The Good German

Naomi Roht-Arriaza

The Judge and the General: Naomi Roht

Naomi Roht-Arriaza
The author of The Pinochet Effect: Transnational Justice in the Age of Human Rights writes about the groundwork that made Judge Guzmán's ruling possible. Although the courage of one individual can make the difference, the background work of a great many unsung heroes is also necessary to effect change.

Judge Juan Guzmán is clearly a humanist, a compassionate man susceptible to the suffering of family members who had lost someone to the secret death camps run by Augusto Pinochet's secret police. But that isn't always enough to overcome the fear, inertia and sense that "they must have done something wrong" that keeps most people immobile in the face of stark injustice. A few things made the difference here.

First, there was a network of lawyers and activists who, right after the coup in 1973, began to document each and every case of killing and forced disappearance. The Church's Vicariate of Solidarity made sure that each such violation was the subject of a habeas corpus petition. Even though only one percent of those petitions were ever investigated, the records were left behind for later judges.

The family members created organizations that, like the Mothers of the Plaza de Mayo in neighboring Argentina, steadfastly pushed for information about the fate of their loved ones. When the Chilean courts were closed and judges stamped "denied" on habeas petitions without reading them, activists went elsewhere, working at the United Nations and through the Inter-American system to push for sanctions on the Chilean government and for investigations of wrongdoing.

Second, Judge Guzmán's investigations took place within a wider framework of attempts to come to terms with Chile's dictatorship. When civilian government was restored in 1990, the new president, Patricio Aylwin, found it impossible to overturn an amnesty law that the military had granted itself. But President Aylwin did set up a Truth and Reconciliation Commission to find out what had happened and what institutions had been responsible. The commission's report detailed military responsibility for more than 3,000 killings and 1,000 disappearances. The names of all the victims were listed, a copy of the report was presented to their families and the president apologized on national television in the name of the Chilean state. The government then passed a reparations law, providing a pension, medical and psychological care, scholarships for children, and an exemption from military service for the families of the dead and disappeared. Memorials were created at the cemetery and elsewhere. By the time Judge Guzmán began investigating, these earlier efforts had made denial difficult and set the stage for justice.

Third, the justice system itself changed. Judicial reform brought in a crop of new judges uncompromised by the dictatorship. At the same time, Pinochet decided to visit Europe to have back surgery. When he arrived in London, he was arrested based on an indictment filed by a Spanish court. Back in 1996, Spanish lawyers had filed a complaint for genocide, torture and other international crimes against high-ranking Chilean officers. They based the complaint on a Spanish law -- versions of which exist in more than 120 countries -- that allows Spanish courts to prosecute certain particularly heinous international crimes wherever they take place. Pinochet spent more than 500 days under arrest and was eventually found extraditable. He returned to Chile, ostensibly too sick to stand trial, but when he got there, his aura of invincibility was gone. A few months later, Judge Guzmán issued an arrest warrant.

It takes the confluence of courageous individuals and social conditions to create change. Happily, even though Pinochet died without a final trial and conviction, some 300 of his officials, including the major remaining masterminds, have been indicted, tried and convicted. And Chilean democracy is stronger because of it.

Naomi Roht-Arriaza is a professor of law at the University of California's Hastings College of the Law, and the author of The Pinochet Effect: Transnational Justice in the Age of Human Rights (2005). She was a legal advisor on The Judge and the General and writes extensively about human rights issues in Latin America.