(Santiago) - Human Rights Watch welcomes the agreement reached on June 13 in the talks between human rights attorneys, religious leaders, members of civil society and representatives of the armed forces and the uniformed police, known as the Mesa de Dialogo. We are also pleased to note that on June 21, Congress, acting by an overwhelming majority, passed legislation enacting the agreement.
The agreement offers hope that hundreds of Chilean families may know the fate of relatives who "disappeared" following the 1973 military coup, after decades in which this information has been concealed by those responsible for their abduction, torture, and murder. However, it is now up to the armed forces and the police to comply with their agreement to provide the fullest information possible on the whereabouts or fate of the "disappeared" within the stipulated six-month period. The value of the agreement depends on the armed forces keeping their word.
Those who collect or receive this information, both in the armed forces, the police and the churches, will be protected by professional secrecy. This means that they may not be bound to reveal their sources to the courts, and indeed are obliged to keep their identity secret. At the end of the six-month period the information will be provided to President Ricardo Lagos, who will ask the Supreme Court to appoint special judges to locate, exhume and identify the bodies and establish the date and cause of death.
While the law bars those who receive information from divulging their sources, it does not punish those who conceal information or refuse to cooperate with the courts. Participants in the Mesa de Dialogo discussed but were unable to reach a consensus on this point. This serious omission may be rectified in the future, however, as it was agreed that President Lagos may, after reviewing progress in implementing the agreement in six months' time, introduce "complementary measures" if he thinks them necessary.
The norm of secrecy is intended to encourage those who have information to provide it without fear of self-incrimination. It does not restrict the action of the courts. The preamble to the implementing law passed on June 21 says explicitly that it is up to the courts to decide whether, or when, to apply Chile's amnesty law, which covers crimes committed between 1973 and 1978. While the dominant view in the judiciary is that the amnesty is applicable once the fact of death and the identity of those alleged responsible have been established, some judges have ruled the amnesty inapplicable since under international law crimes against humanity are not subject to amnesties or statutes of limitation. Given the scale and severity of the abuses committed under Pinochet, Human Rights Watch agrees with the latter view.
Nor does the amnesty law in any way allow the armed forces or the police to ignore the agreement's requirements. Since the amnesty law forms no part of the agreement, the armed forces or the police would be violating the terms of the agreement if they were to withhold information as a means of protesting court decisions adverse to their members or former members.
In what is perhaps the most important statement in the agreement, the armed forces and the police acknowledged "the responsibility of agents of organizations of the State" for grave human rights violations during the military regime. Human Rights Watch welcomes this as the armed forces' first acknowledgment of responsibility for the atrocities committed under Pinochet's dictatorship. It is still not a perfect acknowledgement of responsibility, however. Notably, the language of the statement does not do justice to the fact, clearly established by the Rettig Commission in 1991, that the human rights violations were systematic and carried out as a matter of state policy. Moreover, the statement can be easily construed to mean that the agents who committed the abuses did not enjoy official support, whereas, in fact, the full resources of the state were used to cover up or legitimize crimes against humanity. In addition, the statement should have included a specific reference to the gravest abuses committed, such as "disappearances," extrajudicial executions, and torture.