(Santiago) — The use of an antiterrorism law to try Mapuche accused of acts of violence violates the basic due process rights of these indigenous defendants, Human Rights Watch and the Chilean organization Indigenous Peoples’ Rights Watch said in a report published today.
The 60-page report, “Undue Process: Terrorism Trials, Military Courts and the Mapuche in Southern Chile,” shows how Mapuche defendants charged with terrorist acts face unequal trials for crimes that do not pose a direct threat to life, liberty or physical integrity. The use of extraordinary procedures, which were established in the antiterrorism law to tackle the most extreme political violence, is wholly unjustified when dealing with crimes attributed to the Mapuche that are mostly against property.
“Chile’s antiterrorism law is inapplicable to these criminal acts. The government’s use of this law against the Mapuche violates Chile’s legal obligations to ensure the rights of everyone, including the Mapuche, to due process,” said José Miguel Vivanco, executive director of the Americas Division of Human Rights Watch. “To make matters worse, when the Mapuche appear before military courts, either as defendants or victims of abuses, they face a true denial of justice.”
The report by Human Rights Watch and Indigenous Peoples’ Rights Watch also documents cases of police abuse against the Mapuche in the south of Chile. “These recurring cases are unacceptable in a democratic society. The uniformed police and the government should confront these acts more decisively to ensure that they are completely eradicated,” said José Aylwin, director of Indigenous Peoples’ Rights Watch.
Indeed, police who commit abuses against the Mapuche are tried in military courts, which have logged a near-perfect record of impunity for those who violate Mapuche rights. To make matters worse, Mapuche accused of violence against the police, despite their status as civilians, are also tried in military courts composed of members of the armed forces.
In a trial now in its fourth week in the southern city of Temuco, seven Mapuche defendants and a non-Mapuche sympathizer face charges of belonging to an illicit association dedicated to acts of terrorism. The Mapuche are accused of plotting to commit a string of arson attacks on woods, fields, homesteads, and vehicles on land under dispute in the Araucanía region of southern Chile. None of these crimes against property rises to the level of terrorism.
The law under which the Mapuche are being tried was enacted by Gen. Augusto Pinochet in 1984 to confront growing armed resistance to his rule. Under new provisions of the law later introduced under elected governments, crimes of arson may be considered terrorist actions when intended to “spread fear in the population or part of it,” even if they do not constitute a direct threat to life, liberty or physical integrity.
Under one of the provisions of the antiterrorism law designed to protect witnesses, judges in the Temuco trial have allowed the prosecution to conceal from the defense the identity of at least six witnesses, seriously hindering the defendants’ ability to challenge their testimony and rebut the charges. These so-called “faceless witnesses” (testigos sin rostro) have been testifying in court behind screens and with voice-distorting microphones, and are visible only to the prosecutors and the judges.
The practice of using faceless witnesses violates article 14 of the International Covenant on Civil and Political Rights—ratified by Chile—which guarantees every defendant the right “to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
In 2003, two Mapuche community chiefs (loncos), Pascual Pichún Paillalao and Aniceto Norín Catriman, received five-year jail sentences for terrorist threats based on evidence given by faceless witnesses. The Supreme Court annulled a previous court verdict that had unanimously acquitted them. The community chiefs are now facing prosecution again for illicit terrorist association and could face up to 20 years in prison if convicted.
During the 1990s the Mapuche began protesting against alleged encroachments by forestry companies and private landowners on land they claim is theirs. The fertile land of the Bío Bío and the Araucanía regions, ancestral territory of the Mapuche, is now dotted with commercial pine and eucalyptus plantations, which the Mapuche claim harm the ecosystems on which their traditional life depends.
Protests by the Mapuche grew more violent at the end of the 1990’s, with clashes between groups occupying disputed land and the police, attacks on logging company trucks, and the burning of homesteads, crops, and pine plantations. Under strong political pressure, successive Chilean governments turned to the country’s most repressive laws to combat the violence.
Those charged with terrorism are often held in preventive detention for more than a year before their case goes to court. If convicted, the Constitution bars them for 15 years from holding public office, occupying teaching posts, exercising trade union or business responsibilities or practicing journalism. They are also denied the possibility of a presidential pardon.
Although the international community has not agreed on a precise definition of terrorism, it is widely understood that the term applies only to the gravest crimes of political violence: “the peacetime equivalent of a war crime,” in the words of United Nations Terrorism Prevention Branch expert A.P. Schmid. Chile’s use of terrorism charges for crimes committed in the context of land conflicts, which do not have these characteristics, is inappropriate and reinforces existing prejudices against the Mapuche.
Last year the U.N. Commission of Human Rights special rapporteur on indigenous people, Rodolfo Stavenhagen, urged the Chilean government not to apply charges taken from other contexts like terrorism for “acts related to the social struggle for land and legitimate indigenous complaints.”
Long-time victims of discrimination in Chile, the Mapuche continue to suffer abuses and degrading treatment when the uniformed police (carabineros) raid their communities to make arrests or carry out searches. The report describes a number of recent examples of abuse committed by carabineros charged with protecting witnesses or searching for suspects.
Military prosecutors and courts continue to investigate all complaints of abuses committed by carabineros while on duty, and such investigations rarely lead to the punishment of those responsible.
Human Rights Watch urged the government of President Ricardo Lagos to introduce legislation to restrict the jurisdiction of military courts to military offenses. Such courts do not satisfy the most basic standards of independence or impartiality required by the human rights treaties that Chile has ratified.
Human Rights Watch and Indigenous Peoples’ Rights Watch called on the Chilean government and the Attorney General’s office to use terror legislation only for the gravest crimes, to introduce safeguards to protect defendants’ due process rights, and to carry out independent reviews of cases of Mapuche convicted for acts of terrorism.