Truth, Justice and Legal Impunity: Dealing with Past Human Rights Violations in Chile*

Article excerpt

I. INTRODUCTION: HUMAN RIGHTS IN DEMOCRATIC TRANSITIONS

Dealing with past human rights violations has been a difficult issue in various Latin American democratization processes. Within the academic and political field of "transitional justice", similar questions have been asked in various countries in Latin America and elsewhere. Under what circumstances can perpetrators be prosecuted? When is reconciliation and pardon possible? Should truth and justice be sacrificed so that fragile democratization processes are not undermined?1

Even though Latin American transitions from military to civilian rule took place mostly during the 1980s, impunity still continues to place many restrictions on democracy in various countries of the region. The reproduction of impunity works through both formal and informal mechanisms. In Chile, a country with a relatively legalistic political culture, dealing with the past during civilian rule has been strongly conditioned by the legal framework created by the military regime (1973-1990).

The Chilean Constitution of 1980 and the amnesty law of 1978 are shielded by various mechanisms created to "protect" democracy. When the possibilities for judicial prosecutions were greatly limited, the new civilian government of Patricio Aylwin ( 1990-1995) decided to put more emphasis on extrajudicial means of dealing with the past. The Comisión National de Verdad y Reconciliación (CNVR, National Truth and Reconciliation Commission), which was working during 1990-1991, was an important mechanism that despite its various limitations helped to establish some shared understandings of the repressive era. The CNVR. known as the Chilean Truth Commission, has also been used as a partial model for some later democratization processes such as the South African one.2 Nevertheless, as the turmoil related to the detention of Auguste Pinochet in London in October 1998 has revealed, dealing with past human rights crimes in Chile continues to face complex problems. In September 2000, after the return of Pinochet to Chile six months earlier, and especially after first the Appeals Court of Santiago, the Supreme Court of Chile decided to strip Pinochet of the immunity he enjoyed as life senator. With verdict, the system of impunity created by the military government is in more trouble than ever.

In this article, I shall analyze the significance of truth and reconciliation policies in the Chilean democratization process. Through a historical analysis, I intend to provide elements that may help us explain and understand some of the difficult choices that Chileans, as well as many other Latin Americans from Argentina to Guatemala, still need to make when confronting past human rights violations. The Chilean case is important because it shows quite clearly how formal and informal governance structures created during military dictatorship can still survive after a transition to civilian rule. Even though it may be too early to predict the results of the new legal and political possibilities to prosecute human rights violators in Chile, it also shows that a combination of transnational and local legal instruments can indeed be effective in struggles against impunity.

II. HUMAN RIGHTS DURING THE MILITARY GOVERNMENT

Historical Background

For much of its independent history, Chile has been considered to have one of the most stable institutional frameworks in Latin America. Since the drafting of the constitution of 1833, the rule of law and periodic elections have been much more characteristic of Chilean politics than for Latin America in general. It has also had one of the region's most stable paily systems.

There exists a strong verbal commitment to legalism in the Chilean political culture. The acceptance of established legal procedures is often characterized as one of the particularities of Chilean politics. There have, however, been various deviations from this supposed ideal3. …