A Tribute to Justice: Honoring Forty Years of Struggle to Advance Judicial Process for Crimes Against Humanity in Chile
Against Humanity in Chile A Tribute to Justice: Honoring Forty Years of Struggle to Advance Judicial Process for Crimes
Baltasar Garzón Real 0 1
Joan Garcés 0 1
Almudena Bernabéu 0 1
0 The C UNY Law Review is published by the Office of Library Services at the City University of New York. For more information please contact , USA
1 Center for Justice and Accountability
Follow this and additional works at: http://academicworks.cuny.edu/clr Part of the Law Commons Recommended Citation Baltasar Garzón Real, Geoffrey Bindman, Joan Garcés & Almudena Bernabéu, A Tribute to Justice: Honoring Forty Years of Struggle to Advance Judicial Process for Crimes Against Humanity in Chile, 17 CUNY L. Rev. 399 (2014). Available at: http://academicworks.cuny.edu/clr/vol17/iss2/6
A TRIBUTE TO JUSTICE:
HONORING FORTY YEARS OF STRUGGLE TO
ADVANCE JUDICIAL PROCESS FOR CRIMES
AGAINST HUMANITY IN CHILE1
A Conversation with Judge Baltasar Garzo´n Real, Sir Geoffrey Bindman, and Joan Garce´s, Moderated by Almudena Bernabeu
ALMUDENA BERNABEU: Good afternoon, everybody. My name is
Almudena Bernabu.2 I have the beautiful and great honor to be
1 These remarks were delivered as part of A Tribute to Justice, an event
commemorating the 40th anniversary of the military coup d’etat in Chile, presented
by the Charles Horman Truth Foundation at the Third Church of Christ Scientist in
New York City on September 9, 2013. Other speakers and honorees included Peter
Weiss, Judge Juan Guzma´n Tapia, Jennifer Harbury, Reed Brody, Peter Kornbluh,
and Prof. Cynthia Soohoo. The program was co-sponsored by CUNY School of Law,
the Center for Constitutional Rights, the Institute for Policy Studies, and the North
American Congress on Latin America, with support from the Ford Foundation. The
editors thank Joyce Horman for permission to transcribe the program, and gratefully
acknowledge the assistance of Bridget Lombardozzi and Southern District Court
Reporters, P.C. The remarks have been edited for length and grammatical continuity.
Videos of the entire Tribute to Justice program can be accessed at http://
2 Almudena Bernabe´u has served as International Attorney for the Center for
Justice and Accountability (CJA) since early 2002. Bernabe´u leads CJA’s Latin
America program, practicing U.S.-based civil Alien Tort Statute litigation against
human rights abusers and universal jurisdiction criminal human rights prosecutions
before the Spanish National Court. Bernabe´u is also Director of CJA’s Transitional
Justice Program. Bernabe´u currently serves as the lead private prosecutor on two
human rights cases before the Spanish National Court: one filed on behalf of
survivors of the Guatemalan Genocide and the other brought against senior Salvadoran
officials for the massacre of Jesuit priests in 1989. Bernabe´u has worked in human
rights and international law for the past decade. She has published many articles on
human rights litigation in national courts and its effectiveness in the struggle against
impunity, as well as on reforming Spanish asylum and refugee law. She has lectured at
universities in multiple countries, participated in numerous conferences
internationally, and has conducted trainings for lawyers and government prosecutors. Bernabeu
is also Vice President of the Spanish Association for Human Rights (www.apdhe.org),
and serves as an advisor at the Human Rights Clinic at Santa Clara University.
Bernabe´u is a member of the advisory board of the Peruvian Institute of Forensic
Anthropology (EPAF) (www.epafperu.org), a forensic group providing evidence on
human rights violations investigations and prosecutions. In 2012, Bernabeu won the
prestigious Katharine & George Alexander Law Prize, and the Yo Dona Magazine
Award. She was named one of the 100 most influential people by Time magazine in
2013, and just received the SCEVOLA award for ethics and professional excellence.
Ms. Bernabe´u holds an LLM degree from the University Of Valencia School Of Law,
where she specialized in Public International Law. Trained in Spanish and U.S. law,
she is a member of the Valencia and Madrid Bar Associations and the American Bar
the moderator and make an introduction. Hopefully I speak slow
enough so you can all understand me. I apologize ahead of time. I
do have a heavy accent, but it makes me more appropriate tonight
because I’m from Spain.
I also want to thank Joyce Horman and the Charles Horman
Truth Foundation for inviting all of us and for putting this
beautiful event together and including me in it. Next to me, we have
three people and a fourth great companion. I don’t think they
need an introduction, but I have the duty to do it. We have next to
me Judge Baltasar Garzo´ n from the Spanish National Court.3
3 Judge Baltasar Garzo´n Real is internationally renowned as the Spanish jurist
who issued the first detention request, through Interpol, for former Chilean dictator
Augusto Pinochet on charges of abductions, torture, murder, forced disappearances
and terrorism. General Pinochet’s subsequent arrest in London on October 16, 1998,
marked the first dramatic application of the principle of universal jurisdiction—the
right of third countries to prosecute crimes against humanity committed in other
nations where the perpetrator is shielded from justice. Judge Garzon’s effort to indict
and extradite Pinochet to Spain resulted in his house arrest in London for over 500
days and stripped him of the “sovereign immunity” he had maintained from
prosecution for his human rights atrocities. Judge Garzo´n relentlessly pursued the Pinochet
case, eventually winning a ruling in London that Pinochet be extradited to Madrid to
stand trial. For political reasons, the British government freed Pinochet to return to
Chile instead, but he was immediately prosecuted there also. Garzo´n’s
precedent-setting prosecution transformed Spain into a center of international human rights
accountability and paved the way for similar efforts to prosecute crimes against
humanity committed in Argentina, Guatemala, and El Salvador.
In 2000, Judge Garzo´n began to investigate charges of genocide, terrorism, and
torture committed by Argentine military officers during the dictatorship that lasted
from 1976–1983. In 2003, Judge Garzo´n obtained the arrest and extradition of an
Argentine Navy intelligence officer, Ricardo Cavallo, who was living in Mexico, on
charges of genocide and terrorism. In April 2005, Judge Garzo´n convicted another
Argentine naval officer, Adolfo Scilingo, for participating in “death flights” of 30
political prisoners and the National Criminal Court of Spain sentenced him to 640 years
in prison in Spain. In 2009, Judge Garzo´n accused six officials of the administration of
George W. Bush of authorizing and facilitating human rights abuses as part of the war
on terrorism and urged Spanish prosecutors to investigate them in connection with
the torture of prisoners at the U.S. military’s Guanta´namo Bay base in Cuba. Under
pressure from Washington, revealed by the Wikileaks cables, Spanish authorities
blocked efforts to apply universal jurisdiction to U.S. officials for those abuses.
In 2008, Judge Garzo´n opened the first inquiry into Franco’s supporters’ crimes
against humanity committed during the war between 1936 and 1939 and during the
fascist dictatorship established after it. Shortly after Judge Garzo´n declared his
jurisdiction, he was accused by the Fascist Party of abusing his judicial authority for
opening the inquiry. In what many observers believe was political retribution, Judge
Garzo´n was suspended from serving as a judge for eleven years in February 2012.
Judge Garzo´n has served on Spain’s Central Criminal court, the Audiencia Nacional.
As examining magistrate of the Juzgado Central de Instruccio´n No. 5, Garzo´n led the
investigation of Spain’s most important criminal cases, including terrorism, organized
crime, and money laundering. In 2012, Garzo´n became senior legal counsel to the
anti-secrecy group, Wikileaks, to help defend its founder, Julian Assange. Judge
Garzo´n is a graduate of the University of Seville (1979). Between 1999 and 2008
A TRIBUTE TO JUSTICE
Judge Baltasar Garzo´ n is not only known for his role in the
Argentine4 and Pinochet5 cases, but many other efforts of universal
jurisdiction6 and international criminal law and international
human rights, both investigations and prosecutions. He is now in
private practice. We all know a little bit about his adventures in our
dear home country, but he is definitely a person committed in his
travel—from the international criminal court to national
jurisdiction to national investigations—on many levels. Right next to
Judge Baltasar Garzo´ n is Cristian Farias, who is a student at CUNY
School of Law, who is going to help me and help Judge Baltasar
with the translation.7
On the other side of Judge Baltasar is Sir Geoffrey Bindman, a
solicitor from the UK and also a very well-known person.8 If you
Garzo´n was awarded twenty-two Honoris Causa Doctoral Degrees. Judge Garzo´n
received the Hermann Kesten Prize in 2009 and the International Hrant Dink Award in
2010. In 2011, Garzo´n received the first ALBA/Puffin award for human rights
activism. The award committee cited his “exceptional courage in defense of human rights
and his commitment to the recovery of historical memory regarding crimes against
4 See Ciaran Giles, Baltasar Garzon: The Spanish Judge Setting the World to Rights,
INDEPENDENT (Nov. 4, 1999), http://www.independent.co.uk/news/people/profiles/
Judge Garzo´n’s role in indicting Argentinian officials accused of human rights
5 General Augusto Pinochet was the leader of the coup d’etat which overthrew
President Salvador Allende of Chile on September 11, 1973. He was responsible for
the torture and death of thousands of his opponents. He was arrested in London in
1998 after Judge Baltasar Garzo´n issued a warrant charging him with human rights
violations. See Jonathan Kandell, Augusto Pinochet, Dictator Who Ruled by Terror in Chile,
Dies at 91, N.Y. TIMES (Dec. 11, 2006), http://www.nytimes.com/2006/12/11/world/
americas/11pinochet.html. He was the first dictator to be humbled by the
international justice system since the Nuremberg trials. See The Nuremberg Legacy: Pinochet and
Beyond, U.S. HOLOCAUST MEMORIAL MUSEUM,
http://www.ushmm.org/confrontgenocide/speakers-and-events/all-speakers-and-events/the-nuremberg-legacypinochet-and-beyond (last visited Sept. 8, 2014).
6 See generally Kenneth C. Randall, Universal Jurisdiction Under International Law, 66
TEX. L. REV. 785 (1988) (providing an overview of universal jurisdiction and analyzing
its applicability and potential to redress wrongs widely condemned by the global
7 CUNY Law Review Managing Articles Editor (2013–2014) Cristian A. Farias
served as Spanish-English interpreter for Judge Garzo´n as he delivered his remarks.
8 Sir Geoffrey Bindman, QC is a British attorney specializing in human rights law
who represented Amnesty International and Chilean victims’ interests in the case
against Chilean dictator Augusto Pinochet in the late 1990s. Bindman was responsible
for the arrest order against Pinochet during his visit to London in 1998. Bindman has
served as Chair of the British Institute of Human Rights since 2005. In 2003, he won
The Law Society Gazette Centenary Award for Human Rights, and was knighted in
2006 for services to human rights. In 2011, he was appointed to the Queen’s Counsel.
In 1974, Bindman established Bindman’s, LLP with the vision of “protecting the
rights and freedoms of ordinary people.” The firm offers a broad range of services to
read the book that Peter mentioned, The Pinochet Effect, he is also
very well-portrayed in his role as a solicitor.
In a minute he’ll tell you about human rights and civil rights
in the context of the UK struggle over many years, and the
important roles he played prior to the arrest of Pinochet. Right next to
him is attorney and Professor Joan Garce´s,9 who is from my
hometown, Old Elysium, who lived in Chile, studied in France and
worked in Chile for many years. He was the attorney who brought
the criminal complaint that precipitated the Pinochet case, on
behalf of the victims and a foundation in Spain that [represented]
the Chilean refugees.
We’ve been hearing, through the first panel, references about
the facts and adventures, as I call them, that these three gentlemen
private individuals, NGOs, companies, and other organizations. Bindman received a
law degree from Oriel College in Oxford and qualified as a solicitor three years later.
He served as a legal advisor to the Race Relations Board for seventeen years. Bindman
was a legal advisor to Amnesty International and represented the satirical magazine
Private Eye. In the late 1980s, Bindman visited South Africa as part of an International
Commission of Jurists delegation sent to investigate apartheid and subsequently
became editor of a book on the topic, South Africa and the Rule of Law. In September
of 2012, Bindman told BBC Radio that he agreed with Desmond Tutu that British
Prime Minister Tony Blair should be prosecuted on the basis that starting the Iraq
War was a “crime of aggression” in breach of the United Nations Charter.
9 Joan Garce´s is a Spanish attorney who has made major contributions to
international human rights law in the fight against impunity for heads of government who
commit crimes against humanity. When Salvador Allende became President of Chile
in 1970, the newly elected President invited Garce´s to serve as his personal advisor. He
served in that capacity until the September 11, 1973 military coup forced him to leave
Chile. Garce´s fled to France to serve as personal advisor of UNESCO’s Director
General. He returned to Spain after the restoration of the representative form of
government and became a member of the Madrid Bar in 1981. Garce´s served as the lead
counsel in the case that he initiated against Augusto Pinochet in Spain in 1996 using
the principle of universal jurisdiction, heading a multinational team of lawyers
representing survivors and families of survivors of more than 3,000 cases of assassination,
forced disappearance, and torture committed under Pinochet’s regime. When
General Pinochet traveled to London in October 1998, Garce´s filed a request with Judge
Baltasar Garzo´n of Spain in order to obtain an arrest warrant and begin extradition
proceedings against him. The path for this action was paved earlier by Garce´s’ legal
and procedural work against crimes committed by the Pinochet regime. Pinochet’s
detention and the British Court’s ruling granting his extradition to Spain marked the
first time that a national court applied the principle of universal jurisdiction against a
former head of state, declaring its legal right and ability to judge crimes against
humanity committed in another country, despite self-granted local amnesty laws. Garce´s
graduated from the Universidad Complutense of Madrid and earned a doctorate in
political science from the Sorbonne. He is a recipient of the Alternative Nobel Prize
and France’s National Order of Merit Award for his contributions to international
law. He has been a professor of political science in leading universities of several
went through and the struggle of those days in 1996 through 1998
and beyond, and up to the arrest of Pinochet in London.
What I wanted to say as a matter of introduction is that, back
in October of 1998, when the arrest was about to happen, I was
living in Spain, just graduated from law school, [and] passed the
bar. I was working in a very boring law firm and, frankly, had no
idea of what a career even meant to me, but I was trying to
conceive that there [would] be, somewhere, somehow, a career for me
to build. . . . In a very intuitive way, I don’t think I knew enough. I
was celebrating as I followed in the press [that] the arrest warrant
In those days, I remember with emotion and a little bit of
agony, because it was not clear whether the arrest [would happen]
and [if he would be held] in London. I remember putting a cheap
bottle of champagne in the refrigerator to see if we could open it
in the context of the arrest or not. We ended up dancing in the
stairway of my apartment in front of my neighbors, who thought
that I was a little nutty. But we celebrated the arrest of Pinochet. I
don’t think I knew entirely—well, now I am sure I didn’t know—
what that meant. It was the sense that something right was done,
I couldn’t understand, much less anticipate, that I [would]
become a human rights attorney, that I [would] do human rights
defense in many countries, many of which happen to be in the Latin
America region, and [that] the so-called “Pinochet effect”10 that I
was going to witness from a privileged position for the next twenty
years would mean so much.
But, really, I think the Pinochet arrest changed Chile. It had
changed Chile forever. And I think that’s true for the rest of the
world. It was definitely true for my personal career.
We’re here to discuss the future of universal jurisdiction and,
hopefully, this doesn’t sound super-pretentious, but I want to tell
these gentlemen that I am the future of their work and [I admire]
their courage in working in universal jurisdiction, because I make
sense only in the aftermath of their effort and their ability to do it.
They really brought justice to a dimension that we didn’t know. We
aimed for it after Nuremberg,11 but nobody had the ability to bring
10 The arrest of Pinochet in London set a historic precedent in international law
for holding accountable former heads of state accused of human rights crimes. See
generally NAOMI ROHT-ARRIAZA, THE PINOCHET EFFECT: TRANSNATIONAL JUSTICE IN THE
AGE OF HUMAN RIGHTS (2006).
11 See Nuremberg Trials, HISTORY, http://www.history.com/topics/world-war-ii/
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it down to a more realistic terrain, and I think they did. With that, I
wanted to open the questions, and then I want to do something
unorthodox, which is to [share] three words to describe our
speakers, because I happen to know them on a more personal level. Not
a traditional introduction.
I would like to say about Sir Geoffrey Bindman [that] when I
think about him, I think about solidarity, the consistent solidarity
of the English community, civil rights and human rights. Since the
1970s, when the big load of refugees got to London, they always
When I think about Mr. Joan Garce´s, I think about
commitment. Commitment and rigor; his heart is probably three-quarters
Chilean. He had rigor and super-professional legal work, never
deviating from the law for a second. That, I think, is an example for
all of us young, a little precocious and brash lawyers, to take on.
And from Baltasar, courage, audacity, and the vision from his
position. I believe and respect the people that take where they are
in life and their professions and do the best they can, and don’t
question the high cost [to] their personal and professional life.
Baltasar has done that.
With that, I’m going to ask the first question to Sir Geoffrey
Bindman. I’m going to start to try to do it chronologically. My
understanding is that you had attempted to arrest General Augusto
Pinochet, life-sitting senator at the time, a few times prior to the
successful effort in 1998.
SIR GEOFFREY BINDMAN: Yes.
MS. BERNABEU: I would like if you [could] explain a little bit,
including the legal basis, because I don’t think we understood the
UK to be a country with provisions that may be similar to universal
jurisdiction. I would like to know the legal basis for that process,
MR. BINDMAN: Well, it’s quite correct that before the arrest of
Pinochet in London, I had tried to have him arrested on two
previous occasions when he was visiting London. The [legal] basis was
this. First of all, unlike the United States, we in Britain have the
right for individuals to bring a prosecution. In order to do that, the
individual has to go to a magistrate’s court, [which is] the lowest
nuremberg-trials (last visited Sept. 8, 2014) (providing a historic and interactive
overview of the Nuremberg Trials following the fall of Nazi Germany).
criminal court, and ask for a warrant of arrest for the accused
person. Now, there is a snag to this. The Attorney General of the
country has the power to stop a private prosecution, but he can only do
that after it’s been started. So we thought—and Amnesty
[International] was involved in this—that if we at least could get started and
get an arrest warrant issued against Pinochet, that in itself would
make a big impact and it would put the government under
pressure to stop it if they wanted to.
Unfortunately, on both those occasions, the magistrate was
very reluctant to make a quick decision. He wanted to think about
it, and he adjourned his decision. Meanwhile, Pinochet was alerted
and left. On one occasion, he had come to visit an Arms Fair in
Birmingham, England; on the other occasion, I think it was for
medical treatment. But he got away on both those occasions.
The great difference and the great advantage of what Judge
Garzo´n and Joan Garce´s were able to do—and they are the real
architects of Pinochet’s arrest—was to use an established
procedure of extradition. This put the onus and the burden on the
British government, the British authorities and the British police to
carry out the arrest and to pursue the legal case. So the legal case
against Pinochet was actually presented by the British government.
They had to do it because they were required to under the
European extradition treaty between the Spanish government, the
British government, and all of the other European governments.
Now, when that had happened and the arrest had taken place,
there was an immediate response from Pinochet and his lawyers.
They went straight to the high court to try and quash the arrest.
They tried to say that Pinochet was immune from prosecution and,
therefore, from arrest. The whole case in Britain, right up to the
time that Pinochet was allowed to return to Chile, rested on the
question of immunity of a head of state. That’s a crucial issue
which, in the last discussion, interestingly, did not feature so much
as it might have. That was the crucial decision.
MS. BERNABEU: Now I want to turn the question to Joan. Tell us a
little bit about the work that was involved, [over] many years. Walk
us through the process that brought you to that complaint. If I
understand the history, the complaint filed against the Argentine
junta happened barely days before.
So walk us through the process that brought you to that
complaint filed a few days after against Pinochet and others.
JOAN GARCE´S: Good evening. As every lawyer knows, an old case
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goes to court, moves through the courts, and, in this case . . .
without particularly strong facts, [results in a victory] against the
individuals for their responsibility. This case begins on the 11th of
September 1973, and continues for years for the victims and
relatives who were seeking justice in the Chilean courts. They were
building the case. But as the Judge said, the doors of those courts
of justice were closed for the victims. Outside Chile, we were—in
the ‘70s, the ‘80s, and until 1990—in the Cold War. This meant
that each big power in its respective zone of influence was
committing crimes against humanity, crimes of aggression, and was not
very interested in looking at what the other big power was doing in
its respective zone of influence. In this particular case, the
territorial jurisdiction was not applied by the Chilean courts, and [under]
the principle of universal jurisdiction [there was no] court where it
could have any possibility for success. But the victims were building
the case in Chile. Then the Cold War ended in 1990 together with
the dictatorship of Pinochet. Both things are linked. Pinochet’s
regime was a crutch of the Cold War. When this war ended, he was
dropped by the big powers that were backing him. Then the
moment came when the victims could have the possibility of going to a
foreign court under the principles of universal jurisdiction. That
was the case in 1996 in Spain. And why in Spain?
First, because the courts in Chile were closed at this time. It
was not that Spain came to Chile, but that the Chileans came to
Spain looking for a court. In 1996, Spain was going through a big
clash between the judicial power and the executive power around
crimes of the state, crimes committed by the government of Felipe
Gonza´lez. It started with extrajudicial executions of some Basque
nationalists. The judiciary began to investigate those crimes, and
Spanish society was following this case. It ended with the home
minister, Felipe Gonza´lez, being indicted, charged and
condemned to die. It was quite unusual how a minister was tried
because of crimes committed by the police. But of course that was
Spain in 1996. Society and the magistrates were sensible to those
crimes, crimes committed by the state. In this context, courts were
closed in Chile, it was the end of the Cold War, and Spain,
traditionally being sensible to crimes of the states, led the first claim,
which was introduced in 1996. Spain declared universal
jurisdiction and the victims began to come to Spain with their testimony
about the fights that were gathering in Chile during the years of
the dictatorship. And for two and a half years, we prepared the
indictment. That was very difficult. The public prosecutor’s office
in Spain was absolutely against this case. Not only [did they not]
give us help, but they were attacking, appealing each [of the
court’s decisions that gave the] case the possibility to go ahead.
Then when Pinochet was in London, [it was feasible] for us to ask
for his arrest under the treaty of the European Convention [on]
Extradition because the evidence was in the court.
MS. BERNABEU: That’s a perfect way of reaching my next
question to Judge Garzo´n. So the case was filed in 1996, but my
understanding is that actually it went as a matter of the law [to] the
Spanish national court and went to a different judge. You were not
the original judge in the Pinochet case. So will you explain how the
opportunity came for you to be in charge of that arrest warrant.
JUDGE BALTASAR GARZO´ N: First of all, I’d like to thank the
Charles Horman Foundation for inviting me to be here in New
York. It’s a pleasure to be here with you all. I think that in this
story, you need to begin to acknowledge who the true architects of
the process [were]. And without a doubt, for me the great architect
of the Pinochet case was not Judge Garzo´n or any other judge
initially, but it was Joan Garce´s.
Joan Garce´s was with Salvador Allende on that last day on
September 11, 1973. He left the presidential palace with a request and
I think that he was able to carry it out. For many years, forty years
total, he has dedicated his life to the law. I know he doesn’t like to
hear this, but that’s his problem.
I think that he, alongside others, took a very important
initiative that converged during a historic moment in Spain. . . . At that
time, Spain was able to apply the principle of universal jurisdiction
for the first time and, perhaps, in a stronger way than in the
Argentina case. The Argentina and the Chile cases were parallel [and]
very similar. Argentina was a little bit ahead, [but] in a way they
were walking in lockstep.
The initial proceedings to accept this process were first
established in the Argentina case, and the arrest of Pinochet occured
within the context of the Argentina case during what is known as
“[Operation] Condor.”12 That explains the existence of two judges
working at the same time.
12 See generally JOHN DINGES, THE CONDOR YEARS: HOW PINOCHET AND HIS ALLIES
BROUGHT TERRORISM TO THREE CONTINENTS (2004) (comprehensive look into the
U.S.-backed Latin American military alliance known as Operation Condor, which
would go on to carry out untold human rights crimes against left-wing opposition
members and their sympathizers).
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In my case I was investigating the different kinds of torture,
repression, disappearances, [and] homicides that were being
carried out during the Argentinean dictatorship after the complaint
presented by the Progressive Union of Prosecutors in Spain. . . .
They were also involved in presenting the case of Pinochet
alongside Joan. . . . Within that dynamic, we arrived at October 1998.
I must warn you that by that point the tribunal of the Spanish
National Court, which is the tribunal under which we operate, had
not ruled positively regarding the jurisdiction of our court over this
case. Once more, the prosecutor was in court actively opposing this
measure [and was] decidedly against it, combative against it. We
were about to throw punches at each other.
JUDGE GARZO´ N: I must tell you that in those two proceedings
beginning in October of 1998, I resolved more motions by that
prosecutor than I have in thirty-two years of practice. That was the
decision of the government at the time. It was opposed to the
extradition [and] was doing everything possible so that [it] would not
To make a long story short, a week before October 16th, Joan
Garce´s came and saw me. He was not defending the Argentina
case. And he informed me that Pinochet was, in fact, in London.
I told him, “Okay, very good. What do you want?” “Well, I want
you to know that he’s in London.” “What can we do?” And I told
him that I am the Judge from chamber number five not chamber
number six, that they were out of a number of different chambers,
that Judge number six has to make the decision. Then he told me,
“Yes, that’s true, but let’s see how we can proceed with this.” So I
told him—he won’t tell you this, but I’m going to tell you—“I’m
going to take the affidavit or the deposition by Pinochet,” and I’m
sure when you tell him that, he will be for it.
Something like that occurred because my colleague took
initiative to present this request to take a declaration from Pinochet in
London. The agreement that Joan and I arrived at is that whatever
action I took in this case would be known as an action taken by the
Judge in chamber six so that [all] the pressure from the media
[would be] on chamber six. There was perhaps a small story on
myself, but it wasn’t big. It never went anywhere.
My colleague was very burned down because the media was on
him, asking, “Have you ruled on that request? Have you taken a
declaration from Pinochet?” and all this. And he said, “Yes, I’m
going to rule. Yes, I have ruled.” I must tell you that that request
A TRIBUTE TO JUSTICE
was never honored. It [was] never issued because the events after
that didn’t allow it.
Meanwhile, I asked the British authorities whether Pinochet
was, in fact, in London. It was evident that he was there, but we had
to go through the formal request process. The answer that the
British police gave me was something along the lines of, “Why do you
care about this?” I was a little surprised, but then I got a phone call
from the British embassy in Spain.
It’s worth noting a small story within a story. A year before, I
had a big controversy with the counsel or the ministerial counsel to
the embassy because I was complaining that Gibraltar was not
cooperating with Spain in a case relating to money laundering. He
said, “You’re being unjust with me. You have not made a request. If
you make a request, we’re going to try and work with you.” And he
said, “If you have any doubts, we can talk.” Then I said, “Okay, let’s
talk.” And at last we formed a very important relationship. When
he called me that afternoon, he told me, “They have answered you
inadequately from London. That will not happen again because
that would break up the important relationship that Great Britain
has with your court. Well, so then you can make your request
I can’t tell this whole story in two minutes, but he said, “Okay,
fine, if I’m going to receive another request. I shall answer that
request.” Then they tell me, “Yes, Pinochet is in London.” They ask
me, “What do you want to do with him? What are you accusing him
of?” That’s where I have to go to Joan, because the main process
was going on in the other courtroom. I had an open case, which
was the [Operation] Condor, so I told Joan, “Here we can proceed
with this case.” In fact, that’s what I did.
At that point, different information and different kinds of files
were being exchanged. On October 16th of 1998, they said that
Pinochet wanted to leave. I asked for the option to send an
interrogatory with the questions for Pinochet in order to get his
testimony. I asked Joan to prepare the questions, and that’s how
everything finished that day. Around 1 p.m. on a Friday, we said,
“Okay, let’s go home.” And around 2 p.m., I received a message
from the British police telling me Pinochet was leaving tomorrow,
so we won’t be able to take this testimony from him. “You have to
make the decision because he’s going to leave,” they said. There
was no one left in the court, [except] one person. I made the
decision to hold back this office worker from leaving [the court]
because she was about to leave. And when I gave her the request by
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hand, she came back to my office and said, “Are you sure about
this?” And I told her, “Just write and be quiet.”
And that’s how the arrest warrant was issued. I asked the
Spanish police to be quiet because the judge may do so if he decides.
The request was filed. The ministerial council informed me of how
the situation was going, and then I went back to my native home in
Andalusia. It was a popular holiday in my hometown at that time.
All the way home I was getting different messages from London. I
must acknowledge that I wasn’t too sure that this arrest warrant
would actually take effect. I went to watch some bullfighting with
my favorite bullfighter. Julio Romero is his name. It was a
disaster. . . .
While I was still at the bullfight, I received a call from the
ministerial counsel. He said, “The police [are] going to the home of
the judge with the arrest warrant.” I asked, “What do you mean
they’re going with the arrest warrant?” They asked, “Didn’t you
issue it?” I responded, “Yes, I did.” It was about 8 p.m. at that time. I
began to finally understand that this was, indeed, working.
[At] around 10 p.m. I got a call from him again and he said,
“Pinochet has been arrested.”
That’s how it happened. A short anecdote right before I
finish. Sometime after, I was with Luis Moreno O’Campo and the
Chilean counsel at Harvard University. When the moment came to
speak about the Pinochet case, I was still working on the case. Luis
Moreno O’Campo said, “Judge Garzo´n cannot speak on the
subject. I’m going to explain all about it.” We were in a big hall with
the students, and he begins to explain how the arrest of Pinochet
occurred. He said, “Judge Garzo´n, with his team [of] fifteen
people, all together issued [an arrest warrant.]” I was looking at him,
and under the table, he was tapping me on my knee.
Everybody started clapping. And I asked him, “Why did you do
this? Why did you explain it like that?” [And he replied,] “If I tell
everyone that you and one office worker did all of this on your
own, they would never believe it.”
The truth is, the day after, I called Joan Garce´s. I told him,
“Joan, Pinochet knows he’s [been] arrested. We need to reaffirm
and complete the arrest order, because since all of this did not
have the complete history of [crimes for which Pinochet was
responsible], we only put one case there and then we added 104
So we finished up the case, thanks to Joan, and we finished up
the order in twenty-four hours with eighteen translators, without
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sleeping, eating sandwiches there in the court. The order was
issued. And thanks to that order, Pinochet remained arrested.
Because the first English judge made a mistake and put in the writing
that it was homicide, instead of [a] disappearance. The Hague
Court issued the order and continued on the second arrest warrant
that we [worked on].
MS. BERNABEU: My second question is about obstacles and
problems, and I know that you guys all went through a lot of them.
I would like to ask, you this question, Sir Geoffrey: It’s been said
that there’s the “before” and “after” Pinochet—that it’s the first
time a head of state was prosecuted. [But] it was not the first time a
head of state had been prosecuted. It was the first time that a head
of state [was] still sitting in power when he was prosecuted. He was
a senator at the time, so that precipitated a whole layer of
complications that the House of Lords and the UK needed to deal with,
because of immunity. I think [that’s] the first and foremost
obstacle that we needed to get over. Would you tell us [your] insights of
MR. BINDMAN: [After Pinochet was] arrested, his lawyers went to
the [high] court in London to get the arrest quashed on the basis
that Pinochet was immune as a head of state. Of course, he was no
longer head of state, but he had been head of state when the
crimes took place.
So the high court in London was presided over by our Lord
Chief Justice, a very liberal judge. Our government presented the
case against Pinochet. Unfortunately, they did not handle it very
well. I only got involved because I was told this was going to be
heard in the high court. I went along to the high court on behalf of
Amnesty [International]. The case was very badly argued by the
lawyers representing the Spanish government [and] our British
government lawyers. The court said he was immune, but they
allowed it to be appealed to the House of Lords.
Now, at that point I wanted to get the case properly argued,
and I applied to the House of Lords to get permission for Amnesty
[International] and also for families. I contacted various victims,
including Sheila Cassidy and various other people, and we built up
a whole group of people seeking to intervene in the case. This is
another example of the rather informal way these things happen. I
telephoned the House of Lords and said I wanted to apply for us to
intervene. This was on a Friday, I think. The case was coming in on
the Monday. Somebody in the office said, “Well, I think we’ve got
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one of the judges here. I’ll ask him.” So the judge happened to be
somebody I knew very well, a very liberal judge. And they said,
“We’ll call you back.” A half hour later I got a call saying that the
judge, Lord Slynn, looked at this, and he said [it was] fine. “Just
send us a written petition.” So that’s how Amnesty [International]
I then put together a team of advocates and we were very lucky
that Ian Brownlie, who was the professor of International Law at
Oxford University, the most famous international lawyer in Britain,
was very willing to help, and he became our leading advocate. We
put together a very strong case. . . . [U]nfortunately, we had to do
that because there was no real argument on international law from
the British government representatives.
So, in effect, although I was not involved in the arrest itself, I
can claim to have contributed to getting the arguments put before
the court so that the issue of immunity was properly dealt with.
MS. BERNABEU: Would you explain briefly what the arguments
were? What was the argument presented to the court?
MR. BINDMAN: Well, the argument was that, although everybody
accepts that a head of state has immunity from anything he does
while he’s in office, an ex-head of state does not have immunity.
That was our argument.
We also argued that, even if there is immunity, it can’t apply to
torture. Our case was based on torture. And we eventually
succeeded in the House of Lords, but then a whole new question
came up about whether one of the judges, Lord Hoffmann, who
had connections with Amnesty [International], was qualified to sit
or not. But that’s a long story.
MS. BERNABEU: And, Joan, keeping with this theme [of obstacles]
. . . and as Baltasar’s beautiful story shows, how many [hurdles] you
needed to jump. Tell us about the political conditions in Spain and
Chile, two scenarios perhaps different than the particular instance.
In Spain, what was happening and what kind of political
environment [did you have] to struggle [with] to keep this case alive
and eventually successfully litigate it? And what was the political
scenario in Chile, and how did that affect, if at all, your work?
MR. GARCE´S: We are talking about crimes committed by the state,
with state officers or with the means of [the] state, and that means
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politics. And it’s not easy if you are trying to prosecute someone
[who] is backed by political powers.
In this case, in our analysis, the international political situation
was vital. As I said before, it was impossible during the Cold War.
Even after that, we needed to find evidence. That work was done in
two and a half years from Spain, after more than fifteen years in
Chile. But we also needed a court of justice. And where was this
court of justice? Pinochet and other people were being investigated
in Spain, but he was not there. And then it was necessary to get his
arrest and extradition. As I said, how could we get the order of
arrest, the warrant of arrest? The judge explained that. But the
problem was [whether] it could be executed, and for that we
needed a court of justice with enough power and independence to
execute the order. Once again, things happened because they can
[Pinochet was in Ecuador] in March 1998, a few months
before his arrest. I was informed of his presence in Ecuador.
Someone told me, “Well, he’s outside Chile now.” And Chile never
expected that an order of arrest coming from a foreign tribunal
would ever be executed against Pinochet. My answer was, he’s in
Ecuador now, I guess, but I would not move one finger to get him
arrested in Ecuador because the judiciary in Ecuador at that time
could never implement the order of arrest in an effective way.
Pinochet then came to London and we got this case. We never
imagined he would be in London, but it was our responsibility to
react immediately and in a way that avoided political and other
interferences. I learned about Pinochet’s presence in London
through the media. The Chilean media were saying that he was in
London for medical treatment. [I began] to prepare the file for
the court to order his arrest. I received a phone call from someone
[who] worked with Amnesty International and was very interested
in getting Pinochet arrested, but we couldn’t get that without a
judge ordering the arrest. They said, “We think that we can only
get this order in Spain. Can you help us?” My answer was, “Thank
you for the information, but I am very busy.”
Who was he? I didn’t know. And even if I knew, I would not
say what I was doing over the phone. So the surprise effect was
absolutely necessary. And that goes to your question. Political
interference could take place at any moment and that was outside of
our control, so we [had to] manage [and] handle those things in
When the arrest took place, and the judge explained how, [it]
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was very important what the United States government [would] do
because of the special relationship between the United Kingdom
and the United States. The case was being prepared in the United
States since 1996. The Pinochet case is a second stage of the
Letelier case. Orlando Letelier was the former Ambassador of Chile in
the United States during the government of Salvador Allende, and
he was murdered in a terrorist attack in Washington, D.C. in
September 1976. Thanks to the work of two very good lawyers, Sam
Buffone and Michael Tiger, with the backing of the Institute of
Policy Studies in Washington, where Letelier was the director [at
the time], ensured that an assiduous investigation took place. We
had [the] benefit [of] this investigation in Spain.
Thanks [again] to the cooperation of those lawyers [who]
reached [out] to get the U.S. Department of Justice to cooperate
with the prosecutor in Spain. I was here in Washington [a] year
and a half before the arrest of Pinochet with one of the other
chaps investigating [the] magistrate that was [on] this case taking
testimony from some witnesses. That meant that the cooperation
between the Spanish justice and the U.S. justice was already
established when Pinochet was arrested in October ‘98.
MS. BERNABEU: Mr. Garce´s, you anticipated my next question. I
have other questions about the victims and the large impact of
these cases, but we may not have time. But I want to end with a
note on the U.S. anticipat[ing] that. There’s been an evolution in
thinking about [the] obstacles [and] the evidence available. And
there’s no question, we heard Peter Weiss and Reed Brody talk
today about the contradictions of cases not going forward. Although
I’m hopeful in the ATS and ATCA13 cases, the civil suits, there’s
also been an evolution in the U.S., through the declassified
documents. We have Peter Kornbluh here, Kate Doyle, experts at
analyzing the documents and what they contributed.
So for you, my dear, [is it] possible that you think there is [a]
more comprehensive ability for practitioners—that is prosecutors,
lawyers—[or] for victims to successfully [bring] these cases and if
the U.S. [particularly]contributed?
JUDGE GARZO´ N: We can’t talk about the victims, but I can’t help
talking about the victims. The Pinochet case would not have been
13 Alien Tort Statute, 28 U.S.C. § 1350 (2012) (imposing civil liability in federal
district court for tort claims brought by foreigners claiming “violation of the law of
nations or a treaty of the United States”). The law is also referred to as the Alien Tort
Claims Act, or ATCA.
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possible without the victims, without the support of the victims,
without the human rights organizations and lawyers, Reed Brody,
among them. He was working with others to bring this case
The institutions went along with this. They did not take the
initiative themselves. Maybe a magistrate or some prosecutor here
and there. Fortunately they were where they needed to be in order
for this to take effect, but it wasn’t a state initiative. Once the case
had been opened, the collaboration of the various countries was
It’s true that the message [President] Bill Clinton gave was
very clear: that he was not opposed to the arrest. . . . The important
thing about this is [that] the U.S. favored this investigation. For
example, with respect to the monies that Pinochet was holding
outside of the country, the Riggs case,14 was started here in the U.S.
That bank was sanctioned, I believe, a $17 million penalty. Finally,
that bank closed down.
Thanks to the victims, the initiative of Joan Garce´s, and the
Salvador Allende Foundation, among others, my court ordered the
money laundering charges against all of these bank executives, as
well as the Bank of Chile, Pinochet, and all of his family, because
they had $27 million, if I remember correctly.
Finally, we obtained about $8 million, and that’s the only
money that was related to Pinochet that went directly to the
victims. I ordered that a distribution system was set up through the
The importance of the Pinochet case, and other cases such as
the one[s] in Argentina and Guatemala that have been subject to
universal jurisdiction, is that something that was once almost
impossible—to obtain cooperation on the basis of documents that
were once classified—was being opened up. . . . [This] had [also]
happened in Spain with different state crimes, to the point that
now it’s almost one of the primary sources of information. So in
that area, the cooperation aspect was very important.
There was a time where ten, twelve, up to fifteen countries
14 In July 2004, a report of the U.S. Senate’s Permanent Subcommittee on
Investigations stated that from 1994 to 2002 General Pinochet maintained at least six
personal and corporate accounts at the Riggs National Bank in Washington, D.C., with
deposits ranging from $4 million to $8 million. See Larry Rohter, Pinochet Continues to
Haunt Chile’s Civilian Government, N.Y. TIMES, July 18, 2004, at N12. In 2005, Riggs
ultimately paid $8 million to resolve the case filed in Spain in 1988 related to findings
that General Pinochet ordered assassinations in the mid-1970s. Saul Hansell, Riggs
National Will Settle Spanish Suit Linked to Pinochet, N.Y. TIMES, Feb. 26, 2005, at C4.
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were cooperating side by side. The House of Lords consolidated
the cases into one case of torture. In March of 1999, they gave us
until April 11th of 1999 to complete the case, because on April
11th, the Jack Straw decision would be issued with respect to
whether the case would go on or not. From March 24 to April 11,
we added thirty-five more cases of torture to the proceeding so that
the decision would be even stronger. We consolidated work from
many countries, [such as] Switzerland, Chile, and Guatemala,
[and] we got all of the victims to come forward and to cooperate in
moving this matter forward.
And it’s important to note one thing: Pinochet returned to
Chile, but the extradition case was won. Judge Ronald Bartle
decided in favor of the extradition to Spain for the 1,148 cases of
disappeared people. Of course, the case did not move forward, but
remained there for the jurisprudence of Great Britain.
MS. BERNABEU: Thank you so much to my three speakers. Thank
you, everybody. Thank you very much.