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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