I am deeply saddened by the news that lawyer Sam Buffone, a pathbreaker in the field of international human rights, has died. IPS collaborated with Sam for several decades in the pursuit of justice for two IPS colleagues, Orlando Letelier and Ronni Karpen Moffitt, who were assassinated in 1976 by agents of Chilean dictator Augusto Pinochet.
In 1978, Buffone and law partner Michael Tigarfiled filed a historic civil suit on behalf of family members of Letelier and Moffitt against the assassins and the Republic of Chile. It was the first wrongful-death suit filed in the United States against a foreign nation. After the 1990 transition to democracy, the Chilean government settled the suit. In 1992, the Institute awarded our annual Letelier-Moffitt Human Rights Award to Buffone and Tigar for this pathbreaking work.
As this obituary notes, Sam continued to pursue justice for Pinochet’s victims throughout his career. In 1998, Pinochet was arrested on an order from the Spanish courts. The Spanish case had been filed by Spanish lawyer Juan Garcés, a former IPS Associate Fellow, on behalf of victims. Sam helped support the effort to extradite Pinochet to Spain to stand trial. That effort was ultimately unsuccessful, but in 2005, Sam and Garcés teamed up again to successfully sue Riggs Bank for concealing and spiriting Pinochet’s money out of Great Britain in 1999. The bank wound up paying $9 million to victims of Pinochet. And when Pinochet died in 2006, there were about 300 criminal charges pending against him in Chile for numerous human rights violations, tax evasion, and embezzlement.
In 2001, IPS and the Washington College of Law (WCL) at American University co-sponsored a conference entitled “The Pinochet Precedent: Individual Accountability for International Crimes.” The conference addressed various legal obstacles encountered in the struggle to bring former Chilean dictator General Augusto Pinochet to justice and suggested new approaches for lawyers and human rights defenders in ongoing and future proceedings against individuals accused of violations of international criminal law.
At the conference, Buffone explained how, 25 years previously, the prevalent belief was that Pinochet was beyond the reach of the law because — as a former head of state — he had sovereign immunity for acts committed during his regime.
The concept of universal jurisdiction — the legal principle by which any country can prosecute certain international crimes, regardless of the nationality of the parties or the locus of the crime — was neither sufficiently developed nor commonly understood. In the wake of Spain’s request to extradite Pinochet from Britain, universal jurisdiction had gained increased recognition.
In his typical humble style, Sam Buffone downplayed his own critical role in this historic development in international human rights law. We will deeply miss his quiet, yet forceful passion for justice. Below is the speech Sam gave at the 2001 conference on the impacts of the Letelier-Moffitt case:
Before I begin to address what I’d like to principally address in my remarks—the role of legal proceedings, court actions, and international cooperation among lawyers in human rights cases—I would like to focus on what I think we should be addressing in this conference. One of the unfortunate outgrowths of the kind of analysis that we’re doing today is it emphasizes the extraterritorial reach of the Pinochet regime in cases like Letelier-Moffitt, in cases like Prats, in cases like Leighton, and it deflects attention from the overwhelming vast majority of the terrible heinous crimes that occurred in Chile. The murders, the tortures, the systematic erosion of democratic government, the political genocide that were the hallmarks of the Pinochet regime are the crimes that he must be held responsible for. Cases like Letelier-Moffitt, as important as the quest for justice is, are but a vehicle. There cannot be a calculus that can compute which of the crimes is somehow worse than the others. I apologize for my remarks in advance to the extent that they attempt to emphasize this part of it.
You’ve already heard from two speakers about the terrible events here in Washington, D.C. in September of 1976. One of the outgrowths of the bombings in Sheridan Circle was that it framed for many in Washington, DC—policy makers, those in government, those in NGOs, students and everyday citizens—the fact that these types of terrorist acts could in fact be brought to visit on individuals much like themselves here in Washington, DC. And this explains why for over 25 years, there has been a well of strength here in the Capital: individuals who’ve been willing to come forward and speak out and act in ways to ensure justice here.
Fortunately, much of that action was channeled through legal proceedings that were successful. Because I must say the at the beginning of each and every one of these proceedings, culminating in the extraordinary work that Juan Garcés did in Spain and in London, both the legal community and most of the public said that they were doomed to failure. And the legacy of the Letelier-Moffitt case is that these vehicles which originally started out as a laughing stock of international lawyers have turned to accepted principles of international law in a relatively short period of time.
So let’s go back to what happened in 1976. When Michael Tigar first began representing the estates for Orlando Letelier and Ronni Moffitt, the thought was that there would not be a full and vigorous investigation by the United States government. And the only way to ensure that investigation would go forward was to have a vehicle by which the families could institute their own legal action.
And the then-newly passed Foreign Sovereign Immunities Act was utilized in the complaint that Michael and I drafted against the Republic of Chile and the responsible individuals to sue them for monetary damages for planning and carrying out the Letelier-Moffitt assassinations. This began the 25 year immunity wars. It’s important to recall that the litigation began with fights over soveriegn immunity. And those same battles over immunity would extend into the House of Lords and eventually the decision of the House of Lords stripping Augusto Pinochet of his immunity. But the first step was an act of the United States Congress and a Judge in the Federal District Court here in Washington, DC who was willing to recognize that the Chilean state, by engaging in acts of international terrorism in the United States, had stripped itself of sovereign immunity. The Chilean state refused to appear in that civil proceeding. They appeared through a Washington, DC law firm in diplomatic notes authored through the Chilean embassy.
An in-abstencia proceeding was conducted where the Federal District Court here entered a monetary judgement against the Republic of Chile. Once that award was entered, we were then left with the task of enforcing it. This was stage two of the immunity battle. We went to New York and attached all of the Lan Chile aircraft and ticketing accounts owned by Lan Chile using US Marshalls. And for approximately 48 hours, Michael Moffitt was the receiver of Lan Chile.
At that point, the Chilean Government chose to bond out of the proceedings so that the planes would be released. They posted a multi-million dollar bond. Eventually the US Courts held that while Chile was not immune from liability, they were immune from attachment of any of their assets. So we were left without a remedy.
We then began to lobby Congress to amend the Foreign Sovereign Immunities Act to provide a remedy. And that bill was passed through the United States House of Representatives, and it appeared that we had the political force to pass it through the United States Senate. At that point, the State Department negotiated a compromise with us. They were violently opposed to the legislation. If we would withdraw our legislative effort, they would invoke a 1914 treaty negotiated by William Jennings Bryan with the Chilean government—a bilateral arbitration treaty—that had only been used once since 1914. It had been invoked by then Interior Minister Orlando Letelier over the seizure of the copper mines in Chile.
The United States dusted off a procedure that hadn’t been used since the civil war and took over the claims of U.S. citizens—in this case, Orlando’s children who were born here, and the estate of Ronni Moffitt—and brought the claim sovereign to sovereign. A special international court was formed, and they litigated the civil liability of the Republic of Chile in front of that court. And about this time, the democratization in Chile was proceeding, and the election of the Alwyn government occurred. Through a series of then off the record meetings, we negotiated a second arrangement, this one with the Chilean government, where they agreed that they would publicly recognize the Chilean government’s responsibility for the assassinations. They would submit to the international tribunal and pay any judgment that resulted and would continue with their prosecutions of Contreras and Espinoza. They held true to all three of those.
The next major event was the effort of the US Government to support the Chilean government in its prosecution of Contreras in Espinoza and ultimately their imprisonment. A political event that maybe many of us forget how politically charged it was in Chile and what a significant event it was for the emergence of an independent judiciary, civilian control over the military and the redemocratization in Chile.
At about this point, I think most of the lawyers in the United States certainly myself were packing up the files and deciding that this matter was over because we believed that General Pinochet was beyond the reach of justice as it was available at that point. I was at that point visited by Dr. Garcés in my office in Washington who educated me about the reach of Spanish civil and criminal law, about the possibilities of universal jurisdiction.
I began working with Dr. Garcés at that point. Our first effort was to obtain documents from the United States government through letters rogatory that would be of assistance in the Spanish proceeding. That eventually led to an agreement with the United States government to declassify, a systematic declassification, of Chilean human rights documents. Much of what you’ve seen processed by the National Security Archives. The documents that have been released have proven so valuable in any number of cases, that was all motivated and brought to pass because of the Spanish proceeding in an effort to mesh the legal proceedings in the US with those that were going on in Spain.
At the point where the arrest of General Pinochet occurred in London, I think that attempt to marry those two efforts came to full fruition and the lawyers in this country began working closely with their colleagues in London and Spain to make sure that now that there actually was a real proceeding against General Pinochet where there was a court with physical jurisdiction over him, that everything possible was done.
I won’t dwell on the lengthy legal proceedings in London other than to say that the precedents that were established there on immunity from prosecution by former heads of state I think are perhaps the greatest victory and the most lasting legacy, I would hope, of the entire Pinochet matter.
A word about current status and lessons that I hope we can all draw from what has occurred so far. First, I remain optimistic that the United States Government will continue with its efforts to domestically prosecute General Pinochet. The United States has jurisdiction over General Pinochet for an act of murder that occurred here, the Chilean government has recognized the territorial jurisdiction of the United States over the assassination in the Letelier-Moffitt cases. The Justice Department, as you heard from Dr. Garcés, sent investigators to Chile, has been involved in an active investigation of Gen. Pinochet’s responsibility for quite some time. And we’re very hopeful that the new administration, once the head of the Criminal Division takes office, will reinvigorate that investigation and bring it to a quick indictment.
The release of documents by the National Security Agencies in this country, by the State Department and to a lesser extent by the Justice Department, was a watershed event in the Letelier-Moffitt case, although not inconsistent with a growing trend of the United States government to both request that foreign governments declassify and publicly produce their documents related to human rights abuses and at least a modest willingness on behalf of the United States to do the same. I think we need to recognize that whatever strength there are to judicial proceedings to prosecute human rights cases, they are no greater than the political willingness of the governments to stand behind those prosecutions, to support an independent judiciary, and to come clean with their involvement in these very acts. I would hope that the release of documents in the Letelier-Moffitt case and the Chile Declassification Project will become a first step in an evolving model, not only for release of documents here, but for the release of documents on an international basis. That every government that was involved in Cold War excesses, that every government that has documentary or physical evidence about those excesses, should come forward and provide an archive and a basis for ongoing proceedings so that everyone will understand exactly what happened and who was responsible.
I support a much broader effort by the United States government to adopt the proceedings of the Rettig Commission in Chile, its own truth and reconciliation model, which the South Africans so brilliantly built upon and for us to undertake in the United States a truth and reconciliation process where we look in depth and objectively at not only our involvement in the destabilization and terrible events that occurred in Chile but elsewhere in the world during the cold war. With that kind of an informational basis, with that kind of a political commitment that can only come from full disclosure and the kind of introspective process that truth and reconciliation brings can judicial proceedings be possible or appropriate.