Amnesty International Memorandum to the Government of the Republic of Chile
Amnesty International's Secretary General on mission to Chile,
October 1-6, 2000
SOURCE: http://web.amnesty.org/library/
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AI INDEX: AMR 22/022/2000
DATE: November 30, 2000
"Today's Chile must be a country where the rights of all are respected and
guaranteed. This includes the right of the victims to justice, the right of
their families to know the truth, and ultimately the right of all Chileans to
live in a country rid of the heavy legacies of the past, such as torture and the
death penalty, in the framework of a judicial system free from political
interference." Pierre Sané. October 2000(1).
Between 1 and 6 October 2000 Amnesty International's Secretary General, Pierre
Sané, lead a delegation of Amnesty International representatives to the Chilean
capital, Santiago. Other delegates were the Director of the America Regional
Program, Javier Zúńiga, and the researcher on Chile, Virginia Shoppeé. The
purpose of the visit was to initiate a dialogue on human rights with the new
administration headed by President Ricardo Lagos. The Secretary General met with
high-ranking government officials - including President Ricardo Lagos and
members of the cabinet - as well as parliamentarians, the President of the
Supreme Court, human rights non-governmental organizations, representatives of
indigenous people and members of civil society.
Following recent advances in the search for truth and justice in the serious
cases of human rights violations committed under the Chilean military government
the organisation sought and received assurances that the independence of the
judiciary would be fully respected, particularly following the lifting of
Augusto Pinochet's parliamentary immunity(2) and in light of other
investigations into cases of past human rights violations.
Mr Sané also raised Amnesty International's human rights concerns in today's
Chile with authorities and members of civil society. These concerns include
ongoing reports of torture and ill-treatment, the jurisdiction of military
courts over certain cases of civilians and over military personnel accused of
human rights violations, the 1978 Amnesty Law and the death penalty(3). The
Secretary General also enquired as to the present government's policies on the
rights of women, children, indigenous people and human rights defenders, in the
light of the international commitments undertaken by Chile.
On 3 October 2000 during a meeting with President Lagos, Pierre Sané presented
him with a memorandum of Amnesty International's concerns in Chile (see Appendix
I) and called for the formulation of a National Plan of Action on human rights
in keeping with the commitment made by all of the world's states in June 1993
during the UN World Conference on Human Rights in Vienna. Amnesty International
was encouraged by the government's acceptance of its proposals to draft such a
Human Rights National Plan of Action.
However, Amnesty International considers the 1978 Amnesty Law to be one of the
main obstacles still hindering the course of justice for past human rights
violations. This law was described by the Inter-American Commission on Human
Rights as incompatible with Chile's obligations under international law.
On 4 October 2000 Pierre Sané gave a speech entitled Human rights and democracy:
The challenge of Impunity to leading members of civil society (see Appendix II).
In it he asked how can you build a just society on the foundations of past
injustices? And identified three challenges facing the human rights movement if
it is to end impunity and close the gaps between principles and reality: The
battle for identity, the battle against forgetting, and the battle for
accountability. The Secretary General concluded that consensus must be built
around a global vision of human rights and articulated in a National Plan of
Action that will chart the path to the future.
During the visit, Amnesty International also sought to remind the government
that obtaining truth and justice is a duty owed to the victims and their
families, and it is a vital element towards reaching true reconciliation and
preventing similar tragedies from ever happening again. Amnesty International
emphasised that much remains to be done to uncover the truth about the thousands
of men and women who were victims of "disappearance", extrajudicial execution or
torture during the military government, and to bring those responsible to
justice. On 5 October the delegation visited the Memorial to the Disappeared and
Politically Executed where the delegation paid tribute to the victims of human
rights violations committed under the military government through words and a
floral tribute.
The organization remains concerned about a number of human rights issues that
Amnesty International included in the memorandum presented to President Lagos.
This includes ongoing reports of torture and ill-treatment, the 1978 Amnesty
Law, the jurisdiction of Military Courts over civilians and military personnel
accused of human rights violations, the death penalty, the situation of women,
refugees and immigrants, and Mapuche and other indigenous peoples, as well as
the lack of recognition of conscientious objection in the military service.
Ending impunity for past human rights violations and guaranteeing full respect
of the rights of all, both now and in the future are the crucial challenges
Chile is facing at the dawn of the new millennium.
Appendix I
Amnesty International Memorandum to the Government of the Republic of Chile
Presented by the Secretary General of Amnesty International to President Ricardo
Lagos on 3 October 2000
The inauguration of a new government in Chile at the start of the new millennium
presents a unique opportunity to re-examine the serious human rights issues that
have arisen over the years and to formulate policies and introduce reforms to
promote and protect human rights. The resolve of the new government will be
crucial in the formulation of policies and standards at a national level, to
tackle the human rights challenges which Chile is facing.
Some of these changes will involve drawing up new administrative guidelines;
others will need new legislation and constitutional amendments; and many will
simply require proper implementation of the existing provisions of Chilean law.
All will require political will.
Amnesty International hopes that the new government will embark on a national
action program which will enable it to make significant advances in this
direction and prioritize reforms aimed at improving human rights protection for
the whole Chilean population. By doing so, the Chilean Government would be
honouring the commitment it made at the United Nations (UN) World Conference on
Human Rights in Vienna in June 1993 when it supported the Declaration and
Programme of Action agreed at the conference which recommends that ''each State
consider the desirability of drawing up a national action plan identifying steps
whereby that State would improve the promotion and protection of human rights''.
The Conference reaffirmed the universality and indivisibility of human rights.
Amnesty International urges the Chilean Government to draw up such a plan so
that it can serve as a starting framework for ensuring human rights protection
in the country in the new millennium.
Over the past ten years Amnesty International has addressed the Chilean
Government about its main concerns on many occasions. These concerns include:
the torture and ill-treatment of individuals arrested by members of the security
forces; the absence of thorough, independent and conclusive investigations into
such abuses; the trial of civilians accused of politically-motivated offences by
military courts; application of the 1978 Amnesty Law as a means of closing cases
of human rights violations committed under military rule; and the imposition of
death sentences by the courts. Threats directed against human rights defenders
and the relatives of victims of past human rights violations, especially over
the past year, have also given increasing cause for concern.
Amnesty International welcomed Chile's ratification of several international
human rights instruments, including its recognition, pursuant to article 41 of
the International Covenant on Civil and Political Rights, of the competence of
the UN Human Rights Committee and its ratification of the Optional Protocol to
the Covenant. Of equal importance was the withdrawal of the reservations Chile
had earlier made with regard to the Inter-American Convention to Prevent and
Punish Torture of the Organization of American States (OAS) and the UN
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment.
More recently, in 1994 Chile co-sponsored a draft resolution introduced by Italy
calling for a moratorium on the death penalty with a view to achieving its total
abolition by the year 2000. Chile actively participated in the drafting of the
Inter-American Convention on Forced Disappearance of Persons and signed it in
June 1994. The National Congress is currently in the process of ratifying it. In
September 1998, Chile signed up to the Rome Statute of the International
Criminal Court.
It is nevertheless widely recognized that Chile's transition to democracy is
incomplete. It will be the task of this government to complete that transition
in which transparency and justice for past human rights violations will be key
issues. The serious violations which both the authorities and Chilean society in
general have now publicly acknowledged were committed in the past, are no longer
just the concern of the victims, their relatives and non-governmental human
rights organizations but also of the country as a whole.
The victims of those violations and their relatives must not be excluded from
the vision and political choices adopted for the XXI century. Only when the
truth and justice which the Asociación de familiares de los
detenidos-desparecidos, Association of Relatives of the Disappeared Detainees,
and other non-governmental human rights organizations in Chile have long sought
with regard to the serious crimes committed under military rule is achieved will
it be possible to have true reconciliation and to ensure that such abuses do not
occur again in the future.
Amnesty International has been closely following recent developments concerning
the serious human rights violations which took place when the military
government was in power. Of particular interest has been the new interpretation
adopted by the courts with regard to the 1978 Amnesty Law (Decree Law No. 2191)
in the case of the 19 persons who 'disappeared' in 1973 as a result of the
military operation known as the ''Caravan of Death''. The decision by the
Supreme Court on 8 August this year to confirm the removal of parliamentary
immunity from Augusto Pinochet so that he can be investigated in connection with
the ''Caravan of Death'' case should also be mentioned.
The organization has repeatedly urged the authorities to annul any amnesty laws
or other similar measures which allow such serious offences to go unpunished.
This position is clearly endorsed in the UN Declaration for the Protection of
all Persons against Enforced Disappearance, article 18 of which states that the
perpetrators or alleged perpetrators of enforced disappearances shall not
benefit from any special amnesty law or similar measures that might have the
effect of exempting them from any criminal proceedings or sanction.
Amnesty International believes that it is important to note that the
Inter-American Commission on Human Rights has stated that the Chilean Amnesty
Law is incompatible with Chile's international obligations under international
law and that ''[its] legal effect was part of a general policy of human rights
violation by the military government which ruled Chile''. The [UN] Human Rights
Committee has also deemed it to be incompatible with the international
obligations of States under the International Covenant on Civil and Political
Rights. The Vienna Declaration and Programme of Action reaffirmed that ''States
should abrogate legislation leading to impunity for those responsible for grave
human rights violations such as torture, and prosecute such violations, thereby
providing a firm basis for the rule of law''.
The 1978 Amnesty Law is still in force today. Amnesty International is therefore
calling on the government of President Ricardo Lagos to take the necessary steps
to annul the Amnesty Law so that it no longer hinders the thorough investigation
of human rights violations and so that those responsible may be brought to
justice. The organization is also calling on the Chilean Government to take the
necessary steps to ratify the Inter-American Convention on Forced Disappearance
of Persons.
Amnesty International has already recognized the importance of Chile's signing
of the Statute of the International Criminal Court adopted in Rome in 1998. The
organization trusts that the Statute will be ratified without delay and that it
will be promptly incorporated into Chilean law. However, still in the context of
international law, the organization has been concerned at the failure of the
Chilean authorities to cooperate in judicial investigations that are under way
in other countries to clarify the fate of the 'disappeared' and bring the
perpetrators to justice. Amnesty International is making an urgent appeal to the
Government to facilitate the necessary legal procedures so that criminal
prosecutions relating to human rights violations which have long been recognized
as crimes against humanity can continue.
Article 19(1) of the Chilean Constitution guarantees everyone ''the right to
life and physical and mental integrity'' and prohibits ''the use of all
illegitimate pressure''. However, complaints alleging that detainees have been
tortured or ill-treated continue to be made. Despite repeated assurances from
the authorities that torture will not be tolerated and although legislative
measures limiting the use of incommunicado detention and allowing detainees to
request a medical examination have been in place since 1991, reports of torture
have persisted throughout the ten years of democratic government. Most of the
cases have remained unresolved and those responsible have not been brought to
trial.
In his January 1996 report, the UN Special Rapporteur on Torture documented
cases of ill-treatment by police of detainees accused of ordinary offences, the
frequency of which he considered to be such that they could not be seen as
isolated incidents. The report stated that it was essential to bring procedures
governing incommunicado detention fully into line with the provisions of the UN
Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment.
Amnesty International has been concerned that the Chilean authorities do not
seem to have taken effective action to eliminate the practice of torture and
ill-treatment. The organization's experience in working to put an end to torture
has shown that the failure to take effective measures to investigate and punish
its practice only serves to perpetuate it. Amnesty International is therefore
taking this opportunity to reiterate its appeal for control to be reasserted
over the security forces at every level so that torture allegations can be
promptly, thoroughly and independently investigated and those responsible
suspended from active service and brought to justice.
Amnesty International is also calling for progress to be made under the current
presidency in effecting reforms to limit the extensive jurisdiction of the
military courts. For this to happen, the government and lawmakers will need to
be determined and committed to the task of reformulating policy and practice
with regard to the administration of justice.
Under Chilean law, it is the military courts which have jurisdiction over human
rights violations committed by members of the army and the Carabineros, police.
Amnesty International has come to the conclusion that this system encourages
impunity and denies the victims of human rights violations and their relatives
the right to an effective judicial remedy. No significant changes have yet been
made to military legislation and, as pointed out by the Special Rapporteur on
Torture in his 1996 report to the UN Commission on Human Rights, it continues to
foster impunity.
The [UN] Human Rights Committee and the Inter-American Commission on Human
Rights have repeatedly stated that the trial of members of the armed forces
accused of human rights violations in military courts is incompatible with the
obligations of States under international law. Article 16(2) of the Declaration
on the Protection of All Persons from Enforced Disappearance, adopted by the UN
General Assembly in resolution 47/133 of 18 December 1992, stipulates that those
responsible for enforced disappearances ''shall be tried only by the competent
ordinary courts in each State, and not in any other special tribunal, in
particular, military courts''.
Again, on the subject of military courts, it is of concern that at present most
persons accused of politically-motivated offences in Chile are tried by military
courts despite the fact that they are civilians. Since the return to civilian
government, several attempts have been made to reform this state of affairs
which has resulted in serious irregularities in the trials of political
prisoners. Unfortunately, such proposals have been rejected by the National
Congress.
Amnesty International is of the view that the country's legal framework and
trial procedures should be brought into line with international human rights
standards, such as the International Covenant on Civil and Political Rights.
This is one of the instruments which sets out the fundamental principles on
which the laws and legal proceedings of all countries should be based. In 1994,
the Inter-American Commission on Human Rights stated that the trial of civilians
in military courts was in breach of articles 8 and 25 of the American Convention
on Human Rights and that military courts were special courts whose exclusive
role was to maintain discipline within the armed forces and police and whose
jurisdiction should consequently be limited to strictly military offences.
At its 65th session on 24 March 1999, the UN Committee for Human Rights studied
the fourth periodic report submitted by Chile with regard to its compliance with
the International Covenant on Civil and Political Rights. On 30 March 1999, the
Committee adopted several final observations outlining its principal concerns.
They included the 1978 Amnesty Law, allegations of torture, the issue of
military jurisdiction and the right to a fair trial.
The lack of due process of law in trials conducted by military courts is a
matter of grave concern to Amnesty International, given that Chilean political
prisoners lack the most minimum safeguards with regard to certain fundamental
rights such as the right to be tried by an independent and impartial tribunal,
the opportunity to fully exercise the right to defence and the right to equality
before the courts for all parties in a trial. Of particular concern is the fact
that military courts can impose the death sentence, which they have done on
several occasions.
Amnesty International is opposed to the death penalty without reservation on the
grounds that it is the most extreme form of cruel, inhuman and degrading
punishment and that it constitutes a violation of the right to life. Under
Chilean criminal and military law, the death penalty can be imposed for over
twenty offences. Although no executions have been carried out in recent years,
since all death sentences have been commuted to life imprisonment, public
prosecutors have continued to request the death penalty and the courts have
sentenced both political and common prisoners to death.
Amnesty International has welcomed recent initiatives to abolish the death
penalty - the most cruel and inhuman form of punishment. The organization has
repeatedly expressed its concern about the imposition of death sentences by the
courts and about draft legislation seeking to extend its scope. The organization
is confident that the political leadership of the current government, which is
committed to full respect for human rights, will bring about the abolition of
this form of punishment which has proved to be ineffective in solving social
problems and can lead to the execution of innocent people.
Amnesty International also hopes that the program adopted by the government of
President Ricardo Lagos, which will be leading Chile over the next few years of
the new millennium, will reflect, both specifically and in general terms,
Chile's commitments under the Convention on the Elimination of All Forms of
Discrimination against Women and the Convention on the Rights of the Child. The
organization is likewise calling for ratification of Convention 169 of the
International Labour Organization concerning Indigenous and Tribal Peoples in
Independent Countries, which protects the rights of indigenous peoples.
Compliance with these conventions will be another indication that the government
is firmly resolved to respecting the human rights of all sectors of society.
Amnesty International is deeply concerned about the repeated threats to which
human rights defenders and the relatives of victims of human rights violations
have been subjected, especially in their search for justice with regard to human
rights violations committed under military rule. The organization is making an
urgent appeal to the President to do everything necessary to ensure that his
government publicly supports the role and work of human rights defenders by
speaking out against the intimidation they are suffering and guaranteeing full
protection to all human rights defenders so that they can carry on with their
work.
In this respect, it is worth recalling the recommendations contained in the
Vienna Declaration and Programme of Action adopted by the World Conference on
Human Rights in June 1993 on the importance of drawing up a National Action
Plan. Amnesty International is hereby calling for such a National Action Plan to
be carried out during the term of office of the current government. It should
include: the protection of all lawyers, witnesses, victims and their relatives
involved in cases of human rights violations. Amnesty International therefore
hopes that the current Chilean Government will give its public backing to the UN
Declaration on the Right and Responsibility of Individuals, Groups and Organs of
Society to Promote and Protect Universally Recognized Human Rights and
Fundamental Freedoms, known as the Declaration on Human Rights Defenders,
adopted on 9 December 1998, as well as to the resolution on Human Rights
Defenders in the Americas, adopted in June 1999 by the OAS General Assembly, and
the commitment contained in it to ''[continue] promoting and protecting the
fundamental rights of Human Rights Defenders''.
Amnesty International very much hopes that this Government, which will be
responsible for leading Chile into the XXI century, will open the doors as
widely as possible to ensure that human rights are fully respected in the future
and will unreservedly support past victims in their quest for justice.
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(1) Amnesty International press release; AMR 22/018/00; 30 September 2000.
(2) On 5 June 2000 the Santiago Appeals Court ruled by a majority of 13 to 9 to
lift Augusto Pinochet's parliamentary immunity, which derives from his status of
Senator for Life (Senador Vitalicio), to allow him to be investigated in
relation to the "disappearance" of 19 people during a military operation in
Chile known as the "Caravan of Death" ("Caravana de la Muerte") in October 1973.
This decision placed him in the same category as any other Chilean citizen
before the law. An appeal to the Supreme Court was submitted on 9 June 2000. The
Supreme Court hearings took place between 19 and 21 July and were attended by
Amnesty International's observer, Uruguayan jurist Dr. Alejandro Artucio. On 8
August the Supreme Court ruled by 14 to 6 to uphold the decision of the Santiago
Appeals Court .
(3) On 31 October 2000 the Chilean senate voted in favour of ending capital
punishment and
increasing the minimum term to be served under a life sentence from 20 to 30
years. The bill will now be submitted to the constitutional committee for a
final review before it becomes law.
(4) The speech "Human Rights and Democracy: The Challenge of Impunity" was
delivered by Amnesty International's Secretary General on 4 October 2000 at the
"Salón de Diputados" del ex-edificio del Congreso Nacional, Santiago de Chile.
