CHILE

Human Rights Developments

The government of President Patricio Aylwin intended, in its second year, to put the issue of human rights "to rest" as a source of national conflict. In March 1990, the Aylwin coalition had taken office on a platform of commitment to human rights, and the president in particular had distinguished himself in his pronouncements on the issue. At the same time, the government faced the necessity of reducing civil-military tensions, living with the former dictator General Augusto Pinochet as the continuing commander of the army, and returning the society to a state of calm after the fear and divisions of military rule. During 1991 human rights did not disappear from national debate _ indeed, both past abuses and new violations surfaced regularly in the press and in official statements _ but the issue, from the government's point of view, was largely resolved.

The government's sense of resolution was due, in large part, to the report produced by the nine-member National Commission on Truth and Reconciliation, also called the Rettig Commission after its chairman, lawyer Raúl Rettig. The immense and detailed report, released on March 4 with a live televised speech by President Aylwin, was the product of a politically heterogeneous commission which for nine months had interviewed survivors throughout Chile and reviewed the substantial archives compiled by human rights organizations. The report reached conclusions about 2,279 cases of political execution and disappearance during the period of military rule from 1973 to 1990, and offered profiles of the two generations of secret police (DINA and CNI) that carried out the repressive policy. Acts of violence by armed opposition groups, when these led to death or physical injury, were among the cases examined. However, the vast majority of crimes exposed by the report, including systematic torture that led to death, were traceable to official forces _ a combination of military and police intelligence units in the first year of military rule, and after that the security police composed of military and civilian agents. The report contained a chapter which quoted the victims' relatives on the subject of their long ostracism and suffering, and concluded with policy recommendations. Among these was the recommendation that research continue regarding the 641 cases on which the commission had not been able to reach conclusions due to insufficient evidence.²⁵

The Rettig Commission had been given a mandate that was in certain ways limited. It was authorized to uncover the truth about executions and disappearances by state agents, and executions and physical injuries by armed opposition groups. But it was not empowered to examine cases of torture not causing death, in part because the incidence of torture was so widespread during so long a period that this research would have been interminable. It could not name perpetrators of abuse, even when these were well known, because it was felt that the commission should not usurp the authority of courts to determine responsibility. However, the commissioners attempted to give the clearest possible picture of the conditions under which crimes were committed, such that perpetrators' institutional identification is often included in the report, even if their names are not. Many of the forms of abuse typical of the Pinochet era _ forced exile, invasion of the home, brutal suppression of public assemblies, erratic censorship _ are mentioned in the opening section of the report but did not fit within the commission's mandate.

The report is a generous and dignified document which does not soften the edges of the events it describes while placing them in a coherent social and political framework. And as remarkable as the report itself was President Aylwin's manner of presenting it. In his March 4 speech to an anxious nation, the president offered his vision of the report's significance. He spoke of forgiveness and the entire society's burden:

[O]ne must begin by specifying who are the offended parties called upon to forgive and who are the offenders to be forgiven. I cannot forgive for another. Forgiveness is not imposed by decree. Forgiveness requires repentance on one hand, and generosity on the other.

When agents of the state were those who caused so much suffering, and the relevant organs of the state could not or did not know how to avoid it and punish it, nor was there the necessary social reaction to impede it, the state and the entire society are responsible, whether by action or omission. It is Chilean society that owes a debt to the victims of human rights violations.²⁶

In his capacity as representative of the society, the president then asked pardon of the victims and requested of "the Armed Forces and forces of order, and all who have had participation in the excesses committed, that they make gestures of recognition of the pain caused and cooperate in diminishing it."²⁷

Unfortunately, with few exceptions, the import of the president's speech was lost on the civilian right as well as the army, the honor of which Pinochet defended in a speech responding to the report. Neither the country's former ruler nor his former civilian followers shouldered their burden of responsibility. Indeed, as late as October 22, when German Chancellor Helmut Kohl fleetingly mentioned past abuses and reconciliation in a speech to the Chilean Congress, most rightist legislators walked out.

The Rettig Commission's report did have the effect of stimulating debate about the past and vindicating the reputations of the victims. Then, a mere three weeks after its publication, Senator Jaime Guzmán, a major rightist figure and General Pinochet's closest civilian advisor, was assassinated, and the nation's attention was refocused on terrorism. Proposals for reparation ceased to be newsworthy; a planned national campaign of local meetings to reflect on past abuses and reconciliation was shelved; victims' concerns became marginal once again.

Some reparatory suggestions have been followed. There is legislation pending on compensation for survivors. An institution may be created to follow up on unresolved cases, although a portion of the parliamentary right is seeking to weaken it. An ombudsman is to be appointed as citizens' protector against abuses of authority. And at the commission's recommendation, about 230 cases were transferred to the civilian courts, some for the first time and many after having been reopened because of the commission's new findings.

However, the prospects for those cases are not encouraging. Apart from the milestone represented by the commission's report, the impediments to truth and justice in cases of past abuse remained unchanged in Chile during 1991, with one sole exception. The commission's report delivered a large portion of the truth, to be sure, but the commission could not establish such crucial information as the perpetrators' identities and the whereabouts of missing bodies; such information may be possible to establish only in court. In all but one case, there was no advance toward the prosecution of military personnel, or even civilian members of the security police, for crimes of the past. A 1978 amnesty law, decreed by the military government to cover the period of September 1973 to March 1978, continues to be interpreted by the Supreme Court as precluding even the investigation into, and determination of responsibility for, human rights abuses during that time. Inquiry is thus barred into virtually all disappearances and the bulk of executions. Regarding abuses committed by military personnel after March 1978, the Supreme Court with great controversy awards jurisdiction to military courts as a matter of habit, and those courts in an equally routine fashion allow the investigations to lapse. Perpetrators of gross and multiple violations of human rights remain effectively above the law. Some, still on active military duty, retain positions of responsibility.

The possible exception to the rule of impunity is a case in which some progress has been made in 1991, due to a combination of sustained U.S. interest and special Chilean legislation. This is the landmark Letelier-Moffitt assassination case, always an exception in the nation's human rights history. Orlando Letelier, who had served President Salvador Allende as foreign minister, ambassador to the U.S. and defense minister, was living in exile in Washington, D.C. when, on September 21, 1976, assassins detonated a bomb placed under his car. Letelier and U.S. citizen Ronni Karpen Moffitt were killed, while her husband, Michael Moffitt, survived the blast. Because a U.S. grand jury in 1978 indicted three DINA officials and five Cuban exiles,²⁸ the case was explicitly exempted from the 1978 amnesty law, leaving open the legal option _ unpursued by military courts _ of prosecution in Chile. The Aylwin government succeeded in having jurisdiction transferred to civilian courts, and in July 1991, a member of the Supreme Court was selected by his peers to pursue the investigation. The justice in question, the court's junior member, was appointed by President Aylwin and is a jurist of considerable prestige. His research led him, in September, to indict DINA's former director, retired army General Manuel Contreras, and DINA's former operations director, active-duty Colonel Pedro Espinoza. The two are under arrest. On November 18, the Supreme Court upheld the indictment, allowing the case to move forward.

Though far from successfully concluded, the prosecution of the Letelier-Moffitt case is an example of how human rights cases can be pursued. DINA chief Contreras was widely regarded as untouchable until he was arrested, but civilian rule has survived his detention. By contrast, another case of international terrorism by DINA _ the 1974 bombing assassination in Buenos Aires of retired General Carlos Prats, former army commander and Allende's defense minister before Letelier _ is neither exempted from the amnesty nor in civilian-court jurisdiction, and its prospects for full investigation are dubious _ principally, it seems, because the Argentine government has not made the case a bilateral issue as did the U.S. Congress and Justice Department with the Letelier-Moffitt killings.

The Chilean government's watchword regarding past abuses has been "reconciliation," which has translated into attempts to establish trust among the armed forces and police while recognizing the rights of victims. Efforts at reconciliation have been hampered by opposition from the right in Congress, which opposes leniency for persons imprisoned during the Pinochet era. Most remaining prisoners are charged with acts of political violence; Americas Watch is concerned in these cases about a lack of due process leading to their convictions. A package of legal reforms proposed by the Ministry of Justice was radically weakened by rightist legislators, with the result that security-related prisoners convicted by the military regime did not enjoy the clemency that the government had intended to offer them. Through presidential pardons, acquittals and other mechanisms, all but some seventy of the security prisoners inherited from the Pinochet era have been released, but the remaining prisoners may remain in custody for as long as another year, given judicial delays.

Meanwhile, conservative politicians have insisted on a vigorous anti-terrorism campaign. Their concern reflects public insecurity over continuing violence _ bombings, shootings and robberies _ by extreme-left opposition groups. The April 1 assassination of Senator Guzmán heightened that concern. The government's legislative response to terrorism has been enlightened. Among other things, plea-bargaining has been introduced into Chilean law, for the purpose of more effectively seeking out terrorists. But the treatment of terrorism suspects in custody has provoked between three and four dozen legal complaints of torture since the new government took office, none of which has been resolved. In general, the complaints made in 1991 did not describe such extreme forms of mistreatment as those filed in 1990, but many complaints alleged violent arrest, psychological pressure, and deprivation of rest, food and water. In one case in 1991, treatment was so violent that the detainee's skull was damaged and his spine dislocated, as verified by a doctor; the detainee also alleged that he was subjected to a mock execution. When human rights groups have attempted to gain cooperation from law enforcement agencies in investigating these complaints, they have found the civil detective force (Investigaciones) helpful and prepared to conduct internal disciplinary inquiries, but the regular uniformed police intransigent. Typical of the difference between the forces is that the detective unit has provided its ascending officers with courses on detainees' rights, taught by human rights activists.

There can be no doubt that the Aylwin government has explored many avenues in its efforts to resolve the human rights legacy of military rule, and that the remaining obstacles to justice and respect for human rights are not entirely of its making. Inherited institutional constraints, such as General Pinochet's right to appoint a substantial minority in the Senate and numerous constitutional provisions securing a substantial role in governance for the military, limit the government's freedom of action, and the political opposition makes a virtue of blocking or diluting human rights initiatives. The necessary negotiations in parliament _ what the government has dubbed "the politics of agreements" _ often end with disappointment for human rights advocates, as in the case of the reforms to benefit held-over prisoners.

The Right to Monitor

The Aylwin government maintains close relations with human rights groups. The Justice Ministry and the human rights office of the Foreign Ministry, in particular, are well informed as to legal complaints and measures taken to protect detainees from abuse. Former human rights activists now hold seats in Congress and ministerial posts at various levels. Because of President Aylwin's concern for human rights during the dictatorship, relations between human rights organizations and the government are cordial, even when activists come away frustrated by the government's caution. The official policy is one of full respect for the work of human rights monitors.

Americas Watch is aware of only one attack on a person linked to human rights work in 1991, an attempted murder by a right-wing paramilitary group. On the night of April 5-6, in the central southern town of Parral, an assailant bombed lawyer Guillermo Ceroni's home and then fired through the window. Ceronis, who was attorney for the German government and Amnesty International in their case against the nearby closed Community Colonia Dignidad _ a place long associated with DINA and human rights abuses _ has been watched and followed. Police identified the assailant as a member of the self-styled "Group of Friends of Colonia Dignidad." Ceronis recognized him as one of the men who had shadowed him. The case is under adjudication.

U.S. Policy

Firmly supportive of the Aylwin government, the United States lifted restrictions on bilateral aid in November 1990. This was done precipitously, for the Letelier-Moffitt case had not yet passed out of military jurisdiction and thus a central condition for the resumption of aid had not been met. In March 1991, after Chilean military and civilian defense officials visited Washington, the Bush Administration proposed one million dollars in military aid for Chile _ a small amount oriented toward the Air Force, the service most accepting of civilian rule. Americas Watch objected at the time to the lifting of aid restrictions in the absence of concrete progress in the Letelier-Moffitt case. However, the U.S. government has maintained an active interest in the progress of the Letelier-Moffitt case, although officials are careful to avoid any hint of interference in the Chilean legal process.

The United States also gave $300,000 in fiscal year 1991 for the International Military Education and Training (IMET) program, and has proposed an additional one million dollars for IMET in fiscal year 1992. Given General Pinochet's continuing presence at the head of the armed forces and the sorry history of U.S. involvement with the Chilean military, Americas Watch urges caution in efforts to promote reform through military training.

The other aspect of U.S. policy related to human rights _ trade benefits under the Generalized System of Preferences (GSP), which were suspended for the military regime's violation of labor rights _ was normalized in February 1991. The renewal of GSP benefits, which was supported by Chile's labor movement, appears justified.

The Work of Americas Watch

Americas Watch monitored conditions in Chile during 1991 through the work of a representative based in Santiago. In July, Americas Watch published Human Rights and the "Politics of Agreements": Chile During President Aylwin's First Year, a comprehensive report on the changing human rights and political conditions, their historical context, and the limits on reform. The public presentation of the report in Santiago was widely covered in the Chilean press. In that report, Americas Watch took exception once again to impunity enjoyed by military violators of human rights.

The organization also sought to improve victims' chances of legal recourse. Americas Watch agreed to assist the Group of Relatives of Disappeared Detainees (AFDD) in taking a case to international legal fora, given the exhaustion of domestic legal remedies. That case, involving seventy disappearances carried out by the DINA in the mid 1970s, was presented to the Interamerican Commission for Human Rights in March 1991 by the Center for Justice and International Law, of which Americas Watch is a member.

In addition to the 641 cases the commission could not resolve, it noted 508 on which it received information but which fell outside its mandate, and 448 in which information amounted to little more than a victim's name. "New" cases dating from the military period also continue to be denounced for the first time, though in small numbers.

Full text reprinted in El Mercurio, Santiago, March 5, 1991.

Ibid.

Two of the DINA officials, those of lower rank, went to prison in the United States in 1978 and 1987. Three of the Cuban exiles were convicted of various degrees of involvement but the convictions were reversed on technicalities in 1980. The remaining two Cuban exiles were arrested in 1990 and 1991, and both have been sentenced to twelve years' imprisonment.