Report prepared for the Board of the Chilean Branch of the American Association of Jurists, (attorney Graciela Alvarez, President)
by Jose M. Galiano, Attorney

Santiago, November 8, 2004

After 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.

First, 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.

Second, 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.

It is 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 process.

We should 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.

Moreover, 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.

Positivist 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.

Unfortunately, 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.

This 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 citizens.

But national 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.

The Chilean 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.