Notes from Judge Guzman's CLAS Lecture Truth, Justice And
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Notes From Judge Guzman’s CLAS Lecture Truth, Justice and Reconciliation in Chile Truth A wounded country needs the truth. It needs to know the truth about what happened in the past; the truth about the practice of torture; the truth about the fate and location of the disappeared. The families of the disappeared need to find the bodies of their loved-ones, although many times the bodies will never be found. Those who have survived repression and who suffer physical and psychological wounds need also to speak the truth. Only through truth is it possible to achieve justice. Justice Justice, in the ideal sense, involves restoring things to the way they were before a crime was committed. But when the crimes consist of crimes against humanity, like abduction, torture, murder or forced disappearance, things cannot be restored. So there is a need for retribution. Every crime deserves a punishment because punishment is critical to restore social peace. Justice, in the sense of criminal sanctions, becomes necessary to make reconciliation possible in a country that has suffered crimes against humanity. The Possibility of Reconciliation First of all, one must ask if reconciliation is possible in a wounded society. In a civil war, when two factions of society have fought and after peace has been achieved, the bodies of the killed can be restored to their families. The families can mourn and bury their loved-ones, and reconciliation becomes possible as there is the will to forget the past and to pardon. But in an occupation or a repressive dictatorship where there has been abduction, torture, murder and disappearance, the situation is different. It becomes necessary to prosecute agents of the state, to find the disappeared, and to make gestures of reparation to restore the dignity of the victims (for example: the creation of a monument to honor the victims). But even then, the road to reconciliation is a long one. And it requires justice. The Search for Justice in Chile Complete Blindness, 1973-1978 In Chile, the search for justice has passed through three phrases and is now in a fourth. I can call the first phase as the phase of complete blindness. It involved absolute denial of the repression and complete impunity for human rights violations. During this period, from the coup on September 11, 1973 to the imposition of an amnesty law in 1978, the military and the secret police, or DINA, waged war on the enemies of the dictatorship. On the day of the coup, the armed forces bombed the presidential palace, the Moneda, and raided factories, universities and poor neighborhoods. There was only isolates resistance in some towns. The military rapidly took control of the country. But the killing did not end. The military executed hundreds in the National Stadium and other detention sites and in communities around the country. And when it looked like some officers were prepared to show mercy to prisoners, General Pinochet sent hard-line officers on the infamous Caravan of Death. The Caravan of Death showed the real meaning of the coup: it was to kill enemies but also to harden the soldiers. Soldiers who were not harsh with prisoners were themselves considered enemies. A few months after the coup, General Pinochet created the Department for National Intelligence, the DINA, to continue the repression. Some of the officers involved in the Caravan of Death became high officials in the DINA. For the next three years, the DINA abducted thousands of citizens and took them to one of many secret detention centers: Londres 38, Jose Domingo Canas, Villa Grimaldi and others. In these places, DINA agents tortured and murdered thousands of citizens and disappeared more than one thousand victims. This was the worst phase of the violence, and it was a period of absolute impunity. The dictatorship refused to honor habeas corpus petitions and the few cases of human rights violations that were investigated were placed in the hands of military tribunals. But the military refused to investigate or prosecute soldiers. The Amnesty, 1978-1990 A second phase of the search for justice began in 1978. In March, General Pinochet imposed an amnesty law. In 1980 he imposed a new constitution which contained a provision for a referendum in 1988, when people voted to end the dictatorship. The amnesty law was not really law but rather a decree because it was not enacted by Congress. The dictatorship had closed the congress. The amnesty covered the worst period of the repression and the worst crimes of the dictatorship: kidnapping, homicide, torture, forced disappearance. The logic behind the amnesty law was that the military had declared Chile to be in a state of war, and that war demanded that enemies be eliminated. This logic justified illegal detention, torture, murder and the disposal of bodies by burying them in secret graves or throwing them into the sea. But the courts applied the amnesty immediately. How did the system of repression and impunity work? The soldiers and the secret police carried out the repression. Then the military government denied the facts and gave out false information to conceal the crimes committed in the name of national security. Then judges simply accepted the false information – the disinformation and the lies – applied the amnesty immediately and closed human rights cases without investigating them. Justice to the extent possible, 1990-1998 A third phase of the search for justice began after the transition to democracy in 1990. In 1988, Chileans voted to end the Pinochet dictatorship and in 1990 they voted in the first democratic elections since 1973. The president, Patricio Aylwin, recognized the moral imperative for justice. But he also recognized that justice was not fully possible. After stepping down as president, Pinochet had warned that “no one will touch me…the day they touch one of my boys the rule of law is extended.” So President Aylwin spoke of justice to the extent possible. There were some advances. President Aylwin created a national Commission on Truth and Reconciliation which proved the truth about the repression, restored the good names of the victims, and recommended measures of reparation. The enactment of the Cumplido laws, named for the minister of justice, limited the jurisdiction of military courts. The courts began for the first time to apply the Constitution and international human rights treaties and to give them greater weight than ordinary laws. And the courts began to apply the 1978 Amnesty degree in a different way. The courts determined that it was necessary to investigate human rights crimes to establish criminal responsibility BEFORE applying the amnesty. Finally, in this phase, the courts conducted the first prosecutions and criminal trials of military officers. The most important prosecution involved the Letelier-Moffit assassination in Washington D.C. Manuel Contreras, the director of the DINA, was actually convicted of that crime together with other officers in 1995. The Institutions are Working The fourth phase of the search for justice began in 1998 and continues to the present. I will call this the phase of working institutions to paraphrase President Lago’s who commented that now the institutions, including the courts, are doing their jobs. There were many landmarks. In January 1998, a complaint was filed in the case involving the disappearance of 16 persons in 1976. The complaints accused General Pinochet of being involved in the crime. Later I was selected by lottery to instruct the case, or as you would say, conduct the criminal investigation. In March 1998 Pinochet retired as commander of the army and became senator with lifetime tenure. In October, British authorities arrested Pinochet in London at the request of the Spanish judge, Baltasar Garzón, who sought Pinochet’s extradition to Spain to face trial for crimes against humanity. Spanish law grants Spanish courts universal jurisdiction for such crimes. Pinochet was held in custody for fifteen months, until the Secretary of the Interior decided to return Pinochet to Chile rather than to extradite him to Spain to face trial for crimes against humanity. Pinochet returned to Chile in March 2000. But a few days after his return, I filed a motion to lift Senator Pinochet’s parliamentary immunity from prosecution in the Caravan of Death matter I mentioned earlier. Both the Santiago Court of Appeals and the Supreme Court of Justice voted to lift Pinochet’s immunity making it possible for me to file a criminal indictment. I indicted Pinochet in December 2000 and again in January 2001 in the Caravan of Death Case. The Court of Appeals and the Supreme Court later voted to dismiss the charges against Pinochet on grounds of Pinochet’s mental incompetence to stand trial. But that did not end the investigations of other officers of the investigation of Pinochet in other cases. In fact, indictments were filed against a number of officers in the Caravan of Death and other cases—Operation Condor, Operation Colombo, Villa Grimaldi, Villa Bavaria, the Charles Horman case, and others. Last May, the Court of Appeals and the Supreme Court lifted Pinochet’s immunity from prosecution in the Operation Condor case. In December, I indicted Pinochet in that case. The Santiago Court of Appeals must now decide whether to confirm that indictment; the decision should come down in a matter of days. At the same time, I have closed the investigation phase in the Caravan of Death matter; the formal Accusation has been written. I have also indicted two of the Pinochet regime’s interior ministers, Montero Marx and Benevides, on the grounds that they gave false information to the president of the Supreme Court during Habeas Corpus hearings related to disappearance cases.