Roberto Garreton, attorney with the former Vicaria of Solidarity,
is Representative for Latin America of the U.N. High Commissioner
on Human Rights.
by Memoria y Justicia
July 7, 2004
The historic ruling the Fifth Chamber of the Santiago Court
of Appeals issued January 5, 2004 in the forced disappearance
in 1989 of Miguel Angel Sandoval, which awaits the final
word from the Supreme Court, extensively cites and is grounded
on international law. In clause 45 of the ruling, the judges
refer to a "higher hierachy" and "constitutional
status" that article 5 of the Chilean Constitution
confers international human treaties. The recognition of
the supremacy of international law over domestic law is
the product of a slow process and has yet to be assimilated
broadly by Chilean judges. According to Roberto Garreton,
former attorney with the Vicaria of Solidarity and presently
Representative for Latin America of the U.N. High Commissioner
on Human Rights, the process can be traced to the tenacious
defense of human rights during dictatorship.
At the moment of the military coup, September 11, 1973,
a limited number of international human rights treaties
were in existence. Treaties ratified and in force in Chile
were the Geneva Conventions of 1949, the Convention for
Prevention of the Crime of Genocide, and the United Nations
Charter. President Salvador Allende had sent the Pact on
Civil and Political Rights to Congress for approval but
it was not ratified until 1989 in the last year of Pinochet
The First Human Rights Congress held in Teheran in l968
declared the Universal Declaration of Human Rights, which
is not a treaty, binding for all nations. The non governmental
organizations that emerged to defend lives trampled upon
during the dictatorship founded many legal actions on the
Roberto Garreton recalls:
"We frequently but not always invoked the Universal
Declaration. Why not always? You have to understand that
era. At times we received messages from the Courts asking
us please not to invoke the Universal Declaration any more
because it annoys the judges! We invoked it as a matter
of principle every so often and whenever we needed to address
a new issue of human rights."
"Sometimes we decided to make a point of citing it.
From now on, we will invoke the Universal Declaration on
all habeas corpus writs. The judges would get furious. Obviously
our primary concern was for people who were imprisoned,
so why provoke the judges? But we always invoked the Universal
Declaration whenever we made international denunciations."
"Now, in the War Councils we did invoke the Universal
Declaration. We invoked the Geneva War Conventions less
frequently because we were defending not accusing in the
War Councils. We had to defend people against charges that
they were traitors or that supposedly they had committed
a crime such as an infraction of the arms control act. In
later years some judges became aware of their error but
they did transfer it to rulings. Do not plead the Universal
Declaration, they would tell us. You have to understand
that we have a conscience but we are under pressure. They
were under pressure? And why did it never occur to them
that we had ample reasons to be fearful?!"
During the dictatorship years approximately 10,000 habeas
corpus writs were filed, seeking to protect the lives of
people in detention. The Report of the Truth and Reconciliation
Commission found in 1991 that the systematic rejection of
habeas corpus writs was key in the disappearance of people
after arrest. The Ministry of the Interior would argue in
each case that the person sought was not in detention. The
courts, the report concluded, could have saved lives. However,
even though the habeas corpus writs were rejected and complaints
failed to prosper during dictatorship, such legal actions
formed a judicial groundwork for the future when the constitutional
state was restored in Chile.
In this regard Garreton explains:
"All habeas corpus writs, all defense motions, and
all complaints we filed were destined to be accepted eventually.
Because our reasoning was correct even under the laws of
Pinochet. No law has a single interpretation. No law is
so blatantly as to flagrantly state that police are not
guilty when they murder someone. Or that whoever thinks
contrary to Pinochet commits a crime. Other formulas are
used. The laws of the dictatorship would say that whoever
violates national security will go to jail. And, when police
are obligated to shoot in the exercise of their duties,
they are exempt of guilt, which is in the Penal Code anyway."
"If you read our motions and complaints, you will find
that we gave the judges many clues, but they never picked
up on them.
An example. Argument N1: We would say, Sir, the amnesty
law cannot be applied because the man is still kidnapped.
He has not been released. And they would reply, False! The
crime of kidnapping is consumated when the person is abducted.
"Argument N2: We would say, Sir, the decreed amnesty
law states that amnesty is granted to the authors, accomplices
and abettors. So first we have to know who acted as author,
accomplice and abettor of this crime. Persons not events
are subject to amnesty. And, again,they would reply, False!
The amnesty law is objective, not subjective.
"Argument N3: We invoke the Geneva Conventions that
prohibit amnesties for crimes committed during war. You
say there was a war here, so you cannot apply the amnesty
law. And their reply was, False! They never accepted that
argument either, but they never gave us reasons for rejecting
"What happened 25, 30 years later? It turns out that
the crime of kidnapping continues in time, as we said back
then. It also turns out that amnesty is applied to authors,
accomplices and abettors. Consequently you have to investigate
first to find out who theseindividuals are. And it turns
out that the Geneva Conventions are applicable. The amnesty
decree law was enacted April 19, 1978 and we employed that
line of reasoning since that very day. The same arguments.
In those days, the judges rejected our arguments but today
they accept them. That tells us our defense was not off
base. On the contrary, it was correct, even under the laws
Roberto Garreton offers pointers for the direction human
rights cases might follow today: "First, the Geneva
Conventions obligate the State to try and sentence for war
crimes, and grave crimes against humanity even though the
crimes may have been committed in times of peace. If these
norms apply in times of war, all the more reason they should
apply in times of peace. So stated the International Court
of Justice in the case of the Gulf of Corfu."
"Second, the Convention on lack of inapplicability
of statutes of limitation in crimes of war and crimes against
humanity is in force in Chile. Even though Chile has yet
to ratify the Convention [Adopted internationally in 1968,
it has languished in the Senate Foreign Relations Committee
since 1994 when President Patricio Aylwin sent the treaty
to the Senate for approval.] the country is obligated to
respect the principles it contains, just the same. So statedthe
International Court of Justice in the case Nicaragua vs
United States. A state is bound by the principles even though
it may not have ratified the Convention."
The rulings in September 1998 in the Enrique Poblete Cordoba
case and January 2004 in the Miguel Angel Sandoval Rodriguez
case suggest a certain evolution in jurisprudence. Like
the best teachers, though with somewhat less patience,human
rights attorneys in Chile have been educating judges on
international law. These "teachers" have been
drilling the lesson over the past 30 years but the "students"
are still a long way from full literacy.
to "Reclaiming Memory"