The Pinochet Ricochet

by Coletta A. Youngers

The Nation magazine, May 8, 2000

 

Retired intelligence agent Tomas Ricardo Anderson Kohatsu is not internationally known, as is Chile's Gen. Augusto Pinochet, but in his native Peru his reputation as a psychopathic torturer is notorious. He could have become the first foreigner to be prosecuted in the United States for torture if the State Department hadn't intervened and assured his safe passage back home.

The case against Anderson is solid. Fellow army intelligence agent Leonor La Rosa Bustamante fingered Anderson and several lower-level officials. Raped, beaten and prodded with electric shocks for having allegedly leaked sensitive information, La Rosa was left permanently disabled. In addition, extensive testimony provided to a Peruvian government commission reviewing cases of innocent people jailed on terrorism charges also implicates Anderson in acts oftorture. Retired Gen. Rodolfo Robles, who has earned the wrath of the Peruvian military for revealing information on human rights abuses, claims that Anderson was among those who attempted to kidnap and disappear him in 1996.

Hence the shock of human rights groups when the Peruvian government's unidentified witness in a case presented on March 6 before the OAS's Washington-based Inter-American Commission on Human Rights turned out to be Anderson, who was brought as a character witness to discredit the testimony of Luisa Zanatta, another former army intelligence agent, on widespread wiretapping by the Peruvian intelligence services. (Zanatta, now in exile in Miami, also implicated Anderson in the La Rosa case.) The commission sat in stunned silence while Anderson gave his testimony. After the session, a Peruvian OAS official called Lima on his cell phone and announced, "Mission accomplished."

The mission, however, was not over yet. Peruvian and USbased human rights groups immediately petitioned the Justice Department to arrest Anderson under the Torture Victim Protection Act, which allows for the extraterritorial prosecution of torturers. An international convention also establishes extraterritorial jurisdiction over torturers. On March 9, as Anderson's plane was about to depart Houston, FBI agents detained him for questioning while Justice Department lawyers deliberated as to whether they had probable cause to issue an arrest warrant. They decided that they did. Human rights activists involved in the case were elated. Then the State Department intervened.

In consultation with State Department lawyers and under pressure from Peruvian officials, Under Secretary of State Thomas Pickering (in charge while Madeleine Albright traveled abroad) determined that Anderson enjoyed diplomatic immunity, precluding legal action against him. But Anderson is not a diplomat and was traveling on a visa that did not allow for diplomatic immunity. According to constitutional lawyers, the 1975 OAS-US agreement cited by State Department officials as part of their justification for their decision applies only to OAS diplomats residing in Washington, which Anderson clearly was not. In short, Pickering let politics take precedence over law, and Anderson was released at 3 AM on March 10.

Justice's willingness to prosecute in this case sets an important precedent. Moving beyond the principles established in the Pinochet case, Justice signaled that not only notorious heads of state or high-level officials but also those who do their dirty work can face prosecution abroad. Finally, an important message was sent to the Peruvian government that its torturers and other human rights violators may not be welcome in the United States.

By overriding the Justice Department, Pickering made a mockery of the State Department's alleged commitment to human rights and international human rights organizations. What credibility can US officials have in advocating harsh condemnation of Cuba and other countries before the United Nations Human Rights Commission when the State Department has ignored domestic and international law to avoid a politically uncomfortable situation? What credibility can the US government have advocating prosecution of those who have committed human rights atrocities in Bosnia or Rwanda when it fails to prosecute those who end up within its own borders? If the United States was not willing to enforce the law in this cut-and-dried case, can it enforce the law in a future case? And what credibility does it have criticizing setbacks to democracy in Peru under the authoritarian government of Alberto Fujimori when it puts one of its most feared agents of repression back on the streets of Lima?

 

Coletta A. Youngers is a senior associate specializing in the Andean region of South America at the Washington Office on Latin America.


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