Discreet Path to Justice?: Chile, Thirty Years After the Military Coup
A Human Rights Watch Briefing Paper, September 2003
September 11, 2003, marks the thirtieth anniversary of the military coup that overthrew the elected government of Chilean President Salvador Allende. For seventeen years after the coup, a military junta led by Gen. Augusto Pinochet governed the country. There were no elections or legislature, and the press was strictly controlled. Between September 11, 1973, and March 1990, when Pinochet finally handed over power to the elected government of President Patricio Aylwin, 2,603 people were executed, died under torture, or "disappeared."1
After Chile's return to democracy, these crimes were not prosecuted. Before leaving power, the military government had established an imposing set of political, legal and institutional protections meant to shield officials from justice. These protections included an amnesty decree that barred the prosecution of human rights crimes committed from 1973 to 1978, the period in which the worst political repression took place.
The decree was imposed after four-and-a half-years during which Chile was governed under a state of siege. It has never been submitted to a vote. U.N. treaty bodies and the Inter-American Commission on Human Rights have found it to be incompatible with Chile´s international obligation to try and punish those responsible for the grave human rights violations committed under military rule.
It has only been in the past few years, since Pinochet's landmark 1998 arrest in London, that Chile has made substantial progress in holding accountable those responsible for crimes committed under military rule. Most significantly, the courts have recently convicted several former military officers of heinous crimes committed during the period covered by the amnesty decree. Ruling that enforced disappearance is an ongoing crime, the courts have held the amnesty to be inapplicable. As a result, hundreds of former members of the armed forces now face trial. But because the convictions of former military officers have yet to be affirmed on appeal, the future of such prosecutions hinges on the views of Chile's appellate courts, including, ultimately, the Supreme Court.
While Chile has taken impressive steps forward on justice and accountability since 1998, the underpinnings of accountability remain fragile. This briefing provides an overview of recent developments. After a brief discussion of the Pinochet case, it analyzes the status of dozens of other court cases addressing past human rights crimes, highlighting prosecutions that resulted in convictions notwithstanding the amnesty decree. It concludes with an examination of justice proposals put forward by the government of President Ricardo Lagos and the state of civil-military relations in Chile today.
The question of how best to address past human rights abuses is once again a matter of public debate in Chile. On August 12, 2003, a month before the anniversary of the coup, Chilean President Ricardo Lagos announced an array of new measures relating to the criminal prosecution of former members of the military and to reparations for the relatives of victims of past human rights crimes.
Since President Lagos took office in March 2000 his government has maintained a discreet distance from developments in the courts. While taking a hands-off approach it has, nonetheless, tacitly supported the progress toward accountability. Notably, the government has rejected calls from pro-military political sectors to intervene in criminal prosecutions and enforce the application of the amnesty decree. It has insisted, instead, that interpretation of the decree is within the courts' legitimate and exclusive competence. It has also disregarded pressure from opposition politicians and sectors of the military to impose a time limit on judicial investigations. Finally, the government has contributed to the scope and effectiveness of these investigations by urging the higher courts to appoint special judges to devote themselves full time to human rights cases.
At present the Lagos government is seeking to play a more active role in the effort to address past human rights abuses. The measures that President Lagos announced on August 12 include welcome innovations for extending compensation to the victims of abuses, such as the creation of a commission to draw up a list of victims of torture. After thirteen years of democratic rule, this is the first time that an official proposal has been made to help those suffering the long-term consequences of torture. Another positive measure is the proposal to transfer human rights cases currently under review in military courts to the jurisdiction of the civilian court system.
Lagos has also advanced a more controversial proposal to provide immunity from prosecution to persons who come forward of their own accord to provide information to the courts. Government representatives have assured Human Rights Watch that immunity would not be offered to anyone who had participated directly in crimes against humanity. The language of the proposal does not reflect this. Human Rights Watch has urged the government to ensure that in the draft legislation and the debate on it in Congress this benefit is not provided to those responsible for gross violations of human rights. Providing immunity from prosecution in such cases would be contrary to international standards and could undermine progress to establish accountability for past crimes.
Lagos has also advanced a more controversial proposal to provide immunity from prosecution to persons who come forward of their own accord to provide information to the courts. Government representatives have assured Human Rights Watch that immunity would not be offered to anyone who had participated directly in torture, executions, or "disappearances." However, the language of the proposal is not explicit on this point. Human Rights Watch has urged the government to ensure that in the draft legislation and the debate on it in Congress this benefit is not provided to those responsible for gross violations of human rights. Providing immunity from prosecution in such cases would be contrary to international standards and could undermine progress to establish accountability for past crimes.
Another of the Lagos proposals would offer reduced or commuted sentences to persons charged with involvement in human rights abuses who provide information on the whereabouts or fate of the "disappeared." Human Rights Watch considers such reductions to be legitimate if they promote the investigation of crimes and help breach the wall of silence that has surrounded such crimes for a quarter of a century. Given that inquiries into the fate of the "disappeared" have so far proceeded at a frustratingly slow pace, the goal of advancing such investigations is a worthy one. We believe, nonetheless, that any law establishing leniency procedures should include strict guidelines to ensure that the option of lesser punishments is not abused.
A third proposal relating to prosecutorial leniency concerns those who followed orders out of fear or ignorance. It is well established that obedience to orders is no defense from prosecution for grave abuses of human rights. Any measure that would grant immunity, therefore, should be narrowly drafted to cover only persons who acted under threat of imminent death or serious bodily harm.
While the question of how to address the military's gross human rights violations may be the most pressing issue left over from the Pinochet era, it is not the only one for which reform is needed. The country's 1980 Constitution, another legacy of military rule, badly needs revision. Yet efforts to rid it of its undemocratic aspects have moved at a snail's pace. After thirteen years of negotiations between the government coalition, the Coalition of Parties for Democracy (Concertación de Partidos por la Democracia), and the main opposition bloc, a broad array of constitutional reforms is still bogged down in discussion in a Senate committee.
In deliberations that receive little press attention, the committee appears to have reached consensus on most of the reforms. They include, for example, the elimination of appointed seats in the Senate, restoration of the president's powers to remove the commanders-in-chief of the armed forces and the uniformed police, and downgrading of the powers of the National Security Council. In the past, however, agreements on these issues have often broken down, and the future of the reforms is still uncertain.
Chile remains deeply divided along left-right lines about the circumstances of and justification for the coup and may remain so for many years to come. Its people are increasingly prepared to accept this as a fact of life; politicians talk much less now of "reconciliation" than they did previously. Nevertheless, only a few still triumphantly commemorate the events of September 1973. Of those who are convinced of the benefits the military regime brought to Chile, only a minority denies or seeks to justify the terrible human rights crimes that it committed.
The army, the branch of the armed forces most implicated in the abuses, has publicly acknowledged human rights violations and, in marked contrast with previous years, now extends at least limited cooperation to judicial investigations seeking to clarify what took place and who was responsible. The current army commander, Gen. Juan Emilio Cheyre, has made speeches distancing the army from the military government. The same is true of the political parties of the right, many of whose leaders participated in that government as ministers or officials. And most politicians in the opposition, as well as in the government, agree that the courts should determine criminal responsibility without pressure or political interference.
Yet there remain clear limits to Chile's efforts to deal with its abusive past. In Congress, significantly, no proposals have been introduced to repeal or annul the amnesty decree. Indeed, government spokespersons over the years have consistently opposed such an option as politically and legally unviable.
In this respect, the situation in Chile differs significantly from that in Argentina, where the recently elected government of President Nestor Kirchner has taken vigorous steps to bring about the prosecution of "dirty war" crimes. Within days of taking office on May 23, President Kirchner fired senior military officers who had lobbied for officers under prosecution for human right abuses committed during military rule, and repealed a government decree preventing the extradition of such people to third countries. Soon after, he successfully pushed Congress to annul the country's amnesty laws.
While developments in Chile have been less dramatic, their overall trend remains positive. Within the next few years, if not sooner, events will tell whether Chile's quieter approach also leads to justice.
1 The National Commission of Truth and Reconciliation, and its successor, the National Corporation for