prepared for the Board of the Chilean Branch of the American
Association of Jurists, (attorney Graciela Alvarez, President)
by Jose M. Galiano, Attorney
November 8, 2004
due consideration of the issue, the Chilean Branch of the
American Association of Jurists presents its objective legal
analysis regarding the merits and purposes of two criminal
law mechanisms that have been repeatedly invoked in order
to close the trials on human rights violations by granting
impunity to the authors of the crimes.
we shall refer to the Amnesty provision, which the Military
Junta formulated under Decree Law 2191 on April 19, 1978.
The Amnesty Decree Law benefited those individuals who..."in
their capacity as author," "accomplice or accessory to crimes
they may have committed during the existence of state of siege,
in effect from September 11, 1973 to March 10, 1978, and who
had not been charged or convicted of a crime." Thus stated
Article 1 of the Decree Law, which was signed not only by
the four members of Military Junta, but also by Sergio Fernandez
Fernandez and Monica Madariaga Gutierrez, who served as Interior
Minister and Justice Minister, respectively, at the moment
of enactment. As it was impossible to charge any agents of
the regime, obviously these would be the primary beneficiaries
of the amnesty provision.
statutes of limitation are commonly invoked to impede legal
action, as established in Articles 94, 95 and 96 of the Code
of Criminal Procedure. This device, for the purposes of this
analysis, is associated with the existence of the Chilean
dictatorship up to March 11, 1990; as well as the permanence
of the dictator as Army Commander in Chief until March 11,
1998. This simply implies that human rights violators were
given 8 to 24 years of concealment for the serious crimes
they committed, and a false foundation from which to allege
statutes of limitation.
important to note that neither amnesty nor statutes of limitation
are applicable to these crimes, as stated by N 1, Article
3 of the Geneva Conventions, of which Chile is signatory.
The crimes excluded from such benefits are as follows:
a) All attacks against life and physical integrity, particularly
all forms of homicide, mutilations, cruel treatment, torture
and harsh punishment.
b) The taking of hostages.
c) Abuse against personal dignity.
d) Executions carried out without a trial or death penalty
as a sentence by an illegally constituted court without due
not have to remind ourselves that Art. 3 of the four Geneva
Conventions extended International Humanitarian Law to Internal
Armed Conflicts including those in which Armed Forces intervene
against rebels, even when the organization and control of
these are minimum. In the case of Chile, the very afternoon
after the military coup, the new rulers declared that the
country was in a state of war which continued until April
19, 1978, date of the formal publication of D.L. 2191. The
entire national territory remained under state of siege, with
curfew enforced and military tribunals presided with absolute
and exclusive jurisdiction over presumably illegal actions
whose source, motive or circumstances were aimed against political
activities or opposition to the de facto regime.
The Convention on Non-prescription of War Crimes and Crimes
Against Humanity, adopted by the United Nations General Assembly
by Resolution N 2391 on November 26, 1968 (in force November
8, 1970) declared war crimes not subject to statutes of limitation.
It also specifically included provisions set forth in the
Nuremburg International Military Tribunal Statutes of August
8, 1945 as well as the "serious infractions" listed by the
Geneva Conventions on August 12, 1945 to protect victims of
war. Article 1, letter a) of the Convention specifically provides
such. Clearly, the clauses on non-prescription of war crimes
and crimes against humanity only confirm the fundamental principle
of Positive International Law that inspires the Statutes and
the Conventions. This tells us that the imputability, trial,
and conviction for such crimes apply regardless of the place
or time period the crimes are committed.
the United Nations General Assembly once more ratified the
procedural considerations for this kind of serious conduct
in Resolution N3470 of December 3, 1973. The Resolution states:
"the individuals against whom proof exists of culpability
in these crimes will be sought, arrested, tried and if found
guilty, shall be punished; wherever and whenever the crimes
may have been committed or the date the crime was perpetrated."
The objective of the Resolution was to reiterate the obligation
accepted by all Member States regarding Humanitarian Law and
with the protection of Human Rights. The first two clauses
of the agreement refer to this objective in no uncertain terms.
"The General Assembly, remembering its resolutions 2583 of
December 15, 1969; 2712 of December 15, 1970; 2840 of December
18, 1971 and 3020 of December 18, 1972 in light of the special
need to adopt measures on the international level, to ensure
the trial and punishment of persons guilty of war crimes and
crimes against humanity," declares "that statutes of limitation
are inapplicable in war crimes and crimes against humanity.
international law and resolutions adopted by the UN General
Assembly clearly state that legislative or judicial pretexts
to justify or obtain impunity of perpetrators or suspected
perpetrators of war crimes or crimes against humanity seriously
infringe legal commitments freely accepted by all Member States
that subscribed to these International Conventions.
Chile is in the uncomfortable position of repeated non-compliance
with fundamental international law, namely the Humanitarian
Law Statute and its precautionary clauses on human rights.
The position of Chile fringes on flagrant rebellion of this
norm. Upon the insistence of Chilean public entities, two
legal instruments prohibited by international law have been
applied to protect crimes committed against life and human
dignity, by agents of the State under a de facto regime. In
addition, the State of Chile has been in open noncompliance
with the promise it made that the former dictator who bears
primary responsibility for all these crimes would be brought
to trial in Chile. This solemn pledge by Chile committed the
nation and its people and its acceptance by the United Kingdom
was a tribute to our democratic and responsible legal tradition.
It would be unfair to say that when the British government
acceded to the Chilean petition it failed to accept a responsibility
that it did not have . Because after the ruling from the Chamber
of Lords, the only legitimate, or at least reasonable, condition,
it could argue against extraditing the Chilean dictator was
the commitment from our government that he would be tried
in his own country.
is the objective reality of what has occurred in Chile, after
16 and a half years of the most degrading, organized criminal
conduct that was protected or tolerated by de facto officials
with unconditional assistance from political sectors that
had induced the virtual genocide of a segment of their fellow
dignity does not prescribe and the trampling that offended
that dignity cannot be subject to amnesty. The recent recognition
by the present Army Commander of in Chief of institutional
responsibility must be viewed in its profound implications,
by the State, by its current officials and by entities independent
of constitutional authority. These entities regained their
independence with the formal recovery of the institutional
base and cannot evade the obligation to ease the unjust and
prolonged suffering endured by relatives of the disappeared
and executed political prisoners.
community, for its part, cannot evade the duty of the State
to restore damages to the direct family members of the victims
as well as survivors of torture and prolonged imprisonment.
But it is evident that the State has only a subsidiary obligation.
The assets of the individual, who holds primary responsibility
for all the crimes, cannot be exempt from economic restitution.
The holder of those assets enjoyed sound mind when the crimes
were committed. A person who is not lucid presumably does
not have the conditions to plan genocide or to order his underlings
to carry out such crimes.