Assessing the Long-Term Impact of Truth Commissions

The Chilean Truth and Reconciliation Commission in Historical Perspective

Anita Ferrara

• Editorial: Routledge
• Año: 2014
• ISBN:
  9781317804659
• Edición: 1
• Categoría: Law
• Categoría: Law Theory & Practice

In 1990, after the end of the Pinochet regime, the newly-elected democratic government of Chile established a Truth and Reconciliation Commission (TRC) to investigate and report on some of the worst human rights violations committed under the seventeen-year military dictatorship. The Chilean TRC was one of the first truth commissions established in the world.

This book examines whether and how the work of the Chilean TRC contributed to the transition to democracy in Chile and to subsequent developments in accountability and transformation in that country. The book takes a long term view on the Chilean TRC asking to what extent and how the truth commission contributed to the development of the transitional justice measures that ensued, and how the relationship with those subsequent developments was established over time.It argues that, contrary to the views and expectations of those who considered that the Chilean TRC was of limited success, that the Chilean TRC has, in fact, over the longer term, played a key role as an enabler of justice and a means by which ethical and institutional transformation has occurred within Chile. With the benefit of this historical perspective, the book concludes that the impact of truth commissions in general needs to be carefully reviewed in light of the Chilean experience.

This book will be of great interest and use to students and scholars of conflict resolution, criminal international law, and comparative legal systems in Latin America.

1 Dealing with the past in a pacted transition

This chapter gives a brief background to the situation existing in Chile under Pinochet, the complicated context surrounding the Chilean transition and the subsequent policies chosen by the first democratically elected government to reckon with the human rights abuses committed in the past. The authoritarian regime used a series of legal and institutional instruments to carry out repression against opponents of the regime and instil a climate of terror in the civilian population. In that context, with the active complicity of the judiciary, massive and systematic human rights violations occurred. However, as the chapter will then show, strong domestic opposition to the regime gradually emerged, giving birth to one of the most renowned and capable human rights movements in the world.

Although the opposition to the regime succeeded in restoring democracy to the country, the Pinochet regime left behind a series of legacies which set the boundaries within which the Chilean transition to democracy had to take place. Within a context of a difficult transition, the principal strategy adopted in Chile to confront its burdensome past was the establishment of a Truth and Reconciliation Commission (TRC). The creation of a truth commission fostered intense political debate on heated issues and led to strong disagreement about its legitimacy. However, during its functioning, the truth commission focused the attention of Chilean society on the past human rights abuses. A detailed description of the mandate, work and methodology of the Chilean TRC is provided in this chapter. This was the first attempt to break the wall of impunity that the former perpetrators had carefully built around themselves and to uncover the official lies. Yet, when the final report was released, the debates and discourses on the past gave rise to extreme and conflicting reactions. The reactions following the publication of the TRC’s report from the public and those of the political elite and other sectors of Chilean society are provided in this chapter to show the tensions of the moment.

Historical background

On 11 September 1973, a rightist military coup d’état, headed by General Augusto Pinochet, brought to an end the democratically elected government of Salvador Allende. The presidential palace was heavily bombed and President Allende committed suicide.¹ On the same day hundreds of people were arbitrarily detained and executed. Many others disappeared.² Activists of the Popular Unity party were hunted down. The Red Gross reported that around 7,000 persons had been taken to the national stadium in Santiago for interrogation. Detaining people in detention camps became a widespread practice of the state throughout the country.³ Despite the ferocity of the coup and the heinous crimes committed in the days that followed, most Chileans thought that once order was restored, the armed forces would retreat back to their garrisons and hand over control to the civilian authorities. However, they gravely miscalculated the military’s intentions and Pinochet’s aspirations.⁴ The mission of the military junta had three main objectives: to wipe out Marxism, to radically restructure the economy, and to implant a new socio-political system.⁵

Following the coup, a four-man military junta was established, which assumed all constituent, executive and legislative powers.⁶ The military regime immediately declared a state of siege, defined initially as a “state of internal war”, which was extended every six months until 1978. The state of siege permitted the establishment of wartime military tribunals.⁷ Decree laws no. 3 and no. 5 determined the jurisdiction of these war tribunals overruling the guarantees of fair trial and due process.⁸

The legislative and executive powers of the junta were exercised through supreme decree laws that completely militarised the state of Chile.⁹ Consequently, the Congress was dissolved on the same day the junta assumed power and in the municipalities as well.¹⁰ All political parties or movements of a political nature were declared to be in recess indefinitely.¹¹ Every kind of political participation was abolished and the media were subject to scrupulous censorship. There was no public space for any form of opposition to the military junta. The only power of the state that was kept intact was the judiciary, which proclaimed immediately its “most intimate satisfaction” with the junta.¹²

During the dictatorship gross and systematic human rights violations were carried out, political opponents were systematically executed or disappeared, thousands of persons were imprisoned, tortured or exiled. From 1975 to 1979, between 20,000 and 40,000 people left the country for political reasons and were received as refugees by many foreign governments.¹³

In order to further institutionalise its power, the junta approved a new Constitution, which was confirmed in a sham plebiscite held on 11 September 1980.¹⁴ The Constitution granted a presidency with special powers,¹⁵ established the military in a permanent political role and served as a means of perpetuating Pinochet’s political power.

The opponents of Pinochet

The dictatorship was challenged by the church and human rights organisations within the country. A group of domestic organisations presented a fierce obstacle to the dictatorship. Chief among these was the Comité de Cooperación para la Paz en Chile, created in October 1972 and then replaced in 1976 by the famous the Vicaría de la Solidaridad (Vicariate of Solidarity). Its staff, composed of lawyers, social workers, and medical personnel, provided legal and social assistance to those who had been imprisoned. They gathered and documented records relating to the arrests, disappearances, cases of torture and cases of unfair dismissal.¹⁶ In 1974, the Agrupación de Familiares Detenidos-Desaparecidos (Group of Families of the Detained-Disappeared, AFDD), the victims’ relatives’ organisation was born. This was the first organisation of its kind in Latin America and its experience and protest methods served to be an example for similar groups in Chile and abroad. The same year, the Fundación de Ayuda Social de las Iglesias Cristianas (Social Aid Foundation of the Christian Churches, FASIC) was created with the aim of assisting prisoners who had been sentenced. The Comisión Chilena de Derechos Humanos (Chilean Commission of Human Rights) was founded in 1978 and the Comité de Defensa de los Derechos del Pueblo (Committee for the Defence and the Rights of the People, CODEPU) in 1980. They worked together in the defence of human rights and were able to gather and collect a vast amount of documentation with the utmost accuracy and precision. Moreover, from abroad, the thousands of Chileans forced into exile organised one of the most effective campaigns against the regime and managed, through a large network of organisations, to put continuous pressure on the regime.

The response of the international community to the coup was its immediate repudiation.¹⁷ The Chilean case provided an opportunity for enforcing the human rights mechanisms that existed at that time.¹⁸ It was one of the first cases of close cooperation between domestic and international groups in the defence of human rights. Seldom before had the international community put so much effort into fighting against the situation of human rights that existed inside a particular country.¹⁹ International organisations such as Amnesty International and the International Commission of Jurists immediately mobilised to try to keep the Chilean situation a major issue on the agenda for the United Nations, the Organization of American States (OAS) and the Council of Europe.²⁰ They represented a source of information which put pressure on the United Nations and on the Inter-American Commission on Human Rights (IACHR), to halt the abuses being committed in Chile. The United Nations created an ad hoc Working Group on the human rights situation in Chile in 1975 and designated a Special Rapporteur on Chile in 1979, whose mandate was continually renewed until 1990.²¹ Cooperation was mainly possible because the domestic human rights organisations provided documents to the international NGOs, which in turn put pressure on the UN, regional bodies and Western states, thus establishing well-organised domestic-international cooperation in the defence of human rights.

Attitude of the judiciary

During the years of the dictator...