When Rule of Law Becomes Rule of the Lawless

*Published with the generous permission of Ruth Ben-Ghiat. Read all of her important writing at her Lucid newsletter.

By Ruth Ben-Ghiat

With ongoing legal developments in mind, this week I focus on a case study of the horrors that ensue when the rule of law is replaced by rule by the lawless. That case study is Chile during the United States-backed military dictatorship of Augusto Pinochet. It lasted seventeen long years (1973-1990) but the scars of those tortured and forced into exile, and the pain of thousands of families that lost loved ones to murders and disappearances, lived on even once freedom was restored.

Law was at the center of the destruction of democracy in Chile: complicit judges and prosecutors transformed the law from "a shield for individual rights into a weapon of persecution," as Pamela Constable and Arturo Valenzuela note. But spaces of legal opposition remained, such as the legal actions on behalf of families of the disappeared filed by lawyers connected with the Catholic Church's Vicariate of Solidarity, which operated under the authority of the Pope and the Archbishop of Santiago.

And once the regime ended, international and domestic legal actions starting in 1998 shattered Pinochet's immunity and the myth of his invincibility. He was placed under house arrest while visiting London for crimes against humanity, and although he was allowed to return home on grounds of ill health, he had by then been accused personally of human rights violations in a lawsuit brought in Chile.
While Pinochet died before he was convicted of any crime, the hundreds of cases open against him made it far easier to hold his many collaborators accountable. By 2007, dozens of Army Generals and close to 500 officers and former DINA agents had been prosecuted, and 800 more would be held to justice by 2015.

Law can make authoritarians untouchable while they are in power, but trials and legal actions once they are out of office can bring justice, solace, and some measure of closure, even though those whose lives these leaders cut short can never be returned to us.  

It is doubly important to call out how law justified the Chilean junta's violence and suppression of rights terror because Pinochet is a hero of today's far right for his use of extrajudicial violence. The popular slogan on this Patriot Prayer leader’s shirt, "Pinochet did nothing wrong," whitewashes the junta's crimes against Chilean leftists and defenders of democracy while also declaring that those crimes were fully justified.

When a state rejects international norms regarding human rights and develops a legal framework to legitimize the use of violence, those who commit the most depraved and illegal acts in service to state goals are doing "nothing wrong" within that specific political context.

Even better if the considerate dictator pardons "authors" and "accomplices" of crimes and "concealers" of those crimes --those who remove human rights abuses from military and police service records. That's what Pinochet did with a 1978 amnesty. Then the claim of "doing nothing wrong" can become part of the collective memory about the dictator and his enablers.
The dissolution of the rule of law in Chile was particularly shocking because Chileans thought they had escaped the fates of their Latin American neighbors. Chile remained democratic as authoritarian takeovers took place in Guatemala and Paraguay in 1954, Brazil and Bolivia in 1964, and Argentina in 1966.

All of these coups were justified by the Cold War National Security doctrine espoused by anti-Communist democracies like the United States, which legitimized regime change in Latin America, along with torture and mass murder of leftists, with the excuse of containing Soviet influence.

“Our aim is to normalize and heal the country,” Pinochet told journalists ten days after the September 11, 1973, coup, adding that he couldn’t say when the state of emergency would end. “It’s like when you amputate the arm of a sick person, it’s hard to predict how long they will take to recover."

Of course, there was no recovery possible for the multitudes who were killed in the first months of Chile's reign of terror. As tens of thousands of Chileans went into exile, the junta suspended civil rights and carried out mass arrests of leftists. Prisons and detention camps filled; the Red Cross counted 7,000 people in Santiago’s National Stadium, its locker rooms turned into torture spaces.
The junta justified the repression as the state’s defense against “foreign agitators” who were "in the country illegally," but Chileans, not foreigners, were the vast majority of those targeted. General Manuel Contreras and other officials traveled in helicopters to hunt down prominent figures from the government of deposed Socialist leader Salvador Allende, killing almost 100 people. They hid victims’ bodies in mine shafts or dumped them from the helicopters into the sea.

The “Caravan of Death" produced some of the first “disappeared” in Latin America and is the context for the "helicopter ride" memes popular among today's far-right. Recently Rep. Mike Collins (R-GA), a member of the Freedom Caucus and an anti-immigrant zealot, posted this about an immigrant on his official U.S. government account: "Or we could buy him a ticket on Pinochet Air for a free helicopter ride back" (the post was deleted but you can read it here).

If Trump returns to office, Collins would likely be a front-line advocate of normalizing extrajudicial violence for use on "state enemies."

That's what happened in Chile, where a military known for its rectitude quickly became subordinated to Pinochet’s agendas of transforming the law into an ally of state repression. The military duty to serve the head of the country, no matter what he did, played a role in compliance. So did the fear of being purged. Dictators love to "make an example," and in 1974 Air Force officers accused of treason were brought to court in chains for extra psychological effect.

Many conservative judges and lawyers welcomed the coup, and accepted a state of juridical exception that included using military tribunals to judge political crimes by civilians. Pinochet also coopted elites by giving important judges and members of the Supreme Court cars and drivers; armed forces officers got education and housing loans.

Years later, a former military prosecutor reflected on this collective complicity. His words can be a warning for us today, given Trump's stated desire to use the U.S. military on civilians. 

“We believed in the letter of the law, and we tried to do our jobs well, but the whole system seemed to have gone insane. People were tried for war crimes even though we weren’t at war…We all went along with it, because we were afraid of losing our jobs...we all became part of it. Nobody escaped.”

The consolidation of authoritarian legal orders may happen bit by bit, as in Viktor Orban's Hungary, or quickly, as in the aftermath of a coup. But once law is converted into an instrument of authoritarianism, rule of law gives way to rule by the lawless, and it can take years to restore the integrity of justice and hold perpetrators accountable.