A way around Pinochet's legacy

Lawyers find a hole in Chile's amnesty law, saying it doesn't cover the cases of those who are still missing.

After 26 years, Chile's so-called "Caravan of Death" case has come back to life. And its return may revive other human rights cases in Latin America.

Five former Army officers have been charged with aggravated kidnapping in the case, in which an Army unit allegedly tortured and executed 72 political prisoners soon after the 1973 military coup. Judge Juan Guzman, the special magistrate investigating the case, made the indictments, which were upheld recently in a unanimous decision by the Chilean Supreme Court.

The charges amount to an end run around Chile's 1978 amnesty law, decreed by then-leader Augusto Pinochet, which pardoned all crimes committed by the military and their opposition from the day of the coup to March 1978. Kidnapping is considered an ongoing offense until the victim is found, and 19 of the prisoners remain missing.

Since it came back into view, the case has become a lightning rod that is transforming the human rights debate in Chile and is holding implications for human rights battles throughout Latin America. It is also the latest of several events that indicate a shift in thinking about amnesty laws in the region.

Furthermore, the case has opened the door in Chile to fully investigate nearly 300 cases of disappearances that have been unsolved for more than two decades. "This is a bomb to the peace process," pronounced Sen. Hernan Larrain, a leader of the far right Independent Democratic Union Party. "The amnesty law is like amnesia: It is supposed to forget the existence of something. If a case is considered within the time frame of this law, it should not be investigated."

While the amnesty law still does protect the former Army officers from ultimate prosecution, the armed forces and political right in Chile are now scrambling to protect all military officers who may have committed human rights violations. They want the Chilean government to accept a political solution based on military officers anonymously providing information about the disappeared in exchange for immunity from prosecution. At the same time, the military continues to insist it has no information on the whereabouts of the disappeared.

According to the Retting Report, an official government study completed by the 1991-94 civilian government of Patricio Aylwin, 1,102 persons were disappeared by the Pinochet military regime.

For its part, the government has steadfastly stressed its support for the judicial system while attempting to organize a dialogue between the military and the families of the disappeared. However, both sides have balked at the notion of meeting face to face.

"In other countries, if you commit much smaller crimes it is sure you will go to jail," says Vivianna Diaz, president of the human rights group Families of the Disappeared. "In our country, if you commit crimes against humanity you are free to walk the streets. We believe that those responsible for violations of human rights cannot have impunity if we don't want this to happen again."

"The court's decision confirms what is being said by the UN Human Rights Committee and the Inter-American Commission of Human Rights: It is standard jurisprudence," says Cecilia Merino, a Chilean, who in March became the chair of the UN Human Rights Committee. "The disappearance case is a continuous violation until the body is found."

In fact, the judicial decision follows an increasing trend in Latin America, says Felipe Gonzalez, a professor of international human rights law at Santiago's Diego Portales University and the South American representative for the Washington-based International Human Rights Law Group. Mr. Gonzalez cites these examples:

*Since 1991 the Inter-American Commission on Human Rights has ruled that amnesty laws are not compatible with the 1969 American Convention on Human Rights, which states that all perpetrators of grave violations of human rights must be prosecuted.

*In 1994, the Organization of American States established the Inter-American Convention on Forced Disappearances of Persons, which states that forced disappearances that occurred prior to the treaty and are not already resolved (e.g., bodies have still not been located) can still be tried.

*In 1996, the Catholic Church and nongovernmental organizations gained the exclusion of all crimes against humanity from an amnesty law in Guatemala.

*In 1998, Argentine courts ruled that because the abduction of infants from political prisoners was not explicitly set forth in their amnesty law, the courts can investigate and prosecute the persons accused of the crime.

While progress is being made, Gonzalez says, it is at a slow pace. "The international organizations are very strong on this matter, but the expansion of international doctrines is taking way too long to reach the domestic tribunals."

Gonzalez also says it may be too soon to announce that Chilean courts have changed their thinking. Although the Chilean Supreme Court decision was unanimous in the Caravan of Death case, indicating they will likely uphold the decision in the future, their stance is not set in stone.

For example, in a September 1998 ruling the Supreme Court allowed the Geneva Conventions to take precedence over the amnesty law in a disappearance case. But subsequently in four other cases, the Court ruled differently, stating the Geneva Conventions could not take precedence over the amnesty law.

Judge Guzman is currently coordinating a search for some of the bodies of the disappeared. Says Jinny Arancibia, whose husband is among those searchers hope to find, "If the amnesty law does not allow those responsible to go to jail, then there should be a social sanction. The whole nation needs to know what happened to the disappeared."

(c) Copyright 1999. The Christian Science Publishing Society