The Consul at Arica (Von Tresckow) to the Secretary of State
[Received February 13—10:10 a.m.94]
(1) Department’s February 4, 4 p.m. The Peruvian Commissioner called on me yesterday and in substance stated that his Government wanted statement from him on whether conditions here would permit a fair plebiscite; that Peru would have to spend large amount of money to get its thirty-five hundred or four thousand voters into the territory; that conditions for obtaining protection or for establishing conditions consistent with fair plebiscite looked hopeless; and that there was only brief time remaining before plebiscite was supposed to begin.
In reply I said that it had been my view that we must push forward, start the registration, and do all that is possible to carry out the plebiscite. He asked if it were necessary to sacrifice a number of Peruvians in order to have evidence on conditions. He then proposed a long postponement to see whether conditions could be improved and stated, in reply to question from me, that if postponement were not accorded Peru would probably withdraw from plebiscite. I said that I could not see what could be gained by a postponement, for the situation would only become still more embittered, and I assured him that question he raised was one to which I was giving deep consideration, but on which I did not yet have an opinion to express, and that in meantime I was endeavoring to expedite carrying out of the plebiscite.
(2) I do not think that Señor Freyre will embarrass me by presenting and pressing motion looking either toward long postponement or toward abandonment of plebiscite without giving me reasonable notice; but were he to present such a motion and to press for a vote, I should be in most difficult position. For that reason it seems essential that I should have Department’s views at earliest possible moment that is consistent with adequate consideration and after full consultation with General Pershing.
(3) In telegram of February 4 Department appears to indicate that in contingency of Peruvian motion to abandon plebiscite on ground that conditions did not permit fair plebiscite, I should vote against it; and after appeal had been taken to Arbitrator and rejected and Peruvians had withdrawn, that I should appoint some one to replace [Page 289] Peruvian Commissioner and go ahead. Should this happen, subsequent proceedings would consist chiefly in recording Chilean vote, and from my previous committal I would then be expected to vote in favor of certifying to Arbitrator that result be accepted. I could not do this, and, moreover, I do not believe any acceptable person could be found here who would be willing, under these conditions, to act as Peruvian Commissioner.
(4) It is quite plain to anyone on ground that under existing conditions what we would call reasonably fair plebiscite is entirely out of question. This situation results from fact that one party to controversy is in complete control of territory; that deepest animosities are intense; that nationalistic sentiment is deeply stirred; and that local authorities are not only not making any serious effort to maintain law and order so far as plebiscitary matters are touched, or matters affecting citizens of the other party in accordance with treaty obligations, but are instead hand in glove with the lawless elements in whom reliance is placed to win plebiscite, and who in turn rely confidently upon these same authorities to protect them from any punishment for acts of violence and intimidation which they commit. It follows that that party to the controversy not in control of the territory is constantly under threat of intimidation, besides having its partisans constantly subjected to persecution and to interference of various kinds, many of which are violent in nature.
(5) My deep personal conviction is that these conditions can not be changed by anyone, and that the sooner we stop proceedings and eliminate constantly increasing bitterness and the mounting expense of further prosecution of the plebiscite, the better it will be for the relations between Chile and Peru, for the suffering Peruvians here, and for our own prestige.
(6) I am aware how bitterly this conclusion will disappoint the Department and the Arbitrator, and how much they hope that Mr. Mathieu’s advent to the Chilean Ministry for Foreign Affairs will bring about such an improvement of conditions as will make possible a fair plebiscite, and I shall cheerfully subordinate my opinion to Department’s as far as I can without impairing my usefulness to the Department and the Arbitrator. For this reason I suggest the following final effort to save plebiscite and to meet, as far as can be met, the views of the Department.
I appreciate that what I am about to recommend, though less vigorous than is required, in my own opinion, still does not conform to views expressed in Department’s telegram of February 4; but I feel that I should be shirking my duty to the Arbitrator did I not frankly and fully submit my recommendation together with my reasons for making it.[Page 290]
(7) As immediate action is necessary in this case, it is my opinion that I should have personal and informal conversation with Chilean Commissioner (either Mr. Edwards or his successor) at once, go over entire situation with him in spirit of frankness and candor, and say to him that unless an immediate and radical change of conditions in the province is brought about and maintained, I shall be obliged to present in the Plebiscitary Commission and to press for immediate passage a resolution declaring in substance that Chilean authorities in Tacna-Arica have frustrated the free, fair, and orderly plebiscite which was contemplated by the award. If the Department approves my proposal it could at same time communicate in the same sense with Chilean Minister for Foreign Affairs. I repeat that I do not believe that even with best of intentions will Mr. Mathieu be able to cope with the political situation and to reverse currents now running; but to give him the opportunity to do so under stimulus of kindly and wholly confidential communication which I suggest, seems to me to be the last untried expedient for carrying out plebiscite under the award. My advisers are in accord with this plan.
In support of my proposal I wish to add the following:
(a) Issue should be faced now rather than later. It was my original view that we should press ahead to a conclusion or until situation became wholly impossible, but I see plainly now that that would mean assumption of very great responsibility without corresponding increase in chances of successful outcome. Many people in this territory already have suffered greatly from the efforts to carry out the plebiscite. If it is persisted in under conditions obtaining at present and the Peruvians do not withdraw, there will be bloodshed, suffering, and probability of ending in midst of serious disorders. If Peruvians withdraw for reason that they can not obtain adequate protection, then plebiscite would be farce and I could not put my name to it; hence no good purpose is fulfilled by going blindly ahead, hoping something will turn up, and steadily adding to bitterness between the two parties, thus risking either a wreck or a justified Peruvian withdrawal.
(b) In regard to legal difficulty in stopping proceedings now, provided that conditions are not radically changed, rather than to wait until plebiscite has been held and then declaring it void, the opinion of my legal advisers is that Plebiscitary Commission and Arbitrator have the power to decide that Chile has frustrated the plebiscite without waiting for actual election, and in support of this view they submit following considerations:
- There is, it is true, no express term in award providing for
abandonment of proceedings because in opinion of Plebiscitary
Commission or of Arbitrator conditions will not permit fair
plebiscite to [Page 291] be held.
Arbitrator could not readily foresee or make express provision
against deliberate failure to maintain order and to accord
Peruvians in plebiscitary territory equal protection of the law.
While the Treaty of Ancon provided for a plebiscite, it did not
expressly require Chile not so to govern the territory as to
frustrate a plebiscite; Arbitrator, however, found no difficulty
in holding that there was implied condition to that effect.
Likewise, when the litigant parties submitted their difficulties
to Arbitrator “without appear” there was implied agreement to
abide by his award and not to frustrate it. The Arbitrator has
expressly held that:95
“The determinations and requirements of the Commission taken in the exercise of the full authority thus conferred by the award constitute conditions of the plebiscite with the same force and effect as if prescribed by the Arbitrator directly under the submission, and these conditions are binding upon both sides. From the very moment of its organization, the conditions for the holding of a fair plebiscite in Tacna and Arica became the primary concern of the Plebiscitary Commission,” and “The agreement of Chile and Peru that the Arbitrator should establish the conditions of the plebiscite carried with it the undertaking to abide by these conditions, and these conditions prescribed by the award include, as has been said, the requirements made by the Plebiscitary Commission [under the] authority conferred by that [the] award … and if these circumstances [conditions] are not observed by either party the responsibility must rest upon the party or parties to which the failure may be attributed.”
- The prerequisites resolution, for which there was believed to be authority, was passed by the Commission in order to give effect to the implied duty of the party governing the territory to govern it in such a way as to admit of a fair plebiscite. That resolution has been only partially complied with and the hoped-for change in conditions has not been effected. The next logical step is notice that plebiscite will be abandoned unless conditions are changed, and actual abandonment if there is failure to respond. Legal justification for this course rests on same basis as prerequisites resolution. Contention could hardly be made that Commission is compelled to proceed to election if one of conditions expressly prescribed by Arbitrator, e. g., enactment of legislation in aid of plebiscite, were disregarded by one of parties to it, but there is no legal or logical difference between disregard of express conditions and a disregard of implied condition to maintain law and order in the plebiscitary territory and not to frustrate a fair plebiscite.
- Arbitrator has held that Plebiscitary Commission’s complete control over plebiscite is not limited by enumeration of particular powers. Reasoning analogously, Arbitrator’s power to enforce implied condition that award should not be frustrated is not limited by specific provision for setting aside election tainted by bribery, intimidation, and fraud.
- To concede that physical obstruction of Commission would justify decision that plebiscite could not be held, is fatal to contention that similar decision could not properly be rendered in clear case when physical obstruction in question is somewhat more remote, consisting in such intimidation of voters as to make obvious in advance the impossibility of holding fair election.
- To concede that Arbitrator, upon setting aside a particular plebiscite as void, has power to decide that further plebiscite is impossible because actual conditions prevent just expression of will of electors, is to admit, a fortiori, that analogous power exists before plebiscite. It is submitted that existence of this power before a plebiscite is supported by plainest implication, whereas its existence after plebiscite, while it is also implied, is not so clear, as language of the award, directed specifically to consequence of a just plebiscite having been thwarted by improper conditions, provides expressly for only one remedy; namely, to proceed again to plebiscite within three months. (Award p. 49.)
- The law does not compel doing a useless thing, particularly at cost of blood and treasure.
(c) The party in control of the plebiscitary territory, instead of complying with the implied condition to abide by award and not to frustrate a fair plebiscite, has throughout acted and continues daily to act in bad faith and in flagrant disregard of the award.
(d) After the Tacna outrages of January 6, General Pershing wrote a personal letter to Edwards requesting prompt, adequate, and public punishment of guilty. In reply Edwards promised everything in general terms and the matter was referred, on his motion, to a Special Tribunal created by Chile under award. This Special Tribunal has now whitewashed the proceedings with a verdict which admits that Chief of Police had two hours’ notice of arrival of Peruvians and of probable attacks on them, and that he had 47 policemen and secret agents at and about station, but finds that police did their full duty to quell mob (which, according to judge’s figures, contained at start only about six persons to one policeman); that police were too busy protecting Peruvians to make arrests, and there is insufficient evidence to convict anyone. Large part of Special Tribunal’s opinion is devoted to case against Peruvian General Pizarro which is judged not proven, apparently on theory that this forbearance offsets failure to convict members of the mob. So the principal Tacna outrage of January 6 is to go unpunished, while Edwards maintains in the Commission that Tribunal’s decision must not even be discussed.
The Tribunal found four workmen guilty of attack on Captain Rotaldi and his companions on evening of January 6, and sentenced three of them to 4 years’ imprisonment in the south, which means banishment to Santiago. It remains to be seen whether they ever serve their sentences.
(e) Of minor importance as compared with Tacna affair are other attacks on Peruvians of daily occurrence. I have just referred to Special Tribunal two incidents which took place in Arica on February 2, one involving serious injuries to several Peruvians. At cost of 2 days’ delay the judge returned the papers because three unimportant documents were not translated into Spanish. In his Tacna decision he [Page 293] maintains that a 6 days’ delay (caused by Edwards’ absence) contributed to failure to obtain convictions.
(f) Investigation of alleged deportation of Ramos, a Peruvian, has gone far enough to convince any reasonable man acquainted with situation here that Ramos was deported in January to Iquique. One of the Chilean secret service agents who assisted in the deportation now asserts that Ramos, who refused to leave, was helped away in order to escape Peruvian persecution. Ramos, brought here from Iquique under subpoena, denies this statement, and says he was forced to leave by Chilean agents. It is quite unbelievable that this sort of thing can go on apart from knowledge and approval of higher authorities. Our consul at Iquique informs me that at present no Peruvians are permitted to leave there for the north. This measure is not a matter of written instructions but is enforced by rigid police surveillance at the pier.
(g) No decision to abandon plebiscite either before or after an election can ever be based on anything but “a disputed issue of fact”; and, with due respect, I submit that we are in much better position to join issue on facts now than we will be if we are induced to proceed to registration and election, when, even if we escape disaster and Peruvian reproach, it will be said that we have condoned everything up to day of election and that we can not prove sufficient fraud and intimidation were used on election day to invalidate the result. It will be impossible ever to show adequately the situation here by record evidence while far greater part of native witnesses are living in abject terror and foreigners here are under pressure to safeguard personal and business interests. As far as I know, no American who has served with Plebiscitary Commission thinks that under present conditions a fair plebiscite can be held.
(h) I believe that should Department be called upon to consider problem of Peru’s withdrawal and its justification, it should be borne in mind that up to the present Peru has been kept in this arbitration, first, by Arbitrator’s assurances in his ruling and observations of April 9, 1925,96 to effect that the powers of the Commission as provided in the award are ample to guarantee full assurances of personal protection to every qualified voter, as well as the assurance that his vote may be freely cast and that it will be freely counted, and by fact that the President has chosen a Commissioner who in his character and personality embodies every guarantee; and, second, by repeated personal assurances, which I understand have been given the Peruvians by General Pershing and his advisers, that fair conditions would be established before proceeding to registration and election. [Page 294] It was believed that these assurances accorded with views of Department and of Arbitrator. To tell the Peruvians at this juncture that they must go through with the election regardless of conditions and trust to having election held void because of conditions which are perfectly patent now, instead of telling the Chileans that they must change these conditions, will, I am firmly convinced, put the American delegation in a humiliating and an impossible position.
(i) If and when necessity of saying that there can be no plebiscite becomes unavoidable, I recommend that statement be made in such a way as to cause minimum of bitterness and of prejudice to our subsequent relations to the parties to the plebiscite, while at same time we fulfill our judicial duty and follow out logic of the award. I do not think that any elaborate fixing of responsibility should be attempted, but that Plebiscitary Commission should say in effect that as party holding the plebiscitary territory has failed to establish and maintain conditions which would permit of a fair plebiscite, the Commission is convinced that reasonably fair plebiscite can not be held, and reports in this sense to the Arbitrator. If a resolution of that sort by the Commission were approved by Arbitrator it would effectively dispose of question of plebiscite and leave way open for further good offices in other directions in connection with further efforts to arrive at solution.
(j) In meantime everything that American delegation can do to expedite plebiscite is being done, but exasperating delays continually arise as agreements between the two litigant parties have to be reached every step of the way. About 20 of Canal Zone registration officers will arrive soon, and 60 more are to sail on February 12.
(8) I had another interview with Peruvian Commissioner after the above was drafted, and I pointed out what an unfortunate impression would be created if they were now to default or were to show intention of prolonging proceedings unduly; I expressed the opinion that the thing to do now was to get qualified voters into the plebiscitary territory as quickly as possible and to push forward all necessary procedures for registration. The Commissioner said that his Government could see no possibility of obtaining protection for its nationals; that practically none of guarantees asked for has been granted; that plebiscite voters in Peru were terrified by the stories which had been received there on conditions in the provinces, and that Peruvian Government was very loath to take part in a game where opposing player held all the cards. I replied that matters having gone as far as they have, issue should now be joined and conclusion reached, even if it meant blood, sacrifices, suffering, and much expenditure of money. I said that I could not commit myself in any way whatever except to say that in the end I would not certify to the result as acceptable [Page 295] unless I believed the plebiscite to have been conducted with reasonable fairness, under the circumstances, to both Chile and Peru. The Commissioner said he would communicate with his Government. I took this step, I may say, in connection with part (7) of this telegram, and it does not imply any modification in further steps that program calls for. Lassiter.