Draft:Amnesty Law of Chile

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The Amnesty Law of Chile (Decree Law No. 2191[1]), known in Spanish as Ley de Amnistía[2], was promulgated on 28 April 1978 by the Government Junta of the military dictatorship of General Augusto Pinochet. The law grants immunity for the crimes committed from 11 September 1973 (the day of the military coup) through to 18 March 1978 – the period in which the bulk of Pinochet's crimes were committed. The law was drafted by Mónica Madariaga who was Minister of Justice in the Government Junta from April 1977 to February 1983.[3]

Human rights violations[edit]

On 11 September 1973, the Chilean armed forces carried out a violent coup d'état which deposed the democratically-elected Popular Unity government of President Salvador Allende.[4] The resultant Government Junta ruled Chile for more than 16 years, until the resumption of democracy with the inauguration of President Patricio Alwyn on 11 March 1990.[5]

On the day of the coup, 11 September 1973, the new Government Junta of Chile issued a number of decree laws including Decree Law No. 3, which declared a 'state of siege' throughout the country. Decree Law No. 5 issued on 12 September declared that the state of siege was to be understood as a 'state of war' and that punishments during this period were to be as those established in the Code of Military Justice. For many crimes these changes introduced the death penalty, contrary to what had previously been the case. The same decree law added Article 281 of the Military Justice Code, which included "outrages against sentinels, the flag, and the army," a clause stating that "when the security of those under attack requires it, the party or parties responsible may be killed in the act."[6]

On 21 September 1976, the former Foreign Minister of Chile under the Allende presidency, Orlando Letelier was assassinated in a car bomb in Washington DC by DINA chief Manuel Contreras and his deputy Pedro Espinoza.[7] According to the CIA, convincing evidence existed that Chilean dictator Augusto Pinochet “personally ordered his intelligence chief to carry out the murder." The classified CIA intelligence review was later quoted in a 1987 report to President Ronald Reagan, by his Secretary of State, George Shultz. The Shultz memorandum was among 282 declassified documents on the Letelier case that were given to Chilean President Michelle Bachelet by then Secretary of State John Kerry in 2015.[8]

During the military dictatorship, 3,197 Chilean citizens were victims of “disappearances”, extrajudicial executions and deaths resulting from torture, according to a series of official reports commissioned by President Patricio Aylwin: firstly, the 1991 Report of the Rettig Commission and the subsequent reports, up to 1996, of the National Reparation and Reconciliation Corporation.[9] However, these reports were only allowed to focus on crimes resulting in death or disappearance, and did not include the victims of torture who survived their ordeal. As a result, in 2003 President Ricardo Lagos promulgated the establishment of the National Commission on Political Imprisonment and Torture, known as the Valech Commission.[10] It issued reports in 2004 and 2005 identifying 28,459 victims of torture, including approximately 3,400 cases of sexual abuse of women.[11]

Text of the Amnesty Law[edit]

The Decree-Law on General Amnesty (1978) extended an amnesty to:

all persons who have been the authors, accomplices, or accessories of unlawful deeds during the period in which the state of siege was in force, between 11 September 1973 and 10 March 1978, unless they are currently being tried or have been sentenced and to those persons who as of the date that this decree-law took effect have been sentenced by military tribunals since 11 September 1973.

Chile, Decree-Law on General Amnesty, 1978, Article 1.[12]

Model for other Latin American countries[edit]

The Amnesty Law of Chile became a model for a number of other Latin American nations.[13] In 1983, the Argentine military junta promulgated amnesty legislation, known as the 'pacification law' which was largely modelled on the 1978 Chilean Amnesty Law. According to the United Nations Special Rapporteur on the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Louis Joinet, the Argentine legislation was designed to obviate 'any possibility of criminal or civil proceedings being constituted against those responsible for serious violations of human rights committed during operations designed to restore public order'.[14]

Initial application of the Amnesty Law[edit]

Following the restoration of the democratically elected government in March 1990, the Supreme Court of Chile declared the Amnesty Law constitutional on 28 August 1990.[1] Through the 1990s the Supreme Court repeatedly upheld the constitutionality of this self-amnesty. In June 1996, the Supreme Court classified as 'homicide' the 1976 abduction and killing of Carmelo Soria Espinoza by security forces, closing the case down under the Amnesty Law.[1]

In March 1998, Pinochet stepped down as army chief, assuming a lifetime Senate seat provided to presidents who have served six years in office. This gave him parliamentary immunity from criminal process.[15]

Erosion of impunity for human rights crimes[edit]

In 2002, the Supreme Court of Chile ruled that the crime of kidnapping or disappearances, in which the victim or their remains had yet to be found, fell outside the scope of the amnesty law as the crime was still ongoing.[16] This led to the sentencing in November 2002 of Generals Héctor Bravo Muñoz and Jerónimo Pantoja to three years’ imprisonment for the kidnapping in 1973 of trade union leader Pedro Espinoza Barrientos. Other convictions followed, including that of Manuel Contreras Sepúlveda, the former chief of the DINA (Pinochet’s secret police) who was sentenced to fifteen years imprisonment in 2003 for the kidnapping of Miguel Angel Sandoval Rodríguez in 1975.

In May 2004, the Santiago Appeals Court ruled that Pinochet could face trial for the disappearance of twenty people in the 1970s. The ruling was later affirmed by the Supreme Court.[17]

In September 2006, the Inter-American Court of Human Rights ruled that the Chilean Amnesty Law was incompatible with the American Convention on Human Rights.[18] This treaty was created by the Organization of American States and took effect in 1978, with Chile ratifying it in 1990.[19]

The Chilean Supreme Court ruled that the Inter-American tribunal’s September verdict permits the prosecution of police officers accused of murdering two leftist students in 1973.[20]

See also[edit]

References[edit]

  1. ^ a b c "CHILE: A human rights review based on the International Covenant on Civil and Political Rights" (PDF). UN High Commissioner for Refugees. July 1999.
  2. ^ "Ley de amnistía". Memoria Chilena; National Digital Library of Chile. 2018.
  3. ^ "Human Rights in Chile - The Legacy" (PDF). United Nations Development Programme - Anti-Corruption for Peaceful and Inclusive Societies. 2005.
  4. ^ O'Shaughnessy, Hugh (7 September 2013). "Chilean coup: 40 years ago I watched Pinochet crush a democratic dream". The Observer.
  5. ^ Christian, Shirley (12 March 1990). "Elected President Replaces Pinochet". The New York Times.
  6. ^ "Report of the Chilean National Commission on Truth and Reconciliation" (PDF). United States Institute of Peace; University of Notre Dame Press. 1993. p. 122.
  7. ^ "'This was not an accident. This was a bomb.'". The Washington Post. 20 September 2016.
  8. ^ Kornbluh, Peter (8 October 2015). "SECRET CIA REPORT: Pinochet "Personally Ordered" Washington Car-Bombing". The National Security Archive - George Washington University.
  9. ^ Synder, Edward (1995). "The Dirty Legal War: Human Rights and the Rule of Law in Chile 1973-1995". Harvard University.
  10. ^ "Commission of Inquiry: Chile". United States Institute of Peace.
  11. ^ "THE SERIES OF REPARATIONS PROGRAMS IN CHILE" (PDF). Parliamentary Monitoring Group.
  12. ^ "Chile; Practice Relating to Rule 159. Amnesty". INTERNATIONAL COMMITTEE OF THE RED CROSS.
  13. ^ Quinn, Robert (1994). "Will the Rule of Law End? Challenging Grants of Amnesty for the Human Rights Violations of a Prior Regime: Chile's New Model". Fordham Law Review. p. 909.
  14. ^ Joinet, Louis (21 June 1985). "Study on Amnesty Laws and their role in the safeguard and promotion of human rights". United Nations Digital Library. UNITED NATIONS ECONOMIC AND SOCIAL COUNCIL: COMMISSION ON HUMAN RIGHTS.
  15. ^ Brett, Sebastian (October 1999). "CHILE; WHEN TYRANTS TREMBLE: The Pinochet Case". Human Rights Watch.
  16. ^ "DISCREET PATH TO JUSTICE?: CHILE, THIRTY YEARS AFTER THE MILITARY COUP. A Human Rights Watch Briefing". Human Rights Watch. September 2003.
  17. ^ "World Report 2005. Chile Events of 2004". Human Rights Watch. 2005.
  18. ^ Binder, Christina (2011). "The Prohibition of Amnesties by the Inter-American Court of Human Rights" (PDF). German Law Journal, Vol. 12 No. 05. p. 1211.
  19. ^ Rohter, Larry (24 Dec 2006). "Chile's Leader Attacks Amnesty Law". New York Times.
  20. ^ Torelly, Marcelo (1 June 2017). "Domestic Rule of Law Gaps and the Uses of International Human Rights Law in Post-Atrocity Prosecutions: Argentina, Brazil, and Chile Transitional Justice Experiences". Open Edition Journals. Teoria politica. p. 354.
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