Attorney 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 regime.

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 Universal Declaration.

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 Œthat 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 it."

"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 of Pinochet."

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.


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