 Judge Guzmán, Prof Nqosa Mahao, Prof Boatamo Mosupyoe & guests at the lecture |
The judge and the general: the Pinochet case
"We called ourselves the Switzerland of America," said Honourable Juan Salvador Guzmán Tapia, "and boasted that we would never find ourselves under a military jackboot." Speaking at a guest lecture hosted by the Executive Dean of the College of Law, Prof Nqosa Mahao, on 29 June 2009, Judge Guzmán, who serves on the Global Majority International Advisory Board (IAB), is a retired Chilean judge who became famous internationally for prosecuting former dictator Augusto Pinochet on human rights charges.
Judge Guzmán told his audience that he had supported Pinochet's 1973 coup --- waged as an anti-Communist crusade --- that ousted Marxist President Salvador Allende. However, it had led to great repression and the establishment of state terrorism, with more than 3 500 assassinations, 1 200 forced disappearances and 26 000 known cases of torture. Ironically, he said, during this period a new constitution had established constitutional guarantees, such as human rights and habeas corpus, but only some of these were protected by the constitution.
When the dictatorship ended with elections in 1989, a new criminal procedural code was drafted that replaced the old secret and written Spanish code by an Anglo Saxon oral and public system. Many laws inspired by human rights were promulgated and military jurisdiction was minimised. A commission of truth and reconciliation, the Raúl Rettig Commission, took place to establish the number and identity of victims who were murdered, abducted, or disappeared.
In January 1998, criminal complaints were filed against Augusto Pinochet for the crimes of abduction, assassination, genocide and torture. However, as he was serving as a lifetime senator, he needed to be impeached. Judge Guzmán then outlined the process that he had to undertake to try to bring General Pinochet to trial. By pointing out that kidnapping is a permanent crime and is perpetuated continually since the moment the victim disappears until he, she or the remains appear, he was able to get agreement that forced disappearances were not covered by amnesty law and Pinochet's immunity was lifted in certain of the cases against him. Although Pinochet was never tried, because there was no political nor judiciary will to do so, he died under two indictments, the truth was revealed and more than 300 members of the Chilean armed forces and other civilians were convicted and are serving their sentences.
One of the legacies of the Pinochet case saw the Treaty of Rome signed in 1998 and ratified by most evolved countries belonging to the international community to assure the accountability of state agents and civilians in their responsibility for genocide, crimes against humanity, and war crimes. This treaty created the International Criminal Court (ICC) that is meant to try the people responsible for these crimes when justice cannot or will not take place in the countries where they have been committed. The presentation concluded with a stimulating debate on the rule of law and international law.
You can read Judge Guzmán’s presentation here or watch the trailer to the documentary film The Judge and the General at www.westwindproductions.org/trailer.html. The filmmakers trace the judge's descent into what he calls "the abyss", where he uncovers the past, including his own role in the tragedy. The Judge and the General reveals one of the 20th century’s most notorious episodes and tells a cautionary tale about violating human rights in the name of "higher ideals". |
