Alfonso Insunza Bascuñan, Director ARCIS University 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 security agents of the state 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� 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 explicitly refers 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 obliges 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 declaring 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 families of the victims �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 CEPAL 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 16-page ruling of the Supreme Court states:

"That in the 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 omission 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 from 1973 to 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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