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RIGHTS-CHILE: Uphill Climb to Overturn Amnesty

Analysis by Gustavo González

SANTIAGO, Oct 17 2006 (IPS) - Despite an Inter-American Court on Human Rights ruling against the amnesty law in force in Chile since 1978 and President Michelle Bachelet’s determination to comply, it will not be easy to revoke the law.

Bachelet, legislators from the centre-left governing coalition, and human rights groups say Chile should should bring its national legislation into line with international law and live up to the international conventions to which it is a signatory – in other words, repeal the amnesty decreed by former dictator Augusto Pinochet (1973-1990).

Supreme Court chief justice Enrique Tapia said Monday that the ruling handed down on Oct. 13 by the Inter-American Court “is merely a recommendation, not a binding sentence that can be immediately applied in Chilean legislation.” He added that it is Congress that must modify the amnesty decree.

Lawmakers of the right-wing opposition Alliance for Chile argue that at this point in history, the revocation of the controversial decree-law would have no legal effect and would be nothing but a “symbolic gesture” in the context of an “artificial debate” promoted by the governing coalition “to divert attention from more pressing questions and issues of national interest.”

The debate that has been revived is an old one in this South American country, and there is nothing artificial about it, as it involves the very foundations of a “self-pardon” by the military that has let off the hook almost all of those responsible for human rights crimes committed during the Pinochet regime.

One of the first victims of the dictatorship was Luis Alfredo Almonacid, a leader of the teachers’ union in the city of Rancagua, 90 km south of the capital. He was arrested on Sept. 16, 1973 – just a few days after the Sept. 11 coup that year – and shot the next day by the Carabineros police.

Almonacid, 42, a married father of three, was also a member of the Communist Party and a provincial leader of Chile’s central trade union, the Central Única de Trabajadores.

After Chile’s March 1990 return to democracy, his family filed a lawsuit against Raúl Neveu and Manuel Castro, members of the military who were identified as Almonacid’s killers.

The case was moving along until it was referred to the military courts, which in 1997 declared it closed and invoked the 1978 amnesty law to clear Neveu and Castro of any penal responsibility.

Almonacid’s family then turned to the Inter-American Court on Human Rights, which handed down a ruling last Friday described by the Group of Families of the Detained-Disappeared – a Chilean human rights group – as “historic.”

The verdict stated that granting an amnesty to those responsible for crimes against humanity is incompatible with the American Convention on Human Rights, which was ratified by Chile in August 1990.

It also called for justice to be served in the case involving the “extrajudicial execution” of Almonacid, and stated that the amnesty cannot establish the principle of res judicata, which refers to a matter already settled in court that cannot be raised again.

On Oct.14, in a crowded ceremony held in the Villa Grimaldi Peace Park , Bachelet received a standing ovation when she said the Inter-American Court ruling was of “tremendous significance to the cause of human rights,” and stressed that her duty as president was to ensure that the Chilean state respects the principles and institutions of international law.

“We are studying the measures necessary (for complying with the ruling), and as soon as we have them ready, we will publicly announce them,” added the socialist president, who along with her mother was briefly held as a political prisoner in Villa Grimaldi, which functioned as a clandestine detention centre during the dictatorship.

The Villa Grimaldi torture camp began to be operated by DINA, the dictatorship’s secret police, in late 1973. Some 4,500 people were held there, 226 of whom were among the dictatorship’s 1,129 victims of forced disappearance.

The amnesty covered human rights crimes committed between Sept. 11, 1973 – when Pinochet overthrew socialist President Salvador Allende – and Mar. 10, 1978, the period during which the lion’s share of the de facto regime’s more than 3,000 victims were “disappeared” and/or killed.

Although the repeal of the amnesty law has long been an aim of the centre-left ruling coalition that has governed Chile since 1990, it had been blocked as the country made its way through an incomplete transition to democracy.

Pinochet, who held the post of army chief until March 1998, basically guaranteed that the amnesty would have a long life when he famously threatened, just before handing over power in 1990 to Christian Democratic President Patricio Aylwin: “The day they touch one of my men, the rule of law is over.”

But the courts gradually started to chip away at the amnesty law as “Pinochetista” judges retired and other judges began to apply the so-called “Aylwin doctrine” in cases of forced disappearance.

That doctrine argued that the amnesty did not apply to cases of kidnapping, and that forced disappearance amounted to kidnapping if the victim had never been found.

That legal premise triggered a debate and led to lengthy trials in civilian courts. But the military courts, which ended up dealing with any lawsuits involving members of the security forces, either as defendants or plaintiffs, continued to apply the amnesty across-the-board.

In January 2001, a joint document issued by the London-based rights watchdog Amnesty International and the International Commission of Jurists reported that the amnesty law had allowed the military courts to close 100 cases of forced disappearance in 1989, while the Supreme Court upheld the application of the law in another 70 cases in 1990.

And when Aylwin signed the American Convention on Human Rights in August 1990, he said its effects would not be retroactive in Chile – which meant the amnesty law would remain in force.

The right-wing opposition alliance today invokes these precedents to argue that the repeal of the amnesty would not have any legal effect.

But human rights lawyers, victims’ families and human rights groups like Amnesty International and the New York-based Human Rights Watch argue that the amnesty law was illegitimate from the very start, because it contravenes instruments of international law signed by Chile before it was decreed.

Early this month, Supreme Court Justice Sergio Muñoz noted that Chile ratified the Geneva Convention in April 1951, and that in 1946, when it signed the accords reached by the United Nations General Assembly, it also approved the charter of the Nuremberg International Military Tribunal, which had jurisdiction over crimes against humanity regardless of where they were committed.

It is now up to the courts to give signs of complying with the Inter-American Court on Human Rights ruling on the amnesty, as José Miguel Vivanco, director of Human Rights Watch/Americas, said.

In addition, Congress must move towards overturning the amnesty or approving a bill that has already been introduced in the legislature, which states that no statute of limitations applies to human rights crimes in Chile.

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