By Karinna Fernández, Cristián Peña and Sebastián Smart
Scholars and commentators have focused on Chile as a successful example of democratic transition, but much still remains to be done around improving human rights compliance in the country. For example, Chile has failed to effectively address some of the atrocities perpetrated during Augusto Pinochet’s dictatorship of 1973-90, or the current human rights violations that affect indigenous peoples and the Lesbian Gay Bisexual Trans and Intersex (LGBTI) community. As will be shown, the Inter American Human Rights System (IAHRS) offers opportunities in this regard, and provides a forum to address both past and present human rights violations. To understand these opportunities, the first part of this post will give some current examples of human rights violations in the country, while in the second part we will show how the IAHRS has contributed to the advancement of human rights.
The current Human Rights situation in Chile
In Chile, Pinochet’s Constitution and his self-amnesty decree law remain in force. International law requires that tribunals deny the application of amnesty laws in cases of crimes against humanity. And indeed, national Courts in Chile have stopped applying it, but they have continued -since 1998- to apply the prescripción gradual, a specific term of limitation that grants the ‘partial lapse of the statutory time period’ to the perpetrators of atrocities. In other words, local Courts have granted penitentiary benefits, taking into consideration the time that has elapsed since the date the crimes were committed and the date of the decision, as part of the statutory period. This state of affairs is exacerbated by the fact that the information contained in the Valech I Truth Commission (The National Commission on Political Imprisonment and Torture Report) was declared secret by law for a period of 50 years from the date the information was originally collected. This creates a clear barrier to the ideals of justice, truth and memory.
We must also emphasise that the political and democratic system generated by Pinochet’s Constitution is still ongoing and while some problems in the electoral system have been addressed (especially the end of the binominal system), a dependence in terms of socio, political and economic policies created during the dictatorship are still evident in the current Chilean system. For example the pensions, educational and health system, as well as the economic model created by Pinochet remain almost untouched in the Chilean Constitution that was drafted in 1980. The preservation of these policies has generated current forms of human rights violations and petitions in the IAHRS.
The incapacity of the Chilean political system to deal with the gross human rights violations of the past has continued with respect to contemporary issues. For example, indigenous peoples’ protests, especially those of the Mapuche people, have been criminalised using a flexible and lax counterterrorism legislation that prevents indigenous persons from mobilising to claim land and autonomy.
Chilean legislation also continues to discriminate against the LGBTI community. Some progress has been made in recent years(see Atala case, below). Nevertheless, the powers of the legislative branch are still sometimes restricted, both in terms of political will and quorums required by the constitution to change the legislation; for example, the Parliament has been unable to pass a bill on gay and lesbian marriage.
The Inter-American Human Rights System
To breach this closed legislative process at the national level, victims of human rights violations have increasingly had to resort to the IAHRS.
One example of progress in this regard is the Atala Riffo and daughters v. Chile case, which represents a landmark in antidiscrimination law.
In 2012, Karen Atala, a judge and mother, made history by winning the first-ever LGBTI-specific case at the Inter-American Court of Human Rights (IACtHR). The judgement made clear that sexual orientation and gender identity are definitely protected categories under Inter-American Human Rights Law.
She had lost custody of her three daughters in 2004 after the Supreme Court of Chile granted permanent custody to the father on the basis of Ms Atala’s sexual orientation and cohabitation with a same-sex partner. The Court claimed that remaining in the mother’s custody would cause harm to the children and that it is preferable that the children ‘live and grow within the bosom of a family that is structured normally and appreciated in the social environment, according to the proper traditional model (…)’.
Ms Atala took her case to the Commission, and in 2010 it filed a claim against the country in the Inter American Court of Human Rights (IACtHR). Two years later this Court condemned the Chilean government for its Supreme Court ruling and found that the country had violated Atala’s right to equality and non-discrimination, that sexual orientation is part of a person’s personal life, and that it is not relevant that their suitability as a parent be examined. It observed that a family unit has been created between Ms Atala, her same-sex partner and the children, and that separating the girls from this family environment in an unjustified manner amounted to an arbitrary interference with, and violation of, the girls’ right to private and family life.
The IAHRS has also introduced important rulings in the following areas:
- the right to justice and reparation of survivors and victims of torture perpetrated before the Court’s ratione temporis jurisdiction, that is even before the Court had jurisdiction to know a specific case (see Garcia Lucero case); and
- the rights not to be discriminated against, previous consultation as established in the ILO Convention 169, and the correct application of counter-terrorist law (see Norín Catrimán et al. case)
Our edited volume Chile and the Inter American Human Rights System aims to give readers a deeper understanding of the incentives and opportunities offered by the IAHRS. It analyses the most recent cases decided by the Inter-American Court of Human Rights against the Chilean state, using different methodologies and comparative case studies to explore and reflect on the importance of the System, how it is developing, and the human rights improvements it has led to in the region.
Disclaimer: The views expressed herein are the author(s) alone