News and Features
A world effort to force an end to the US death penalty is gaining strength.
These days, the buzz on Capitol Hill seems loudest about Gary Condit.
The mood in the occupied territories is one of growing rage and despair.
Augusto Pinochet entered political life in 1973 by destroying the rule of law. Now, twenty-eight years later, thanks to a decision by a Chilean appeals court, he exits the public stage still beyond the reach of the law. The July 9 ruling found the 85-year-old former dictator too sick to stand trial for his role in the kidnap and murder of dozens of civilians. Plaintiffs will attempt a last-chance reversal, but observers agree that this is probably the end of the general's legal travails, which began in October 1998 when he was detained in London on a Spanish arrest warrant.
Over these past three years, Pinochet has been extended every legal recourse and guarantee that he denied his opponents. He was not beaten, kidnapped, tortured or "disappeared." Instead of being hauled before a kangaroo court and sentenced to summary execution, he was delicately passed from the Spanish legal system to the Crown Prosecution Service to the House of Lords to the Chilean Supreme Court.
But then the courts blinked. As the typically understated Chileans would say, this final outcome is lamentable. Still, much has been gained. Pinochet's arrest by Scotland Yard and his detention for 503 days in London shook open the Chilean system and eventually led to Pinochet's indictment in Santiago. A courageous judge, Juan Guzmán Tapia, piled up more than 250 criminal complaints against Pinochet, and he boldly resisted intimidation attempts by Chile's military as well as its civilian government. Soon, dozens of other former military officers, including an active-duty general or two, found themselves formally accused. At precisely the moment when Chile's unresolved human rights debate was threatened with extinction, it came roaring back to life. The Chilean military, which had refused to accept any responsibility for the bloodletting during its seventeen-year rule, finally admitted to killing and throwing into the sea scores of its opponents. Today, even the Chilean right takes pains to distance itself from the sullied general whom it once venerated as a demigod.
Pinochet may be spared trial, but his status as an indicted criminal will stand. His closest collaborators still face prosecution, not only in Chilean courts but also in other Latin American and European legal venues. The Bush Justice Department claims its investigation of Pinochet's role in the 1976 car-bomb murder of Orlando Letelier and Ronni Moffitt is still active. It should be pressured to follow through with an indictment. And a fearless Judge Guzmán continues his work in Chile. In early July he was reported to have issued letters to the US government requesting that then-Ambassador to Chile Nathaniel Davis and former Secretary of State Henry Kissinger reveal what they know about the murder of Charles Horman, one of two Americans killed in the opening days of the Pinochet dictatorship. As for Pinochet, now suffering from diabetes, "moderate dementia," dental woes and permanent public scorn, one can only wish him many more years among us.
The prospect of Slobodan Milosevic facing justice before the International Criminal Tribunal for the former Yugoslavia is a giant step. For the first time in history a former head of state will be tried for crimes against humanity and violations of the laws of war committed during his reign. Milosevic and his cronies must face judgment for the death and suffering they wreaked on the Balkans in furtherance of the delusion of a Greater Serbia. What concerns us at this point is that the trial be an exemplary one, fully upholding the ideal of an objective international tribunal capable of trying and punishing the crimes of war. There are signs that it will not.
For one thing, the indictment against Milosevic is primarily limited to the killings and ethnic cleansing in Kosovo that occurred after NATO's bombing campaign was launched. It is essential that Chief Prosecutor Carla Del Ponte bring the additional charges covering the war in Bosnia that she has promised. A trial limited to atrocities in Kosovo will raise the issue of the legitimacy of NATO's bombing campaign, which was undertaken without UN authorization and which not only Milosevic's supporters will argue led to much of the Serb violence that followed. Would the NATO powers release secret intelligence gathered at the time that could throw light on who ordered the massacres, as well as the strategy behind the bombing campaign? The point is that if this relevant evidence is withheld, the trial will be tainted and will fuel suspicions that it is designed to vindicate NATO's war.
The slaughter in Bosnia--the massacres of Muslims, the atrocities, rapes and ethnic cleansing--was far greater than in Kosovo,and the perpetrators, some of them still at large, must be punished. But bringing in Bosnia (or Croatia) will again open up the question of the role of the United States and the West. Their long support of Milosevic as the man to deal with in the Balkans should be aired in court. Will the governments in Washington and in other NATO capitals produce evidence from their files relative to their appeasement? Not that such information would exculpate Milosevic, but without it the trial will be perceived as victor's justice.
This leads to another question: Were the means and the timing of Milosevic's apprehension proper, in terms of the objectives of international law? A case can be made that they were not. In turning Milosevic over to The Hague, the Serbian government acted under the gun--a threat by the United States that it would veto promised foreign aid. This was a power play, not law. Also, the extradition violated Yugoslav law and bypassed President Vojislav Kostunica, who heads Yugoslavia's first freely elected government in many years. Undercutting the rule of law is no way to encourage a fragile democracy. It arguably would have been better for the Serbs themselves to try Milosevic first. As Kostunica said, "In order for the people to realize what justice is, it should be in their hands."
Ultimately, though, Milosevic should answer to the international community if the principle of prohibiting war crimes is to be upheld. But the reckoning must take place before a fully independent international court. In the long run, the world must move beyond ad hoc courts like the International Criminal Tribunal for the former Yugoslavia, set up for specific crimes, to an autonomous body like the International Criminal Court. Milosevic's crimes were against humanity and international law, not the United States and NATO.
In early June I sat on a panel, in front of a large and mainly Arab audience, with Thomas Friedman of the New York Times. Our hosts, the American-Arab Anti-Discrimination Committee, had asked for a discussion of contrasting images of the Israel-Palestine conflict. The general tempo of the meeting was encouragingly nontribal; there were many criticisms of Arab regimes and societies, and one of our co-panelists, Raghida Dergham, had recently been indicted in her absence by a Lebanese military prosecutor for the offense of sharing a panel discussion with an Israeli. However, it's safe to say that most of those attending were aching for a chance to question Friedman in person. He was accused directly at one point of writing in a lofty and condescending manner about the Palestinian people. To this he replied hotly and eloquently, saying that he had always believed that "the Jewish people will never be at home in Palestine until the Palestinian people are at home there."
That was well said, and I hadn't at the time read his then-most-recent column, so I didn't think to reply. But in that article he wrote that Chairman Arafat, by his endless double-dealing, had emptied the well of international sympathy for his cause. This is a very Times-ish rhetoric, of course. You have to think about it for a second. It suggests that rights, for Palestinians, are not something innate or inalienable. They are, instead, a reward for good behavior, or for getting a good press. It's hard to get more patronizing than that. During the first intifada, in the late 1980s, the Palestinians denied themselves the recourse to arms, mounted a civil resistance, produced voices like Hanan Ashrawi and greatly stirred world opinion. For this they were offered some noncontiguous enclaves within an Israeli-controlled and Israeli-settled condominium. Better than nothing, you might say. But it's the very deal the Israeli settlers reject in their own case, and they do not even live in Israel "proper." (They just have the support of the armed forces of Israel "proper.") So now things are not so nice and many Palestinians have turned violent and even--whatever next?--religious and fanatical. Naughty, naughty. No self-determination for you. And this from those who achieved statehood not by making nice but as a consequence of some very ruthless behavior indeed.
I am writing these lines in memoriam for my dear friend and comrade Dr. Israel Shahak, who died on July 2. His home on Bartenura Street in Jerusalem was a library of information about the human rights of the oppressed. The families of prisoners, the staff of closed and censored publications, the victims of eviction and confiscation--none were ever turned away. I have met influential "civil society" Palestinians alive today who were protected as students when Israel was a professor of chemistry at the Hebrew University; from him they learned never to generalize about Jews. And they respected him not just for his consistent stand against discrimination but also because--he never condescended to them. He detested nationalism and religion and made no secret of his contempt for the grasping Arafat entourage. But, as he once put it to me, "I will now only meet with Palestinian spokesmen when we are out of the country. I have some severe criticisms to present to them. But I cannot do this while they are living under occupation and I can 'visit' them as a privileged citizen." This apparently small point of ethical etiquette contains almost the whole dimension of what is missing from our present discourse: the element of elementary dignity and genuine mutual recognition.
Shahak's childhood was spent in Nazified Poland, the Warsaw Ghetto and Bergen-Belsen concentration camp; at the end of the war he was the only male left in his family. He reached Palestine before statehood, in 1945. In 1956 he heard David Ben-Gurion make a demagogic speech about the Anglo-French-Israeli attack on Egypt, referring to this dirty war as a campaign for "the kingdom of David and Solomon." That instilled in him the germinal feelings of opposition. By the end of his life, he had produced a scholarly body of work that showed the indissoluble connection between messianic delusions and racial and political ones. He had also, during his chairmanship of the Israeli League for Human and Civil Rights, set a personal example that would be very difficult to emulate.
He had no heroes and no dogmas and no party allegiances. If he admitted to any intellectual model, it would have been Spinoza. For Shahak, the liberation of the Jewish people was an aspect of the Enlightenment, and involved their own self-emancipation from ghetto life and from clerical control, no less than from ancient "Gentile" prejudice. It therefore naturally ensued that Jews should never traffic in superstitions or racial myths; they stood to lose the most from the toleration of such rubbish. And it went almost without saying that there could be no defensible Jewish excuse for denying the human rights of others. He was a brilliant and devoted student of the archeology of Jerusalem and Palestine: I would give anything for a videotape of the conducted tours of the city that he gave me, and of the confrontation in which he vanquished one of the propagandist guides on the heights of Masada. For him, the built and the written record made it plain that Palestine had never been the exclusive possession of any one people, let alone any one "faith."
Only the other day, I read some sanguinary proclamation from the rabbinical commander of the Shas party, Ovadia Yosef, himself much sought after by both Ehud Barak and Ariel Sharon. It was a vulgar demand for the holy extermination of non-Jews; the vilest effusions of Hamas and Islamic Jihad would have been hard-pressed to match it. The man wants a dictatorial theocracy for Jews and helotry or expulsion for the Palestinians, and he sees (as Shahak did in reverse) the connection. This is not a detail; Yosef's government receives an enormous US subsidy, and his intended victims live (and die, every day) under a Pax Americana. Men like Shahak, who force us to face these reponsibilities, are naturally rare. He was never interviewed by the New York Times, and its obituary pages have let pass the death of a great and serious man.
The Supreme Court, in the final week of June, handed down three decisions, each of which seems to endorse a valuable social principle.
In the first, involving the right of legal immigrants who have pleaded guilty to crimes in the past to a judicial review of deportation proceedings, the Court upheld the principle that no matter who you are, you are entitled to your day in court.
In the second case, the High Court affirmed the right of writers and artists to share in the wealth made possible by the new media. The case was brought by a group of freelancers who objected to the inclusion of their work in electronic databases without permission or remuneration; the group was led by Jonathan Tasini, the president of the National Writers Union and a man with an admirable mission.
In the third case, the Supreme Court made it more possible for Congress to provide correctives to the influence of money in politics by upholding Watergate-era limits on how much political parties can spend in coordination with candidates for federal office. Had the Court eliminated the restrictions, it would have legitimized the parties as cash-laundering machines for donors.
Left to be determined, in all three cases, are the appropriate remedies for the ills the rulings addressed, and the difficulty of fashioning these should not be underestimated. But it is heartening to see the Court acting in its proper role as the guardian of both the individual and society.
Last August, amid the final throes of President Alberto Fujimori's scandal-ridden administration in Peru, he bowed to US pressure and announced that Lori Berenson's conviction by a secret military court would be voided and that she would be granted a new civilian trial. Thanks to nearly six years of poisonous publicity, Berenson, who in January 1996 was sentenced to life in prison for "treason against the fatherland," was widely viewed by Peruvians as a gringa terrorista who had come to Peru to join the Túpac Amaru Revolutionary Movement (MRTA), an unpopular guerrilla organization. So when her new trial finally opened this past March, Berenson's supporters held out little hope that it would yield a just verdict.
As expected, on June 20 the panel of three judges handed down a conviction on the reduced charge of collaboration with terrorism. Sentencing Berenson to the maximum of twenty years in prison, the court declared that she was not an active member of the MRTA but neither was she a "mere spectator" in the house she shared in Lima with fifteen MRTA militants. Because of the more than five years she has already served, she is scheduled to be released in 2015.
As Peru's fragile democracy grapples with the legacy of Fujimori's war on guerrilla movements--carried out by notorious spymaster and former CIA collaborator Vladimiro Montesinos, recently captured in Venezuela after an eight-month international manhunt--Berenson's trial was an opportunity to show how far the country has come since the days of hooded military judges, doctored evidence, coercion of witnesses and trumped-up terrorism charges. Sadly, the answer turned out to be, Not far enough. In many respects Berenson's new trial was a vast improvement over the last--she was able to confront her accusers, her lawyers cross-examined witnesses and the proceedings were open to the public. But Peru's judicial system has yet to resolve the thorny issue of how civilian courts should deal with evidence that may have been tainted or even fabricated by Fujimori's ruthless antiterrorism police force. While hundreds remain in prison on the basis of no evidence at all, thousands more, like Berenson, are serving lengthy sentences as a result of circumstantial evidence and untrustworthy investigations [see Jonathan Levi and Liz Mineo, "The Lori Berenson Papers," September 4/11, 2000]. Peruvian courts must devise an approach to those cases that respects international standards of fairness and due process. In the absence of that, Berenson's pending appeal to the Peruvian Supreme Court is unlikely to succeed, although the court might decide to reduce her sentence.
Incoming President Alejandro Toledo, who could pardon Berenson when he takes office on July 28, disappointed her supporters when he said on a late June visit to the United States that he would not interfere with the court's decision. Toledo pointed out the need to respect the independence of the courts, but surely there is a difference between a president meddling with the judiciary to enhance his own power, as Fujimori did, and using executive authority to pardon someone denied a fair trial.
Granting clemency to Berenson and others like her is no long-term solution, however. Peru still needs far-reaching judicial reforms, beginning with the repeal of the draconian antiterrorism laws enacted in 1992. That would be an important step forward in the long process of exorcising the ghosts of Fujimori and Montesinos, and restoring the faith in government shattered by their corrupt rule.
I'm sitting in a drab back room in the Gaza Strip's Deir al Bala refugee camp, discussing the latest stage of the Israel-Palestine conflict with a half-dozen or so young Palestinian men.
When George W. Bush announced from Sweden on June 14 that he planned to pull the US Navy out of the Puerto Rican island of Vieques by 2003, it struck some as odd when he referred to the people of Vieques, all US citizens, as "our friends and neighbors" who "don't want us there." It was as though he was saying Puerto Rico is a foreign country.
In reality, Puerto Rico is a colony of the United States. A consequence of this is the situation in Vieques, where the Navy has reigned over people who at another period in history were simply subjects. But the people of Puerto Rico are also human beings with a right to live and prosper that brute force cannot deny. And the fact that they are US citizens makes them more than just the President's "friends and neighbors," and connects their plight to the United States in a very direct way that the President cannot ignore.
The struggle to force the Navy out of Vieques, which goes back sixty years to when the Navy first took over most of the small island, has gathered steam since the accidental killing of a civilian Navy employee two years ago. Besides the environmental destruction and resulting health problems associated with the Navy's presence, now there was an actual victim to mourn and organize around. The people of Vieques and Puerto Rico were outraged, and the consensus that emerged was dazzling for an island nation long divided about its political status.
The pro-statehood governor at the time, Pedro Rosselló, cut a highly unpopular deal with President Clinton to hold a referendum this November to ask the people of Vieques whether they want the Navy to leave by 2003. The action cost his party the gubernatorial race last year. Buttressed by protests on Vieques in the rest of Puerto Rico and by the stateside Puerto Rican community, the new pro-Commonwealth governor, Sila María Calderón, called for an earlier referendum, to be held at the end of July, and has led the movement to have the Navy leave Vieques immediately.
In addition to such opponents of the Navy bombings as Rubén Berríos Martínez, president of the Puerto Rican Independence Party, the move to oust the Navy has gained unlikely supporters such as singer Ricky Martin, boxer Felix Trinidad, actor Benicio del Toro and the new Miss Universe, Denise Quiñones August. Backing has also come from the African-American leadership, with Jesse Jackson and Al Sharpton joining the protest, and from Republican New York Governor George Pataki, whom Calderón recently endorsed for re-election even though she's a Democrat. Some of these unusual alliances result from politicians' perception of the growing clout of Latino voters and some from Puerto Rico's need for GOP support in Washington for federal funding for the island, which has no votes in Congress (it has a nonvoting resident commissioner in the House).
There were also lawsuits against the Navy by people like high-profile environmentalist Robert Kennedy Jr. and the arrests of more than 180 protesters in Vieques, including Sharpton and three New York Puerto Rican politicos. There was even a virtual protest that tied up the Navy's website for a while. The Vieques issue has gone mainstream.
Besides bringing environmental and health problems to Vieques, the Navy's presence has been an assault on democracy. The Navy has reneged on a succession of agreements it made with Puerto Rico to respect the environment and economy of Vieques and reinvest in its development. The treatment of the many protesters by Navy personnel has also brought criticism about the abuse of their rights, especially after prominent Puerto Rican officials and members of Congress were physically intimidated by the Navy, with unnecessary body searches and manhandling.
Another issue is the strong nexus between the US military and the federal judiciary in Puerto Rico, a politically unhealthy alliance that is probably more responsible than anything else for the inappropriate sentences given to many of those who practiced civil disobedience on Vieques. The federal judge meting out these harsh sentences, who is presiding over one of the major environmental and civil rights suits on Vieques, is Chief Justice Hector Laffitte, who represented the police officers who murdered Puerto Rican independentistas in the notorious Cerro Maravilla case in 1980. There has been widespread speculation about possible ties between him and the Navy, especially after his overriding of the established federal lottery system for assigning cases so that he could personally dispose of the ones concerning Vieques.
Bush's decision to stop the bombing by 2003 was an obvious concession to the fact that the people of Vieques would choose to do this anyway in the referendum. By eliminating the embarrassment of losing in a popular vote among the more than 9,000 residents of Vieques, Bush could save face and have the bonus of looking as though he was being responsive to the growing "Latino vote." The hard right in Congress and the media criticized him, however, for compromising US military readiness, while everyone else, including the odd duo of Senator Hillary Rodham Clinton and Governor Pataki, felt it was too little, too late, and called for the Navy's immediate withdrawal.
Meanwhile, the President's political expediency on this issue resulted in his undermining of the Navy's complaints about the lack of alternative training sites, which was the only compelling basis it had for arguing that it needed to remain in Vieques. Now that the Navy has resumed its bombing of the island, leading to further protests, we will soon see whether the contradictions of colonial administration in a postcolonial world will come home to roost. But whatever the outcome, it is clear that Vieques has become yet another symbol that the costs of empire may be too high even for the powerful in this new century.
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