Human Rights Lessons in Chile

WHEN democratic rule was restored to Chile just over one year ago, the major challenge facing the newly inaugurated government of President Patricio Aylwin was to recreate a national community from the bitter legacy of mistrust and conflict left by the departing Pinochet regime. Sixteen years of dictatorship, coming after the divisive three-year socialist experiment of Salvador Allende, had created a ``nation of enemies.'' At the core of this challenge was how to respond to human rights violations commi tted by the country's armed forces during their years of rule. Along with the victims and their families, many Chileans - including many who fought hardest for democracy - looked to the newly elected authorities for justice. At the same time, however, the armed forces retained considerable support and power, and rejected any guilt or responsibility.

Over the past 12 years, 15 military regimes in Latin America have yielded to elected civilian governments. Most had been guilty of gross and systematic violations of human rights - torture, detentions without charge, executions. Yet, only one government - that of President Ra'ul Alfons'in of Argentina - formally investigated such violations. Human rights abuses were ignored everywhere else. In Uruguay and Brazil, private groups conducted their own investigations.

Argentina went beyond mere investigation. The government of President Alfons'in, in a series of publicized trials, prosecuted the generals and admirals responsible and jailed nine military leaders, including three former heads of state. Subsequently, however, several military uprisings led President Alfons'in to call off further prosecutions, and his successor, President Carlos Menem, has since pardoned those who had been jailed.

Acutely aware of the bitter experiences in Argentina and elsewhere, and sensitive to conflicting demands in Chile, the Aylwin government charted its own approach. Almost immediately upon taking office, it appointed a Presidential Commission for Truth and Reconciliation to investigate human rights violations committed during the Pinochet years. But the commission, with eight members equally divided among former supporters and critics of the Pinochet regime, was given a limited charge: investigate only vi olations in which the victims died or disappeared; it was not empowered to compel testimony; it could not name alleged offenders.

For nine months, commission members and a staff of 60 lawyers exhaustively reviewed existing documentation and conducted interviews. They sought the advice of more than 150 organizations around the world. Their six-volume report, released in March, concluded that 2,279 victims died under torture, were executed, or made to disappear. The commission also called for further investigation of 641 cases on which it could not reach a conclusion.

The report was fundamentally a moral exercise. By documenting Chile's worst human rights abuses, it presents a truth that, in President Aylwin's words, ``no one in good faith can ignore.'' Intended to serve as an official conscience for the country, it also points the way to remedy some of the damage done to the victims' families and to prevent future violations. Its guiding vision was that truth regarding human rights abuses is the essential basis for justice, national reconciliation, and restoring the dignity of the victims.

The commission suggested ``moral and material'' reparations: the public vindication of the victims' reputations, a procedure for declaring the disappeared legally dead, monetary and financial compensation to victims' families, and exemption from military service for their children. It also urged that an independent foundation be established to determine the whereabouts of victims' remains, press investigations of the remaining uncertain cases, maintain an archive on the violations, and provide legal and social assistance to the families of victims. Its recommendations to prevent future violations included changes in national legislation, judicial reforms, educational programs to enhance respect for human rights, and the establishment of a national ombudsman.

As significant as the report itself was President Aylwin's emotion-laden speech presenting it to the Chilean people. He accepted responsibility for the abuses and asked the victims and their families for forgiveness. He also insisted that the courts had the obligation to determine responsibility for the abuses committed - rejecting outright the Supreme Court's view that the necessary investigations were prohibited by the military-imposed Amnesty Law which had pardoned all human rights violations prior t o 1978. In a subsequent interview President Aylwin accused the nation's courts of having lacked ``moral courage'' during the military dictatorship. But he stopped short of calling for the prosecution of those responsible or for the military to apologize for its crimes.

Has enough been done? Will the truth, modest reparations, and a presidential apology now bring peace and reconciliation to Chile? Doesn't the failure to punish and settle accounts for 2,279 murders leave an indelible stain on Chile's fledgling democracy, insult the victims and others who fought so hard for democratic change, and imperil respect for law? Now that the truth is known, is it not incumbent on Chile's democratic authorities to prosecute these crimes?

There are some legal obstacles to prosecution. The bulk of the violations occurred before 1978 and, except for the 1976 assassination of former Foreign Minister Orlando Letelier in Washington, they are all covered by the amnesty law. The courts are also packed with Pinochet appointees.

But legal constraints are not the main barrier to prosecution. The fact is that an attempt by the Aylwin government to push for prosecutions might endanger Chile's still fragile democratic order. Having managed the country's return to elected rule, the Chilean military remains a powerful and cohesive force.

Although the air force and police have acknowledged some responsibility, the army and navy, the most powerful branches of the Chilean military, decisively rejected the commission's findings - though without challenging any of the facts presented. General Pinochet, who kept his post as Commander-in-Chief of the Army and cannot legally be removed by civilian authorities, has publicly warned the government not to try to touch any of his men. Moreover, the military still claims significant civilian support. Some Chileans, fearful of a return to conflict, oppose prosecution of past abuses. A recent spate of armed attacks, including the assassination of Jaime Guzman, a leading conservative senator, has strengthened military claims for a renewed role in maintaining order.

The democratic transition, in short, has not been completed in Chile. For President Aylwin and his staff, governing and rebuilding democracy remains a process of continuing negotiation with the army.

Although it is early for a full assessment, Chile may have found the middle ground that has eluded other Latin American countries. Many of the families and friends of victims insist that the guilty be punished, and there are some disagreements on reparations. But the approach has gained wide support. The country's human rights community has by and large endorsed the report, and applauded Aylwin's speech. Congress unanimously accepted the document's findings, as did nearly every political party and the i nfluential Catholic Church. Polls show wide public approval.

These are remarkable accomplishments for a divided and polarized society. By appointing commission members who were all highly respected and represented a wide range of political views, the government helped to assure the credibility of the group's findings. By limiting the commission's scope to the most egregious violations and prohibiting identification of suspected perpetrators, attention was focused on areas where consensus was most likely. By taking moral responsibility for the violations and askin g the victims' pardon, President Aylwin acted symbolically in place of the real violators, who have shown little willingness to seek forgiveness.

How relevant then is this approach, which appears to be right for Chile, to other new democracies - whether in Latin America, Eastern Europe, or elsewhere - facing similar situations? Probably it is not that relevant. Each country must find its own approach based on its history, values, and the balance of its political forces.

But at least one element of Chile's approach is relevant: its concern for consequences, as well as principles, in deciding how to proceed. Democratic governments cannot ignore the consequences of investigating and prosecuting human rights violations. They must ask whether efforts to punish offenders will end up strengthening or weakening civilian authority. Will it contribute to or impede the building of democratic institutions and values?

These are fundamental questions. The answers are not derivable solely from ethical or moral systems. They must be decided every day by elected government officials. One may disagree with the decisions - consider them cowardly or immoral - but they must belong to each nation and to its leaders if democracy is to have any meaning. That may be the most important lesson of the Chilean experience.

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