"Dios castiga, pero no a palos." -
Reconciliation, Chilean Style
Maiah
Jaskoski and Diana Kapiszewski, Department of Political Science
In Chile, as in many countries that are undergoing, or have
recently undergone, a transition from authoritarian rule, political
liberalization has resulted in the emergence of a number of
significant societal tensions . Some of the most complicated
issues are those relating to societal reconciliation. What
are the costs and benefits of, and limits to reconciliation?
How can a society that has been so thoroughly and definitively
rent be sewn back together?
Lira,
a Chilean psychologist and professor at the Universidad Jesuita
Alberto Hurtado, began her talk
by offering a historical
perspective on the current transition process. She noted that,
since their first conflicts as citizens of a new-born republic
in the early 1800s, Chileans have worked through their differences
utilizing a dialogue of forgiveness, reconciliation, and amnesty.
For Lira, amnesty amounts to promulgating a "law of forgetting" and
implies that lessons are not drawn from past experience. Further,
the reconciliatory nature of post-struggle dialogue in Chile
and the frequency with which amnesty has been applied have
historically resulted in impunity for the perpetrators of crimes
at all levels.
Nonetheless,
not all accept absolute reconciliation. In the wake of the
most recent crimes against the population
perpetrated
under the dictatorship of Augusto Pinochet (1973-1990), the
Vicaría de la Solidaridad, a human rights organization affiliated
with the Catholic Church, presented more than 8,000 habeas
corpus claims for people who had been detained by the regime
in the early years of the dictatorship. Despite the fact that
few of these cases were ever recognized, lawyers continued
presenting claims. Lira highlighted that such action represents
another common theme in Chilean history:"constancia,"the desire
to publicly present evidence that something has occurred in
the absence of any expectation that justice will be fulfilled.
Today, nonetheless, the documents presented in these cases
are becoming important as the basis for law suits against those
responsible for torture during the dictatorship.
A recent positive development regards evolution in the application
of the 1978 amnesty law. Five years after assuming power, the
military dictated a broad amnesty law covering many state institutions
(primarily the military and the military police) and all crimes
perpetrated between 1973 and 1978. Subsequently, both civilian
and military courts automatically granted amnesty for crimes
occurring between those years. Beginning in 1986, Judge Carlos
Cerda of the Santiago Appeals Court took steps toward a conservative
application of the amnesty law, refusing to apply the law in
some cases where information surrounding the crimes was insufficient;
without first performing investigations, Cerda held, there
would be no lesson for society. Further, newly-elected president
Patricio Aylwin (1990-1994) emphasized to the judiciary that
reconciliation required learning more about the disappeared,
stressing the importance of investigating crimes prior to applying
the amnesty law. Although Cerda was suspended for his interpretation
of the law, his actions along with Aylwin's recommendations
spurred a major, albeit gradual, shift in the courts' approach
to the law. Soon civilian courts began insisting that investigations
(uncovering substantive facts) be carried out prior to the
issuance of a ruling regarding the applicability of the amnesty
law. Today, the law no longer covers cases of disappearance;
thus, it is not applied in cases in which corpses have not
appeared.
Through
the efforts of human rights advocate Judge Juan Guzmán
(of the Court of Appeals in Santiago), Pinochet was stripped
of his immunity and indicted in the "Caravan of Death" case
in December 2000; nonetheless, he was ruled mentally incompetent,
which exempted him from prosecution under Chilean law. The
case was suspended by the Santiago appeals court due to his
relative dementia (a diagnosis that, legally, does not exist).
Lira pointed to the contradiction in Pinochet's continued right
to have a political voice as senator for life after having
been declared insane. However, she also characterized Chileans
as being extremely legalistic, and she maintained that, due
to the indictment, society acknowledges that Pinochet is guilty.
Furthermore, if he had been jailed, Lira raised the possibility
that he may have been turned into a victim, rather than a criminal
Not only has Pinochet's guilt been revealed to the public,
but the armed forces, though they have not taken responsibility
for the crimes committed under the dictatorship, have lost
much of their legitimacy. Investigations have required that
the military turn over information regarding the whereabouts
of the disappeared. The wide publication-mostly over the Internet-of
the finding that some of the military's records are fabricated
has threatened considerably the credibility of the armed forces.
As
of now, Judge Guzmán has the right to investigate both
civilian and military cases. If Pinochet dies during the investigations,
ties among these cases will be broken, and Guzmán will lose
this privilege. What is more, the investigation of these cases
(there are currently 284 suits pending against Pinochet), is
clearly beyond the capacity of one judge, particularly considering
that approximately 3,000 people are related in some way to
these crimes, either as the accused, the victims, or witnesses.
Lira
highlighted that Chileans remain divided in conceptualizing
the 1973 coup and the 17-year authoritarian
rule that followed
(Lira noted that Chile is a country in which there are "no
open conflicts but no extinguished memories"). She further
suggested that the majority of these inter-societal tensions
are being resolved "a lo chileno," with little discussion.
Nonetheless, she is hopeful that the recent changes in the
courts' approach to the 1978 amnesty law will lead to differentiation
between different crimes and between different degrees of responsibility.
Further, she pointed out that the Geneva Convention, which
Chile signed in 1951, has clearly been absorbed into the judicial
norms. Lira's analysis suggests that the international attention
directed toward Pinochet and the Chilean courts, in conjunction
with the evolution in the judiciary's interpretation of the
amnesty law, are catalysts that may ultimately help Chileans
fit together the pieces of their fragmented past, and bring
about a united Chilean society.
