerequisites. Later scholars, however, began to f o l l o w a more process violations in the former Yugoslavia and Rwanda- designed to give the international community power of jurisdiction over crimes committed in these sovereign territories. In short, the international community has created increasingly legitimate tools to intervene in other state's affairs when there is evidence of systematic human rights violations. 2 0 See also Barrington Moore (1966), Seymour Martin Lipset (1959). In 1959, Seymour Mart in Lipset would famously argue that "the more well-to-do a nation, the greater the chances that it w i l l sustain democracy"; Moore would later argue that "no bourgeois" meant "no democracy" (418). The idea was that a rich and healthy economy made possible higher levels o f literacy, education, urbanisation and media exposure allowing for the development of a large middle class, and providing resources to mitigate any problems created by political conflict. Some scholars talked about economic thresholds that needed to be met before a transition could be made toward democracy (See M a l l o y and Seligson 1987, 7-9). Another set of preconditions that were discussed in the literature related to culture. The predominance of certain values and beliefs over others was said to be more conducive to fostering democracy. Protestantism was alleged to improve the chances of a nation being democratic in Europe, whilst Catholicism, with its hierarchical and 15 orientated path based upon contingent choice. Acco rd i ng to Terry L y n n K a r l , the fai lure to identify clear prerequisites for democracy caused theorists o f comparative po l i t ic s to "move their attention to the strategic calculations, unfo ld ing processes, and sequential patterns that are invo lved in mov ing f rom one type o f po l i t i ca l regime to another" ( Ka r l 1990, 5). K a r l argued that the prospects for democratic consol idat ion are condit ioned by the nature o f the transition process. Speci f ica l ly, she suggests that democratic stabil ity is more l ike ly, at least in the short te rm, 2 1 when elites rather than the masses are ascendent dur ing the transit ion process and when elites define the parameters o f po l i t i ca l and economic change through negotiated po l i t i ca l pacts rather than the forceful impos i t ion o f any single actor ' s po l i t i ca l project. A c c o r d i n g to M i c h a e l Burton and John H i g l ey (1987, 295) the " i dea l t ype " o f elite led transitions, wh i ch are relatively rare events where previous ly warr ing elites transform their behaviour and suddenly and deliberately reorganise their relations v i a negotiating compromises on their most fundamental disagreements (see also K i r chhe imer 1969), have two major consequences. The first is that they create patterns o f open and peaceful compet i t ion that is founded on the " n o r m o f restrained part i sanship" (Man ley 1965; D i P a lma 1973), among a l l major elite factions. The second consequence is that they transform previous ly unstable po l i t i ca l regimes, where irregular seizures o f governmental power by force are frequent and expected occurrences, into stable regimes, where seizures o f power by force do not occur and are not expected. These alterations in intolerant traditions was deemed to have the opposite effect in Latin America (see Wiarda 1981, Morse 1974). Almond and Verba (1963) talked of the need to have a "civic culture". In short, there is a need for a favourable attitude toward democracy among the citizenry for democratic structures to have the legitimacy they need to survive. 2 1 This is an important qualification that adds empirical validity to Kar l ' s work given that pacts in Latin America have not made democratic stability more likely in the long run. Unfortunately for the pacts literature as a whole, this qualification outlined by Kar l is not commonly used. 16 elite behaviour clear the path for, but do not guarantee, the emergence of a democratic political system. Burton, Gunther and Higley (1992, 14) correctly argue that elite led transitions are as consequential as social revolutions, but they have not received anything close to the same amount of scholarly attention. The notion that it is elites who are the primary actors in pacted transitions is an extension and modification of the classical elite theory that was developed by Gaetano Mosca (1939) and Vilfredo Pareto (1935). Central to this theory is the contention of "elite variability," the idea that elite structure and behaviour vary significantly among societies and within them over time. These variations occur independently of social, economic and cultural forces, yet elite variations have important determinate effects for the character of political regimes. As Mosca says, "The varying structure of ruling classes has a preponderant importance in determining the political type, and also the level of civilization, of the different peoples" (1939, 51). Pareto was also concerned with specifying the variations among elites in relation to the differing nonlogical "sentiments" that ostensibly motivate their thinking and behaviour. He would link these variations to the different regime-types that evolved. Although these notions of elite variability were not developed very far by Mosca and Pareto, and the idea of elite settlements or pacts in relation to elite variability was not addressed at all, they provided a useful platform for scholars writing about elite pacts to build on. The concept that the motivations of elites are subject to variation points to an important aspect of the nuanced psychological dilemma and uncertainty involved in the pact making process. It is important to be aware that pacts are taking place in a very uncertain environment where actors are unsure of exactly what their interests and motivations 17 actually are, who w i l l support them, and what groups w i l l comprise their al l ies and opponents. Ye t these are not new ideas. Ph i l ippe Schmitter (1995, 11), correctly points out that it was Mach i a ve l l i who gave " t rans i to logy " its fundamental pr inc ip le o f uncertainty: There is nothing more d i f f icu l t to execute, nor more dubious o f success, nor more dangerous to administer than to introduce a new system o f things: for he who introduces it has a l l those who profit f rom the o ld system as his enemies and he has only lukewarm all ies in al l those who might prof it f rom the new system. 2 2 The absence o f any predictable " ru les o f the game" during the regime transit ion serves to expand the boundaries o f contingent choice (See Przeworsk i 1989). Adapt ing M a c h i a v e l l i ' s max im , K a r l outlines the dynamics o f the modern day transit ion process: Indeed the dynamics o f the transition revolve around strategic interactions and tentative arrangements between actors w i th uncertain power resources a imed at def in ing who w i l l legit imately be entitled to play in the po l i t i ca l game, what cr iter ia w i l l determine the winners and losers, and what l imits w i l l be p laced on the issues at stake. F r om this perspective, regime consol idat ion occurs when contending social classes and po l i t i ca l groups come to accept some set o f formal rules or informal understandings that determine 'who gets what, where, when and h o w ' f rom pol i t ics. In so doing they settle into predictable posit ions and legit imate behaviours by competing according to mutual ly acceptable rules. E lectora l outcomes may st i l l be uncertain w i th regard to person or party, but i n consol idated democracies they are f i rm ly surrounded by normative l imi t s and established patterns o f power distr ibution (Ka r l 1990, 6). O f cruc ia l importance in maintain ing c i v i l i an rule after the pact mak ing process, is f ind ing ways that w i l l l im i t uncertainty, especial ly by reducing incentives for c iv i l i ans who have lost out i n the negotiation process to appeal to the mi l i tary for assistance. Th i s suggests that there are two crucial tasks fac ing pact-makers. One o f these is to establish a suitably strong consensus o f the rules o f the game so that no major elite is tempted to approach the mi l i tary for protection o f their v i ta l interests. The second task is to begin to Quoted in Schmitter (1995, 11). From Machiavel l i , The Prince IV . 18 design conscious strategies that create qual itat ively new c i v i l -m i l i t a ry relations appropriate for future stable rule (Ka r l 1990, 12). To successful ly carry out these tasks, c i v i l i an pact-makers must reconci le the two major conundrums that they face in the negotiation process: one is that they may be overly cautious in their demands i n the process w h i c h cou ld potential ly lead to the strengthening o f the unity o f non-democratic adversaries, or to terms they may regret; the second is that they cou ld be too reckless in their demands, p rovok ing the mi l i tary into retreating to repression and an overa l l regression f rom democracy. Th i s is the central mora l and strategic d i l emma o f the pact mak ing process. The future course o f the nation can be adversely affected i f the pact-makers overshoot in either direction. Importance of Pacts A l though often in i t ia l ly regarded as temporary solutions intended to avo id certain potential problems , pacts often pave the way for a more permanent resolut ion o f confl icts. It is for this reason that the pact mak ing process is so cruc ia l to a nat ion ' s course. H o w regimes are born sharply influences their present and future character. Patterns o f pol i t ics that emerge dur ing periods o f transit ion have a strong potential to become semi-permanent features o f a country ' s po l i t i ca l landscape. Th i s is not to say that change is out o f the question, but change is l i ke ly to be s low and painfu l . A t moments o f po l i t i ca l transition and convuls ion, unique opportunities arise to discard the constraints 2 3 Pacts are often designed to appease the military. For example, in exchange for non-interference in the affairs o f the c ivi l ian government, the negotiations would protect the interests o f military personnel by giving them immunity from prosecution on human rights abuse charges. Both sides have a shared interest 19 and organisational forms inherited f rom the previous regime, but missed opportunities are d i f f i cu l t to regain. The Ch i lean transition, wh i ch w i l l be analysed in greater detail later, is a useful case to uti l ise in support o f this c la im. V i a a pact attempting to forgive and forget the brutality o f the recent past and maintain ing "authoritar ian enc l a ve s " 2 4 designed by Pinochet, C h i l e ' s democracy has grown f rom a birth defect that has proven d i f f i cu l t to heal - the result is an undemocratic constitution constraining chances o f a better qual ity democracy and a publ ic bitterly d iv ided over the past. Po l i t i ca l institutions are bui l t to suit the regime that they uphold, and, as Frances Hagopian has said, state elites and societal organisations bu i ld bridges to one another that are appropriate for the immediate po l i t i ca l environment (1990, 148). The ind iv idua l elites i nvo lved in the pact mak ing process use their positions to perpetuate modes o f po l i t i ca l interaction that favour them. A s a result, po l i t i ca l arrangements, once in place, condit ion future po l i t i ca l behaviour and poss ibi l i t ies. Ch i l e has shown itself to be no exception to this. Po l i t i ca l systems carry w i th them the seeds o f their own reproduction and it is w i th great d i f f i cu l ty that they are transformed. Therefore, it is useful to think about the poss ib i l i ty o f " b i r th defects " i n the democratisat ion process - defects that are not only a result o f structural features that have long been present in society, but also accidental circumstances that surround the moment o f regime change. Studies o f the wide array o f democratic regimes in existence i n the wo r l d today (see for example, Casper and Tay lor 1996) show that every democratic transit ion evolves in a different way. Yet this reality has not been recognised in the pacts literature. It often suggests that nations who f o l l ow negotiated transitions to democracy in avoiding any escalating conflict that threatens the very existence o f the newly established democratic system. 20 present the best " t r a i l " for newly democratis ing countries to fo l l ow. Fo r example, Peter M e r k l argues, " i t appears that the only trai l to a democratic future for developing societies may be the one fo l l owed by Venezuela. . . .Venezuela is a textbook case o f step-by step progress" (1981, 127). 2 5 However, this ignores the reality o f "e l i te var iab i l i ty , " out l ined by M o s c a (1939) and Pareto (1935), that every nation is unique and carries a dist inct ive agenda, as does every ind iv idua l elite member present at the transit ion negotiating table. H i s tory has shown that nations attempt to f o l l o w the trails other nations have journeyed. Yet, no trai l can be exactly replicated and some may be far bumpier than others. Pacts in Latin America Natural ly, po l i t i ca l pacts held special appeal in La t in Ame r i c an transitions to democracy (1973-1990) as they prov ided potential to induce the mi l i tary to return to the barracks and, in the long term, to break the cycle o f mi l i tary intervention. H o w new c i v i l i a n regimes should deal w i th the mi l i tary perpetrators o f state terror, especial ly when those forces s t i l l w ie lded preponderant power, became a b ig issue throughout the region as transitions began in the 1970s and 1980s. C o m m o n in much o f the literature on democrat izat ion is the idea that in order to be responsive to cit izens, elected government must be conducted without undue influence f rom the coercive branch o f the state - the mil i tary. Pacts were seen as a way to depol it ic ise mil itar ies by offer ing them enhanced resources for f u l f i l l i n g their professional roles and a promise o f noninterference i n their 2 4 The term "authoritarian enclave" was coined by Garreton (1989). 2 5 Although not all work on pacts is as blunt as Merk l (Karl (1986) admits that the choices and strategies of political actors can seldom be superimposed), most do talk about how developing nations can learn from the lessons o f nations where pacts occurred. 21 o w n institutional affairs. In many La t in Amer i c an nations, the negotiation o f impun i ty for the mi l i tary at the point o f transition served the purpose o f protecting them f rom accountabi l i ty afterwards. B y offer ing concessions to elites who are either l ukewarm in regard to democracy or who have contributed to its breakdown, it is hoped that pacts can d im in i sh the appeal o f mi l i tary rule and stimulate support for the democratic project (Przeworsk i 1991, O ' D o n n e l l 1979). Gu i l l e rmo O ' D o n n e l l and Ph i l i ppe Schmitter, who favoured the negotiation o f po l i t i ca l pacts for precisely these reasons, wou l d argue i n 1986 that the democratic regimes in C o l o m b i a and Venezuela, both brought into being by po l i t i ca l pacts, have been more stable and enduring than any other in La t i n Amer i c a , save Costa R i c a (1986, Part IV, 39-40). Later in this study, I w i l l analyse in detail the pact experience in Ch i l e , but at this stage it is wor thwh i le to provide an outl ine o f the La t in Amer i c an transitions to democracy that have been described in the literature as being "pacted " . W h o were the key players and what were the important events and t ime periods for each case? Coverage o f each La t i n A m e r i c a n pact serves to c lar i fy some o f the murkiness over exactly what should be considered a pact, as we l l as the different types o f pacts that have occurred (see Table 1). Indeed there is a debate i n the literature over whether the transit ion i n certain countries can actually be c lass i f ied as a pact, and what separates the not ion o f an "e l i te settlement" f r om an "e l i te pact". The concept o f pact mak ing emerged rather early in the discussions about poss ible transitions f rom authoritarian rule in La t in Amer i ca . A s mentioned in the introduction, " a pact can be defined as an expl ic i t , but not always pub l i c l y expl icated or jus t i f ied, agreement among a select set o f actors wh i ch seeks to define (or, better, to redefine) rules 22 Table 1: Pacts in Latin America Country Type of Pact Current Status Colombia (1958) Excluding. Explicit pact -National Front Collapsed. 1991 Constitution eliminated all vestiges of party parity. Yet violence remains endemic in Colombian society -government has lost control over third of national territory Venezuela (1958) Excluding. Explicit pact -Pact of Punto Fijo Collapsed. Chavez rewritten constitution. Mili tary no longer "non-deliberative" institution Uruguay(1984) Including. Explicit pact -Naval Club Accord Impunity provided to military via 1989 Amnesty law - beginning to crumble in wake of Pinochet arrest Bol iv ia (1985) Excluding. Implicit pact between parties of centre-left to right "Parliamentarized presidentialism". Recurrent necessity for negotiation has allowed for a degree of democratic stability Chile (1988-9) Excluding. Implicit pact between Concertacion and Right Unraveling. Pinochet stripped of immunity. Disappearance cases being brought before Chilean courts Nicaragua (1990) Including. Implicit pact between Sandanistas and U N O Abortive pact -collapsed E l Salvador (1992) Including. Explicit U S brokered agreement Currently being implemented Note: Including Pact - all major elite groups were party to the pact. Excluding Pact - some elite groups were excluded from the pact. Explicit Pact - detailed terms and conditions for the pact were documented.' Implicit Pact - no formalised documentation of terms for transition. 23 governing the exercise o f power on the basis o f mutual guarantees for the ' v i t a l interests ' o f those entering into i t " ( O ' D o n n e l l and Schmitter 1986, part IV, 37). There has been a broad acceptance o f this def in i t ion in much o f the wr i t ing on the pact mak ing process. Trans it ional pacts, however, have var ied according to who participated in them and the range o f issues governed by them. The broadest type o f po l i t i ca l pact has been ca l led in the literature an "e l i te settlement" (Burton, Gunther and H ig ley 1992). Th i s type includes a l l , or almost a l l , o f the s ignif icant national elites and addresses a l l the major issues among the elites, either by resolv ing them or by mak ing an agreement to suspend any k ind o f conf l ic t over them. If the outgoing po l i t i ca l elite remained po l i t i ca l l y s ignif icant, it wou l d be inc luded i n the elite settlement. It is probably fair to say that the pacts to occur in Uruguay and E l Salvador approached this ideal type, the "e l i te settlement". In Uruguay, two o f the three major po l i t i ca l parties negotiated the N a v a l C l ub Agreement w i th the mi l i tary regime after the latter was defeated in the constitutional referendum in 19 8 0 . 2 6 The agreement careful ly specif ied and control led the process, in order that, for example, the parties were able to reestablish the former electoral law whereby no parties were exc luded f rom the democratic arena, and the armed forces were prov ided w i th guarantees that they w o u l d be protected f r om fac ing prosecution for their cr imes against humanity. Indeed, the N a v a l C l u b A c c o r d i n Uruguay is a pact wh i ch cou ld be said to c losely f o l l o w A d a m Przeworsk i (1991, 67-79) and O ' D o n n e l l ' s (1979) model o f negotiated mi l i tary " e x t r i c a t i o n " . 2 7 When the Blancos, who had in i t ia l ly boycotted the negotiations f ina l l y 2 6 For a more in depth analysis o'f the Uruguayan transition than this study wi l l provide, see Gillespie (1991); Gillespie (1992); Gonzalez (1995). 2 7 Both O 'Donne l l and Przeworski provide a model of removing the military from the political arena, whereby the opposition soft-liners are required to reach a deal with the regime moderates, and thereby 24 accepted the terms o f the agreement, it become the foundational pact for the Uruguayan transit ion to democracy accepted by a l l elite groups. In E l Salvador a decade long c i v i l war fo l l owed the 1979 overthrow o f Car los Humberto Romero ' s authoritarian government. Du r i ng this per iod, a U S backed attempt to complement the war against the marxist insurgency established a m in ima l l y democratic regime based on the centre-right Chr i s t ian Democrats and the far-right Nat iona l Renewa l A l l i a n ce ( A R E N A ) . Left ist parties were either i n rebel l ion or were repressed. A f te r 1989, however, w i th the C o l d War waning, the U S (and also the Cuban and Nicaraguans in the insurgent Farabundo Ma r t i Front for Nat iona l L iberat ion [ F M L N ] ) started to push for a negotiated settlement. Th i s was achieved in 1992 and is currently being implemented. The F M L N has, therefore, been able to achieve access to the po l i t i ca l process. The armed forces and A R E N A have been forced to g ive up their a im o f destroying the Left and accept a broadening and deepening o f po l i t i ca l part ic ipation. What makes this an "e l i te settlement" is that al l s ignif icant elites were parties to the U S brokered agreement. The transitions in B r a z i l and Peru are the topic o f debate in the literature over whether they should be categorised as pacts. In regards to the B raz i l i an case, Hagop ian (1990) makes the argument that it was a pact negotiated between mi l i tary and c i v i l i an personnel, whereas K a r l (1990) argues that it was a transition imposed by the mi l i tary. In isolate their respective hard-liners. Opposition opportunists must also be outmaneuvered in order to ensure that a real transition rather than a process of cooptation takes place. In his model about the negotiation process through which authoritarian rulers may decide to end the regime and initiate a transition to democracy, Przeworski posits that in an authoritarian regime there are four relevant categories o f actors. Within the regime are 1) hard-liners and 2) reformers. The former prefer maintenance o f the regime to any change; the latter prefer change over the status quo although do not want to go all the way to democracy. Outside the regime, in the opposition, are 3) moderates and 4) radicals. The moderates prefer full democracy but are wi l l ing to negotiate with regime reformers to secure extradition, even i f some guarantees 25 both Peru and B r a z i l , the democratic transit ion was certainly not shaped by " beh ind closed doors" , smal l group, elite negotiations l ike in Uruguay and E l Salvador. Rather, they stemmed f rom highly publ ic, massive constituent assemblies (1978 i n Peru and 1987 in Braz i l ) . The assemblies were undoubtedly representative o f a l l s ignif icant sectors o f the respective countries, and they d id lay down def in it ive constitutional rules for the emerging democratic regime. In these respects they were s imi lar to pacts, but I wou l d argue that they should be class if ied as a different k i nd o f phenomenon. For example, elite pacts in Uruguay, E l Salvador, Venezue la and C o l o m b i a i nvo l ved detailed documents intended to be implemented by elites, whereas the constitutions created i n Peru and B r a z i l were largely mere publ ic , symbol ic statements o f aspirations. They were more i n step w i t h the long La t i n A m e r i c a n tradit ion o f laws as statements o f values rather than as governing rules (see Peeler 1998, chapter 1). The cases o f Ch i le , Venezuela, Co l omb ia , B o l i v i a , and N icaragua are correctly c lass i f ied as pacts, but I wou ld suggest they are not o f the "e l i te settlement" type. Th i s is p r imar i l y because not a l l elites were included, or in agreement w i t h the result o f the pact. In Ch i l e , groups on the right participate in the post-Pinochet constitutional regime pr imar i l y to defend the authoritarian features o f that regime that l im i t the maneuver ing space o f the elected governments. S imi lar ly , groups on the left, although they tacitly cooperated w i th the Concertacion dur ing the 1988 referendum campaign, have stated their rejection o f the legit imacy o f the post-Pinochet regime. In terms o f the non-inc lus ion o f certain elites, in Venezue la and C o l o m b i a the Communi s t s were exc luded f rom any k i nd o f involvement w i th the pact. must be given that restrict democracy. The radicals, however, prefer full democracy and oppose any negotiation with the regime (See Przeworski 1991, chapter 2). 26 In B o l i v i a too, pacts among elites have been v i ta l to the democratic transition. But they have not been "e l i te settlements" as, l ike Venezue la and Co l omb ia , they have stemmed f rom the exc lus ion o f the Left. A t the end o f the Banzer regime in 1979, the elites were so deeply fragmented that no elected government cou ld be produced unt i l three years later. E v e n then, disunity among different po l i t i ca l groups was such that it appeared un l i ke ly B o l i v i a wou ld be able to have stable governance. The government o f Si les Zuazo (1982-1985), w i th its fragile unity and narrow parl iamentary base cou ld not complete its term and had to agree to early elections. It was the debacle o f the Si les Zuazo administrat ion that led to the parties o f the center-left to right agreeing to a pact that alienated the Left and a l lowed for government focus ing on pragmatic matters o f patronage, rather than ideolog ical po l i cy matters. Without the radical and alternative v i s ion posed by the Left, it was possible for B o l i v i a n pol i t ics to gain a certain stabil ity through a pattern o f shift ing presidential coal it ions in Congress. Rene Mayo r ga termed this new pattern "par l iamentar ized p res ident ia l i sm, " 2 9 and he argued that it is the recurrent necessity o f negotiation among r iva l elites that is the most important key to the new found stabil ity o f B o l i v i a n democracy. N icaragua ' s transition was conceived as an elite settlement i n vo l v i ng a l l elite groups, but fa i led to become one. Af ter the surprise v ictory o f U N O (Nat ional Oppos i t i on Un ion ) candidate, V i o l e t a Barr ios de Chamorro, in the 1990 presidential elect ion, Chamorro engineered a pact w i th the defeated Sandinistas. A l t hough as a party the Sandinistas wou l d move into opposit ion, the pact prov ided that command o f the armed 2 8 For a deeper analysis of the Bol ivian experience with pacts, see Gamarra 1994; Gammara and M a l l o y 1995. 2 9 This term from Mayorga is quoted in Peeler (1998), 87. 3 0 For more on the Nicaraguan pact see LaRamee (1995). 27 forces and police would remain with the Sandinista incumbents. The Sandinistas in turn committed themselves to loyally serving the president and discouraging their supporters from pushing agitation to the point of destabilizing the new government. This pact collapsed however, as Chamorro proved unable to keep the majority of U N O members from becoming opponents of her government. The defections by U N O members would erase Chamorro's fragile majority by the next election in 1995. Although this was an abortive elite pact, it proved to be very important to the Nicaraguan transition. Although not achieving a great deal during her presidency, Chamorro did manage to complete her term and hand over power to an elected successor. The real choice, as John Peeler argues, "was between a truly counterrevolutionary government that could not govern and a compromise government that could govern at least minimally" (1998, 88). The latter, which Chamorro achieved, would have been considerably less likely without the Sandinista pact. Had the U N O remained united and carried out a counterrevolution against the Sandinistas, it might easily have led to a renewal of c iv i l war and would undoubtedly have pushed even more Nicaraguans to desperate poverty. Flaws within the Literature The irony of pact making is that it moves the polity towards democracy by undemocratic means. Pacts by definition seek to limit any kind of accountability to wider publics in that they are negotiated by elites with no direct input to the process by the people. I should make clear that I am not contending that elites are socially disembodied. Structural, economic, and cultural conditions within which elites operate, may not determine but do shape the calculations and strategic preferences of elites during the pact 28 negotiation process, as they bargain over the terms and condit ions o f the democrat ic institutions and procedures to be adopted (see, for example, Haggard and K a u f m a n 1999, Co l l i e r and Mahoney 1999, Bermeo 1999). The point is, however, that the elites present at the negotiating table have no o f f i c i a l mandate to represent the people v i a a democrat ic process, l i ke an election. Add i t iona l l y , by often prov id ing impunity to elite groups l i ke the mi l i tary, pacts deliberately distort the pr inc ip le o f c i t izen equality. Nevertheless, they have the potential to alter power relations, set loose new po l i t i ca l processes and lead to different, i f often unintended, outcomes that affect the entire society ( O ' D o n n e l l and Schmitter 1986, part 4, 38). Despite these blatant undemocratic features, pacts have been considered a desirable element o f the transition as it has been argued that they enhance the probabi l i ty that the process w i l l lead to a viable po l i t i ca l democracy. Rus tow (1970) argues that democracy advances " o n the installment p l a n " as co l lect ive actors, each preferring a different mode o f governance or a different conf igurat ion o f institutions enter into a series o f more or less enduring compromises. G i v e n the not ion that " h o w regimes are born sharply influences their present and future character", it seems to me that a major shortcoming o f the pacts literature is its underestimation o f the importance o f the undemocratic nature o f pact making. Cons ider ing that much o f the literature on transitions talks o f " b i r th defects " that can hinder the future o f democracy, it appears somewhat surpris ing that not exp l i c i t l y addressed in the literature on pacts ( in i t ia l ly anyway) is the idea that po l i t i ca l pacts may actually impinge on democrat isat ion. 3 1 A s already mentioned, pacts are undemocrat ic and 3 1 There are exceptions. Kar l wrote that "the cost o f the stability of pact making has been the abandonment of greater democratization" (1986, 218). Hagopian also adds a sceptical voice to the consensus on pact making. In reference to Braz i l , which she considers to be a pacted transition, she argues that "The Brazil ian 29 by design subvert the notion o f majority rule. There is also much evidence that the po l i t i ca l systems o f pacted democracies may have been compromised. . In Venezue la , the signatories o f the Pact of Punto Fijo o f 1958 agreed to exclude the Commun i s t party f rom the agreement and hence f rom effective part ic ipat ion i n pol i t ics. The po l i t i ca l parties also negotiated to d iv ide government posts among themselves regardless o f the election results. Resu l t ing f rom this was an extremely uncompetit ive system that fostered complacency and corruption and was unresponsive to change - factors that wou ld ult imately lead to the collapse o f the pact after the economy began to decl ine i n the late 1980s. S imi la r l y , i n Co l omb ia , the con soc i a t i ona l 3 2 Na t i ona l Front, instal led i n 1958 to end la violencia, conspired to strip elections o f most o f their meaning. The L ibe ra l and Conservat ive parties agreed to share unt i l 1974, regardless o f the vote totals, a l l legislative and administrative posts equally wh i le altering the presidency. Th i s parity between the parties was constitutionally guaranteed. Through pact making, pol i t ic ians o f these two parties resurrected a system in C o l o m b i a o f restricted, o l igarch ica l democracy, and superimposed it on a society ravaged by c i v i l war and that had undergone signif icant structural changes (W i lde 1978, 59-62). A l t hough I am not contending that had the Commun i s t Party been inc luded, the pacts in Venezue la and C o l o m b i a wou l d have endured. Quite the contrary: inc lus ion o f the Communi s t s wou ld have contributed to greater instabil ity and to no elite agreement at a l l . I am arguing, however, that in both the Venezue lan and Co l omb i an cases, pacts experience suggests that it may even be appropriate to reexamine the assumption that pact making leads to more stable democratic regimes" (1990, 165). 3 2 "Consociational" captures the main features of Colombia 's National Front pact. The consociational literature studies countries in which conflict across major sectors of society have been resolved within the context of open political regimes via elite cooperation. "In Colombia, the consociational National Front regime established in 1958 was an elite response to a perceived crisis stemming from the fear of exclusion 30 served to institutionalise the practice o f po l i t i ca l c l i ent i l i sm w i th in the state. The inst itutional isation o f these practises has led to situations in both countries today that continue to hinder democracy. For example, Chavez was able to point to corrupt ion o f the pact as a mechani sm for cementing his current popular pseudo-autocratic rule. In Co l omb ia , despite the new constitution o f 1991 that el iminates a l l vestiges o f party parity, the government remains plagued by problems o f eroded state authority masked by chronic po l i t i ca l v io lence, corruption and di f f icult ies i n governance. A n y process wh i ch puts restrictions on part ic ipation or predetermines electoral results violates the most fundamental norms o f the most broadly accepted def init ions o f modern democracy. 3 3 It is often the case, however, that pacts settle po l i t i ca l conf l ic t in ways that appear to less radical ly distort democracy. For example, the C o l o m b i a n and Venezue lan pacts also had dimensions that appeared to be less o f a threat to the basic features o f polyarchy - dimensions l ike restricting the po l i cy agenda, d i v i d i ng the spoils o f the state's wealth, and conceding control o f the po l i t i ca l parties that serve as vehic les to allocate these spoils. It appears to me that in analysis o f the Venezue lan and C o l o m b i a n cases, scholars have focused more on these aspects than the fundamental distortions o f polyarchy, l ike po l i t i ca l party exc lus ion, predetermined electoral results, or the v io la t ion o f the separation o f powers. Yet, in my op in ion the more subtle methods mentioned above, wh i ch less radical ly distort democracy, nonetheless do jeopordise the from power by the military government, potentially revolutionary violence in the countryside and economic stagnation" (Hartlyn 1988, 3). -j 3 Schumpeter and Dahl provide the classic, what have been deemed "minimalist," definitions of democracy. Joseph Schumpeter's famous definition of the "democratic method" is: "that institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means o f a competitive struggle for the people's vote" (1950, 242). "The kind of competition for leadership which is to define democracy," consists of "free competition for a free vote" (1950, 217). To reiterate from earlier, Dahl 's criteria for "polyarchy" are: 1) elected officials; 2) free and fair elections; 3) inclusive suffrage; 4) 31 democratisat ion process. I wou ld also suggest that their effect is l i ke ly to be more severe where exist ing democratic institutions are weak. A major fa i l ing o f the literature on pacts is a lack o f recognit ion o f the long term damage that these seemingly less destructive aspects o f the pact mak ing process have on a state's democratic prospects. Indeed some scholars have even suggested that the pact mak ing process should not actually be c lass i f ied as undemocratic. Burton, Gunther and H i g l ey (1992) refuse to accept that elite settlements create democracy by undemocratic means, wh i ch is the contention o f K a r l (1990), O ' D o n n e l l and Schmitter (1986) and Hagop ian (1990). They argue that "pr ivate negotiations among elites are an acceptable, even routine feature o f democratic governance, as long as the elites invo lved are held pub l i c l y accountable through elections and other processes" (1992, 34). Burton, Gunther and H i g l e y however, fa i l to acknowledge that the elites who negotiate transitions have so far not been held pub l i c l y accountable. That is the fundamental ly undemocratic nature o f the pact mak ing process - human r ights-violat ing elites o f the past are not held to account. A l t hough c i v i l i an negotiators w i l l have to face the electorate in the post-authoritarian elections, the elites f r om the previous authoritarian regime (who the c iv i l ians negotiated with) invar iably wa lk away f rom the process to an early retirement l i ved out on the go l f course, cushioned by a generous pension. I f they do not l ike golf, they can perhaps take the route Pinochet ( in it ia l ly) fo l lowed. Rather than f leeing Ch i l e in disgrace to a l i fe i n exi le, when P inochet packed his desk at La Moneda (the presidential palace) in 1989, he s imply moved across Santiago 's ma in street to a different off ice in the ministry o f defense. The the right to run for office; 5) freedom of expression; 6) alternative information; and 7) associational autonomy (1971, 3). 32 " undemocra t i c " part o f the pact mak ing process is that most o f " the authoritarian e l i t e " receive impunity for any crimes they may have committed whi l st in off ice. Certainly, the granting o f impunity to mi l i tary leaders for their human rights cr imes is another common facet o f the pact mak ing process that is fundamental ly undemocratic. Impunity means, l iteral ly, freedom f rom punishment. To act w i t h impun i ty means to act w i th the knowledge that one is above the law. In the La t i n A m e r i c a n context, impuni ty has come to mean that acts o f repression and abuse o f power by the state against its cit izens are protected f rom judgement or accountabi l ity before the national law. " T h i s has taken place v i a mi l i tary self-amnesties, various amnesty laws, pardons granted by new c i v i l i an governments, or other mechan i sms " (McSher ry 1992, 470). A fa ir ly isolated voice in the l i terature 3 4 , J. Patrice McSher ry makes the case that far f r om being "des i rab le " , pacts o f impunity have invar iably created a renewed c l imate o f fear in society, and an overwhelming sense o f injustice and hopelessness. B y rewarding the mi l i tary wi th impunity, the forces most dangerous to democracy are prov ided w i th no deterrent for addit ional abuse o f democratic structures. Further, " c i t i zens become resigned to the fact that just ice is beyond reach and dangerous to demand; impun i ty l imits the horizons o f what is possible. S imultaneously, impun i ty engenders a bolstered sense o f power w i th in the ranks o f the mil i tary, and new rational izations for terrorist methods" (1992, 471). McShe r r y also suggests that the argument for absolv ing or forgetting mi l i tary cr imes in the interests o f reconci l iat ion, is based upon an assumption o f ends and means (1992, 488). The end o f stable democracy and social peace is said to depend on the means o f impunity. Ye t it is important to remember, in her v iew, that the end o f any process is created w i th i n and moulded by the means employed. Impunity actually creates attitudes and structures antithetical to democracy and stabil izes the forces least commit ted to it. The phenomenon o f impunity tends to inst itutional ize the power and autonomy o f the mi l i tary, and perpetuate the imbalance between mi l i tary and c i v i l society. Th i s has certainly been the case in Ch i le , as evidence in the next chapter w i l l prove. Embedded authoritarian structures - wh i ch occur when any members o f society are above the l aw -only serve to restrict the poss ibi l i t ies for substantive social change. Far f rom being benef ic ia l to the democratisation process, pacts carry the potential to compromise and hinder the process they seek to establish. Perhaps the most important f l aw w i th in the pacts literature lies in its inabi l i ty to expla in what distinguishes successful f rom fa i l ing pacts. The literature has certainly attempted to characterise successful and unsuccessful pacts, noting, for example, that successful pacts protect each part ic ipant ' s " v i t a l interests" ( O ' D o n n e l l and Schmitter 1986, part 4, 37). But why are only some pacts successful at do ing this? In the end, the pact that Pinochet negotiated has been unable to protect his v i ta l interests and prevent h i m f r om fac ing a potential prosecution i n his homeland. W h y have some pacts been unable to reinforce themselves in the long term? In Venezue la and Co l omb ia , pacts have for several decades protected, v i a c l ient i l i sm, the v i ta l interests o f several elite groups, but have i n recent years col lapsed due to their inabi l i ty to adapt to changing circumstances. I should make clear that analysis o f what constitutes a successful f r om an unsuccessful pact is not the purpose o f this study. I merely w i sh to draw attention to this 3 4 Most works on transitions have seen the granting of impunity to be a necessary sacrifice for stability in the democratic transition. One work which takes up this issue and outlines the debates on both sides is 34 f l aw and to suggest that future work on pacts should attempt to rectify it. Bar ry Weingast (1997) has argued that studies o f pacts should investigate their self-enforcing properties. A pact can be c lass i f ied as successful, in his op in ion, i f it is self-enforcing. Self-enforcement comes into play when elites consider it to be in their interests to abide by the terms o f the pact . 3 5 Ye t Weingast does not account for the unforeseen international contextual change that has been so important to the unravel ing o f pacts in the three cases o f Ch i l e , Venezue la and Co lomb ia . Scholars must recognise that changes at an international level present an independent variable in democratic transitions that can have important consequences for pacts, indeed for any k ind o f transit ion process. 3 6 Chapter four w i l l look to the post C o l d War international context and make the argument that it has been a v i ta l factor in the collapse o f pacts. Indeed, changes at an international level have ca l led into question the necessity o f granting amnesties, for the sake o f a stable democratic transit ion, to human rights violators at a l l . Conclusion It is h igh ly debatable whether the post-pact situation in each o f the three nations mentioned above has created the stable democracy that was intended. In Co l omb i a , the po l i t i ca l stabil ity prov ided by the pact - in terms o f the peaceful turnover o f elected governments since 1958 - has not been accompanied by any reasonable degree o f soc ia l Seider(1995). 3 5 Weingast contends that "the pact constructed [in England] during the Glorious Revolution created a focal solution to the coordination problems facing the English elites. By permitting elites to act in concert, the pact raised the penalties for royal transgressions, making it in the interests o f the sovereign to honor the pact. In other words, the new limits on the crown became self-enforcing" (262). 3 6 See Przeworski et al (1996). In this study of the wide range of factors that make democracies endure or collapse, it is argued that "international conditions predict regime survival better than does the level o f development the larger the proportion of democracies on the globe and in the region during a particular year, the more likely is democracy to survive in a particular country." 35 stability. Quite the contrary: it is v io lence and social exc lus ion that most seriously threaten democracy in Co l omb i a , wh i ch remains wracked by a thirty-seven year guerr i l la war that denies the state control over as much as one third o f the state's territory. Chavez has successful ly attacked Venezue la ' s pact and its parties and now presides over a country whose mi l i tary is no longer non-deliberative. In Ch i le , undemocratic elements, due to the terms o f the pact, remain enshrined in the constitution (and in some segments o f pub l ic op in ion as wel l ) , and, as indicated by the arrest o f Pinochet, the country remains bitterly d i v ided over its past. It is important at this point to restate that I am not taking issue w i t h the idea that pacts may be necessary and desirable under certain conditions. I am suggesting, however, that they have unraveled in a number o f countries in the region, and i n ways that suggest deeper problems than the literature acknowledged. What is most d isturbing is that they have come under increasingly heavy fire f rom regime opponents who see these pacts as fundamental ly undemocratic and exclusionary. In the case o f Venezue la, for example, Chavez rode to power in 1998 on a wave o f discontent directed in large measure against the pol i t ic ians whose modus v ivend i was enshrined i n the Pact o f Punto F i jo . Thus far, this study has looked at what elite pacts are. The remainder w i l l look to the case o f Ch i l e and ask: what has been the result o f the pact? Th i s w i l l serve as the method for deal ing w i th a central a im o f this study - namely, ca l l ing into question the consensus that po l i t i ca l pacts may be an undemocratic means to settle conf l icts in a transit ion f rom authoritarian rule, but they provide the basis upon w h i c h a new and more democratic order may be implanted. The newness and democratic nature o f the order implanted in the Ch i lean case is contentious to say the least. 36 CHAPTER 3: THE CHILEAN EXPERIENCE The transit ion to democracy in Ch i l e in the late 1980s offers an example o f a " pac ted " democratic transition. A pact was agreed despite the fact that alternative models o f regime transit ion were clearly articulated in Ch i le , and were backed by power fu l and w e l l organised social and po l i t i ca l forces. Kenneth Roberts argues that the process o f transit ion i n Ch i l e passed through two highly divergent models o f po l i t i ca l change. The first stage lasted f rom M a y 1983, w i th numerous protests against the Pinochet regime, unti l the midd le o f 1986, a t ime when protests began to sharply decline. Th i s first stage was marked by fa i led attempts by mass social and po l i t i ca l actors to negotiate a f ramework for regime transition, and a number o f insurrectionary strategies seeking to break w i t h the po l i t i ca l and economic project o f the mi l i tary regime (see also Oxho rn 1994, 51-52). The second stage took place f rom late 1986, when oppos i t ion elites made efforts to remove Pinochet w i th in the institutional constraints established i n his 1980 const itut ion and to negotiate a process o f transit ion w i th supporters o f the mi l i tary regime (Roberts 1998, 118-119, see also, Ensalaco 1994, 409-410, Oxho rn 1994, 53-54). Th i s latter type o f el i te- led pacted transition wou l d ult imately prevai l and set the tone for the po l i t i ca l dynamics o f the new democratic regime o f the early 1990s. The postauthoritarian administration that took shape, unti l the Pinochet arrest in L o n d o n in 1998, wou ld make only minor adjustments to the po l i t i ca l legacies o f the previous regime. A s w i th many mi l i tary regimes that have attempted to protect themselves f r om any k i nd o f post-transition accountabil ity, the Pinochet dictatorship took care to create "reserve doma in s " o f authoritarian inf luence that were protected f rom any k i nd o f 37 democratic contestation. Wh i l s t in off ice, the Pinochet government designed a system o f elaborate inter lock ing institutional checks against the exercise o f popular sovereignty. Furthermore, they were also able to structure the regime transition in a way that ensured Ch i l ean government remained w i th in the boundaries o f the institutional structures they had created. Gerardo M u n c k and Caro l Ska ln ik L e f f argue that the " incumbent elites may w e l l have exerted more control over the t rans i t ion" in Ch i l e " than in any other case o f regime change" (1997, 346). In Argent ina, the mi l i tary was so discredited by the defeat in the Falk lands W a r that their control o f the transition process was undermined (Hunter 1998, Cava rozz i 1992, Vac s 1987, 29). In B r a z i l , important sectors o f the business communi ty broke w i th the regime to support redemocratisation, contr ibut ing to the c rumbl ing o f the authoritarian coa l i t ion (Sk idmore 1988, 250). These cases contrasted w i th Ch i l e where the mi l i tary remained largely cohesive, and retained strong support f r om economic elites who had become staunch advocates o f the neol iberal mode l implanted by the reg ime ' s Ch icago school technocrats. 3 7 A common feature in most o f the pacted democratic transitions in La t in A m e r i c a has been that the mi l i tary is in a pos it ion o f relative strength. Indeed, this is often one o f the ma in reasons why pacts occur. In Co l omb ia , Venezue la, Uruguay and C h i l e the pacts have i nvo l ved c iv i l i ans p rov id ing mi l i tary personnel w i th certain guarantees that their "" Trained at the University of Chicago, the "Chicago Boys" were a group of Chilean Economists who advocated neo-liberal economic theories that envisioned the state having no overt role in the economy. The Chicago Boys believed that the threat of socialism in Chile was linked to political and economic institutions dating back to the 1920s and 1930s. They blamed the 1925 constitution, the political party system and state sponsored import substitution industrialisation (ISI) policies for the growing role of the state in the Chilean economy. They believed that only a radical opening of the economy to international competition and a reduction of the role of the state and politics in society would "free" the economy and liberate Chile from the threat of Marxism. By 1965, the Chicago Boys controlled the Catholic University's school of economics. B y 1975, two years after the coup, they had convinced Pinochet of their beliefs, and displaced the nationalist sector of the right, which sought a resurrection of traditional agriculture and industry. Sergio de Castro became Minister o f the Economy in A p r i l 1975, and the neoliberal counterrevolution in Chile began. For more on the "Chicago Boys" see, Valdes (1995). 38 interests would not be touched. Although, by definition, pacts are not necessarily TO fundamentally centred around civil-military relations, in the Latin American context, c ivi l military relations have often been the key element of the agreement. If the military is overly weak and disunified, as happened in Argentina, 3 9 then the civilians are in a position of power in the transition process and do not necessarily have to provide wide ranging amnesties of appeasement to seduce the authoritarian rulers from office. When the military is weakened, civilians are able, to a greater extent, to dictate the direction of reform. In the case of Argentina, democrats rejected military requests for immunity from prosecution for human rights violations (Vacs 1987, 30, O'Donnell 1992). Argentina was actually one of the few Latin American nations to try to imprison its former military leaders. 4 0 In Chile, institutional restraints, military unity and economic elite support for the Pinochet regime combined to prevent the democratic opposition from deposing Pinochet and dictating the terms of the regime transition. Even though Pinochet was politically defeated in the 1988 plebiscite -which was the event that forced the democratic transition: 56% of Chileans voted to end his regime and return to democratic and civilian r u l e 4 1 - this defeat occurred within the regime's prescribed constitutional framework. Consequently, the "transition adhered to the timetable and the core of the institutional blueprint elaborated by Pinochet's political advisors" (Robert 1998, 142). For example, England (1688-9) and Sweden (1809) had pacts that were not contingent on establishing workable civil-mili tary relations. 3 9 Argentina's transition from authoritarianism came about rather abruptly, due to the collapse of its military regime. Consequently, as the authoritarian coalition completely unraveled, no elite agreement was required to pave the way for the transition. A s a result, the tone of the transition was one o f confrontation, as opposed to the compromise in Chile, between the two main forces that opposed the military regime -Radicalism and Peronism. For more on the nature of the transition to democratic governance in Argentina, see Cavarozzi (1992). 4 0 It is important to point out, however, that the threat o f military insurrection persuaded successive democratic governments to pardon or provide an amnesty to most o f those responsible for the crimes committed under military rule in Argentina. 39 C h i l e ' s transit ion was produced by po l i t i ca l deadlock, rather than the clear defeat o f the dictator or an institutional earthquake creating an alternative po l i t i ca l system (Roberts 1998, 142-143). N o set o f actors i nvo lved was able to impose its w i l l completely upon another (Casper and Tay lor 1996, 144-146). It cou ld be argued that the transit ion c losely adhered to Rus tow ' s (1970) model -whereby democracy is l i ke l y to occur i n response to a deadlock between contending forces, none o f wh i ch is capable o f impos ing their preferred choice. Pinochet was unable to w i n the plebiscite to extend his po l i t i ca l mandate, but popular movements were also unable to defeat his regime and impose unrestrained democracy due to the constitutional straitjacket imposed by the outgoing regime. The outgoing elites were able to tightly control f rom above the transit ion f r om mi l i tary rule to what wou l d in i t ia l ly be a l imi ted democratic regime. The transit ion to this l im i ted democracy emerged as a compromise solut ion to a po l i t i ca l stalemate, a type o f conf l ict resolut ion that rel ied on negotiated pacts to create terms that cou ld be accepted by both sides. The elites f rom the previous regime were keen to avo id any attempts by new c i v i l i a n leaders to br ing the perpetrators o f repression to just ice, and sought to l im i t the maneuver ing space for the democratic grouping o f the Concertacion. O n the other hand, the Concertacion entered into negotiations w i th the po l i t i ca l R ight and the mi l i ta ry regime determined to mod i f y some o f the blantantly obvious authoritarian features o f the constitution. They were forced, however, to accede to many o f the other restrictions that the authoritarian regime had placed on the democratisation process. The consequence o f the negotiation process was a package o f f i f ty- four constitutional reforms to the 1980 Const i tut ion that were ratif ied in a plebisc ite before the 4 1 Turnout in the election was exceptionally high with 90% of eligible voters exercising their right to vote. See Constable and Valenzuela (1989, 170). 40 1989 national elections ^ (Roberts 1998, 143, R ique lme 1999, 33). " The most important o f these reforms el iminated the constitutional proscr ipt ion o f Marx i s t parties; a l l owed un ion members to ho ld party aff i l iat ions; l imi ted the emergency powers o f the state; prevented the president f rom d i s so lv ing the lower house o f congress; enhanced c i v i l i a n representation on the Nat iona l Security Counc i l ; increased the number o f elected senators; and relaxed the requirements for future constitutional amendment s " 4 3 (Roberts 1998, 143). A l t hough some o f the constitutional reforms proposed by the Concertacion were adopted in the 1989 plebiscite, C h i l e ' s democracy remained tainted by authoritarianism i n several ways. Negot iat ions undertaken protected the previous regime v i a the maintenance o f systemic, institutionalised, nondemocratic practises enshrined in the 1980 Ch i l ean const i tut ion. 4 4 This constitutional hybr id o f authoritarian and democratic elements, was or ig inal ly intended to be a transitory set o f institutions, but it has proven extremely d i f f i cu l t to t rans fo rm 4 5 - due main ly to the need for overwhe lming legis lat ive majorit ies for constitutional reform. The 1980 constitution is a legal ref lect ion o f the mi l i tary government ' s negative v i ew o f the capacity o f democratic practises to resolve the problems facing Ch i lean soc iety. 4 6 Th i s po l i t i ca l model , wh i ch was largely inherited by the A y l w i n administrat ion o f 1990, was designed both to protect the economic legacy 4~ In the plebiscite o f 30 July 1989, 85.7% of the Chilean electorate ratified the constitution as amended, paving the way for the election of A y l w i n on 14 December 1989 (Valenzuela 1999, 231 -232). 4 3 For an analysis o f these constitutional reforms, see Ensalaco (1994). 4 4 With the approval o f the constitutional reforms, Chile 's transition became, in L inz ' s terms a "transicion pactada" (a transition by agreement), rather than a "transicion por ruptura" (a sharp break with the previous order), see L inz (1978, 35). 4 5 This reality was predicted by pact theorists, who made the argument that despite the uncertain, opportunistic, and often hurried and confused nature o f the pact making process at the moment o f transition, the results o f the negotiations have the potential to produce a "lasting," "semi-permanent" effect on the political landscape. See, for example, Kar l and Schmitter (1991, 270). 4 6 For an analysis o f the foundational and corrective aims of the Chilean military regime, see Garrreton (1989). For the evolution of military ideas throughout the region, see Loveman 1999. 41 o f the Pinochet government and to prevent the re-emergence o f what the mi l i ta ry perceived to be the dynamic o f polar isat ion and instabi l ity that was characteristic o f the early 1970s. M i l i t a r y authorities argued that the succession o f events leading up to the mi l i tary coup prov ided sufficient evidence o f the irresponsibi l i ty o f c i v i l i an leaders. A c c o r d i n g to the mi l i tary, democratic structures in C h i l e had a l l owed the country to be held hostage to the interests o f self-serving pol i t ica l parties. Statements made by the mi l i tary immediate ly f o l l ow ing the coup outl ined their motives for assuming control : party leaders had used their power as elected off ic ia l s to mobi l i se popular support, result ing in the ideolog ica l polar isat ion o f Ch i l ean society and the corrupt ion o f democratic inst i tut ions. 4 7 The goal o f the mil i tary-designed constitution o f 1980 was to restrict the power o f c i v i l i an elites and po l i t i ca l parties i n order to prevent the recurrence o f the polar isat ion o f the early 1970s. Consequently, blatant authoritarian elements remained in place after the pact had been negotiated. The president was st i l l a l lowed to designate senators and magistrates; the president cou ld not remove mi l i tary leaders and senior officers f rom their ranks after their nominat ion; P inochet remained Commander in C h i e f o f the armed forces; a l l former presidents were entitled to permanent Senate seats prov ided they served a m i n i m u m o f s ix years (wh ich wou l d a l l ow Pinochet to serve i n the upper chamber when his term as armed forces commander expired); as a consequence o f Pinochet implement ing the Amnes ty l aw in 1978 to pardon mi l i tary officers responsible for cr imes committed f rom These attitudes are clear in post-coup military statements and in the declaration of principles made the following March. See Repiiblica de Chile, El Pronunciamiento Militar del 11 de Septiembre de 1973, and the Declaracion de Principios de la Junta de Gobierno, March 1974. See: http://www.iieocities.eom/CapitolHill/Coniiress/l 770/declaracion-de-principios.html 1973-1978, perpetrators o f po l i t i ca l repression could not be t r i e d 4 8 ; the Supreme Court was packed w i t h new conservative supporters; and, although easier, it was s t i l l very d i f f i cu l t to alter the const i tut ion. 4 9 Add i t iona l l y , the b inomia l -major i ty electoral system that was introduced, works in a way that over-represents the largest minor i ty, the Right, and under-represents the second largest minor ity, the non-Concertacion Commun i s t In sum, the army and po l i t i ca l elites f rom the previous regime remained power fu l po l i t i ca l players i n the aftermath o f the pact, v i r tual ly unaffected by the transit ion due to their establishment o f daunting barriers to any k ind o f further constitutional changes -barriers attempting to "ensure the permanence o f the mi l i ta ry ' s r evo lu t i on " (Ensalaco 1994, 412). G i v e n that constitutional amendments are necessary to transform the status o f the armed forces, it is d i f f icu l t to quel l the constitutional power they hold. These constraints have obv ious ly placed major obstacles in the way o f democratic 4 5 For an excellent discussion of the issue of impunity in the Chilean transition, see Pearce (1995). In this article, both sides o f the debate in Chile are detailed as Pearce asks i f impunity was a "necessary or fateful compromise." She makes the case that "justice has been seriously compromised in the negotiated transition, and this fact influences the new political order and affects people's perception of their rights in that order" (54). This is a similar argument to the one outlined by McSherry (1992) above. 4 9 Constitutional change can only result i f there is two-thirds support in both chambers. This is very difficult as senators nominated during the military regime are likely to block any attempts at democratic reform. 5 0 The binomial electoral system is one of the most important limitations on fair representation o f the electorate. Mil i tary reformers contended that Chi le ' s historical proportional representation (PR) electoral system aggravated and magnified divisions within society and was instrumental in the creation of a partidocracia characterised by ideological polarisation, given the electoral system's representation o f small parties. Mil i tary leaders thus sought to design a system that would help create a two-party system, which they believed was the most desirable option for Chile. The second aim of military reformers was an electoral formula that would benefit the Right and guarantee their representation. A s a result, districts were gerrymandered to favour parties of the right. However, the main feature of the electoral system that benefits parties o f the right is the procedure for allocating seats. In order for a party or coalition to win both seats in a district, it must double the vote of it nearest rival. If there are two coalitions competing in a particular district, a party needs to attain 33.4% of the vote to win one seat, but must win 66.7% o f the vote to win two. Therefore, i f the most popular party or coalition wins 66.6% of the vote and its nearest rival wins 33.4%, each wins one seat, or 50% of the total seats in the district. Consequently, in a two party competition, any support a party receives above 33.4% and below 66.7% is effectively wasted. This system clearly favours the second largest party or coalition, which in many cases has been right wing parties or 43 consol idat ion. Ch i l e scores badly when held up against the basic def in i t ional features o f polyarchy out l ined i n chapter one. The constitutional prov i s ion that a l lows for the designation o f Senators, w h i c h embodies " P i noche t ' s v i s ion o f a ' techni f ied democracy ' i n w h i c h the vo ice o f experts wou l d enjoy a pr iv i leged hearing," (Ensalaco 1994, 419) contradicts m y def in i t iona l precept that in a democracy, of f ic ia l s should be elected. The impunity that the authoritarian elites have enjoyed in postauthoritarian Ch i l e is a v io lat ion o f another feature o f polyarchy that I set out below: namely that there is equality for al l before the rule o f law. The democrats that negotiated the transition w i th the mi l i tary conc luded that the new order cou ld only be preserved i f it sacr if iced this pr inciple. Further, the role o f the mi l i tary in the postauthoritarian po l i t i ca l arena contradicts my def in ing not ion o f democracy whereby c i v i l i an authorities have control over a non-del iberative mi l i tary. Indeed, the mi l i tary in Ch i l e have successful ly turned the non-deliberative mi l i tary cr iter ia for democracy on its head. Instead, the armed forces have managed to impose powerfu l checks on c i v i l i an authorities and pol i t ica l parties through the manipulat ive and ingenious combinat ion o f presidential dominat ion (wh ich I w i l l outl ine i n detail be low), and electoral and institutional engineering. 5 1 In entering the negotiating process w i th the outgoing regime, the Concertacion were presented w i th a conundrum that underlines the basic strategic d i l emma faced by pact-makers i n terms o f reconc i l ing the tensions between the deepening and stabl is ing o f democracy. P inochet ' s c i v i l i an and mi l i tary supporters were extremely wary o f C h i l e ' s coalitions. For more details on how this system works, see Siavelis (2000), 31-35. This skewed electoral system is also analysed by Ensalaco (1994, 420-421). 5 1 For an interesting discussion on constitutional engineering and the variables that can be manipulated to carry it out, see Sartori (1994). 44 democratic majority and were keen supporters o f the neol iberal economic mode l . " T h e tacit acceptance o f a regime transit ion by the po l i t i ca l and economic R ight was thus h ighly contingent on the maintenance o f the 'protect ions ' against the exercise o f popular sovereignty that was built into P inochet ' s institutional f o rmu l a " (Roberts 1998, 144). A l t hough the Concertacion wou l d ideal ly have chosen to put pressure on the R ight to accept democratic reforms, they were aware that such a strategy r i sked p rovok ing an outright abandonment o f the democratic arena by the Right. The alternative, wh i ch the Concertacion decided to pursue, was an attempt to bu i ld consensus for reforms v i a negotiations w i t h the R ight - despite the institutional constraints o f this path p rov id ing very l ittle democratic leverage in terms o f e l ic i t ing concessions f rom Pinochet supporters. The c i v i l i an government that came into power in M a r c h 1990 chose to pr ior i t ize democratic and macroeconomic stability rather than risk endangering the R i gh t ' s contingent acceptance o f the democrat izat ion process. Perhaps understandably, stabi l is ing, rather than deepening, o f democracy was seen as the safer op t i on . 5 2 Structural and institutional constraints created by the Pinochet regime certainly imposed l imitat ions on the options o f c i v i l i an elites. The 1980 Chilean Constitution What were the more specif ic aspects o f the 1980 Const i tut ion that remained in place in the post-authoritarian government? What aspects o f the constitution were the mi l i tary unw i l l i n g to a l l ow c iv i l ians to alter during the negotiated transition? A closer 5 2 Although different nations have taken varied routes to get there, stabilising rather than deepening of democracy has been the norm in Latin America. Overall , Latin America has become more broadly democratic than in the 1980s, but it is not deeply democratic. Evidence in Diamond, Hartlyn and L i n z 45 look at the 1980 Const i tut ion serves to portray the often over looked and more subtle threats to Ch i l ean democracy. Strongpresidentialism was the cornerstone o f the mi l i ta ry ' s po l i t i ca l fo rmula for Ch i le . Du r i ng negotiations for the democratic transition, mi l i tary leaders successful ly argued that the posit ive economic legacy o f the authoritarian government cou ld be better guaranteed by handing over the po l i t i ca l and economic administrat ion o f the country to a president w i th a wide range o f powers. This, they bel ieved, wou ld prevent the Congress f rom fa l l i ng v i c t im to the excesses o f popu l i sm and personalism. One o f the most important powers held by Ch i lean presidents l ies i n the wide range o f areas i n w h i c h they have exc lus ive init iatives. A r t i c l e 62 o f the const itut ion states: "[the] President o f the Repub l i c holds the exclus ive init iat ive for proposals o f l aw related to changes i n the po l i t i ca l or administrative d i v i s i on o f the country, or to the f inanc ia l or budgetary administration o f the state. " 5 3 The same article goes on to specify i n detail a series o f areas in wh i ch the executive has exclus ive init iatives, i nc lud ing "establ i sh ing, amending, granting or increasing remunarations, retirement payments, pensions," and " w i d o w s ' and orphans ' a l lowances " (No. 4); "establ i sh ing the norms and procedures appl icable to col lect ive bargaining and determining the cases where bargaining is not permi t ted " (No. 5); and "establ i sh ing or amending the norms on or regarding social security o f both the publ ic and the private sector" (No. 6). These areas o f exc lus ive in it iat ive expand the legis lative power o f the president compared w i t h earlier Ch i l ean constitutions o f 1823, 1828, 1833, and 1925. (1999, 60-65) suggests that many of the electoral democracies in the region are illiberal, which they see as being indicative of a more global undercurrent in the third wave of democratisation. 46 The president also has almost exclus ive control o f the budgetary process, leav ing l itt le scope for legis lat ive input on f i scal matters. If the budget is not approved by congress w i th in sixty days, the president 's proposals become law. Th i s effect ively gives the president decree powers over the impos ing o f the national budget. M i l i t a r y th ink ing behind this presidential power was that it wou ld prevent budgetary deadlock and the emergence o f c l ientel ist ic legislation. S ignif icantly, this measure imposes important l imitat ions on the scope o f congressional power over national level po l i c y matters, w h i c h are inevitably l i nked to monetary spending. It is not unusual for Lat in Amer i can presidents to have areas o f exc lus ive init iat ive. However , most constitutions that have these mechanisms also have prov is ions for a l o w veto overr ide threshold that serves to introduce a degree o f legis lat ive control over presidential actions - for example, the Co l omb ian and B ra z i l i an constitutions have absolute major ity override provisions. U n l i k e these and other cases, i n Ch i l e the executive areas o f exclus ive init iat ive are not counterbalanced by a l ow threshold for veto overrides - a two-thirds majority is necessary in Ch i l e to override a presidential ve to . 5 4 Another mechani sm for executive strength and legislative weakness l ies i n the abi l i ty o f the president to control the legislative process and agenda v i a the use o f declared execut ive "urgencies " . The president may declare a proposal urgent i n any one or a l l stages o f its consideration, regardless o f its governmental branch o f or ig in. Congress then must act on the president 's declarations w i th in thirty, ten or three days, depending on whether the proposal is designated as a " s imp le urgenc ia " (s imple 5 3 A l l quotes from Constitution, see Constitution Politico de la Republica de Chile, 1980. Available at: http://www.urich.edu/%7Eipiones/confinder/Criile.htm (English); and http://wwvv.georaetovvn.edu/LatAmerPolitical/Constitutions/Chile/cliile97.html (Spanish). 47 urgency), a " s uma urgenc ia " (high urgency), or for "d i scus ion inmed ia ta " ( immediate discussion), respectively (Const itut ion 1980, A r t i c l e 71). I f a proposal is considered urgent, then consideration o f a l l other legislative proposals is put on hold. A l t hough designed as a measure to be employed only in extraordinary circumstances to enable the passage o f key legis lat ion, the use o f this mechanism has become a standard operating procedure in order for presidents to accelerate the consideration and legis lat ive passing o f proposals . 5 5 Th i s gives a preponderance o f weight to the legislative init iatives o f the president and ensures that legis lat ion proposed in the congress is often delayed - due to the fact that congress does not have a prov i s ion for declar ing urgencies. Further presidential contro l o f the legislature stems f rom his/her abi l i ty to ca l l the legislature into extraordinary session. Dur ing these sessions, the congress can only consider proposals introduced by the execu t i ve 5 6 (Const itut ion 1980, A r t i c l e 52). Together, prov is ions a l l ow ing the president to declare urgencies and cal l extraordinary sessions give the executive h igh ly effective agenda-setting powers. S iavel i s is correct to argue that although the A y l w i n and Frei administrat ion used the "u rgency " and "extraordinary sess ion" powers i n a responsible and f lex ib le manner, there is nothing to stop future presidents f r om abusing them (2000, 19). The strength o f the Ch i lean president is another feature o f the postauthoritarian po l i t i ca l landscape that violates basic notions o f polyarchy. L iberty, as I, echoing 5 4 For a fuller discussion of the override provision for areas of exclusive executive initiative in different Latin American countries, see Mainwaring and Shugart (1997, introduction). 5 5 This mechanism was used at some point in the approval process in 59% of the proposals that were sent to congress during the A y l w i n administration (Siavelis 2000, 18). One deputy, Deputy Juan Antonio Coloma, interviewed by Siavelis, went so far as to say that the use of the presidential urgency had become the "forma permanente de legislar en Chi le" (the permanent way of legislating in Chile), see Siavelis (2000, 18). 5 6 In each of the four congressional periods of the A y l w i n administration and during the first four years of Frei 's government, the congress was called into extraordinary session by the president. 48 Montesquieu, said earlier, may be threatened when power is centralised in the executive branch of government. Siavelis makes the persuasive argument that it is Chile 's strong presidentialism and weak congress that provide the most important obstacles to long term democratic consolidation. His work provides numerous additional examples of presidential power in Ch i l e . 5 7 Although the administrations of A y l w i n and Frei were characterised by excellent relations between the branches of government, there is no guarantee that this w i l l always be the case. Because of the strong presidential powers that I have mentioned above, it is perfectly reasonable to suggest that a future president may exploit the system at his/her disposal to rule in a pseudo-authoritarian manner. Siavelis argues that the success of the first two presidents in avoiding executive/legislative conflict and deadlock has been more of a result of the context and nature of the pacted transition, rather than a result of the democratic nature of Chile's institutions. In a way, the context of the pact provided a substitute, albeit a far less effective substitute,5 8 for 5 / Other constitutional sources of power held by the president can be added to what has already been presented. The executive can declare states of Constitutional exception, emergency, and catastrophe without congressional approval (Constitution 1980, Article 40). As in most presidential systems, the Chilean president has the right to veto legislation. The Chilean president also has powers which extend to the actual designation of a part o f the assembly and the appointment o f other authorities. In addition to the thirty-eight elected members of the Senate, there are also nine appointed senators, o f which two are appointed by the president. However, due to the fact that the president also influences the appointment of, and in some cases, names the officials who fi l l the institutions that designate the remaining appointed senators, executive influence is more far reaching than it may appear. The president also names the comptroller general o f the republic, the commanders of the armed forces, and the judges o f the Supreme and Appellate Courts. This differs from the 1925 constitution where diplomatic appointments by the president were subject to senatorial approval - in the 1980 constitution, the role of congress in the appointment o f diplomatic posts was removed. Al so , the range of the president's implied constitutional powers is fairly broad in Chi le . The president has the right to "exercise statutory authority in a l l those matters which are not o f a legal nature, without prejudice to the power to issue other regulations, decrees or instructions which he may deem appropriate for the enforcement of the law" (Article 32, N o . 8). Siavelis (2000, 20-25) outlines non-statutory sources of presidential power which although not specifically outlined in the 1980 Constitution, "do result from the overall framework of presidentialism set out in the document and grant the president increased influence and lawmaking capabilities" (20). 5 8 Riquelme (1999, 33) argues that "The liberal principle of checks and balances has been distorted in Chile , establishing in practice a form of differentiated citizenship, with special rights o f representation for the social and political sectors which monopolized power during the military regime." 49 inst itut ional ised checks and balances between government branches. A s the negotiated pact fades i n the memory, the potential is there, due to the authoritarian enclaves st i l l present in Ch i l e , for conf l ict between branches o f government, social polar isat ion and regression i n basic features o f polyarchy. Indeed, S iavel is points to signs o f this conf l ic t already rearing their heads in today 's Ch i le . Th i s reality wou l d surely not have been predicted by reading the work o f pact theorists. For instance, Gretchen Casper and M i c h e l l e Tay lor (1996, 14) make the c l a im that countries, due to the d iv i s ions w i th in them, w h i c h adopt " intense negotiat ions" during the transit ion process are more l i ke l y to make progress toward democratic consol idation. Democracy is more l i ke l y when negotiations dur ing the transition process are d i f f icu l t rather than easy. Thus, i n the Ch i l ean example, major d iv is ions at elite and mass levels a l lowed for some signif icant compromises among elites that have helped Ch i l e move toward democratic consol idat ion, and serve as a mode l for other countries to f o l l o w . 6 0 Signs of Conflict in Chile Th i s section w i l l point to a variety o f signs in contemporary Ch i l e that can be examined to suggest that executive/legislative conf l ict i n Ch i l e is perhaps not too far away. G i v e n the fading o f the special context o f the transition, and a return to what cou ld be labeled the " no rma l i s a t i on " o f po l i t i ca l interaction, demands for a more equitable 5 9 Despite my emphasising the strength of the presidency, it would be wrong to ignore the role of the legislature in the Chilean political process. Article 48 of the constitution does say that an exclusive attribute o f the Chamber of Deputies is to oversee executive actions. The Chamber of Deputies can exercise its oversight function by 1) forming commissions to investigate specific acts; 2) submitting oficios (official requests for information) to the executive branch; and 3) the initiation of constitutional accusations against the president, ministers o f state, or other officials. Siavelis (2000) argues that, in the years since the transition, the Congress has not been able to effectively carry out its oversight functions, undermining it role as a check on presidential authority (see, 26-3 1). 50 sharing o f the economic success 6 1 o f the nation are bound to grow more vocal . In my op in ion there are st i l l important d iv i s ions w i th in Ch i lean society, but these sources o f conf l ic t have been masked by the recent transitional context. W h i l e I am not suggesting that the factors to be outl ined below are extreme div is ions l i ke ly to lead to the k ind o f brutal dictatorship Ch i l e experienced in the 1970s and 1980s, it seems that they cou ld further distort basic features o f polyarchy in Ch i l e and undermine any chance o f a better qual ity o f democracy emerging in the future. They point to qualitative d i f f icu l t ies w i t h i n Ch i l ean democracy and to the d i f f i cu l ty i n improv ing the funct ion ing o f the system w i th in the confines o f a negotiated pact that agreed to maintain the authoritarian enclaves o f the 1980 Const itut ion. They also present channels that cou ld potential ly be manipulated by future presidents who once elected, proceed to distort polyarchy, perhaps w i th widespread pub l i c support. Aga in , these are factors that were not accounted for in the pacts literature. The first s ign o f potential conf l i c t that one can use as evidence o f disagreement and the cont inued salience o f pol i t ics in Ch i le , lies i n the signif icant role that class conflict s t i l l plays. A study, cited in S iavel is (2000), a imed at measuring the type and extent o f tension between different groups in Ch i l ean society, found that " c on f l i c t between the r i ch and poo r " was considered the most s ignif icant in a list o f ten categories. In fact, 5 5 . 9 % o f those surveyed in 1991 rated this as a "gran con f l i c t o " (a large or important conf l ic t ) , and in 1992 that number had g rown to 58 .9%. Th i s category po l l ed 6 0 See especially Casper and Taylor (1996, chapter 6). Here Chile is held up as an example of an "intense negotiation path" to a consolidating democracy. 6 1 Chi le ' s 1998 G D P was US$74.3 bil l ion, ranking it 40 t h in the Wor ld . Yet wealth in Chile is very unevenly distributed, with the richest tenth of the population receiving 46 .1% o f the national income and the poorest tenth receiving just 1.4% of the national income. From Latin American Bureau ( L A B ) website. Available at: http://www.lab.org.uk/countryprofiles/index.html 51 higher than " con f l i c t between the government and armed forces," w h i c h received 4 4 . 3 % 62 and 5 1 . 6 % in these two years respectively. Certa in ly, it appears that the l i ke ly reason behind these results is the g rowing economic disparity between r i ch and poor. A recent W o r l d Bank report, for example, found that w i th i n South Amer i ca , income inequalit ies in Ch i l e are second only to B r a z i l . 6 3 E c onom i c restructuring over the last twenty - f i ve 6 4 years has transferred national wealth and power to a smal l group o f Ch i lean grupos (conglomerates) who dominate the economy. The top six grupos (as o f 1997) own more than 2 0 % o f C h i l e ' s capital stock, and f rom 1990 to 1995, the total assets o f the top six grupos grew f rom an equivalent o f 5 4 . 2 % o f G D P to 5 5 . 8 % (Rosenfeld and Marre 1997). Poverty in Ch i l e has also risen. In 1994, 2 8 . 4 % o f Chi leans l i ved in poverty, compared w i th 1 7 % in 1970. 6 5 In a 1998 address to the Organizat ion o f Amer i c an States ( O A S ) , Jose Anton io Ocampo, Execut ive Secretary o f the U N ' s E conomic Commi s s i on for La t in A m e r i c a and the Car ibbean, cal led C h i l e ' s income distr ibution problem "quite intractable" (E l l i s on 1998). Add i t i ona l l y , it is c ommon for Chi leans o f a l l classes to compla in about cr ime, wh i ch has increased quite notably since the dictatorship ended (E l l i son 1998). b l This data is quoted in Siavelis (2000, 98-100). Participants in the survey were asked to respond to the following statement: "Some people believe that in Chile there exist diverse types of conflict between groups; others believe that these conflicts are less important or do not exist. For each case that I give you, tell me i f you believe that today in Chile there exists a great conflict, a lesser conflict, or i f no conflict exists". From Participa, Estudio sobre la democraciay participcion politica, (Santiago: Participa, 1993), 36. 6 j From L A B website. Available at: http://www.lab.org.uk/countryprofiles/index.html 6 4 Neoliberal economic reforms initiated by the Pinochet regime under the influence of the Chicago school economists resulted in extremely uneven distributions o f wealth. For example, in the years from 1978-1988, the income o f the richest 10% o f the population grew by 83%. From L A B website, available at: httpV/vvmv.lab.ora.uk J /countrs'profiles/index.html It is widely accepted that neoliberal economic policies (initiated under Pinochet) have continued in the postauthoritarian era. See, for example, Larrain and Laban, (1997) who, in analysis of Chile 's economic policies of the last twenty years, argue that there has been a great deal o f continuity in the post transition period. Larrain and Laban paper available at: http://www.hi id.harvard.edu/pub/pdfs/612.pdf 52 Th i s evidence suggests that the Ch i l ean economy does not benefit everyone. Perhaps it might be said that Ch i l e ' s h ighly praised " jaguar " economy is actually less l i ke the " w i l d cat " and more l ike the B r i t i sh car - a symbol o f luxury and unrel iabi l i ty. " In 1970, Ch i l e was w e l l k n o w n for its pub l ic health and education systems, had a substantial profess ional midd le class and a stable work ing class... .But free-market reforms were used to rad ica l ly concentrate wealth and power i n the hands o f a few, destroy labor ' s bargaining power by undermin ing its base in tradit ional industry and the state, and strip away ex ist ing social guarantees" (Rosenfeld and Marre 1997). Perhaps the most damaging consequence o f these economic disparities is that Chi leans, once some o f the regions most fa ithful democrats, have largely lost their faith in the system. A major survey in 1996 by respected po l l i ng f i rm, Latinobardmetro, found that 3 5 % o f Chi leans answered " n o " when asked: " W o u l d you be ready to defend democracy i f it were threatened?" This was the worst showing out o f 17 nations where the question was asked (E l l i son 1998). The most recent 2001 Latinobardmetro s u r vey 6 6 found that on ly 45%> o f Chi leans considered democracy to be preferable to any other k i nd o f government, down f rom a high o f 61%o in 1997. Th i s figure ranked Ch i l e i n a mere 9 t h pos i t ion out o f the 17 La t in Ame r i c an nations surveyed. Ch i l e ' s percentage is fa i r ly l o w cons ider ing that the level o f satisfaction is about the same as nations w i t h much less favourable economic and po l i t i ca l s ituations. 6 7 The region wide average was 4 7 % . The survey also found that 1 9 % o f Chi leans bel ieved that an authoritarian government was 6 5 Data quoted in Rosenfeld and Marre (1997). 1994 data, from the 1994 Survey of National Socio-economic Characterization (Encuesta C A S E N ) , (Santiago: Mideplan, 1995); 1970 data from the U N Economic Committee on Latin America ( E C L A ) , Divis ion of Statistics and Projections. 6 6 Statistics from 2001 Latinobarometro poll are taken from The Economist, " A n Ala rm C a l l for Latin America 's Democrats," 28 July 2001: 37-38. 6 7 Argentina, Bo l iv i a , Costa Rica, Honduras, Mex ico , Peru, Uruguay and Venezuela all had rates of satisfaction higher than Chile . 53 preferable to a democratic one under certain circumstances, again p lac ing Ch i l e i n 9 t h posit ion. These sentiments are manifested in a startling drop in electoral part ic ipat ion i n Ch i le . In the December 1997 parl iamentary elections, the sum o f non-registered voters, abstainers and "voters for nobody " came to about 4 0 % o f those e l ig ib le to v o t e 6 8 (R ique lme 1999, 31). In addit ion to popular dissatisfaction and dis i l lus ionment w i th Ch i l ean democracy, one can point to further signs o f conf l ict that have not been put to rest v i a C h i l e ' s pacted transition. Add i t i ona l signs o f conf l ict come f rom unresolved po l i t i ca l issues that continue to haunt democratic leaders. In M a y 1995, a severe po l i t i ca l cris is hit Ch i l e over the conv ic t ion o f General Manue l Contreras and Br igadier General Pedro Esp inoza. Th i s event created an impasse between c i v i l i an leaders and mi l i tary authorities and served as a stark reminder that the authoritarian per iod in Ch i l ean history had not been la id to rest. Contreras was convicted for his role in the Washington D.C. bomb ing assassination o f former Fore ign M in i s te r Or lando Letel ier in 1976, and was eventually j a i l ed after several months o f stalemate during wh i ch the General refused to submit to c i v i l i an authorities. Contreras commanded the fu l l backing o f the army and Pinochet who, in very strong terms, reminded C h i l e ' s democrat ical ly elected authorities that " ou r people remain members o f our institution forever " and "the army never abandons one o f its men who is i n t r oub le . " 6 9 Th i s event highl ighted the unresolved po l i t i ca l questions fac ing Ch i l ean democrats and the p r i ck l y question o f how far c iv i l i ans should go in Riquelme (1999) traces the decline in electoral participation since the transition. Quoted in The Chicago Tribune 18 June 1998, 18. 54 f ind ing just ice i n human rights cases (not subject to the 1978 mi l i tary p roc la imed amnesty) i n vo l v i ng the previous regime. Add i t i ona l l y , although the question o f ideology has narrowed in Ch i l ean po l i t ics , both w i th in parties (Roberts 1998, see especial ly chapter 2) and among the electorate, party attachments remain quite strong in Ch i le . Indeed Samuel Va lenzue la and T imothy Scu l l y (1997) argue that there is a great deal o f continuity in the electoral preferences o f Chi leans both before and after authoritarian rule. They contend that the tradit ional pattern i n Ch i l ean pol i t ics o f tres tercios (three th i rd s ) 7 0 endures. It appears that although the meaning o f " L e f t " and " R i g h t " in Ch i l e has undoubtedly changed, the terms remain va l i d i n categoris ing the cont inuing fundamental d iv i s ions among Ch i lean voters. Ar turo Fontaine (1995) argues that there are three basic ways in wh i ch people ' s po l i t i ca l preferences can be d iv ided. One is soc ioeconomic (development versus equity), the second is po l i t i ca l (order versus democracy and c i v i l rights), and thirdly there is historic (Pinochet versus Salvador A l lende). He presents evidence o f l inks between a person 's ideo log ica l self-placement (Left, R ight or Centre) and the side that they come down on in expressing their v iews on a number o f controversial questions. For each question, people ident i fy ing themselves as supporters o f parties o f the R ight expressed support for the f irst item in each o f the above dichotomies. People on the Left, chose the latter, and people i n the Centre expressed an op in ion somewhere in between. Those who describe themselves as ident i fy ing w i t h the Left, expressed much greater levels o f support for state attempts to promote equality and ensure ind iv idua l rights. They were much less concerned w i t h the issue o f pub l i c order, and more l i ke ly to have a favourable op in ion o f the A l l ende 7 0 Tres-tercios refers to the three way competition that exists in Chile between the Centre, the Right and the Left. 55 administrat ion and a negative op in ion o f the Pinochet regime. Those on the Right, bel ieved economic development to be more important than equality, and were more preoccupied w i t h order than human rights. They favoured P inochet ' s rule and had negative associations w i th A l l ende ' s government. People p lac ing themselves in the Centre, had a m i xed evaluation o f both the Pinochet and A l l ende administrations and expressed concerns that were somewhere between those expressed on the Lef t and R ight . 7 1 Fonta ine ' s data suggests that quite dist inctive po l i t i ca l sectors remain i n Ch i l e , w i t h programmatic, indeed ideolog ica l differences between them. H i s central contention is that when it comes to certain controversial issues, partisan differences remain, and are contained w i th i n the traditional notions o f Left, R ight and Centre - furthermore, the people continue to define themselves in these terms. Conclusion Profound economic and distributive d i f f icult ies st i l l need to be tackled in Ch i le . The hope for many o f the elites at the negotiation tables in the late 1980s wou l d have been that the " fo rced consensus" wou ld help brush d iv i s ions under the carpet. But, the reality is that the consensus in Ch i l e is much thinner than analysts wr i t ing in the wake o f 79 the pact suggested. A l though the context o f the transition served to band-aid some o f the wounds o f the past, the lack o f consensus cannot be ignored forever i n a complex society, composed o f diverse groups w i th distinct interests and demands. Ch i l e remains a 7 1 The findings in Fontaine's (1995) work are quoted in Siavelis (2000, 101). 7 2 Convinced by the scholarly consensus that pacts were a beneficial route to stable democracy, many works written in the wake of Chile 's transition lauded it as an exemplary case for other nations to follow. 56 society that is d i v ided pol i t ica l ly , both at an elite and at a mass level. Justice and impunity along w i th continued social and economic inequality are issues that st i l l l im i t the effectiveness and meaning o f democracy in Ch i l e for a large number o f its people. Perhaps the most dramatic manifestation o f the div is ions fac ing Ch i lean society came i n the fo rm o f the extra-territorial arrest o f Augusto Pinochet in the Un i t ed K i n g d o m in October 1998. It is to this specif ic case, w h i c h has done more than anything else to affect the internal structure o f Ch i l e since the transition, that the next chapter w i l l turn. The P inochet saga has highl ighted the most important and d i f f i cu l t issue fac ing C h i l e ' s democracy: how to deal w i th the crimes o f the previous regime. Despite the attempt o f the pacted transition to close this chapter o f Ch i l ean history, international events and the unmet yet increasingly vocal i sed demands o f the thousands o f Chi leans adversely affected by P inochet ' s brutal regime, ensure that countless pages have yet to be written on this damaging period o f Ch i l e ' s history. They seem to overestimate the degree of consensus within Chilean society. See Tulchin and Varas (1991), Boeninger(1991) and Cavarozzi (1992). 57 CHAPTER 4: CHANGES IN THE INTERNATIONAL CONTEXT: THE PINOCHET SAGA AND THE COLLAPSE OF PACTS Wr i t i n g over twenty-f ive years after the publ icat ion o f "Trans i t ions to Democracy " , Ru s tow acknowledged an important omiss ion f rom his c la irvoyant article o f 1970: namely the importance o f the international context. It certainly remains true that domestic factors provide the cruc ia l setting for the emergence o f democracy and that democrat izat ion is a po l i t i ca l rather than an economic or psycholog ica l process. Nevertheless, a quarter century later, I wou l d emphasize the interaction between economic and po l i t i ca l factors and also the importance o f international relations in mak ing 'the wo r l d safer for democracy, ' as W o o d r o w W i l s o n put it ( in Ander son 1999, 13). The Pinochet case highlights the f l aw I mentioned i n Chapter two w i t h regard to the pacts literature - its failure to account for the phenomenon o f international level change hav ing an impact at the national level. G i v e n the context i n w h i c h he was wr i t ing, it is understandable that Rus tow (1970) wou l d not place too great an emphasis on the importance o f international level pressures for national democratic trans it ions. 7 3 Yet, later scholarship on the phenomenon o f pacts has been conspicuous for its non-recognit ion o f international level influences on negotiated transitions ( O ' D o n n e l l and Schmitter 1986, K a r l 1990, H i g l ey and Gunther 1992, Casper and Tay lor 1996). L o o k i n g to the recent unravel ing o f pacts in La t i n A m e r i c a provides evidence that international leve l change has been a cruc ia l factor in altering the domestic condit ions for democracy. It was the arrest o f Pinochet in a foreign land that fundamental ly altered the internal structure o f C h i l e ' s pol it ics. It ruptured the pact made between c i v i l i a n democrats and the mi l i tary, altered legal structures w i th in Ch i le , and highl ighted the country ' s skewed democracy and consequently, forced increased pressure for further constitutional 58 changes. International level change also contributed to the collapse o f the Venezue lan and C o l o m b i a n pacts. They had been systems o f rule that shared power between the two dominant parties in each country at the expense o f Communis t s who were exc luded f rom the po l i t i ca l arena. Yet in the post C o l d War context, a U S foreign po l i cy bui l t on anti -c ommun i sm was no longer relevant. 7 4 Consequently, the Venezue lan and C o l o m b i a n elites started to lose national level support and just i f icat ion for mainta in ing their o l igarch ica l and exclus ionary fo rm o f democracy. Th i s study w i l l now look spec i f ica l ly to the case o f Pinochet, and its impl icat ions for pacts. To br ief ly reiterate what was noted in chapter two, the terms o f the pact negotiated between the Pinochet regime and the Concertacion, established that democratic procedures, l ike elections, wou ld become "the only game in town. " In return, the R ight managed to maintain guarantees for impunity provis ions for human rights crimes, as w e l l as the preservation, minus 54 reforms, o f the 1980 Const itut ion. P inochet remained Commander in C h i e f o f the armed forces, and peaceful ly moved out o f the presidential palace to another off ice in the M in i s t r y o f Defense. These new rules became the guide for Ch i l ean democracy. They were rules that were established in an international environment where the C o l d War, although in its f ina l days, was st i l l a reality. Th i s international c l imate strengthened P inochet ' s hand i n the negotiation process after he lost the plebiscite o f 1988. He successful ly made the case that attempts to prosecute mi l i tary personnel for " po l i t i c a l reasons" (Henr iquez 1999) r i sked returning 7 3 During the C o l d War the ideologically polarised world did little to foster global democracy. Major powers were more likely to throw their support behind non-democratic, yet loyal regimes. 7 4 In the late 1980s and throughout the 1990s, the US have reversed their previous Latin American policy -whereby they accepted and even encouraged military regimes that repressed potential communist insurgencies. With the collapse of the Soviet Union, the U S felt able to promote democracy with confidence that the resultant governments would not pursue economic policies that would go against U S interests. 59 Ch i l e to what he considered the polarised chaos o f the early 1970s. A speech made by the General in the wake o f the pacted transit ion to c i v i l i an government made clear that he was s t i l l th ink ing in terms o f ideolog ica l warfare: the nation versus M a r x i s m . A n t i -communist rhetoric remained part o f the mi l i tary just i f icat ion for their amnesties, w i t h P inochet c l a im ing that the "general law o f amnesty" should be " r i go rous l y " upheld to avo id any form o f "c lass struggle" (Henr iquez 1999). A f te r the pact was established, P inochet c lear ly felt secure. He thought that he had negotiated an air-tight agreement that wou l d a l l ow h i m to l i ve out the rest o f his days in peace. Yet, as recent events have shown, the rules negotiated were not so r ig id as to prevent their adjustment over time. Scholars who hai led the " succe s s fu l " Ch i l ean transit ion as being an exemplary case for others to emulate, fa i led to recognise that pacts may not be permanent. The elites who negotiated what they considered "case c l o s ed " amnesties, designed for "perpetuity, " underestimated the power o f changing international l aw and global mob i l i t y around the issue o f humanitarian justice. They overestimated the inv io lab i l i t y o f sovereignty and non-intervention in other states' affairs. The changing post C o l d War international environment has altered the terms o f C h i l e ' s C o l d War dr iven pact. O n October 16, 1998, General Pinochet was arrested in L ondon by the Metropo l i tan Po l i ce at the request o f Spanish Magistrate, Baltasar Garzon. Th i s event represents the first serious attempt anywhere in the wor l d to br ing to just ice a former head o f state for cr imes al legedly committed in the country o f wh i ch he was head o f state. Pinochet was arrested on the basis o f two prov is ional arrest warrants issued by U K 60 magistrates, at the request o f Spanish courts, pursuant to the European Convent i on on Ex t r ad i t i on . 7 6 The former General was accused o f having authorised (or at least knowing l y permitted) the torture, disappearance, and taking hostage o f thousands o f people. A c c o r d i n g to the second warrant, his v ict ims inc luded not only Ch i l ean cit izens, but also cit izens o f other countries, inc lud ing the Un i ted K i n g d o m and Spa in . 7 7 Thus began a saga that w i l l have profound impl icat ions for the future, not on ly o f Ch i l e itself, but o f numerous legal areas, inc lud ing international c r im ina l law, human rights, state immunity, ju r i sd ic t ion, extradition, and the relationship between international l aw and domestic legal systems. 7 8 Pinochet in International Context The arrest o f Pinochet in Br i ta in wou ld have been inconceivable dur ing the C o l d War, but was able to occur due to changes in the international environment that n o w deem arguments o f "noninterference" to be less compel l ing. I wou l d argue that there has been a gradual shift i n this d irect ion going back to the late 1940s, but that the overarching " The first provisional warrant had been issued, on the basis of the 1989 Extradition Act , by Nicholas Evans, a Metropolitan Stipendiary Magistrate on 16 October, 1998. The allegations concerned the murder of Spanish citizens in Chile , offences that were within the jurisdiction of Spain. The second provisional arrest warrant was issued by another Stipendiary Magistrate, Ronald Bartle. This time more offences were alleged, including conspiracy to commit acts o f torture, hostage-taking and conspiracy to murder. 1 6 European Convention on Extradition, 1957, incorporated in the U K by the European Convention on Extradition Order in 1990. 7 7 His crimes were alleged to have formed part o f an international conspiracy to track down and murder opponents of his military regime in Chile , the United States, and elsewhere. In his arrest warrant, Garzon asserted that Pinochet was "in charge of creating an international organization that carried out a systematic plan of illegal detentions, abductions, tortures, murders and/or disappearances o f peoples from Argentina, Spain, the United Kingdom, the United States, Chi le and other countries...in order to exterminate polit ical opposition." From, Washington Times, 11 December 1998, sec A , p i 7 , "Judge in Spain Charges Pinochet, Seeks Assets Frozen". 7 8 For a more in depth legal analysis than this study wi l l provide, see generally Bianchi (1999) and Byers (1999). 61 strategic constraints o f the C o l d War era prevented any broad movement away f rom tradit ional notions o f sovereignty protection. S ince the 1648 Treaty o f Westphal ia, international relations have been organised around the pr inc ip le that states are sovereign w i th i n the international structure and that there is no higher authority. The pr inc ip le o f state sovereignty is about non- intervention in the affairs o f other states. Consequently, the idea that a former head o f state cou ld be placed before the courts o f another state and held to task for v iolat ions o f human rights was almost inconceivable. Because the worst cr imes against humanity were often commit ted (or at least permitted) by heads o f state, or other regime members attempting to quash opposit ion, the actual enforcement o f international c r im ina l l aw was problematic. Th i s has changed somewhat since the Second W o r l d War. In the post war years, ind iv iduals , N G O s and other international bodies have emerged as international actors, part ic ipat ing in an international discourse, and gaining important rights, such as the right OA o f ind iv iduals not to be tortured. Since 1945, international l aw has shifted away f rom its 19 t h century role o f being a " l a w between states only and exc lu s i ve l y " ( B u l l 1977, 145). It is now w ide l y held that individuals are subjects o f international law, on the evidence o f / y The Westphalia settlement was based upon a recognition of, and respect for, differences among states. The fundamental principle rule of Westphalia, cujus regio, ejus religio (where you live you adopt the religion in force), allows for that. Each sovereign was to determine the religious affiliation of his subjects free from external constraints from whatever source. The principle of sovereignty, also enunciated in the Westphalia settlement, meant that the domestic arrangements of states were no longer to be the subject o f judgement, interference, or coercion by any other state or any trans-state authority, like the Holy Roman Empire or the Pope. 8 0 On the right not to be tortured, see the "International Covenant on C i v i l and Political Rights", December 16, 1966, article 7; also "Declaration on the Protection o f A l l Persons from Being Subjected to Torture and Other Cruel , Inhumane or Degrading Treatment or Punishment", General Assembly Resolution 3452, U N G A O R , 30 t h Session, U . N . D o c . A / R E S / 3 4 5 2 (1975). See also Rodley (1999). 62 such charters as the Nuremberg and Tokyo War Cr imes Tr ibunals , the Un i ve r sa l Declarat ion o f H u m a n Rights ( U N D H R ) o f 1948, the Covenant on C i v i l and Po l i t i c a l Rights, the Covenant on Economic , Soc ia l and Cul tura l Rights o f 1966, and the European Convent ion on H u m a n Rights o f 1950. In addition, the 1984 U N Torture Convent ion -ratif ied by 112 countries, inc lud ing Ch i le , Spain, and the Un i ted K i n g d o m - requires that states try or extradite al leged torturers found in their territories. The status o f subjects o f international l aw has also been g iven by many authorities to groups other than states: the Un i ted Nat ions and other universal or near-universal intergovernmental organisations, regional intergovernmental organisations, non-governmental organisations and mu l t i -national corporations. Despite these legal mechanisms introduced after 1945, the post war international context prevented their broad implementation. F ew states had the courage to put lofty legal pr inc ip les l ike the 1984 Torture Convent ion into practise. U n t i l the wan ing o f the C o l d W a r in the late 1980s, the international normative consensus around human rights was thin. Certa in ly, human rights were on the international agenda, but they were largely submerged into C o l d War ideolog ical r ivalry. Soviet bloc states, along w i t h repressive third wo r l d regimes, formal ly endorsed internationally recognised human rights, but were 8 1 A well known quote from the Nuremberg judgement provides evidence of individuals being held accountable to international laws. "The principle o f international law, which under certain circumstances, protects the representative of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings...individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State i f the State in authorizing action moves outside its competence under international law" (22 Trial of the Major War Criminals Before the International Military Tribunal (1949) 466). 8 2 The Nuremberg and Tokyo War Crimes Tribunal together convicted more than 3,600 German and Japanese officials and executed 1,019 of them. From Amstutz (1999, p318). Although, it is important to note that Tokyo and Nuremberg left little by way of sentencing guidelines applicable to cases of war crimes and crimes against humanity. Thus there was little by way of precedents to assist the creation of the international tribunals for Rwanda and the former Yugoslavia. 63 able to frequently v iolate them w i th impunity. Instead o f advancing human rights concerns, th i rd wo r l d states advanced c la ims for the pr ior ity o f economic and soc ia l rights, self-determination or development, and d id nothing to discourage the neglect o f human rights causes. Th i s was acceptable in an international context that deemed the pr inc ip le o f "non- in tervent ion " to be sacrosanct. Th i r d w o r l d states emphasised the inv io lab i l i t y o f sovereignty and the pr imacy o f the norm that states ought to be immune f rom interference in their affairs. When great powers d id intervene, as i n the Soviet invas ion o f Czechos l ovak i a i n 1968, or i n the U S involvement i n V i e tnam, care was taken to prov ide a cover ing rationale by arguing that great power intervention had been inv i ted by some legit imate national authority. W i t h the col lapse o f the Soviet U n i o n , the changed international power balance a l lowed human rights to come to the fore. In recent years, the pr inc ip le that there is no immuni ty for any ind iv idua l w i th respect to crimes under international l aw has been incorporated into the statutes and decisions o f the International C r i m i n a l Tr ibunals for the 83 84 former Yugo s l a v i a and Rwanda. Moreover, in Ju ly 1998, 120 states adopted the R o m e Statute o f the International C r im ina l C o u r t 8 5 w i th jur i sd ic t ion over war cr imes and cr imes against humanity, i nc lud ing those committed dur ing peacetime (See von Hebe l (1999), Lee (1999)). The R o m e Statute exp l i c i t l y provides that heads o f state have no immun i t y 8 J The International Criminal Tribunal for the former Yugoslavia ( I C T Y ) in Furundzija held that the principle that individuals are personally responsible for acts o f torture, whatever their official position, even i f they are heads o f state or government ministers, is "indisputably declaratory of customary international law". Prosecutor v. Anto Furundzija, supra note 32, at paragraph 140. 8 4 See Statute o f the International Criminal Tribunal for the Former Yugoslavia, U N Security Counci l Resolution 827, U . N . S C O R , 48 t h Session 3217 t h mtg., at article 5, U . N . Doc. S/RES/827 (1993), amended by U . N . S . C Res. 1166, U . N S C O R , 53 r d Session, 3878 t h mtg., U . N . Doc. S/RES/1166 (1998); Statute of the International Criminal Tribunal for Rwanda, U . N . S . C . Res. 955, U . N S C O R , 49 t h Session, 3453th mtg., at article 3, U . N . Doc. S/RES/955 (1994). 8 5 Seven nations voted against the Rome Statute. Among the nations opposing the Statute were Iraq, L i b y a and the United States. The I C C wi l l come into being when 60 nations formally ratify the treaty, a process that may take years. 64 w i t h respect to cr imes under international law. These are a l l indicators o f the extent and d i rect ion that the changes in international l aw have taken: changes that have somewhat eroded tradit ional notions o f state sovereignty. The not ion o f human rights protection has penetrated contemporary international society w i th sufficient depth that standing by in the face o f gross human rights atrocities seems increasingly unacceptable to a g rowing number o f actors. There is no shortage, therefore, o f substantive content to human rights and international c r im ina l law, nor is most o f the substance new. However, the U N D H R and the subsequent human rights treaties fa i led to prov ide any mechanism for the international prosecution o f those accused o f cr imes under international l a w . 8 6 U n t i l recently, national courts have provided the only enforcement power over international c r imina l law. Some human rights treaties stated that the v io lat ion o f certain cr imes a l lowed for the "un iversa l j u r i s d i c t i on " on the part o f national courts, and universal ju r i sd ic t ion over at least some crimes is largely regarded as exist ing under customary international law. Several countries have implemented these international enforcement powers into their national legal systems, as the Un i ted K i n g d o m d id w i t h regard to torture in its C r i m i n a l Justice A c t o f 1988. Ch i l e also ratif ied the Torture Convent ion in 1988. 8 7 8 5 A number o f relatively effectual treaty-based mechanisms do exist, including the Optional Protocol to the International Covenant on C i v i l and Political Rights, U N OPI/598 (March, 1976), the European Court o f Human Rights and the Inter-American Commission and Court o f Human Rights. Having said that, these mechanisms only provide for complaints against states, and not for the prosecution of individuals. A l so , the application of these mechanisms all have a limited scope, whether geographically or in terms o f the refusal of many states to ratify their constitutive treaties. 8 7 Given what has recently happened to Pinochet, a salient question to ask regarding Chi le ' s 1988 ratification of the Torture Convention is: why did Chile ratify this convention when they were continuing to violate it? I have searched in vain for evidence of a conversation, at the time of the transition to democracy, regarding the potential vulnerability of Chile 's torturing elites to the implications o f this convention. The conclusion 1 have derived from the lack of evidence is simply that human rights abusing elites from the Pinochet regime, including the General himself, never foresaw a situation arising where they would be vulnerable to any kind o f legal trouble. Confident in the unquestionable nature of Westphalian sovereignty norms, and given the Co ld War context of the late 1980s, the Pinochet government probably never 65 But most national courts have been reluctant to exercise this universal ju r i sd ic t ion, other than to war cr imes committed during WWI I . Consequently, many v ic t ims o f serious human rights v io lat ions have been left w i th little more than empty promises, and scant protection i n the face o f mi l i tary brutality. The most obvious factor that explains the reluctance o f national courts to apply this universal jurisdiction lies in the notion o f sovereignty. A c co rd i n g to society o f states sovereignty norms, whose foundations were la id at Westphal ia, non-intervention i n the affairs o f other states is the norm and it is acts o f intervention in other states that must be just i f ied. In short, the not ion that i f states m ind their own business, they have the right to be left alone: laissez faire. The idea o f national courts having the right to intervene in another state's affairs in the wake o f human rights v iolat ions is subversive to the who le pr inc ip le that man should be organised as a society o f sovereign states. A s Hed ley B u l l puts it: " i f the rights o f each man can be asserted on the wor l d po l i t i ca l stage over and against the c la ims o f his state,.. .then the pos i t ion o f the state as a body sovereign over its cit izens, and entitled to command their obedience, has been subject to challenge, and the structure o f the society o f sovereign states has been placed in jeopardy. The way is left open for the subversion o f the society o f sovereign states on behalf o f the alternative organis ing pr inc ip le o f a cosmopol i tan commun i t y " ( Bu l l 1977, 152). S ince international l aw is about the way in wh i ch nations generally behave towards one another, the not ion o f sovereign immuni ty is a rule o f international law par excellence. Ye t several interventions at the end o f the twentieth century indicate that the grounds o f legit imate and l awfu l intervention in sovereign states is being expended. What imagined a situation where national courts would be wi l l ing to exercise universal jurisdiction over the crime of torture within Chile. Having negotiated a domestic amnesty, elites clearly were not concerned that 66 is more, these interventions are being just i f ied, the question is: should they be? There is a large body o f international law, aided by the conventions o f the international society o f states, that concludes that international communit ies do not have the right to intervene, that sovereignty is inv io lab le and not open to qual i f icat ion. A t the same t ime, there are a number o f precedents ( l ike, among others, the above mentioned Tr ibunals created for cr imes committed in the sovereign states o f Rwanda and Yugos lav ia ) wh i ch suggest otherwise, and point to an erosion o f sovereignty wh i ch is being accepted without v igorous protest. James Rosenau makes the argument that irrespective o f the preva i l ing legal order, the odds are against international l aw retaining its v iab i l i ty w i t h respect to the prerogatives o f statehood. " The legal status o f sovereignty rights is bound to be subverted by the transformative dynamic currently at work in wor ld po l i t i c s . " The sensit ivity to human rights concerns that we have witnessed more and more o f in the 1990s, according to Rosenau, is not conf ined to publ ics and non-governmental organisations. " S o many governments have evidenced a readiness to adhere to m in ima l standards o f human rights that the emergent norms in this area come close to having the clout and prestige o f l a w " (Rosenau 1995, 221). If wo r l d pol i t ics operates w i th a doctrine o f humanitarian intervention, then states and their leaders are no longer protected, normatively speaking, by their sovereignty. International society, to borrow Robert Jackson ' s term, wou l d be a universitas in that regard (2000, 251). Post C o l d War experiences offer concrete evidence that i n certain circumstances, humanitarian considerations come before sovereign rights in the just i f i cat ion o f intervention in a state's affairs. One can point to the arrest o f Pinochet, the international legal mechanisms would challenge them. 67 prosecution o f H i s se in Habre, the " A f r i c a n P i noche t " 8 8 , and the current extradit ion o f M i l o s e v i c in the aftermath o f the UN intervention in Ko s o vo as indicat ive o f an international wake-up ca l l for tyrants and v ic t ims al ike. It seems that cit izens, for so long trampled upon by blood-thirsty dictators, are achieving a new standing i n contemporary international society. S temming f rom this emerging reality, a salient question w i l l be addressed in the f o l l ow ing chapter: is there st i l l a need for pacts protecting the " v i t a l interests" o f outgoing autocrats? The Arrest of Pinochet O n October 16 1998, as Pinochet was recovering f rom back surgery in a L o n d o n hospital, he was roused f rom his sleep by a Scot land Y a r d o f f i c i a l who declared the surpris ingly s imple terms o f the arrest warrant: it alleged that Pinochet, between 11 September 1973 and 31 December 1983 " d i d murder Spanish cit izens in Ch i l e w i th in the jur i sd ic t ion o f the government o f S pa i n " (Brody 1999, 18-19). It has been reported that at this point, P inochet ' s m i nd sunk into a haze, and that for several days he cou ld not comprehend what was happening to h im. Pinochet was clearly bemused. Fo r so long he had seen everything f rom the lofty heights o f a great statesman who believes h imse l f to be beyond the reach o f human justice. It was he, after a l l , who had established the rules for what many pundits were hai l ing as "the exemplary Ch i lean trans it ion." It was he who had completely transformed Ch i l e ' s economic system, leaving an impr int on every aspect o f Ch i l ean l i fe. D r i v en by a false sense o f his o w n importance and his be l ie f that he was 8 8 In a case largely undocumented in western media, in February 2000, a Senegalese court indicted Chad's exiled former dictator, Hissein Habre, on torture charges and placed him under house arrest. It was the first time that an African had been charged with atrocities by the court o f another African country. Habre ruled Chad from 1982 until he was deposed in 1990 by Idriss Deby and fled to Senegal. Since Habre's fall, 68 immune f rom arrest due to the impenetrable nature o f state sovereignty and non-intervention, he ignored advice that a determined Spanish judge was investigating humanitar ian cr imes in Ch i l e and Argent ina, and that according to extant rules, he might be vulnerable to arrest. He only wanted to come to Eng land for a bit o f surgery, a shop around Harrods and a nice chat w i th his o ld and ever grateful-friend, M r s Thatcher . 8 9 B y travel l ing to Br i ta in , Pinochet showed that he d id not foresee a situation where the amnesty he had negotiated i n Ch i l e cou ld be challenged. H e made a serious error o f judgement. The second arrest warrant issued against Pinochet inc luded more offences, for example, conspiracy to commit torture, hostage taking and conspiracy to murder. Some o f the crimes, notably the torture, were "c r imes under international l a w " - perpetrators o f w h i c h may be prosecuted by any state regardless o f their nationality, the national ity o f their v ic t ims, or the country in wh i ch the cr ime was committed. For this reason, at the t ime o f his arrest, there appeared to be no obstacle to his extradit ion nor any apparent impediment to his prosecution in the U K . However, P inochet ' s lawyers argued that, as Ch i l ean Head o f State during the period in wh i ch most o f the al leged cr imes were committed, Pinochet was immune f rom the jur i sd ic t ion o f the Br i t i sh courts, i nc lud ing its extradit ion procedures. B y do ing so, the lawyers forced B r i t i sh judges to choose, i n the Chadians have sought to bring him to justice. It was the Pinochet precedent that motivated the eventual indictment. For more o f the details of this case, see: http://wvvw.hrw.org/campaigns/chile98/precedent.htm 8 9 Thatcher remains grateful for Pinochet's help to Britain during the Falklands war with Argentina; he had saved gallons of British blood, even as Chilean blood spilled freely to save the nation from Communism. Thatcher was quoted as saying, Chile had been a "good friend to Britain", giving it invaluable help in the Falklands War against Argentina in 1982. "Pinochet had quietly authorised the Royal A i r Force to have landing rights at a number of Chilean airfields during the conflict. British troops operated from Chilean territory in Tierra del Fuego and the intelligence given to the British from the Chilean radars - which in any event constantly monitor Argentine air force bases - was a great asset. It was even said by some military men that the largest single loss of British troops, when Argentine air force Mirages and Skyhawks raided B l u f f Cove on 8 June 1982, had been due to the fact that Chilean radar coverage had momentarily faltered" (from O'Shaughnessy 2000, 4) • 69 most direct way, between two compet ing v iews o f the international legal order in the society o f states. O n the one hand, there was the traditional idea that on ly states can be relevant actors i n international law, and that a sovereign head o f state cou ld do what he l i ked and rely, for the rest o f his l i fe, on the fact that he had immuni ty before any national court o f law. O n the other hand, there is the international law that has been evo l v ing since W W I I that posits that the international communi ty comprises not only o f states, but also o f ind iv iduals , peoples, intergovernmental organisations, N G O s and corporations. In this latter v iew, former heads o f state are not immune f rom cla ims brought by, or i n relat ion to, cr imes committed on innocent v ict ims. The f inal dec is ion o f the House o f Lords on 24 M a r c h 1999 9 0 ru led that P inochet should be extradited to Spain to stand t r i a l . 9 1 The ru l ing o f the Lords, however, never came into force as P inochet was considered too i l l to be extradited to stand tr ial in Spa in . 9 2 Nevertheless, it appears that the case w i l l have a legacy o f v i ta l s ignif icance for Ch i l ean national pol i t ics. Pr ior to the Genera l ' s arrest, elites f r om P inochet ' s regime had been legal ly untouchable i n Ch i l e due to the institutional constraints they had erected. There have already been signs that the Genera l ' s arrest in London has s lowly altered this long-standing situation. It also appears that the case w i l l have an impact on pol i t ics at an v u A n earlier decision on 25 November 1998 had also ruled that Pinochet should be extradited to Spain to stand trial. However, on 17 December 1998, in an unprecedented move, Britain's highest court set aside its own ruling against General Pinochet because one of the judges, Lord Justice Leonard Hoffman, failed to disclose his ties to the human rights organisation Amnesty International. Ci t ing an appearance of bias, Pinochet's lawyers argued that Lord Hoffman should not have been allowed to sit in judgement on the case because Hoffman was a volunteer fundraiser for the organisation, which had appeared in court during the oral arguments before the Law Lords. Hoffman had voted with the majority in the Lords ' 3-2 ruling on November 25, holding that Pinochet did not enjoy immunity. 9 1 A reconstituted judicial panel of the House of Lords, in a 6-1 judgement, ruled that Pinochet was not entitled to immunity from prosecution as a former head of state. This ruling cleared the way for the General to be extradited to Spain to face trial on human rights charges. 9 2 British Home Secretary, Jack Straw, concluded from medical reports he had received that Pinochet was unfit to stand trial. The irony was crushing: Pinochet's international trial was prevented by a "humanitarian" clause in extradition cases that deems i l l health a reason not to try a person. 70 international level. Indeed, it is tempting, as many have already done, to hail the case as a further giant step towards the universal enforcement of international human rights and international law in general. National Implications and Lessons of the Pinochet Case The news of Pinochet's arrest polarised opinion in Ch i l e . 9 3 It was greeted with relief and delight by human rights movements who believed that now justice would be forthcoming. Others moved to support the former General. Some wanted to defend Pinochet's integrity and diplomatic immunity while others were interested, not necessarily in defending Pinochet, but in defending Chilean national sovereignty, arguing that it was a matter for Chile to resolve. But as human rights groups and international lawyers quickly pointed out, the Spanish initiative recognised that the amnesty laws in Chile prevented a trial of the General. Even if, in theory, Chile could put Pinochet on trial, the chances that he could actually be punished, they argued, were zero. If justice was to be found it had to be found abroad 9 4 - unless of course, fundamental changes were made to the Chilean legal structure. Not surprisingly, the arrest of Pinochet came as a great shock to Chile 's political elite, which was in the midst of preparation for an upcoming presidential election campaign in December of that year. It had the effect of hardening an already fairly 9 j Moul ian captures the contradictory emotions among Chileans evoked by Pinochet. "Pinochet is viewed in the Chilean imagination as a criollo Superman. According to some, he acted in the service of good, taking on the role of exterminator o f the Marxists and modernizer of Chilean society. Others consider that he acted in the service of an evil so radical and immense that it could only be attributed to the Devi l . He was seen either as one of those Greek Gods with human passions and interests or as the devil himself. . .This superman aroused the reverential admiration of his followers, who walk through the streets of Santiago with placards proclaiming his immortality. At the same time he produced in his enemies the paralyzing fear that is felt when faced with someone endowed with diabolical powers" (1999, 13). 9 4 The amnesty granted to Pinochet applied in Chile , but had no effect under international law. 71 reactionary Right, wh i ch c loaked itself in the banner o f Ch i lean nat ional ism, decry ing the arrest as an international socialist conspiracy. 9 5 The leaders o f the two right w ing par t ie s 9 6 - the Independent Democrat ic U n i o n (UD I ) and the Nat iona l Renewal ( R N ) - j umped to the defense o f the General , contending that this was a gross v io la t ion o f national sovereignty. Prominent figures f rom Ch i l e ' s R ight began to organise demonstrations in Santiago and make plans for Pinochet supporters to travel to L ondon to challenge the anti-Pinochet demonstrators on the streets. N o Right ist po l i t ic ians expressed anything other than uncondit ional support for Pinochet. In fact, the leading figures w i th i n the R ight who were running for the presidency, began to openly compete among themselves to demonstrate their loyalty to the General. The behaviour o f these pol i t ic ians h ighl ighted once again the l imits to the l iberal postures w i th in the Ch i lean Right. The ru l ing Concertacion coal i t ion - " the pr inc ip le architects o f the ' n ew C h i l e ' wh i ch to funct ion requires that the unpleasant past remain dead and bu r i ed " ( M o u l i a n 1999, 13) - was d iv ided i n the wake o f the arrest. The Centrist w i ng o f the coa l i t ion, the Chr i s t ian Democrats, found themselves in the extremely uncomfortable pos i t ion o f defending their former dictator and urging the Br i t i sh government to put an end to the saga and send h i m home. The Social ist party, reflecting their more m i xed compos i t ion o f people l inked to A l l ende and those l inked to the Ch i l e o f today, split on the issue. The Centrist Concertacion government o f Eduardo Fre i made the sovereignty argument that P inochet should be released on the grounds that Ch i l ean cit izens should be 9 5 Moul ian (1999, 13) tells o f how the General's inner circle hatched the idea of a "socialist conspiracy". Pinochet, they claimed, had not made an error of judgement by travelling to the U K , he had been set up. He was the target of the "ruthless persecution of Spanish judge Baltasar Garzon, who could count on the support o f the British Labour government, the Spanish Socialist Party and Chileans acting behind the scenes." 9 6 For analysis o f the recent history of the Chilean right and their reaction to the arrest of General Pinochet, see V o l k ( 1 9 9 9 ) . 72 judged only by Ch i l ean courts. This is very much the reaction o f people st i l l in f luenced by an imp l i c i t pact designed to protect Pinochet and his mi l i tary friends. Indeed some pundits argued that the Fre i government reacted as it d id out o f fear o f a poss ible adverse reaction f rom the armed forces (Mou l i an 2000). Ye t in Tomas M o u l i a n ' s op in ion, the government overestimated the threat posed by the armed forces. " T h e Fre i government acted i n almost knee-jerk fashion to the Pinochet arrest, repeating the same pattern o f fearful behaviour that marked the administrat ion o f Patr ic io A y l w i n when it faced saber-rattl ing f r om the a rmy " (14). This appears to be a va l id assessment. It is understandable that the government wou l d in i t ia l ly act out o f fear o f mi l i tary reprisals. The impun i ty enjoyed by armed forces personnel wou ld perhaps make them bel ieve that society was not go ing to make them accountable for anything that they did. However , as t ime passed, the objective l imi t s o f mi l i tary pressure should have become obvious, but st i l l the government d id not change its stance. Instead, the government further invo lved i tsel f in events taking place in the U K , and made an argument before the L a w Lords on P inochet ' s behal f dur ing the second round o f proceedings. The Ch i l ean government c la imed it was defending the " p r i n c i p l e " o f the absolute territorial sovereignty o f c r im ina l law. But as M o u l i a n correctly argues, " i n a democratic society, that pr inc ip le [absolute territorial sovereignty o f c r imina l law] should be subordinated to the pr inc ip le o f universal ity for the cr imes o f kidnappings, genocide and torture. B y first defending P inochet ' s d ip lomat ic immuni ty and later the immuni ty o f the Ch i l ean state as an extension o f the General, the government ended up defending his impunity. Th i s is because even if, theoretically, Ch i l e cou ld put Pinochet on tr ia l , the poss ib i l i ty that he wou l d actual ly be punished is, for a l l practical purposes, nonexistent" (2000, 14). 73 The reaction o f the Concertacion F re i government, i n their defense o f Pinochet, shows that "pact mental i t ies " remained a powerfu l influence among Ch i l ean elites a decade after the plebiscite to end mi l i tary rule. The Pinochet arrest p rov ided them w i th an opportunity for a grand act o f reconci l iat ion by taking steps to distance themselves f r om notions o f impunity. Thei r active defense, therefore, o f the General in front o f the L a w Lords was a huge disappointment to many. But, human rights groups i n Ch i l e , w i th the support o f many groups throughout the wor ld , were not w i l l i n g to pass ively sit back and a l l ow this po l i t i ca l moment to pass them by. The arrest o f Pinochet prov ided them w i t h a renewed sense o f legit imacy and an opportunity to press for renegotiation o f the terms o f C h i l e ' s " t rans ic ion pactada". Under intense pressure f rom national and international social movements, the Ch i l ean government agreed to establishing channels o f communicat ion between representatives o f the mi l i tary and human rights movements - this process was k n o w n as the mesa de dialogo. In agreeing to participate in this dialogue, the mi l i ta ry were careful to declare that they were not acknowledg ing responsibi l i ty for crimes. Rather, they stated that their part ic ipat ion was to help find information about any pending cases. Nonetheless, the col laborative process i nvo l v ing the armed forces d id represent a signif icant domestic transformation in Ch i l e as a consequence o f the Pinochet arrest. Previous ly, the mi l i tary had outright denied any knowledge concerning the unresolved disappearances. The mesa de dialogo in i t ia l ly showed encouraging results. In June 2000, those part ic ipating i n the meetings revealed that the army had o f f i c i a l l y agreed to investigate and prov ide a l l avai lable information, regarding the pending cases o f disappearances, to 74 the government. y ' The importance o f this development was that for the first t ime the mi l i tary recognised the very existence o f the people, main ly opponents o f the P inochet regime, who had been detained and never seen again. The mi l i tary report - s temming f rom the auspices o f the mesa - del ivered to R icardo Lagos on 5 January 2001 admitted, for example, that 151 murdered prisoners were dumped in the ocean and lakes o f C h i l e . 9 8 Ye t the Introduction to this report makes President Lagos ' pub l i c recognit ion o f the armed forces ' contr ibut ion to reconci l iat ion seem premature and misplaced. There is no hint, in the Introduction, o f an apology to the v i c t ims for the atrocities documented i n the pages that fo l l ow. The explanation prov ided by the mi l i tary for their conduct is str ik ingly s imi lar to the defiant response they gave to the Rett ig Commi s s i on ' s damning report o f a fu l l decade before. 9 9 " M o s t o f the disappearances took place after September 1973 and over the f o l l ow ing months, a period in wh i ch the country was exper iencing a critical state of internal convulsion00 [my emphasis], p rovok ing acts, behaviour, and v i c t ims 9 7 Reported in El pais, 14 June 2000. 9 8 From Sebastian Brett dispatches for Human Rights Watch. Available: http://vvwvv.hrw.org/campaigns/chile98/dispatches.html 9 9 The creation o f the National Truth and Reconciliation Commission on 25 A p r i l 1990 was one of A y l w i n ' s first acts as President. The eight member commission was headed by attorney, Raul Rettig. They were able to document 2,279 cases of human rights victims who died as a result o f official actions by government agents or people working for them. 957 o f these victims were made to "disappear". Many thousands more were tortured and imprisoned and/or forced into exile. The three volume report was published in 1991. See Informe Rettig (1991, V o l . 2, 883-886); see also: http://www.lakota.clara.net/derechos/rettig.htm and http://wvvvv.dfn.org/voices/chile/cases.htm The military response to Rettig was to state that the actions were justified in the context of the early 1970s, a time which they likened to " c i v i l war" in Chile. 1 0 0 This assessment of Chile in the months following the coup of 1973 contradicts with the Rettig Commission (1991) which concluded that the armed forces were in full control of the country within a few days of the coup. 75 typ ica l o f irregular armed con f l i c t . 1 0 1 Th i s situation placed l imits on the inst itut ions ' abi l i ty to c lar i fy the cases wh i ch were the subject matter o f the task before t h e m . " 1 0 2 The Rett ig Commi s s i on report provides ample evidence to prove that Ch i l ean armed forces were not "p rovoked" by convu l s ion or armed confl ict. In reality, their atrocities were committed against defenseless people, many o f w h o m had g iven themselves up to the authorities i n the mistaken be l ie f that their army wou l d treat them fair ly. Yet , after a decade during wh i ch these facts have been k n o w n to every reader o f the Rett ig report, the mi l i tary continues to shift the blame onto the deposed A l l ende government, w i t h the Introduction reiterating that "the events that led [my emphasis] to the po l i t i ca l v io lence must never be repeated in our country". The armed forces ' report contains no crit ique o f mi l i tary doctrine, and no ment ion o f the Geneva Convent ions, wh i ch w o u l d have been appl icable had there really been an armed confl ict. The mi l i tary ' s log ic, after months o f negotiations i n the mesa de dialogo, was hardly different f r om General Pinochet 's scathing attack on Rett ig back in 1991: " f r om the point o f v i e w o f any serious armed institution, when one is faced by a situation o f war, the only poss ible objective is total v i c t o r y . " 1 0 3 A l though the mesa was progress in that it led to the mi l i ta ry admitt ing that disappearances had occurred, their cont inuing rhetoric, that the " w a r " context o f the 1970s gave them no choice but to repress, is depressing. In an interv iew in El Mercurio, i n the light o f the mesa de dialogo, army ch ie f R icardo Izurieta was asked i f there were now two armies i n Ch i le : the army o f the 1970s 1 0 1 The Rettig Commission report also states that armed actions by supporters o f the deposed government were "minimal" . The supporters o f Allende were, "irregular in terms of place, kind, and armaments used, uncoordinated and without the least chance of success, even at the local level." 1 0 2 From Sebastian Brett dispatches for Human Rights Watch. Available: http://www.hrw.org/campaigns/chile98/dispatches.html 1 0 3 From Sebastian Brett dispatches for Human Rights Watch. Available: http://www.hrw.ora/campaisms/chile98/dispatches.html 76 wh i ch abused human rights, and today's force. "That 's a fa l lacy," Izurieta repl ied. "Whoeve r says that does not k n o w the army. The army o f Ch i l e is one, and one alone. The army that l i ved through the experience o f the mi l i tary government is the same one as today's. It just had to l ive through different times, that's a l l . Throughout our history, the commanders have had a common thought, to act in benefit o f the country. It's also true that the army is made up o f human beings and human beings make mistakes, and can be w r o n g . " 1 0 4 Unfortunately, there has been more continuity than change w i th in the Ch i l ean armed forces. Th i s fact alone represents a major hurdle st i l l fac ing democrats. Despite the reality that widespread just ice and " r econc i l i a t i on " remains a long way off, the pub l i sh ing o f the mi l i tary report (mentioned above), and the tireless work o f human rights activists in keeping human rights atrocities on the national agenda, does contribute to increased mi l i tary transparency. It also adds informat ional support to help incr iminate mi l i tary off ic ia ls. For example, relatives o f the disappeared conducted a study on the role o f mi l i tary and D I N A (Pinochet ' s secret security forces) personnel in the disappearances, wh i ch made it clear that members o f the mi l i tary st i l l c learly remembered the whereabouts o f the regime 's v i c t i m s . 1 0 5 The release o f such in format ion is clearly a threat to the mi l i tary, who realise that in today ' s Ch i le , outright denial o f the disappearances is no longer an option. It is fair to say, therefore, that when Pinochet returned to Ch i l e on 3 M a r c h 2000, he landed i n a country very different to the one he had left. The former leader qu i ck l y learned on his return that he no longer held the power and standing that he once had. In June, three months after his return, the Court o f Appea l in Santiago voted to strip h i m o f 104 El Mercurio, 14 January 2001. Translation from Sebastian Brett dispatches for Human Rights Watch. Available: http://www.hrw.org/campaigns/chile98/dispatches.html 77 the immuni ty f r om prosecution that he he ld as a "Senator for l i f e " . The dec i s ion was rat i f ied by the Supreme Court in early August. The importance o f this is that it made it poss ible to deal w i t h charges against Pinochet w i th in Ch i l ean courts. Dep r i v i ng h i m o f his immuni ty f rom prosecution paved the way for, in November 2000, Ch i l ean judge Juan G u z m a n to fo rmal ly charge Pinochet w i th k idnapping dur ing his 1973-1990 dictatorship. He was charged w i th masterminding the so-cal led "Ca ravan o f Dea th " in w h i c h more than 70 po l i t i ca l prisoners disappeared shortly after the 1973 coup. The amnesty l aw decreed by the mi l i tary government in 1978 prevents the c r im ina l prosecution o f cr imes committed f rom 1973-1978. But, in cases o f "d isappearances", where the bodies o f the v ict ims have never been recovered, the Ch i l ean courts have ru led that the v ic t ims must be considered st i l l "d i sappeared", and hence v ic t ims o f an ongoing c r i m e . 1 0 6 Acco rd ing l y , the amnesty law does not apply. The bodies o f 19 o f the 72 prisoners executed by the "Ca ravan o f Dea th " have never been found. It is their cases that were taken up by Guzman. A l t hough recent events make the actual tr ial and sentencing o f P inochet very 1 07 unl ike ly, perhaps the most important phenomenon aris ing f rom the saga is that a IU5 Latin American Weekly Reports, "Disappeared: Data is Avai lable" , 22 June 1999, 278. 1 0 6 In late July 1999, the Chilean Supreme Court ruled that retired and active duty officers could be tried in cases involving "kidnapping" from the pre-1978 period, where the kidnapping had not resulted in death or where their existed no concrete evidence that the victim was dead. According to the court's decision, since the crimes were "ongoing," no amnesty could be applied. "This legal theory had been advanced in the early 1990s but had usually been rejected by military courts, appeal courts, and by the Supreme Court, which applied the amnesty decree to "close" the cases that came before it or rejected the human rights organizations' legal pleas to reopen cases on procedural grounds. Almost all Chileans believed that the "disappeared" were dead; the legal theory resurrected by the Supreme Court in 1999 invited the armed forces to acknowledge the crimes and, most importantly, indicate what had happened to the victims' bodies" (Loveman 2001, 328). 1 0 7 On 9 July 2001, the Santiago Appeals Court deemed that Pinochet was too i l l to face trial, citing mental incapacity as their reason - dementia and memory loss were the official explanations given for the decision. Opponents of Pinochet accuse him of feigning illness in an attempt to influence the course o f justice. Recognising the inflammatory nature of the case, President Lagos, himself jai led by the Pinochet regime in 1987, was quick to call on his fellow Chileans to respect the ruling, saying that the judges had acted 78 situation developed for the potential prosecution o f the former dictator within his homeland. Indeed, had it not been for the recent decis ion, deeming Pinochet too i l l to face tr ia l , it is very l i ke l y that Pinochet w o u l d have been found gui lty in Ch i l ean courts. Such a situation wou l d have been unimaginable three years ago. The pervasive atmosphere o f uncondit ional impuni ty in Ch i l e has undergone dramatic change in recent t imes as, bit by bit, the series o f agreements negotiated in C h i l e ' s transition pactada have begun to unravel. International Implications and Lessons of the Pinochet Case The catalyst for the Pinochet saga, as I have already mentioned, was international leve l change: namely, and generally, the end o f the C o l d W a r a l l ow ing for extant international laws to be more easily carried out. Yet, the case has also had an effect on the very international environment that a l lowed the case to happen. I have already mentioned the prosecution o f H i s se in Habre, but overal l , the precedent created by the Pinochet case w i l l have impl icat ions that w i l l l i ke ly effect further international change in the future. L o o k i n g first at the La t in Amer i c an regional level, one can point to examples o f knock -on effects already having occurred. In Argent ina, judges made the dec i s ion to reopen the cases o f mi l i tary of f ic ia l s responsible for human rights crimes. F o l l o w i n g the 108 Punto Final, these cases had already been considered closed and the condemned independently in their 2-1 vote to suspend legal action on health grounds. Prosecution lawyers say they wi l l take an appeal case to the Supreme Court, but admit they are unlikely to succeed. See: http://news.bbc.co.uk/hi/enulish/world/americas/newsid 1432000/1432301 .stm and http://news.bbc.co.uk/hi/enulish/world/americas/newsid 1419000/1419697.stm 1 0 8 In December 1986, after the highest military officers had been convicted and sentenced, a new law, "el Punto F ina l " (the final point), was enacted and approved by Congress. This law stated that all those in the military or police that were not yet charged for crimes during the 1976-1983 dictatorship, would not be 79 ind iv idua l s granted amnesty by the Argent ine state. Bu t motivated by the P inochet precedent, Argent ine judge C laud io Bonadio, i n November 1999, reopened investigations on 15 disappearance cases as we l l as requesting the arrest and extradit ion o f 98 Argent ine mi l i tary off icers impl icated in cases o f disappearances o f Spanish c i t i z en s . 1 0 9 In Uruguay, l i ke Argent ina, human rights questions had since 1989 been dealt w i th v i a a l aw pardoning mi l i tary off icers for their c r ime s . 1 1 0 But, also l ike Argent ina, the impact o f the Pinochet arrest led to the issue o f human rights resurfacing on the po l i t i ca l agenda. The November 1999 elect ion campaign, for example, saw presidential candidates start to use the issue o f human rights as a vote w inn ing tactic, despite the fact that the 1989 Impunity l aw forbade j ud i c i a l prosecution against mi l i tary officers. Presidential candidate, Tabare V a z q u e z 1 " promised in his manifesto to initiate investigations to gather in format ion on the fate o f the disappeared. Indeed, a commis s ion has now been established in Uruguay to f ind out what happened to the people who went miss ing during the country ' s years o f mi l i tary rule. Outs ide o f La t i n Amer i ca , the arrest o f Pinochet has also had an impact. Generals throughout the wor ld , who previous ly felt themselves to be legal ly untouchable, have started to rethink their status. International repercussions were immediate i n the wake o f P inochet ' s arrest. Current and former of f ic ia l s f rom Yugos lav ia , and A f r i c a were reported brought to trial. Menem took this further in 1990 when he granted an amnesty to all imprisoned military officers, in the name of "national unity." From http://www.vendor.com/vanished/uprisings.html 1 0 9 The Economist, "Argentine Political Crimes", 6 November 1999, 34. Former members o f the military junta have now been placed under arrest. They are accused of taking part in a plan to kidnap babies born to political prisoners, and the case of these retired officers is now proceeding, albeit at a very slow pace. 1 1 0 In A p r i l 1989, a referendum was held over the issue of upholding the Amnesty Law for human rights crimes during the military dictatorship. 55.4% of the nationwide Uruguayan electorate favoured retaining the law. See Gillespie 1991, 248. Also , for a detailed analysis of the debates that took place over whether to forget the past or uphold the principle of human rights, see Weschler, 1990. " ' Vazquez lost the presidential election to 72 year old, Jorge Batlle in November 1999. 80 to have " rethought " travel p l a n s . " 2 When Meng i s tu Ha i l e Ma r i am, the former dictator o f Eth iop ia, now in ex i le in Z imbabwe, vis ited South A f r i c a for medica l attention, human rights campaigners inspired by the Pinochet case, argued that the South A f r i c a n authorities should arrest the former dictator. Meng i s tu d id manage to make a safe return to Z imbabwe before legal action cou ld be taken, but the fact that his potential arrest was even raised as an issue was an important development. P inochet ' s detention in L o n d o n ended o ld certainties that ex-dictators were legal ly untouchable. Indeed N G O s argue that there is suff icient evidence to the c l a im that national sovereignty is now less important an obstacle to curbing serious human rights cr imes than it has been in previous years. Execut ive D i rector o f H u m a n Rights Watch, Kenneth Roth, said i n the wake o f the Pinochet arrest and the U N intervention i n Ko s o vo : " w e w i l l 113 remember 1999 as the year in w h i c h sovereignty gave way i n places where cr imes against humanity were being committed. ..Ordinarily we depend on sovereign states to defend human rights.. .But sovereignty cannot be used as an excuse to avo id human rights c o m m i t m e n t s . " 1 1 4 A l s o , the Pinochet arrest in London and the request for his extradit ion to Spain shows that people are being tried outside their native countries - are we watch ing the t r iumph o f the pr inc ip le o f universal jurisdiction?115 International W a r C r imes Tr ibunals for Rwanda and the former Yugo s l a v i a have a g rowing number o f people in custody. The Tr ibuna l also took the signif icant step o f ind ict ing a sitting head 1 1 2 Reported in Anthony Faiola, "Pinochet Returns to Chi le" , in Washington Post Foreign Service, 3 March 2000. 1 1 3 Roth noted that in 1999 sustained international pressure forced the Indonesian government to consent to the deployment of troops in East Timor, after the Indonesian military failed to stop the bloodshed there. He claims that the national sovereignty claims of the Indonesian generals, like those of Yugoslav President Slobodan Milosevic in Kosovo, lost their legitimacy in the wake of gross human rights crimes. 1 , 4 From "Human Rights Watch World Report 2000" Available at www.hrw.org/press/1999/dec/wr2keng.htm 81 o f state, S lobodan M i l o s e v i c . 1 1 6 Does the Pinochet saga indicate the demise o f absolute national sovereignty? A r e we witness ing what Stephen Krasner termed "punctuated equ i l i b r i um " - a fundamental alteration o f sovereignty norms in the society o f states? Just as absolute monarchy gave way to constitutional or l imited monarchy, is absolute national sovereignty g iv ing way to what one cou ld label constitutional or l im i ted national sovereignty? The Pinochet saga raises these questions o f international society and, as people l i ke Rosenau have argued, provides evidence that nation states are increasingly subject to international po l i t i ca l no rms . 1 1 7 Pinochet, and other dictators l i ke M i l o s e v i c , sacrif ised thousands on the alter o f national sovereignty, but generally evoke l itt le sympathy in the international community. W i t h regard to the specif ics o f the Pinochet case, however, a degree o f caut ion is required in order to avo id the mistake o f overstating the impact o f the decis ion. Whether the Pinochet decis ion w i l l be a landmark depends on the extent to wh i ch other courts in different jur i sd ict ions w i l l f o l l ow it. The decis ion serves as a legal precedent only i n the U K - no other state is bound by the decis ion. What can be asserted is that the dec i s ion by the highest court i n one o f the foremost western states is o f persuasive authority for courts in other jur i sd ict ions, particularly, one cou ld argue, Commonwea l th states and the Un i t ed States, w h i c h share a c ommon legal heritage w i t h the U K . However , even this c l a im cou ld be exaggerated. The Lo rd s ' dec is ion was very much dependent on its facts 1 1 5 General Pinochet is the best known example, but many other people accused of participating in the Bosnian and Rwandan genocides have also been indicted outside their own countries. 1 1 6 Indeed on 31 March, 2001, Milosevic was arrested in his home in Belgrade by Yugoslav authorities, largely as a result o f international pressures. He has since been extradited to face trial under the auspices of a U N court in the Hague. 1 1 7 Europe has led the way on this matter with the Counci l of Europe, which holds member nations to human rights standards codified in the European Convention on Human Rights. Since 1998, citizens of European countries have had the power to appeal directly to the European Court o f Human Rights whenever they believe that their rights have been infringed upon by their national governments. 82 and contained idiosyncrasies that suggest it is a legal precedent that w i l l not easi ly " t r a ve l " . A l s o the fact that none o f the seven judges in the case agreed entirely w i th one 118 another as to the precise details o f the decis ion, is evidence o f the divergence o f op in ion w h i c h cou ld be exploited by lawyers in subsequent cases. Another argument that has been contributed to the debate relates to the internal po l i t i ca l stabi l ity o f C h i l e - specif ical ly, the right o f outside courts to i nvo l ve themselves i n try ing C h i l e ' s former ruler against the wishes o f the Ch i lean state. The pact made between the incoming c i v i l i an government w i th the outgoing mi l i tary regime at the t ime o f C h i l e ' s democratic transition, was a conscious choice made by Ch i l ean elites. It was decided that greater internal stabil ity wou l d be achieved in Ch i l e i f steps were not taken to prosecute the previous regime. M a n y have argued that this should have been the end o f the matter, arguing that the amnesty the General negotiated in his homeland should put h im beyond the reach o f courts elsewhere. No rma l l y , this wou l d have been the end o f the matter, g iven the importance placed by international l aw and international relations i n general, on the rights o f states to determine their o w n internal matters. However , i n the case o f Ch i l e this argument does not apply. Ch i l e had already restricted its sovereign rights by, in 1988, s igning and ratifying the Torture Convent ion that spec i f ica l ly provides for the poss ib i l i ty, indeed the requirement, o f universal ity w i th regard to the alleged crimes. Th i s consequently a l lows for the exercise o f ju r i sd ic t ion by Spain and the U K over Ch i l ean of f ic ia l s , inc lud ing their former head o f s tate. 1 1 9 The specific disagreements o f the judges and the debates undertaken during the case can be found in the judgement of 24 March 1999, reported as R. v. Bow Street Stipendiary Magistrate and others, ex parte Pinochet Ugarte (Amnesty International and others intervening) (No. 3) in [1999] 2 All E.R. 97. The judgements o f the House of Lords can also be found at: http://vvvvw.parliament.uk 1 1 9 However, such jurisdiction can only exist in respect of crimes which occurred at the earliest after the date at which Chile entered into the regime governed by the Torture Convention (1984), otherwise there 83 A n addit ional argument says that even i f a relevant body o f international l aw exists, there are human and pract ical reasons why it is se ldom enforced. The Genera l ' s arrest not on ly disturbed the delicate po l i t i ca l balance inside Ch i le , but sent the wrong message to other dictators. In many parts o f the wor ld , despots have been eased b loodless ly f r om power only after being promised immuni ty f rom punishment. Wi thout such a promise, it is argued that dictators wou ld have every incentive to hang on to power v io lent ly unt i l the bitter end. Th i s is a va l id point as many nations have had l itt le opt ion but to negotiate a pact that prov ided amnesties to the leaders o f the previous regime. Bu t i n the case o f Ch i l e this is beside the point. It is st i l l open to countries to offer amnesties as they make the transit ion to democracy - indeed pacts w i l l l i ke ly st i l l occur in the future. Pinochet, however, hit trouble not because Ch i l e broke its promise to h im, but because the General made the mistake o f swanning around the wor l d on what turns out to have been the mistaken assumption that the decis ion o f Ch i l e ' s pol i ty wou l d b ind the rest o f the w o r l d ' s courts. Th i s is a posit ive development. It may be necessary for unfortunate nations to promise former dictators safety at home. But coax ing them f rom power does not require adding the bonus o f a safe cup o f tea w i th Lady Thatcher in London. P inochet ' s arrest marked a step towards the sort o f wo r l d i n w h i c h power fu l people have to think twice before they carry out human rights atrocities. Regardless o f the legal impl icat ions o f the Pinochet decis ion, the po l i t i ca l impl icat ions o f the outcome give rise to further consideration i n relat ion to the exercise o f ju r i sd ic t ion by national courts - namely, are national courts the appropriate fo rum for cases o f this nature? The first aspect o f the case to take into account is the fact that it was would be a direct attack on Chilean sovereignty. Both the U K and Chile ratified the Torture Convention on 8 December 1988. Consequently the number of charges against Pinochet were greatly reduced. 84 extremely random and was related to many po l i t i ca l as we l l as legal factors. Ne i ther the U K nor Spanish governments were responsible for br inging legal proceedings against Pinochet. The action was started by a Spanish judge and responded to by the B r i t i s h j ud i c i a l system. A l t hough the U K government had the opportunity to end the proceedings against Pinochet, the po l i t i ca l costs o f do ing so wou l d have been high, what w i t h the s izable levels o f pub l ic support for the actions against Pinochet and the Labour Party manifesto promise o f having an " e t h i c a l " foreign pol icy. The sheer arbitrariness o f the entire affair bothered a number o f commentators. W h y arrest P inochet and not Idi A m i n , former bloodthirsty dictator o f Uganda, l i v i ng quietly in Saudi Arab ia ? W h y indict P inochet and not current [at the t ime o f P inochet ' s arrest] ham-fisted tyrants l i ke Congo ' s Laurent K a b i l a or Yugos lav ia ' s S lobodan M i l o s e v i c ? Wr i t i n g in the F rench newspaper, Liberation, Jacques A m a l r i c pointed out: Reasons o f state have never gone hand in hand w i th human rights.. .Our expectations in the face o f France ' s determination regarding Pinochet is a l l the greater because French off ic ia ls , who care very l ittle about Saddam Husse in ' s cr imes and who accept that M i l o s e v i c not be tried by the international tr ibunal, are today we l com ing a dictator who probably has more b lood on his hands than the Ch i l ean dictator: Laurent Desire Kab i l a . C o u l d it be that for our leaders these are two categories o f international cr iminals - those who are without power, therefore useless, and who should be tried for their cr imes; and those who are useful because they remain in power and whose defense is based on po l i t i ca l d ip lomat ic or commerc ia l reasons? The answer is def initely ye s . 1 2 0 Certa in ly the randomness and inconsistency o f the uphold ing o f human rights, exempl i f i ed by the Pinochet arrest, proves the case i nvo l v i ng Ch i l e ' s former dictator was unique. In addit ion to the randomness o f the arrest, the debates and div ides among the L a w Lords over the details o f the Pinochet trial accentuates the prob lem w i th national 85 courts handl ing cases o f this k ind. For example, the L a w Lords had lengthy debates and disagreements over wh i ch values and pr inciples ought to be g iven pr ior i ty i n contemporary international law. L o r d Gof f , i n his speech to the Lords, h ighl ighted the po l i t i ca l d i f f icu l t ies that might exist i f state immuni ty were not to exist i n cases such as those i n vo l v i ng Pinochet. He said that: I f immun i ty rationae materiae was excluded, former heads o f state and senior publ ic of f ic ia l s wou ld have to think twice about travel l ing abroad, for fear o f being subject o f unfounded allegations emanating f rom States 1 2 1 o f a different persuasion. Th i s op in ion went against the consensus, in that the Lords decided that P inochet cou ld be extradited. Yet, these k inds o f differences o f op in ion are inevitable in a case tak ing place i n a national court where no established rules exist to "p rov ide the rule o f dec i s ion i n a case and [when] courts have to make recourse to general pr inciples to fill i n the lacunae or to interpret controversial points o f l a w " (B ianch i 1999, 260). The Pinochet case, therefore, highlights the importance o f the successful establishment o f the potential ly more consistent and less random International C r i m i n a l 122 Court ( ICC). The statute o f the court exp l i c i t l y provides that there w i l l be no immun i ty f rom the ju r i sd i c t ion o f the court. This reflects the fact that the court w i l l act as an international tr ibunal, i n respect o f wh i ch the doctrine ofpar in par em non habet l z u Jacques Amalr ic . "Two Categories of Dictator," Liberation, 27 November 1998. A l s o see Charles Krauthammer. " A Strange Moral i ty," Washington Times, 7 December 1998. 1 2 1 See Lords ' Judgement. Available: vvwvv.parliament.uk 1 2 2 The ICC meets the dual objective of curtailing impunity on serious human rights violations and, at the same time, o f ensuring just and fair processes that are subject to clear rules accepted voluntarily by all signed up nations. The provisions of the ICC statute contain numerous safeguards to ensure that cases brought before the court are neither frivolous nor politically motivated. A n independent prosecutor w i l l be empowered to conduct an investigation not only on the basis of referrals from members of the U N Security Counci l , but also on the basis of recommendations from N G O s and victims o f purported crimes. The prosecutor must inform sovereign states that he or she is investigating a crime within their borders and must allow those states the option of investigating the crimes themselves. Even more significantly, a third country cannot hand over accused victims to the court unless the country where the crimes were committed has also ratified the treaty. From Lagos (1999). 86 imperium (an equal has no dominion over an equal), the foundation of the doctrine of state immunity, w i l l not apply. Again, as with treaty law, the key is the consent of states who ratify the Rome Convention. Each state that signs the Rome Statute wi l l do so in the exercise of sovereign authority which wi l l have the effect of reducing the sovereignty of the state in respect to matters brought before the ICC. 1 2 3 The intention is that the ICC wi l l provide an impartial international forum for hearing politically sensitive cases. While some states, like the U S , have balked at the thought of any court other than its own deciding the fate of U S citizens, it seems that the ICC would provide a more effective forum than national courts in deciding cases like the Pinochet one. The Pinochet case, although a legal precedent only in the U K , is likely to have an international impact in that it has established a precedent of extradition procedures for people who have violated human rights in the past. Similar cases to the Pinochet one w i l l , in all probability, occur again in the future. But is it likely that a less powerful nation would attempt to indict a former official, from a state like the U S , who they consider to have violated human rights? The question that should be addressed is: whose values and interests are being represented when it comes to enforcing the sanctity of human rights? 1 2 4 A true test of the "globalisation" of human rights wi l l come when a warrant is It is worthy of note that the Rome Statute envisages that the ordinary national courts w i l l still play an important role in dealing with breaches o f international law by individuals. However, where issues o f state immunity arise in national courts, extradition can take place to the ICC which w i l l have jurisdiction to hear such cases without the barrier o f state immunity. 1 2 4 See, for example, the argument forwarded by Christopher Hitchens (2001), who makes a case for the "trial o f Henry Kissinger." He believes it is imperative that a system o f international law does not emerge whereby only human rights violators from "weaker" nations facing justice. " A failure to proceed [with the trial o f Kissinger] w i l l constitute a double or triple offence to justice. First, it w i l l violate the essential and now uncontested principle that not even the most important are above the law. Second, it wi l l suggest that prosecutions for war crimes and crimes against humanity are reserved for losers, or for minor despots in relatively negligible countries. This in turn wi l l lead to the paltry politicization of what could have been a noble process, and to the justifiable suspicion of double standards His [Kissinger's] own lonely impunity is rank; it smells to heaven. If it is allowed to persist then we shall shamefully vindicate the ancient philosopher Anacharsis, who maintained that laws were like cobwebs: strong enough to detain only 87 issued for the arrest of, say, Henry K i s s inger or George Bu sh on charges o f cr imes against humanity. Is it th inkable that the U S w o u l d surrender one o f its o w n cit izens to be tried by an international tribunal? U n t i l it is, unfortunately for those who argue that we are heading in a cosmopol i tan and universal direction, state power w i l l continue to rule the roost, and g lobal c i v i l society w i l l remain a secondary player at best. G i v e n the important and posit ive effect o f the Pinochet arrest, it seems inappropriate to be over ly pessimistic. P inochet ' s arrest in London has inalterably changed the course o f Ch i lean pol i t ics, and, contributed to the long-term cause o f efforts to promote respect for human rights in the international community. A l t hough it is currently un l i ke ly that former government personnel f rom powerfu l nations l i ke the U S w i l l face arrest, P inochet ' s pl ight has nonetheless caused alarm w i th people l i ke Henry 125 Kiss inger. Read ing between the lines o f a K i s s inger comment made in the wake o f P inochet ' s detention in Br i ta in, one gets the impress ion that the extraterritorial arrest o f the former Ch i l ean head o f state made K i s s inger question his own immunity. "I wou l d be happy," he to ld the London Observer, " i f P inochet was a l lowed home. Th i s episode has gone on long enough, and my sympathies are wi th h i m . " 1 2 6 The international changes mentioned above have altered the environment in w h i c h democratic transitions o f today are occurring. Schmitter is correct to argue that the " re levance o f the international context tends to increase monoton ica l ly and to change in intensity w i th each successive demise o f autocracy. The democracies that arrive late are the weak, and too weak to hold the strong. In the name of innumerable victims known and unknown, it is time for justice to take a hand" (xi). 1 2 5 See the anecdote presented in the introduction to Hitchens (2001). See also Kissinger's (2001) thinly veiled effort to protect his own legal interests in his Foreign Affairs article, "The Pitfalls o f Universal Jurisdiction." 1 2 6 Reported in "Twil ight o f the General: Chile After the Arrest o f Pinochet," NACLA: Report on the Americas, 32, 6 (1999): 11 88 destined to suffer more external influence than their predecessors" (1995, 35, see also Drake 1998, 70-86). Changes in the international context have been so great since the wave of democratisation that followed'World War II that contemporary democratisers cannot rely on the strategies of consolidation that were then relatively successful. With the end of the Cold War and the collapse of the Soviet Union, the ideological formulas and partisan confrontations of the past are no longer convincing. Evelyne Huber, Dietrich Rueschemeyer and John Stephens argue that: Developments in the geopolitical situation, particularly the end of the Cold War, have been conducive to the survival of democracy both directly and indirectly. Directly, they have reduced the tendency of the two superpowers to support nondemocratic but loyal regimes. Indirectly, they have eliminated the perception of a Communist threat among economic elites and thus the fear of potential weaknesses of democratic regimes in the face of such a threat or, even worse from their point of view, of potential complicity of democratic governments with Communist forces (1999, 179). Latin America in the 1990s has found itself in an international and ideological context that is much more hostile to political solutions, and capable of placing barriers in the way of institutional experimentation. Traditional protestations of "noninterference in domestic affairs" have become less persuasive, and the line between the realms of national and international politics has become increasingly blurred. More significant in the future wi l l be the use of international organisations to bring pressures to bear on the remaining autocracies and recidivist democracies. The combined impact of this new environment has had an effect on the legitimacy, the durability and even the necessity of pacts. Seeing Pinochet in legal trouble not just in Britain, but also in Chile, seems to have altered perceptions in Latin America and internationally. Political actors are facing the reality that offering concessions to autocratic elites need not be a necessity for 89 consol idat ing inst itutional democracy. Ana ly s i s o f the most recent La t i n A m e r i c a n democratic transit ion provides evidence o f the altered regional and international context. Transition in Peru - Lessons from Pinochet? The Peruv ian transition differs f rom the one in Ch i l e in that it was catalysed by h igh levels o f corruption, cu lminat ing in intell igence chief, V l a d i m i r o Montes inos, being caught on v ideo br ib ing an opposit ion member o f Congress. The scandal surrounding this incident and the overa l l exposure o f maf ia - l i ke governance weakened the pos i t ion o f the 127 Fu j imor i administration. U n l i k e the Pinochet regime, Fu j imo r i ' s government ended w i th po l i t i ca l elites being removed f rom off ice in disgrace. The weakness o f the outgoing regime, and the result ing strength o f incoming democrats, made pact ing improbable. The opprobr ium surrounding the Fu j imo r i government has a l lowed newly elected President To ledo to state that a " very h igh p r io r i t y " for his administration is the return o f Fu j imor i , 128 currently in ex i le in Japan, to face just ice in Peru. President A y l w i n was afforded no such luxury regarding his predecessor when he assumed off ice in Ch i le . C i rcumstances leading to democracy in Peru, therefore, have differed to the Ch i l ean case. Yet , wh i l e watch ing events unfo ld over the last year, one is struck by what appears to be an awareness o f the Ch i l ean experience on the part o f those involved. Take, for instance, a conversation pr ior to the fraudulent 2000 Peruv ian presidential election, between Montes inos, the man wide ly regarded as the architect beh ind the Fu j imor i maf ia, and powerfu l banker, D ion i s i o R o m e r o . 1 2 9 In one o f the many 1 2 7 On 21 November 2000, the Congress of Peru voted to declare Fujimori "morally unfit" to govern and removed him as head of state. This is the first time that such a censure has occurred in Peruvian history. 1 2 8 See: http://news.bbc.co.uk/hi/english/world/americas/newsid 1471000/1471099.stm 1 2 9 Available: http://stucchi.tripod.com/politica/drsvmt.htm Quotes, my translation. 90 released "Vladivideos" that have exposed the extent of corruption in Fujimori's Peru, Montesinos talks of the need for a Fujimori victory in the upcoming election. He points to the experience of Pinochet, the man he claims saved Chile from the "quagmire of Salvador Allende," and who now faces prosecution in his homeland. "Pinochet went out" he says, and "lifted the Chilean economy and gave her [Chile] a constitutional government.. .only to suffer under the disgrace that we now see." Montesinos goes on to express his determination that members of the Fujimori mafia avoid a Pinochet-style domestic trial. Regarding the upcoming Peruvian election, Montesinos states that, in light of the Pinochet precedent, he believes there are "two formulas" available to prominent members of the Fujimoro regime: either "to win or to leave. There is no alternative." Looking to exogenous factors, it appears that the international community is keen to see a smooth transition in Peru, and contribute to strengthening institutions capable of bringing justice to criminals in the previous regime. This was made clear by the report written by the Organisation of American States (OAS) after their "Miss ion to Peru" which took place from 27-30 June 2000. The proposals made by the report, designed to ensure the "continued strengthening of democracy in our hemisphere," cover five areas: 1) reform of the administration of justice, strengthening the rule of law and ensuring the separation of powers; 2) freedom of expression and the media; 3) electoral reform; 4) supervision and balance of powers, and; 5) civilian control of the activities of the 130 intelligence services and the armed forces. These O A S priorities, particularly reform of the judicial process and civilian control of the armed forces, show that lessons have been learned from the Chilean experience. The report suggests that the O A S is keen to avoid a 1 3 0 From \vww.oas.on;/en/pinfo/vveek/WeeklyReport/Press2000/iuly2000/E 139.htm A l s o see this site for details o f the proposals made after the mission. 91 situation whereby the mi l i tary remains a powerfu l player in the post-transition context and where immun i ty prevents countless human rights violators facing just ice. Indeed, i f the newly instal led government o f President To ledo fails to j a i l members o f the F u j i m o r i government for their cr imes, the international communi ty w i l l look d isapprov ing ly upon the new administration. In sum, support f r om an encouraging international community, and the lack o f institutionalised authoritarian enclaves f rom the previous regime, create the potential in Peru for the implementat ion o f an effective " t ruth c o m m i s s i o n " w i th penal powers. Add i t i ona l l y , the pl ight o f Montes inos provides evidence o f altered international norms. A f te r being exposed for corruption, the intel l igence ch ie f f led to Panama i n search o f asy lum only to be expel led after a month. The response o f Panama ' s government is indicat ive o f what I have termed the international punctuated equ i l ib r ium. In the past, Panama has granted asy lum to f lee ing dictators, l i ke the Shah o f Iran, (Raoul) Cedras f rom Ha i t i , and the former right w ing leader o f Guatemala (Jorge Serrano). Yet , when Montes inos arr ived last year, many Panamanians were indignant about being recast in 131 this o l d sordid role. The fact that Montes inos was ult imately accepted in Venezue la is indicat ive o f the degree to wh i ch the Chavez government is out o f step w i th the emerging regional consensus. 1 3 2 Chang ing international norms have resulted in most countries being increasingly unw i l l i n g to face the international shame o f g i v ing shelter to deposed dictators, ind icted war cr imina l s and exposed murderers on the run. However , it is not only international shame that countries l i ke Panama have to consider before going against 1 3 1 A former adviser to Panama's President Rodriguez, was quoted as saying, "once again Panama has been used as a garbage dump and latrine for this kind of rat." From http://www.crsp.oru/cmte/makeover-novOO.htm 92 the grain o f the international normative consensus. Recent years have seen an increase i n po l i t i ca l condit ions be ing placed on the behaviour o f nations. Regional Conditionality One can point to evidence that " po l i t i c a l cond i t iona l i ty " has taken a place alongside the "economic condi tona l i ty " practiced for so long by institutions l i ke the IMF . Today, free and fair elections are a pre-requisite for membership- in-good-standing i n the international community. There was certainly an awareness o f this international real ity on the part o f Montes inos, who in the above mentioned discuss ion w i th Romero, also states that " to w i n [the 2000 presidency for Fu j imor i ] , is to w i n in a decent fashion, do ing a clean j o b . " H e was clearly aware o f Peru ' s image abroad, and the need to at least be perceived to have won the elect ion in a free and fair manner. Po l i t i c a l condit ional i ty has long been a no rm for European C o m m u n i t y membership, but is also, as I w i l l mention below, s lowly becoming a reality in the premier regional c lub o f the Amer icas , the O A S . G l oba l and regional organisations often make prov is ions o f credits, the negotiations o f commerc ia l agreements and membership requirements contingent on a nation taking steps to reform po l i t i ca l institutions, ho ld ing free and fair elections, respecting human rights and the safety o f ethnic, l inguist ic or rel igious minorit ies. In some cases, l ike the transitions to democracy in Southern Europe, the different forms o f bilateral and multi lateral condit ional it ies for European Commun i t y membership combined in a way that p laced considerable restrictions on the marg in for maneuver avai lable to new democratic regimes. In the Soviet successor states established 1 3 2 Despite managing to find refuge in Venezuela, on 25 June 2001 Montesinos was handed over by Venezuela to the Peruvian government. He is now due to face a domestic trial. 93 since the fa l l o f the Be r l i n W a l l , leaders seeking membership o f the European U n i o n have act ively sought to be subjected to po l i t i ca l condit ional ity i n order to in fo rm the people that they had no choice but to take certain unpopular measures. A l t hough the European U n i o n has led the way in terms o f p lac ing po l i t i ca l condit ions on membership and the benefits that come wi th that, the O A S has recently posit ioned democracy and human rights more prominently at their A p r i l 2001 Summi t i n Quebec C i ty. The result o f this meeting o f regional leaders was a "Dec la ra t ion and P lan o f A c t i o n , " wh i ch proposed an " Inter -Amer ican Democrat ic Charter " designed to bu i ld on "ex i s t i ng O A S instruments for the defense o f representative democ ra c y . " 1 3 3 Consequently, any "unconst i tut ional alteration or interruption o f the democratic order " w i l l be deemed an " insurmountable obstacle to the part ic ipation o f that state" i n the Summit o f the Amer i ca s process - i n short, states wh i ch violate the proposed Democrat ic Charter w i l l be exc luded f rom the Free Trade o f the Amer icas ( F T A A ) . Such steps prov ide evidence that pressures for democratisation are emanating increasingly f rom La t i n Ame r i c an countries themselves - indeed, it was the transitional government o f Peru who proposed the Democracy Charter in the first place. The widespread regional endorsement o f the "Dec la ra t ion and P lan o f A c t i o n " suggests that democrat ical ly elected governments in La t i n A m e r i c a have developed a sense o f there being a strong self-interest i n ostracising neighbours deviat ing f rom formal democratic features. The following quotes from the 2001 O A S , Quebec City Summit, "Declaration and Plan of Ac t ion , " are taken from Cameron (2001). 94 CHAPTER 5: CONCLUSION - RETHINKING PACTS The altered wo r l d to have emerged since the fa l l o f the Be r l i n W a l l begs important questions regarding pacts. W i l l pacts that protect v i ta l elite interests, and at the same t ime v io late w ide l y held definit ions o f democracy, become less probable? What does the evidence I have prov ided f rom the Ch i l ean experience and the P inochet arrest tel l us about the phenomenon o f pacts as a whole? What has changed as a consequence o f recent events? Before answering these questions, a br ie f summation o f the central negative and pos it ive arguments o f this work is useful. It appears t imely to rethink the earlier scholar ly consensus on the purportedly posit ive role o f po l i t i ca l pacts i n stabi l i s ing democracy. E m p l o y i n g the Ch i l ean case and the recent events i nvo l v i ng P inochet as its focus, this study contends that there are two fundamental f laws present in much o f the literature on pac t s . 1 3 4 One is that it does not pay suff icient attention to the poor qual ity o f the emerging democracy. The deficiencies in contemporary Ch i l ean democracy (outl ined in detail i n chapter three), and the problems i n C o l o m b i a and Venezue la, have not been properly accounted for in the literature. W o r k on pacts has placed emphasis on stabil ity rather than quality, when indeed the poor quality o f the emergent democracy where pacts have occurred has proven extremely damaging in the long-term. The lack o f attention to the qual ity o f democracy in the pacts literature is manifested by the extremely narrow def in i t ion o f democracy that the work has provided. N o pact theorist has out l ined a def in i t ion o f democracy that s ignif icantly goes beyond the classic min ima l i s t def in i t ion prov ided by Dah l . Fo r example, P rzeworsk i states that "democracy is a system in w h i c h 95 parties lose elections. There are parties: d iv i s ions o f interests, values, and opinions. There is compet it ion, organized by rules. A n d there are per iodic winners and losers. Obv iou s l y not a l l democracies are the same; one can list innumerable variations and dist inguish several types o f democratic institutions. Ye t beneath a l l the institutional diversity, one elementary feature - contestation open to part ic ipation (Dahl 1971) - is suff icient to identify a po l i t i ca l system as democrat ic " (Przeworsk i 1991, 10 ) . 1 3 5 In my v iew, a broader def in i t ion o f polyarchy is necessary to br ing attention to the damage a pact can have on a nat ion ' s chance o f developing democracy o f any quality. Such a narrow def in i t ion fai ls to highl ight the more subtle damage a pact can cause democratic prospects. B y measur ing contemporary Ch i l e against my four addit ional cr iter ia for polyarchy ( f rom Defining Democracy section), I have attempted to stress the importance o f the absence o f any ment ion o f democratic quality in the pacts literature. I am not arguing that there was an alternative to pacts in places where they have occurred. Where the outgoing authoritarian elites are in a pos i t ion o f strength, then pacts, p rov id ing non-democratic concessions l ike impunity, have been a necessary feature o f establishing any k i nd o f c i v i l i an rule. I am arguing however, that the literature should have shown greater awareness o f the long-term damage a pact can cause a pol i ty. A more demanding def in i t ion o f democracy wou l d have helped achieve that increased awareness. I am not suggesting an alternative path that elites i n Ch i le , Venezue la and C o l o m b i a 1 3 4 When talking about the literature on pacts, I am referring to the major works that have emerged on the subject: namely, O 'Donne l l and Schmitter 1986, Kar l 1990, Przeworski 1991, and Higley and Gunther 1992. 1 3 5 Burton, Gunther and Higley state that there is broad scholarly consensus that democracy can "best be defined and applied in terms of the procedural criteria that Robert Dahl (1971) has specifed: a political regime characterized by free and open elections, with relatively low barriers to participation, genuine political competition and wide protection of c iv i l liberties" (1992, 1). Kar l adds "c ivi l ian control over the military" to set her "definition apart from Robert Dahl 's classic notion of a 'procedural min imum'" (1990, 2). O 'Donne l l and Schmitter (1986) provide no formal definition of democracy in their analysis o f pacts. 96 cou ld have fo l l owed. I am suggesting however, that scholars cou ld have been more cr i t ica l i n their analysis and, by p lac ing more emphasis on democratic qual ity than stability, developed a typology to dist inguish between a successful and unsuccessful pact. The second f l aw wi th in the pacts literature is its lack o f recognit ion o f the important role that international factors can play in democratic transitions. B y p lac ing the Ch i l ean national picture w i th in an international frame, I have attempted to highl ight the importance o f this omiss ion. Throughout La t in A m e r i c a there is evidence that the Pinochet saga has changed attitudes regarding the necessity, legit imacy and durabi l i ty o f pacts. P inochet ' s loss o f immun i ty i n Ch i l e contravened an important condit ion o f Ch i l e ' s transicion pactada and this has had an important " k n o c k - o n " effect throughout the region. A s cases once considered c losed have been reopened, doubts have been raised about the abi l i ty o f outgoing dictators to lay long-lasting condit ions for a transition. In Ch i l e , Peru, A rgent ina and Uruguay there is evidence that the rule o f l aw is being strengthened as those who have committed cr imes i n the past are beginning to face justice. The transit ion in Peru (summarised above) provides recent evidence o f a domestic situation being inf luenced by international factors. In another t ime and context, Fu j imo r i might have been able to negotiate a transit ion that wou ld have left the key interests o f his regime ( l ike the power o f Montes in i s ta generals, and perhaps the Fu j imo r i and Montes inos bank accounts) untouched. The new international environment, however, has made it less l i ke l y that crimes w i l l go unpunished in Peru than wou l d have been the case a generation ago. In 2000, Fu j imo r i ' s pos i t ion became untenable when he was bombarded w i t h c r i t i c i sm not on ly at home, but also abroad. Developments i n Peru contribute to the 97 posit ive argument o f this study: namely, international factors have an important inf luence on pacts and democratic transitions i n general. A n international cr i t ica l juncture, in the fo rm o f the end o f the C o l d War, has altered international norms and prov ided favourable condit ions for the democratisat ion o f domestic institutions. Th i s fundamental alteration potential ly presents c i v i l i ans w i t h a greater range o f choice as they make future transitions to democracy. In an altered international context, the moral balance for pact-making has ti lted in favour o f c i v i l i an elites. Pacts protecting the v i ta l interests o f elite groups w i l l l i ke l y s t i l l occur i n the future, as mechanisms w i l l be necessary to seduce strong and united authoritarian elites f r om the po l i t i ca l arena. When authoritarians command 4 3 % electoral support, as the Pinochet regime d id i n the 1988 plebiscite, c i v i l i an offers o f appeasement may w e l l be necessary to get them to step aside. Indeed, the pl ight o f Pinochet cou ld result i n mi l i ta ry regimes being unw i l l i n g to give up power for fear that what happened to P inochet may happen to them. But, the importance o f the Pinochet case has been that it has served to change attitudes. A s can be seen by the O A S statement regarding Peru, the international communi ty is now broadly in favour o f accountabi l ity for a l l , and the I C C serves as a p romis ing channel to ensure that accountabi l ity and break o ld cycles o f impunity. Pacts o f the future have the potential to be less generous to human rights violators, forc ing today ' s leaders to think twice before commit t ing human rights atrocities. Grant ing impunity to abusers o f human rights risks al ienating a country in the eyes o f the international community. Such a reality creates potential for c i v i l i a n pact makers to feel more confident that they need not be overly accommodat ing to the 98 previous regime. F r om now on, c i v i l i an negotiators may not be so fearful that the mi l i ta ry w i l l resort to repression i f their v i ta l interests are not protected. There is a suitably large g lobal consensus that v io lat ing human rights is wrong. M i l i t a r y repression is more l i ke l y to end in international isolation. Present and future dictators w i l l be insecure i n the knowledge that mechanisms in international law are more l i ke ly to be ut i l i sed against them i f they violate human rights. 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