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

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RETHINKING  PACTS  DEALING WITH PINOCHET IN AN ALTERED WORLD by ROSS  BURNSIDE  M . A . , The U n i v e r s i t y o f G l a s g o w , 1999 A THESIS 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 FOR T H E D E G R E E OF M A S T E R OF ARTS in T H E F A C U L T Y OF G R A D U A T E STUDIES ( D E P A R T M E N T OF POLITICAL SCIENCE  )  W e accept this thesis as c o n f o r m i n g to the required standard  THE UNIVERSITY OF BRITISH C O L U M B I A A u g u s t 2001  © R o s s B u r n s i d e , 2001  U B C Special Collections - Thesis Authorisation F o r m  Page 1 o f 1  In p r e s e n t i n g 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 o f t h e r e q u i r e m e n t s f o r an advanced degree a t t h e U n i v e r s i t y o f B r i t i s h Columbia, I agree t h a t t h e 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 r e f e r e n c e and-study. I f u r t h e r agree t h a t p e r m i s s i o n f o r e x t e n s i v e c o p y i n g o f 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 g r a n t e d by t h e head o f my department o r 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 u n d e r s t o o d t h a t c o p y i n g o r p u b l i c a t i o n o f t h i s t h e s i s f o r f i n a n c i a l g a i n s h a l l not be a l l o w e d w i t h o u t my w r i t t e n p e r m i s s i o n .  Department of The U n i v e r s i t y o f B r i t i s h Columbia Vancouver, Canada  http://www.library.ubc.ca/spcoll/thesauth.html  8/29/00  ABSTRACT S i n c e the m i d d l e o f the 1980s a s c h o l a r l y consensus has b u i l t up around the purportedly p o s i t i v e role that " p a c t s " can p l a y i n L a t i n A m e r i c a n d e m o c r a t i c transitions. It has been contended that pacts, although an u n d e m o c r a t i c route to d e m o c r a c y , m a y w e l l u l t i m a t e l y have a p o s i t i v e role i n establishing a democracy, and p r o v i d e a p o s i t i v e m o d e l for other countries i n the r e g i o n to emulate. T o d a y , h o w e v e r , there are signs that attitudes towards these pacted transitions m a y be changing. In recent years, pacts i n V e n e z u e l a , C o l o m b i a , and C h i l e have c o l l a p s e d or u n r a v e l e d as a consequence o f c h a n g i n g domestic and international c o n d i t i o n s . T h e situation that has been left i n the w a k e o f these alterations suggests the legacy o f the pacted d e m o c r a t i c transition type m a y not be as i m p r e s s i v e as was once thought. O b s e r v a t i o n o f the current situation i n these nations u n v e i l s a s t r i k i n g l y different picture than was painted i n the i n i t i a l literature o n them. F a r f r o m pacts b e i n g b e n e f i c i a l to the future d e v e l o p m e n t o f stable and effective democracy, what can be seen m o s t clearly i n these instances is a b a c k g r o u n d o f i m p u n i t y , corruption, l a c k o f a c c o u n t a b i l i t y or responsiveness, and the distortion o f the most basic features o f p o l y a r c h y , a l l o v e r s h a d o w i n g a p r o c e d u r a l d e m o c r a t i c foreground. T h i s study argues that the scholarship o n " p a c t s " has some important f l a w s , yet has largely gone unchallenged. It also argues that some quite f u n d a m e n t a l change has been, and is g o i n g o n i n the w o r l d today, and this change can have a c r u c i a l i m p a c t o n d o m e s t i c institutions. C o m b i n i n g these t w o ideas w i t h e m p i r i c a l analysis f r o m c o n t e m p o r a r y C h i l e and the P i n o c h e t saga, I contend that it is time to r e t h i n k the consensus that seems to have built up around the n o t i o n o f pacts i n L a t i n A m e r i c a .  CONTENTS  ABSTRACT CONTENTS ACKNOWLEDGEMENTS C H A P T E R 1:  INTRODUCTION  Defining Democracy C H A P T E R 2: P A C T S  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 PINOCHET SAGA AND T H E C O L L A P S E OF PACTS  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 - R E T H I N K I N G REFERENCES  Websites Newspapers and Magazines  PACTS  ACKNOWLEDGEMENTS  Thank-you M a x C a m e r o n p r o v i d e d w o n d e r f u l support and guidance. H i s endless enthusiasm is an i n s p i r a t i o n .  Dedicated T o w h o I o w e what I value most: Irene, G o r d o n , and G r e i g B u r n s i d e . F o r l o v e , support and editorial assistance: Jessie Sohal.  CHAPTER 1: INTRODUCTION In 1970, D a n k w a r t R u s t o w began his s e m i n a l article o n " T r a n s i t i o n s to Democracy"  1  w i t h the f o l l o w i n g q u e s t i o n : " W h a t c o n d i t i o n s m a k e d e m o c r a c y p o s s i b l e  and w h a t c o n d i t i o n s m a k e it t h r i v e ? " (1970, 337) In s e e k i n g an a n s w e r to this, m o s t scholars i n the last t w o decades, i n contrast to the p r e v i o u s generation o f a c a d e m i c s ,  2  h a v e f o c u s e d o n the interests and values o f elites i n t r y i n g to understand v a r i a t i o n s i n states' d e m o c r a c t i c s t a b i l i t y .  3  Indeed the literature that emerged i n response to L a t i n A m e r i c a n d e m o c r a t i c transitions f r o m the late 1970s to early 1990s e m p h a s i s e d the i m p o r t a n c e o f " s e t t l e m e n t s " and " p a c t s " d e s i g n e d to protect the core elites i n the p r e v i o u s a u t h o r i t a r i a n r e g i m e .  4  "A  pact c a n be d e f i n e d as an e x p l i c i t , but not a l w a y s p u b l i c l y e x p l i c a t e d or j u s t i f i e d ,  ' Rustow's article established a groundbreaking perspective in which democratisation was a dynamic process o f change. He believed that the literature on the causes and conditions o f 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 o f 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 o f economic and cultural predispositions mixed with contingent developments and individual choice. His rejection o f 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 o f 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 o f economic development." The initial post W o r l d W a r II literature studied the relationship between political culture and democracy ( A l m o n d and Verba 1963, Dahl 1966), placing emphasis on the role o f social values in maintaining democracy. For example, A l m o n d and Verba make the case that stable democacy is a consequence o f 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 A l m o n d and Verba by arguing that democracy is not created by, but creates a set o f consensual social values (1970, 48-52).  2  The most notable studies o f elite roles in transitions have come from O ' D o n n e l l and Schmitter 1986, K a r l 1990, Przeworski 1991, and Higley and Gunther 1992. Although these works differ in that O ' D o n n e l l , Schmitter, K a r l and Przeworski talk o f "elite pacts", while Gunther and Higley talk o f "elite settlements", when discussing the pact literature I include them in the same group - it appears to me that "elite settlements" are a type o f transitional pact. The differences between the concepts o f elite settlements and elite pacts w i l l be addressed later in this study. N o t all contemporary scholars, however, have emphasised elites. Putnam's (1993) influential study argued for a return to the study o f values with far less attention to elite behaviour. 3  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 o f political pact, albeit the broadest type o f political pact in that it is inclusive o f all or almost all significant elites.  4  1  agreement a m o n g a select set o f actors w h i c h seeks to define (or, better, to redefine) rules g o v e r n i n g the exercise o f p o w e r o n the basis o f m u t u a l 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 S c h m i t t e r 1986, part I V , 37). " T h e e l i t e " w h o s e " v i t a l interests" the pact is designed to protect are largely d e f i n e d i n the literature as the people w h o are able, through their positions i n p o w e r f u l organisations, to affect n a t i o n a l p o l i t i c a l outcomes regularly and seriously. " E l i t e s thus constitute a n a t i o n ' s top leadership i n a l l sectors - p o l i t i c a l , g o v e r n m e n t a l , business, trade u n i o n , m i l i t a r y , m e d i a , r e l i g i o u s , and intellectual - i n c l u d i n g both ' e s t a b l i s h m e n t ' and ' c o u n t e r e l i t e ' f a c t i o n s " ( B u r t o n a n d H i g l e y 1987, 296). A national elite c o u l d be said to i n c l u d e " a l l those persons capable, i f they w i s h , o f m a k i n g substantial p o l i t i c a l trouble for h i g h o f f i c i a l s (i.e., other elite persons w h o happen to be incumbents o f authoritative p o s i t i o n s ) w i t h o u t b e i n g p r o m p t l y r e p r e s s e d " ( F i e l d and H i g l e y 1973, 8). E m e r g i n g f r o m the consensus over the e x p e d i e n c y o f elite-led pacts was the i d e a that transitions to d e m o c r a c y w o u l d be inherently conservative. T r a n s i t i o n s f r o m authoritarian rule w o u l d be constrained b y the need to a c c o m m o d a t e elite groups, p r o v i d i n g them w i t h the c o n f i d e n c e that their interests w o u l d not be touched b y the d e m o c r a t i z a t i o n process. U n d o u b t e d l y pacts, w h i c h are usually contingent o n p r o v i d i n g w i d e - r a n g i n g amnesties to the previous regime, have amounted to considerable constraints o n d e m o c r a t i c c o n s o l i d a t i o n . Indeed, w o r k o n transitions has recognised this. Scholars have agreed that pacts made b y elites m a y be " u n d e m o c r a t i c m e a n s "  (Hagopian  1990, K a r H 9 8 6 ) o f a c h i e v i n g democracy, but m a y w e l l be necessary and, u l t i m a t e l y , b e n e f i c i a l to the success o f democracy. Thus, i n the L a t i n A m e r i c a n context, the Pact of Punto Fijo (1958) i n V e n e z u e l a , C o l o m b i a ' s National Front pact (1958), and the m o r e  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 o f 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 o f 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 o f 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 o f the "pacted" democratic transition type is not  See O ' D o n n e l l and Schmitter (1986), part 4, 45. Here it is argued that in Venezuela and C o l o m b i a 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] " - t h o s e o f Peru, B o l i v i a , Ecuador, the D o m i n i c a n Republic, and Argentina - are characterized by the absence o f political (and economic) pacts. The least that can be said in those cases is that the prospects o f consolidation o f 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 M u n c k 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 A m e r i c a " (1994, 1). See, also, Tulchin and Varas (1991), O ' D o n n e l l (1994, 64, 68). 5  3  nearly as i m p r e s s i v e as w a s once thought. O b s e r v a t i o n o f the current situation i n each o f these nations u n v e i l s a s t r i k i n g l y different picture than w a s painted i n the i n i t i a l literature o n them. F a r f r o m pacts b e i n g b e n e f i c i a l to the future d e v e l o p m e n t o f stable a n d e f f e c t i v e d e m o c r a c y , what c a n be seen most c l e a r l y i n these instances is a b a c k g r o u n d o f i m p u n i t y , c o r r u p t i o n , l a c k o f a c c o u n t a b i l i t y or responsiveness, and the d i s t o r t i o n o f the most basic features o f p o l y a r c h y , a l l o v e r s h a d o w i n g a procedural democratic foreground. In 1998 H u g o C h a v e z was able to s u c c e s s f u l l y r u n f o r the p r e s i d e n c y i n V e n e z u e l a o n a p l a t f o r m that p r o m i s e d to a b o l i s h the p o l i t i c a l arrangements o f the Pact of Punto Fijo  6  C h a v e z v o i c e d frustrations w i t h a pact that had decayed into a corrupt and  e x c l u s i v e f o r m o f " p a r t y a r c h y . " T h e irony o f this is that C h a v e z has s u c c e s s f u l l y 7  attacked a system that f o r the better part o f f o u r decades l a i d foundations f o r a stable d e m o c r a c y that was a source o f pride for m a n y V e n e z u e l a n s . S i n c e elected president, C h a v e z has c a l l e d a succession o f elections, i n c l u d i n g most recently, " m e g a - e l e c t i o n s , " n e w elections f o r every o f f i c e i n the country, i n order to " r e - l e g i t i m a t e " h i s rule. H e used his p o w e r to c o n v e n e a constituent assembly, e n a b l i n g h i m to rewrite the n a t i o n ' s c o n s t i t u t i o n and r e m o v e the clause d e e m i n g the m i l i t a r y to be a n o n - d e l i b e r a t i v e institution. These events have further strengthened the p o w e r o f the p r e s i d e n c y (and the m i l i t a r y ) l e a d i n g m a n y observers to v o i c e concerns that there m a y be very f e w c h e c k s and balances r e m a i n i n g i n V e n e z u e l a ' s once stable d e m o c r a t i c government (See M c C o y  The Pact of Punto Fijo was signed by the two major political parties, the A c c i o n 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 o f Latin America in the two decades following the Cuban Revolution o f 1959. 6  M i c h a e l Coppedge defines "partyarchy" as existing when parties control most aspects o f the democratic process. H e argues that Venezuela "is probably the most extreme case o f 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). 7  4  1999, C a m e r o n and M a j o r 2001). T h e d i r e c t i o n i n w h i c h C h a v e z is l e a d i n g V e n e z u e l a raises questions that pact theorists d i d not consider: namely, the d e m o c r a c y to emerge i n nations w h e r e pacts o c c u r m a y be o f p o o r quality. Pacts m a y create c o n d i t i o n s that contribute to w i d e s p r e a d disenchantment w i t h the " d e m o c r a t i c " r e g i m e - fertile g r o u n d for m a n i p u l a t i o n and further d i s t o r t i o n o f p o l y a r c h y by p o p u l i s t autocrats l i k e C h a v e z . S i m i l a r l y , C o l o m b i a ' s National Front pact appears to have decayed as the country falls into an abyss o f u n g o v e r n a b i l i t y and c i v i l war. Jonathan H a r t l y n and J o h n D u g a s (1999) have even suggested that the e x c l u s i o n o f certain p o l i t i c a l groups i n the N a t i o n a l F r o n t has exacerbated the p r o b l e m s the nation has had, and continues to have, w i t h strong and v i o l e n t non-state actors. B a s i c state structures and c i v i l rights continue to be c h a l l e n g e d by m u l t i f a c e t e d v i o l e n c e f r o m left w i n g guerrillas, d r u g traffickers, state security forces and right w i n g p a r a m i l i t a r y groups. State weakness is m a n i f e s t e d i n p o l i t i c a l v i o l e n c e and h u m a n rights v i o l a t i o n s carried out by non-state actors (some i n c o l l a b o r a t i o n w i t h state agents) o n one hand, and, o n the other, w i d e s p r e a d c r i m i n a l v i o l e n c e c a r r i e d out w i t h m o r e or less i m p u n i t y . Thus, C o l o m b i a n governments have c o n f r o n t e d a g r o w i n g challenge f r o m various directions. T h e largest and most important o p p o s i t i o n group has been the peasant-based Fuerzas A r m a d a s R e v o l u c i o n a r i a s de Q  Colombia ( F A R C )  w i t h its strong l i n k s to the C o m m u n i s t Party - a p o l i t i c a l party that  was e x c l u d e d f r o m C o l o m b i a ' s N a t i o n a l F r o n t d e m o c r a c y ( H a r t l y n and D u g a s 1999). T h e current p o l i t i c a l t u r m o i l i n C o l o m b i a reflects the d i f f i c u l t y i n m o v i n g b e y o n d a c o n s t r a i n i n g and h i g h l y e x c l u s i o n a r y pact that left out several interested groups.  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 o f F A R C , see M o l a n o (2000). Molano argues that the roots o f F A R C are sunk deep in the issue o f class and peasant exclusion from elite group domination o f power levers in Colombia. 8  5  A d d i t i o n a l l y , there is C h i l e - the case w i t h w h i c h this study is p r i m a r i l y c o n c e r n e d . T h e O c t o b e r 1998 arrest o f A u g u s t o P i n o c h e t i n L o n d o n has r u p t u r e d the pact m a d e b e t w e e n the c i v i l i a n g r o u p i n g o f the Concertacion Democratic?  de Partidos  por La  and the p r e v i o u s a u t h o r i t a r i a n r e g i m e as C h i l e m a d e its t r a n s i t i o n to  d e m o c r a c y i n the late 1980s. W h e n P i n o c h e t returned to h i s h o m e l a n d o n 3 M a r c h 2 0 0 0 , after h i s arrest i n B r i t a i n , he returned to a c o u n t r y w h e r e courts w e r e b e g i n n i n g to a v o i d the 1978 A m n e s t y L a w , w h i c h had p r e v i o u s l y , due to the negotiated p a c t ,  1 0  p r e v e n t e d the  t r i a l o f those a c c u s e d o f h u m a n rights abuses. H i s arrest created a " p o l i t i c a l m o m e n t " w h e r e l o n g - b u r i e d issues r e g a r d i n g the c o u n t r y ' s brutal past c o u l d n o w be addressed. Y e t , the arrest also h i g h l i g h t e d the f l a w s o f the C h i l e a n pacted t r a n s i t i o n a n d the strong e n c l a v e s o f a u t h o r i t a r i a n p o w e r s t i l l i n place. T o d a y , pact m e n t a l i t i e s r e m a i n p e r v a s i v e among Chilean politicians,  11  and u n d e m o c r a t i c elements that P i n o c h e t ' s r e g i m e e n s h r i n e d  i n the 1980 C o n s t i t u t i o n endure, g i v i n g C h i l e one o f the strongest and m o s t " u n c h e c k e d " 12  presidencies i n L a t i n A m e r i c a .  A s i n d i c a t e d b y the p o l a r i z a t i o n o f C h i l e i n the  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 ( P P D , Partido por la Democracia). Despite Chile undergoing a transition to democracy with the election o f Patricio A y l w i n in 1990, the transition occurred within the confines o f a negotiation process in which those who had ruled under the dictatorship w o u l d 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 o f the fundamentally undemocratic constitution set up by the Pinochet dictatorship in 1980. Witness the reaction o f 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 i a the pact. Questions o f sovereignty aside, there was never any question o f 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 o f "pact mentalities" that were evident among Chilean politicians in the wake o f the arrest, and in the lead up to the December 1999 Presidential election, see Moulian (1999). The Chilean President has extraordinary legislative powers. Shugart and Mainwaring (1997, see especially the introduction and conclusion) rank the Chilean president highest in Latin A m e r i c a when it comes to legislative prerogatives. The work o f Shugart and Mainwaring points to a strong correlation between presidential strength in the legislative arena and problems o f democratic government and efficacy. It is weaker presidential systems that have had more success in sustaining democracy. y  1 0  11  1 2  6  aftermath o f 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 o f attenuated social and class conflict" (2000, xiii). Chile's pact has been unable to remove old scars. The Venezuela, Colombia and Chile of today provide evidence that goes against the grain o f 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 o f 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 o f democracy. These three cases indicate that the question o f 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 , and Sweden in 1809 (see 13  Elite pacts have rarely been associated in the literature with the A n g l o - A m e r i c a n democracies - an exception to this is Burton, Higley and Gunther (1992). Nonetheless, pacts did represent crucial steps in the 13  7  H i g l e y and G u n t h e r 1992, introduction) seem to have stood the test o f s u f f i c i e n t t i m e to a l l o w one to say that they have been elite agreements that have a l l o w e d f o r d e m o c r a t i c c o n s o l i d a t i o n . W h a t I a m arguing, h o w e v e r , is that pacts do not necessarily lay s o l i d foundations for d e m o c r a c y , and that there are gaping cracks i n the literature that s h o u l d be addressed. F o r e x a m p l e , the pacts literature pays little attention to the international context w i t h i n w h i c h national l e v e l pacts o c c u r and evolve. In m y o p i n i o n , this is a m a j o r s h o r t c o m i n g . In the 1990s, g l o b a l i s a t i o n o f the international capitalist e c o n o m y has b e c o m e m o r e deeply entrenched. T h e a c c o m p a n y i n g enthusiasm for l i b e r a l e c o n o m i c arrangements and p o l i t i c a l institutions, not to m e n t i o n the i n c r e a s i n g p r o m i n e n c e o f h u m a n rights w i t h i n international n o r m s and l e g a l structures, has h a d a n important i m p a c t o n the context w i t h i n w h i c h national l e v e l debates are waged. S c h o l a r s h i p o n pacts s h o u l d not lose sight o f the potential role p l a y e d b y the international c o m m u n i t y i n d e t e r m i n i n g whether a d e m o c r a c y survives o r dies. In order to carry out the arguments I have l a i d out, a tour o f the p a c t s ' literature is necessary. T h e next chapter w i l l do this, w i t h the remainder o f the w o r k addressing i n detail the case o f C h i l e and the i m p l i c a t i o n s o f the P i n o c h e t arrest f o r pacts i n general. It appears to m e that the t i m e is right to r e t h i n k the n o t i o n that elite pacts enhance the p r o b a b i l i t y o f a v i a b l e and stable democracy. B e f o r e these issues and their i m p l i c a t i o n s for pacts i n L a t i n A m e r i c a can be f u l l y addressed, h o w e v e r , a d e f i n i t i o n o f d e m o c r a c y 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 M a g n a 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). A n y study o f weaknesses in democratic structures must be clear in ensuring a definition o f what it is measuring these weaknesses against. For the purposes o f 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 o f 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 o f 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 nondeliberative military. This definitional addition seems to be o f 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 o f  9  democratic government lies in the ability o f 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 o f both past and ongoing abuses o f 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 o f the theory o f the separation o f powers, Montesquieu, correctly argued that democracy is threatened when power is centralised in the executive or any one branch o f government. Checks and balances between constitutionally separated branches o f government are essential for the well functioning o f democracy. "When legislative power is united with executive power in a single person or in a single body o f the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws w i 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 o f polyarchy. A definition of this sort avoids the problem that David Collier and Steven Levitsky (1997) have labeled "conceptual stretching". Definitions o f democracy may be 14  C o l l i e r and Levitsky examine some o f the strategies o f 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, C o l l i e r 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 o f 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 o f being thrown into confusion. T o control these potential problems, C o l l i e r and Levitsky propose that scholars aim for "parsimony and avoid excessive proliferation o f new terms and concepts" (1997, 451). 14  10  too narrow, m a k i n g the mere presence o f elections a requisite feature (most nations i n the w o r l d h o l d regular elections, but most are far f r o m m e e t i n g the above criteria), and o f b e i n g too broad, a s s u m i n g s o c i a l and e c o n o m i c equality (such a d e f i n i t i o n w o u l d m e a n that no d e m o c r a c i e s currently exist as not even the most d e m o c r a t i c n a t i o n o n earth c a n have c o m p l e t e s o c i a l and e c o n o m i c equality). T h e pacts literature fails to a c k n o w l e d g e that pacts m a y actually interfere w i t h the proper f u n c t i o n i n g o f m y four a d d i t i o n a l elements o f polyarchy. Pacts m a y contribute to the short-term stability o f a d e m o c r a c y by creating c o n d i t i o n s that prevent protests and demands f r o m reaching levels that c o u l d threaten the s u r v i v a l o f the regime. B u t it is p o s s i b l e that the l o n g - t e r m effects o f pacts o n d e m o c r a c y can be negative. L o n g - t e r m damage can be done to a p o l i t y w h e n negotiations protect the v i t a l interests o f the o l d authoritarian regime. F o r e x a m p l e , i f the m i l i t a r y is assured that they w i l l be i m m u n e f r o m p r o s e c u t i o n for h u m a n rights v i o l a t i o n s as a c o n d i t i o n o f the pact, then there is no equality for a l l before the law. Impunity creates an atmosphere where the m i l i t a r y feel an exaggerated sense o f their o w n importance and p o w e r , s o m e t h i n g that m a y m a k e t h e m more l i k e l y to return to a deliberative p o l i t i c a l role. W h e r e a pact agrees to d i v i d e p o w e r , regardless o f the e l e c t i o n result, between certain p o l i t i c a l parties, the w a y is left open for a situation where c o r r u p t i o n and c l i e n t i l i s m dominate governance, and w h e r e d i v i s i o n s o f p o w e r b e c o m e ineffective, or non-existent. W h e n p o l i t i c a l parties m o n o p o l i s e the electoral process, dominate the legislative process and b l o c k i n f o r m a l channels o f representation, l i k e the m e d i a and interest groups, the f u n c t i o n i n g , not to m e n t i o n the spirit, o f p o l y a r c h y is v i o l a t e d .  C H A P T E R 2: P A C T S T h i s chapter serves as a means o f presenting the m a i n features o f the pacts literature, and o u t l i n i n g what I consider to be the m a j o r f l a w s w i t h i n it. Scholars have agreed that pacts that protect the " v i t a l interests" o f o u t g o i n g autocrats are l i k e l y to l e a d to m o r e e n d u r i n g and v i a b l e democracies. C e r t a i n l y , transitions to d e m o c r a c y i n L a t i n A m e r i c a have often been contingent o n p r o v i d i n g continued i m p u n i t y to authoritarian elites f o r their h u m a n rights crimes, and for a n u m b e r o f years the stability o f V e n e z u e l a n and C o l o m b i a n d e m o c r a c y has p r o v i d e d grist for those d e e m i n g pacts essential f o r d e m o c r a t i c transitions ( O ' D o n n e l l and S c h m i t t e r 1986, 45). T h i s , i n turn, has c o n t r i b u t e d to strengthening the p o w e r , not to m e n t i o n the egos, o f m i l i t a r y p e r s o n n e l w h o have c o n s i d e r e d themselves to be perpetually above the l a w . Y e t , I b e l i e v e that i n the c o n t e m p o r a r y international context this situation is changing. C h a n g e s i n international n o r m s and c o n v e n t i o n s i n the post C o l d W a r era have the potential to contribute to different types o f d e m o c r a t i c transitions o c c u r r i n g i n the future: transitions that are less contingent o n p r o v i d i n g w i d e s p r e a d amnesties to h u m a n rights violators. In m y o p i n i o n , the international context i n w h i c h a d e m o c r a t i c t r a n s i t i o n occurs is e x t r e m e l y c r u c i a l and f o r m a t i v e to the course a nation w i l l f o l l o w . C h o i c e s made by early d e v e l o p i n g states at a particular p o i n t i n t i m e i n f l u e n c e not o n l y their future range o f options, but also the options o f later d e v e l o p i n g states. " T h e functions that are v i e w e d as proper and l e g i t i m a t e for the state are i n f l u e n c e d by general international n o r m s and practices. In the m o d e r n system the institutional characteristics o f states i n m o r e i n d u s t r i a l l y d e v e l o p e d areas have set an agenda for states in less d e v e l o p e d areas" ( K r a s n e r 1984, 241). R i g h t l y or w r o n g l y , history has s h o w n that nations use precedents  12  made i n other nations as a template for their o w n course  - precedents that are then  i n f l u e n t i a l f o r a l o n g p e r i o d thereafter. N u m e r o u s scholars have f o c u s e d o n major, r a p i d 16  watersheds i n p o l i t i c a l life, a r g u i n g that these transitions establish certain directions o f change and foreclose others i n a w a y that shapes p o l i t i c s f o r years to c o m e . S e y m o u r M a r t i n L i p s e t and Stein R o k k a n c a l l such transitions " c r i t i c a l j u n c t u r e s " ( L i p s e t a n d R o k k a n 1967). Stephen K r a s n e r calls short bursts o f institutional change f o l l o w e d b y a l o n g p e r i o d o f stasis, " p u n c t u a t e d e q u i l i b r i u m " .  1 7  Influenced by the ethos o f 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 o f the older industrialising nations. Modernisation theory fairly crudely established a directly proportional relationship between a country's economic strength and the chances o f 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 o f 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 o f national idiosyncracies that may hinder the imposing o f certain democratic or economic structures. A s 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). Once a particular path is taken by a country, it moulds future developments. T o 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 o f the program because o f 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 o f the past can perpetuate themselves into the future whose functional imperatives are radically different" (Krasner 1984, 240). Punctuated equilibrium refers to a set o f arguments about evolution whose main proponents are Stephen Jay G o u l d and N i l e s Eldredge. G o u l d and Eldredge attacked the conventional Darwinian synthesis that pictures evolutionary progress as a slow, continuous process o f 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 o f 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?" G o u l d ' s answer to this question is the latter. This description o f the basic nature o f the debate in evolutionary theory is similar to the debate in social and political analysis. Punctuated equilibrium is an apt description o f an analytic stance that sees political institutions enduring over long periods once they are established. From Krasner (1984, 242-243). G o u l d quote, originally in "Darwinism and the expansion o f Evolutionary Theory," in Science, 216 ( A p r i l 23, 1982). 15  1 6  17  13  It w i l l be demonstrated later ( i n chapter four) that the arrest o f P i n o c h e t i n B r i t a i n and his p o t e n t i a l p r o s e c u t i o n i n C h i l e is a watershed international event i n terms o f d e a l i n g w i t h elites i n the previous regime. It is i n d i c a t i v e o f a w o r l d w i t h different p r i o r i t i e s a n d is b o u n d to have (and indeed already has produced) p r o f o u n d " k n o c k - o n " and lasting effects, w h i c h has the potential to m o u l d future d e v e l o p m e n t s i n m a n y nations. I w o u l d argue that the P i n o c h e t arrest is r e f l e c t i v e o f the c r i t i c a l j u n c t u r e i n the post C o l d W a r international context whereby h u m a n rights are more, instead o f less, important than any strategic " b a l a n c e o f p o w e r . " It is no accident, therefore, that pacts i n C h i l e , V e n e z u e l a and C o l o m b i a have a l l f a l l e n apart i n the 1990s. In the first decade after the C o l d W a r , the agenda o f the international c o m m u n i t y changed. E x c l u s i o n o f the C o m m u n i s t s f r o m the p o l i t i c a l arena, w h i c h f o r so l o n g was the excuse o f elites i n V e n e z u e l a and C o l o m b i a f o r h a v i n g their respective pacts, is no longer considered a strategic n e c e s s i t y .  18  S i m i l a r l y , i n C h i l e the  post C o l d W a r international e n v i r o n m e n t lost P i n o c h e t any k i n d o f j u s t i f i c a t i o n f o r brutally repressing dangerous leftist elements. W i t h h u m a n i t a r i a n concerns n o w f i r m l y o n the international agenda, manifested i n processes l i k e the creation o f the International C r i m i n a l C o u r t ( I C C ) and other legal declarations a n d s t r u c t u r e s , the p o l i t i c a l context is 19  Despite this new reality, the defenders o f the Pact o f Punto Fijo in Venezuela have been at pains to recreate a C o l d W a r ambience by sharply criticising Chavez's close ties with Fidel Castro and Cuba. There is clearly awareness that the C o l d 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 C o l d W a r era reaction by members o f Chile's Right to Socialist candidate Ricardo Lagos's successful presidential bid o f 1999. They feared that a Socialist president would return the country to what they deemed the polarised "chaos" o f the early 1970s. 18  The 1993 Vienna Declaration on Human Rights declared that all human rights were o f legitimate concern to the international community, and it rejected any kind o f 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 o f domestic impunity. This led to the establishment o f ad hoc international tribunal - l i k e in concrete cases o f massive human rights 19  14  right f o r countries m a k i n g d e m o c r a t i c transitions i n the future to be less lenient to h u m a n rights abusing members o f the previous regime. P i n o c h e t ' s arrest has served to change institutional structures i n C h i l e and send out an international message to a l l future dictators that they m a y one day be h e l d responsible f o r their crimes. N o w that there is international m o m e n t u m i n f a v o u r o f prosecuting h u m a n rights violators, pacts o f the future m a y not need to be so generous to the p r e v i o u s g o v e r n i n g elite i n terms o f granting t h e m c r i m i n a l i m m u n i t y . Consequently, e x i s t i n g scholarship o n pacts m a y b e c o m e out o f step w i t h the p h e n o m e n o n it seeks to e x p l a i n . C o m p r o m i s e s , l i k e the one i n C h i l e , that forget the past i n order to face the future m a y b e c o m e an a n a c h r o n i s m i n a w o r l d w i t h established structures, l i k e the I C C , designed to h o l d everybody o n earth to codes o f international l a w . I f this occurs, it is important that a c a d e m i c w o r k o n negotiated transitions remains i n step w i t h reality. L e t us n o w l o o k to the pacts literature.  Logic of Pacts A s footnotes f r o m m y o p e n i n g paragraph m a k e clear, i n i t i a l theorists o f c o m p a r a t i v e p o l i t i c s sought to understand d e m o c r a c y i n d e v e l o p i n g countries b y searching f o r its prerequisites.  Later scholars, however, began to f o l l o w a more process  violations in the former Yugoslavia and R w a n d a - designed to give the international community power o f 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 o f systematic human rights violations. See also Barrington M o o r e (1966), Seymour Martin Lipset (1959). In 1959, Seymour Martin Lipset would famously argue that "the more well-to-do a nation, the greater the chances that it w i l l sustain democracy"; M o o r e 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 o f 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 o f preconditions that were discussed in the literature related to culture. The predominance o f certain values and beliefs over others was said to be more conducive to fostering democracy. Protestantism was alleged to improve the chances o f a nation being democratic in Europe, whilst Catholicism, with its hierarchical and 2 0  15  orientated path based u p o n contingent choice. A c c o r d i n g to T e r r y L y n n K a r l , the f a i l u r e to i d e n t i f y clear prerequisites for d e m o c r a c y caused theorists o f c o m p a r a t i v e p o l i t i c s to " m o v e their attention to the strategic calculations, u n f o l d i n g processes, and sequential patterns that are i n v o l v e d i n m o v i n g f r o m one type o f p o l i t i c a l r e g i m e to a n o t h e r " ( K a r l 1990, 5). K a r l argued that the prospects for d e m o c r a t i c c o n s o l i d a t i o n are c o n d i t i o n e d by the nature o f the transition process. S p e c i f i c a l l y , she suggests that d e m o c r a t i c stability is m o r e l i k e l y , at least i n the short t e r m ,  21  w h e n elites rather than the masses are ascendent  d u r i n g the transition process and w h e n elites define the parameters o f p o l i t i c a l and e c o n o m i c change through negotiated p o l i t i c a l pacts rather than the f o r c e f u l i m p o s i t i o n o f any single a c t o r ' s p o l i t i c a l project. A c c o r d i n g to M i c h a e l B u r t o n and J o h n H i g l e y (1987, 295) the " i d e a l t y p e " o f elite l e d transitions, w h i c h are relatively rare events where p r e v i o u s l y w a r r i n g elites t r a n s f o r m their b e h a v i o u r and suddenly and deliberately reorganise their relations v i a negotiating c o m p r o m i s e s o n their most f u n d a m e n t a l disagreements (see also K i r c h h e i m e r 1969), have t w o m a j o r consequences. T h e first is that they create patterns o f o p e n and peaceful c o m p e t i t i o n that is f o u n d e d o n the " n o r m o f restrained p a r t i s a n s h i p " ( M a n l e y 1965; D i P a l m a 1973), a m o n g a l l major elite factions. T h e second consequence is that they t r a n s f o r m p r e v i o u s l y unstable p o l i t i c a l regimes, where irregular seizures o f g o v e r n m e n t a l p o w e r by force are frequent and expected occurrences, into stable regimes, where seizures o f p o w e r by force do not o c c u r and are not expected. These alterations i n  intolerant traditions was deemed to have the opposite effect in Latin America (see Wiarda 1981, Morse 1974). A l m o n d 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. This is an important qualification that adds empirical validity to K a r l ' s work given that pacts in Latin A m e r i c a have not made democratic stability more likely in the long run. Unfortunately for the pacts literature as a whole, this qualification outlined by K a r l is not commonly used. 2 1  16  elite behaviour clear the path for, but do not guarantee, the emergence o f 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 M o s c a (1939) and Vilfredo Pareto (1935). Central to this theory is the contention o f "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 o f political regimes. A s Mosca says, "The varying structure of ruling classes has a preponderant importance in determining the political type, and also the level o f civilization, o f 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 o f 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 i n a very uncertain environment where actors are unsure of exactly what their interests and motivations  17  actually are, w h o w i l l support them, and what groups w i l l c o m p r i s e their allies a n d opponents. Y e t these are not n e w ideas. P h i l i p p e Schmitter (1995, 11), correctly points out that it w a s M a c h i a v e l l i w h o gave " t r a n s i t o l o g y " its fundamental p r i n c i p l e o f  uncertainty: There is n o t h i n g more d i f f i c u l t to execute, n o r more dubious o f success, nor m o r e dangerous to administer than to introduce a n e w system o f things: for he w h o introduces it has a l l those w h o profit f r o m the o l d system as h i s enemies and he has o n l y l u k e w a r m allies i n a l l those w h o m i g h t p r o f i t f r o m the n e w s y s t e m . 22  T h e absence o f any predictable " r u l e s o f the g a m e " d u r i n g the r e g i m e transition serves to e x p a n d the boundaries o f contingent c h o i c e (See P r z e w o r s k i 1989). A d a p t i n g M a c h i a v e l l i ' s m a x i m , K a r l outlines the d y n a m i c s o f the m o d e r n day transition process: Indeed the d y n a m i c s o f the transition r e v o l v e around strategic interactions a n d tentative arrangements between actors w i t h uncertain p o w e r resources a i m e d at d e f i n i n g w h o w i l l legitimately be entitled to p l a y i n the p o l i t i c a l game, what criteria w i l l determine the w i n n e r s and losers, and what l i m i t s w i l l be p l a c e d o n the issues at stake. F r o m this perspective, r e g i m e c o n s o l i d a t i o n o c c u r s w h e n c o n t e n d i n g s o c i a l classes and p o l i t i c a l groups c o m e to accept some set o f f o r m a l rules o r i n f o r m a l understandings that determine ' w h o gets what, where, w h e n and h o w ' f r o m p o l i t i c s . In so d o i n g they settle into predictable p o s i t i o n s a n d legitimate behaviours by c o m p e t i n g a c c o r d i n g to m u t u a l l y acceptable rules. E l e c t o r a l outcomes m a y still be uncertain w i t h regard to person o r party, but i n c o n s o l i d a t e d democracies they are f i r m l y surrounded b y n o r m a t i v e l i m i t s a n d established patterns o f p o w e r d i s t r i b u t i o n ( K a r l 1990, 6). O f c r u c i a l importance i n m a i n t a i n i n g c i v i l i a n rule after the pact m a k i n g process, is f i n d i n g w a y s that w i l l l i m i t uncertainty, e s p e c i a l l y b y r e d u c i n g incentives for c i v i l i a n s w h o h a v e lost out i n the negotiation process to appeal to the m i l i t a r y for assistance. T h i s suggests that there are two crucial tasks f a c i n g pact-makers. O n e 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 m i l i t a r y for protection o f their v i t a l interests. T h e second task is to b e g i n to  Quoted in Schmitter (1995, 11). From Machiavelli, The Prince I V .  18  design c o n s c i o u s strategies that create q u a l i t a t i v e l y n e w c i v i l - m i l i t a r y relations appropriate f o r future stable rule ( K a r l 1990, 12). T o successfully carry out these tasks, c i v i l i a n pact-makers must r e c o n c i l e the  two major conundrums that they  face i n the  negotiation process: one is that they m a y be o v e r l y cautious i n their demands i n the process w h i c h c o u l d p o t e n t i a l l y lead to the strengthening o f the unity o f n o n - d e m o c r a t i c adversaries, or to terms they m a y regret; the second is that they c o u l d be too reckless i n their demands, p r o v o k i n g the m i l i t a r y into retreating to repression and an o v e r a l l regression f r o m democracy. T h i s is the central m o r a l and strategic d i l e m m a o f the pact m a k i n g process. T h e future course o f the nation c a n be adversely affected i f the pactmakers overshoot i n either direction.  Importance of Pacts A l t h o u g h often i n i t i a l l y regarded as temporary solutions intended to a v o i d certain potential p r o b l e m s  , pacts often pave the w a y f o r a m o r e permanent r e s o l u t i o n o f  c o n f l i c t s . It is f o r this reason that the pact m a k i n g process is so c r u c i a l to a n a t i o n ' s course. H o w regimes are born sharply influences their present and future character. Patterns o f p o l i t i c s that emerge d u r i n g periods o f t r a n s i t i o n have a strong p o t e n t i a l to b e c o m e semi-permanent features o f a c o u n t r y ' s p o l i t i c a l landscape. T h i s is not to say that change is out o f the question, but change is l i k e l y to be s l o w and p a i n f u l . A t m o m e n t s o f p o l i t i c a l transition and c o n v u l s i o n , unique opportunities arise to discard the constraints  Pacts are often designed to appease the military. For example, in exchange for non-interference in the affairs o f the civilian 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 2 3  19  and o r g a n i s a t i o n a l f o r m s inherited f r o m the previous regime, but m i s s e d opportunities are d i f f i c u l t to regain. T h e C h i l e a n transition, w h i c h w i l l be analysed i n greater detail later, is a u s e f u l case to utilise i n support o f this c l a i m . V i a a pact attempting to f o r g i v e and forget the brutality o f the recent past and m a i n t a i n i n g " a u t h o r i t a r i a n e n c l a v e s "  2 4  designed by  P i n o c h e t , C h i l e ' s d e m o c r a c y has g r o w n f r o m a b i r t h defect that has p r o v e n d i f f i c u l t to heal - the result is an u n d e m o c r a t i c constitution c o n s t r a i n i n g chances o f a better q u a l i t y d e m o c r a c y and a p u b l i c bitterly d i v i d e d over the past. P o l i t i c a l institutions are b u i l t to suit the r e g i m e that they u p h o l d , and, as Frances H a g o p i a n has said, state elites and societal organisations b u i l d bridges to one another that are appropriate f o r the i m m e d i a t e p o l i t i c a l e n v i r o n m e n t (1990, 148). T h e i n d i v i d u a l elites i n v o l v e d i n the pact m a k i n g process use their positions to perpetuate modes o f p o l i t i c a l interaction that f a v o u r them. A s a result, p o l i t i c a l arrangements, once i n place, c o n d i t i o n future p o l i t i c a l b e h a v i o u r and p o s s i b i l i t i e s . C h i l e has s h o w n i t s e l f to be no e x c e p t i o n to this. P o l i t i c a l systems carry w i t h t h e m the seeds o f their o w n reproduction and it is w i t h great d i f f i c u l t y that they are transformed. Therefore, it is useful to think about the p o s s i b i l i t y o f " b i r t h d e f e c t s " i n the d e m o c r a t i s a t i o n process - defects that are not o n l y a result o f structural features that have l o n g been present i n society, but also accidental circumstances that surround the m o m e n t o f regime change. Studies o f the w i d e array o f d e m o c r a t i c regimes i n existence i n the w o r l d today (see for e x a m p l e , Casper and T a y l o r 1996) s h o w that every d e m o c r a t i c transition e v o l v e s i n a different way. Y e t this reality has not been recognised i n the pacts literature. It often suggests that nations w h o f o l l o w negotiated transitions to d e m o c r a c y  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 n e w l y d e m o c r a t i s i n g countries to f o l l o w . F o r e x a m p l e , Peter M e r k l argues, " i t appears that the o n l y trail to a democratic future for d e v e l o p i n g societies m a y be the one f o l l o w e d by V e n e z u e l a . . . . V e n e z u e l a is a t e x t b o o k case o f stepby step p r o g r e s s " (1981, 127).  25  H o w e v e r , this ignores the reality o f " e l i t e v a r i a b i l i t y , "  o u t l i n e d by M o s c a (1939) and Pareto (1935), that every nation is u n i q u e and carries a d i s t i n c t i v e agenda, as does every i n d i v i d u a l elite m e m b e r present at the t r a n s i t i o n negotiating table. H i s t o r y has s h o w n that nations attempt to f o l l o w the trails other nations have j o u r n e y e d . Y e t , no trail can be exactly replicated and some m a y be far b u m p i e r than others.  Pacts in Latin  America  N a t u r a l l y , p o l i t i c a l pacts h e l d special appeal i n L a t i n A m e r i c a n transitions to d e m o c r a c y (1973-1990) as they p r o v i d e d potential to induce the m i l i t a r y to return to the barracks and, i n the l o n g term, to break the c y c l e o f m i l i t a r y intervention. H o w n e w c i v i l i a n regimes s h o u l d deal w i t h the m i l i t a r y perpetrators o f state terror, e s p e c i a l l y w h e n those forces s t i l l w i e l d e d preponderant power, became a b i g issue throughout the r e g i o n as transitions began i n the 1970s and 1980s. C o m m o n i n m u c h o f the literature o n d e m o c r a t i z a t i o n is the idea that i n order to be responsive to citizens, elected government must be c o n d u c t e d w i t h o u t undue influence f r o m the c o e r c i v e branch o f the state - the m i l i t a r y . Pacts were seen as a w a y to d e p o l i t i c i s e m i l i t a r i e s by o f f e r i n g t h e m enhanced resources for f u l f i l l i n g their p r o f e s s i o n a l roles and a p r o m i s e o f noninterference i n their  The term "authoritarian enclave" was coined by Garreton (1989). Although not all work on pacts is as blunt as M e r k l (Karl (1986) admits that the choices and strategies o f political actors can seldom be superimposed), most do talk about how developing nations can learn from the lessons o f nations where pacts occurred. 2 4  2 5  21  o w n institutional affairs. In m a n y L a t i n A m e r i c a n nations, the negotiation o f i m p u n i t y for the m i l i t a r y at the p o i n t o f transition served the purpose o f protecting t h e m f r o m a c c o u n t a b i l i t y afterwards. B y o f f e r i n g concessions to elites w h o are either l u k e w a r m i n regard to d e m o c r a c y or w h o have contributed to its b r e a k d o w n , it is h o p e d that pacts c a n d i m i n i s h the appeal o f m i l i t a r y rule and stimulate support for the d e m o c r a t i c project ( P r z e w o r s k i 1991, O ' D o n n e l l 1979). G u i l l e r m o O ' D o n n e l l and P h i l i p p e Schmitter, w h o f a v o u r e d the negotiation o f p o l i t i c a l pacts for precisely these reasons, w o u l d argue i n 1986 that the d e m o c r a t i c regimes i n C o l o m b i a and V e n e z u e l a , b o t h brought into b e i n g by p o l i t i c a l pacts, have been m o r e stable and enduring than any other i n L a t i n A m e r i c a , save C o s t a R i c a (1986, Part IV, 39-40). L a t e r i n this study, I w i l l analyse i n detail the pact experience i n C h i l e , but at this stage it is w o r t h w h i l e to p r o v i d e an outline o f the L a t i n A m e r i c a n transitions to d e m o c r a c y that have been described i n the literature as b e i n g " p a c t e d " . W h o were the k e y players and what were the important events and time periods for each case? C o v e r a g e o f each L a t i n A m e r i c a n pact serves to c l a r i f y some o f the m u r k i n e s s over e x a c t l y what s h o u l d be considered a pact, as w e l l as the different types o f pacts that have o c c u r r e d (see T a b l e 1). Indeed there is a debate i n the literature over whether the transition i n certain countries can actually be c l a s s i f i e d as a pact, and what separates the n o t i o n o f an " e l i t e settlement" f r o m an " e l i t e pact". T h e concept o f pact m a k i n g emerged rather early i n the discussions about p o s s i b l e transitions f r o m authoritarian rule i n L a t i n A m e r i c a . A s m e n t i o n e d i n the i n t r o d u c t i o n , " a pact can be d e f i n e d as an e x p l i c i t , but not always p u b l i c l y e x p l i c a t e d or j u s t i f i e d , agreement a m o n g a select set o f actors w h i c h seeks to define (or, better, to redefine) rules  22  Table 1: Pacts in Latin America  Country Colombia (1958)  Type of Pact  Current Status  Excluding. Explicit pact -  Collapsed. 1991 Constitution eliminated all vestiges o f party parity. Yet violence remains endemic in Colombian society government has lost control over third o f national territory Collapsed. Chavez rewritten constitution. Military no longer "non-deliberative" institution Impunity provided to military via 1989 Amnesty law - beginning to crumble in wake o f Pinochet arrest "Parliamentarized presidentialism". Recurrent necessity for negotiation has allowed for a degree o f democratic stability Unraveling. Pinochet stripped o f immunity. Disappearance cases being brought before Chilean courts  National Front  Venezuela (1958)  Excluding. Explicit pact -  Pact of Punto Fijo  Uruguay(1984)  Including. Explicit pact -  Naval Club Accord  B o l i v i a (1985)  Chile (1988-9)  Excluding. Implicit pact between parties of centreleft to right  Excluding. Implicit pact  between Concertacion and Right  Nicaragua (1990)  E l Salvador (1992)  Including. Implicit pact between Sandanistas and UNO Including. Explicit U S brokered agreement  Abortive pact -collapsed  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  g o v e r n i n g the exercise o f p o w e r o n the basis o f m u t u a l 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 b r o a d acceptance o f this d e f i n i t i o n i n m u c h o f the w r i t i n g o n the pact m a k i n g process. T r a n s i t i o n a l pacts, however, have v a r i e d a c c o r d i n g to w h o participated i n t h e m and the range o f issues governed by them. T h e broadest type o f p o l i t i c a l pact has been c a l l e d i n the literature an " e l i t e settlement" ( B u r t o n , Gunther and H i g l e y 1992). T h i s type includes a l l , or a l m o s t a l l , o f the s i g n i f i c a n t national elites and addresses a l l the m a j o r issues a m o n g the elites, either by r e s o l v i n g t h e m or by m a k i n g an agreement to suspend any k i n d o f c o n f l i c t over them. If the o u t g o i n g p o l i t i c a l elite r e m a i n e d p o l i t i c a l l y significant, it w o u l d be i n c l u d e d i n the elite settlement. It is p r o b a b l y fair to say that the pacts to occur i n U r u g u a y and E l S a l v a d o r approached this ideal type, the " e l i t e settlement". In U r u g u a y , t w o o f the three m a j o r p o l i t i c a l parties negotiated the N a v a l C l u b A g r e e m e n t w i t h the m i l i t a r y r e g i m e after the latter was defeated i n the constitutional referendum i n 19 8 0 .  26  T h e agreement c a r e f u l l y  s p e c i f i e d and c o n t r o l l e d the process, i n order that, for e x a m p l e , the parties w e r e able to reestablish the f o r m e r electoral l a w whereby no parties were e x c l u d e d f r o m the d e m o c r a t i c arena, and the armed forces were p r o v i d e d w i t h guarantees that they w o u l d be protected f r o m f a c i n g p r o s e c u t i o n for their c r i m e s against humanity. Indeed, the N a v a l C l u b A c c o r d i n U r u g u a y is a pact w h i c h c o u l d be said to c l o s e l y f o l l o w A d a m P r z e w o r s k i (1991, 67-79) and O ' D o n n e l l ' s (1979) m o d e l o f negotiated m i l i t a r y "extrication".  2 7  W h e n the B l a n c o s , w h o had i n i t i a l l y boycotted the negotiations f i n a l l y  For a more in depth analysis o'f the Uruguayan transition than this study w i l l provide, see Gillespie (1991); Gillespie (1992); Gonzalez (1995). Both O ' D o n n e l l and Przeworski provide a model o f removing the military from the political arena, whereby the opposition soft-liners are required to reach a deal with the regime moderates, and thereby 2 6  2 7  24  accepted the terms o f the agreement, it b e c o m e the f o u n d a t i o n a l pact f o r the U r u g u a y a n transition to d e m o c r a c y accepted by a l l elite groups. In E l S a l v a d o r a decade l o n g c i v i l w a r f o l l o w e d the 1979 o v e r t h r o w o f C a r l o s H u m b e r t o R o m e r o ' s authoritarian government. D u r i n g this p e r i o d , a U S b a c k e d attempt to c o m p l e m e n t the w a r against the m a r x i s t insurgency established a m i n i m a l l y d e m o c r a t i c r e g i m e based on the centre-right C h r i s t i a n D e m o c r a t s a n d the far-right N a t i o n a l R e n e w a l A l l i a n c e ( A R E N A ) . L e f t i s t parties were either i n r e b e l l i o n or were repressed. A f t e r 1989, however, w i t h the C o l d W a r w a n i n g , the U S (and also the C u b a n and N i c a r a g u a n s i n the insurgent Farabundo M a r t i F r o n t f o r N a t i o n a l L i b e r a t i o n [ F M L N ] ) started to p u s h f o r a negotiated settlement. T h i s was a c h i e v e d i n 1992 and is currently b e i n g i m p l e m e n t e d . T h e F M L N has, therefore, been able to achieve access to the p o l i t i c a l process. T h e armed forces and A R E N A have been f o r c e d to g i v e u p their a i m o f destroying the L e f t a n d accept a b r o a d e n i n g and deepening o f p o l i t i c a l p a r t i c i p a t i o n . W h a t makes this an " e l i t e settlement" is that a l l s i g n i f i c a n t elites w e r e parties to the U S b r o k e r e d agreement. T h e transitions i n B r a z i l and P e r u are the t o p i c o f debate i n the literature over whether they s h o u l d be categorised as pacts. In regards to the B r a z i l i a n case, H a g o p i a n (1990) makes the argument that it was a pact negotiated between m i l i t a r y a n d c i v i l i a n personnel, whereas K a r l (1990) argues that it was a transition i m p o s e d by the m i l i t a r y . In  isolate their respective hard-liners. Opposition opportunists must also be outmaneuvered in order to ensure that a real transition rather than a process o f 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 w i l l i n g to negotiate with regime reformers to secure extradition, even i f some guarantees  25  both P e r u and B r a z i l , the d e m o c r a t i c transition was certainly not shaped by " b e h i n d c l o s e d d o o r s " , s m a l l group, elite negotiations l i k e i n U r u g u a y and E l Salvador. Rather, they s t e m m e d f r o m h i g h l y p u b l i c , m a s s i v e constituent assemblies (1978 i n P e r u and 1987 i n B r a z i l ) . T h e assemblies were undoubtedly representative o f a l l s i g n i f i c a n t sectors o f the respective countries, and they d i d lay d o w n d e f i n i t i v e constitutional rules for the e m e r g i n g d e m o c r a t i c regime. In these respects they were s i m i l a r to pacts, but I w o u l d argue that they s h o u l d be c l a s s i f i e d as a different k i n d o f p h e n o m e n o n . F o r e x a m p l e , elite pacts i n U r u g u a y , E l Salvador, V e n e z u e l a and C o l o m b i a i n v o l v e d detailed d o c u m e n t s intended to be i m p l e m e n t e d by elites, whereas the constitutions created i n P e r u and B r a z i l were largely mere p u b l i c , s y m b o l i c statements o f aspirations. T h e y were m o r e i n step w i t h the l o n g L a t i n A m e r i c a n t r a d i t i o n o f l a w s as statements o f values rather than as g o v e r n i n g rules (see Peeler 1998, chapter 1). T h e cases o f C h i l e , V e n e z u e l a , C o l o m b i a , B o l i v i a , and N i c a r a g u a are c o r r e c t l y c l a s s i f i e d as pacts, but I w o u l d suggest they are not o f the " e l i t e settlement" type. T h i s is p r i m a r i l y because not a l l elites were i n c l u d e d , or i n agreement w i t h the result o f the pact. In C h i l e , groups o n the right participate i n the post-Pinochet constitutional r e g i m e p r i m a r i l y to defend the authoritarian features o f that r e g i m e that l i m i t the m a n e u v e r i n g space o f the elected governments. S i m i l a r l y , groups o n the left, a l t h o u g h they tacitly cooperated w i t h the  Concertacion d u r i n g the 1988 referendum c a m p a i g n , have stated  their rejection o f the l e g i t i m a c y o f the post-Pinochet regime. In terms o f the n o n i n c l u s i o n o f certain elites, in V e n e z u e l a and C o l o m b i a the C o m m u n i s t s were e x c l u d e d f r o m any k i n d o f i n v o l v e m e n t w i t h 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 a m o n g elites have been v i t a l to the d e m o c r a t i c transition.  B u t they have not been " e l i t e settlements" as, l i k e V e n e z u e l a and C o l o m b i a , they have s t e m m e d f r o m the e x c l u s i o n o f the Left. A t the end o f the B a n z e r regime i n 1979, the elites were so deeply fragmented that no elected government c o u l d be p r o d u c e d u n t i l three years later. E v e n then, disunity a m o n g different p o l i t i c a l groups was s u c h that it appeared u n l i k e l y B o l i v i a w o u l d be able to have stable governance. T h e government o f Siles Z u a z o (1982-1985), w i t h its fragile unity and n a r r o w parliamentary base c o u l d not c o m p l e t e its t e r m and had to agree to early elections. It was the debacle o f the S i l e s Z u a z o a d m i n i s t r a t i o n that l e d to the parties o f the center-left to right agreeing to a pact that alienated the L e f t and a l l o w e d for government f o c u s i n g o n pragmatic matters o f patronage, rather than i d e o l o g i c a l p o l i c y matters. W i t h o u t the r a d i c a l and alternative v i s i o n p o s e d by the L e f t , it was possible for B o l i v i a n p o l i t i c s to g a i n a certain stability through a pattern o f s h i f t i n g presidential c o a l i t i o n s i n Congress. R e n e M a y o r g a termed this n e w pattern " p a r l i a m e n t a r i z e d p r e s i d e n t i a l i s m , "  29  and he argued that it is the  recurrent necessity o f negotiation a m o n g r i v a l elites that is the most important k e y to the n e w f o u n d stability o f B o l i v i a n democracy. N i c a r a g u a ' s transition  was c o n c e i v e d as an elite settlement i n v o l v i n g a l l elite  groups, but f a i l e d to b e c o m e one. A f t e r the surprise v i c t o r y o f U N O ( N a t i o n a l O p p o s i t i o n U n i o n ) candidate, V i o l e t a B a r r i o s de C h a m o r r o , i n the 1990 presidential e l e c t i o n , C h a m o r r o engineered a pact w i t h the defeated Sandinistas. A l t h o u g h as a party the Sandinistas w o u l d m o v e into o p p o s i t i o n , the pact p r o v i d e d that c o m m a n d o f the a r m e d  For a deeper analysis o f the Bolivian experience with pacts, see Gamarra 1994; Gammara and M a l l o y 1995. This term from Mayorga is quoted in Peeler (1998), 87. For more on the Nicaraguan pact see LaRamee (1995).  2 8  2 9  3 0  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 civil 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 o f 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  n e g o t i a t i o n process, as they bargain over the terms and c o n d i t i o n s o f the d e m o c r a t i c institutions and procedures to be adopted (see, for e x a m p l e , H a g g a r d and K a u f m a n 1999, C o l l i e r and M a h o n e y 1999, B e r m e o 1999). T h e p o i n t is, h o w e v e r , that the elites present at the negotiating table have no o f f i c i a l mandate to represent the p e o p l e v i a a d e m o c r a t i c process, l i k e an election. A d d i t i o n a l l y , by often p r o v i d i n g i m p u n i t y to elite groups l i k e the m i l i t a r y , pacts deliberately distort the p r i n c i p l e o f c i t i z e n equality. Nevertheless, they have the potential to alter p o w e r relations, set loose n e w p o l i t i c a 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 S c h m i t t e r 1986, part 4, 38). Despite these blatant u n d e m o c r a t i c features, pacts have been c o n s i d e r e d a desirable element o f the transition as it has been argued that they enhance the p r o b a b i l i t y that the process w i l l lead to a viable p o l i t i c a l democracy. R u s t o w (1970) argues that d e m o c r a c y advances " o n the installment p l a n " as c o l l e c t i v e actors, each preferring a different m o d e o f governance or a different c o n f i g u r a t i o n o f institutions enter into a series o f m o r e or less enduring c o m p r o m i s e s . G i v e n the n o t i o n that " h o w regimes are b o r n sharply influences their present and future character", it seems to m e that a major s h o r t c o m i n g o f the pacts literature is its u n d e r e s t i m a t i o n o f the importance o f the u n d e m o c r a t i c nature o f pact m a k i n g . C o n s i d e r i n g that m u c h o f the literature o n transitions talks o f " b i r t h d e f e c t s " that c a n hinder the future o f democracy, it appears somewhat surprising that not e x p l i c i t l y addressed i n the literature o n pacts ( i n i t i a l l y anyway) is the i d e a that p o l i t i c a l pacts m a y actually i m p i n g e o n d e m o c r a t i s a t i o n .  31  A s already m e n t i o n e d , pacts are u n d e m o c r a t i c and  There are exceptions. K a r l wrote that "the cost o f the stability o f pact making has been the abandonment o f greater democratization" (1986, 218). Hagopian also adds a sceptical voice to the consensus on pact making. In reference to B r a z i l , which she considers to be a pacted transition, she argues that "The Brazilian 3 1  29  by design subvert the n o t i o n o f m a j o r i t y rule. There is also m u c h e v i d e n c e that the p o l i t i c a l systems o f pacted democracies m a y have been c o m p r o m i s e d . . In V e n e z u e l a , the signatories o f the  Pact of Punto Fijo o f  1958 agreed to e x c l u d e  the C o m m u n i s t party f r o m the agreement and hence f r o m effective p a r t i c i p a t i o n i n p o l i t i c s . T h e p o l i t i c a l parties also negotiated to d i v i d e government posts a m o n g themselves regardless o f the e l e c t i o n results. R e s u l t i n g f r o m this was an e x t r e m e l y u n c o m p e t i t i v e system that fostered c o m p l a c e n c y and c o r r u p t i o n and was unresponsive to change - factors that w o u l d u l t i m a t e l y lead to the collapse o f the pact after the e c o n o m y began to d e c l i n e i n the late 1980s. S i m i l a r l y , i n C o l o m b i a , the c o n s o c i a t i o n a l Front, i n s t a l l e d i n 1958 to end  la violencia,  32  National  c o n s p i r e d to strip elections o f most o f their  m e a n i n g . T h e L i b e r a l and C o n s e r v a t i v e parties agreed to share u n t i l 1974, regardless o f the vote totals, a l l legislative and administrative posts e q u a l l y w h i l e altering the presidency. T h i s parity between the parties was c o n s t i t u t i o n a l l y guaranteed. T h r o u g h pact m a k i n g , p o l i t i c i a n s o f these t w o parties resurrected a system i n C o l o m b i a o f restricted, o l i g a r c h i c a l d e m o c r a c y , and superimposed it o n a society ravaged by c i v i l w a r and that had undergone significant structural changes ( W i l d e 1978, 59-62). A l t h o u g h I a m not c o n t e n d i n g that had the C o m m u n i s t Party been i n c l u d e d , the pacts i n V e n e z u e l a and C o l o m b i a w o u l d have endured. Q u i t e the contrary: i n c l u s i o n o f the C o m m u n i s t s w o u l d have contributed to greater i n s t a b i l i t y and to no elite agreement at a l l . I a m arguing, h o w e v e r , that i n both the V e n e z u e l a n and C o l o m b i a n 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). "Consociational" captures the main features o f C o l o m b i a ' s National Front pact. The consociational literature studies countries in which conflict across major sectors o f society have been resolved within the context o f 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 o f exclusion 3 2  30  served to institutionalise the practice o f p o l i t i c a l c l i e n t i l i s m w i t h i n the state. T h e institutionalisation o f these practises has led to situations in both countries today that continue to h i n d e r democracy. F o r e x a m p l e , C h a v e z was able to p o i n t to c o r r u p t i o n o f the pact as a m e c h a n i s m for c e m e n t i n g his current p o p u l a r pseudo-autocratic rule. In C o l o m b i a , despite the n e w c o n s t i t u t i o n o f 1991 that eliminates a l l vestiges o f party parity, the government remains p l a g u e d by p r o b l e m s o f eroded state authority m a s k e d by c h r o n i c p o l i t i c a l v i o l e n c e , c o r r u p t i o n and d i f f i c u l t i e s i n governance. A n y process w h i c h puts restrictions o n p a r t i c i p a t i o n or predetermines electoral results violates the most fundamental norms o f the most b r o a d l y accepted d e f i n i t i o n s o f modern democracy.  33  It is often the case, however, that pacts settle p o l i t i c a l c o n f l i c t i n  w a y s that appear to less r a d i c a l l y distort democracy. F o r e x a m p l e , the C o l o m b i a n and V e n e z u e l a n pacts also had d i m e n s i o n s that appeared to be less o f a threat to the basic features o f p o l y a r c h y - d i m e n s i o n s l i k e restricting the p o l i c y agenda, d i v i d i n g the s p o i l s o f the state's w e a l t h , and c o n c e d i n g c o n t r o l o f the p o l i t i c a l parties that serve as v e h i c l e s to allocate these spoils. It appears to m e that i n analysis o f the V e n e z u e l a n and C o l o m b i a n cases, scholars have f o c u s e d m o r e o n these aspects than the f u n d a m e n t a l distortions o f p o l y a r c h y , l i k e p o l i t i c a l party e x c l u s i o n , predetermined electoral results, or the v i o l a t i o n o f the separation o f powers. Y e t , i n m y o p i n i o n the m o r e subtle methods m e n t i o n e d above, w h i c h less r a d i c a l l y distort democracy, nonetheless do j e o p o r d i s e the  from power by the military government, potentially revolutionary violence in the countryside and economic stagnation" (Hartlyn 1988, 3). Schumpeter and Dahl provide the classic, what have been deemed "minimalist," definitions o f democracy. Joseph Schumpeter's famous definition o f 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 o f competition for leadership which is to define democracy," consists o f "free competition for a free vote" (1950, 217). T o reiterate from earlier, Dahl's criteria for "polyarchy" are: 1) elected officials; 2) free and fair elections; 3) inclusive suffrage; 4) j 3  31  d e m o c r a t i s a t i o n process. I w o u l d also suggest that their effect is l i k e l y to be m o r e severe w h e r e e x i s t i n g d e m o c r a t i c institutions are weak. A m a j o r f a i l i n g o f the literature o n pacts is a l a c k o f r e c o g n i t i o n o f the l o n g term damage that these s e e m i n g l y less destructive aspects o f the pact m a k i n g process have o n a state's d e m o c r a t i c prospects. Indeed some scholars have even suggested that the pact m a k i n g process s h o u l d not actually be c l a s s i f i e d as undemocratic. B u r t o n , G u n t h e r and H i g l e y (1992) refuse to accept that elite settlements create d e m o c r a c y by u n d e m o c r a t i c means, w h i c h is the c o n t e n t i o n o f K a r l (1990), O ' D o n n e l l and Schmitter (1986) and H a g o p i a n (1990). T h e y argue that " p r i v a t e negotiations a m o n g elites are an acceptable, even routine feature o f d e m o c r a t i c governance, as l o n g as the elites i n v o l v e d are h e l d p u b l i c l y accountable t h r o u g h elections and other p r o c e s s e s " (1992, 34). B u r t o n , G u n t h e r a n d H i g l e y h o w e v e r , f a i l to a c k n o w l e d g e that the elites w h o negotiate transitions have so far not been h e l d p u b l i c l y accountable. That is the f u n d a m e n t a l l y u n d e m o c r a t i c nature o f the pact m a k i n g process - h u m a n r i g h t s - v i o l a t i n g elites o f the past are not h e l d to account. A l t h o u g h c i v i l i a n negotiators w i l l have to face the electorate i n the post-authoritarian elections, the elites f r o m the p r e v i o u s authoritarian regime (who the c i v i l i a n s negotiated w i t h ) i n v a r i a b l y w a l k away f r o m the process to an early retirement l i v e d out o n the g o l f course, c u s h i o n e d by a generous pension. I f they do not l i k e golf, they can perhaps take the route P i n o c h e t ( i n i t i a l l y ) f o l l o w e d . Rather than f l e e i n g C h i l e i n disgrace to a l i f e i n e x i l e , w h e n P i n o c h e t p a c k e d his desk at La Moneda (the presidential palace) i n 1989, he s i m p l y m o v e d across S a n t i a g o ' s m a i n street to a different o f f i c e i n the m i n i s t r y o f defense. T h e  the right to run for office; 5) freedom of expression; 6) alternative information; and 7) associational autonomy (1971, 3).  32  " u n d e m o c r a t i c " part o f the pact m a k i n g process is that most o f " t h e authoritarian e l i t e " receive i m p u n i t y for any crimes they may have c o m m i t t e d w h i l s t i n office. C e r t a i n l y , the granting o f i m p u n i t y to m i l i t a r y leaders for their h u m a n rights c r i m e s is another c o m m o n facet o f the pact m a k i n g process that is f u n d a m e n t a l l y undemocratic. I m p u n i t y means, literally, f r e e d o m f r o m punishment. T o act w i t h i m p u n i t y means to act w i t h the k n o w l e d g e that one is above the law. In the L a t i n A m e r i c a n context, i m p u n i t y has c o m e to m e a n that acts o f repression and abuse o f p o w e r by the state against its c i t i z e n s are protected f r o m j u d g e m e n t or a c c o u n t a b i l i t y before the national law. " T h i s has taken place v i a m i l i t a r y self-amnesties, various amnesty laws, pardons granted by n e w c i v i l i a n governments, or other m e c h a n i s m s " ( M c S h e r r y  1992,  470). A f a i r l y isolated v o i c e i n the l i t e r a t u r e , J . Patrice M c S h e r r y makes the case that 34  far f r o m b e i n g " d e s i r a b l e " , pacts o f i m p u n i t y have i n v a r i a b l y created a r e n e w e d c l i m a t e o f fear i n society, and an o v e r w h e l m i n g sense o f injustice and hopelessness.  By  r e w a r d i n g the m i l i t a r y w i t h i m p u n i t y , the forces most dangerous to d e m o c r a c y are p r o v i d e d w i t h no deterrent for a d d i t i o n a l abuse o f democratic structures. Further, " c i t i z e n s b e c o m e resigned to the fact that j u s t i c e is b e y o n d reach and dangerous to d e m a n d ; i m p u n i t y l i m i t s the h o r i z o n s o f what is possible. S i m u l t a n e o u s l y , i m p u n i t y engenders a bolstered sense o f p o w e r w i t h i n the ranks o f the m i l i t a r y , and n e w rationalizations for terrorist m e t h o d s " (1992, 471). M c S h e r r y also suggests that the argument f o r a b s o l v i n g or forgetting m i l i t a r y c r i m e s i n the interests o f r e c o n c i l i a t i o n , is based upon an assumption o f ends and means (1992, 488). T h e end o f stable d e m o c r a c y and s o c i a l peace is said to depend o n the means  o f i m p u n i t y . Y e t it is important to remember, i n her v i e w , that the end o f any process is created w i t h i n and m o u l d e d by the means e m p l o y e d . Impunity actually creates attitudes and structures antithetical to d e m o c r a c y and stabilizes the forces least c o m m i t t e d to it. T h e p h e n o m e n o n o f i m p u n i t y tends to i n s t i t u t i o n a l i z e the p o w e r and a u t o n o m y o f the m i l i t a r y , and perpetuate the i m b a l a n c e between m i l i t a r y and c i v i l society. T h i s has certainly been the case i n C h i l e , as evidence i n the next chapter w i l l prove. E m b e d d e d authoritarian structures - w h i c h o c c u r w h e n any m e m b e r s o f society are above the l a w o n l y serve to restrict the p o s s i b i l i t i e s for substantive social change. F a r f r o m b e i n g b e n e f i c i a l to the d e m o c r a t i s a t i o n process, pacts carry the potential to c o m p r o m i s e and hinder the process they seek to establish. Perhaps the most important f l a w w i t h i n the pacts literature lies i n its i n a b i l i t y to e x p l a i n what distinguishes successful f r o m f a i l i n g pacts. T h e literature has certainly attempted to characterise successful and unsuccessful pacts, noting, f o r e x a m p l e , that successful pacts protect each p a r t i c i p a n t ' s " v i t a l interests" ( O ' D o n n e l l and S c h m i t t e r 1986, part 4, 37). B u t w h y are o n l y some pacts successful at d o i n g this? In the end, the pact that P i n o c h e t negotiated has been unable to protect his v i t a l interests and prevent h i m f r o m f a c i n g a potential p r o s e c u t i o n i n his h o m e l a n d . W h y have s o m e pacts been unable to r e i n f o r c e themselves i n the l o n g term? In V e n e z u e l a and C o l o m b i a , pacts have f o r several decades protected, v i a c l i e n t i l i s m , the v i t a l interests o f several elite groups, but have i n recent years c o l l a p s e d due to their i n a b i l i t y to adapt to c h a n g i n g circumstances. I s h o u l d m a k e clear that analysis o f what constitutes a successful f r o m an u n s u c c e s s f u l pact is not the purpose o f this study. I m e r e l y w i s h to d r a w attention to this  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 3 4  34  f l a w and to suggest that future w o r k o n pacts s h o u l d attempt to r e c t i f y it. B a r r y W e i n g a s t (1997) has argued that studies o f pacts s h o u l d investigate their s e l f - e n f o r c i n g properties. A pact c a n be c l a s s i f i e d as successful, i n his o p i n i o n , i f it is s e l f - e n f o r c i n g . S e l f enforcement c o m e s into play w h e n elites consider it to be i n their interests to abide by the terms o f the p a c t .  35  Y e t W e i n g a s t does not account for the unforeseen international  contextual change that has been so important to the u n r a v e l i n g o f pacts i n the three cases o f C h i l e , V e n e z u e l a and C o l o m b i a . Scholars must recognise that changes at an international l e v e l present an independent v a r i a b l e i n d e m o c r a t i c transitions that c a n have important consequences for pacts, indeed for any k i n d o f transition p r o c e s s .  36  Chapter  four w i l l l o o k to the post C o l d W a r international context and m a k e the argument that it has been a v i t a l factor i n the collapse o f pacts. Indeed, changes at an international l e v e l have c a l l e d into question the necessity o f granting amnesties, for the sake o f a stable d e m o c r a t i c transition, to h u m a n rights v i o l a t o r s at a l l .  Conclusion It is h i g h l y debatable whether the post-pact situation i n each o f the three nations m e n t i o n e d above has created the stable d e m o c r a c y that was intended. In C o l o m b i a , the p o l i t i c a l stability p r o v i d e d by the pact - in terms o f the peaceful turnover o f elected governments since 1958 - has not been a c c o m p a n i e d by any reasonable degree o f s o c i a l  Seider(1995). Weingast contends that "the pact constructed [in England] during the Glorious Revolution created a focal solution to the coordination problems facing the English elites. B y 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). See Przeworski et al (1996). In this study of the wide range o f 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 o f democracies on the globe and in the region during a particular year, the more likely is democracy to survive in a particular country." 3 5  3 6  35  stability. Q u i t e the contrary: it is v i o l e n c e and s o c i a l e x c l u s i o n that most seriously threaten d e m o c r a c y i n C o l o m b i a , w h i c h remains w r a c k e d by a thirty-seven year g u e r r i l l a w a r that denies the state c o n t r o l over as m u c h as one t h i r d o f the state's territory. C h a v e z has s u c c e s s f u l l y attacked V e n e z u e l a ' s pact and its parties and n o w presides over a country w h o s e m i l i t a r y is no longer non-deliberative. In C h i l e , u n d e m o c r a t i c elements, due to the terms o f the pact, r e m a i n enshrined i n the constitution (and i n some segments o f p u b l i c o p i n i o n as w e l l ) , and, as indicated by the arrest o f Pinochet, the country remains bitterly d i v i d e d over its past. It is important at this p o i n t to restate that I a m not t a k i n g issue w i t h the i d e a that pacts m a y be necessary and desirable under certain conditions. I a m suggesting, h o w e v e r , that they have u n r a v e l e d i n a n u m b e r o f countries i n the region, and i n w a y s that suggest deeper p r o b l e m s than the literature a c k n o w l e d g e d . W h a t is most d i s t u r b i n g is that they have c o m e under increasingly heavy fire f r o m regime opponents w h o see these pacts as f u n d a m e n t a l l y u n d e m o c r a t i c and exclusionary. In the case o f V e n e z u e l a , for e x a m p l e , C h a v e z rode to p o w e r in 1998 o n a w a v e o f discontent directed i n large measure against the p o l i t i c i a n s w h o s e m o d u s v i v e n d i was enshrined i n the Pact o f P u n t o F i j o . T h u s far, this study has l o o k e d at what elite pacts are. T h e r e m a i n d e r w i l l l o o k to the case o f C h i l e and ask: what has been the result o f the pact? T h i s w i l l serve as the m e t h o d f o r d e a l i n g w i t h a central a i m o f this study - namely, c a l l i n g into question the consensus that p o l i t i c a l pacts m a y be an u n d e m o c r a t i c means to settle c o n f l i c t s i n a transition f r o m authoritarian rule, but they p r o v i d e the basis u p o n w h i c h a n e w and m o r e d e m o c r a t i c order m a y be implanted. T h e newness and d e m o c r a t i c nature o f the order i m p l a n t e d i n the C h i l e a n case is contentious to say the least.  36  CHAPTER 3: THE CHILEAN EXPERIENCE T h e transition to d e m o c r a c y i n C h i l e i n the late 1980s offers an e x a m p l e o f a " p a c t e d " d e m o c r a t i c transition. A pact was agreed despite the fact that alternative m o d e l s o f regime t r a n s i t i o n were clearly articulated i n C h i l e , and were b a c k e d by p o w e r f u l and w e l l organised s o c i a l and p o l i t i c a l forces. K e n n e t h Roberts argues that the process o f transition i n C h i l e passed through t w o h i g h l y divergent m o d e l s o f p o l i t i c a l change. T h e first stage lasted f r o m M a y 1983, w i t h numerous protests against the P i n o c h e t r e g i m e , until the m i d d l e o f 1986, a t i m e w h e n protests began to sharply decline. T h i s first stage was m a r k e d by f a i l e d attempts by mass s o c i a l and p o l i t i c a l actors to negotiate a f r a m e w o r k for regime transition, and a number o f insurrectionary strategies s e e k i n g to break w i t h the p o l i t i c a l and e c o n o m i c project o f the m i l i t a r y regime (see also O x h o r n 1994, 51-52). T h e second stage t o o k place f r o m late 1986, w h e n o p p o s i t i o n elites m a d e efforts to r e m o v e P i n o c h e t w i t h i n the institutional constraints established i n his 1980 c o n s t i t u t i o n and to negotiate a process o f transition w i t h supporters o f the m i l i t a r y r e g i m e (Roberts 1998, 118-119, see also, E n s a l a c o 1994, 409-410, O x h o r n 1994, 53-54). T h i s latter type o f e l i t e - l e d pacted transition w o u l d u l t i m a t e l y p r e v a i l and set the tone f o r the p o l i t i c a l d y n a m i c s o f the n e w d e m o c r a t i c regime o f the early 1990s. T h e postauthoritarian a d m i n i s t r a t i o n that took shape, until the P i n o c h e t arrest i n L o n d o n i n 1998, w o u l d m a k e o n l y m i n o r adjustments to the p o l i t i c a l legacies o f the p r e v i o u s regime. A s w i t h m a n y m i l i t a r y regimes that have attempted to protect themselves f r o m any k i n d o f post-transition accountability, the P i n o c h e t dictatorship t o o k care to create " r e s e r v e d o m a i n s " o f authoritarian i n f l u e n c e that were protected f r o m any k i n d o f  37  d e m o c r a t i c contestation. W h i l s t i n o f f i c e , the P i n o c h e t government designed a system o f elaborate i n t e r l o c k i n g institutional checks against the exercise o f p o p u l a r sovereignty. Furthermore, they were also able to structure the regime transition i n a w a y that ensured C h i l e a n government r e m a i n e d w i t h i n the boundaries o f the institutional structures they had created. G e r a r d o M u n c k and C a r o l S k a l n i k L e f f argue that the " i n c u m b e n t elites m a y w e l l have exerted m o r e control over the t r a n s i t i o n " i n C h i l e " t h a n i n any other case o f regime c h a n g e " (1997, 346). In A r g e n t i n a , the m i l i t a r y was so discredited by the defeat i n the F a l k l a n d s W a r that their c o n t r o l o f the transition process was u n d e r m i n e d (Hunter 1998, C a v a r o z z i 1992, V a c s 1987, 29). In B r a z i l , important sectors o f the business c o m m u n i t y broke w i t h the regime to support redemocratisation, c o n t r i b u t i n g to the c r u m b l i n g o f the authoritarian c o a l i t i o n ( S k i d m o r e 1988, 250). These cases contrasted w i t h C h i l e where the m i l i t a r y remained largely cohesive, and retained strong support f r o m e c o n o m i c elites w h o had become staunch advocates o f the n e o l i b e r a l m o d e l i m p l a n t e d by the r e g i m e ' s C h i c a g o s c h o o l technocrats.  37  A c o m m o n feature i n most o f the pacted democratic transitions i n L a t i n A m e r i c a has been that the m i l i t a r y is i n a p o s i t i o n o f relative strength. Indeed, this is often one o f the m a i n reasons w h y pacts occur. In C o l o m b i a , V e n e z u e l a , U r u g u a y and C h i l e the pacts have i n v o l v e d c i v i l i a n s p r o v i d i n g m i l i t a r y personnel w i t h certain guarantees that their  "" Trained at the University o f Chicago, the "Chicago B o y s " 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 o f 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 o f the state in the Chilean economy. They believed that only a radical opening o f the economy to international competition and a reduction o f the role o f the state and politics in society would "free" the economy and liberate Chile from the threat o f Marxism. B y 1965, the Chicago Boys controlled the Catholic University's school o f economics. B y 1975, two years after the coup, they had convinced Pinochet o f their beliefs, and displaced the nationalist sector o f the right, which sought a resurrection o f 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 B o y s " 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,  civil military relations have often been the key element of the agreement. If the military is overly weak and disunified, as happened in Argentina, then the civilians are in a 39  position o f power in the transition process and do not necessarily have to provide wide ranging amnesties o f 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 o f Argentina, democrats rejected military requests for immunity from prosecution for human rights violations (Vacs 1987, 30, O'Donnell 1992). Argentina was actually one o f the few Latin American nations to try to imprison its former military leaders.  40  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 o f the regime transition. Even though Pinochet was politically defeated in the 1988 plebiscite - w h i c h was the event that forced the democratic transition: 56% o f Chileans voted to end his regime and return to democratic and civilian r u l e - this defeat occurred within the regime's prescribed constitutional 41  framework. Consequently, the "transition adhered to the timetable and the core o f 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-military relations. Argentina's transition from authoritarianism came about rather abruptly, due to the collapse o f 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 o f 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 o f the transition to democratic governance in Argentina, see Cavarozzi (1992). 3 9  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.  4 0  39  C h i l e ' s transition was p r o d u c e d by p o l i t i c a l deadlock, rather than the clear defeat o f the dictator or an institutional earthquake creating an alternative p o l i t i c a l system (Roberts 1998, 142-143). N o set o f actors i n v o l v e d was able to i m p o s e its w i l l c o m p l e t e l y u p o n another (Casper and T a y l o r 1996, 144-146). It c o u l d be argued that the t r a n s i t i o n c l o s e l y adhered to R u s t o w ' s (1970) m o d e l - w h e r e b y d e m o c r a c y is l i k e l y to o c c u r i n response to a d e a d l o c k between c o n t e n d i n g forces, none o f w h i c h is capable o f i m p o s i n g their preferred c h o i c e . P i n o c h e t was unable to w i n the plebiscite to extend his p o l i t i c a l mandate, but p o p u l a r m o v e m e n t s were also unable to defeat his r e g i m e and i m p o s e unrestrained d e m o c r a c y due to the constitutional straitjacket i m p o s e d by the o u t g o i n g regime. T h e o u t g o i n g elites were able to tightly c o n t r o l f r o m above the transition f r o m m i l i t a r y rule to what w o u l d i n i t i a l l y be a l i m i t e d democratic regime. T h e t r a n s i t i o n to this l i m i t e d d e m o c r a c y emerged as a c o m p r o m i s e s o l u t i o n to a p o l i t i c a l stalemate, a type o f c o n f l i c t r e s o l u t i o n that relied o n negotiated pacts to create terms that c o u l d be accepted by b o t h sides. T h e elites f r o m the previous regime were keen to a v o i d any attempts by n e w c i v i l i a n leaders to b r i n g the perpetrators o f repression to justice, and sought to l i m i t the m a n e u v e r i n g space for the democratic g r o u p i n g o f the Concertacion. O n the other hand, the Concertacion entered into negotiations w i t h the p o l i t i c a l R i g h t and the m i l i t a r y r e g i m e d e t e r m i n e d to m o d i f y some o f the blantantly o b v i o u s authoritarian features o f the constitution. T h e y w e r e f o r c e d , however, to accede to m a n y o f the other restrictions that the authoritarian regime had p l a c e d o n the d e m o c r a t i s a t i o n process. T h e consequence o f the negotiation process was a package o f f i f t y - f o u r constitutional reforms to the 1980 C o n s t i t u t i o n that were ratified i n a p l e b i s c i t e before the  Turnout in the election was exceptionally high with 90% o f eligible voters exercising their right to vote. See Constable and Valenzuela (1989, 170).  4 1  40  1989 national elections ^ (Roberts 1998, 143, R i q u e l m e 1999, 33). " T h e m o s t important o f these reforms e l i m i n a t e d the constitutional p r o s c r i p t i o n o f M a r x i s t parties; a l l o w e d u n i o n members to h o l d party a f f i l i a t i o n s ; l i m i t e d the emergency p o w e r s o f the state; prevented the president f r o m d i s s o l v i n g the l o w e r house o f congress; enhanced c i v i l i a n representation o n the N a t i o n a l Security C o u n c i l ; increased the n u m b e r o f elected senators; a n d r e l a x e d the requirements f o r future constitutional a m e n d m e n t s "  43  (Roberts  1998, 143). A l t h o u g h some o f the constitutional reforms proposed by the Concertacion w e r e adopted i n the 1989 p l e b i s c i t e , C h i l e ' s d e m o c r a c y r e m a i n e d tainted b y a u t h o r i t a r i a n i s m i n several ways. N e g o t i a t i o n s undertaken protected the p r e v i o u s r e g i m e v i a the maintenance o f systemic, institutionalised, nondemocratic practises enshrined i n the 1980 C h i l e a n c o n s t i t u t i o n . T h i s constitutional h y b r i d o f authoritarian and d e m o c r a t i c 44  elements, was o r i g i n a l l y intended to be a transitory set o f institutions, but it has p r o v e n extremely d i f f i c u l t to t r a n s f o r m  45  - due m a i n l y to the need f o r o v e r w h e l m i n g l e g i s l a t i v e  majorities f o r c o n s t i t u t i o n a l r e f o r m . T h e 1980 constitution is a legal r e f l e c t i o n o f the m i l i t a r y g o v e r n m e n t ' s negative v i e w o f the capacity o f democratic practises to resolve the p r o b l e m s f a c i n g C h i l e a n s o c i e t y .  46  T h i s p o l i t i c a l m o d e l , w h i c h was largely inherited  by the A y l w i n a d m i n i s t r a t i o n o f 1990, was designed both to protect the e c o n o m i c legacy  ~ In the plebiscite o f 30 July 1989, 85.7% o f the Chilean electorate ratified the constitution as amended, paving the way for the election o f A y l w i n on 14 December 1989 (Valenzuela 1999, 231 -232). For an analysis o f these constitutional reforms, see Ensalaco (1994). W i t h the approval o f the constitutional reforms, Chile's transition became, in L i n z ' s terms a "transicion pactada" (a transition by agreement), rather than a "transicion por ruptura" (a sharp break with the previous order), see L i n z (1978, 35). 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, K a r l and Schmitter (1991, 270). 4  4 3  4 4  4 5  For an analysis o f the foundational and corrective aims o f the Chilean military regime, see Garrreton (1989). For the evolution o f military ideas throughout the region, see Loveman 1999. 4 6  41  o f the P i n o c h e t government and to prevent the re-emergence o f what the m i l i t a r y p e r c e i v e d to be the d y n a m i c o f p o l a r i s a t i o n and i n s t a b i l i t y that was characteristic o f the early 1970s. M i l i t a r y authorities argued that the succession o f events l e a d i n g up to the m i l i t a r y c o u p p r o v i d e d sufficient evidence o f the i r r e s p o n s i b i l i t y o f c i v i l i a n leaders. A c c o r d i n g to the m i l i t a r y , d e m o c r a t i c structures i n C h i l e h a d a l l o w e d the c o u n t r y to be h e l d hostage to the interests o f self-serving p o l i t i c a l parties. Statements made by the m i l i t a r y i m m e d i a t e l y f o l l o w i n g the c o u p o u t l i n e d their m o t i v e s for a s s u m i n g c o n t r o l : party leaders h a d used their p o w e r as elected o f f i c i a l s to m o b i l i s e p o p u l a r support, resulting i n the i d e o l o g i c a l p o l a r i s a t i o n o f C h i l e a n society and the c o r r u p t i o n o f democratic institutions.  47  T h e goal o f the m i l i t a r y - d e s i g n e d c o n s t i t u t i o n o f 1980 was to  restrict the p o w e r o f c i v i l i a n elites and p o l i t i c a l parties i n order to prevent the recurrence o f the p o l a r i s a t i o n o f the early 1970s. C o n s e q u e n t l y , blatant authoritarian elements r e m a i n e d i n place after the pact had been negotiated. T h e president was still a l l o w e d to designate senators and magistrates; the president c o u l d not r e m o v e m i l i t a r y leaders and senior officers f r o m their ranks after their n o m i n a t i o n ; P i n o c h e t remained C o m m a n d e r i n C h i e f o f the a r m e d forces; a l l f o r m e r presidents were entitled to permanent Senate seats p r o v i d e d they served a m i n i m u m o f six years ( w h i c h w o u l d a l l o w P i n o c h e t to serve i n the upper chamber w h e n his t e r m as a r m e d forces c o m m a n d e r expired); as a consequence o f P i n o c h e t i m p l e m e n t i n g the A m n e s t y l a w i n 1978 to p a r d o n m i l i t a r y officers responsible for c r i m e s c o m m i t t e d f r o m  These attitudes are clear in post-coup military statements and in the declaration o f 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  1 9 7 3 - 1 9 7 8 , perpetrators o f p o l i t i c a l r e p r e s s i o n c o u l d not be t r i e d ; the S u p r e m e C o u r t 4 8  w a s p a c k e d w i t h n e w c o n s e r v a t i v e supporters; and, a l t h o u g h easier, i t w a s s t i l l v e r y d i f f i c u l t to alter the c o n s t i t u t i o n . A d d i t i o n a l l y , the b i n o m i a l - m a j o r i t y e l e c t o r a l s y s t e m 49  that w a s i n t r o d u c e d , w o r k s i n a w a y that over-represents the largest m i n o r i t y , the R i g h t , and under-represents the s e c o n d largest m i n o r i t y , the non-Concertacion  Communist  In s u m , the a r m y and p o l i t i c a l elites f r o m the p r e v i o u s r e g i m e r e m a i n e d p o w e r f u l p o l i t i c a l p l a y e r s i n the aftermath o f the pact, v i r t u a l l y u n a f f e c t e d b y the t r a n s i t i o n due to their e s t a b l i s h m e n t o f d a u n t i n g barriers to a n y k i n d o f further c o n s t i t u t i o n a l changes barriers a t t e m p t i n g to " e n s u r e the p e r m a n e n c e o f the m i l i t a r y ' s r e v o l u t i o n " ( E n s a l a c o 1994, 412). G i v e n that c o n s t i t u t i o n a l a m e n d m e n t s are necessary to t r a n s f o r m the status o f the a r m e d forces, it is d i f f i c u l t to q u e l l the c o n s t i t u t i o n a l p o w e r they h o l d . T h e s e constraints h a v e o b v i o u s l y p l a c e d m a j o r obstacles i n the w a y o f d e m o c r a t i c  F o r an excellent discussion o f the issue o f 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 o f their rights in that order" (54). This is a similar argument to the one outlined by McSherry (1992) above. 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. 4 5  4 9  The binomial electoral system is one o f the most important limitations on fair representation o f the electorate. M i l i t a r y reformers contended that C h i l e ' s historical proportional representation ( P R ) electoral system aggravated and magnified divisions within society and was instrumental in the creation o f a partidocracia characterised by ideological polarisation, given the electoral system's representation o f small parties. M i l i t a r y 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 o f 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 o f the right. However, the main feature o f the electoral system that benefits parties o f the right is the procedure for allocating seats. In order for a party or coalition to w i n both seats in a district, it must double the vote o f it nearest rival. If there are two coalitions competing in a particular district, a party needs to attain 33.4% o f the vote to w i n one seat, but must w i n 66.7% o f the vote to w i n two. Therefore, i f the most popular party or coalition wins 66.6% o f the vote and its nearest rival wins 33.4%, each wins one seat, or 50% o f 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 5 0  43  c o n s o l i d a t i o n . C h i l e scores badly w h e n h e l d up against the basic d e f i n i t i o n a l features o f p o l y a r c h y o u t l i n e d i n chapter one. T h e c o n s t i t u t i o n a l p r o v i s i o n that a l l o w s f o r the designation o f Senators, w h i c h e m b o d i e s " P i n o c h e t ' s v i s i o n o f a ' t e c h n i f i e d d e m o c r a c y ' i n w h i c h the v o i c e o f experts w o u l d enjoy a p r i v i l e g e d h e a r i n g , " (Ensalaco 1994, 4 1 9 ) contradicts m y d e f i n i t i o n a l precept that i n a d e m o c r a c y , o f f i c i a l s s h o u l d be elected. T h e i m p u n i t y that the authoritarian elites have enjoyed i n postauthoritarian C h i l e is a v i o l a t i o n o f another feature o f p o l y a r c h y that I set out b e l o w : n a m e l y that there is equality f o r a l l before the rule o f l a w . T h e democrats that negotiated the transition w i t h the m i l i t a r y c o n c l u d e d that the n e w order c o u l d o n l y be preserved i f it s a c r i f i c e d this p r i n c i p l e . Further, the role o f the m i l i t a r y i n the postauthoritarian p o l i t i c a l arena contradicts m y d e f i n i n g n o t i o n o f d e m o c r a c y w h e r e b y c i v i l i a n authorities have c o n t r o l over a n o n - d e l i b e r a t i v e m i l i t a r y . Indeed, the m i l i t a r y i n C h i l e have successfully turned the n o n - d e l i b e r a t i v e m i l i t a r y criteria f o r d e m o c r a c y o n its head. Instead, the a r m e d forces have m a n a g e d to i m p o s e p o w e r f u l c h e c k s o n c i v i l i a n authorities and p o l i t i c a l parties through the m a n i p u l a t i v e a n d ingenious c o m b i n a t i o n o f presidential d o m i n a t i o n ( w h i c h I w i l l outline i n detail b e l o w ) , and electoral a n d i n s t i t u t i o n a l e n g i n e e r i n g .  51  In entering the negotiating process w i t h the o u t g o i n g regime, the  Concertacion  were presented w i t h a c o n u n d r u m that underlines the basic strategic d i l e m m a faced b y pact-makers i n terms o f r e c o n c i l i n g the tensions between the deepening and s t a b l i s i n g o f democracy. P i n o c h e t ' s c i v i l i a n and m i l i t a r y supporters were e x t r e m e l y w a r y 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). For an interesting discussion on constitutional engineering and the variables that can be manipulated to carry it out, see Sartori (1994). 5 1  44  d e m o c r a t i c m a j o r i t y and were keen supporters o f the n e o l i b e r a l e c o n o m i c m o d e l . " T h e tacit acceptance o f a r e g i m e transition by the p o l i t i c a l and e c o n o m i c R i g h t w a s thus h i g h l y contingent o n the maintenance o f the ' p r o t e c t i o n s ' against the exercise o f p o p u l a r sovereignty that was built into P i n o c h e t ' s institutional f o r m u l a " (Roberts 1998, 144). A l t h o u g h the Concertacion  w o u l d i d e a l l y have c h o s e n to put pressure o n the R i g h t to  accept d e m o c r a t i c reforms, they were aware that such a strategy r i s k e d p r o v o k i n g an outright abandonment o f the d e m o c r a t i c arena by the Right. T h e alternative, w h i c h the Concertacion  d e c i d e d to pursue, was an attempt to b u i l d consensus f o r r e f o r m s v i a  negotiations w i t h the R i g h t - despite the institutional constraints o f this path p r o v i d i n g very little d e m o c r a t i c leverage i n terms o f e l i c i t i n g concessions f r o m P i n o c h e t supporters. T h e c i v i l i a n government that came into p o w e r i n M a r c h 1990 chose to p r i o r i t i z e d e m o c r a t i c and m a c r o e c o n o m i c stability rather than risk endangering the R i g h t ' s contingent acceptance o f the d e m o c r a t i z a t i o n process. Perhaps understandably, s t a b i l i s i n g , rather than deepening, o f d e m o c r a c y was seen as the safer o p t i o n .  52  Structural  and i n s t i t u t i o n a l constraints created by the P i n o c h e t regime certainly i m p o s e d l i m i t a t i o n s o n the options o f c i v i l i a n elites.  The 1980 Chilean  Constitution  W h a t were the more s p e c i f i c aspects o f the 1980 C o n s t i t u t i o n that r e m a i n e d i n place i n the post-authoritarian government? W h a t aspects o f the c o n s t i t u t i o n were the m i l i t a r y u n w i l l i n g to a l l o w c i v i l i a n s to alter d u r i n g the negotiated transition? A closer  Although different nations have taken varied routes to get there, stabilising rather than deepening o f 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 5 2  45  l o o k at the 1980 C o n s t i t u t i o n serves to portray the often o v e r l o o k e d and m o r e subtle threats to C h i l e a n democracy. Strongpresidentialism  was the cornerstone o f the m i l i t a r y ' s p o l i t i c a l f o r m u l a for  C h i l e . D u r i n g negotiations for the democratic transition, m i l i t a r y leaders s u c c e s s f u l l y argued that the p o s i t i v e e c o n o m i c legacy o f the authoritarian government c o u l d be better guaranteed by h a n d i n g over the p o l i t i c a l and e c o n o m i c a d m i n i s t r a t i o n o f the c o u n t r y to a president w i t h a w i d e range o f powers. T h i s , they b e l i e v e d , w o u l d prevent the C o n g r e s s f r o m f a l l i n g v i c t i m to the excesses o f p o p u l i s m and personalism. O n e o f the most important p o w e r s h e l d by C h i l e a n presidents lies i n the w i d e range o f areas i n w h i c h they have e x c l u s i v e initiatives. A r t i c l e 62 o f the c o n s t i t u t i o n states: "[the] President o f the R e p u b l i c holds the e x c l u s i v e initiative for proposals o f l a w related to changes i n the p o l i t i c a l or administrative d i v i s i o n o f the country, or to the f i n a n c i a l or budgetary a d m i n i s t r a t i o n o f the s t a t e . "  53  T h e same article goes o n to s p e c i f y  i n detail a series o f areas i n w h i c h the executive has e x c l u s i v e initiatives, i n c l u d i n g " e s t a b l i s h i n g , a m e n d i n g , granting or increasing remunarations, retirement payments, p e n s i o n s , " and " w i d o w s ' and orphans' a l l o w a n c e s " (No. 4); " e s t a b l i s h i n g the n o r m s and procedures a p p l i c a b l e to c o l l e c t i v e bargaining and d e t e r m i n i n g the cases w h e r e b a r g a i n i n g is not p e r m i t t e d " ( N o . 5); and " e s t a b l i s h i n g or a m e n d i n g the n o r m s o n or regarding s o c i a l security o f both the p u b l i c and the private s e c t o r " ( N o . 6). These areas o f e x c l u s i v e i n i t i a t i v e e x p a n d the l e g i s l a t i v e p o w e r o f the president c o m p a r e d w i t h earlier C h i l e a n 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 o f a more global undercurrent in the third wave o f democratisation.  46  T h e president also has almost e x c l u s i v e c o n t r o l o f the budgetary process, l e a v i n g little scope for l e g i s l a t i v e input o n f i s c a l matters. If the budget is not a p p r o v e d by congress w i t h i n sixty days, the president's proposals b e c o m e l a w . T h i s e f f e c t i v e l y gives the president decree p o w e r s over the i m p o s i n g o f the national budget. M i l i t a r y t h i n k i n g b e h i n d this p r e s i d e n t i a l p o w e r was that it w o u l d prevent budgetary d e a d l o c k and the emergence o f c l i e n t e l i s t i c legislation. S i g n i f i c a n t l y , this measure imposes important l i m i t a t i o n s o n the scope o f congressional p o w e r over national l e v e l p o l i c y matters, w h i c h are i n e v i t a b l y l i n k e d to monetary spending. It is not unusual for L a t i n A m e r i c a n presidents to have areas o f e x c l u s i v e initiative. H o w e v e r , most constitutions that have these m e c h a n i s m s also have p r o v i s i o n s f o r a l o w veto o v e r r i d e threshold that serves to introduce a degree o f l e g i s l a t i v e c o n t r o l over presidential actions - for e x a m p l e , the C o l o m b i a n and B r a z i l i a n constitutions have absolute m a j o r i t y override provisions. U n l i k e these and other cases, i n C h i l e the e x e c u t i v e areas o f e x c l u s i v e initiative are not counterbalanced by a l o w t h r e s h o l d f o r veto overrides - a t w o - t h i r d s m a j o r i t y is necessary i n C h i l e to override a p r e s i d e n t i a l v e t o .  54  A n o t h e r m e c h a n i s m for executive strength and legislative weakness lies i n the a b i l i t y o f the president to control the legislative process and agenda v i a the use o f d e c l a r e d e x e c u t i v e " u r g e n c i e s " . T h e president m a y declare a p r o p o s a l urgent i n any one or a l l stages o f its consideration, regardless o f its governmental b r a n c h o f o r i g i n . C o n g r e s s then must act o n the president's declarations w i t h i n thirty, ten or three days, d e p e n d i n g o n whether the p r o p o s a l is designated as a " s i m p l e u r g e n c i a " ( s i m p l e  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). 5 3  47  urgency), a " s u m a u r g e n c i a " (high urgency), or for " d i s c u s i o n i n m e d i a t a " ( i m m e d i a t e discussion), r e s p e c t i v e l y ( C o n s t i t u t i o n 1980, A r t i c l e 71). I f a p r o p o s a l is c o n s i d e r e d urgent, then c o n s i d e r a t i o n o f a l l other legislative proposals is put o n h o l d . A l t h o u g h designed as a measure to be e m p l o y e d o n l y i n extraordinary circumstances to enable the passage o f k e y l e g i s l a t i o n , the use o f this m e c h a n i s m has b e c o m e a standard o p e r a t i n g procedure i n order for presidents to accelerate the consideration and l e g i s l a t i v e p a s s i n g o f proposals.  55  T h i s gives a preponderance o f weight to the legislative initiatives o f the  president and ensures that l e g i s l a t i o n proposed i n the congress is often delayed - due to the fact that congress does not have a p r o v i s i o n for d e c l a r i n g urgencies. Further presidential c o n t r o l o f the legislature stems f r o m his/her a b i l i t y to c a l l the legislature into extraordinary session. D u r i n g these sessions, the congress c a n o n l y c o n s i d e r proposals i n t r o d u c e d by the e x e c u t i v e  56  ( C o n s t i t u t i o n 1980, A r t i c l e 52). Together, p r o v i s i o n s  a l l o w i n g the president to declare urgencies and c a l l extraordinary sessions give the e x e c u t i v e h i g h l y effective agenda-setting powers. S i a v e l i s is correct to argue that a l t h o u g h the A y l w i n and F r e i a d m i n i s t r a t i o n used the " u r g e n c y " and " e x t r a o r d i n a r y s e s s i o n " p o w e r s i n a responsible and f l e x i b l e manner, there is n o t h i n g to stop future presidents f r o m abusing them (2000, 19). T h e strength o f the C h i l e a n president is another feature o f the postauthoritarian p o l i t i c a l landscape that violates basic notions o f polyarchy. L i b e r t y , as I, e c h o i n g  For a fuller discussion o f the override provision for areas of exclusive executive initiative in different Latin American countries, see Mainwaring and Shugart (1997, introduction). This mechanism was used at some point in the approval process in 59% o f the proposals that were sent to congress during the A y l w i n administration (Siavelis 2000, 18). One deputy, Deputy Juan Antonio C o l o m a , interviewed by Siavelis, went so far as to say that the use o f the presidential urgency had become the "forma permanente de legislar en C h i l e " (the permanent way of legislating in Chile), see Siavelis (2000, 18). 5 4  5 5  In each o f the four congressional periods o f the A y l w i n administration and during the first four years o f Frei's government, the congress was called into extraordinary session by the president.  5 6  48  Montesquieu, said earlier, may be threatened when power is centralised in the executive branch o f 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. H i s work provides numerous additional examples o f presidential power in C h i l e .  57  Although the administrations of A y l w i n and Frei were  characterised by excellent relations between the branches o f 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 o f the pact provided a substitute, albeit a far less effective substitute,  58  for  Other constitutional sources o f power held by the president can be added to what has already been presented. The executive can declare states o f Constitutional exception, emergency, and catastrophe without congressional approval (Constitution 1980, Article 40). A s 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 o f a part o f the assembly and the appointment o f other authorities. In addition to the thirty-eight elected members o f 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 fill 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 o f 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 o f congress in the appointment o f diplomatic posts was removed. A l s o , the range o f the president's implied constitutional powers is fairly broad in C h i l e . 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 o f the law" (Article 32, N o . 8). Siavelis (2000, 20-25) outlines non-statutory sources o f presidential power which although not specifically outlined in the 1980 Constitution, "do result from the overall framework o f presidentialism set out in the document and grant the president increased influence and lawmaking capabilities" (20). 5 /  Riquelme (1999, 33) argues that "The liberal principle o f checks and balances has been distorted in Chile, establishing in practice a form o f differentiated citizenship, with special rights o f representation for the social and political sectors which monopolized power during the military regime." 5 8  49  i n s t i t u t i o n a l i s e d checks and balances between government branches.  A s the negotiated  pact fades i n the m e m o r y , the potential is there, due to the authoritarian enclaves still present i n C h i l e , f o r c o n f l i c t between branches o f government, s o c i a l p o l a r i s a t i o n a n d regression i n basic features o f polyarchy. Indeed, S i a v e l i s points to signs o f this c o n f l i c t already rearing their heads i n t o d a y ' s C h i l e . T h i s reality w o u l d surely not have been p r e d i c t e d b y reading the w o r k o f pact theorists. F o r instance, G r e t c h e n C a s p e r and M i c h e l l e T a y l o r (1996, 14) m a k e the c l a i m that countries, due to the d i v i s i o n s w i t h i n them, w h i c h adopt " i n t e n s e n e g o t i a t i o n s " d u r i n g the transition process are m o r e l i k e l y to m a k e progress t o w a r d democratic c o n s o l i d a t i o n . D e m o c r a c y is m o r e l i k e l y w h e n negotiations d u r i n g the transition process are d i f f i c u l t rather than easy. T h u s , i n the C h i l e a n e x a m p l e , m a j o r d i v i s i o n s at elite and mass levels a l l o w e d f o r some s i g n i f i c a n t c o m p r o m i s e s a m o n g elites that have h e l p e d C h i l e m o v e t o w a r d d e m o c r a t i c c o n s o l i d a t i o n , and serve as a m o d e l f o r other countries to f o l l o w .  6 0  Signs of Conflict in Chile T h i s section w i l l point to a variety o f signs i n contemporary C h i l e that c a n be e x a m i n e d to suggest that executive/legislative c o n f l i c t i n C h i l e is perhaps not too far away. G i v e n the f a d i n g o f the special context o f the transition, and a return to what c o u l d be labeled the " n o r m a l i s a t i o n " o f p o l i t i c a l interaction, demands f o r a m o r e equitable  Despite my emphasising the strength o f the presidency, it would be wrong to ignore the role o f the legislature in the Chilean political process. Article 48 o f the constitution does say that an exclusive attribute o f the Chamber o f Deputies is to oversee executive actions. The Chamber o f 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 o f 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). 5 9  50  sharing o f the e c o n o m i c s u c c e s s  61  o f the nation are b o u n d to g r o w m o r e v o c a l . In m y  o p i n i o n there are still important d i v i s i o n s w i t h i n C h i l e a n society, but these sources o f c o n f l i c t have been m a s k e d by the recent transitional context. W h i l e I a m not suggesting that the factors to be o u t l i n e d b e l o w are extreme d i v i s i o n s l i k e l y to lead to the k i n d o f brutal dictatorship C h i l e e x p e r i e n c e d i n the 1970s and 1980s, it seems that they c o u l d further distort basic features o f p o l y a r c h y i n C h i l e and undermine any chance o f a better q u a l i t y o f d e m o c r a c y e m e r g i n g i n the future. T h e y p o i n t to qualitative d i f f i c u l t i e s w i t h i n C h i l e a n d e m o c r a c y and to the d i f f i c u l t y i n i m p r o v i n g the f u n c t i o n i n g o f the system w i t h i n the confines o f a negotiated pact that agreed to m a i n t a i n the authoritarian enclaves o f the 1980 C o n s t i t u t i o n . T h e y also present channels that c o u l d p o t e n t i a l l y be m a n i p u l a t e d by future presidents w h o once elected, proceed to distort p o l y a r c h y , perhaps w i t h w i d e s p r e a d p u b l i c support. A g a i n , these are factors that were not accounted f o r i n the pacts literature. T h e first s i g n o f potential c o n f l i c t that one c a n use as e v i d e n c e o f disagreement and the c o n t i n u e d salience o f p o l i t i c s i n C h i l e , lies i n the significant role that class conflict s t i l l plays. A study, cited i n S i a v e l i s (2000), a i m e d at m e a s u r i n g the type and extent o f tension between different groups i n C h i l e a n society, f o u n d that " c o n f l i c t between the r i c h and p o o r " was considered the most significant i n a list o f ten categories. In fact, 5 5 . 9 % o f those surveyed i n 1991 rated this as a " g r a n c o n f l i c t o " (a large or important c o n f l i c t ) , and i n 1992 that n u m b e r had g r o w n to 5 8 . 9 % . T h i s category p o l l e d  See especially Casper and Taylor (1996, chapter 6). Here Chile is held up as an example o f an "intense negotiation path" to a consolidating democracy. C h i l e ' s 1998 G D P was US$74.3 billion, ranking it 4 0 in the W o r l d . Yet wealth in Chile is very unevenly distributed, with the richest tenth o f the population receiving 4 6 . 1 % o f the national income and the poorest tenth receiving just 1.4% o f the national income. From Latin American Bureau ( L A B ) website. Available at: http://www.lab.org.uk/countryprofiles/index.html 6 0  6 1  th  51  higher than " c o n f l i c t between the government and a r m e d f o r c e s , " w h i c h r e c e i v e d 4 4 . 3 % 62  and 5 1 . 6 % i n these t w o years respectively. C e r t a i n l y , it appears that the l i k e l y reason b e h i n d these results is the g r o w i n g e c o n o m i c disparity between r i c h and poor. A recent W o r l d B a n k report, for e x a m p l e , f o u n d that w i t h i n S o u t h A m e r i c a , i n c o m e inequalities i n C h i l e are s e c o n d o n l y to Brazil.  6 3  E c o n o m i c restructuring over the last t w e n t y - f i v e years has transferred n a t i o n a l 64  w e a l t h and p o w e r to a s m a l l group o f C h i l e a n grupos (conglomerates) w h o d o m i n a t e the e c o n o m y . T h e top six grupos (as o f 1997) o w n more than 2 0 % o f C h i l e ' s capital stock, and f r o m 1990 to 1995, the total assets o f the top six grupos g r e w f r o m an e q u i v a l e n t o f 5 4 . 2 % o f G D P to 5 5 . 8 % ( R o s e n f e l d and M a r r e 1997). P o v e r t y i n C h i l e has also risen. In 1994, 2 8 . 4 % o f C h i l e a n s l i v e d i n poverty, c o m p a r e d w i t h 1 7 % i n 1 9 7 0 .  65  In a 1998  address to the O r g a n i z a t i o n o f A m e r i c a n States ( O A S ) , Jose A n t o n i o O c a m p o , E x e c u t i v e Secretary o f the U N ' s E c o n o m i c C o m m i s s i o n for L a t i n A m e r i c a and the C a r i b b e a n , c a l l e d C h i l e ' s i n c o m e d i s t r i b u t i o n p r o b l e m " q u i t e i n t r a c t a b l e " ( E l l i s o n 1998). A d d i t i o n a l l y , it is c o m m o n for C h i l e a n s o f a l l classes to c o m p l a i n about c r i m e , w h i c h has increased quite n o t a b l y since the dictatorship ended ( E l l i s o n 1998). 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 o f 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. b l  From L A B website. Available at: http://www.lab.org.uk/countryprofiles/index.html Neoliberal economic reforms initiated by the Pinochet regime under the influence o f the Chicago school economists resulted in extremely uneven distributions o f wealth. For example, in the years from 19781988, 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 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 o f Chile's economic policies o f 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 6 j  6 4  /  J  52  T h i s e v i d e n c e suggests that the C h i l e a n e c o n o m y does not benefit everyone. Perhaps it m i g h t be said that C h i l e ' s h i g h l y praised " j a g u a r " e c o n o m y is a c t u a l l y less l i k e the " w i l d c a t " and more l i k e the B r i t i s h car - a s y m b o l o f l u x u r y and u n r e l i a b i l i t y . " I n 1970, C h i l e was w e l l k n o w n for its p u b l i c health and education systems, h a d a substantial p r o f e s s i o n a l m i d d l e class and a stable w o r k i n g class... .But free-market r e f o r m s were used to r a d i c a l l y concentrate w e a l t h and p o w e r i n the hands o f a f e w , destroy l a b o r ' s b a r g a i n i n g p o w e r b y u n d e r m i n i n g its base i n traditional industry and the state, and strip a w a y e x i s t i n g s o c i a l guarantees" ( R o s e n f e l d and M a r r e 1997). Perhaps the most d a m a g i n g consequence o f these e c o n o m i c disparities is that C h i l e a n s , once s o m e o f the regions most f a i t h f u l democrats, have largely lost their faith i n the system. A m a j o r survey i n 1996 b y respected p o l l i n g f i r m ,  Latinobardmetro,  found  that 3 5 % o f C h i l e a n s answered " n o " w h e n asked: " W o u l d y o u be ready to d e f e n d d e m o c r a c y i f it were threatened?" T h i s was the worst s h o w i n g out o f 17 nations w h e r e the question was asked ( E l l i s o n 1998). T h e most recent 2001  Latinobardmetro  survey  66  f o u n d that o n l y 45%> o f C h i l e a n s considered d e m o c r a c y to be preferable to any other k i n d o f government, d o w n f r o m a h i g h o f 61%o i n 1997. T h i s figure r a n k e d C h i l e i n a mere 9  th  p o s i t i o n out o f the 17 L a t i n A m e r i c a n nations surveyed. C h i l e ' s percentage is f a i r l y l o w c o n s i d e r i n g that the l e v e l o f satisfaction is about the same as nations w i t h m u c h less f a v o u r a b l e e c o n o m i c and p o l i t i c a l s i t u a t i o n s .  67  T h e r e g i o n w i d e average was 4 7 % . T h e  survey also f o u n d that 1 9 % o f C h i l e a n s b e l i e v e d that an authoritarian g o v e r n m e n t was  Data quoted in Rosenfeld and Marre (1997). 1994 data, from the 1994 Survey o f National Socioeconomic Characterization (Encuesta C A S E N ) , (Santiago: Mideplan, 1995); 1970 data from the U N Economic Committee on Latin A m e r i c a ( E C L A ) , Division o f Statistics and Projections. Statistics from 2001 Latinobarometro poll are taken from The Economist, " A n A l a r m C a l l for Latin A m e r i c a ' s Democrats," 28 July 2001: 37-38. Argentina, B o l i v i a , Costa Rica, Honduras, M e x i c o , Peru, Uruguay and Venezuela all had rates o f satisfaction higher than Chile. 6 5  6 6  6 7  53  preferable to a d e m o c r a t i c one under certain circumstances, again p l a c i n g C h i l e i n 9  t h  position. T h e s e sentiments are manifested i n a startling drop i n electoral p a r t i c i p a t i o n i n C h i l e . In the D e c e m b e r 1997 parliamentary elections, the s u m o f non-registered voters, abstainers and " v o t e r s for n o b o d y " came to about 4 0 % o f those e l i g i b l e to v o t e  6 8  ( R i q u e l m e 1999, 31). In a d d i t i o n to p o p u l a r dissatisfaction and d i s i l l u s i o n m e n t w i t h C h i l e a n d e m o c r a c y , one can p o i n t to further signs o f c o n f l i c t that have not been put to rest v i a C h i l e ' s pacted transition. A d d i t i o n a l signs o f c o n f l i c t c o m e f r o m u n r e s o l v e d p o l i t i c a l issues that continue to haunt democratic leaders. In M a y 1995, a severe p o l i t i c a l crisis hit C h i l e o v e r the c o n v i c t i o n o f G e n e r a l M a n u e l Contreras and B r i g a d i e r G e n e r a l P e d r o E s p i n o z a . T h i s event created an impasse between c i v i l i a n leaders and m i l i t a r y authorities and served as a stark reminder that the authoritarian p e r i o d i n C h i l e a n history had not been l a i d to rest. Contreras was c o n v i c t e d for his role i n the W a s h i n g t o n D.C.  bombing  assassination o f f o r m e r F o r e i g n M i n i s t e r O r l a n d o L e t e l i e r i n 1976, and was eventually j a i l e d after several m o n t h s o f stalemate d u r i n g w h i c h the G e n e r a l refused to submit to c i v i l i a n authorities. Contreras c o m m a n d e d the f u l l b a c k i n g o f the a r m y and P i n o c h e t w h o , i n v e r y strong terms, r e m i n d e d C h i l e ' s d e m o c r a t i c a l l y elected authorities that " o u r people r e m a i n m e m b e r s o f our institution f o r e v e r " and " t h e a r m y never abandons one o f its m e n w h o is i n t r o u b l e . "  69  T h i s event h i g h l i g h t e d the u n r e s o l v e d p o l i t i c a l questions  f a c i n g C h i l e a n democrats and the p r i c k l y question o f h o w far c i v i l i a n s s h o u l d go i n  Riquelme (1999) traces the decline in electoral participation since the transition. Quoted in The Chicago Tribune 18 June 1998, 18.  54  f i n d i n g j u s t i c e i n h u m a n rights cases (not subject to the 1978 m i l i t a r y p r o c l a i m e d amnesty) i n v o l v i n g the previous regime. A d d i t i o n a l l y , although the question o f i d e o l o g y has n a r r o w e d i n C h i l e a n p o l i t i c s , both w i t h i n parties (Roberts 1998, see e s p e c i a l l y chapter 2) and a m o n g the electorate, party attachments r e m a i n quite strong i n C h i l e . Indeed S a m u e l V a l e n z u e l a and T i m o t h y S c u l l y (1997) argue that there is a great deal o f c o n t i n u i t y i n the electoral preferences o f C h i l e a n s b o t h before and after authoritarian rule. T h e y contend that the t r a d i t i o n a l pattern i n C h i l e a n p o l i t i c s o f tres tercios (three t h i r d s )  70  endures. It appears that a l t h o u g h the  m e a n i n g o f " L e f t " and " R i g h t " i n C h i l e has undoubtedly changed, the terms r e m a i n v a l i d i n categorising the c o n t i n u i n g fundamental d i v i s i o n s a m o n g C h i l e a n voters. A r t u r o Fontaine (1995) argues that there are three basic w a y s i n w h i c h p e o p l e ' s p o l i t i c a l preferences c a n be d i v i d e d . O n e is s o c i o e c o n o m i c (development versus equity), the second is p o l i t i c a l (order versus d e m o c r a c y and c i v i l rights), and t h i r d l y there is h i s t o r i c ( P i n o c h e t versus S a l v a d o r A l l e n d e ) . H e presents evidence o f l i n k s between a p e r s o n ' s i d e o l o g i c a l self-placement (Left, R i g h t or Centre) and the side that they c o m e d o w n o n i n e x p r e s s i n g their v i e w s o n a n u m b e r o f c o n t r o v e r s i a l questions. F o r each question, p e o p l e i d e n t i f y i n g themselves as supporters o f parties o f the R i g h t expressed support f o r the first item i n each o f the above d i c h o t o m i e s . P e o p l e o n the L e f t , chose the latter, and p e o p l e i n the Centre expressed an o p i n i o n somewhere i n between. T h o s e w h o describe themselves as i d e n t i f y i n g w i t h the L e f t , expressed m u c h greater levels o f support for state attempts to p r o m o t e e q u a l i t y and ensure i n d i v i d u a l rights. T h e y were m u c h less c o n c e r n e d w i t h the issue o f p u b l i c order, and more l i k e l y to have a favourable o p i n i o n o f the A l l e n d e  Tres-tercios refers to the three way competition that exists in Chile between the Centre, the Right and the Left.  7 0  55  a d m i n i s t r a t i o n and a negative o p i n i o n o f the P i n o c h e t regime. T h o s e o n the R i g h t , b e l i e v e d e c o n o m i c d e v e l o p m e n t to be more important than equality, and w e r e m o r e p r e o c c u p i e d w i t h order than h u m a n rights. T h e y f a v o u r e d P i n o c h e t ' s rule and h a d negative associations w i t h A l l e n d e ' s government. P e o p l e p l a c i n g themselves i n the Centre, had a m i x e d e v a l u a t i o n o f both the P i n o c h e t and A l l e n d e administrations and expressed concerns that w e r e somewhere between those expressed o n the L e f t and Right.  71  F o n t a i n e ' s data suggests that quite d i s t i n c t i v e p o l i t i c a l sectors r e m a i n i n C h i l e , w i t h p r o g r a m m a t i c , i n d e e d i d e o l o g i c a l differences between them. H i s central c o n t e n t i o n is that w h e n it c o m e s to certain controversial issues, partisan differences r e m a i n , and are contained w i t h i n the traditional notions o f L e f t , R i g h t and Centre - furthermore, the people continue to define themselves i n these terms.  Conclusion P r o f o u n d e c o n o m i c and distributive d i f f i c u l t i e s still need to be t a c k l e d i n C h i l e . T h e hope for m a n y o f the elites at the negotiation tables i n the late 1980s w o u l d have been that the " f o r c e d c o n s e n s u s " w o u l d help brush d i v i s i o n s under the carpet. B u t , the reality is that the consensus i n C h i l e is m u c h thinner than analysts w r i t i n g i n the w a k e o f 79  the pact suggested.  A l t h o u g h the context o f the transition served to b a n d - a i d some o f  the w o u n d s o f the past, the l a c k o f consensus cannot be ignored forever i n a c o m p l e x society, c o m p o s e d o f diverse groups w i t h distinct interests and demands. C h i l e remains a The findings in Fontaine's (1995) work are quoted in Siavelis (2000, 101). Convinced by the scholarly consensus that pacts were a beneficial route to stable democracy, many works written in the wake o f Chile's transition lauded it as an exemplary case for other nations to follow. 7 1  7 2  56  society that is d i v i d e d p o l i t i c a l l y , both at an elite and at a mass l e v e l . Justice and i m p u n i t y a l o n g w i t h continued s o c i a l and e c o n o m i c inequality are issues that still l i m i t the effectiveness and m e a n i n g o f d e m o c r a c y i n C h i l e for a large n u m b e r o f its people. Perhaps the most dramatic manifestation o f the d i v i s i o n s f a c i n g C h i l e a n society came i n the f o r m o f the extra-territorial arrest o f A u g u s t o P i n o c h e t i n the U n i t e d K i n g d o m i n O c t o b e r 1998. It is to this s p e c i f i c case, w h i c h has done m o r e than a n y t h i n g else to affect the internal structure o f C h i l e since the transition, that the next chapter w i l l turn. T h e P i n o c h e t saga has h i g h l i g h t e d the m o s t important a n d d i f f i c u l t issue f a c i n g C h i l e ' s d e m o c r a c y : h o w to deal w i t h the crimes o f the p r e v i o u s regime. D e s p i t e the attempt o f the pacted transition to close this chapter o f C h i l e a n history, international events and the unmet yet increasingly v o c a l i s e d demands o f the thousands o f C h i l e a n s adversely affected by P i n o c h e t ' s brutal regime, ensure that countless pages have yet to be written o n this d a m a g i n g p e r i o d o f C h 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 W r i t i n g over t w e n t y - f i v e years after the p u b l i c a t i o n o f " T r a n s i t i o n s to D e m o c r a c y " , R u s t o w a c k n o w l e d g e d an important o m i s s i o n f r o m his c l a i r v o y a n t article o f 1970: n a m e l y the importance o f the international context. It certainly remains true that d o m e s t i c factors p r o v i d e the c r u c i a l setting for the emergence o f d e m o c r a c y and that d e m o c r a t i z a t i o n is a p o l i t i c a l rather than an e c o n o m i c or p s y c h o l o g i c a l process. Nevertheless, a quarter century later, I w o u l d emphasize the interaction between e c o n o m i c and p o l i t i c a l factors and also the importance o f international relations i n m a k i n g 'the w o r l d safer for d e m o c r a c y , ' as W o o d r o w W i l s o n put it ( i n A n d e r s o n 1999, 13). T h e P i n o c h e t case highlights the f l a w I m e n t i o n e d i n C h a p t e r t w o w i t h regard to the pacts literature - its failure to account for the p h e n o m e n o n o f international l e v e l change h a v i n g an i m p a c t at the national l e v e l . G i v e n the context i n w h i c h he was w r i t i n g , it is understandable that R u s t o w (1970) w o u l d not place too great an e m p h a s i s o n the i m p o r t a n c e o f international l e v e l pressures for national d e m o c r a t i c t r a n s i t i o n s .  73  Y e t , later  s c h o l a r s h i p o n the p h e n o m e n o n o f pacts has been c o n s p i c u o u s for its n o n - r e c o g n i t i o n o f international l e v e l influences on negotiated transitions ( O ' D o n n e l l and S c h m i t t e r 1986, K a r l 1990, H i g l e y and G u n t h e r 1992, Casper and T a y l o r 1996). L o o k i n g to the recent u n r a v e l i n g o f pacts i n L a t i n A m e r i c a p r o v i d e s evidence that international l e v e l change has been a c r u c i a l factor i n altering the d o m e s t i c c o n d i t i o n s for democracy. It was the arrest o f P i n o c h e t i n a f o r e i g n land that f u n d a m e n t a l l y altered the internal structure o f C h i l e ' s p o l i t i c s . It ruptured the pact made between c i v i l i a n democrats and the m i l i t a r y , altered legal structures w i t h i n C h i l e , and h i g h l i g h t e d the c o u n t r y ' s s k e w e d d e m o c r a c y and consequently, f o r c e d increased pressure for further c o n s t i t u t i o n a l  58  changes. International l e v e l change also contributed to the collapse o f the V e n e z u e l a n and C o l o m b i a n pacts. T h e y had been systems o f rule that shared p o w e r between the t w o d o m i n a n t parties i n each country at the expense o f C o m m u n i s t s w h o were e x c l u d e d f r o m the p o l i t i c a l arena. Y e t i n the post C o l d W a r context, a U S f o r e i g n p o l i c y b u i l t o n a n t i c o m m u n i s m w a s no longer r e l e v a n t .  74  Consequently, the V e n e z u e l a n and C o l o m b i a n  elites started to lose national l e v e l support and j u s t i f i c a t i o n f o r m a i n t a i n i n g their o l i g a r c h i c a l a n d e x c l u s i o n a r y f o r m o f democracy. T h i s study w i l l n o w l o o k s p e c i f i c a l l y to the case o f P i n o c h e t , and its i m p l i c a t i o n s f o r pacts. T o b r i e f l y reiterate what was noted i n chapter two, the terms o f the pact negotiated between the P i n o c h e t regime and the Concertacion,  established that  d e m o c r a t i c procedures, l i k e elections, w o u l d become " t h e o n l y game i n t o w n . " In return, the R i g h t managed to m a i n t a i n guarantees f o r i m p u n i t y p r o v i s i o n s f o r h u m a n rights c r i m e s , as w e l l as the preservation, m i n u s 54 reforms, o f the 1980 C o n s t i t u t i o n . P i n o c h e t r e m a i n e d C o m m a n d e r i n C h i e f o f the armed forces, and p e a c e f u l l y m o v e d out o f the presidential palace to another o f f i c e i n the M i n i s t r y o f Defense. These n e w rules b e c a m e the guide f o r C h i l e a n democracy. T h e y were rules that were established i n an international e n v i r o n m e n t where the C o l d W a r , although i n its f i n a l days, w a s s t i l l a reality. T h i s international c l i m a t e strengthened P i n o c h e t ' s hand i n the n e g o t i a t i o n process after he lost the p l e b i s c i t e o f 1988. H e successfully made the case that attempts to prosecute m i l i t a r y personnel for " p o l i t i c a l reasons" ( H e n r i q u e z 1999) r i s k e d returning  During the C o l d W a r 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 3  In the late 1980s and throughout the 1990s, the U S have reversed their previous Latin American policy whereby they accepted and even encouraged military regimes that repressed potential communist insurgencies. W i t h the collapse o f 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. 7 4  59  C h i l e to what he considered the p o l a r i s e d chaos o f the early 1970s. A speech made by the G e n e r a l i n the w a k e o f the pacted transition to c i v i l i a n government made clear that he was s t i l l t h i n k i n g i n terms o f i d e o l o g i c a l warfare: the nation versus M a r x i s m . A n t i c o m m u n i s t rhetoric r e m a i n e d part o f the m i l i t a r y j u s t i f i c a t i o n for their amnesties, w i t h P i n o c h e t c l a i m i n g that the " g e n e r a l l a w o f a m n e s t y " s h o u l d be " r i g o r o u s l y " u p h e l d to a v o i d any f o r m o f " c l a s s s t r u g g l e " ( H e n r i q u e z 1999). A f t e r the pact was established, P i n o c h e t c l e a r l y felt secure. H e thought that he had negotiated an air-tight agreement that w o u l d a l l o w h i m to l i v e out the rest o f his days i n peace. Y e t , as recent events have s h o w n , the rules negotiated were not so r i g i d as to prevent their adjustment over time. Scholars w h o h a i l e d the " s u c c e s s f u l " C h i l e a n transition as b e i n g an e x e m p l a r y case for others to emulate, f a i l e d to recognise that pacts m a y not be permanent. T h e elites w h o negotiated what they c o n s i d e r e d " c a s e c l o s e d " amnesties, designed for " p e r p e t u i t y , " underestimated the p o w e r o f c h a n g i n g international l a w and g l o b a l m o b i l i t y around the issue o f humanitarian justice. T h e y overestimated the i n v i o l a b i l i t y o f sovereignty and n o n - i n t e r v e n t i o n i n other states' affairs. T h e c h a n g i n g post C o l d W a r international e n v i r o n m e n t has altered the terms o f C h i l e ' s C o l d W a r d r i v e n pact. O n O c t o b e r 16, 1998, G e n e r a l P i n o c h e t was arrested i n L o n d o n by the M e t r o p o l i t a n P o l i c e at the request o f S p a n i s h Magistrate, Baltasar G a r z o n . T h i s event represents the first serious attempt anywhere i n the w o r l d to b r i n g to j u s t i c e a f o r m e r head o f state for c r i m e s allegedly c o m m i t t e d i n the country o f w h i c h he was head o f state. P i n o c h e t was arrested o n the basis o f t w o p r o v i s i o n a l arrest warrants issued by U K  60  magistrates, at the request o f S p a n i s h courts, Extradition.  76  pursuant to the E u r o p e a n C o n v e n t i o n o n  T h e f o r m e r G e n e r a l was accused o f h a v i n g authorised (or at least  k n o w i n g l y permitted) the torture, disappearance, and t a k i n g hostage o f thousands o f people. A c c o r d i n g to the second warrant, his v i c t i m s i n c l u d e d not o n l y C h i l e a n c i t i z e n s , but also c i t i z e n s o f other countries, i n c l u d i n g the U n i t e d K i n g d o m and S p a i n .  77  Thus  began a saga that w i l l have p r o f o u n d i m p l i c a t i o n s for the future, not o n l y o f C h i l e itself, but o f n u m e r o u s legal areas, i n c l u d i n g international c r i m i n a l law, h u m a n rights, state i m m u n i t y , j u r i s d i c t i o n , extradition, and the relationship between international l a w and d o m e s t i c legal s y s t e m s .  Pinochet in International  78  Context  T h e arrest o f P i n o c h e t i n B r i t a i n w o u l d have been i n c o n c e i v a b l e d u r i n g the C o l d W a r , but was able to o c c u r due to changes i n the international e n v i r o n m e n t that n o w d e e m arguments o f " n o n i n t e r f e r e n c e " to be less c o m p e l l i n g . I w o u l d argue that there has been a gradual shift i n this d i r e c t i o n g o i n g back to the late 1940s, but that the o v e r a r c h i n g  " The first provisional warrant had been issued, on the basis o f the 1989 Extradition Act, by Nicholas Evans, a Metropolitan Stipendiary Magistrate on 16 October, 1998. The allegations concerned the murder o f Spanish citizens in Chile, offences that were within the jurisdiction o f 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. European Convention on Extradition, 1957, incorporated in the U K by the European Convention on Extradition Order in 1990. 1 6  His crimes were alleged to have formed part o f an international conspiracy to track down and murder opponents o f 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 o f illegal detentions, abductions, tortures, murders and/or disappearances o f peoples from Argentina, Spain, the United K i n g d o m , the United States, C h i l e and other countries...in order to exterminate political opposition." From, Washington Times, 11 December 1998, sec A , p i 7 , "Judge in Spain Charges Pinochet, Seeks Assets Frozen". 7 7  For a more in depth legal analysis than this study w i l l provide, see generally Bianchi (1999) and Byers (1999). 7 8  61  strategic constraints o f the C o l d W a r era prevented any broad m o v e m e n t a w a y f r o m traditional notions o f sovereignty protection. S i n c e the 1648 Treaty o f W e s t p h a l i a ,  international relations have been organised  around the p r i n c i p l e that states are sovereign w i t h i n the international structure a n d that there is no higher authority. T h e p r i n c i p l e o f state sovereignty is about n o n - i n t e r v e n t i o n i n the affairs o f other states. Consequently, the idea that a f o r m e r head o f state c o u l d be p l a c e d before the courts o f another state and h e l d to task f o r v i o l a t i o n s o f h u m a n rights was almost i n c o n c e i v a b l e . Because the worst c r i m e s against h u m a n i t y were often c o m m i t t e d (or at least permitted) by heads o f state, or other r e g i m e m e m b e r s attempting to quash o p p o s i t i o n , the actual enforcement o f international c r i m i n a l l a w w a s problematic. T h i s has changed somewhat since the S e c o n d W o r l d W a r . In the post w a r years, i n d i v i d u a l s , N G O s and other international bodies have emerged as international actors, p a r t i c i p a t i n g i n an international discourse, and g a i n i n g important rights, s u c h as the right  OA o f i n d i v i d u a l s not to be tortured. 19  th  Since 1945, international l a w has shifted away f r o m its  century role o f b e i n g a " l a w between states o n l y and e x c l u s i v e l y " ( B u l l 1977, 145). It  is n o w w i d e l y h e l d that  individuals  are subjects o f international l a w , o n the e v i d e n c e o f  The Westphalia settlement was based upon a recognition of, and respect for, differences among states. The fundamental principle rule o f 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 o f his subjects free from external constraints from whatever source. The principle o f sovereignty, also enunciated in the Westphalia settlement, meant that the domestic arrangements o f 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 H o l y Roman Empire or the Pope. / y  O n 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 , 3 0 Session, U . N . D o c . A / R E S / 3 4 5 2 (1975). See also Rodley (1999). 8 0  th  62  such charters as the N u r e m b e r g  and T o k y o W a r C r i m e s T r i b u n a l s  , the U n i v e r s a l  D e c l a r a t i o n o f H u m a n R i g h t s ( U N D H R ) o f 1948, the C o v e n a n t o n C i v i l and P o l i t i c a l R i g h t s , the C o v e n a n t o n E c o n o m i c , S o c i a l and C u l t u r a l R i g h t s o f 1966, and the E u r o p e a n C o n v e n t i o n o n H u m a n R i g h t s o f 1950. In addition, the 1984 U N Torture C o n v e n t i o n ratified by 112 countries, i n c l u d i n g C h i l e , S p a i n , and the U n i t e d K i n g d o m - requires that states try or extradite alleged torturers f o u n d i n their territories. T h e status o f subjects o f international l a w has also been g i v e n by m a n y authorities to groups other than states: the U n i t e d N a t i o n s and other universal or near-universal intergovernmental organisations, r e g i o n a l intergovernmental organisations, n o n - g o v e r n m e n t a l organisations and m u l t i national corporations. D e s p i t e these legal m e c h a n i s m s introduced after 1945, the post war international context prevented their broad i m p l e m e n t a t i o n . F e w states had the courage to put l o f t y legal p r i n c i p l e s l i k e the 1984 Torture C o n v e n t i o n into practise. U n t i l the w a n i n g o f the C o l d W a r i n the late 1980s, the international n o r m a t i v e consensus around h u m a n rights was thin. C e r t a i n l y , h u m a n rights were o n the international agenda, but they w e r e largely submerged into C o l d W a r i d e o l o g i c a l rivalry. S o v i e t b l o c states, a l o n g w i t h repressive t h i r d w o r l d regimes, f o r m a l l y endorsed internationally recognised h u m a n rights, but were  A well known quote from the Nuremberg judgement provides evidence o f 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 o f 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 o f obedience imposed by the individual state. He who violates the laws o f war cannot obtain immunity while acting in pursuance o f the authority of the State if 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 1  The Nuremberg and T o k y o War Crimes Tribunal together convicted more than 3,600 German and Japanese officials and executed 1,019 o f them. From Amstutz (1999, p318). Although, it is important to note that T o k y o and Nuremberg left little by way o f sentencing guidelines applicable to cases o f war crimes and crimes against humanity. Thus there was little by way o f precedents to assist the creation o f the international tribunals for Rwanda and the former Yugoslavia. 8 2  63  able to frequently v i o l a t e t h e m w i t h i m p u n i t y . Instead o f a d v a n c i n g h u m a n rights concerns, t h i r d w o r l d states a d v a n c e d c l a i m s for the p r i o r i t y o f e c o n o m i c and s o c i a l rights, s e l f - d e t e r m i n a t i o n or development, and d i d n o t h i n g to discourage the neglect o f h u m a n rights causes. T h i s was acceptable i n an international context that d e e m e d the p r i n c i p l e o f " n o n - i n t e r v e n t i o n " to be sacrosanct. T h i r d w o r l d states e m p h a s i s e d the i n v i o l a b i l i t y o f sovereignty and the p r i m a c y o f the n o r m that states ought to be i m m u n e f r o m interference i n their affairs. W h e n great powers d i d intervene, as i n the S o v i e t i n v a s i o n o f C z e c h o s l o v a k i a i n 1968, or i n the U S i n v o l v e m e n t i n V i e t n a m , care w a s taken to p r o v i d e a c o v e r i n g rationale by arguing that great p o w e r i n t e r v e n t i o n h a d been i n v i t e d by some legitimate national authority. W i t h the c o l l a p s e o f the S o v i e t U n i o n , the changed international p o w e r balance a l l o w e d h u m a n rights to c o m e to the fore. In recent years, the p r i n c i p l e that there is no i m m u n i t y for any i n d i v i d u a l w i t h respect to crimes under international l a w has been i n c o r p o r a t e d into the statutes and decisions o f the International C r i m i n a l T r i b u n a l s for the 83  former Yugoslavia  84  and R w a n d a .  M o r e o v e r , i n J u l y 1998, 120 states adopted the R o m e  Statute o f the International C r i m i n a l C o u r t  8 5  w i t h j u r i s d i c t i o n over w a r c r i m e s and c r i m e s  against humanity, i n c l u d i n g those c o m m i t t e d d u r i n g peacetime (See v o n H e b e l (1999), L e e (1999)). T h e R o m e Statute e x p l i c i t l y p r o v i d e s that heads o f state have no i m m u n i t y 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 if they are heads o f state or government ministers, is "indisputably declaratory o f customary international law". Prosecutor v. Anto Furundzija, supra note 32, at paragraph 140. See Statute o f the International Criminal Tribunal for the Former Yugoslavia, U N Security C o u n c i l Resolution 827, U . N . S C O R , 4 8 Session 3 2 1 7 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 , 5 3 Session, 3878 mtg., U . N . Doc. S/RES/1166 (1998); Statute o f the International Criminal Tribunal for Rwanda, U . N . S . C . Res. 955, U . N S C O R , 4 9 Session, 3453th mtg., at article 3, U . N . Doc. S/RES/955 (1994). 8 J  8 4  th  th  rd  th  th  Seven nations voted against the Rome Statute. A m o n g the nations opposing the Statute were Iraq, L i b y a and the United States. The I C C w i l l come into being when 60 nations formally ratify the treaty, a process that may take years. 8 5  64  w i t h respect to c r i m e s under international law. These are a l l indicators o f the extent and d i r e c t i o n that the changes i n international l a w have taken: changes that have s o m e w h a t eroded t r a d i t i o n a l notions o f state sovereignty. T h e n o t i o n o f h u m a n rights p r o t e c t i o n has penetrated contemporary international society w i t h sufficient depth that standing by i n the face o f gross h u m a n rights atrocities seems increasingly unacceptable to a g r o w i n g n u m b e r o f actors. T h e r e is no shortage, therefore, o f substantive content to h u m a n rights and international c r i m i n a l law, nor is most o f the substance new. H o w e v e r , the U N D H R and the subsequent h u m a n rights treaties f a i l e d to p r o v i d e any mechanism f o r the international p r o s e c u t i o n o f those accused o f c r i m e s under international l a w .  8 6  Until  recently, n a t i o n a l courts have p r o v i d e d the o n l y enforcement p o w e r over international c r i m i n a l law. S o m e h u m a n rights treaties stated that the v i o l a t i o n o f certain c r i m e s a l l o w e d f o r the " u n i v e r s a l j u r i s d i c t i o n " o n the part o f national courts, and u n i v e r s a l j u r i s d i c t i o n o v e r at least some c r i m e s is largely regarded as e x i s t i n g under customary international law. S e v e r a l countries have i m p l e m e n t e d these international enforcement p o w e r s into their n a t i o n a l legal systems, as the U n i t e d K i n g d o m d i d w i t h regard to torture i n its C r i m i n a l Justice A c t o f 1988. C h i l e also ratified the Torture C o n v e n t i o n i n 1 9 8 8 .  87  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 o f individuals. A l s o , the application o f these mechanisms all have a limited scope, whether geographically or in terms o f the refusal o f many states to ratify their constitutive treaties. 8 5  G i v e n what has recently happened to Pinochet, a salient question to ask regarding C h i l e ' s 1988 ratification o f the Torture Convention is: why did Chile ratify this convention when they were continuing to violate it? I have searched in vain for evidence o f a conversation, at the time o f 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 o f 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 o f Westphalian sovereignty norms, and given the C o l d War context o f the late 1980s, the Pinochet government probably never 8 7  65  B u t most national courts have been reluctant to exercise this u n i v e r s a l j u r i s d i c t i o n , other than to w a r c r i m e s c o m m i t t e d d u r i n g W W I I . Consequently, m a n y v i c t i m s o f serious h u m a n rights v i o l a t i o n s have been left w i t h little more than empty promises, and scant p r o t e c t i o n i n the face o f m i l i t a r y brutality. T h e most o b v i o u s factor that explains the reluctance o f national courts to a p p l y this universal jurisdiction  lies i n the n o t i o n o f sovereignty. A c c o r d i n g to society o f states  sovereignty norms, w h o s e foundations were l a i d at W e s t p h a l i a , n o n - i n t e r v e n t i o n i n the affairs o f other states is the n o r m and it is acts o f intervention i n other states that must be j u s t i f i e d . In short, the n o t i o n that i f states m i n d their o w n business, they have the right to be left alone: laissez faire. T h e idea o f national courts h a v i n g the right to intervene i n another state's affairs i n the w a k e o f h u m a n rights v i o l a t i o n s is subversive to the w h o l e p r i n c i p l e that m a n s h o u l d be organised as a society o f sovereign states. A s H e d l e y B u l l puts it: " i f the rights o f each m a n can be asserted o n the w o r l d p o l i t i c a l stage over and against the c l a i m s o f his state,.. .then the p o s i t i o n o f the state as a b o d y s o v e r e i g n over its citizens, and entitled to c o m m a n d their obedience, has been subject to challenge, and the structure o f the society o f sovereign states has been p l a c e d in jeopardy. T h e w a y is left o p e n f o r the s u b v e r s i o n o f the society o f sovereign states o n b e h a l f o f the alternative o r g a n i s i n g p r i n c i p l e o f a c o s m o p o l i t a n c o m m u n i t y " ( B u l l 1977, 152). S i n c e international l a w is about the w a y i n w h i c h nations generally behave towards one another, the n o t i o n o f sovereign i m m u n i t y is a rule o f international l a w par e x c e l l e n c e . Y e t several interventions at the end o f the twentieth century indicate that the grounds o f legitimate and l a w f u l i n t e r v e n t i o n i n sovereign states is b e i n g expended. W h a t  imagined a situation where national courts would be w i l l i n g to exercise universal jurisdiction over the crime o f torture within Chile. Having negotiated a domestic amnesty, elites clearly were not concerned that  66  is more, these interventions are being j u s t i f i e d , the question is: s h o u l d they b e ? T h e r e is a large b o d y o f international law, aided b y the conventions o f the international society o f states, that c o n c l u d e s that international c o m m u n i t i e s do not have the right to intervene, that sovereignty is i n v i o l a b l e and not open to q u a l i f i c a t i o n . A t the same t i m e , there are a n u m b e r o f precedents ( l i k e , a m o n g others, the above m e n t i o n e d T r i b u n a l s created for c r i m e s c o m m i t t e d i n the sovereign states o f R w a n d a and Y u g o s l a v i a ) w h i c h suggest otherwise, and p o i n t to an erosion o f sovereignty w h i c h is being accepted w i t h o u t v i g o r o u s protest. James R o s e n a u makes the argument that irrespective o f the p r e v a i l i n g legal order, the o d d s are against international l a w r e t a i n i n g its v i a b i l i t y w i t h respect to the prerogatives o f statehood. " T h e l e g a l status o f sovereignty rights is b o u n d to be subverted by the transformative d y n a m i c currently at w o r k i n w o r l d p o l i t i c s . " T h e s e n s i t i v i t y to h u m a n rights concerns that w e have witnessed m o r e and more o f i n the 1990s, a c c o r d i n g to R o s e n a u , is not c o n f i n e d to p u b l i c s and non-governmental organisations. " S o m a n y governments have e v i d e n c e d a readiness to adhere to m i n i m a l standards o f h u m a n rights that the emergent n o r m s i n this area c o m e close to h a v i n g the c l o u t and prestige o f l a w " ( R o s e n a u 1995, 221). If w o r l d p o l i t i c s operates w i t h a doctrine o f h u m a n i t a r i a n intervention, then states and their leaders are n o longer protected, n o r m a t i v e l y speaking, b y their sovereignty. International society, to b o r r o w R o b e r t J a c k s o n ' s term, w o u l d be a universitas i n that regard (2000, 251). Post C o l d W a r experiences offer concrete evidence that i n certain circumstances, h u m a n i t a r i a n considerations c o m e before sovereign rights i n the j u s t i f i c a t i o n o f i n t e r v e n t i o n i n a state's affairs. O n e c a n p o i n t to the arrest o f P i n o c h e t , the  international legal mechanisms would challenge them.  67  p r o s e c u t i o n o f H i s s e i n Habre, the " A f r i c a n P i n o c h e t " , and the current e x t r a d i t i o n o f 8 8  M i l o s e v i c i n the aftermath o f the U N intervention i n K o s o v o as i n d i c a t i v e o f an international w a k e - u p c a l l for tyrants and v i c t i m s alike. It seems that c i t i z e n s , f o r so l o n g t r a m p l e d u p o n by b l o o d - t h i r s t y dictators, are a c h i e v i n g a n e w standing i n c o n t e m p o r a r y international society. S t e m m i n g f r o m this e m e r g i n g reality, a salient q u e s t i o n w i l l be addressed i n the f o l l o w i n g chapter: is there still a need for pacts p r o t e c t i n g the " v i t a l interests" o f o u t g o i n g autocrats?  The Arrest of Pinochet O n O c t o b e r 16 1998, as P i n o c h e t was r e c o v e r i n g f r o m b a c k surgery i n a L o n d o n hospital, he w a s roused f r o m his sleep by a S c o t l a n d Y a r d o f f i c i a l w h o declared the s u r p r i s i n g l y s i m p l e terms o f the arrest warrant: it alleged that P i n o c h e t , b e t w e e n 11 September 1973 and 31 D e c e m b e r 1983 " d i d murder S p a n i s h c i t i z e n s i n C h i l e w i t h i n the j u r i s d i c t i o n o f the government o f S p a i n " ( B r o d y 1999, 18-19). It has been reported that at this point, P i n o c h e t ' s m i n d sunk into a haze, and that for several days he c o u l d not c o m p r e h e n d what was happening to h i m . P i n o c h e t was c l e a r l y bemused. F o r so l o n g he had seen e v e r y t h i n g f r o m the lofty heights o f a great statesman w h o believes h i m s e l f to be b e y o n d the reach o f h u m a n justice. It was he, after all, w h o had established the rules for what m a n y pundits were h a i l i n g as " t h e e x e m p l a r y C h i l e a n t r a n s i t i o n . " It was he w h o had c o m p l e t e l y transformed C h i l e ' s e c o n o m i c system, l e a v i n g an i m p r i n t o n every aspect o f C h i l e a n life. D r i v e n by a false sense o f his o w n importance and his b e l i e f that he was  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, 8 8  68  i m m u n e f r o m arrest due to the impenetrable nature o f state sovereignty and n o n intervention, he ignored advice that a determined S p a n i s h j u d g e was investigating h u m a n i t a r i a n c r i m e s i n C h i l e and A r g e n t i n a , and that a c c o r d i n g to extant rules, he m i g h t be v u l n e r a b l e to arrest. H e o n l y wanted to c o m e to E n g l a n d for a bit o f surgery, a shop around H a r r o d s and a nice chat w i t h his o l d and ever grateful-friend, M r s T h a t c h e r .  89  By  t r a v e l l i n g to B r i t a i n , P i n o c h e t s h o w e d that he d i d not foresee a situation w h e r e the amnesty he h a d negotiated i n C h i l e c o u l d be challenged. H e made a serious error o f judgement. T h e second arrest warrant issued against P i n o c h e t i n c l u d e d m o r e offences, f o r e x a m p l e , c o n s p i r a c y to c o m m i t torture, hostage t a k i n g and c o n s p i r a c y to murder. S o m e o f the crimes, n o t a b l y the torture, were " c r i m e s under international l a w " - perpetrators o f w h i c h m a y be prosecuted by any state regardless o f their nationality, the n a t i o n a l i t y o f their v i c t i m s , or the country i n w h i c h the c r i m e was c o m m i t t e d . F o r this reason, at the t i m e o f his arrest, there appeared to be no obstacle to his e x t r a d i t i o n nor any apparent i m p e d i m e n t to his p r o s e c u t i o n i n the U K . H o w e v e r , P i n o c h e t ' s lawyers argued that, as C h i l e a n H e a d o f State d u r i n g the p e r i o d i n w h i c h most o f the alleged c r i m e s were c o m m i t t e d , P i n o c h e t was i m m u n e f r o m the j u r i s d i c t i o n o f the B r i t i s h courts, i n c l u d i n g its e x t r a d i t i o n procedures. B y d o i n g so, the lawyers f o r c e d B r i t i s h j u d g e s 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 o f this case, see: http://wvvw.hrw.org/campaigns/chile98/precedent.htm Thatcher remains grateful for Pinochet's help to Britain during the Falklands war with Argentina; he had saved gallons o f British blood, even as Chilean blood spilled freely to save the nation from C o m m u n i s m . 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 o f 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 o f British troops, when Argentine air force Mirages and Skyhawks raided B l u f f C o v e on 8 June 1982, had been due to the fact that Chilean radar coverage had momentarily faltered" (from O'Shaughnessy 2000, 4) • 8 9  69  most direct w a y , between t w o c o m p e t i n g v i e w s o f the international legal order i n the society o f states. O n the one hand, there was the traditional idea that o n l y states c a n be relevant actors i n international law, and that a sovereign head o f state c o u l d do what he l i k e d and rely, f o r the rest o f his life, o n the fact that he h a d i m m u n i t y before any n a t i o n a l court o f l a w . O n the other hand, there is the international l a w that has been e v o l v i n g since W W I I that posits that the international c o m m u n i t y c o m p r i s e s not o n l y o f states, but also o f i n d i v i d u a l s , peoples, intergovernmental organisations, N G O s and corporations. In this latter v i e w , f o r m e r heads o f state are not i m m u n e f r o m c l a i m s brought by, or i n r e l a t i o n to, c r i m e s c o m m i t t e d o n innocent v i c t i m s . T h e f i n a l d e c i s i o n o f the H o u s e o f L o r d s o n 24 M a r c h 1 9 9 9 s h o u l d be extradited to S p a i n to stand t r i a l .  91  90  r u l e d that P i n o c h e t  T h e r u l i n g o f the L o r d s , h o w e v e r , never  came into force as P i n o c h e t was considered too i l l to be extradited to stand trial i n Spain.  92  N e v e r t h e l e s s , it appears that the case w i l l have a legacy o f v i t a l s i g n i f i c a n c e f o r  C h i l e a n n a t i o n a l p o l i t i c s . P r i o r to the G e n e r a l ' s arrest, elites f r o m P i n o c h e t ' s r e g i m e h a d been l e g a l l y untouchable i n C h i l e due to the institutional constraints they h a d erected. There have already been signs that the G e n e r a l ' s arrest i n L o n d o n has s l o w l y altered this long-standing situation. It also appears that the case w i l l have an i m p a c t o n p o l i t i c s at an  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 o f the judges, L o r d Justice Leonard Hoffman, failed to disclose his ties to the human rights organisation Amnesty International. Citing an appearance o f 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. v u  A reconstituted judicial panel o f the House o f Lords, in a 6-1 judgement, ruled that Pinochet was not entitled to immunity from prosecution as a former head o f state. This ruling cleared the way for the General to be extradited to Spain to face trial on human rights charges. 9 1  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 ill health a reason not to try a person. 9 2  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 o f Pinochet's arrest polarised opinion in C h i l e .  93  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  94  - unless o f 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 o f that year. It had the effect o f hardening an already fairly  M o u l i a n captures the contradictory emotions among Chileans evoked by Pinochet. "Pinochet is viewed in the Chilean imagination as a criollo Superman. A c c o r d i n g to some, he acted in the service o f good, taking on the role o f exterminator o f the Marxists and modernizer o f Chilean society. Others consider that he acted in the service o f an evil so radical and immense that it could only be attributed to the D e v i l . He was seen either as one o f those Greek Gods with human passions and interests or as the devil himself. ..This superman aroused the reverential admiration o f his followers, who walk through the streets o f Santiago with placards proclaiming his immortality. A t the same time he produced in his enemies the paralyzing fear that is felt when faced with someone endowed with diabolical powers" (1999, 13). The amnesty granted to Pinochet applied in Chile, but had no effect under international law. 9 j  9 4  71  reactionary R i g h t , w h i c h c l o a k e d i t s e l f i n the banner o f C h i l e a n n a t i o n a l i s m , d e c r y i n g the arrest as an international socialist c o n s p i r a c y .  95  T h e leaders o f the t w o right w i n g p a r t i e s  96  - the Independent D e m o c r a t i c U n i o n ( U D I ) and the N a t i o n a l R e n e w a l ( R N ) - j u m p e d to the defense o f the G e n e r a l , c o n t e n d i n g that this was a gross v i o l a t i o n o f national sovereignty. P r o m i n e n t figures f r o m C h i l e ' s R i g h t began to organise demonstrations i n Santiago and m a k e plans for P i n o c h e t supporters to travel to L o n d o n to challenge the a n t i - P i n o c h e t demonstrators o n the streets. N o R i g h t i s t p o l i t i c i a n s expressed anything other than u n c o n d i t i o n a l support for Pinochet. In fact, the l e a d i n g figures w i t h i n the R i g h t w h o were r u n n i n g for the presidency, began to o p e n l y compete a m o n g themselves to demonstrate their l o y a l t y to the G e n e r a l . T h e b e h a v i o u r o f these p o l i t i c i a n s h i g h l i g h t e d once again the l i m i t s to the liberal postures w i t h i n the C h i l e a n R i g h t . T h e r u l i n g Concertacion  c o a l i t i o n - " t h e p r i n c i p l e architects o f the ' n e w C h i l e '  w h i c h to f u n c t i o n requires that the unpleasant past r e m a i n dead and b u r i e d " ( M o u l i a n 1999, 13) - was d i v i d e d i n the w a k e o f the arrest. T h e Centrist w i n g o f the c o a l i t i o n , the C h r i s t i a n D e m o c r a t s , f o u n d themselves i n the extremely u n c o m f o r t a b l e p o s i t i o n o f d e f e n d i n g their f o r m e r dictator and u r g i n g the B r i t i s h government to put an end to the saga and send h i m home. T h e S o c i a l i s t party, r e f l e c t i n g their more m i x e d c o m p o s i t i o n o f people l i n k e d to A l l e n d e and those l i n k e d to the C h i l e o f today, split o n the issue. T h e Centrist Concertacion  government o f E d u a r d o F r e i made the sovereignty  argument that P i n o c h e t s h o u l d be released o n the grounds that C h i l e a n c i t i z e n s s h o u l d be  M o u l i a n (1999, 13) tells o f how the General's inner circle hatched the idea o f a "socialist conspiracy". Pinochet, they claimed, had not made an error o f judgement by travelling to the U K , he had been set up. H e was the target o f the "ruthless persecution o f 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 5  For analysis o f the recent history of the Chilean right and their reaction to the arrest o f General Pinochet, see V o l k ( 1 9 9 9 ) .  9 6  72  j u d g e d o n l y by C h i l e a n courts. T h i s is very m u c h the reaction o f people still i n f l u e n c e d by an i m p l i c i t pact designed to protect P i n o c h e t and his m i l i t a r y friends. Indeed some pundits argued that the F r e i government reacted as it d i d out o f fear o f a p o s s i b l e adverse reaction f r o m the a r m e d forces ( M o u l i a n 2000). Y e t in T o m a s M o u l i a n ' s o p i n i o n , the g o v e r n m e n t overestimated the threat posed by the armed forces. " T h e F r e i g o v e r n m e n t acted i n almost knee-jerk f a s h i o n to the P i n o c h e t arrest, repeating the same pattern o f f e a r f u l b e h a v i o u r that m a r k e d the a d m i n i s t r a t i o n o f P a t r i c i o A y l w i n w h e n it faced saberrattling f r o m the a r m y " (14). T h i s appears to be a v a l i d assessment. It is understandable that the government w o u l d i n i t i a l l y act out o f fear o f m i l i t a r y reprisals. T h e i m p u n i t y enjoyed by a r m e d forces personnel w o u l d perhaps m a k e t h e m b e l i e v e that society was not g o i n g to m a k e t h e m accountable for anything that they d i d . H o w e v e r , as t i m e passed, the o b j e c t i v e l i m i t s o f m i l i t a r y pressure s h o u l d have b e c o m e o b v i o u s , but still the government d i d not change its stance. Instead, the government further i n v o l v e d i t s e l f i n events t a k i n g p l a c e i n the U K , and made an argument before the L a w L o r d s o n P i n o c h e t ' s b e h a l f d u r i n g the second round o f proceedings. T h e C h i l e a n g o v e r n m e n t c l a i m e d it was d e f e n d i n g the " p r i n c i p l e " o f the absolute territorial sovereignty o f c r i m i n a l law. B u t as M o u l i a n correctly argues, " i n a d e m o c r a t i c society, that p r i n c i p l e [absolute territorial sovereignty o f c r i m i n a l law] s h o u l d be subordinated to the p r i n c i p l e o f u n i v e r s a l i t y f o r the c r i m e s o f k i d n a p p i n g s , genocide and torture. B y first d e f e n d i n g P i n o c h e t ' s d i p l o m a t i c i m m u n i t y and later the i m m u n i t y o f the C h i l e a n state as an e x t e n s i o n o f the G e n e r a l , the government ended up d e f e n d i n g his i m p u n i t y . T h i s is because e v e n if, theoretically, C h i l e c o u l d put P i n o c h e t o n trial, the p o s s i b i l i t y that he w o u l d a c t u a l l y be p u n i s h e d is, for a l l p r a c t i c a l purposes, n o n e x i s t e n t " (2000, 14).  73  T h e reaction o f the Concertacion  F r e i government, i n their defense o f P i n o c h e t ,  s h o w s that " p a c t m e n t a l i t i e s " remained a p o w e r f u l influence a m o n g C h i l e a n elites a decade after the p l e b i s c i t e to end m i l i t a r y rule. T h e P i n o c h e t arrest p r o v i d e d t h e m w i t h a n opportunity f o r a grand act o f r e c o n c i l i a t i o n b y t a k i n g steps to distance themselves f r o m notions o f i m p u n i t y . T h e i r active defense, therefore, o f the G e n e r a l i n front o f the L a w L o r d s w a s a huge disappointment to many. But, h u m a n rights groups i n C h i l e , w i t h the support o f m a n y groups throughout the w o r l d , were not w i l l i n g to p a s s i v e l y sit b a c k a n d a l l o w this p o l i t i c a l m o m e n t to pass t h e m by. T h e arrest o f P i n o c h e t p r o v i d e d t h e m w i t h a r e n e w e d sense o f l e g i t i m a c y and an opportunity to press for renegotiation o f the terms o f C h i l e ' s " t r a n s i c i o n pactada". U n d e r intense pressure f r o m national and international s o c i a l m o v e m e n t s , the C h i l e a n g o v e r n m e n t agreed to establishing channels o f c o m m u n i c a t i o n b e t w e e n representatives o f the m i l i t a r y and h u m a n rights m o v e m e n t s - this process w a s k n o w n as the mesa de dialogo. In agreeing to participate i n this dialogue, the m i l i t a r y w e r e c a r e f u l to declare that they were not a c k n o w l e d g i n g r e s p o n s i b i l i t y for crimes. Rather, they stated that their p a r t i c i p a t i o n w a s to help find i n f o r m a t i o n about any p e n d i n g cases. N o n e t h e l e s s , the c o l l a b o r a t i v e process i n v o l v i n g the armed forces d i d represent a s i g n i f i c a n t d o m e s t i c transformation i n C h i l e as a consequence o f the P i n o c h e t arrest. P r e v i o u s l y , the m i l i t a r y had outright denied any k n o w l e d g e c o n c e r n i n g the u n r e s o l v e d disappearances. T h e mesa de dialogo i n i t i a l l y s h o w e d encouraging results. In June 2 0 0 0 , those p a r t i c i p a t i n g i n the meetings revealed that the a r m y had o f f i c i a l l y agreed to investigate and p r o v i d e a l l a v a i l a b l e i n f o r m a t i o n , regarding the p e n d i n g cases o f disappearances, to  74  the g o v e r n m e n t . ' T h e importance o f this d e v e l o p m e n t was that for the first t i m e the y  m i l i t a r y recognised the v e r y existence o f the people, m a i n l y opponents o f the P i n o c h e t regime, w h o had been detained and never seen again. T h e m i l i t a r y report - s t e m m i n g f r o m the auspices o f the mesa - d e l i v e r e d to R i c a r d o L a g o s o n 5 January 2001 a d m i t t e d , for e x a m p l e , that 151 m u r d e r e d prisoners were d u m p e d i n the ocean and lakes o f C h i l e .  9 8  Y e t the I n t r o d u c t i o n to this report makes President L a g o s ' p u b l i c r e c o g n i t i o n o f the a r m e d f o r c e s ' c o n t r i b u t i o n to r e c o n c i l i a t i o n seem premature and m i s p l a c e d . T h e r e is n o hint, i n the Introduction, o f an a p o l o g y to the v i c t i m s f o r the atrocities d o c u m e n t e d i n the pages that f o l l o w . T h e e x p l a n a t i o n p r o v i d e d by the m i l i t a r y for their c o n d u c t is s t r i k i n g l y s i m i l a r to the defiant response they gave to the R e t t i g C o m m i s s i o n ' s d a m n i n g report o f a f u l l decade b e f o r e .  99  " M o s t o f the disappearances t o o k place after September 1973 and  over the f o l l o w i n g months, a p e r i o d i n w h i c h the country was e x p e r i e n c i n g a critical state of internal convulsion  00  [my emphasis], p r o v o k i n g acts, behaviour, and v i c t i m s  Reported in El pais, 14 June 2000. From Sebastian Brett dispatches for Human Rights Watch. Available: http://vvwvv.hrw.org/campaigns/chile98/dispatches.html The creation o f the National Truth and Reconciliation Commission on 25 A p r i l 1990 was one o f 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 o f 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". M a n y 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 o f the early 1970s, a time which they likened to " c i v i l war" in Chile. This assessment o f Chile in the months following the coup o f 1973 contradicts with the Rettig Commission (1991) which concluded that the armed forces were in full control of the country within a few days o f the coup. 9 7  9 8  9 9  1 0 0  75  t y p i c a l o f irregular a r m e d c o n f l i c t .  1 0 1  T h i s situation p l a c e d l i m i t s o n the i n s t i t u t i o n s '  a b i l i t y to c l a r i f y the cases w h i c h were the subject matter o f the task before t h e m . "  1 0 2  T h e R e t t i g C o m m i s s i o n report p r o v i d e s a m p l e evidence to prove that C h i l e a n a r m e d forces w e r e not " p r o v o k e d " b y c o n v u l s i o n o r a r m e d c o n f l i c t . In reality, their atrocities w e r e c o m m i t t e d against defenseless people, m a n y o f w h o m h a d g i v e n themselves u p to the authorities i n the m i s t a k e n b e l i e f that their a r m y w o u l d treat t h e m fairly. Y e t , after a decade d u r i n g w h i c h these facts have been k n o w n to every reader o f the R e t t i g report, the m i l i t a r y continues to shift the b l a m e onto the deposed A l l e n d e government, w i t h the Introduction reiterating that "the events  that led [my emphasis] to  the p o l i t i c a l v i o l e n c e must never be repeated i n our country". T h e a r m e d forces' report contains n o c r i t i q u e o f m i l i t a r y doctrine, a n d n o m e n t i o n o f the G e n e v a C o n v e n t i o n s , w h i c h w o u l d have been a p p l i c a b l e h a d there really been an a r m e d c o n f l i c t . T h e m i l i t a r y ' s l o g i c , after m o n t h s o f negotiations i n the  mesa de dialogo, w a s h a r d l y different f r o m  G e n e r a l P i n o c h e t ' s scathing attack o n R e t t i g back i n 1991: " f r o m the p o i n t o f v i e w o f any serious a r m e d institution, w h e n one is faced b y a situation o f war, the o n l y p o s s i b l e o b j e c t i v e is total v i c t o r y . "  1 0 3  A l t h o u g h the mesa w a s progress i n that it l e d to the m i l i t a r y  a d m i t t i n g that disappearances had occurred, their c o n t i n u i n g rhetoric, that the " w a r " context o f the 1970s gave t h e m no c h o i c e but to repress, is depressing. In a n i n t e r v i e w i n El  Mercurio, i n the light o f the mesa de dialogo, a r m y c h i e f  R i c a r d o Izurieta w a s asked i f there were n o w t w o armies i n C h i l e : the a r m y o f the 1970s  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 o f place, kind, and armaments used, uncoordinated and without the least chance o f success, even at the local level." From Sebastian Brett dispatches for Human Rights Watch. Available: http://www.hrw.org/campaigns/chile98/dispatches.html From Sebastian Brett dispatches for Human Rights Watch. Available: http://www.hrw.ora/campaisms/chile98/dispatches.html 1 0 1  1 0 2  1 0 3  76  w h i c h abused h u m a n rights, and today's force. "That's a f a l l a c y , " Izurieta r e p l i e d . " W h o e v e r says that does not k n o w the army. T h e army o f C h i l e is one, and one alone. T h e a r m y that l i v e d t h r o u g h the experience o f the m i l i t a r y government is the same one as today's. It j u s t had to l i v e through different times, that's a l l . T h r o u g h o u t our history, the c o m m a n d e r s have had a c o m m o n thought, to act i n benefit o f the country. It's also true that the a r m y is made up o f h u m a n beings and h u m a n beings m a k e mistakes, and can be wrong."  1 0 4  U n f o r t u n a t e l y , there has been more c o n t i n u i t y than change w i t h i n the C h i l e a n  a r m e d forces. T h i s fact alone represents a m a j o r hurdle still f a c i n g democrats. D e s p i t e the reality that w i d e s p r e a d j u s t i c e and " r e c o n c i l i a t i o n " r e m a i n s a l o n g w a y off, the p u b l i s h i n g o f the m i l i t a r y report (mentioned above), and the tireless w o r k o f h u m a n rights activists i n k e e p i n g h u m a n rights atrocities o n the n a t i o n a l agenda, does contribute to increased m i l i t a r y transparency. It also adds i n f o r m a t i o n a l support to h e l p i n c r i m i n a t e m i l i t a r y o f f i c i a l s . F o r e x a m p l e , relatives o f the disappeared c o n d u c t e d a study on the role o f m i l i t a r y and D I N A ( P i n o c h e t ' s secret security forces) p e r s o n n e l i n the disappearances, w h i c h made it clear that m e m b e r s o f the m i l i t a r y still c l e a r l y r e m e m b e r e d the whereabouts o f the r e g i m e ' s v i c t i m s .  1 0 5  T h e release o f such i n f o r m a t i o n  is c l e a r l y a threat to the m i l i t a r y , w h o realise that i n t o d a y ' s C h i l e , outright d e n i a l o f the disappearances is no longer an option. It is fair to say, therefore, that w h e n P i n o c h e t returned to C h i l e o n 3 M a r c h 2000, he landed i n a country very different to the one he had left. T h e f o r m e r leader q u i c k l y learned o n his return that he no longer h e l d the p o w e r and standing that he once had. In June, three m o n t h s after his return, the C o u r t o f A p p e a l i n Santiago v o t e d to strip h i m o f  El Mercurio, 14 January 2001. Translation from Sebastian Brett dispatches for Human Rights Watch. Available: http://www.hrw.org/campaigns/chile98/dispatches.html 104  77  the i m m u n i t y f r o m p r o s e c u t i o n that he h e l d as a " S e n a t o r for l i f e " . T h e d e c i s i o n w a s r a t i f i e d b y the S u p r e m e C o u r t i n early August. T h e importance o f this is that it m a d e it p o s s i b l e to deal w i t h charges against P i n o c h e t w i t h i n C h i l e a n courts. D e p r i v i n g h i m o f his i m m u n i t y f r o m p r o s e c u t i o n p a v e d the w a y for, i n N o v e m b e r 2000, C h i l e a n j u d g e Juan G u z m a n to f o r m a l l y charge P i n o c h e t w i t h k i d n a p p i n g d u r i n g his 1973-1990 dictatorship. H e was charged w i t h m a s t e r m i n d i n g the s o - c a l l e d " C a r a v a n o f D e a t h " i n w h i c h m o r e than 70 p o l i t i c a l prisoners disappeared shortly after the 1973 coup. T h e amnesty l a w decreed by the m i l i t a r y government i n 1978 prevents the c r i m i n a l p r o s e c u t i o n o f c r i m e s c o m m i t t e d f r o m 1973-1978. B u t , i n cases o f " d i s a p p e a r a n c e s " , where the bodies o f the v i c t i m s have never been recovered, the C h i l e a n courts have r u l e d that the v i c t i m s must be considered s t i l l " d i s a p p e a r e d " , and hence v i c t i m s o f an o n g o i n g crime.  1 0 6  A c c o r d i n g l y , the amnesty l a w does not apply. T h e bodies o f 19 o f the 72  prisoners executed by the " C a r a v a n o f D e a t h " have never been found. It is their cases that were t a k e n up by G u z m a n . A l t h o u g h recent events make the actual trial and sentencing o f P i n o c h e t v e r y unlikely,  1 07  perhaps the most important p h e n o m e n o n a r i s i n g f r o m the saga is that a  Latin American Weekly Reports, "Disappeared: Data is Available", 22 June 1999, 278. 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). IU5  1 0 6  O n 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 o f Pinochet accuse him o f feigning illness in an attempt to influence the course o f justice. Recognising the inflammatory nature o f the case, President Lagos, himself jailed by the Pinochet regime in 1987, was quick to call on his fellow Chileans to respect the ruling, saying that the judges had acted 1 0 7  78  situation d e v e l o p e d f o r the potential p r o s e c u t i o n o f the f o r m e r dictator within h i s h o m e l a n d . Indeed, h a d it not been f o r the recent d e c i s i o n , d e e m i n g P i n o c h e t too i l l to face t r i a l , it is v e r y l i k e l y that P i n o c h e t w o u l d have been f o u n d g u i l t y i n C h i l e a n courts. S u c h a situation w o u l d have been u n i m a g i n a b l e three years ago. T h e p e r v a s i v e atmosphere o f u n c o n d i t i o n a l i m p u n i t y i n C h i l e has undergone dramatic change i n recent times as, b i t by bit, the series o f agreements negotiated i n C h i l e ' s  transition pactada have  b e g u n to  unravel.  International Implications and Lessons of the Pinochet Case T h e catalyst f o r the P i n o c h e t saga, as I have already m e n t i o n e d , w a s international l e v e l change: n a m e l y , a n d generally, the end o f the C o l d W a r a l l o w i n g f o r extant international laws to be more easily carried out. Y e t , the case has also h a d an effect o n the very international environment that a l l o w e d the case to happen. I have already m e n t i o n e d the p r o s e c u t i o n o f H i s s e i n H a b r e , but o v e r a l l , the precedent created by the P i n o c h e t case w i l l have i m p l i c a t i o n s that w i l l l i k e l y effect further international change i n the future. L o o k i n g first at the L a t i n A m e r i c a n regional l e v e l , one c a n p o i n t to e x a m p l e s o f k n o c k - o n effects already h a v i n g occurred. In A r g e n t i n a , judges made the d e c i s i o n to reopen the cases o f m i l i t a r y o f f i c i a l s responsible f o r h u m a n rights crimes. F o l l o w i n g the 108  Punto Final,  these cases had already been c o n s i d e r e d closed and the c o n d e m n e d  independently in their 2-1 vote to suspend legal action on health grounds. Prosecution lawyers say they w i 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 In December 1986, after the highest military officers had been convicted and sentenced, a new law, "el Punto F i n a 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 1 0 8  79  i n d i v i d u a l s granted amnesty by the A r g e n t i n e state. B u t m o t i v a t e d b y the P i n o c h e t precedent, A r g e n t i n e j u d g e C l a u d i o B o n a d i o , i n N o v e m b e r 1999, reopened investigations o n 15 disappearance cases as w e l l as requesting the arrest and e x t r a d i t i o n o f 98 A r g e n t i n e m i l i t a r y o f f i c e r s i m p l i c a t e d i n cases o f disappearances o f S p a n i s h c i t i z e n s .  1 0 9  In U r u g u a y ,  l i k e A r g e n t i n a , h u m a n rights questions had since 1989 been dealt w i t h v i a a l a w p a r d o n i n g m i l i t a r y o f f i c e r s for their c r i m e s .  1 1 0  B u t , also l i k e A r g e n t i n a , the i m p a c t o f the  P i n o c h e t arrest l e d to the issue o f h u m a n rights resurfacing o n the p o l i t i c a l agenda. T h e N o v e m b e r 1999 e l e c t i o n c a m p a i g n , for e x a m p l e , saw presidential candidates start to use the issue o f h u m a n rights as a vote w i n n i n g tactic, despite the fact that the 1989 I m p u n i t y l a w forbade j u d i c i a l p r o s e c u t i o n against m i l i t a r y officers. P r e s i d e n t i a l candidate, Tabare V a z q u e z " p r o m i s e d i n his manifesto to initiate investigations to gather i n f o r m a t i o n o n 1  the fate o f the disappeared. Indeed, a c o m m i s s i o n has n o w been established i n U r u g u a y to f i n d out what happened to the people w h o went m i s s i n g d u r i n g the c o u n t r y ' s years o f m i l i t a r y rule. O u t s i d e o f L a t i n A m e r i c a , the arrest o f P i n o c h e t has also had an impact. G e n e r a l s throughout the w o r l d , w h o p r e v i o u s l y felt themselves to be l e g a l l y untouchable, have started to rethink their status. International repercussions were i m m e d i a t e i n the w a k e o f P i n o c h e t ' s arrest. Current and f o r m e r o f f i c i a l s f r o m Y u g o s l a v i a , and A f r i c a w e r e reported  brought to trial. Menem took this further in 1990 when he granted an amnesty to all imprisoned military officers, in the name o f "national unity." From http://www.vendor.com/vanished/uprisings.html 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 o f these retired officers is now proceeding, albeit at a very slow pace. In A p r i l 1989, a referendum was held over the issue o f upholding the Amnesty L a w for human rights crimes during the military dictatorship. 55.4% o f the nationwide Uruguayan electorate favoured retaining the law. See Gillespie 1991, 248. A l s o , for a detailed analysis o f the debates that took place over whether to forget the past or uphold the principle o f human rights, see Weschler, 1990. " ' Vazquez lost the presidential election to 72 year old, Jorge Batlle in November 1999. 1 0 9  1 1 0  80  to have " r e t h o u g h t " travel p l a n s . " W h e n M e n g i s t u H a i l e M a r i a m , the f o r m e r dictator o f 2  E t h i o p i a , n o w i n e x i l e i n Z i m b a b w e , v i s i t e d S o u t h A f r i c a for m e d i c a l attention, h u m a n rights campaigners i n s p i r e d by the P i n o c h e t case, argued that the S o u t h A f r i c a n authorities s h o u l d arrest the f o r m e r dictator. M e n g i s t u d i d manage to m a k e a safe return to Z i m b a b w e before l e g a l a c t i o n c o u l d be taken, but the fact that his potential arrest w a s even raised as an issue was an important development. P i n o c h e t ' s detention i n L o n d o n ended o l d certainties that ex-dictators were l e g a l l y untouchable. Indeed N G O s argue that there is sufficient evidence to the c l a i m that national sovereignty is n o w less important an obstacle to c u r b i n g serious h u m a n rights c r i m e s than it has been i n p r e v i o u s years. E x e c u t i v e D i r e c t o r o f H u m a n R i g h t s W a t c h , K e n n e t h R o t h , said i n the w a k e o f the P i n o c h e t arrest and the U N i n t e r v e n t i o n i n K o s o v o : " w e w i l l 113  r e m e m b e r 1999  as the year i n w h i c h sovereignty gave w a y i n places w h e r e c r i m e s  against h u m a n i t y were being c o m m i t t e d . ..Ordinarily w e depend o n s o v e r e i g n states to defend h u m a n rights.. .But sovereignty cannot be used as an excuse to a v o i d h u m a n rights c o m m i t m e n t s . "  1 1 4  A l s o , the P i n o c h e t arrest i n L o n d o n and the request for his  e x t r a d i t i o n to S p a i n s h o w s that people are being tried outside their native countries - are w e w a t c h i n g the t r i u m p h o f the p r i n c i p l e o f universal jurisdiction?  115  International W a r  C r i m e s T r i b u n a l s f o r R w a n d a and the f o r m e r Y u g o s l a v i a have a g r o w i n g n u m b e r o f people i n custody. T h e T r i b u n a l also took the significant step o f i n d i c t i n g a sitting head Reported in Anthony Faiola, "Pinochet Returns to C h i l e " , in Washington Post Foreign Service, 3 M a r c h 2000. 1 1 2  Roth noted that in 1999 sustained international pressure forced the Indonesian government to consent to the deployment o f troops in East Timor, after the Indonesian military failed to stop the bloodshed there. He claims that the national sovereignty claims o f the Indonesian generals, like those o f Yugoslav President Slobodan M i l o s e v i c in Kosovo, lost their legitimacy in the wake o f gross human rights crimes. From "Human Rights Watch W o r l d Report 2 0 0 0 " Available at www.hrw.org/press/1999/dec/wr2keng.htm 1 1 3  1 , 4  81  o f state, S l o b o d a n M i l o s e v i c .  1 1 6  D o e s the P i n o c h e t saga indicate the d e m i s e o f absolute  national sovereignty? A r e w e w i t n e s s i n g what Stephen K r a s n e r termed " p u n c t u a t e d e q u i l i b r i u m " - a f u n d a m e n t a l alteration o f sovereignty norms i n the society o f states? Just as absolute m o n a r c h y gave w a y to constitutional or l i m i t e d monarchy, is absolute national sovereignty g i v i n g w a y to what one c o u l d label constitutional or l i m i t e d n a t i o n a l sovereignty? T h e P i n o c h e t saga raises these questions o f international society and, as p e o p l e l i k e R o s e n a u have argued, p r o v i d e s e v i d e n c e that nation states are i n c r e a s i n g l y subject to international p o l i t i c a l n o r m s .  1 1 7  Pinochet, and other dictators l i k e M i l o s e v i c ,  sacrifised thousands o n the alter o f national sovereignty, but generally e v o k e little sympathy i n the international c o m m u n i t y . W i t h regard to the specifics o f the P i n o c h e t case, however, a degree o f c a u t i o n is required i n order to a v o i d the m i s t a k e o f overstating the impact o f the d e c i s i o n . W h e t h e r the P i n o c h e t d e c i s i o n w i l l be a l a n d m a r k depends on the extent to w h i c h other courts i n different j u r i s d i c t i o n s w i l l f o l l o w it. T h e d e c i s i o n serves as a l e g a l precedent o n l y i n the U K - no other state is b o u n d by the d e c i s i o n . W h a t can be asserted is that the d e c i s i o n b y the highest court i n one o f the foremost western states is o f persuasive authority f o r courts i n other j u r i s d i c t i o n s , particularly, one c o u l d argue, C o m m o n w e a l t h states and the U n i t e d States, w h i c h share a c o m m o n legal heritage w i t h the U K . H o w e v e r , even this c l a i m c o u l d be exaggerated. T h e L o r d s ' d e c i s i o n was very m u c h dependent o n its facts  General Pinochet is the best known example, but many other people accused o f participating in the Bosnian and Rwandan genocides have also been indicted outside their own countries. Indeed on 31 March, 2001, M i l o s e v i c 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 o f a U N court in the Hague. Europe has led the way on this matter with the Council of Europe, which holds member nations to human rights standards codified in the European Convention on Human Rights. Since 1998, citizens o f 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. 1 1 5  1 1 6  1 1 7  82  and c o n t a i n e d idiosyncrasies that suggest it is a legal precedent that w i l l not easily " t r a v e l " . A l s o the fact that none o f the seven j u d g e s i n the case agreed entirely w i t h one 118  another as to the precise details o f the d e c i s i o n ,  is evidence o f the divergence o f  o p i n i o n w h i c h c o u l d be e x p l o i t e d b y lawyers i n subsequent cases. A n o t h e r argument that has been contributed to the debate relates to the internal p o l i t i c a l s t a b i l i t y o f C h i l e - s p e c i f i c a l l y , the right o f outside courts to i n v o l v e t h e m s e l v e s i n t r y i n g C h i l e ' s f o r m e r ruler against the wishes o f the C h i l e a n state. T h e pact made between the i n c o m i n g c i v i l i a n government w i t h the o u t g o i n g m i l i t a r y regime at the t i m e o f C h i l e ' s d e m o c r a t i c transition, w a s a c o n s c i o u s c h o i c e made by C h i l e a n elites. It w a s d e c i d e d that greater internal stability w o u l d be a c h i e v e d i n C h i l e i f steps w e r e not taken to prosecute the p r e v i o u s regime. M a n y have argued that this s h o u l d have been the e n d o f the matter, a r g u i n g that the amnesty the G e n e r a l negotiated i n his h o m e l a n d s h o u l d put h i m b e y o n d the reach o f courts elsewhere. N o r m a l l y , this w o u l d have been the e n d o f the matter, g i v e n the i m p o r t a n c e p l a c e d b y international l a w and international relations i n general, o n the rights o f states to determine their o w n internal matters. H o w e v e r , i n the case o f C h i l e this argument does not apply. C h i l e h a d already restricted its s o v e r e i g n rights by, i n 1988, s i g n i n g and r a t i f y i n g the Torture C o n v e n t i o n that s p e c i f i c a l l y p r o v i d e s f o r the p o s s i b i l i t y , indeed the requirement, o f u n i v e r s a l i t y w i t h regard to the alleged crimes. T h i s consequently a l l o w s f o r the exercise o f j u r i s d i c t i o n b y S p a i n a n d the U K over C h i l e a n o f f i c i a l s , i n c l u d i n g their f o r m e r head o f s t a t e .  119  The specific disagreements o f the judges and the debates undertaken during the case can be found in the judgement o f 24 M a r c h 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 o f Lords can also be found at: http://vvvvw.parliament.uk However, such jurisdiction can only exist in respect o f crimes which occurred at the earliest after the date at which Chile entered into the regime governed by the Torture Convention (1984), otherwise there 1 1 9  83  A n a d d i t i o n a l argument says that even i f a relevant b o d y o f international l a w exists, there are h u m a n and p r a c t i c a l reasons w h y it is s e l d o m enforced. T h e G e n e r a l ' s arrest not o n l y disturbed the delicate p o l i t i c a l balance inside C h i l e , but sent the w r o n g message to other dictators. In m a n y parts o f the w o r l d , despots have been eased b l o o d l e s s l y f r o m p o w e r o n l y after b e i n g p r o m i s e d i m m u n i t y f r o m punishment. W i t h o u t such a p r o m i s e , it is argued that dictators w o u l d have every i n c e n t i v e to h a n g o n to p o w e r v i o l e n t l y u n t i l the bitter end. T h i s is a v a l i d point as m a n y nations have had little o p t i o n but to negotiate a pact that p r o v i d e d amnesties to the leaders o f the p r e v i o u s regime. B u t i n the case o f C h i l e this is beside the point. It is still o p e n to countries to offer amnesties as they m a k e the transition to d e m o c r a c y - indeed pacts w i l l l i k e l y still o c c u r i n the future. P i n o c h e t , h o w e v e r , hit trouble not because C h i l e b r o k e its p r o m i s e to h i m , but because the G e n e r a l made the mistake o f s w a n n i n g around the w o r l d o n what turns out to have been the m i s t a k e n a s s u m p t i o n that the d e c i s i o n o f C h i l e ' s p o l i t y w o u l d b i n d the rest o f the w o r l d ' s courts. T h i s is a p o s i t i v e development. It m a y be necessary f o r unfortunate nations to p r o m i s e f o r m e r dictators safety at home. B u t c o a x i n g t h e m f r o m p o w e r does not require a d d i n g the bonus o f a safe cup o f tea w i t h L a d y Thatcher i n L o n d o n . P i n o c h e t ' s arrest m a r k e d a step towards the sort o f w o r l d i n w h i c h p o w e r f u l p e o p l e have to t h i n k t w i c e before they carry out h u m a n rights atrocities. Regardless o f the legal i m p l i c a t i o n s o f the P i n o c h e t d e c i s i o n , the p o l i t i c a l i m p l i c a t i o n s o f the o u t c o m e give rise to further c o n s i d e r a t i o n i n r e l a t i o n to the e x e r c i s e o f j u r i s d i c t i o n by national courts - namely, are national courts the appropriate f o r u m f o r cases o f this nature? T h e first aspect o f the case to take into account is the fact that it w a s  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 o f charges against Pinochet were greatly reduced.  84  e x t r e m e l y r a n d o m and w a s related to m a n y p o l i t i c a l as w e l l as legal factors. N e i t h e r the U K n o r S p a n i s h governments were responsible f o r b r i n g i n g l e g a l proceedings against Pinochet. T h e action w a s started b y a S p a n i s h j u d g e and responded to b y the B r i t i s h j u d i c i a l system. A l t h o u g h the U K government had the opportunity to end the p r o c e e d i n g s against P i n o c h e t , the p o l i t i c a l costs o f d o i n g so w o u l d have been h i g h , what w i t h the s i z a b l e l e v e l s o f p u b l i c support for the actions against P i n o c h e t and the L a b o u r Party manifesto p r o m i s e o f h a v i n g an " e t h i c a l " f o r e i g n p o l i c y . T h e sheer arbitrariness o f the entire affair bothered a n u m b e r o f commentators. W h y arrest P i n o c h e t a n d not I d i A m i n , f o r m e r b l o o d t h i r s t y dictator o f U g a n d a , l i v i n g quietly i n S a u d i A r a b i a ? W h y i n d i c t P i n o c h e t and not current [at the t i m e o f P i n o c h e t ' s arrest] h a m - f i s t e d tyrants l i k e C o n g o ' s Laurent K a b i l a o r Y u g o s l a v i a ' s S l o b o d a n M i l o s e v i c ? W r i t i n g i n the F r e n c h newspaper, Liberation,  Jacques A m a l r i c p o i n t e d out:  R e a s o n s o f state have never gone hand i n hand w i t h h u m a n rights.. .Our expectations i n the face o f F r a n c e ' s determination regarding P i n o c h e t is a l l the greater because F r e n c h o f f i c i a l s , w h o care very little about S a d d a m H u s s e i n ' s c r i m e s and w h o accept that M i l o s e v i c not be tried b y the international t r i b u n a l , are today w e l c o m i n g a dictator w h o p r o b a b l y has m o r e b l o o d o n h i s hands than the C h i l e a n dictator: Laurent D e s i r e K a b i l a . C o u l d it be that f o r o u r leaders these are t w o categories o f international c r i m i n a l s - t h o s e w h o are w i t h o u t p o w e r , therefore useless, and w h o s h o u l d be tried for their c r i m e s ; and those w h o are u s e f u l because they remain i n p o w e r and whose defense is based o n p o l i t i c a l d i p l o m a t i c or c o m m e r c i a l reasons? T h e answer is d e f i n i t e l y y e s .  120  C e r t a i n l y the randomness and inconsistency o f the u p h o l d i n g o f h u m a n rights, e x e m p l i f i e d b y the P i n o c h e t arrest, proves the case i n v o l v i n g C h i l e ' s f o r m e r dictator w a s unique. In a d d i t i o n to the randomness o f the arrest, the debates and d i v i d e s a m o n g the L a w L o r d s over the details o f the P i n o c h e t trial accentuates the p r o b l e m w i t h n a t i o n a l  85  courts h a n d l i n g cases o f this k i n d . F o r e x a m p l e , the L a w L o r d s had lengthy debates and disagreements over w h i c h values and p r i n c i p l e s ought to be g i v e n p r i o r i t y i n contemporary international law. L o r d G o f f , i n his speech to the L o r d s , h i g h l i g h t e d the p o l i t i c a l d i f f i c u l t i e s that might exist i f state i m m u n i t y were not to exist i n cases s u c h as those i n v o l v i n g Pinochet. H e said that: I f i m m u n i t y rationae materiae was e x c l u d e d , f o r m e r heads o f state and senior p u b l i c o f f i c i a l s w o u l d have to think t w i c e about t r a v e l l i n g abroad, for fear o f b e i n g subject o f u n f o u n d e d allegations emanating f r o m States 121  o f a different persuasion. T h i s o p i n i o n went against the consensus, i n that the L o r d s d e c i d e d that P i n o c h e t c o u l d be extradited. Y e t , these k i n d s o f differences o f o p i n i o n are inevitable i n a case t a k i n g p l a c e i n a n a t i o n a l court where no established rules exist to " p r o v i d e the r u l e o f d e c i s i o n i n a case and [when] courts have to m a k e recourse to general p r i n c i p l e s to fill i n the lacunae or to interpret c o n t r o v e r s i a l points o f l a w " ( B i a n c h i 1999, 260). T h e P i n o c h e t case, therefore, highlights the importance o f the successful establishment o f the potentially m o r e consistent and less r a n d o m International C r i m i n a l 122  Court (ICC).  T h e statute o f the court e x p l i c i t l y p r o v i d e s that there w i l l be no i m m u n i t y  f r o m the j u r i s d i c t i o n o f the court. T h i s reflects the fact that the court w i l l act as an international t r i b u n a l , i n respect o f w h i c h the doctrine ofpar in par em non habet Jacques A m a l r i c . " T w o Categories o f Dictator," Liberation, 27 November 1998. A l s o see Charles Krauthammer. " A Strange Morality," Washington Times, 7 December 1998. See Lords' Judgement. Available: vvwvv.parliament.uk l z u  1 2 1  The I C C meets the dual objective o f 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 I C C 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 o f referrals from members o f the U N Security C o u n c i l , but also on the basis o f 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 o f 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). 1 2 2  86  imperium (an equal has no dominion over an equal), the foundation of the doctrine o f state immunity, w i l l not apply. Again, as with treaty law, the key is the consent o f states who ratify the Rome Convention. Each state that signs the Rome Statute w i l l do so in the exercise o f sovereign authority which w i l l have the effect of reducing the sovereignty o f the state in respect to matters brought before the I C C .  1 2 3  The intention is that the I C C  w i 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 o f U S citizens, it seems that the I C C 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?  124  A true test of the "globalisation" of human rights w i l l come when a warrant is  It is worthy o f 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 I C C which w i l l have jurisdiction to hear such cases without the barrier o f state immunity. 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 w i 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 w i l l lead to the paltry politicization o f what could have been a 1 2 4  noble process, and to the justifiable suspicion o f 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, H e n r y K i s s i n g e r or G e o r g e B u s h o n charges o f c r i m e s against h u m a n i t y . Is it t h i n k a b l e that the U S w o u l d surrender one o f its o w n c i t i z e n s to be tried by an international tribunal? U n t i l it is, unfortunately for those w h o argue that w e are h e a d i n g i n a c o s m o p o l i t a n and u n i v e r s a l direction, state p o w e r w i l l continue to rule the roost, and g l o b a l c i v i l society w i l l r e m a i n a secondary player at best. G i v e n the important and p o s i t i v e effect o f the P i n o c h e t arrest, it seems inappropriate to be o v e r l y pessimistic. P i n o c h e t ' s arrest i n L o n d o n has inalterably changed the course o f C h i l e a n p o l i t i c s , and, contributed to the l o n g - t e r m cause o f efforts to p r o m o t e respect f o r h u m a n rights i n the international c o m m u n i t y . A l t h o u g h it is currently u n l i k e l y that f o r m e r government personnel f r o m p o w e r f u l nations l i k e the U S w i l l face arrest, P i n o c h e t ' s plight has nonetheless caused a l a r m w i t h p e o p l e l i k e H e n r y 125  Kissinger.  R e a d i n g between the lines o f a K i s s i n g e r c o m m e n t made i n the w a k e o f  P i n o c h e t ' s detention i n B r i t a i n , one gets the i m p r e s s i o n that the extraterritorial arrest o f the f o r m e r C h i l e a n head o f state made K i s s i n g e r question his o w n i m m u n i t y . "I w o u l d be h a p p y , " he t o l d the L o n d o n Observer, " i f P i n o c h e t was a l l o w e d home. T h i s episode has gone o n l o n g enough, and m y sympathies are w i t h h i m . "  1 2 6  T h e international changes m e n t i o n e d above have altered the e n v i r o n m e n t i n w h i c h d e m o c r a t i c transitions o f today are o c c u r r i n g . S c h m i t t e r is correct to argue that the " r e l e v a n c e o f the international context tends to increase m o n o t o n i c a l l y and to change i n intensity w i t h each successive demise o f autocracy. T h e 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). 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 5  Reported in "Twilight o f the General: Chile After the Arrest o f Pinochet," NACLA: Americas, 32, 6 (1999): 11 1 2 6  Report on the  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 o f democratisation that followed'World War II that contemporary democratisers cannot rely on the strategies of consolidation that were then relatively successful. W i t h the end o f the C o l d War and the collapse o f the Soviet Union, the ideological formulas and partisan confrontations o f the past are no longer convincing. Evelyne Huber, Dietrich Rueschemeyer and John Stephens argue that: Developments in the geopolitical situation, particularly the end o f the C o l d War, have been conducive to the survival of democracy both directly and indirectly. Directly, they have reduced the tendency o f 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 o f such a threat or, even worse from their point of view, of potential complicity o f 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 o f placing barriers in the way o f institutional experimentation. Traditional protestations o f "noninterference in domestic affairs" have become less persuasive, and the line between the realms o f national and international politics has become increasingly blurred. More significant in the future w i l l be the use o f international organisations to bring pressures to bear on the remaining autocracies and recidivist democracies. The combined impact o f this new environment has had an effect on the legitimacy, the durability and even the necessity o f 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  c o n s o l i d a t i n g i n s t i t u t i o n a l democracy. A n a l y s i s o f the most recent L a t i n A m e r i c a n d e m o c r a t i c transition p r o v i d e s evidence o f the altered regional a n d international context.  Transition in Peru - Lessons from  Pinochet?  T h e P e r u v i a n transition differs f r o m the one i n C h i l e i n that it w a s catalysed b y h i g h levels o f c o r r u p t i o n , c u l m i n a t i n g i n intelligence chief, V l a d i m i r o M o n t e s i n o s , b e i n g caught o n v i d e o b r i b i n g an o p p o s i t i o n m e m b e r o f Congress. T h e scandal s u r r o u n d i n g this i n c i d e n t a n d the o v e r a l l exposure o f m a f i a - l i k e governance w e a k e n e d the p o s i t i o n o f the 127  F u j i m o r i administration.  U n l i k e the P i n o c h e t regime, F u j i m o r i ' s government ended  w i t h p o l i t i c a l elites b e i n g r e m o v e d f r o m o f f i c e i n disgrace. T h e weakness o f the o u t g o i n g regime, and the r e s u l t i n g strength o f i n c o m i n g democrats, made p a c t i n g i m p r o b a b l e . T h e o p p r o b r i u m s u r r o u n d i n g the F u j i m o r i government has a l l o w e d n e w l y elected President T o l e d o to state that a " v e r y h i g h p r i o r i t y " f o r his a d m i n i s t r a t i o n is the return o f F u j i m o r i , 128  currently i n e x i l e i n Japan, to face j u s t i c e i n Peru.  President A y l w i n was a f f o r d e d no  s u c h l u x u r y regarding his predecessor w h e n he assumed o f f i c e i n C h i l e . C i r c u m s t a n c e s l e a d i n g to d e m o c r a c y i n Peru, therefore, have d i f f e r e d to the C h i l e a n case. Y e t , w h i l e w a t c h i n g events u n f o l d over the last year, o n e is struck b y what appears to be an awareness o f the C h i l e a n experience o n the part o f those i n v o l v e d . T a k e , f o r instance, a conversation p r i o r to the fraudulent 2 0 0 0 P e r u v i a n presidential e l e c t i o n , between M o n t e s i n o s , the m a n w i d e l y regarded as the architect b e h i n d the F u j i m o r i m a f i a , and p o w e r f u l banker, D i o n i s i o R o m e r o .  1 2 9  In one o f the m a n y  O n 21 November 2000, the Congress o f Peru voted to declare Fujimori "morally unfit" to govern and removed him as head o f state. This is the first time that such a censure has occurred in Peruvian history. See: http://news.bbc.co.uk/hi/english/world/americas/newsid 1471000/1471099.stm Available: http://stucchi.tripod.com/politica/drsvmt.htm Quotes, my translation. 1 2 7  1 2 8  1 2 9  90  released "Vladivideos" that have exposed the extent o f corruption in Fujimori's Peru, Montesinos talks o f 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 o f 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 o f 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 o f bringing justice to criminals in the previous regime. This was made clear by the report written by the Organisation o f American States ( O A S ) after their " M i s s i o n to Peru" which took place from 27-30 June 2000. The proposals made by the report, designed to ensure the "continued strengthening o f democracy in our hemisphere," cover five areas: 1) reform o f the administration of justice, strengthening the rule o f 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 o f  the judicial process and civilian control o f 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 F r o m \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. 1 3 0  91  situation w h e r e b y the m i l i t a r y remains a p o w e r f u l player i n the post-transition context and where i m m u n i t y prevents countless h u m a n rights violators f a c i n g j u s t i c e . Indeed, i f the n e w l y i n s t a l l e d government o f President T o l e d o fails to j a i l m e m b e r s o f the F u j i m o r i government f o r their crimes, the international c o m m u n i t y w i l l l o o k d i s a p p r o v i n g l y u p o n the n e w a d m i n i s t r a t i o n . In sum, support f r o m a n encouraging international c o m m u n i t y , and the l a c k o f institutionalised authoritarian enclaves f r o m the p r e v i o u s regime, create the p o t e n t i a l i n P e r u f o r the i m p l e m e n t a t i o n o f an effective " t r u t h c o m m i s s i o n " w i t h p e n a l powers. A d d i t i o n a l l y , the p l i g h t o f M o n t e s i n o s provides evidence o f altered international norms. A f t e r b e i n g e x p o s e d f o r corruption, the i n t e l l i g e n c e c h i e f f l e d to P a n a m a i n search o f a s y l u m o n l y to be e x p e l l e d after a month. T h e response o f P a n a m a ' s g o v e r n m e n t is i n d i c a t i v e o f what I have t e r m e d the international punctuated e q u i l i b r i u m . In the past, P a n a m a has granted a s y l u m to f l e e i n g dictators, l i k e the S h a h o f Iran, ( R a o u l ) C e d r a s f r o m H a i t i , a n d the f o r m e r right w i n g leader o f G u a t e m a l a (Jorge Serrano). Y e t , w h e n M o n t e s i n o s a r r i v e d last year, m a n y Panamanians were indignant about b e i n g recast i n 131  this o l d s o r d i d role.  T h e fact that M o n t e s i n o s was u l t i m a t e l y accepted i n V e n e z u e l a is  i n d i c a t i v e o f the degree to w h i c h the C h a v e z government is out o f step w i t h the e m e r g i n g regional consensus.  132  C h a n g i n g international norms have resulted i n most countries  b e i n g i n c r e a s i n g l y u n w i l l i n g to face the international shame o f g i v i n g shelter to deposed dictators, i n d i c t e d w a r c r i m i n a l s a n d e x p o s e d murderers o n the run. H o w e v e r , it i s not o n l y international shame that countries l i k e P a n a m a have to consider before g o i n g against 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 o f rat." From http://www.crsp.oru/cmte/makeover-novOO.htm 131  92  the grain o f the international n o r m a t i v e consensus. Recent years have seen an increase i n p o l i t i c a l c o n d i t i o n s b e i n g p l a c e d o n the b e h a v i o u r o f nations.  Regional Conditionality O n e c a n p o i n t to evidence that " p o l i t i c a l c o n d i t i o n a l i t y " has taken a p l a c e alongside the " e c o n o m i c c o n d i t o n a l i t y " p r a c t i c e d f o r so l o n g by institutions l i k e the I M F . T o d a y , free and fair elections are a pre-requisite f o r m e m b e r s h i p - i n - g o o d - s t a n d i n g i n the international c o m m u n i t y . There was certainly an awareness o f this international reality o n the part o f M o n t e s i n o s , w h o i n the above m e n t i o n e d d i s c u s s i o n w i t h R o m e r o , also states that " t o w i n [the 2000 presidency for F u j i m o r i ] , is to w i n i n a decent f a s h i o n , d o i n g a c l e a n j o b . " H e w a s c l e a r l y aware o f P e r u ' s image abroad, and the need to at least be p e r c e i v e d to have w o n the e l e c t i o n i n a free a n d fair manner. P o l i t i c a l c o n d i t i o n a l i t y has l o n g been a n o r m f o r E u r o p e a n C o m m u n i t y m e m b e r s h i p , but is also, as I w i l l m e n t i o n b e l o w , s l o w l y b e c o m i n g a reality i n the p r e m i e r r e g i o n a l c l u b o f the A m e r i c a s , the O A S . G l o b a l and r e g i o n a l organisations often m a k e p r o v i s i o n s o f credits, the negotiations o f c o m m e r c i a l agreements a n d m e m b e r s h i p requirements contingent o n a nation t a k i n g steps to r e f o r m p o l i t i c a l institutions, h o l d i n g free and fair elections, respecting h u m a n rights and the safety o f ethnic, l i n g u i s t i c or r e l i g i o u s m i n o r i t i e s . In some cases, l i k e the transitions to d e m o c r a c y i n Southern E u r o p e , the different f o r m s o f bilateral and m u l t i l a t e r a l c o n d i t i o n a l i t i e s f o r E u r o p e a n C o m m u n i t y m e m b e r s h i p c o m b i n e d i n a w a y that p l a c e d considerable restrictions o n the m a r g i n f o r m a n e u v e r a v a i l a b l e to n e w d e m o c r a t i c regimes. In the S o v i e t successor states established  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. 1 3 2  93  since the f a l l o f the B e r l i n W a l l , leaders seeking m e m b e r s h i p o f the E u r o p e a n U n i o n have a c t i v e l y sought to be subjected to p o l i t i c a l c o n d i t i o n a l i t y i n order to i n f o r m the p e o p l e that they h a d no c h o i c e but to take certain unpopular measures. A l t h o u g h the E u r o p e a n U n i o n has l e d the w a y i n terms o f p l a c i n g p o l i t i c a l c o n d i t i o n s o n m e m b e r s h i p and the benefits that c o m e w i t h that, the O A S has recently p o s i t i o n e d d e m o c r a c y and h u m a n rights more p r o m i n e n t l y at their A p r i l 2001  Summit in  Q u e b e c C i t y . T h e result o f this meeting o f regional leaders was a " D e c l a r a t i o n and P l a n o f A c t i o n , " w h i c h proposed an " I n t e r - A m e r i c a n D e m o c r a t i c C h a r t e r " designed to b u i l d o n " e x i s t i n g O A S instruments for the defense o f representative d e m o c r a c y . "  1 3 3  C o n s e q u e n t l y , any " u n c o n s t i t u t i o n a l alteration or interruption o f the d e m o c r a t i c o r d e r " w i l l be d e e m e d an " i n s u r m o u n t a b l e obstacle to the p a r t i c i p a t i o n o f that state" i n the S u m m i t o f the A m e r i c a s process - i n short, states w h i c h v i o l a t e the p r o p o s e d D e m o c r a t i c Charter w i l l be e x c l u d e d f r o m the Free Trade o f the A m e r i c a s ( F T A A ) . S u c h steps p r o v i d e e v i d e n c e that pressures for democratisation are emanating i n c r e a s i n g l y f r o m L a t i n A m e r i c a n countries themselves - indeed, it was the transitional government o f P e r u w h o p r o p o s e d the D e m o c r a c y Charter i n the first place. T h e w i d e s p r e a d r e g i o n a l endorsement o f the " D e c l a r a t i o n and P l a n o f A c t i o n " suggests that d e m o c r a t i c a l l y elected governments i n L a t i n A m e r i c a have d e v e l o p e d a sense o f there b e i n g a strong selfinterest i n ostracising neighbours d e v i a t i n g f r o m f o r m a l democratic features.  The following quotes from the 2001 O A S , Quebec City Summit, "Declaration and Plan o f A c t i o n , " are taken from Cameron (2001).  94  CHAPTER 5: CONCLUSION - RETHINKING PACTS T h e altered w o r l d to have emerged since the f a l l o f the B e r l i n W a l l begs important questions regarding pacts. W i l l pacts that protect v i t a l elite interests, and at the same t i m e v i o l a t e w i d e l y h e l d d e f i n i t i o n s o f democracy, b e c o m e less p r o b a b l e ? W h a t does the e v i d e n c e I have p r o v i d e d f r o m the C h i l e a n experience and the P i n o c h e t arrest tell us about the p h e n o m e n o n o f pacts as a w h o l e ? W h a t has changed as a consequence o f recent events? B e f o r e a n s w e r i n g these questions, a b r i e f s u m m a t i o n o f the central negative and p o s i t i v e arguments o f this w o r k is useful. It appears t i m e l y to r e t h i n k the earlier s c h o l a r l y consensus o n the p u r p o r t e d l y p o s i t i v e role o f p o l i t i c a l pacts i n s t a b i l i s i n g democracy. E m p l o y i n g the C h i l e a n case and the recent events i n v o l v i n g P i n o c h e t as its focus, this study contends that there are t w o f u n d a m e n t a l f l a w s present i n m u c h o f the literature on pacts.  134  O n e is that it does not pay s u f f i c i e n t attention to the p o o r q u a l i t y o f the  e m e r g i n g d e m o c r a c y . T h e d e f i c i e n c i e s i n contemporary C h i l e a n d e m o c r a c y ( o u t l i n e d i n detail i n chapter three), and the p r o b l e m s i n C o l o m b i a and V e n e z u e l a , have not been p r o p e r l y a c c o u n t e d f o r i n the literature. W o r k o n pacts has p l a c e d emphasis o n s t a b i l i t y rather than quality, w h e n indeed the poor quality o f the emergent d e m o c r a c y where pacts have o c c u r r e d has p r o v e n e x t r e m e l y d a m a g i n g i n the long-term. T h e l a c k o f attention to the q u a l i t y o f d e m o c r a c y i n the pacts literature is manifested by the e x t r e m e l y n a r r o w d e f i n i t i o n o f d e m o c r a c y that the w o r k has p r o v i d e d . N o pact theorist has o u t l i n e d a d e f i n i t i o n o f d e m o c r a c y that s i g n i f i c a n t l y goes b e y o n d the classic m i n i m a l i s t d e f i n i t i o n p r o v i d e d by D a h l . F o r e x a m p l e , P r z e w o r s k i states that " d e m o c r a c y is a system i n w h i c h  95  parties lose elections. There are parties: d i v i s i o n s o f interests, values, and o p i n i o n s . T h e r e is c o m p e t i t i o n , o r g a n i z e d by rules. A n d there are p e r i o d i c w i n n e r s and losers. O b v i o u s l y not a l l d e m o c r a c i e s are the same; one c a n list innumerable variations and d i s t i n g u i s h several types o f d e m o c r a t i c institutions. Y e t beneath a l l the i n s t i t u t i o n a l diversity, one elementary feature - contestation open to p a r t i c i p a t i o n ( D a h l 1971) - is s u f f i c i e n t to i d e n t i f y a p o l i t i c a l system as d e m o c r a t i c " ( P r z e w o r s k i 1991, 1 0 ) .  135  In m y v i e w , a  broader d e f i n i t i o n o f p o l y a r c h y is necessary to b r i n g attention to the damage a pact c a n have o n a n a t i o n ' s chance o f d e v e l o p i n g d e m o c r a c y o f any quality. S u c h a n a r r o w d e f i n i t i o n f a i l s to h i g h l i g h t the more subtle damage a pact c a n cause d e m o c r a t i c prospects. B y m e a s u r i n g contemporary C h i l e against m y f o u r a d d i t i o n a l criteria for p o l y a r c h y ( f r o m Defining Democracy section), I have attempted to stress the i m p o r t a n c e o f the absence o f any m e n t i o n o f d e m o c r a t i c quality i n the pacts literature. I a m not a r g u i n g that there was an alternative to pacts i n places w h e r e they have occurred. W h e r e the o u t g o i n g authoritarian elites are i n a p o s i t i o n o f strength, then pacts, p r o v i d i n g n o n - d e m o c r a t i c concessions l i k e i m p u n i t y , have been a necessary feature o f establishing any k i n d o f c i v i l i a n rule. I a m arguing h o w e v e r , that the literature s h o u l d have s h o w n greater awareness o f the l o n g - t e r m damage a pact c a n cause a p o l i t y . A m o r e d e m a n d i n g d e f i n i t i o n o f d e m o c r a c y w o u l d have h e l p e d achieve that increased awareness. I a m not suggesting an alternative path that elites i n C h i l e , V e n e z u e l a and C o l o m b i a  When talking about the literature on pacts, I am referring to the major works that have emerged on the subject: namely, O ' D o n n e l l and Schmitter 1986, K a r l 1990, Przeworski 1991, and Higley and Gunther 1992. Burton, Gunther and Higley state that there is broad scholarly consensus that democracy can "best be defined and applied in terms o f 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 o f civil liberties" (1992, 1). K a r l adds " c i v i l i a n control over the military" to set her "definition apart from Robert Dahl's classic notion o f a 'procedural m i n i m u m ' " (1990, 2). O ' D o n n e l l and Schmitter (1986) provide no formal definition o f democracy in their analysis o f pacts. 1 3 4  1 3 5  96  c o u l d have f o l l o w e d . I a m suggesting however, that scholars c o u l d have been m o r e c r i t i c a l i n their analysis and, by p l a c i n g more emphasis o n d e m o c r a t i c q u a l i t y than stability, d e v e l o p e d a t y p o l o g y to d i s t i n g u i s h between a successful and u n s u c c e s s f u l pact. T h e second f l a w w i t h i n the pacts literature is its l a c k o f r e c o g n i t i o n o f the important role that international factors c a n p l a y i n d e m o c r a t i c transitions. B y p l a c i n g the C h i l e a n national picture w i t h i n a n international frame, I have attempted to h i g h l i g h t the i m p o r t a n c e o f this o m i s s i o n . T h r o u g h o u t L a t i n A m e r i c a there is evidence that the P i n o c h e t saga has changed attitudes regarding the necessity, l e g i t i m a c y and d u r a b i l i t y o f pacts. P i n o c h e t ' s loss o f i m m u n i t y i n C h i l e contravened a n important c o n d i t i o n o f C h i l e ' s transicion pactada a n d this has had a n important " k n o c k - o n " effect throughout the region. A s cases once c o n s i d e r e d c l o s e d have been reopened, doubts have been raised about the a b i l i t y o f o u t g o i n g dictators to lay l o n g - l a s t i n g c o n d i t i o n s for a transition. In C h i l e , P e r u , A r g e n t i n a and U r u g u a y there is evidence that the rule o f l a w is b e i n g strengthened as those w h o have c o m m i t t e d c r i m e s i n the past are b e g i n n i n g to face j u s t i c e . T h e t r a n s i t i o n i n P e r u (summarised above) p r o v i d e s recent e v i d e n c e o f a d o m e s t i c situation b e i n g i n f l u e n c e d b y international factors. In another t i m e and context, F u j i m o r i m i g h t have been able to negotiate a transition that w o u l d have left the k e y interests o f his regime ( l i k e the p o w e r o f M o n t e s i n i s t a generals, and perhaps the F u j i m o r i a n d M o n t e s i n o s bank accounts) untouched. T h e n e w international e n v i r o n m e n t , h o w e v e r , has made it less l i k e l y that crimes w i l l go unpunished i n P e r u than w o u l d have been the case a generation ago. In 2 0 0 0 , F u j i m o r i ' s p o s i t i o n became untenable w h e n he w a s b o m b a r d e d w i t h c r i t i c i s m not o n l y at home, but also abroad. D e v e l o p m e n t s i n P e r u contribute to the  97  p o s i t i v e argument o f this study: namely, international factors have an important i n f l u e n c e o n pacts and d e m o c r a t i c transitions i n general. A n international c r i t i c a l juncture, i n the f o r m o f the end o f the C o l d W a r , has altered international n o r m s and p r o v i d e d favourable c o n d i t i o n s for the d e m o c r a t i s a t i o n o f d o m e s t i c institutions. T h i s fundamental alteration potentially presents c i v i l i a n s w i t h a greater range o f c h o i c e as they m a k e future transitions to democracy. In an altered international context, the m o r a l balance for p a c t - m a k i n g has tilted i n f a v o u r o f c i v i l i a n elites. Pacts protecting the v i t a l interests o f elite groups w i l l l i k e l y s t i l l o c c u r i n the future, as m e c h a n i s m s w i l l be necessary to seduce strong and united authoritarian elites f r o m the p o l i t i c a l arena. W h e n authoritarians c o m m a n d 4 3 % electoral support, as the P i n o c h e t r e g i m e d i d i n the 1988 plebiscite, c i v i l i a n offers o f appeasement m a y w e l l be necessary to get t h e m to step aside. Indeed, the p l i g h t o f P i n o c h e t c o u l d result i n m i l i t a r y regimes b e i n g u n w i l l i n g to give up p o w e r for fear that what happened to P i n o c h e t m a y happen to them. But, the importance o f the P i n o c h e t case has been that it has served to change attitudes. A s can be seen by the O A S statement regarding P e r u , the international c o m m u n i t y is n o w b r o a d l y i n f a v o u r o f a c c o u n t a b i l i t y for a l l , and the I C C serves as a p r o m i s i n g c h a n n e l to ensure that a c c o u n t a b i l i t y and break o l d cycles o f i m p u n i t y . Pacts o f the future have the potential to be less generous to h u m a n rights v i o l a t o r s , f o r c i n g t o d a y ' s leaders to t h i n k t w i c e before c o m m i t t i n g h u m a n rights atrocities. G r a n t i n g i m p u n i t y to abusers o f h u m a n rights risks alienating a c o u n t r y i n the eyes o f the international c o m m u n i t y . S u c h a reality creates potential for c i v i l i a n pact makers to feel m o r e confident that they need not be o v e r l y a c c o m m o d a t i n g to the  98  p r e v i o u s regime. F r o m n o w on, c i v i l i a n negotiators m a y not be so f e a r f u l that the m i l i t a r y w i l l resort to repression i f their v i t a l interests are not protected. There is a s u i t a b l y large g l o b a l consensus that v i o l a t i n g h u m a n rights is w r o n g . M i l i t a r y repression is m o r e l i k e l y to end i n international i s o l a t i o n . Present and future dictators w i l l be insecure i n the k n o w l e d g e that m e c h a n i s m s i n international l a w are m o r e l i k e l y to be u t i l i s e d against t h e m i f they v i o l a t e h u m a n rights. T h i s reality s h o u l d not be forgotten i n future w o r k o n pacts.  99  REFERENCES  Almond, Gabriel and Sidney Verba. 1963. The Civic Culture: Political Attitudes and Democracy in Five Nations. Princeton: Princeton University Press. Amalric, Jacques. 1998. "Two Categories of Dictator," Liberation. 27 November. Amstutz, Mark. 1999. International Conflict and Cooperation. Boston: McGraw-Hill. Anderson, Lisa. 1999. "Introduction," in Anderson, ed., Transitions to Democracy. New York: Columbia University Press: 1-13. Barry, Brian. 1970. Economists, Sociologists, and Democracy. London: MacMillan Press. Bermeo, Nancy. 1999. "Myths of Moderation: Confrontation and Conflict During Democratic Transitions," in Anderson, ed., Transitions to Democracy. New York: Columbia University Press: 120-140. Bianchi, Andrea. 1999. "Immunity versus Human Rights: The Pinochet Case," European Journal of International Law. 10, 2: 237-211. Boeninger, Edgardo. 1991. "Consolidation in Chile," Journal of Democracy. 2, 3: 5760. Brody, Reed. 1999. "The Pinochet Precedent: Changing the Equation of Repression," NACLA: Report on the Americas. 32, 6 (May/June): 18-20. Bull, Hedley. 1977. The Anarchical Society: A Study of Order in World Politics. London: MacMillan Press. Burton, Michael G. and John Higley. 1987. "Elite Settlements," American Sociological Review. 52 (June): 295-307. Burton, Michael G., Richard Gunther and John Higley. 1992. "Introduction: Elite Transformations and Democratic Regimes," in Higley and Gunther, eds., Elites and Democratic Consolidation in Latin America and Southern Europe. Cambridge: Cambridge University Press. Byers, Michael. 1999. "Decisions of British Courts During 1999 Involving Questions of Public International Law," British Yearbook of International Law. 70: 277-295. Cameron, Maxwell A . and Flavie Major. 2001. "Venezuela's Hugo Chavez: Saviour or Threat to Democracy?" Forthcoming in Latin America Research Review. Cameron, Maxwell A . 2001. " A Democracy Charter for the Americas." Unpublished Manuscript. Casper, Gretchen and Michelle M . Taylor. 1996. Negotiating Democracy: Transitions from Authoritarian Rule. Pittsburgh: University of Pittsburgh Press.  100  Cavarozzi, Marcelo. 1992. "Patterns of Elite Negotiation and Confrontation in Argentina and Chile," in Higley and Gunther, eds., Elites and Democratic Consolidation in Latin America and Southern Europe. Cambridge: Cambridge University Press: 208-236. Collier, David and Steven Levitsky. 1997. "Democracy with Adjectives: Conceptual Innovation in Comparative Research," World Politics. 49 (April): 430-451. Collier, Ruth Berins and James Mahoney. 1999. "Adding Collective Actors to Collective Outcomes: Labor and Recent Democratization in South America and Southern Europe," in Anderson, ed., Transitions to Democracy. New York: Columbia University Press: 97-119. Constable, Pamela and Arturo Valenzuela. 1988. "Plebiscite in Chile: End of the Pinochet Era?" Current History. 87, 525 (January): 29-41. , Constable, Pamela and Arturo Valenzuela. 1989. "Chile's Return to Democracy", Foreign Affairs. 68, 5 (Winter): 169-186. Constitution Politica de la Republica de Chile, 1980. Available at: http://www.urich.edu/%7Eipiones/confinder/Chile.htm (English); and http://\v\vvv.Reor«etown.edu/LatAmerPolitical/Constitutions/Chile/ch ile97.html (Spanish). Coppedge, Michael. 1994. Strong Parties and Lame Ducks. Presidential Partyarchy and Factionalism in Venezuela. Stanford: Stanford University Press. Dahl, Robert A . 1966. Political Oppositions. New Haven: Yale University Press. Dahl, Robert A . 1971. Polyarchy: Participation and Opposition. New Haven: Yale University Press. Diamond, Larry, Jonathan Hartlyn and Juan J. Linz. 1999. "Introduction: Politics, Society, and Democracy in Latin America," in Diamond, Hartlyn, Linz, and Lipset, eds., Democracy in Developing Countries: Latin America. 2 Edition. Boulder: Lynne Rienner Publishers, Inc.: 1-70. nd  Di Palma, Giuseppe. 1973. The Study of Conflict in Western Society: A Critique of the End of Ideology. Morristown: General Learning Press. Di Palma, Giuseppe. 1990. To Craft Democracy: An Essay on Democratic Transitions. Berkeley: University o f California Press. Drake, Paul W. 1998. "The International Causes o f Democratization, 1974-1990," in Drake and McCubbins. eds., The Origins of Liberty. Political and Economic Liberalization in the Modern World. Princeton: Princeton University Press. Ellison, Katherine. 1998. "Some say Pinochet Wasn't Good for Economy," The Miami Herald. 18 March. From: http://vvvvw.haitford-hwp.com/archives/42a/086.html Ensalaco, Mark. 1994. "In with the New, Out with the Old? The Democratizing Impact of Constitutional Reform in Chile," Journal of Latin American Studies. 26, 2 (May): 409-429.  101  Faiola, Anthony. 2000. "Pinochet Returns to Chile," Washington Post Foreign Service. 3 March. Field, G. Lowell and John Higley. 1980. Elitism. London: Routledge and Kegan Paul. Field, G. Lowell and John Higley. 1973. Elites and Non-Elites: The Possibilities and their Side Effects. Andover: Warner Modular Publications. Fontiane Talavera, Arturo. 1995. "Significado del eje derecha-izquierda," 58 (Fall): 79-137.  Estudiospublicos.  Gammara, Eduardo A . 1994. "Crafting Political Support for Stabilization: Political Pacts and the New Economic Policy in Bolivia," in Smith, Acuna, and Gammara, eds., Democracy, Markets, and Structural Reform in Latin America: Argentina, Bolivia, Brazil, Chile and Mexico. New Brunswick, New Jersey: Transaction: 105-127. Gammara, Eduardo A., and James Malloy. 1995. "The Patrimonial Dynamics of Party Politics in Bolivia," in Mainwaring and Scully, eds., Building Democratic Institutions: Party Systems in Latin America. Stanford: Stanford University Press. Garreton, Manuel Antonio. 1989. The Chilean Political Process. Boston: Unwin Hyman Press. Gillespie, Charles Guy. 1991. Negotiating Democracy. Politicians and Generals in Uruguay. Cambridge: Cambridge University Press. Gillespie, Charles Guy. 1992. "The role of civil-military Pacts in Elite Settlements and Elite Convergence: Democratic Consolidation in Uruguay," in Higley and Gunther, eds., Elites and Democratic Consolidation in Latin America and Southern Europe. Cambridge: Cambridge University Press: 178-207. Gonzalez, Luis Eduardo. 1995. "Continuity and Change in the Uruguayan Party System," in Mainwaring and Scully, eds., Building Democratic Institutions: Party Systems in Latin America. Stanford: Stanford University Press: 138-163. Gould, Jay. 1982. "Darwinism and the Expansion of Evolutionary Theory," Science. 216 (23 April). Haggard, Stephen and Robert R. Kaufman. 1999. "The Political Economy of Democratic Transitions," in Anderson, ed., Transitions to Democracy. New York: Columbia University Press: 72-96. Hagopian, Frances. 1990. ""Democracy by Undemocratic Means"? Elites, Political Pacts, and Regime Transition in Brazil," Comparative Political Studies. 23, 2 (July): 147-170. Hartlyn, Jonathan. 1988. The Politics of Coalition Rule in Colombia. Cambridge: Cambridge University Press. Hartlyn, Jonathan and John Dugas. 1999. "Colombia: The Politics of Violence and Democratic Transformation," in Diamond, Hartlyn, Linz, and Lipset, eds., Democracy in Developing Countries: Latin America. 2 Edition. Boulder: Lynne Rienner Publishers, Inc.: 249-307. nd  102  Henriquez, Patricio. Producer. 1999. Images of a Dictatorship [Documentary]. Macumba International Incorporated. Higley, John and Richard Gunther. eds., 1992. Elites and Democratic Consolidation in Latin America and Southern Europe. Cambridge: Cambridge University Press. Hitchens, Christopher. 2001. The Trial of Henry Kissinger. New York: Verso. Huber, Evelyne, Dietrich Rueschemeyer, and John D. Stephens. 1999. "The Paradoxes of Contemporary Democracy: Formal, Participatory, and Social Dimensions," in Anderson, ed., Transitions to Democracy. New York: Columbia University Press: 168-192. Hunter, Wendy. 1998. "Negotiating Civil-Military Relations in Post-Authoritarian Argentina and Chile," International Studies Quarterly. (September): 295-317. Huntington, Samuel. 1997. "Democracy's Third Wave," in Diamond and Plattner, eds., The Global Resurgence of Democracy. 2 Edition. Baltimore: John Hopkins University Press: 3-25. nd  Informe Rettig: Informe de la Comision National de Verdady Reconciliation. 1991. Santiago: Talleres la Nacion. Jackson, Robert. 2000. The Global Covenant: Human Conduct in a World of States. Oxford: Oxford University Press. Karl, Terry Lynn. 1986. "Petroleum and Political Pacts: The Transition to Democracy in Venezuela," in O'Donnell, et al, Transitions From Authoritarian Rule: Prospects for Democracy. Vol. 2. Baltimore and London: The Johns Hopkins University Press: 196-219. Karl, Terry Lynn. 1990. "Dilemmas of Democratization in Latin America," Comparative Politics. 23, 1 (October): 1-21. Karl, Terry Lynn and Philippe C. Schmitter. 1991. "Modes of Transition in Latin America, Southern and Eastern Europe," International Social Science Journal. 43, 128 (May): 269-284. Kirchheimer, Otto. 1969. "Changes in the Structure of Politcal Compromise," in Burin and Shell, eds., Politics, Law, and Some Exchanges: Selected Essays of Otto Kirchheimer. New York: Columbia University Press: 131-159. Kissinger, Henry A . 2001. "The Pitfalls of Universal Jurisdiction," Foreign Affairs. 80, 4 (July/August): 86-96. Krasner, Stephen D. 1984. "Approaches to the State: Alternative Conceptions and Historical Dynamics," Comparative Politics. 16 (January): 223-246. Krauthammer, Charles. 1998. " A Strange Morality," Washington Times. 7 December. Lagos, Ricardo. 1999. "The Pinochet Dilemma," Foreign Affairs. (Spring). From http://www.Fmdarticles.com/cf 0/ml 181/1 14/54336730/print.jhtml LaRamee, Pierre. 1995. "Differences of Opinion: Interviews with Sandinistas," NACLA:  103  Report  on the Americas.  27, 5: 11-14.  Larrain, Felipe, and Laban Raul. 1997. "From die Military to Democracy: Two Decades of Chilean Economic Policies." Available at: http://www.hiid.harvard.edu/pub/pdfs/612.pdf Lee, Roy S. ed., 1999.  The International  Criminal  Court:  The Making  of the Rome Statute.  The  Hague: Kluwer Law International. Linz, Juan. 1978. "Crisis Breakdown, and Re-equilibration," in Linz and Stepan. eds., The Breakdown of Democratic Regimes. Baltimore: Johns Hopkins University Press. Lipset, Seymour Martin. 1959. "Some Social Requisites of Democracy: Economic Development and Political Legitimacy," American Political Science Review. 53 (March). Lipset, Seymour Martin and Stein Rokkan. 1967. "Cleavage Structures, Party Systems, and Voter Alignments: An Introduction," in Lipset and Rokkan. eds., Party Systems and Voter Alignments: Cross National Perspectives. New York: The Free Press. Loveman, Brian. 1999. For la Wilmington: SR Books.  Patria.  Loveman, Brian. 2001. Chile.The Oxford University Press.  Politics  Legacy  and the Armed  of Hispanic  Forces  Capitalism.  Mainwaring, Scott and Matthew Shugart. eds., 1997. Presidentialism America. New York: Cambridge University Press.  in Latin  America.  Third Edition. New York:  and Democracy  in  Latin  Malloy, James M . and Mitchell A . Seligson. eds., 1987. Authoritarians and Democrats: Transitions in Latin America. Pittsburgh: University of Pittsburgh Press.  Regime  Manley, John F. 1965. "The House Committee on Ways and Means: Conflict Management in a Congressional Committee," American Political Science Review. 59: 927-39. McSherry, J. Patrice. 1992. "Military Power, Impunity and State-Society Change in Latin America," Canadian Journal of Political Science. 25, 3 (September): 463-488. McCoy, Jennifer L. 1999. "Chavez and the End of 'Partyarchy' in Venezuela," Journal Democracy. 10, 3 (July): 64-77. Merkl, Peter. 1981. "Democratic Development, Breakdowns, and Fascism," World 1 (October): 114-135.  of  Politics.  34,  Molano, Alfredo. 2000. "The Evolution of the F A R C : A Guerrilla Group's Long History," NACLA: Report on the Americas. 34, 2, (September/October): 23-31. Montesquieu, Charles de Secondat, baron de. 1989. The Spirit of the Laws. Translated and edited by, Cohler, Miller, and Stone. Cambridge: Cambridge University Press. Moore, Barrington. 1966. Press.  The Social  Origins  of Dictatorship  and Democracy.  Boston: Beacon  104  Morse, Richard N . 1974. "The Heritage of Latin America," in Wiarda. ed., Politics and Social Change in Latin America. Amhurst: University of Massachusetts Press. Mosca, Gaetano. 1939. The Ruling Class. New York: McGraw-Hill. Moulian, Tomas. 1999. "The Arrest and its Aftermath," NACLA: Report on the Americas. 32, 6 (May/June): 12-17. Munck, Gerardo L. 1994. "Democratic Stability and its Limits: An Analysis of Chile's 1993 Elections," Journal of Interamerican Studies and World Affairs. 36 (Summer): 1-38. Munck, Gerardo L . and Carol Skalnik Leff. 1997. "Modes of Transition and Democratization: South America and Eastern Europe in Comparative Perspective," Comparative Politics. 29 (April): 343-362. O'Donnell, Guillermo. 1979. "Notas para el estudio de los proceses de democratizacion a partir del estado estado burocratico-autoritario," Estudios CEDES. 2:5. O'Donnell, Guillermo and Philippe C. Schmitter. 1986. "Negotiating (and Renegotiating) Pacts," in O'Donnell, Schmitter and Whitehead, eds., Transitions from Authoritarian Rule: Prospects for Democracy. Vol. 4 Baltimore and London: The Johns Hopkins University Press: 37-47. O'Donnell, Guillermo. 1992. "Transitions, Continuities, and Paradoxes," in Mainwaring, O'Donnell, and Valenzuela. eds., Issues in Democratice Consolidation. Notre Dame: University of Notre Dame Press. O'Donnell, Guillermo. 1994. "Delegative Democracy," Journal of Democracy. 5 (January): 5569. O'Donnell, Guillermo. 1996. "Illusions About Consolidation," Journal of Democracy. 7, 2 (April): 34-51. O'Shaughnessy, Hugh. 2000. Pinochet: The Politics of Torture. London: Latin America Bureau. Oxhorn, Philip. 1994. "Where did A l l the Protesters Go? Popular Mobilization and the Transition to Democracy in Chile," Latin American Perspectives 21,3 (Summer): 49-68. Pareto, Vilfredo. 1935. The Mind and Society: A Treatise on General Sociology. New York: Dover Press. Pearce, Jenny. 1995. "Impunity and Democracy: The Case of Chile," in Seider. ed., Impunity in Latin America. London: Institute of Latin American Studies: 45-56. Peeler, John. 1998. Building Democracy in Latin America. Boulder: Lynne Rienner Publishers. Przeworski, Adam. 1989. "Democracy as a Contingent Outcome of Conflicts," in Slagsted and Elster. eds., Constitutionalism and Democracy. New York: Cambridge University Press. Przeworski, Adam. 1991. Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America. Cambridge: Cambridge University Press.  105  Przeworski, Adam, Michael Alvarez, Jose Antonio Cheibub, and Fernando Limongi. 1996. "What Makes Democracies Endure?" Journal of Democracy. 7, 1: 39-55. Putnam, Robert. 1993. Making Democracy Work. Princeton: Princeton University Press. Riquelme, Alfredo. 1999. "Voting for Nobody in Chile's New Democracy," NACLA: Report on the Americas. 32, 6 (May/June): 31-33. Roberts, Kenneth M . 1998. Deepening Democracy? The Modern Left and Social Movements in Chile and Peru. Stanford: Stanford University Press. Rodley, Nigel S. 1999. The Treatment of Prisoners Under International Law. 2 Oxford: Clarendon Press.  nd  Edition.  Rosenau, James N . 1995. "Sovereignty in a Turbulent World," in Lyons and Mastanduno. eds., Beyond Sovereignty? State Sovereignly and International Intervention. London: The Johns Hopkins Press: 191-227. Rosenfeld, S. and J.L. Marre. 1997. "Chile's Rich," in NACLA: Report on the Americas. (May/June): From: http://www.hartford-hwp.eom/archives/42a/l 00.html Rustow, Dankwart. 1970. "Transitions to Democracy: Toward a Dynamic Model," Comparative Politics. 2, 3 (April): 337-363. Sartori, Giovanni. 1962. Democratic Theory. Detroit: Wayne State University Press. Sartori, Giovanni. 1994. Comparative Constitutional Engineering. New York: New York University Press. Schmitter, Philippe. 1995. "Transitology: The Science or Art of Democratization?" in Tulchin, and Romero, eds., The Consolidation of Democracy in Latin America. Boulder: Lynne Rienner Publishers: 11-41. Schumpeter, Joseph A . 1950. Capitalism, Socialism and Democracy. 3 Edition. New York: Harper Brothers. ,d  Siavelis, Peter M . 2000. The President and Congress in Postauthoritarian Chile: Institutional Constraints to Democratic Consolidation. University Park, Pennsylvania: The Pennsylvania University Press. Sieder, Rachel, ed., 1995. Impunity in Latin America. London: Institute of Latin American Studies. Skidmore, Thomas. 1988. The Politics of Military Rule in Brazil 1964-1985. New York: Oxford University Press. Tulchin, Joseph S. and Augusto Varas. 1991. "Introduction," in Tulchin and Varas. eds., From Dictatorship to Democracy: Rebuilding Political Consensus in Chile. Boulder: Lynne Reinner Publishers.  106  Vacs, Aldo. 1987. "Authoritarian Breakdown and Redemocratization in Argentina," in Malloy and Seligson. eds., Authoritarians and Democrats: Regime Transitions in Latin America. Pittsberg: Pittsberg University Press. Valdes, Juan Gabriel. 1995. Pinochet's Economists: The Chicago School in Chile. Cambridge: Cambridge University Press. Valenzuela, Arturo. 1999. "Chile: Origins and Consolidation of a Latin American Democracy," in Diamond, Hartlyn, Linz, and Lipset. eds., Democracy in Developing Countries: Latin America. 2 Edition. Boulder: Lynne Rienner Publishers, Inc.: 190-247. nd  Valenzuela, J. Samuel and Timothy Scully. 1997. "Electoral Choices and the Party System in Chile: Continuities and Changes at the Recovery of Democracy," Comparative Politics. 29 (July): 511-527. Verba, Sidney. 1971. "Sequences and Development," in Binder et al., Crises and Sequences in Political Development. Princeton: Princeton University Press. Volk, Steven. 1999. "Pinochet's Heirs: The Fractured Chilean Right," NACLA: Report on the Americas. 32, 6 (May/June): 21-30. von Hebel, Herman A . M . ed., 1999. Reflections on the International Criminal Court: Essays in Honour of Adrian Bos. The Hague: T . M . C . Asser Press. Weingast, Barry R. 1997. "The Political Foundations of Democracy and the Rule of Law," American Political Science Review. 91,2 (June): 245-263. Weschler, Lawrence. 1989. A Miracle, A Universe: Settling Accounts with Torturers. New York: Random House Press. Wiarda, Howard. 1981. "Toward a framework for the Study of Political Change in the Iberic -Latin Tradition: The Corporative Model," in Wiarda. ed., Corporatism and National Development in Latin America. Boulder: Westview Press. Wilde, Alexander. 1978. "Conversations Among Gentlemen: Oligarchic Democracy in Colombia," in Linz and Stepan. eds., The Breakdown of Democratic Regimes: Latin America. Baltimore: Johns Hopkins University Press: 28-81.  Websites: http://www.bbc.co.uk http://www.crsp.orK/cmte/makeover-novOQ.htm http.V/vvww.dfn.org/voices/chile/cascs.htm http://www.findarticles.com http://vvvvvv.georgetovvn.ed u/pd ba/ http://v\ ww.geocities.com/Capitoll-Iill/Congress/1770/declaracion-de-principios.html http://vvvvw.hartford-hvvp.com/archives/ http://www.hiid.harvard.edu/pub/pdfs/612.pdf http://www.hrw.org/campaigns/chile98/dispatches.html http://vvww.hrvv.org/campaigns/chile98/precedent.htm ,  107  http://vvwvv.lirvv.ora/press/1999/dec/wr2kena.htm http://www.lab.org.uk/countryprofiles/index.html http://vvvvvv.lakota.clara.net/derechos/rettia.htm http://www.paiiiament.iik http://stLicchi.tripod.com/politica/drsvmt.hlm http://vvvvvv. u r i ch .ed u http://wvvvv.yendor.com/vanished/uprisinas.html  Newspapers and Magazines: The Chicago Tribune, 18 June 1998, 18. The Economist, " A r g e n t i n e P o l i t i c a l C r i m e s , " 6 N o v e m b e r 1999, 34. The Economist, " A n A l a r m c a l l f o r L a t i n A m e r i c a ' s D e m o c r a t s , " 28 J u l y 2001, 37-38. Latin American Weekly Reports, " D i s a p p e a r e d : D a t a is A v a i l a b l e , " 22 June 1999, 278. Liberation, J a c q u e s A m a l r i c , " T w o C a t e g o r i e s o f D i c t a t o r . " 27 N o v e m b e r 1998.  El Mercurio, 14 J a n u a r y 2001. NACLA: Report on the Americas. 32, 6 (1999): 11, " T w i l i g h t o f the G e n e r a l : C h i l e A f t e r the Arrest o f Pinochet."  El pais, 14 J u n e 2000.  Washington Post Foreign Service, " P i n o c h e t R e t u r n s to C h i l e , " 3 M a r c h 2000. Washington Times, C h a r l e s K r a u t h a m m e r , " A Strange M o r a l i t y . " 7 D e c e m b e r 1998. Washington Times, 11 D e c e m b e r 1998, s e c t i o n A , p i 7 , " J u d g e i n S p a i n C h a r g e s P i n o c h e t , S e e k s Assets Frozen."  108  

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