Discreet Path to Justice?: Chile, Thirty Years After the Military Coup

A Human Rights Watch Briefing Paper, September 2003

V. The Lagos Proposals

In a televised broadcast on August 12, 2003, President Lagos announced his government's first major initiative to deal with the legacy of human rights violations committed under military rule. His proposals were broad in scope, covering three main issues: measures to improve the effectiveness and speed of court investigations of past human rights violations; proposals to improve and extend symbolic and economic reparation for victims and their relatives; and institutional and legal reforms to safeguard human rights in the future. At this writing the government was drafting several bills to implement the proposals.

Several of the proposals would be positive steps. Among these is a proposal to transfer all human rights cases currently under review by military courts to civilian courts within a month. The lack of independence and impartiality of military courts in dealing with human rights cases has been amply demonstrated in the past, and this measure is long overdue. Another important proposal is to provide the courts with powers to subpoena classified documents from the armed forces, a necessary counterbalance to military secrecy.

Human Rights Watch also welcomes the Lagos government's commitment to continue seeking the appointment of special judges to devote themselves full time to human rights cases, and to ensure the continuing cooperation of Investigaciones, the criminal investigations police force, with the judges. Another useful proposal is the government's offer to provide the Medical Legal Service (SML) with an external advisor to improve methods and procedures of identifying victims from bone fragments and other remains found at burial sites. The efficiency of the SML has been seriously questioned in recent years, and the assistance of an independent expert to monitor this vital forensic work is essential.25

The proposal to form a commission to draw up a list of victims of torture is also to be warmly welcomed. Beyond economic compensation, the government should consider ways of symbolically recognizing the legacy of systematic torture. The commission should be mandated not just to investigate and record individual cases, but also to investigate as fully as possible the circumstances in which torture became established as an institutionalized practice following the military coup, and for its findings to be made public. Such a report would help increase public awareness about the scourge of torture, a topic that is still largely taboo in Chilean society.

Three of the government's most controversial proposals are aimed at encouraging those implicated in human rights abuses to cooperate with the courts and to provide information about the fate and whereabouts of the victims of abuses. These proposals have been criticized by Chilean human rights groups as amounting to a veiled form of impunity.26

In general terms, Human Rights Watch recognizes that prosecutors in some circumstances may appropriately offer more lenient sentences to suspects willing to provide information that aids in the clarification of crimes and the identification of those responsible for them. We believe, however, that any offer of prosecutorial immunity to those responsible for gross human rights violations such as torture, "disappearance," or extrajudicial execution would be unacceptable. We are also convinced that offers of sentence reductions should be made only in cases in which genuinely useful cooperation is extended, and that the sentence reduction must be limited and proportionate to the extent of the cooperation.

Human Rights Watch is thus concerned about the first of the leniency proposals, which offers immunity from prosecution to:

    Those who without being accused or charged present themselves voluntarily to the courts and provide reliable, effective and verifiable information about the whereabouts of the victim or the circumstances of that person's disappearance or death.

According to a high-level government advisor, this measure is intended to apply only to those who had an ancillary role in human rights abuses, have not been identified in criminal proceedings, and might never be traced unless they voluntarily came forward to offer information.27 In response to criticisms by human rights lawyers who fear that the proposal could provide immunity to people responsible for grave abuses, the government has said that those who participated directly in such abuses have already been identified in court proceedings, and therefore would not be eligible.28 Yet the concern remains that not all these individuals have already been accused or charged. If the government wants to limit the offer of immunity to those persons who only had an accessory role in crimes, it would be easy enough to draft the law so that includes such a limitation.

In the congressional discussion of laws to implement this proposal, legislators should ensure that the offer of immunity from prosecution is strictly limited to those situations where it is appropriate. It should never be granted to individuals who were directly responsible for gross human rights violations like torture, "disappearance," or extrajudicial executions. An individual may be eligible for immunity from prosecution only if he or she was unaware of participating in a grave criminal act, and did not participate knowingly in similar actions before or since. For example, immunity might be appropriate for a truck driver who was ordered on a single occasion to transport prisoners to a spot where they were executed, without foreknowledge of what was to happen. Those who formed part of the firing squad should not, however, be granted immunity, even if mitigating circumstances could be considered in calculating their sentences.

In addition, legislators should make clear that the immunity offered only covers the facts revealed in the confession, or in any accusation that may subsequently arise from it should new criminal proceedings be initiated. Blanket immunity from criminal prosecution would be unacceptable, as it would allow a person to escape prosecution for grave crimes by admitting to participation in minor ones.

A second provision aims to:

    Reduce or commute penalties applicable to those already charged with complicity in or covering up crimes but before the court has passed sentence, if they provide information that helps effectively to establish the facts, or to identify the participants or the fate of the disappeared or executed prisoners whose remains have not been handed over.

If the individual concerned does not provide the information within a set period of time, these benefits would not apply.

In principle, this is similar to a plea bargain arrangement, and is a system already used in Chile in dealing with organized crime. In principle, Human Rights Watch has no objection to an arrangement of this sort and indeed recommended it in a letter sent on July 15 to President Lagos.29

We believe, however, that any law establishing this procedure should provide guidelines to the effect that the reduction or commutation of sentences should only apply to less serious crimes, and in no circumstances to gross violations of human rights or crimes against humanity. For example, those responsible for planting evidence at crime sites to disguise extrajudicial executions should not be eligible if such actions form part of the planned elimination of government opponents. Neither should those who do not torture prisoners but assist in torture by taking statements or giving medical examinations to prisoners after torture.

A third provision concerns those who followed orders out of fear or ignorance. They would be given lesser penalties, or even excused altogether once the truth had been established.

The proposal states:

    There are circumstances in which subordinates have operated out of fear of reprisals that could mean placing their lives at risk, or in a state of insuperable ignorance, and have not been in a position to take full cognizance of the consequences of their actions. If these people are prepared to cooperate with truth and justice it would seem logical to consider a lesser sanction or no sanction at all in their case, once the truth is established.

It is important to note that under human rights law the mere fact that a member of the military is following the orders of a hierarchical superior is no defense from prosecution for grave abuses of human rights. This principle is clearly enunciated in the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and in the Rome Statute of the International Criminal Court.30 The Rome Statute only provides for immunity from prosecution if the person faced "a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person."31 Any proposal to implement leniency or immunity for those in subordinate positions in the command structure should closely adhere to this principle.

The concept of "insuperable ignorance" is not recognized in international human rights law as a circumstance for which immunity from punishment for the commission of a gross violation of human rights is acceptable. In recent meetings with government officials Human Rights Watch urged that this concept be omitted from the draft legislation to be presented to Congress.32 How much an individual knew or did not know about the consequences of his or her actions is one of the circumstances that the court should take into account when sentencing, as recognized in the Rome Statute. The statute provides: "In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person."33

As in the case of the other prosecutorial benefits proposed by Lagos, those guilty of crimes against humanity should also be excluded from any future government pardons. Lagos proposes to consider pardons to prisoners convicted of crimes of violence during the military government. As a precondition for acceptance of the pardon request, the prisoner would have to have confessed and repented his or her crime and have already been in prison a long time (how long is not specified).

The proposal does not state to which prisoners it refers, but its wording does not expressly exclude the possibility that beneficiaries might include those convicted of crimes against humanity.34

In principle, unless there are urgent humanitarian reasons, those convicted of crimes against humanity should not be pardoned or released before having served their sentences.  In exercising the right to pardon consideration should be given to the seriousness of the offenses that they have committed.

In addition to measures dealing with justice and reparation, the Lagos proposals include important commitments for the future. A proposal to reform the military justice system, ensuring that military courts no longer exercise jurisdiction over civilians or over military personnel accused of human rights abuses, addresses a longstanding concern of human rights organizations, including Human Rights Watch.35 The organization also welcomes the government's commitment to seek congressional approval for a constitutional reform that would enable Chile to ratify the Rome Statute establishing the International Criminal Court.

25 The Medical Legal Service is attached to the Ministry of Justice, and carries out autopsies and forensic investigations. For recent criticisms of its performance in identifying the remains of victims of human rights violations, see Human Rights Watch, World Report 2003 (New York: Human Rights Watch, 2003), p. 122. In a letter dated July 15, 2003, Human Rights Watch urged President Lagos to establish a mechanism to monitor its work in this area.

26 The Association of Relatives of Disappeared Detainees (Agrupación de Familiares de Detenidos Desaparecidos, AFDD), the main organization representing relatives of the "disappeared," rejected the Lagos measures as a "disgrace." The AFDD found the measures to be a "new form of promoting the most flagrant impunity, in an underhand way." In its view, the proposals were "ambiguous and clearly induced the application of the amnesty decree." "Familiares de Desaparecidos ven `impunidad solapada'," El Mercurio, August 15, 2003.

Several UDI leaders also noted, in their case with approval, that the measures were an explicit endorsement of the amnesty. Paradoxically, however, retired military officers were extremely pessimistic about the benefits that they would derive from the proposals. As Gen. Hernán Nuñez explained, "the president spoke of respecting the laws in force in an allusion to the need to respect the strict sense of the Amnesty Law, but not a day had passed before the president of the Supreme Court, Mario Garrido, said that the interpretation of that norm would depend on each judge." "Generales en retiro ponen en duda viabilidad de iniciativa," El Mercurio, August 16, 2003.

27 Human Rights Watch interview with José Zalaquett, member of President Lagos's advisory team on human rights, Santiago, Chile, August 27, 2003.

28 In an interview in El Mercurio, the minister of the Presidency, Francisco Huenchumilla, pointed out that "after all these long years in which everyone is known in the courts and in the world of human rights its very unlikely that any big fish would be found, so to speak..." "Francisco Huenchumilla: en la propuesta no hay impunidades," El Mercurio, August 16, 2003.

29 The letter is available on the Human Rights Watch website, at

30 Article 2(3) of the Convention states specifically that "An order from a superior officer or a public authority may not be invoked as a justification of torture." In its report on Venezuela, the U.N. Committee against Torture called for the "repeal of rules providing for exemption from criminal responsibility on the grounds that the person concerned is acting in due obedience to a superior. Although these rules are contrary to the Constitution, in practice they leave open to judicial interpretation provisions which are incompatible with article 2, paragraph 3, of the Convention." Concluding Observations of the Committee against Torture: Venezuela 5/5/99, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Committee Against Torture, twenty-second session, 26 April-14 May 1999, para. 148. (retrieved on August 22, 2003).

31 Article 31(1)(d) of the Rome Statute of the International Criminal Court.

32 Human Rights Watch interview with President Lagos's spokesman, Francisco Vidal, Santiago, Chile, August 27, 2003.

33 Article 78(1) of the Rome Statute.

34 The proposal states: "The government would examine the situations of other prisoners convicted for crimes of similar gravity in earlier periods [i.e. prior to inauguration of the Aylwin government on March 11, 1990] who request a presidential pardon, provided that they have expressed genuine repentance, have been in prison for a long time and have recognized their crimes, cooperating in establishing the truth and with the courts."

35 See Human Rights Watch, Letter to President Ricardo Lagos, July 15, 2003.