"Let Justice Judge": An Interview with Judge Baltasar Garzon and Analysis of His Ideas

1. Introduction . . . . . 925
2. Background: Garzón and the Spanish and British Cases . . . . . 926
   1. Judge Baltasar Garzón . . . . . 926
   2. The Failure to Prosecute and International Human Rights Law . . . . . 928
   3. The Spanish Cases . . . . . 929
      1. Spanish Courts and Claims of Political Violence in South America . . . . . 929
      2. Universal Jurisdiction . . . . . 933
      3. Pinochet's Arrest . . . . . 935
   4. The BritishCases . . . . . 938
      1. Extradition and Immunity . . . . . 938
      2. Law Lords I . . . . . 940
      3. Law Lords II . . . . . 942
      4. Pinochet's Release: Politics and Precedent . . . . . 943
      5. Judge Garzón'sIdeas as a Catalyst for Change . . . . . 944
3. Interview with Judge Baltasar Garzón . . . . . 945
   1. The Interview . . . . . 945
   2. Reconciliation and the Need to Prosecute . . . . . 946
   3. Genocide as a Living Concept . . . . . 948
   4. Victims: The Most Forgotten . . . . . 951
4. Analysis of Garzón's Ideas . . . . . 953
   1. Garzón's Commitment toProsecuting Human Rights Violators . . . . . 953
   2. Reconciliation and the Need to Prosecute . . . . . 954
   3. Genocide as a Living Concept . . . . . 960
   4. The Special Significance of Victims . . . . . 969
5. Conclusion . . . . . 972

I. Introduction

For sixteen months from 1998 through 2000, General Augusto Pinochet Ugarte, the former autocratic leader of Chile's military dictatorship, was detained in London pending possible extradition to Spain to face charges of terrorism, genocide, torture, and other gross violations of human rights. The case became one of the most widely discussed legal issues of the century's end and represents the first time that the domestic court of one nation was successfully used to enforce internationally recognized human rights principles against a former head of state for crimes committed in a different country. Pinochet's arrest, detention, and the resulting precedent would never have occurred if not for the courage, tenacity, and intellectual creativity of a single individual—Baltasar Garzón—the Spanish judge who presided over the case and issued the extradition order.

While Judge Garzón has received significant media attention for his aggressive prosecution of Gen. Pinochet, the originality, significance, and impact of his intellectual contributions to international human rights have been largely ignored. The absence of an adequate consideration of Garzón's ideas is largely a function of two related factors: his reticence in granting detailed interviews; and the lack of a critical engagement with the innovative theoretical vision that motivates his aggressive prosecutions. This essay addresses these issues by presenting a rare interview with Judge Garzón coupled with an analysis of his ideas and their relationship to current developments in international human rights law. ¹

As a sitting judge on one of Spain's highest courts, Garzón is in a position to translate his ideas into action in ways that have broad political consequences, as evidenced by the Pinochet case. He has consistently supported prosecutions against individuals who violate domestic and international law regardless of their political influence, social power, or high-level positions within government. In this sense, Garzón's prosecution of Gen. Pinochet and other members of past military regimes in Argentina and Chile represents a logical expansion of his aggressive judicial approach to domestic criminal cases and his steadfast commitment to fundamental rule of law principles.

This essay argues that it is necessary to consider Judge Garzón's ideas in order to understand his actions and that his intellectual contributions to international human rights are significant and merit focused attention. Garzón emphasizes the necessity of using law to respond to political violence, a perspective with broad social implications. His firm advocacy of prosecutions reveals a belief that the larger processes of legal action—investigations, arrests, trials, the determination of guilt or innocence based on facts, and the possibility of formal legal sanction-represent key mechanisms for assisting suffering societies reckon with the complex impact of state terror.

To highlight the significance of Judge Garzón's ideas, this essay outlines the Spanish cases, the extradition order, and the subsequent legal debates in Britain. The essay then presents an interview with Judge Garzón structured by the author along...