Speech of Juan Garcés
Speech of Juan Garcés
It is a great honour to be given the opportunity to speak on this occasion, and I thank the Jury of the Right Livelihood Foundation, as well as those who proposed my name for this distinction, and I accept it as a form of encouragement for all the people who are endeavouring to make our world safer and free of crimes against humanity.
The century which is now coming to a close has been the one which has witnessed the greatest disasters in history: Guernica, Shanghai, Dresden, Gulag, Auschwitz and Hiroshima are landmarks on a long road of tragedies in which society's technical and organisational development has been used to increase the capacity to destroy tens of thousands of people for ideological, racial or ethnic reasons.
Mass murder, torture as a habitual method, selective terrorism and indiscriminate terror have been used systematically on all Continents as instruments of internal or external policy, and they are still being used at present.
These State policies, which were used to achieve the mental and physical destruction of entire portions of society, gave rise to legal categories such as 'genocide' and 'crimes against Humanity' in response to the many catastrophes of the Second World War.
It must be mentioned that the most serious crimes have been and are being committed by people who resort to State resources and instruments for the purpose. However, these people are enveloped in a cloak of impunity woven with the financial, political and military resources of the State itself. They declare themselves to be above the law, elevating their crimes to an almost perfect sphere where they are never punished for them. They even deny the existence of the crime, which they cover up with phrases such as 'Final Solution', 'ideological cleansing', 'ethnic cleansing', 'disappeared' etc., and they even try to provide legitimacy for their crimes under the pretext of the different doctrines we have seen applied in some countries, such as national security, national interest, racial identity, 'Lebensraum', etc.
If these doctrines survive their creators, this poses a great danger. These seeds are available to germinate and produce new crimes and are a sword of Damocles hanging over entire peoples. Internal peace and human and democratic values will be at risk while such crimes continue to be committed with impunity and while the doctrines which justify them endure.
Impunity for State crimes is certainly unacceptable from a moral, ethical and legal standpoint; but it is often forgotten that it must also be condemned for reasons of realism and political pragmatism. Today impunity is an invitation to commit new crimes, and forms a spiral which feeds itself in a perverse circle, and becomes a latent or effective threat to international peace. A State or institution of the State whose doctrine is impunity for crimes against humanity tends to extend this doctrine to foreign policy and exercise over other States an effect of demonstration, of understanding.
The generation which in 1945 defeated the States which made some of these doctrines official realised this and proclaimed it in the United Nations Charter. This was the generation which for the first time in History made Humanity an individual subject of the Law and placed it above the States themselves and above the provisions and the authorities governing them. These legal principles have been a part of international law since they were approved on 11th December, 1946 by the General Assembly of the United Nations under the name: 'Principles of the Charter and Verdict of the Nurenberg trials'.
Although 'citizens' had to await the great upheavals in the form of revolutions which took place at the end of the eighteenth century to be recognised as an individual subject of the law, Humanity itself achieved this status only in 1945 as a result of another great social upheaval. Since 1945, collective efforts to prevent and punish crimes against Humanity have given rise to a body of legislation which has made it possible, slowly, to surmount obstacles and short-term interests and have produced Treaties which establish that it is the duty of each and every State to punish crimes of genocide and torture both in times of peace and in times of war.
An essential part of these Treaties is the assumption that it is very difficult to have State crimes punished by the guilty State. To surmount this objective reality, Treaties seek to establish a universal jurisdiction, which is considered to be a necessary factor to prevent and punish such serious crimes.
Thus, by ratifying the Treaties, each State has assumed the responsibility of preventing and punishing crimes against Humanity. We can therefore say that those States are not only entitled to punish the parties responsible, but are also obliged to do so.
Only if States cooperate in discharging this duty will it be possible to punish the worst enemies of humankind. This task is necessary and possible. In the case of slavery and piracy, which for millennia were considered natural phenomena, these scourges disappeared when States resolved to punish the slave-drivers and pirates wherever they were caught.
Whoever commits a crime against Humanity offends Humanity as such and nobody is entitled to represent Humanity and cover up an offence with a blanket of oblivion and pardon. This is why the law declares that such a crime is not under the statute of limitation and ineligible for amnesty.
Business interests or political rewards are often invoked to avoid apportioning blame for crimes against Humanity. This means sacrificing permanent interests to short-term ones, a reversal of priorities whose consequences are apparent: the spiral of crime has continued to ascend and domestic and international peace have been under permanent threat and have been broken from time to time. In the medium and long term, the cost in human or financial terms or in terms of civilisation has been much greater than the short-term benefits deriving from the impunity enjoyed by the main parties responsible for crimes against Humanity.
Our proposal is that the development of a State of Law, with an international jurisdiction, is the way to prevent and punish crimes against Humanity which is the least costly financially and the most profitable socially. In compliance with international treaties, Parliaments must discharge the task of enacting laws which make their courts competent to punish these crimes on a universal basis. And Governments must provide political and diplomatic support to the courts which discharge this specific jurisdictional function.
This contribution by the State courts is necessary now and will be necessary even after the Permanent Criminal Court approved in Rome in July, 1988, starts to operate, and whose competence will be accumulative or complementary to that of the State Courts but will not replace them. Moreover, the specific competence of the International Court requires cooperation to be lent by States and their judicial agencies.
The international community is seeking new instruments to interrupt the spiral of crimes against Humanity. Legal means are one of them and they could be developed to a much greater extent than they are being developed at present. Current international treaties must be applied effectively according to their aims. In this task, the existing Courts of Justice must be encouraged to apply international provisions and the other agencies of the State must provide them with diplomatic and political support.
In 1973, the Swedish authorities showed great discernment in their condemnation of the military revolution which destroyed the most developed system of democratic coexistence then existing in the Hispanic world. The Swedish ambassador to Chile, Mr. Harald Edelstam, saved hundred of lives while risking his own and I am honoured to pay tribute to his memory. Subsequently, the General Assembly of the UN condemned on nineteen occasions the criminal activities of the State which emerged from that military coup, with Sweden always voting in favour of the motion. In other words, the international community has never accepted the institutionalisation of impunity for crimes against humanity. This principle is being reaffirmed today by the Courts of the States which have brought legal action for the crimes committed by officials of the Chilean State: those of Spain, the United Kingdom, Switzerland, France, Belgium, Italy, USA, Argentina and Germany. In other words, yesterday's condemnations at the United Nations are now the object of proceedings being conducted in criminal Courts of Justice. The detention for extradition of Augusto Pinochet, requested by the Spanish courts on 16th October, 1998 and the granting of his extradition by the British Courts on 8th October, 1999, are an example of the International Community providing the State with legal instruments to punish the main parties responsible for crimes of this nature, including Heads of Government and Heads of State.
The future effectiveness of this specific precedent of cooperation between Courts of Justice depends on its application in other cases, without any distinctions due to the ideology or nationality of the current guilty parties or of their victims.
This is complex work and it requires that provisions be implemented which can deal with purported criminals and mobilise considerable diplomatic, financial and military resources. However, it is a challenge to create and develop peaceful and civilised instruments to make respect for life, liberty and the dignity of persons and people more effective.
We must all advance along this path together, because everyone's efforts are necessary and because it benefits us all. I understand that the Right Livelihood Foundation seeks to encourage this group effort with the distinction which I have the honour to receive today.
Thank you very much.