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Alfonso
Insunza Bascuñan
Director
Univ. ARCIS Law School
(Published
in Revista Juridica ARCIS, Vol. 1, N. 1)
One of the still unresolved judicial and moral issues of our
history, cited by the Truth and Reconciliation Commission
Report of 1991 on the events that took place from 1973 to
1990, is the penal impunity of crimes committed by agents
of the State evidenced in the thousands of disappeared persons
and executed political prisoners. The Military Junta established
this impunity through Decree Law 2.191 of 1978. After its
enactment, human rights lawyers impugned the illegitimacy
of the law, as a self-proclaimed amnesty that shielded the
regime’s security agents from prosecution for homicides
and abductions. Furthermore, lawyers objected to the law as
an infringement of international human rights treaties ratified
by Chile.
The
arguments that repeatedly challenged the courts’ application
of the amnesty can be summed up as inapplicable to cases of
the disappeared. The cases of persons who were made to disappear
after detention constitute cases of abduction, a crime, which
is not consummated until the whereabouts, or fate of the victims
can be determined. The amnesty law, lawyers argued, is therefore,
a violation of international treaties in existence and ratified
by Chile at the time the crimes took place.
The
rulings handed down by the Supreme Court failed to accept
these arguments. However, during the present year (1998) certain
significant changes in criteria and interpretation have been
noted within the Supreme Court, concerning the principle of
preeminence of international treaties over national law, in
particular, the Geneva Conventions.
In
order to understand this judicial evolution, we must refer
to previous rulings of the high court and resolutions of international
organizations on this subject...
The
first ruling relevant to our analysis was the decision on
a motion to vacate filed with the Supreme Court in relation
to a case involving 70 persons arrested and made to disappear
between 1973 and 1977. The case, which named as defendants
former DINA director Manuel Contreras and others, was in process
in the Santiago Military Court. The motion to vacate asked
the high court to rule inapplicable article 1 of the 1978
amnesty Decree Law as a principle contrary to the Constitution
of Chile and the following articles in particular: article
5 (supremacy of international human rights treaties), article
19 N.1 (right to life), 19 N.2 (equality before the law),
19 N.7 (individual freedom), 19 N.23 and 24 (right to property).
In
this 48-page ruling, the Supreme Court makes express reference
to the Geneva Conventions, subscribed by Chile on August 12,
1949, ratified by Supreme Decree 752 and published in the
congressional record, the Diario Oficial April 17 to 20, 1951.
It stated that the Conventions should be considered as included
in regulations of article 5 of the Constitution, which mandates
government offices and agencies to respect and foster the
fundamental rights that derive from human nature and are guaranteed
by international treaties.
Clause
N. 26 of the Supreme Court rulings states: "in accordance
with its texts, these Geneva Conventions refer to measures
for improving the condition of the wounded, the sick, and
shipwrecked members of the Armed Forces at Sea, treatment
of war prisoners and protection of civilians in time of war.
In conformance with what is set forth in articles 2 and 3
which are common to the four conventions ratified, it is clear
that its application is specifically limited to cases of declared
international war and to armed conflicts that arise within
the territory of some of the Parties. It is evident that its
provisions in reference to this latter situation concern an
internal armed conflict or war between well armed sides over
whom its provisions are binding. (Art. 3)."
The
Court goes on to state that this reference suffices to conclude
that the norms of these Conventions, which oblige the Parties
to punish those responsible for serious violations set forth,
are not applicable to the criminal events here in question.
While these are relevant to the period of state of siege covered
by the amnesty, these crimes do not appear to be the consequence
of an internal armed conflict of the characteristics described.
Thus, we conclude that the provisions of the Geneva Conventions
cannot be cannot affect the legal principle that conceived
the 1978 amnesty.
As
a result of this Supreme Court ruling which declared the constitutionality
of the 1978 amnesty Decree Law, lawyers turned to the Inter
American Human Rights Commission, or the Pact of San Jose,
Costa Rica, ratified by Chile in 1990. On October 15, 1996,
the Commission concluded:
"...the
act through which the military regime implanted itself in
Chile, and dictated in 1978 the self-amnesty Decree Law
2191 is incompatible with provisions of the American Convention
on Human Rights, ratified by that State on August 21, 1990."
"That
the sentence of the Supreme Court of Chile, dictated August
28, 1990 that declares Decree Law 2191 constitutional and
of obligatory application by the judicial branch, when the
American Convention on Human Rights already has taken effect,
violates articles 1.1 and 2 of the same document (right
to justice)".
"That
the judicial decisions for permanent dismissal dictated
in criminal proceedings opened in relation to the arrest
and disappearance of 70 persons, in whose names this present
case has been brought, not only aggravate the situation
of impunity but also and definitely violate the right to
justice of the victims’ families to ascertain the authors
of these crimes, determine their responsibilities and corresponding
punishment, and obtain legal reparation from them. The Commission
recommends that the State of Chile bring its internal legislation
in compliance with the American Convention on Human Rights,
so as to allow for investigation of the human rights violations
of the military government, so as to identify the guilty
parties, determine their responsibilities and punish them
appropriately, thus guaranteeing victims and their families
the right the justice."
On
August 23, 1996 the Penal Chamber of the Supreme Court confirmed
the permanent dismissal by way of the amnesty Decree Law 2191
in the case involving the assassination of CAPE functionary
Carmelo Soria Espinoza, perpetrated in July 1976 by DINA agents.
In the course of this case, discussion centered on the supremacy
over national law of a UN treaty published March 229, 1977
called the Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons, including
diplomats. Article 2 of this treaty sets forth that each State
party to the Convention will ensure that homicide, abduction
and other crimes against internationally protected persons
be adequately punished, keeping in mind the serious nature
of such crimes.
The
Supreme Court, resolved that this article: "should be
understood as applicable only after a case has completed its
judicial course and corresponding penal responsibilities determined
and sentence dictated... situation which clearly is not the
case in light of the objective extinction of penal responsibility
by amnesty of article 1 of Decree Law 1978, which is evidently
applicable in this case."
Previously,
the Supreme Court Prosecutor indicated in his report on the
case that amnesty was not applicable in light of treaties
and international conventions subscribed by Chile and that
are in effect through Art. 5, clause 2 of the Constitution,
which establishes the supremacy of these treaties over the
Decree Law 2191.
More
recently, in a motion to dismiss on the grounds of errors
of law, the Penal Chamber of the Supreme Court ruled on a
case involving Pedro Poblete Cordova, who was arrested and
disappeared. The ruling completely differed from previous
doctrines and declared the preeminence of international human
rights treaties over internal law.
Clause
9 of the Supreme Court’s 16-page ruling states:
"That
in the following point under consideration, we must bear
in mind that after September 11, 1973 when the Armed Forces
overthrew the government and took power, expressly exercising
representative, legislative and executive authority, the
on September 12, 1973 the Junta dictated Decree Law N 5,
which in its article 1 declared as new interpretation of
article 418 of the Military Justice Code and established
that the State of Siege decreed on account of internal disturbance
should be understood as "state or time of war"
for the purposes of that legislation. At this time, as well
as today, the 1949 Geneva Conventions were undoubtedly in
effect."
The
ruling goes on to state in its clause 10 that "through
these Conventions, the State of Chile imposed on itself the
obligation to guarantee the security of persons who may have
participation in armed conflicts within its territory, particularly
prisoners. This leaves out of bounds of law all measure that
shield offenses committed against certain persons or that
achieves the impunity of those responsible for such acts,
considering that international agreements must be complied
with in good faith. As the Pact seeks to ensure protection
of basic rights that stem from human nature, its application
takes preeminence considering that this Supreme Court, in
various different sentences, has recognized that the trustworthy
history of the establishment of Constitutional norms, contained
in article 5, clearly established that internal sovereignty
of Chile acknowledges its limits in rights that derive from
human nature. That these are values above any law that authority
may enact, and may not be disavowed.
Under
these circumstances, indicates the Court, the failure to apply
such provisions is an error of law that must be corrected
through this motion, especially taking into consideration
that according to principles of international law, it should
be interpreted and complied with in good faith by the States.
From this we may understand that Internal Law must accommodate
itself to these international laws and the legislator must
incorporate new laws that dictate these international instruments,
thus avoiding transgression of these principles."
This
ruling restores the supremacy of international human rights
treaties ratified by Chile, over the 1978 amnesty law. Consequently,
in accordance with these treaties, the State of Chile must
investigate and sanction those responsible for serious crimes
committed by agents of the State during the period 1973 —
1978, period covered by the amnesty. The importance of this
change in jurisprudence in this new judicial interpretation
is vital. It establishes that international principles enshrined
after the Second World War that refer to crimes against humanity
are not subject to statutes of limitation and are not subject
to any amnesty or exoneration of penal responsibilities.
If
definitively consolidated by the Supreme Court, this doctrine
will allow for a genuine and effective reconciliation of our
society, based on truth and justice of the facts confirmed
in the Truth and Reconciliation Report of 1991.
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