The Pinochet case: Juan Garcés’ fight against impunity
During his visit to Geneva in early October, Civitas Maxima had the pleasure and honor of welcoming Juan Garcés, a Spanish lawyer and former advisor to President Salvador Allende. Juan Garcés is the man behind the arrest, 26 years ago, of former Chilean dictator Augusto Pinochet. He spoke about this battle, which paved a new path for justice in the pursuit of the gravest crimes—a path that is more relevant and necessary than ever.
Juan Garcés is an admirer of Montesquieu. He likes to recall that in 1721, the Enlightenment thinker wrote in his Persian Letters: “I always tremble that in the end, someone may discover some secret that provides a quicker way to annihilate men, destroy peoples, and entire nations.” However, Montesquieu believed in the power of the law of nations, which he thought would “forbid such a fatal discovery.”
Nearly three centuries later, this hope first gave birth to the Nuremberg Tribunal and, after the Cold War, led to the creation of international criminal tribunals, most notably the International Criminal Court (ICC). This institution embodied the promise of greater respect for humanitarian law, ending impunity for the gravest crimes.
The tenacity and courage of victims
Today, we must admit that the momentum once thought to be unstoppable has fallen short of expectations. After 22 years and a budget of two billion dollars, the ICC has issued only six convictions for international crimes, while many others remain unpunished.
Does this mean that the universal defense of human rights, a legacy of the Enlightenment, can only remain a promise? Juan Garcés is living proof that this is not the case. He has shown that another path to justice exists, one that also relies on national courts and the tenacity and courage of victims, supported by independent lawyers.
A long-running investigation
As a former personal advisor to President Salvador Allende, Garcés was with him during the attack on La Moneda Palace on September 11, 1973. He managed to escape and return to France, where he worked as a research fellow at Sciences Po Paris, before returning to Spain in 1982.
The investigation and trial for the 1976 assassination of Orlando Letelier, Allende’s former ambassador to the United States, in Washington provided the first incriminating evidence against Pinochet and proof of a criminal regime in Chile. The FBI spent years investigating this murder and established the responsibility of the head of Chile’s secret police, General Contreras, alongside an American national and Cuban exiles who carried out the crime. The mystery remains, however, as to the degree of knowledge that the then director of the CIA at the time, George H.W. Bush, had about the preparation and execution of this very first terrorist act (as established by the courts) on American soil by a foreign state.
This American connection also helped Garcés to establish political contacts within the Democratic Party, support that proved crucial when ensuring that President Clinton’s administration would not oppose the pursuit of Pinochet once the case came to light. This contrasts starkly with the role played by President Nixon’s Republican administration, especially his national security advisor, Henry Kissinger, in the Chilean coup.
Seeking to be heard by justice
Leading a multinational team of ten lawyers, Garcés documented over 3,000 cases of killings, forced disappearances, and torture of nationals from various countries under Pinochet’s regime. Dozens of victims traveled to Spain to testify. “In Chile, the doors of the courts were closed to victims,” Garcés said. “These victims didn’t want money; they just wanted to be heard by justice.”
In 1985, a Spanish law allowed victims of genocide, terrorism, and torture—regardless of nationality and where the crimes were committed—to seek justice in Spanish courts under the principles of universal jurisdiction.
On July 4, 1996, Garcés filed a criminal complaint in Madrid against Pinochet and other junta leaders for crimes against humanity. However, the arrest warrant could only be issued once Pinochet was in a country with a strong judiciary and solid legal mechanisms. That country would be the United Kingdom, just two years later.
On October 16, 1998, while travelling to London for surgery, Pinochet was apprehended and put under house arrest following an international warrant issued at the request of Spanish judge Baltasar Garzón based on the evidence and testimonies his team had gathered.
A long legal battle
This marked the first time a former head of state was arrested under the principle of universal jurisdiction. The international impact was enormous, and the legal ramifications profound. “Coalitions” formed, with some countries opposing or supporting extradition. Among the latter were Switzerland, France, and Belgium. Courts in these three countries also requested Pinochet’s extradition, based on the nationality of the victims, enabling a possible trial in these countries.
On March 24, 1999, after a long legal battle, the UK’s House of Lords ruled that Pinochet could not invoke immunity for criminal acts, paving the way for his extradition, which was granted on October 8, 1999, by the Bow Street Magistrates Court in London. However, after becoming a political issue, the extradition would never take place. The British government halted the process and ordered Pinochet’s release in March 2000, citing health reasons based on medical evidence that concluded he was suffering from senile dementia and unfit for trial.
The intense lobbying of Spain’s conservative government under José María Aznar, who was in power at the time, played a role in this political decision. As the crimes of the Franco regime had never been tried in Spain, it was hard to imagine a trial for international crimes against one of Franco’s admirers, Pinochet, taking place in Madrid for months. Such a trial would have also put Franco’s regime on trial.
The “Pinochet Effect”
Pinochet was never extradited. However, when he returned to Chile as a free man, he found a country that had changed profoundly. His arrest became a catalyst for a significant shift in the willingness and ability of Chilean courts to address the long-standing demands for justice from the dictatorship’s victims. Since 2000, Chilean courts have delivered verdicts in more than 500 cases of crimes against humanity and handed down over 200 convictions. Pinochet himself was declared fit to stand trial and was indicted shortly before his death.
In 2005, Garcés successfully secured over $8 million in compensation from Riggs Bank, known as “the American Presidents’ bank” where hundreds of accounts linked to Pinochet were identified. This money went to over 22,000 victims of the Chilean military regime. One of Pinochet’s victims, who became a university professor in the U.S., framed the settlement and check in his living room – a reminder and symbol of the fact that he survived the dictatorship.
After Pinochet’s return to Chile, many wondered, “Who will be the next Pinochet?” On May 30, 2016, former Chadian President Hissène Habré was sentenced to life imprisonment for war crimes, crimes against humanity, and torture by the Extraordinary African Chambers in Senegalese courts. The Pinochet case marked a turning point in international justice, profoundly changing its landscape. It represented significant progress in the fight against impunity and justified the need for universal jurisdiction in international crimes. Most importantly, it demonstrated that justice can be sought elsewhere, wherever legal avenues exist, and that this extraterritorial justice can sometimes break the vicious circle of impunity even in the countries where the crimes were committed.
The article first appeared in French on Heidi News on the 16th of October, 2024
Photo: William Thayer and Augusto Pinochet Ugarte. Biblioteca del Congreso Nacional de Chile
