ON THE STATUS OF HUMAN RIGHTS IN CHILE
of “on the spot” Observations in
This report sets forth and evaluates the findings of the Commission
during its “on-the-spot” observations in the Republic of Chile, July 22 –
August 2, 1974, with respect to the general status of human rights in that
Nothing in the report implies in any way a prejudgment with respect to
the individual cases which are now being processed by the Commission as a result
of denunciations or complaints regarding particular situations and/or persons,
and which will be specifically and concretely decided upon in due course upon
completion of the relevant procedures. Everything in the report refers to the
general status of human rights in Chile during the exact period in which the
visit took place.
With regard to the latter point, it should be noted that Chapter XVIII of
this document deals with events and measures relating to this topic, which
occurred or were adopted in Chile subsequent to that period.
This report cannot, nor does it seek to, make a comparative study of the
political systems that have succeeded each other in Chile in recent years, or to
make a political evaluation of those systems. This entire area is outside the
competence given this Commission by its statutes and is entirely foreign to the
desire and intent of its members. While the regime that was overthrown on
September 11, 1973 was in power, neither the number nor the seriousness of the
complaints or denunciations received by the Commission regarding violations of
human rights in Chile were considered as grounds making it necessary to request
the consent of the Government of that country to conduct an “on-the-spot”
examination of the situation. Consequently, the Commission is not in a position
to pass judgment on the degree to which basic human rights were protected in
that period. Of course, no valid conclusion can be drawn from the fact that no
multiple or serious denunciations concerning disregard for human rights were
transmitted to the Commission in that period. It is merely pointed out that such
was the case. Hence, this report does not seek to make comparisons: it is the
result of objective examination, in a particular political-social situation, of
one single topic, which is, whether human rights are actually observed and
protected. It is not for the Commission to decide whether the present political
regime is more or less desirable than the previous regime. Only the citizens of
Chile, acting freely, can validly pass judgment on that.
This report is organized as follows: After relating the background of the
Commission's visit to Chile, it begins by transcribing the accounts prepared by
groups of its members, or by any member designated for the purpose, regarding
each of the actions in the field: visits to detention sites, interrogation of
persons, receipt of complaints and denunciations, examination of existing
legislation, study of dossiers, attending trials, etc. When reference is made to
statements of detained persons, particularly denunciations of physical or
psychological torture, particulars are usually omitted for obvious reasons,
unless the persons concerned have expressly authorized disclosure of their
identity. Of course, the Commission's files contain summaries of their
statements with complete identification and, in many cases, the tapes of their
statements. Chapter XVI summarizes the main general facts, which the Commission
considers reasonably proved, and indicates which provisions of the American
Declaration on the Rights and Duties of Man have therefore been violated.
During the Commission's stay in Chile, it did not observe anything
resembling a “state of war,” notwithstanding what might have occurred
previously. Neither in Santiago nor outside Santiago—and members of the
Commission traveled between Antofagasta and Talcahuano—did the Commission
observe street disorders, acts of violence committed by groups of civilians,
attacks against the armed forces, insubordination against their orders, or
anything of the kind. Some of the Commission members witnessed numerous
operations carried out by the police, in which groups of persons in recreation
areas in the center of the city were detained. Excessive presence of police or
military elements or an exaggerated show of arms in the streets of the cities
and towns was not noted. A normal observer would not have imagined that he was
in a country in a “state of war.” The curfew, which was in effect only from
one to six a.m. is hardly a problem for anyone besides “night owls” and a
very few workers.
It must be added that, while the Commission did not ascertain the
existence of acts characteristic of a “state of war,” it was obvious that
the country was not in an entirely normal situation. A political system that was
considered by many Chileans as violating human rights has been overthrown by
force of arms. A new “the facto” regime, which was obviously not supported
by the majority of the followers of the regime that was replaced, was
undertaking the task of consolidating a new order.
Such circumstances are not the most propitious for fully respecting human
rights: governments, whether those of regular origin that are attacked, or those
that reach power through a revolutionary movement, are forced in such convulsive
periods to suspend certain guarantees, and this is inevitably detrimental to the
rights that such guarantees are intended to protect.
Law—whether domestic or international—does not ignore such realities.
It weighs them fairly and gives solutions for dealing with them, while
adequately evaluating the good that is endangered. With respect to American
international law—which is the normative system that the Commission must take
primarily into account—it must be understood that, in the absence of
conventional standards in force in this area, the “most accepted doctrine”
is that which is set forth in the American Convention on Human Rights, also
called the Pac of San José, Costa Rica, which has been signed by twelve
American countries (among them Chile), and whose ratification has already begun.
The Convention contains an express provision in Article 27 establishing
to what extent a state may restrict the protection of human rights in
exceptional circumstances, such as war. The text reads as follows:
27. Suspension of Guarantees
In time of war, public danger, or other emergency that threatens the
independence or security of a State Party, it may take measures derogating from
its obligations under the present Convention to the extent and for the period of
time strictly required by the exigencies of the situation, provided that such
measures are not inconsistent with its other obligations under international law
and do not involve discrimination on the ground of race, color, sex, language,
religion, or social origin.
The foregoing provision does not authorize any suspension of the
following articles: Article 3 (Right to Juridical Personality), Article 4 (Right
to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from
Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12
(Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article
18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to
Nationality), and Article 23 (Right to Participate in Government), or of the
judicial guarantees essential for the protection of such rights.
Any State Party availing itself of the right of suspension shall
immediately inform the other States Parties, through the Secretary General of
the Organization of American States, of the provisions the application of which
it has suspended, the reasons that gave rise to the suspension, and the date set
for the termination of such suspension.
can be seen therefore that these exceptional situations do not authorize
deprivation of life, torture, retroactive application of the more severe penal
law, the establishment of “crimes of opinion,” the disregard of the right of
minors to special protection and treatment appropriate to their age, nor the
adoption of measures that result in making it impossible to exercise for years
such basic political rights as suffrage.
In addition, measures involving suspension of the guarantees of basic
rights may in no case last longer than the actual, real, and provable situations
that determine their adoption. Hence, for example, a “state of war” which is
in fact nonexistent, or which in fact has ceased to exist, cannot be invoked to
justify, under international law, the suspension of such guarantees.
In evaluating the general status of human rights in Chile during the
period of the Commission's “on-the-sport” observations, as well as in the
preparation of this report, the Commission has taken into account and applied
the foregoing standards and criteria.
6. The Commission recognizes that it may involuntarily have committed some mistake. For many reasons, including pecuniary factors, observations of this type carried out must be concluded in a limited time, which does not permit verifying some aspects in the way the Commission would have desired. Moreover, as may occur in circumstances of political disturbance, much of the testimony that the Commission gathered is conceivably colored by passion, in one direction or the other. It is natural that, no matter how great the care taken in rationally evaluating the evidence, the Commission may have fallen into error. However, one can be absolutely certain that the Commission knows the risks that are inherent in its task, it applauds the procedural rules under which the Permanent Council must examine its reports, before submitting them to the General Assembly. In the Permanent Council, the countries concerned have the opportunity to make any observation they deem relevant, before the reports are given the publicity they receive when presented to the Assembly. This provides an opportunity to introduce any amendments that may be adequately justified.