Stephen Sedley

In a crowded restaurant a bottle of wine arrives at our table with a note: ‘Por tratar de juzgar a Pinochet y hacer justicia en nuestro país’ – ‘For your efforts to bring Pinochet to trial and to do justice in our country.’ Wherever we go in Chile with him, people recognise Juan Guzmán as the judge who has indicted a series of high-ranking officers for the torture, murder and aggravated kidnapping of more than a hundred victims of the military terror of the 1970s and 1980s. It is still possible that General Pinochet will be indicted with them. They come up, shake Guzmán’s hand and say awkward words of thanks.

In a street market in Valparaiso a writer recites for us his poem about the attempts of the Law Lords and Guzmán to bring Pinochet to justice. Guzmán, whose father was one of Chile’s best-known poets, asks him to send the text. The young waiter who shows us to a lunch table with Victor Jara’s widow tells us that he, too, is Victor Jara, named by his parents after the singer and guitarist, imprisoned with thousands of others on 11 September 1973 in the stadium where four years earlier he had won the first festival of new Chilean song, whose fate became known only because his body was recognised by a mortuary worker, the hands and wrists methodically broken.

The junta’s last act before handing over office in 1989 was to grant itself an amnesty for its crimes. But the Supreme Court has now decided, first, that abductions which were unsolved at the date of the amnesty law are continuing and therefore still triable crimes; and second, that the amnesty law – which has been accepted, in the interests of legal stability, as valid – does not prevent the prosecution or conviction but only the punishment of perpetrators.

Like many middle-class Chileans, Guzmán had accepted the coup as probably for the best as the Popular Unity government struggled against the national and international odds to avert political conflict and economic collapse. Strangely, the year before it happened he and his wife had been recruited by Costas-Gavras to play minor parts in State of Siege. The film – about a military coup – was not shown in Chile until three years ago. Meanwhile, in 1981, Costas-Gavras had made Missing, about the disappearance of the American journalist Charles Horman following the coup – a crime which Guzmán has since had to investigate judicially.

Practically nobody drops litter in Santiago’s or Valparaiso’s crowded main streets. A train arrives every two minutes on the capital’s spotless metro. Passengers take care not to barge or to squash others. How this civilised society was torn apart by military intervention thirty years ago is well known. How and why it then tore itself apart is a mystery to anyone who now encounters its benign people; yet it was by no means a uniquely Chilean phenomenon that the nextdoor neighbour became an informer, a collaborator, a torturer, a licensed killer. It happens with grim predictability under authoritarian regimes, and it would have happened in Britain if 1940 had ended differently. Chileans are still, and for generations will be, divided by the legacies of those years. The local mayor, a supporter of the old regime, has had the bust of Guzmán’s father removed from the public garden where it stood and replaced with a small bronze head of Grace Kelly, presumably all that was available at the time.

Guzmán and his colleagues decided in their course of the investigation to reverse the Nuremberg principle in relation to middle and low-ranking offenders and to accept superior orders as a defence. Disapproval leaps to mind; but the result has been dramatic. Scores of individuals who had been keeping their heads down in fear came forward with evidence, among them the helicopter mechanics whom nobody had previously thought to debrief. Their testimony has helped to establish the scale and, above all, the methodical character of the regime’s atrocities. Other countries too, notably South Africa, recognising that in the end some justice is better than no justice, have had to make working compromises with the no-impunity principle.

Chile’s economy is now probably the strongest in Latin America. China’s huge and growing demand for copper is pushing the peso ahead of the dollar. Enterprise flourishes. That the Pinochet years kickstarted the present prosperity is not much disputed. That other countries (Britain and New Zealand among them) went through a parallel transformation without resorting to torture and murder has muted some – not all – of the general’s support. Practically all that is left of the junta is the honeycomb of bunkers it constructed under the square in front of the Moneda Palace. But above the bunkers the square is grassed over; a statue of Salvador Allende stands there; and in the evenings young people queue to listen to Chilean singers of my generation performing.

The Chilean parliament was exiled by Pinochet to Valparaiso, once a great Pacific port, now a picturesque valetudinarian city on a horseshoe of hills climbed by more than a dozen clanking funicular railways. The parliament is still there, in a large box-like building (has colonel architecture yet been recognised as a genre?). While some deputies prefer the location, others want to return to the cavernous Westminster-style building in Santiago, where two massive sets of longitudinal benches glare at each other and the eye wanders from the blazoned national motto (‘por la razón o por la fuerza’ – ‘by reason or by force’: nasty but prescient) to the vast fresco depicting the discovery (sic) of Chile by a gleaming troop of conquistadors to whom a poncho-clad native, with a sweeping gesture, is offering the place.

Not many days before I had climbed the fortified mountainside at Pukará de Quitor where the Mapuche people had held out against and halted the southward march of the Inca empire. Thirty Spaniards, with firearms, took the fortified township in two hours, cut the men’s heads off and stuck them on poles. Sooner than face the harbingers of civilisation, the women took the children and threw themselves down the sheer drop which forms one side of the mountain.

The people of the region are the same people now as then. The dark aquiline faces have little of Europe in them. Changing the guard in front of the Moneda Palace in Santiago, the 40 trumpeters who led the regiment could have been preceding an Inca emperor. The effect is spoiled only by the Chilean army’s use of German-style helmets: those of us who used to watch Rowan and Martin’s Laugh-In still expect the wearer to squint through steel-rimmed spectacles and say gutturally: ‘Very interesting.’

In the far south, photographs now sold as postcards show the Romanian engineer and prospector Julius Popper with the corpses of native Selknams, the indigenous people of the southern tip of the continent, whom he and his friends (like other groups of colons) stalked and shot in the 1880s. Settlers’ diseases and drink, as always, killed far more, and these now extinct hunters and gatherers survive only in photos. One series, from the 1920s, shows Selknam men exquisitely decorated and body-painted from top to toe. Their oral histories – taken down by anthropologists from the last survivors – recorded the moment, some two thousand years ago, when the rising seas broke through what are now the Straits of Magellan and cut off part of their homeland from the Patagonian mainland. I wonder what Julius Popper and his like ever accomplished that was fractionally as civilised as this meticulous tending and transmission of a collective memory.

In the centuries of direct rule Spain and Portugal installed in most of their Central and South American colonies the Inquisition-based criminal procedures which they operated at home. When during the 19th century the metropolitan systems were reformed, to some extent separating the prosecutor from the court (and Portugal became the first state in Europe to abolish the death penalty), the elites which by then were in charge of independent states on the other side of the world showed little interest in following suit. By and large, though with growing pressure from the World Bank and the common law states to move towards a more adversarial system, Latin America reached the end of the 20th century with its criminal procedures unreconstructed.

I spend a morning sitting in on the Santiago court of appeal’s interlocutory criminal hearings. They are not public. The relator, a lawyer on the first rung of the judicial career ladder, summarises the case and the issues to the court. If the accused has a lawyer, the lawyer is then invited in, but in most cases he or she doesn’t know what the relator has said. This offends the common law notion of open adversarial justice, and it is soon to end; but I recall that it was only when Peter Taylor became Lord Chief Justice in 1992 that our own criminal appeal court began letting the defence see the case summaries prepared by the court’s officials. Things which you have lived with tend to seem unproblematical until you change them; then you wonder what on earth you once thought you were doing.

In Peru the inertia was associated with a largely successful endeavour on the part of successive governments to prevent an independent judiciary from developing at all. In Chile, democratic reconstruction has had to be given priority over legal reform since the end of the Pinochet regime. It is only this year that Chile, one of the last states in the world with no legal divorce (the only other democratic ones one I know of are the Philippines and Malta), has finally legislated to allow it. The hierarchy’s quixotic last stand was an attempted amendment requiring couples to opt when they married for marriage-with-divorce or marriage-without-divorce.

Later this year, the prosecuting function will finally be taken out of the hands of investigating judges and the judicial function will become something closer to umpiring a contest between individual and state. It’s a fine irony that, had Chile not spent recent years first under an autocracy and then rebuilding its democracy, by 1998, when Pinochet first found himself under criminal investigation by Guzmán (who had been assigned the case on a rota), the Chilean judge’s comprehensive power of judicial investigation would already have been a thing of the past. The frequently brazen pressure which Guzmán has faced over these years to drop his investigations might then have been quietly and possibly more successfully directed at a state prosecuting official with no history or tradition of independent functioning. Instead, Guzmán, refusing to be deflected, has slowly uncovered a series of mass graves and human remains, has obtained inculpating testimony from an impressive number of sources, and has laid charges.

The Chilean constitution, for intelligible reasons, accords immunity from criminal investigation to public figures unless and until some hard evidence exists against them. The Court of Appeal, early in the investigation of the complaints laid against Pinochet, accepted that such evidence existed and lifted his immunity. On his return to Chile from Britain, Pinochet’s lawyers claimed that he was too frail and senile to stand trial. Guzmán decided that the medical evidence established no such thing, but after a long spell of deliberation the Supreme Court by four votes to one took the contrary view and restored Pinochet’s immunity. The recent news that the Chilean Court of Appeal has once again held that Pinochet should stand trial is the result of the multiplicity of Guzmán’s investigations. The earlier decision related to the indictment arising out of the Caravan of Death. This one concerns Operation Cóndor. Guzmán had already indicted the general in charge of the intelligence service, DINA, for this operation which involved the military secret police of Chile, Argentina, Brazil, Paraguay and Uruguay in a joint enterprise of killings and disappearances. When he had the evidence to add Pinochet to the indictment, Guzmán had to apply afresh to lift his constitutional immunity, and it is this which the Court of Appeal has again allowed. A further application to restore the immunity on grounds of ill-health can be expected.

It has not been easy for Guzmán or his family. He has for a time now had a 24-hour armed police guard. It includes two likeable plainclothes drivers whose skill I could recognise from what I have seen of their counterparts’ work in Northern Ireland and whom I came to think of as Starsky and Hutch. Later this year, at 65, Guzmán will be retiring by choice in order to lecture and write. Behind him he will leave, ready for trial, a series of indictments arising from his investigations into three of the regime’s enterprises of arrest, torture and killing, Operation Cóndor, the Caravan of Death and Conferencia Street, each responsible for scores, possibly hundreds of victims. It is probable that thirty or forty senior officers will stand trial on these indictments. Whatever the outcomes, this has been the work of an honest judge.

One night during the world congress of the International Association of Constitutional Law – my excuse for being in Chile – we had dined under the orange trees in the courtyard of the Casa Velasco, the 18th-century captain-general’s house which is now the Constitutional Court’s seat. My wife, Tia, was out in the Andes on horseback with a Chilean guide who spoke a little English and a huaso, Lorenzo, who provided the horses and the mule, and whose Spanish the guide could barely understand. She made her own record of it.

I am told that Lorenzo thinks it odd that a woman would come riding alone. Since I am setting out with two men, neither of whom I have met till this morning, on a five-day ride in the Andes, his wonderment may be justified. ‘Chilean women do not ride.’ This seems unlikely. The mule, who is blind in one eye, is blindfolded and hobbled while being loaded with food and two North Face tents. I approach Lorenzo’s hobbled chestnut gelding and put my hand gently towards his head to show my familiarity with horses. He rears and hops off, showing the whites of his eyes. My horse, who appears depressed and veers to the right like a wayward supermarket trolley, is called Cochayuyo, the name of a strap-like seaweed that is harvested and sold in neat bricks by the roadside. Juan said it was good for children, boiled with potatoes.

As we set off still higher into the Andes my beautiful and pretentious sombrero de paño negro (cost £25) is blown off my head into a torrent of melting snow water. I jump off to rescue it and get left behind because Lorenzo, in the lead with the mule behind him, is setting a smart pace with his viciously spiked espuelas. I learn that Cochayuyo has reason to be depressed and to veer to the right. He has only recently returned from being lent to a man who mistreated him, and the drop on the left is about 180 feet straight down. One of the two fully laden mules that fell to their deaths two weeks before, tied together, is still visible at the bottom of the drop.

On the fourth day Lorenzo asks (via the guide) if there are wolves in London. He pulls a ‘bloody tourist’ face when I answer solemnly that there have not been wolves in England for hundreds of years. I have forgotten about An American Werewolf in London. He pulls a similar face when I say that I like riding horses ‘without a saddle’. For lunch we have chopped onions in cold oil, tomato puree, tinned mussels and hot Pot Noodles, all mixed together, and uniquely bad Chilean red wine.

The guide goes to his tent for a nap. With an air of distinct challenge, Lorenzo fetches Cochayuyo and politely stands him by a stone to assist my mounting. These horses are small, strong and sturdy and climb like mountain goats. The Chilean saddle is supportive but ungainly and uncomfortable. Cochayuyo behaves differently when ridden without a saddle, sticking his head up and refusing to do anything less than an anxious jog. Both riding bareback, we go off to fetch an errant horse. Lorenzo, who I guess is between 35 and 65, leans over, picks up the trailing rope of the escaped horse, and we gallop. Lorenzo is watching me closely. In fact we are watching each other. I have no intention of falling off.

Skirting some high mountain pasture land, bright green and treacherously boggy, we come across a wooden shed that houses a perfectly constructed toilet and I shout ‘baño’. With the door open, a gleaming white toilet seat and lid are exposed against an unforgettable and remote Andean backdrop. I indicate to Lorenzo that I am going inside. I shut the door. The well dug under the seat is dry and stony and the sound very loud. I come out triumphant. Lorenzo has turned himself and the horses away and his head is modestly bowed. I vault onto the horse. Feeling childishly smug, I gallop off with him a second time. I have since been told that the baño was erected for the use of the wife of a national newspaper proprietor who liked to ride in the mountains, though she had not been seen for several years. Chilean women do ride.

On our return I say thank you to a group of assembled men from the family for letting me ride without saddle in ‘Lorenzo’s garden’. Then I give him my penknife, which causes a stir because it is Swiss and such knives seem to be highly prized. A hunched man, possibly Lorenzo’s father, gives me a hard look through narrowed eyes when I make my speech and offer my gift. I give him a hard look back: Chilean folklore is full of wicked corrupting women. Then some horses and mules escape their corral and he slowly unhobbles a fine-looking black horse, takes it to a mounting block and having mounted sits erect and eyes me. I stand up and bow, taking off my battered hat to him. He speaks to me with, I think, dignity, but it may be indignation. Not for the first time I wonder about Chileans who are my age and older. Juan’s bodyguard, a policeman, confirms that after the coup the police were instructed to arrest women for wearing trousers in public.

‘Did he do it?’


‘Murder Princess Di.’

Tia Sedley