Coming to Terms with the Past: Chile
Ann Matear examines the continuing pursuit of justice after Pinochet’s dictatorship.
'The history of this country is filled with emotive upheavals, passions which were once felt and then disappeared, were choked back, and became forgotten; or were simply eliminated or silenced.’ So wrote the Chilean historian Alfredo Jocelyn-Holt Letelier in 1998. He continued: ‘If these catastrophes resonate still, it is because they left open wounds which even now cause pain; we have accumulated disturbances and trauma which scourge our deepest emotions and all we hold dear.’
The military coup d’état of September 11th, 1973, which overthrew the democratically elected government of Dr Salvador Allende Gossens, represented a dramatic break with Chile’s long-standing democratic political tradition. Contrary to the expectations of many politicians and civilians who had supported the coup, the junta showed no intention of handing back power. Instead the military embarked on a radical restructuring of the Chilean state and society that transformed political, economic and social relations. The state was converted into an authoritarian bureaucracy whereby the military, supported by right-wing civilian groups, assumed the administrative and legislative functions of the state for the next seventeen years. Political parties were banned, the parliament was put into recess, trade unions and other social organisations of popular participation were repressed as the military junta attempted to eradicate the support base of the left-wing parties.
Since the election of a centre-left coalition government in 1990, Chile has once more enjoyed many of the characteristics of a liberal democracy, and yet the legacy of military rule casts a long shadow over the quality of its democracy. The armed forces continue to enjoy legal prerogatives which give them substantial influence over decision-making, and the continued application of the 1978 Amnesty Law has exempted the military from prosecution for human rights violations committed between 1973 and 1978. Despite the facade of ‘politics as usual’, it became clear during the 1990s that Chile’s progress to fully consolidated democracy would remain incomplete while the human rights question remained unresolved and ‘the disappeared’ were still unaccounted for.
The human rights movement’s unrelenting struggle for justice challenged the limits of this restricted democracy negotiated between the military and civilian elites. Collaboration between human rights organisations, non-governmental organisations and lawyers in Chile and in Spain produced sufficient evidence to bring charges of genocide against Pinochet, and the three other members of the ruling junta, in a Spanish court on July 4th, 1996. Although this high profile legal initiative received scant coverage in the English-speaking media, it attracted considerable publicity in Spain and Latin America, thereby encouraging witnesses to come forward and undoubtedly signalling to the perpetrators of human rights abuses that their impunity might be short-lived. Yet Pinochet continued to travel abroad on the assumption that he remained untouchable. His subsequent detention in a London clinic on October 16th, 1998, while surprising, was not an audacious stunt. Instead, it was the result of sustained campaigning, painstaking coordination and meticulous investigation by human rights organisations in Chile and around the world. This transnational network was spurred into action when the Human Rights Secretariat of Spain’s United Left Party became aware of Pinochet’s stay in a London clinic and requested a judicial order for his arrest. This was in relation to his role in Operation Condor, a cross-border campaign of terror, kidnapping and disappearance of named individuals in several Latin American countries. The Spanish judge Baltasar Garzon, of the Audiencia Nacional (National Court), complied with the request and Pinochet was detained on a provisional warrant signed by a London magistrate on his behalf.
The arrest of General Pinochet presented a serious challenge to the status quo on human rights, and shattered any illusion that Chile had come to terms with the legacy of seventeen years of military rule. On the surface, the nation appeared to have made peace with its past, but it became immediately apparent that wounds had not healed and that the transition to democracy was incomplete. His detention provided the impetus required for the human rights issue to be re-examined when many in Chile had hoped that it was a closed chapter. Reopening the human rights debate forced the Chilean government to acknowledge publicly that democracy was seriously flawed by the Constitution inherited from the military regime and the non-application of the law. Pinochet may have been under arrest, but Chilean justice and democracy were on trial.
Dealing with the human rights issue was always a potentially destabilising element during the Chilean transition to democracy. General Pinochet had threatened dire consequences if any of his men were brought to trial, and the issue was sidelined by political elites for a smoother transition process. However, the human rights movement did not abandon or restrain its demands for justice; nor did it quietly withdraw from public life. Instead it has consistently argued that democratically elected governments are morally and legally responsible for seeking justice for human rights abuses committed by former regimes. This demand is backed by international law, which opposes amnesties on the grounds that states do not have the right to abolish their own crimes; official ‘forgetting’ strips the victims of their legal right to justice and renders them second-class citizens.
The government of Patricio Aylwin (1990-94) opted for a pragmatic response of compromise and reform whereby the human rights abuses would be investigated and the truth would be made public, but the government would stop short of prosecutions on the basis that they would be divisive and risked destabilising the fledgling democracy. This policy provided mechanisms to establish the truth surrounding human rights violations and to avoid accusations of partiality at national and international levels. It aimed to produce consensus on an official and nationally accepted version of historically verifiable events which nonetheless had markedly different meanings and interpretations for different factions of Chilean society. By making the truth officially and publicly known, the violations and their eventual resolution are framed as the concern not only of those individuals directly affected but of society as a whole. It was to this end that President Aylwin set up the National Commission for Truth and Reconciliation in 1990. Headed by Senator Raul Rettig, its remit was to investigate and establish the nature and extent of the political repression committed during the dictatorship. The composition of the Commission allowed for the participation of human rights groups, the victims of abuses and their families, but the Commission received no cooperation from the police or the armed forces.
The ensuing report was a significant step forward since, through it, the Chilean state officially and publicly acknowledged that between September 11th, 1973, and March 11th, 1990, there had been serious, systematic and mass violations of human rights, resulting in the deaths or disappearance of 3,197 people. Moreover, the report challenged the military regime’s version of Chilean history as it provided, for the first time, hard evidence confirming that human rights violations had occurred during the dictatorship. Despite criticism from the political right of the investigators conducting a witch-hunt, the veracity of the report was recognised, and the abuses documented therein were condemned by the United Nations and the Organisation of American States. Furthermore, the Commission went some way to advancing the process of social reparation as it provided a forum in which the truth of the victims’ experiences could be acknowledged. The report detailed recommendations for legal, institutional and educational reforms to prevent such abuses happening again, and compensation for the families of victims.
Clearly there are limits to how much can be achieved by such commissions since, as Claus Offe has observed, ‘some of the traces of the old regime cannot be removed or compensated for at all, as one cannot “undo” the past’. Individuals accused of atrocities were not named by the report and instead information implicating individuals was submitted to the courts. However, most cases were prevented from coming to trial by the 1978 Amnesty Law, and demands for justice at the level of society went largely unanswered as legal action was limited to private prosecutions in civil proceedings. As a result, while the human rights question was not excluded from public debate, it was ‘privatised’ in the sense that individuals stood accused of crimes for which the military as an institution was not held responsible. Moreover, the civil proceedings failed to make fully explicit the historical linkages between the crimes committed, the trauma suffered by individuals and by society, and the repressive political situation in the nation.
The debates on how best to advance human rights and pursue justice continued to evolve as democratic institutions became more firmly established in Chile. By the mid-1990s, a new strategy began to gather force. Supreme Court judges appointed under democratic governments were more open to addressing the human rights issue and a number of high-profile trials resulted in prosecutions. Reinterpretation of the Amnesty Law led judges to conclude that it only applied to the period from 1973 to 1978: consequently, acts resulting in murder committed after 1978 could be pursued through the courts. This resulted in the successful prosecution of military officers and secret police (DINA) personnel in a number of high profile cases and sent a clear indication that, by the mid-1990s, it was possible to seek justice for human rights cases through the courts in Chile.
Despite these advances, the vexing issue of ‘the disappeared’ remained. These were people who had been murdered by the military regime but whose bodies were never located. While Pinochet remained under house arrest in Surrey, the former Minister of Defence, Edmundo Perez Yoma, proposed setting up the Mesa de Dialogo (Round Table for Dialogue). It met for the first time in June 1999, and was composed of representatives from the government, the armed forces, human rights lawyers, religious communities, the cultural sphere and the world of science. The organisations representing the victims’ families refused to participate; they argued that the truth was not sufficient and they continued to demand justice. The participants approached the Mesa with different aims and objectives. The government’s priority was to achieve national unity by officially recognising that agents of the state had violated human rights and establishing the whereabouts of ‘the disappeared’. The human rights lawyers aimed to demonstrate publicly that these were not isolated excesses committed by individual officers against individual civilians, but that they were systematic, institutional and state-sanctioned abuses. According to Commander-in-Chief of the Armed Forces, Ricardo lzurieta, the military aimed to finally lay the past to rest through participating in this dialogue.
Many months passed while the military, government and lawyers engaged in frank and tense discussion in the Mesa de Dialogo. Agreement was finally reached on June 13th, 2000, when the military agreed to co-operate in locating the whereabouts of ‘the disappeared’. However, even this came with strings attached for, in order to secure the collaboration of the military, a mechanism was devised whereby information could be given in strict anonymity. In May 2000, President Lagos proposed legislation to Congress that would protect those who wished to reveal information about the location of the victims. Despite broad support among political elites, the arrangement was strongly opposed by human rights organisations who feared that its provisions for anonymity would obstruct criminal investigations and result in impunity. In any case, a legal loophole meant that the military ran little risk of prosecution by revealing the whereabouts of ‘the disappeared’. Human rights lawyers had exploited the fact that the 1978 Amnesty Law covered murder but did not apply to kidnappings. Since the disappeared were officially ‘missing’ rather than ‘murdered’, the charges that could be brought against military officers were for the crime of ‘aggravated kidnapping’. However, once the remains of the disappeared were located, the charge would become murder; if the crime had been committed before 1978, it would fall under the provisions of the Amnesty Law. The Mesa’s deliberations concluded with a public broadcast in January 2001 by President Lagos that revealed the whereabouts of 180 of ‘the disappeared’. Yet there was little solace for the families who learned that, in the majority of these cases, the bodies of their loved ones had been thrown into lakes, rivers and the sea. For them, there could be no final closure. The anonymity assured by the legislation passed in 2000, and the continued application of the Amnesty Law for crimes committed between 1973 and 1978, meantthat there was little likelihood of those responsible being identified and brought to trial.
It is highly unlikely that criminal investigations and the collaboration of the military in the Mesa could have been achieved if Pinochet had remained at liberty in Chile. His arrest in London in October 1998 effectively signalled the beginning of his progressive marginalisation from political and military affairs. As his detention continued, his traditional supporters on the right, including the business class and many within the armed forces, began publicly to distance themselves from him. This was particularly marked during the 1999 presidential election campaign, when the right-wing candidate, Joaquin Lavin, was at pains to emphasise the distance between the Right under democracy and the Right as supporters of the military regime when he famously declared that Pinochet ‘belongs to the past and we have to look to the future’. On returning to Chile from Britain on health grounds in 2000, the remaining barrier to bringing an effective prosecution against Pinochet was his senatorial immunity which could only be removed by the Chilean courts. Although initially unthinkable, he was stripped of his immunity in June 2000 and, for more than a year, the charges against him continued to grow as the prosecution focused its efforts on establishing his direct involvement in the notorious Caravan of Death. Yet, almost three years after his arrest in London, the charges against the former dictator were finally dropped on July 10th, 2001. The Chilean Court of Appeal ruled, with a vote of two-to-one in favour, that the former general was suffering from dementia and was unable to defend himself in a court of law, thereby effectively extinguishing Pinochet as a political force in Chile.
While this was far from the outcome which the human rights organisations had hoped for, the pursuit of justice for human rights violations has impacted positively on the process of democratisation in Chile in several respects. It has demonstrated that, while the question of human rights and justice remains unresolved, the past will continue to be part of the present and will undermine Chile’s new democracy. Pinochet’s arrest and the reopening of the debate on human rights challenged the military to identify their role, institutional identity and allegiance to democracy. Prosecutions have since been brought against members of the armed forces, the military have engaged in frank and open dialogue with human rights lawyers and representatives of the government. They have demonstrated their adherence to the democratic rules even when they perceived the interests and reputation of their institution to be under threat. Thus, the military has reconfigured its role as defender of the nation within the new democracy. The political Right has repositioned itself to the electorate as a result of Pinochet’s arrest. In the initial stages, the right retained its atavistic link to the military regime and came out in staunch support of the general but, as the process became more prolonged, the right correctly perceived that its connection with Pinochet was viewed negatively by the electorate. The process has enabled the right-wing parties to release themselves from their Pinochetista past and to modernise politically. The fact that Joaquin Lavin, the right-wing presidential candidate, came within a whisker of winning the last election in 2000 seems to vindicate the Right’s strategy of ‘de-pinochetisation’.
It might be concluded that as a result of the legal, attitudinal and institutional changes which followed Pinochet’s arrest in 1998, democracy in Chile has been found to be stronger and more resilient than many had suspected. Yet, it would be difficult to conclude that justice has been done in the Pinochet case. Doubts must linger over the decision to drop the charges on medical grounds, as pressure from political elites and the armed forces clearly cannot be ruled out. Throughout the criminal investigations and legal challenges of recent years, the premise that under democracy all citizens are equal before the law and that no one is above the law was tested in Chile. While many military officers have testified in court, the same opportunity has not, in the end, been extended to Pinochet himself. He has been judged in his absence by history.
Ann Matear is Principal Lecturer in Iberian and Latin American Politics at the University of Portsmouth, and a contributor to Fighting for Human Rights edited by Paul Gready (Routledge, May 2004).
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