Chile's Transition on Trial
Many commentators in Chile, Europe, and the United States considered that Pinochet's arrest had polarized Chilean society anew. Foreign observers witnessing protests by pro-Pinochet demonstrators in the streets of the upscale Las Condes district of Santiago were reminded of the bitter political atmosphere just before the 1973 military coup. Deep divisions in Chile's political elite over Pinochet's legacy rose to the surface, undoing at a stroke years of cooperation and bonding in the legislature and on business promotion trips abroad. Right-wing parliamentary leaders united with the business community in a unison of protest, claiming Pinochet to have been "kidnapped" (secuestrado) by the British government, victim of a conspiracy by the "socialist governments" of Europe. The army was unhappy and its hard-liners restless and angry with alleged government inaction.
Many Concertación leaders sincerely believed that Pinochet's arrest was wrong, while others who privately applauded it declined to say so publicly. Government policy on the case strained President Frei's Concertación government coalition almost to breaking point. The coalition survived thanks to an uneasy agreement with the Socialist Party, whose leaders had initially lobbied in London for the extradition and were immediately accused by the right of being part of the conspiracy. The party had been more deeply marked by the post-coup repression than any of its partners in the coalition: Pinochet's agents killed or "disappeared" hundreds of socialists, and many more were sent into exile. Evidently with little conviction, the party agreed to support government calls for Pinochet's return in exchange for a promise that government lawyers in London would not defend his immunity in the House of Lords but would base their arguments solely on the principle of territorial jurisdiction.
Pinochet's detention also highlighted the peculiar state of arrested development in which Chilean democracy found itself. President Frei openly recognized this in his May 1999 State of the Nation address, noting the "insufficiencies of our democracy."68 After a decade of elected government, painfully little progress had been made to restore democratic rights to the importance they had enjoyed before the military takeover. Government leaders felt that Chile would have to do much more to fulfill its international obligations under international human rights law; it could not evade these obligations any more. As Socialist Party leader Ricardo Lagos expressed it, "The international community just handed us a yellow card." 69
Yet, at the same time that the government has claimed abroad that Chile would prosecute Pinochet, it has shrunk from taking steps, recommended by some members of the governing coalition, that would remove hurdles to Pinochet's prosecution in Chile. Those steps that it has proposed were no more than a gesture for international opinion and the government did not persist with them. Two measures it requested of the Supreme Court and the Council for the Defense of the State to support the investigations being conducted by Judge Juan Guzmán Tapia were rejected by these bodies, and the government did not pursue the matter. On November 11, 1998, Foreign Minister Insulza asked the Supreme Court to designate one of its members as a "special judge" to take over Guzmán's investigation, using a special dispension that allows investigations that affect Chile's international relations to be placed under a Supreme Court justice. 70 Insulza's request was prompted not by criticism of Guzmán but by the government's desire to showBritain that a serious investigation of Pinochet's criminal responsibility was underway in Chile. Ministers explained that if a Supreme Court justice were appointed it would not be possible for the case to be transferred to a military court if a prosecution went ahead. The Supreme Court, however, rejected this petition by a large majority. The progress of the investigation begun by Judge Guzmán remains, therefore, at risk of an eventual claim by the army for jurisdiction.
In another gesture to world opinion, in December 1998 the government requested the Council for the Defense of the State (Consejo de Defensa del Estado, CDE) to intervene as a party in the cases, as it had done in the Letelier trial.71 This would have enabled government lawyers to contribute to and monitor the investigation, and intervene in the trial, as well as giving the case a higher political profile. The CDE took six months to reach a decision. On June 25, 1999, its president, Clara Szczaranski, announced that the CDE would not be a party to the "Caravan of Death" trial, a crucial part of Guzmán's investigation. The CDE statement gave no grounds for the decision and said nothing about the rest of the Pinochet investigation. The newspapers reported Szczaranski as "visibly avoiding the press."72
Taken together, the Supreme Court's decision and the CDE's announcement showed that both the judiciary and the CDE preferred not to raise the profile of the Guzmán investigation. That the government did not insist with its requests suggests that it was afraid of a negative military reaction. Another public climbdown such as occurred when President Frei ordered an end to the "Pinocheques" investigation for "reasons of state," would have been damaging to government prestige both at home and abroad.
There was even less room for negotiation on more radical measures, such as a law to interpret the amnesty to prevent its being invoked to prevent prosecutions, or limiting the jurisdiction of military courts. The rightist parliamentary opposition refused to discuss any legal reforms until Pinochet had been returned to Chile. Moreover, a consensus on either issue had not existed even prior to Pinochet's arrest. One government official stated openly that the reforms needed were against the unstated rules of the Chilean transition:
It is not that we want to guarantee impunity, but the political system is constructed on the basis of accepting certain limits to the judicial process. That is how it has been throughout the transition, which has had some dramatic experiences, like the case of the Pinocheques. There will be more such experiences tomorrow when the cases being handled by Judge Juan Guzmán advance.... There is an amnesty law, and there are difficulties in passing any law that does not have a high degree of consensus. Then there are the armed forces which have not yet recovered their strictly professional role, but instead sectors of them still feel partly committed to the past and also to the function provided to them under the present Constitution as guarantors of the institutional order. These are objective restrictions that are not changed in the slightest by declarations or good intentions, whatever their source.73
The limits that prevented justice from being achieved also applied to the exercise of political rights, which, as noted in Chapter I, are subject to stringent restrictions in the 1980 Constitution. The government's slender majority among elected senators (it has twenty seats against the opposition's eighteen) has meant that most proposals not based on a negotiated consensus taking into account the views of the nine appointed senators, have been either drastically watered down or abandoned.
The constitutional amendments needed to democratize the Senate require the support of three-fifths of both chambers of Congress. If the president is unable to command this support, the constitution does not allow him to hold a referendum to settle the issue (he is allowed to hold one only if he disagrees with a constitutional amendmentproposed by Congress).74 In his May 1999 State of the Nation address, President Frei announced that he would introduce a motion to reform the constitution so as to allow the president to hold a referendum under these circumstances. As of this writing, the proposal, introduced in June 1999, had gotten nowhere, due to opposition objections and lack of forceful advocacy by the government.75 As the United Nations Human Rights Committee has observed in successive reports on Chile, the constitutional stalemate has frustrated the enjoyment of rights protected by international human rights treaties Chile has ratified.76
President Aylwin's minister of the presidency, Edgardo Boeninger, the most eminent Concertación strategist, has suggested that the government's reluctance to tackle the issue was not simply due to force majeure. "The essential responsibility of the government was to rebuild national coexistence, a concept that excluded efforts to impose the laws of the democratic victors, even if they had had the parliamentary majority and the political force to do it."77 By the same line of reasoning, both Boeninger and Aylwin thought the transition to democracy to be over, because the government's first objective, governability, had been achieved.
Events following Pinochet's arrest brought to the surface the deep political conflicts papered over by the Boeninger-Aylwin doctrine. Right-wing senators boycotted Congress for several days. In May 1999 an opposition party protest against Pinochet's detention was staged in parliament just before the president's State of the Nation address, during which protesters abruptly asked the British and Spanish ambassadors to leave. The protest ended in an on-camera scuffle, with punches thrown on both sides. The incident recalled an earlier one in March 1998, when Socialist Party senators greeted Pinochet in the Senate with placards carrying photographs of the "disappeared," as he was about to take his seat. The basic fault lines in Chilean politics were as deeply etched as ever. Chile still seemed to live in the shadow of the Cold War.
At the same time, under the surface, the Pinochet affair wrought important changes. These only became apparent in mid-1999, when the confrontational atmosphere during the London events had subsided and the country began to gear up for December 1999 presidential elections.
Minority Without a Voice: Press and Public Opinion
Contrary to the impressions of Chilean society given in the international press by images of flag-burning and fanatical pro-Pinochet demonstrators, a December 2, 1998 poll by the private MORI organization, showed that most Chileans were not unduly perturbed by Pinochet's arrest. Seventy-one percent said that their lives were unaffected, and 66 percent said that democracy was not in danger. Forty-four percent thought that Pinochet's arrest was a good thing; 45 percent thought it bad. Nearly two-thirds thought Pinochet guilty of crimes. Fifty-seven percent thought that it would be best for the country if he were tried, and only 29 percent thought that he should not be tried.78
This survey did not bear out one of the more potent government arguments for Pinochet's return to Chile, namely that by arresting him the U.K. had gravely upset the delicate balance of the Chilean transition, reopened old wounds, and re-polarized Chilean society. The MORI poll showed that more than half the Chilean population believed that Pinochet should answer for his crimes, but Chileans did not seem to associate the event with crisis or threat to their personal lives. A survey published in Qué Pasa magazine two weeks later reached similar conclusions. Forty-one percent were in agreement with Pinochet's arrest, 56 percent thought that he was solely or mainly responsible for human rights violations under the military government, and 59 percent wanted him tried by Chilean courts. Yet the issue was placed fourth in a rank of "important issues" and was considered personally unimportant by nearly half the sample.79 In a third survey published in April 1999, 72 percent wanted Pinochet tried, either in Chile or London.80 Ordinary people seemed to see the events less emotionally than the Chilean political elite.
With Pinochet's arrest, human rights received the first significant coverage in the Chilean press for years. However, the views of the 30 percent who appear consistently in surveys favoring Pinochet's extradition and trial in Spain found scant expression in the print media, which ironically have become increasingly unrepresentative of the full range of opinion in Chilean society since the return to civilian rule. Since 1990, two newspapers and three weekly news magazines that articulated anti-Pinochet views under the dictatorship have folded, as foreign funding dried up and market pressures took over. 81 Editorial comment in the two major dailies, El Mercurio and La Tercera, overwhelmingly supported either Pinochet or Chile's sovereignty claim. No mass circulation newspaper or political weekly celebrated the arrest or the Lords' decision - or presented international law arguments in its defense - a marked contrast with the European press in which both sides got a vigorous airing.82 The Internet continued to be a lifeline to those in search of alternative viewpoints. Even anti-Pinochet jokes, traditionally a rich vein of humor during the military government, were exiled to cyberspace, an example being the sardonic cartoons of Guillo.83 A satirical broadsheet, The Clinic (La Clínica), said to be linked to youth sections of the Party for Democracy and the Socialist Party, was launched and distributed free, samizdat-fashion. The Clinic poked fun at Concertación leaders as well as at Pinochet. But, as La Tercera journalist Gazi Jalil wrote:
...no one wants to be publicly involved. Nobody signs the stories. No one figures as the director in charge. No one is a spokesman. To mock the politicians they do it in clandestinity, the best place to escape the mountain of lawsuits that would result and the doors that would slam against those who want to play wiseguy.84
Acerbic essays on the Pinochet case that were unpublishable in the press appeared in book form. Many took the form of "open letters" to various public figures, a new genre started by playwright Marco Antonio de la Parra in his Open Letter to Pinochet (Carta Abierta a Pinochet) published in 1998. In August 1999, Patricia Lutz published a thinly-disguised roman a clef about the mysterious circumstances in which her father, Gen. Augusto Lutz, an opponent of Pinochet and the DINA, died of septicemia in the Military Hospital after a series of medical errors, in November 1974. 85
Although not related directly to the Pinochet case, the banning of journalist Alejandra Matus's Black Book of Chilean Justice (Libro Negro de la Justicia Chilena) demonstrated the continuing failure of Chilean judges to uphold freedom of expression. Santiago Appeals Court Judge Rafael Huerta ordered police to remove the book from circulation within hours of its April 13, 1999 launch, following a criminal complaint lodged against the author by Supreme Court Justice Servando Jordán. Matus's book, the product of eight years' experience as a court reporter, was an exposé of venality and improper conduct in the upper echelons of the judiciary. It included sharp criticism of the Supreme Court's failure to investigate human rights violations under the military government. Matus was accused of offenses under the State Security Law, which prohibits criticism deemed offensive to government authorities. She had to leave Chile on the first available flight to Buenos Aires to avoid arrest, cutting short her promotion of the book. On June 16, police detained Bartolo Ortíz, manager of the publishing house Planeta, and Carlos Orellano, its editor, and charged them with the same offenses, under a legal norm that make publishers responsible if the author is not available to be charged. They were held for two days in Capuchinos prison until released on bail. Two prominent television personalities who read or displayed sections of the book on television were called to give evidence. Matus, who is now in the United States, faces arrest if she returns to Chile. On September 30, 1999, she was granted political asylum in the U.S.
After learning of Ortiz and Orellano's detention, the Special Rapporteur on Freedom of Expression of the Organization of American States, Santiago Cantón, visited Chile on June 23, advancing an official visit planned for August. The rapporteur said he considered the legal limitations on freedom of expression in Chile to be serious and that the court's action in the Black Book case violated the prohibition of prior censorship in the Chilean constitution as well as in Article 13 of the American Convention on Human Rights.86 The case is currently before the Inter-American Commission on Human Rights. In two cases of prior censorship in which the commission had declared Chile to have violated Article 13 of the American Convention (the cases of Francisco Martorell's book Impunidad Diplomática and Martin Scorsese's film The Last Temptation of Christ), the Chilean government has failed to implement the commission's recommendations ordering bans against both lifted.
In a prophetic introduction to The Black Book, Matus described receiving a telephone call from a colleague asking her for permission to print extracts from the book in a pre-publication notice for his newspaper, La Tercera. Their conversation, she wrote, "served to revive in my mind apprehensions about the risks we were running [both publishers and author] for the sole reason of making public facts that, although substantiated and checked, are certainly going to embarrass the protagonists. And what a contrast this reality seems when I compare it to other democratic countries, where there are no obstacles to criticizing authorities, or even laughing at them, in the media, without the journalist or writer ending up in jail." 87
Article 6(b) of the State Security Law (Ley de Seguridad Interior del Estado) punishes those who "defame, libel or calumniate" the president, government ministers, parliamentarians, senior judges, and the commanders-in-chief of the armed forces. The maximum sentence for this offense is five years' imprisonment. Under Article 30 of the law, the judge is required to "collect and place at the disposal of the court printed matter, books, pamphlets, records or tapes or any other object which may appear to have been used to commit the crime."
The offense of contempt of authority is classified legally as an attack on "public order," and court precedent over many years has held that the damage to public order follows from the verbal expressions used and does not require to be proven for the prosecution to be upheld. By following this doctrine, the courts have evaded the crucial job of establishing that public order was in fact damaged or threatened by an offensive expression, or that the restriction imposed was legitimate and necessary. Not only are prison sentences higher than those prescribed for libel in the ordinary criminal code, but establishment of innocence is more difficult, since courts have repeatedly ruled that the truth of the impugned expressions is not a legitimate defense.88
With its origins in the nineteenth century, this contempt for authority law has been invoked from 1958 to the present. At least fifteen journalists and eight politicians, including several governing coalition parliamentarians, have been charged since 1990 under Article 6(b) of the law. These prosecutions include several initiated by Supreme Court judges. In 1995, Congress, with the evident sympathy of the Frei government, filed charges against a former Pinochet minister, Francisco Javier Cuadra, for comments in a magazine interview they considered offensive to the parliament's "institutional honor." Cuadra was given a 540-day suspended prison sentence.
One of the many suits Pinochet filed under the law resulted in the October 1996 arrest of the general secretary of the Communist Party, Gladys Marín, for a speech commemorating the "disappeared" in which she said that Pinochet was "the main person responsible for state terrorism." After the case was reported widely in the international press, Defense Minister Edmundo Pérez Yoma persuaded Pinochet to withdraw the accusation. Socialist Party Sen. José Antonio Viera-Gallo barely escaped prosecution in 1997 for a remark made on a television panel and considered offensive by General Pinochet. Pinochet withdrew the suit after Viera-Gallo accepted a proposal by Pérez Yoma, involving his "explanation" of his comments to the army representative, Gen. Rafael Villaroel.89
The Matus book, however, broke new ground: it was the first time since the return of democracy that the law had been invoked to censor a book. This time no prominent politician of any party spoke up in defense of Jordán's action. The president of the Supreme Court considered that it brought the judiciary into disrepute. On April 20, a group of Concertación legislators presented a bill to the Chamber of Deputies eliminating Article 30, and most, but not all of the provisions of Article 6(b). It was the first bill ever proposed to tackle this law, which for years has set limits to press freedom as well as public criticism of high officials.
At this writing the bill has been passed in committee, but has been amended in such a way as to incorporate the essence of the State Security Law provisions into the ordinary penal code. Apart from modifying Article 6(b) of the law and abolishing equivalent provisions in the penal code90 - both positive measures - the text agreed in committee proposed to amend Article 429 of the penal code, which refers to libel and defamation of government authorities. The amendment would make this a particularly grave form of libel, precisely the kind of discriminatory provision in favor of government authorities and at the expense of the ordinary citizen that the bill was intended to abolish. Unless this amendment is rejected, then, there is a danger that the crime of defamation may be smuggled back into the ordinary libel laws.91 If the bill is not passed in its original form before the end of the Frei administration, it will join a list of other reforms seeking to expand freedom of expression that have been stalled in Congress for years. They include a comprehensive press law increasing legal protection of journalists, first presented in 1993, a constitutional reform abolishing film censorship, and a freedom of information law.
Pressure for Compromise
On May 30, veteran Socialist leader Ricardo Lagos Escobar was chosen in the Concertación presidential primary as the coalition's presidential candidate for the December 1999 elections. Lagos will run against Joaquín Lavín, former mayor of Santiago's wealthy Las Condes district and candidate for the opposition bloc, Alliance for Chile (Alianza por Chile).92
Neither bloc appears interested in adopting confrontational politics on human rights. Considerable effort has been expended in the search for the elusive formula which would bridge the divide on the justice issue, described later in this chapter. In this process, Lavín is expected to distance himself from Pinochet, just as Socialist leaders will be encouraged to moderate their demands for justice in the interest of "governability." Privately, leaders from both sides admitted that Chilean democracy was better off with Pinochet in London. If Pinochet had been divisive in his absence, he would be even more so on his return. 93 Former Foreign Minister Insulza said as much in an interview with the Spanish newspaper El País, provoking an immediate official complaint from the armed forces to then-Minister of Defense José Florencio Guzmán. This unofficial view changed significantly when Pinochet's health deteriorated in September, provoking fears of a "martyr syndrome" should Pinochet die in captivity abroad.
The official stance remained resolutely opposed to Pinochet's prosecution outside Chile. In late December Insulza wrote to U.N. Secretary-General Kofi Annan expressing concern at "the disregard of international law in force and the purposes and principles of the United Nations Charter, and the potential creation of a grave precedent in the friendly relation among states."94 Current Foreign Minister Juan Gabriel Valdés took this rhetoric a stage further in September 1999 when, angered by Spanish Foreign Minister Abel Matute's rejection of a Chilean proposal to seek arbitration in the dispute, he accused European nations of a pretentious and arrogant attempt to "tell us how and when we should conclude our transition," satirizing Judge Garzón as an "international avenger" (justiciero internacional) who had taken it upon himself to judge what happened in Latin America as a result of the Cold War.95 Likewise, the Chilean judiciary has refused to respond to requests for information from the Spanish court. Chief Justice Robert Dávila publicly stated, "Chilean sovereignty has been trampled on" following the first Lords ruling. 96 In the 1999 judicial year inauguration ceremony on March 1, 1999, Justice Dávila said that an "adverse sentence of the Lords in the case that concerns us would be the most serious rupture that the present international legal order could suffer in the final days of the millennium. It would mean the end of the principle of equality between States."97 He also made it clear that unless there was a change in Chilean legislation, the amnesty law had to be applied and the Chilean courts' rulings respected.
The Amnesty Law: A Bone of Contention
The amnesty law remains the single most important legal obstacle to human rights trials in Chile. In recent years, international consensus has moved toward an unequivocal condemnation of amnesty laws that prevent theinvestigation and punishment of crimes against humanity.98 Both the U.N. Human Rights Committee and the Inter-American Commission on Human Rights of the Organization of American States have declared Chile's amnesty law to be incompatible with Chile's international human rights obligations.99
In Chile, however, the law is viewed by all of the political parties in Congress - even those that reject it on principle - as an unchangeable part of the Pinochet legacy. Only the extraparliamentary left still advocates the Concertación's 1998 electoral promise to annul or repeal the law. 100 The government believes this to be legally impossible, as well as politically unviable. Nor has it supported any parliamentary motion to interpret the law. At least three minority bills to exclude crimes against humanity from its scope have already failed for lack of government support. In June 1998, for example, an announcement by the Socialist Party that it was introducing a law to exclude crimes against humanity from the amnesty law led to an immediate counter-proposal from the two principal opposition parties, UDI and RN, which would effectively close the door to any prosecutions based on human rights abuses that took place under military rule. Explaining the government's lack of support for the Socialist initiative, Secretary General of Government José Joaquín Brunner said that the political-legal situation continued to make it impossible to revisit the amnesty issue. 101 In short, the advances in human rights trials summarized below are due more to legal interpretation by the courts than the actions of the government.
Trials in other countries
As noted in Chapter I, the Letelier-Moffitt assassination is the only crime committed in the period covered by the amnesty law for which perpetrators have been convicted by Chilean courts. Other crimes attributed to DINA agents in the context of Operation Condor have been investigated, or are under investigation, by courts in other countries, including Argentina, Italy, Uruguay, and the U.S.
These include the September 1974 car-bomb assassination of retired army commander Gen. Carlos Prats González and his wife Sofía Cuthbert in Buenos Aires, for which a former DINA operative, Enrique Arancibia Clavel, has been charged and is in detention in Buenos Aires. In April 1999, the attorney representing the Prats family, Pamela Pereira, requested the investigating judge, María Servini de Cubría, to issue charges against Pinochet and senior DINA officers implicated in the crime, including the chief of its "foreign department," Brig. Raúl Iturrriaga Neumann. Judge Servini has received assistance in the United States from the Federal Bureau of Investigation and has been given access to documentation on the Letelier case, as well as permission to interview two convicts in the U.S. under federal witness protection.
Investigation by Uruguayan courts of the mysterious 1993 murder of DINA chemist Enrique Berrios in Uruguay abruptly terminated in November 1998, when Judge Alvaro González filed the case away as an "unclarified crime." Although closed investigations are in the public domain in Uruguay, Judge González refused public access to the dossier on the grounds that the security of witnesses could be compromised. With the assistance of a former DINA colleague, Berrios had left Chile for Montevideo in 1991 to escape questioning in the Letelier case. He went missing after a vain attempt to escape his "minders," said to be members of Uruguayan military intelligence. Berrios was implicated in the murder of U.N. diplomat and Spanish citizen Carmelo Soria and was known to have worked on the production of the chemical agent Sarin, believed to have been manufactured by the DINA for political assassinations.102
A high-profile case in which further action is required of both the Chilean and Italian governments to ensure justice is that of former Christian Democrat leader Bernardo Leighton and his wife Anita Fresno. Leighton, minister of interior during the Frei Montalva administration in the 1960s,103 was in exile during the military regime undertaking initiatives to establish coordination between the Christian Democratic Party and the left when he and his wife were victims of a near-fatal shooting in Rome on October 6, 1975, carried out by an Italian neo-fascist gunman acting on DINA orders.
In June 1995, following a thorough investigation, an Italian judge convicted former Gen. Manuel Contreras and former Brig. Raúl Iturriaga of DINA in absentia as intellectual authors of the attempted murder of Leighton and Fresno, sentencing them to twenty and eighteen years of imprisonment, respectively. A higher tribunal confirmed this sentence in July 1996.104 The Chilean government, which was a party in the Italian case, welcomed the verdict in a press conference held by then Deputy Secretary General of Government Edgardo Riveros. Chile's ambassador in Italy also welcomed it.105 Despite these statements, neither Chile nor Italy has taken further action to implement the sentence. Although no extradition treaty exists between Chile and Italy, according to international law this does not prevent Chile from sending Contreras and Iturriaga to serve their sentences in Italy. In August 1999, Human Rights Watch sent a letter to the officer in charge of extradition proceedings at the Ministry of Foreign Affairs of Italy requesting information about the current status of the case. At this writing, no response has been received from the Italian government.
Unlocking the amnesty law
Of the 3,197 fatal victims of the military junta whose cases were documented by the Rettig Commission, the fate of hundreds may never be clarified by Chilean courts.106 During the military government, courts generally applied the amnesty decree automatically without regard to the stage reached in the investigation.107 In the last six months ofthe Pinochet regime the military judge of Santiago closed for good more than thirty dormant cases. When the closures were appealed, the military appeals courts endorsed the closure except in a handful of cases. The Supreme Court, most of whose members had been appointed by Pinochet, declared the amnesty law to be constitutional in August 1990, discarding the principles of human rights treaties Chile had signed.
The court held that the amnesty decree was limited neither by international humanitarian law nor by human rights norms. For example, it considered that the Geneva Conventions of 1949, which were published in Chile in the Official Gazette on April 17-20, 1951, did not apply because no state of war existed after the coup. As a description of the facts this was true: the military government faced no armed opposition during most of the period in which the amnesty law was in force. Nevertheless a wartime state of exception, declared by the new rulers to stamp out opposition, was in force: on the day after the coup the military junta passed a decree (Decree No. 5 of September 12, 1973) that declared a state of siege tantamount to a "state or time of war," and mandated the passage of death sentences by military "war tribunals" (consejos de guerra) without elementary guarantees of due process. The Supreme Court itself repeatedly cited this decree to justify its refusal to review sentences passed by these tribunals. In short, the state of war allowed exceptional rigor in the pursuit of the regime's opponents, but deprived the victims of protection under humanitarian norms that apply to internal conflicts.
The court insisted that principles of international human rights law were not binding for the Chilean government either. It held that Chile's obligations under the ICCPR were not in force, since although Chile ratified the covenant on February 10, 1972, the promulgation decree, which dates from November 30, 1976, was not published in the Official Gazette until 1989.108
Case closures have been promoted by the fact that the general auditor of the armed forces still has a seat on all Supreme Court panels dealing with cases under military jurisdiction. Throughout his tenure as general auditor, Gen. Fernando Torres Silva used these powers to the full. 109 A bill to remove the general auditor from the court, proposed by the Concertación in August 1998, still awaits a vote in both houses.
Despite obstacles to outright reform, Chilean legal ingenuity has made it possible to prevent the amnesty law's being applied across the board. Hundreds of investigations into "disappearances" extrajudicial executions, and torture are still open in the courts. After 1991 many judges resisted applying the amnesty law to close unsolved cases, particularly those in which investigations had failed to establish the fate of the victim. This new trend was due in large part to President Aylwin's conviction that, given the impossibility of changing the law, as much justice as possible should be done by the courts with their existing powers. One of Aylwin's most important contributions to human rights was to transmit his concern about the "disappeared" directly to the Supreme Court when the Rettig Commission's report was published. It became an unconditional ethical principle on which both elected governments have firmly insisted. Polls show, moreover, that it is strongly supported by public opinion. The quest of the relatives "to find the disappeared" was established in national law as an "inalienable right" when President Aylwin established the National Corporation of Reparation and Reconciliation in February 1992. 110
The Rettig Commission's mandate prevented it from naming military officials alleged responsible for human rights violations. Aylwin's view was that the courts could make good this deficiency by withholding application of the amnesty law until the fate of the victim was established, the circumstances clarified, and the persons claiming the benefits of the amnesty identified. During the 1990s this doctrine competed in the judiciary with the narrow pre-Aylwin interpretation, giving rise to a multitude of contradictory decisions.111 However, since former military officials have consistently refused to say what happened to "disappeared" prisoners, the Aylwin doctrine helped keep these cases alive. Scores (the army says hundreds) of former and active-service military officers, including generals, were called to testify either as suspects or witnesses.112 The army, the branch most affected by these court investigations, deeply resented what it saw as a perverse re-interpretation of the law. Military displays of force in 1991 and 1993 failed to bring results, however, since Congress remained divided on the issue.
Opinion in the Supreme Court on the application of the amnesty law was also divided. In March 1995 the Frei administration restructured the Supreme Court. Appeals on criminal cases were henceforth to be heard exclusively by a specialized criminal panel (the Sala Penal). In many Sala Penal decisions, a minority of one or two judges favored the Aylwin doctrine and voted against the closure of cases. A majority of the panel, including its president, Roberto Dávila (now chief justice), ruled that the law be interpreted narrowly, without investigating facts and responsibilities.113 On July 9, 1997, for example, the Sala Penal overturned the conviction by the Third Criminal Court of San Miguel in Santiago of a former DINA torturer in a 1974 "disappearance" case. Judge Lilian Medina Sudy had held that the accused did not qualify for amnesty because kidnaping was continuous until the victim was freed or certified to have been killed. However, when a military court also claimed jurisdiction, the Supreme Court overturned Medina's verdict and admonished her for passing sentence while the court dispute had not been settled. The military court ultimately won jurisdiction.114 Other Supreme Court decisions on "disappearances" following the same doctrine were the cases of Joel Hualquiñir (1995), Eduardo Ziede Gómez (1998), and Eugenia Martínez Hernández (1998), in each of which the court rejected arguments based on the Geneva Conventions and the ICCPR. Signs of a shift toward the Aylwin doctrine at the Supreme Court level were not apparent until the first six months of 1998, when the court revoked application of the amnesty in a case involving the 1973 "disappearance" of twenty-four rural workers in Paine, near Santiago; of eight members of the MIR in Valaparaíso in 1975; and of Luis Ortíz Moraga in December 1974. The court's Second Chamber also broke with tradition in assigning jurisdiction to civilian judges in a small number of cases.
In January 1999, following the appointment of three new justices to the Sala Penal, a "post-Aylwin" doctrine began to emerge, based on the notion that "disappearance" is a continuous crime. On January 7, 1999, the Supreme Court ordered a military judge to reopen a case involving the "disappearance" in Parral, in the south of Chile, of twenty-six people arrested in 1973 and 1974. The Sala Penal held the crime to be "a permanent one, and in this situation it must be understood to continue to be committed after the expiry of the period covered by the amnesty law, since until now the victims have not reappeared, there is no news of them nor has their death been accredited."115
A more radical variant of the post-Aylwin doctrine held that the amnesty was tacitly derogated by international humanitarian or human rights law. In a September 1998 decision, the Sala Penal cited Chile's obligation under the 1949 Geneva Conventions as the basis for ordering a military court to reopen the investigation of the "disappearance" in July 1974 of one Enrique Poblete Córdova. The court argued that Common Article 3 of the Geneva Conventions applied because the military government had itself declared a "state or time of war" in September 1973, exactly reversing the doctrine it had followed earlier. Although there was no indictment in the case, the judgment implied thatthose eventually accused of the crime could be prosecuted and convicted. Indeed, the Chilean ministers of justice and foreign affairs referred to the Poblete Córdova case to support their argument in the House of Lords that the self-amnesty was not an insuperable obstacle to human rights trials for atrocities committed after the coup.
"Kidnapping is a Permanent Crime:" the Caravan of Death
While these decisions passed largely unnoticed by the general public, a July 1999 Sala Penal judgment, unanimously confirming the arrest and prosecution of a retired general and four other senior retired army officers, caused a major political impact. The five were accused of participating in the so-called "Caravan of Death," a helicopter-borne commando task force allegedly acting on Pinochet's orders, which removed from prison and secretly executed seventy-five political prisoners in the north and south of Chile in October 1973.116 As noted previously, the case was part of the thirty criminal complaints against General Pinochet and other officials being investigated by Judge Juan Guzmán.117 In view of the fact that the bodies of nineteen Caravan of Death victims had never been located or their death legally certified, Judge Guzmán held that their abduction was still current and hence excluded from the amnesty law, and he charged the five officers with "aggravated kidnapping." In cases in which he was able to establish the victims' death, Guzmán ruled the amnesty applicable; he thereby dismissed charges including first-degree murder (homicidio calificado) and torture, against five other officers. 118
This decision may have important implications for hundreds of other "disappearances" in which evidence of execution or the discovery of remains has so far proved impossible to obtain. It means, in effect, that location of the bodies or disclosure of the truth about the fate of the "disappeared" is necessary before the accused may benefit from immunity, while the decision to eventually apply the amnesty law is a matter for the courts to decide in individual cases. There is a further possibility that the Supreme Court might still rule, as it did in the Poblete Córdova case, that the amnesty is inapplicable due to the provisions of international humanitarian and human rights law, even in circumstances in which the victims' death is established.
Experience, however, dictates caution in interpreting the significance of the Supreme Court verdict. The court has been notoriously erratic and inconsistent in its rulings on human rights cases. Since under Chilean law jurisprudence has no binding effect on future cases, there is ample room for the Supreme Court to modify its doctrine. Moreover, although the Chilean judiciary jealously protects its formal independence, in practice it is still permeable to political influence.
Lawyers acting for the victims in the Caravan of Death case appealed Judge Guzmán's decision to limit the indictments only to cases in which evidence of death was not established and called for the five defendants and five other members of the task force to be prosecuted as well for first-degree murder and torture. The Fifth Chamber of the Santiago Appeals Court gave its ruling on the appeal on August 26. Much hinged on this verdict, since if the appeal was granted, it would be an important step toward converting the amnesty law into a dead letter. Although possibly applicable to prevent convictions, the law would no longer bar trials for torture and extrajudicial executions, as wellas "disappearances." Moreover, the appeals court's decision was final at this stage. In a divided judgment, the three-member panel ruled that there were insufficient grounds "at present" for widening the prosecutions to torture and executions. In addition, the court ordered former DINA agent Armando Fernández Larios indicted, bringing to six those now charged for "aggravated kidnapping."119 The court declined to issue charges against General Pinochet, on the grounds that Judge Guzmán had not yet canceled his parliamentary immunity. The decision was notable in making no reference at all to the scope of the amnesty law in cases of homicide or torture, or to arguments presented by victims' lawyers that the Geneva Conventions were applicable. By avoiding these crucial issues, the decision left the door open for further efforts to sustain murder charges against the defendants.
The Fifth Chamber confounded initial predictions, reportedly shared by both parties in the case, that the court would decide in favor of expanding the charges. Lawyers involved in the appeal alleged that Aylwin's former justice minister, Francisco Cumplido, and a government legal official, Rodrigo Asenjo, had put pressure on the judges to change their predicted verdict.120 Both officials denied any interference, and President Frei categorically rejected the accusations.
Whatever the possible impact of political pressures on this verdict, the new opening for human rights trials marked by the Supreme Court position on the Caravan of Death case rang strident alarm bells on the right and in the armed forces. As has happened repeatedly throughout the Chilean transition, the search for political "solutions" to Chile's lack of reconciliation began in earnest as soon as the wheels of justice began to turn. Opposition and pro-military appointed senators issued a statement accusing the Supreme Court of trespassing on the legislature by "modifying or derogating" national laws; they held the Sala Penal responsible for "grave abandonment of duty," an impeachable offense. 121 Differences within the opposition on the issue became apparent when some Renovación Nacional (RN) leaders and opposition presidential candidate Joaquín Lavín opposed the senators' declaration and defended the autonomy of the courts.122 The army generals, informed in advance of the Sala Penal judgment, met in a three-day conclave to discuss its implications, working until the early hours of the morning. Respecting established legal channels, on July 23 the four service chiefs met Defense Minister Edmundo Pérez Yoma and delivered a statement urging the government to look for solutions "allowing them to carry out their professional functions in due tranquility" and offering their "absolute readiness to cooperate."123
The Frei administration decided it could no longer afford to take a back seat. On July 24, Frei met with his inner ministerial circle to discuss possible responses. The chances of a negotiated political solution were now more remote than ever. There was little incentive for the relatives to participate since prospects of justice looked better for them than at any time before. The Supreme Court verdict appeared to remove one of the principal legal obstacles to a trial of Pinochet in Chile, a key demand of the Socialist Party. The ball, it seemed to the government, was now in the military's court. In a July 26 keynote speech to the 41st International Congress of Psychoanalysts, Frei ruled out any government legislative initiative. In a clear message to the armed forces, he described the situation as a stark dilemma:
It is quite obvious that any new agreement must have as its result clarification of the fate of the "disappeared" detainees. On this matter, there is certainly a dilemma: to face up to this wound onceand for all, and provide this information, or let the sustained action of the courts, year after year, over many years, gradually reconstruct the truth about what happened.... All those who have direct or indirect information on these events should meditate profoundly on this dilemma and its consequences.124
Frei's message appeared to be a reply to comments made by the army commander, General Izurieta, in April, just before he left on a "private" visit to Pinochet in London, denying that the army had information on the whereabouts of the "disappeared."125
The CNI in the Dock
The courts have also made important advances in the investigation of human rights crimes not covered by the amnesty law. Two Santiago Appeals Court judges, Milton Juica and Sergio Múñoz, are close to solving two of the most notorious human rights crimes of the 1980s, the murder of trade unionist Tucapel Jiménez and a massacre of guerrilla suspects called "Operation Albania" (Operación Albania). Jiménez, leader of the National Association of State Employees (Asociación Nacional de Empleados Fiscales, ANEF), was brutally murdered in his taxi on February 25, 1982, at a moment when he was helping to organize the first general strike against Pinochet's rule. There were no witnesses, but the CNI and the Intelligence Directorate of the Army (Dirección de Inteligencia del Ejército, DINE) were both implicated in the crime. On June 15 and 16, 1987 twelve alleged members of the armed opposition group Manuel Rodríguez Patriotic Front (Frente Patriótico Manuel Rodríguez, FPMR) died at the hands of CNI agents in what were officially described as shoot-outs during an investigation ordered by a military prosecutor. In fact, evidence uncovered by the court showed that at least seven of the victims had been extrajudicially executed after being arrested.126
Court investigations into both crimes, although not subject to the amnesty law, were stalled for years by official disinformation, the protection of suspects, suppression of evidence, and judges' prevarication. In the Albania case, the breakthrough came on July 27, 1998 (before Pinochet's arrest) when investigating judge Hugo Dolmetsch, a civilian member of the Military Appeals Court (Corte Marcial), charged five former agents, including serving army Col. Krantz Bauer and former army captain Luis Sanhueza, with the crime. Investigation of the facts had been stalled by a military court from September 1987 until March 1998, when the Supreme Court transferred the case to Judge Dolmetsch and instructed him to request confidential CNI files in army possession. The arrests and indictment of the officers was possible in large part due to a list of some 1,500 fomer CNI members that the army made available to the judge. Other arrests of former CNI agents followed in December 1998, including of two, Alvaro Corbalán Castilla and Jorge Vargas Bories, who had been implicated in other human rights crimes. Ten people are currently charged in the Operation Albania case.
In the Jiménez case the tide finally turned on March 30, 1999, when the Third Chamber of the Santiago Appeals Court ordered the investigation reopened (Judge Sergio Valenzuela Patiño had closed it at the end of 1998 after a fruitless investigation lasting nearly seventeen years) and ordered the arrest of twelve suspects, including former CNI agents and retired senior military officers. They included retired Gen. Rámsez Alvarez, former head of DINE. The court confirmed the existence of a so-called "Delta Plan," dedicated to the surveillance and even murder of opposition trade unionists.127 On April 9, Jiménez's lawyers won a long campaign to have the Supreme Court remove Judge Valenzuela from the case (the fact that Valenzuela's son had worked for the CNI cast serious doubts over his impartiality). In May, the new judge, Sergio Múñoz Gajardo, sent written questions to Pinochet about his knowledge of the events and relationship to the CNI. So far, Pinochet is reported not to have responded. In both the OperationAlbania and Jiménez cases, the Council for the Defense of the State had made itself a party to the investigations on behalf of the victims.
On September 14, retired Gen. Humberto Gordon, former director of the CNI and a member of the military junta from 1986 and 1988, was charged and detained as an accomplice in Jiménez's murder. Also charged for covering up the crime was retired Brig. Roberto Schmied Zanzi, former head of the CNI's metropolitan (Santiago) division. Schmied took refuge in a military base at Buín but was ordered to give himself up by his army superiors. Despite army anger at Gordon's indictment and pressure from the retired generals (they formed an association expressly to counter the activities of the courts) General Izurieta did not obstruct the trials. In part this was due to a public commitment by the armed forces, dating from Pinochet's days, to coooperate with investigations of crimes not covered by the amnesty law. In part it reflected concern about the negative effects any publicity about military obstruction of human rights trials might have on Pinochet's defense in London. 128 As in the Albania case, the army agreed eventually to allow Judge Múñoz access to confidential lists of DINE members between 1981 and 1983, after the Supreme Court upheld the judge's request.
The prosecution of former generals associated with the Pinochet's former intelligence agencies is not expected to stop with Gordon's arrest. During the final week of September the press announced that Judge Milton Juica, who replaced Judge Dolmetsch in the Albania case in March, was about to prosecute retired Gen. Hugo Salas Wenzel, the CNI's director from 1986 to 1988, and his successor in the post, retired Gen. Humberto Leiva Gutiérrez. Also liable to arrest for helping cover up the Jiménez assassination were Gen. Hernán Ramírez Rurange, director of DINE in 1991, when it allegedly assisted the escape to Argentina of one of the agents implicated, and Brig-Gen. Gustavo Abarzúa, DINE director from 1989 to 1991.129
The Search for a Formula
As has occurred repeatedly since Pinochet allowed a return to civilian government, the military has pressed party leaders to seek a way to "solve" the human rights issue. The solution being sought generally involves making the problem disappear without affecting the military's protected status. Indeed, measures under discussion in the Senate would diminish even further the possibility of prosecuting those guilty of atrocities. The government has adopted, as policy, steps to limit the power of military courts - but these have yet to be enacted.
After the Pinochet crisis broke in October 1998 the government held to its official policy of non-intervention on the amnesty issue. Nevertheless, private initiatives to explore the issues continued, although without any sense of urgency. Tri-partite discussions between Minister of Interior Raúl Troncoso, Army Commander-in-Chief Ricardo Izurieta, and Archbisop of Santiago Msgr. Francisco Javier Errázuriz, began early in 1998, apparently in response to the opening of the Guzmán investigation in January that year. Efforts were made to keep the talks confidential and the victims were not represented. By March 1999 the talks had stagnated without agreement.130
Troncoso also commissioned two human rights experts to hold private meetings to explore alternatives with representatives of UDI and RN, church leaders, and both retired and serving officers of the armed forces, as well as representatives of the victims. Government leaders believed that Pinochet's arrest, world opinion, and the gathering momentum of the courts in Chile created a favorable climate for concessions by the armed forces.131 Since these meetings have been held in absolute confidence (although details began to filter to the press in April), any agreements reached and even the names of some of the participants were unknown at this writing.
The most pressing and conflictive issue for the government was the army's continuing silence about the fate of the "disappeared." Concertación leaders hoped that the prospect of interminable human rights trials might focusthe minds of military leaders on ways to "solve" the issue before a new government took office in March 2000. Positive signals from the armed forces, such as the personal interest in the issue taken by Navy Commander Adm. Jorge Arancibia, reinforced this impression. The challenge facing the government, however, was daunting. The armed forces required solid guarantees that the trials would come to a rapid end and that those officers or former officers who revealed information would be shielded from publicity as well as prosecution. The Concertación parties, on the other hand, opposed on principle a "full-stop" law added to the immunity already provided by the amnesty. The discussion focused on mechanisms to protect the identity of military witnesses who might give information on the fate of the "disappeared" and to exempt them from prosecution for perjury for previous, false declarations. Promises of secrecy as an inducement to obtain information on the fate of the "disappeared" had been part of earlier reconciliation efforts by Aylwin in 1993 and Frei in 1995. Both initiatives had met opposition from both sides and failed to gain congressional support. 132
Other measures, proposed by the PPD-PS bloc and adopted by the government, such as a draft law allowing civilian judges to investigate inside military and police premises, would have been positive additions to the powers of the judiciary. In addition, a Chamber of Deputies commission was debating legislation to bring human rights cases involving members of the armed forces under civilian jurisdiction. At this writing neither measure had cleared the hurdles of Congress.
Parallel discussions on measures to discover the truth about the "disappeared" in the Senate's Commission on Human Rights, Nationality, and Citizenship, whose members range from the UDI to the Socialist Party, began in June 1998 and culminated in a concrete proposal in December. The commission proposed unanimously that the courts' mandate to continue investigating "disappearances" cases be extended indefinitely. Article 6 of Law 19,123, which held it to be an "inalienable right"of Chileans to demand clarification of the fate and whereabouts of the "disappeared," was to be interpreted to mean that this right could not be canceled by the prior closure of cases by the courts.
Other aspects of the Senate proposals seriously threatened the transparency of judicial investigations. To encourage former military personnel to testify, they would be shielded from identification and exempted from prosecution for perjury for false declarations they might previously have made. Although the proposal did not refer to the self-amnesty law, it was understood that once a court investigation had established the fate of the victim, the case would be subject to the terms of that law. The underlying logic, as in previous legislative attempts, was to trade secrecy and impunity for long-withheld information, privileging partial truth over justice. Moreover, the "truth" it was hoped to obtain was incomplete, being limited to the discovery of physical remains or the certification of death without identification of those responsible.133
In a letter to President Frei sent in June 1999, Human Rights Watch expressed concern that the effect of keeping the identity of witnesses secret would extend the effects of the self-amnesty law and implicitly legitimize it. Nor did the Senate committee consider justice for other human rights violations, including torture. Indeed, in giving Chile's assurances to Home Secretary Straw that the Chilean courts, unlike the Spanish, had authority to investigate crimes committed in Chile before December 1988, the government seriously misrepresented the facts regarding cases of torture, which are subject to a five-year statute of limitations in Chile.134 By July it had become evident that the Senate proposal was not politically viable: the relatives of the "disappeared" categorically rejected it, while the army considered the guarantees of confidentiality insufficient.
At this writing Chile has embarked on yet another round of talks, this time convened by Defense Minister Pérez Yoma in reaction to army disquiet caused by the Sala Penal decision in July. Unlike in earlier proposals, Pérez Yoma aimed to get the most radically opposed parties (the relatives of the "disappeared" and the armed forces) round a table for the first time in open face-to-face conversations. The novelty of this idea was that it struck into unchartered territory: it was hoped that a frank encounter might confront and overcome prejudices on both sides. The relatives of the "disappeared," however, refused to join the conversations. They considered that any negotiations might produce a negative impact on the courts, at a time when the Supreme Court appeared for the first time to be mounting a serious challenge to the amnesty law. Moreover, they attacked the initiative as a public relations gambit aimed at influencing the Pinochet proceedings in London. As a result of their refusal to participate, the table comprised only human rights attorneys (acting in their own capacities, rather than representing the relatives), delegates from the armed forces, and representatives from civil society. The group held its first meeting on August 31, 1999.
It is far from clear at this writing what the outcome of these conversations will be. The first month was limited to hearing out expositions by all of the parties in turn. Press reports of the interventions revealed no surprises from the armed forces' side. Vice-Adm. Alex Waghorn said on behalf of Admiral Arancibia that the talks might "generate the conditions under which those who might have some information might feel motivated to provide it" if a climate free of "threats of coercion" was created. In their opening statements neither Waghorn nor General Izurieta's representative, Gen. Juan Carlos Salgado, acknowledged any institutional responsibility for human rights violations. Arancibia himself denied that the navy committed torture and later clarified his remarks by saying that if abuses occurred they were committed by individuals under emotional pressure, and against navy policy.135 The conditions the armed forces hope will be created by the talks involve both secrecy and impunity, which the human rights lawyers opposing them have rightly said they will not accept, another reason for pessimism.
The discovery of physical remains is, to be sure, of major importance for humanitarian reasons. It is, nonetheless, only part of the truth required. The vital missing ingredient is a truthful description by the institutions concerned of the methods used; acknowledgment of their absolute wrongfulness, regardless of the circumstances involved; and a public renunciation of the use of such methods in the future, whatever social or political tensions might prevail.
Government policy should also give priority to securing guarantees of justice for the victims of the military regime. As the United Nations expert on impunity pointed out in his final report, all victims should have "the opportunity to assert their rights and receive a fair and effective remedy, ensuring that their oppressors stand trial and that they obtain reparations." The report adds that "the right to justice entails obligations for the state: to investigate violations, to prosecute the perpetrators, and, if their guilt is established, to punish them."136
68 "The insufficiencies of our democracy have become patent for all to see, and the drama of the `disappeared,' whose whereabouts have remained unknown for more than twenty years, remains like an open sore in the national soul. The whole world knows this, and does not forget."
President Eduardo Frei Ruiz-Tagle, State of the Nation Address, May 21, 1999.
69 A soccer referee's warning card displayed to an offending player.
70 In Article 7 of Law 19,047 of February 1991, the government of President Aylwin included a provision, tailored to the Letelier case, that "crimes affecting the international relations of the Republic with another state" could be placed directly under the Supreme Court, which might appoint one of its members to investigate. The provision is in Article 52 (2) of the Organic Code of Courts (Código Orgánico de Tribunales). Apart from the Letelier case, the law was used to authorize a Supreme Court judge to take over the investigation of the 1976 murder of United Nations official Carmelo Soria, a Spanish citizen, following insistent pressure by the Spanish government. As noted above, the case was later closed on application of the amnesty law andformed part of Judge Garzón's initial extradition request.
71 The Council for the Defense of the State is an autonomous body that represents the public interest in both criminal and civil judicial proceedings.
72 "Caravana de la Muerte: CDE no se hará parte," La Tercera, June 26, 1999.
73 Interview with President Frei's former secretary general of government, José Joaquín Brunner. Cony Stiptic, "Frei ha hecho exactamente lo que tenía que hacer," Reportajes, La Tercera, November 15, 1998. Italics added.
74 Articles 117 and 119.
75 "Urgencia para reforma sobre plebiscito," El Mercurio, August 27, 1999.
76 In its examination of the report submitted by Chile under Article 40 of the International Covenant on Civil and Political Rights, the U.N. Human Rights Committee concluded:
"The constitutional arrangements made as part of the political agreement that facilitated the transition from the military dictatorship to democracy hinder full implementation of the Covenant by the State party. While appreciating the political background and dimensions of these arrangements, the Committee stresses that internal political constraints cannot serve as a justification for non-compliance by the State party with its international obligations under the Covenant." The committee stated that it was "deeply concerned by the enclaves of power retained by members of the former military regime. The powers accorded to the Senate to block initiatives adopted by the Congress and the powers exercised by the National Security Council, which exists alongside the Government, are incompatible with Article 25 of the Covenant. The composition of the Senate also impedes legal reforms that would enable the State party to comply more fully with its Covenant obligations." Concluding Observations of the Human Rights Committee : Chile. CCPR/C/79/Add.104, March 30, 1999 (Concluding Observations/Comments, 6 and 8).
77 Edgardo Boeninger, Democracia en Chile (Santiago: Editorial Andrés Bello, 1997), p. 431.
78 "Caso Pinochet no afecta apoyos presidenciales," El Mercurio, December 3, 1998; and Margaret Valenzuela, "Chilenos sienten que no les afecta caso Pinochet," La Tercera, December 3, 1998.
79 "Las cifras de la crisis Pinochet," Qué Pasa (Santiago), December 19, 1998.
80 Conducted by the Center for the Study of Contemporary Reality (Centro de Estudios de la Realidad Contemporánea, CERC), reported in La Tercera, April 20, 1999.
81 Daily newspapers El Fortín Mapocho and La Epoca closed in 1990 and 1998 respectively; weeklies Cauce, Análisis and APSI folded in the early years of the Aylwin administration. The Christian Democrat-inclined Hoy closed down in October, 1998.
82 In 1999 a new daily newspaper, El Metropolitano, was launched, independent of the two chains that dominate the Chilean print media, El Mercurio and Copesa, owners of La Tercera. Hopes that El Metropolitano might establish new standards of independent reporting were dashed when management fired its political director and two other senior professional staff for refusing to modify a piece about the military coup due for publication on September 11, titled "The Forgotten Stars of the Coup." The article was a profile of army generals who reportedly persuaded Pinochet to embark on the coup; managers representing the owners, Hites department stores, objected to this focus. Eleven editors of the paper resigned in sympathy with their colleagues. "Remezón en el Metropolitano por despido de directores,"La Tercera, September 15, 1999.
83 The cartoons are posted weekly on www.guillo.cl.
84 Gazi Jalil, "La Izquierda sin censura," Reportajes, La Tercera, February 28, 1999.
85 Patricia Lutz, Años de Viento Sucio (Years of Dirty Wind), (Santiago: Planeta, 1999). Lutz's sister Olga gave evidence to Judge Garzón in Spain.
86 Jazmín Jalilie, "Relator OEA califica como grave la censura en Chile," La Tercera, June 24, 1999.
87 Alexandra Matus, El Libro Negro de la Justicia Chilena, (Santiago: Planeta, 1999,) p.11-12 (available only in photocopy, pirated edition, and, for a time, on the Internet at www.tercera.com/libronegro ). Translation by Human Rights Watch.
88 For a full analysis and critique of this law, see Human Rights Watch, The Limits of Tolerance, pp. 48-53, 88-98.
89 Ibid, pp. 88-98.
90 Articles 263-265 of the Penal Code deal with defamation of government authorities, disruption of the proceedings of Congress and the courts, as well as threats and insulting expressions directed at legislators and judges. The wording of Article 263 is similar to that of Article 6(b) of the State Security Law.
91 See Felipe González Morales, "Informe ampliado sobre el proyecto que modifica la Ley 12.927," Programa de Acciones de Interés Público, Centro de Investigaciones Jurídicas, Universidad Diego Portales, September 1999, pp.19-20.
92 The opposition bloc is composed of two conservative parties - National Renovation (Renovación Nacional, RN) and the Independent Democratic Union (Unión Democrática Independiente, UDI). UDI's founder, Jaime Guzmán Errázuriz, was Pinochet's political advisor and one of the authors of the 1980 constitution.
93 According to Sen. Edgardo Boeninger, "The most problematic scenario for the Concertación would present itself if General Pinochet returns to Chile. In my opinion, what will occur is that demands will increase that justice be done here." Francisco Dagnino, "Las recetas de Boeninger en el caso Pinochet, La Tercera, February 22, 1999. Translation by Human Rights Watch. See also "Chile's right in the shadow of an embarrassing old general," The Economist (London), August 14, 1999.
94 "Caso Pinochet, preparan una nueva protesta internacional," La Tercera, January 2, 1999.
95 "Chile rechaza juicio Europeo a transición," El Mercurio, September 24, 1999.
96 José Ale, "Dávila: `Se ha pisoteado nuestra soberanía'," La Tercera, December 2, 1999.
97 "Dávila abogó por liberación de Pinochet," El Mercurio, March 2, 1999.
98 In its General Observation No. 20, the U.N. Human Rights Committee found amnesty laws like the Chilean to be generally incompatible with states' obligations under the ICCPR to guarantee that persons under its jurisdiction are not subject to violations of the covenant, to investigate such violations that occur, and to ensure that similar violations are not committed in the future. The Human Rights Committee reached the same conclusion in at least six complaints it has examined in Peru, France, Uruguay, Argentina, and El Salvador.
99 In March 1999, the Human Rights Committee, in its consideration of Chile's report on its observation of the International Covenant on Civil and Political Rights, noted that the amnesty law prevented the state from fulfilling its obligations under Article 2 (3) of the Covenant to guarantee effective reparation to any person whose rights and freedoms had been violated. In 1996 and again in 1998, the Inter-American Commission on Human Rights found that the Chilean amnesty decree violated the terms of the American Convention on Human Rights. Indeed, the commission chastised the elected governments for having failed to eliminate the decree from the books. Inter-American Commission on Human Rights, Report No. 36/96, October 15, 1996, and Report No. 25/98, March 2, 1998
100 The Concertación's 1989 electoral program stated: "By its own juridical nature and true sense and scope, the Amnesty Law of 1978 has not been, nor may be, an impediment for the establishment of the truth, investigation of the facts or the determination of criminal responsibility and consequent sanctions in cases of crimes against human rights, like detentions followed by disappearance, crimes against life and grave physical and psychological injury. The democratic government will promote the derogation or annulment of the Amnesty Decree Law." Concertación de Partidos por la Democracia, "Program of Government," published by La Epoca newspaper company, 1989. Translation by Human Rights Watch.
101 "Brunner: no hay condiciones," La Tercera, July 4, 1998.
102 Vicariate of Solidarity Documentation Center and Archive (Fundación Documentación y Archivo de la Vicaría de la Solidaridad), Informe de Derechos Humanos del Primer Semestre de 1999, pp. 16-18. For background on the Berrios case, see Human Rights Watch, "Unsettled Business: Human Rights in Chile at the Start of the Frei Presidency," A Human Rights Watch Short Report, vol. 6, no. 6, May 1994, pp. 19-20.
103 President Eduardo Frei Montalva was the father of Eduardo Frei Ruiz-Tagle, current president of Chile.
104 General Contreras, currently serving a seven-year sentence in Chile for the Letelier-Moffitt assassination, is expected to be released from prison at the latest in 2002. Brigadier Iturriaga is at liberty in Chile.
105 "Gobierno satisfecho," La Nación (Santiago), June 24, 1995.
106 Two hundred and sixty-one victims, in more than eighty cases, are involved, according to estimates provided to Human Rights Watch by the Vicariate of Solidarity Archive.
107 The treatment of Santiago Appeals Court Judge Carlos Cerda Fernández, who was suspended on half pay in 1986 for refusing to close an incomplete investigation, marked one of the most shameful episodes in the history of the Chilean judiciary. Cerda escaped expulsion from the judiciary in 1991 only after a personal plea of clemency to the Supreme Court and an international campaign on his behalf. Human Rights Watch (then Americas Watch) documented the case extensively in The Politics of Agreements, pp. 46-48, and in several earlier reports. See also the International Commission of Jurists, Chile: a Time of Reckoning, Human Rights and the Judiciary, (Geneva: ICJ, September, 1992), pp. 101-104; Alejandra Matus, El Libro Negrode la Justicia Chilena, (Santiago: Planeta, 1999), pp. 47-54.
108 See John A. Detzner, Tribunales Chilenos y Derecho Internacional de Derechos Humanos, Chilean Commission of Human Rights (Comisión Chilena de Derechos Humanos), Santiago, June 1988, pp. 59-74.
109 Using the criteria applied by the House of Lords in the Hoffman case, scores of Supreme Court decisions in which General Torres voted for closing human rights cases undoubtedly would have to be set aside and reviewed. General Torres, a close Pinochet confidante, abruptly resigned in April 1999 for "personal" reasons, although he was widely believed to have left in disgrace for his failure to halt the Pinochet prosecution or to stem the flow of human rights cases through the courts. Following a mission to Chile in March 1987, Human Rights Watch (then Americas Watch) concluded that Torres repeatedly abused his authority as a military prosecutor by subjecting security detainees to long periods of incommunicado detention following their torture by CNI and police agents, to which he turned a blind eye. Torres is now facing criminal complaints lodged by several of his victims. See Americas Watch, Chile: Human Rights and the Plebiscite, pp. 79-81, 88-92.
110 Article 6 of Law 19,123 of February 8, 1992, creating the National Corporation of Reparation and Reconciliation.
111 See Arzobispado de Santiago, Fundación Documentación y Archivo de la Vicaría de la Solidaridad, Situación de los Derechos Humanos Durante el Primer Semestre de 1998, Santiago, pp. 20-22.
112 In the first six months of 1999, 120 soldiers appeared before the courts. One hundred fifty appeared in 1997. "Molestia en las Filas," Qué Pasa, No. 1477, July 31, 1999.
113 Pilar Molina, "Habrá o no amnistía ?" Reportajes, El Mercurio, August 1, 1999.
114 The case concerned the "disappearance" of Gloria Lagos Nillson, detained by the DINA on August 26, 1974.
115 Cited in Archivo de la Vicaría de la Solidaridad, Informe Primer Semestre de 1999, p. 24. Translation by Human Rights Watch.
116 Those indicted were Gen.(r) Sergio Arellano Stark, Brig.(r) Pedro Espinosa, and retired colonels Sergio Arredondo, Marcelo Morén Brito and Patricio Díaz. Morén Brito was a DINA agent and commander of the notorious torture center Villa Grimaldi.
117 On January 12, 1998, Communist Party President Gladys Marín filed an accusation of genocide, aggravated homicide, kidnaping, illegal association, and illegal burial against General Pinochet, for the abduction, disappearance, and murder of her husband Jorge Muñoz Poutays and more than four hundred other members of the party during the military regime. Other families or organizations later lodged their own accusations. They included Sola Sierra, then-president of the Assocation of Relatives of the Disappeared, on behalf of her husband, Waldo Pizarro Molina and 973 "disappeared" detainees; 400 members of the Leftist Revolutionary Movement (MIR); the Chilean Teachers Association on behalf of 103 teachers; twenty-six victims of the "Caravan of Death" in Calama; the metalworkers union on behalf of more than one hundred metalworkers; the Chilean Nurses Association (Colegio de Enfermeras de Chile), the Journalists Association (Colegio de Periodistas) on behalf of twenty-seven journalists, and individual families.
118 Charges were dismissed against Armando Fernández Larios, Juan Chiminelli Fullerton, Juan Zanzani Tapia, Carlos Forestier Haensgen, and Marcos Herrera Aracena.
119 Armando Fernández Larios participated in the Letelier assassination plot and later fled to the United States, where he gave important evidence in the trial of former DINA agent Michael Townley for the assassination. Fernández was convicted as an accomplice in that case. Later released under a plea-bargain, living incognito in Miami and for a period under the Justice Department's witness protection program, he now faces proceedings for extradition to Chile.
120 The allegations were taken seriously enough by the conservative daily El Mercurio for it to lead its Sunday political section with a story headlined "Operation detente: how the danger of eliminating the amnesty was contained," ("Operación detente: cómo se conjuró el peligro de eliminar la amnistía"), El Mercurio, August 29, 1999.
121 "Oposición cuestiona la actuación del poder judicial," El Mercurio, July 23, 1999.
122 Gabriela de la Maza, "DD.HH.: acusación desordena a la derecha," La Tercera, July 24, 1999.
123 "FF.AA pidieron solución definitiva en derechos humanos," El Mercurio, July 24, 1999.
124 "Se aleja salida legislativa en los DDHH," El Mercurio, July 27, 1999.
125 "Izurieta viajó a apoyar al Gral. Pinochet," El Mercurio, April 17, 1999.
126 See Americas Watch, Chile: Human Rights and the Plebiscite, pp. 66-69, for an analysis of contradictions between the official version of the events and facts uncovered by Chile's nongovernmental human rights groups.
127 Fundación Documentación y Archivo de la Vicaría de la Solidaridad, Informe, primer semestre de 1999, p.15.
128 Blanca Arthur, "El Ejército no está de fiesta," El Mercurio, September 19, 1999; Cony Stipicic and Gerardo Beltrán, "La coordinacion gobierno-ejército por Pinochet," La Tercera, September 19, 1999.
129 María Luisa Córdova, "Los generales que vienen," Qué Pasa, no.1485, September 25, 1999.
130 "Congelado diálogo tripartito sobre DDHH," La Tercera, March 22, 1999.
131 Human Rights Watch interview with human rights lawyer José Zalaquett, a participant in these discussions, August 3, 1999.
132 Both Presidents Aylwin and Frei proposed legislation that would promote judicial investigation of cases of "disappearance" while protecting the anonymity of witnesses. Each proposal failed, as did a measure proposed by rightist opposition leaders to trade constitutional reforms for curbs on human rights court investigations. Each of these parliamentary initiatives was the direct or indirect result of military pressure. The Aylwin proposal can be traced back to the so-called Boinazo in May 1993. The Frei proposals sprang from civil-military tensions at the time of the arrest and imprisonment of General Contreras in October 1995.
133 Senator Enrique Silva Cimma, a member of the Senate commission that drafted the proposal, said that punishment would be impossible because of the self-amnesty law but that the intention was to enable the relatives to know where the bodies are and to bury them. "Inician estudio de ley sobre DDHH," El Metropolitano, May 29, 1999.
134 Article 94 of the Penal Code.
135 "El perdón puede facilitar alcanzar la verdad," La Tercera, September 9, 1999; "Arancibia conextualizó dichos," El Mercurio, September 9, 1999.
136 Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, The Administration of Justice and the Human Rights of Detainees, Question of the impunity of perpetrators of human rights violations (civil and political), revised final report prepared by Mr. Louis Joinet pursuant to Sub-Commission decision 1996/119, E/CN.4/Sub.2/1997/20/Rev.1, October 2, 1997, paras. 26 and 27 respectively.