Sebastián Smart, Karinna Fernandez and Cristian Peña, co-editors of the recently-published ‘Chile and the Inter-American Human Rights System’, provides an overview of its contents which shed light on some of the Chilean state’s human rights violations affecting indigenous peoples, victims of torture and the LGBTI community.
Scholars and commentators have focused on Chile as a successful example of the transition to democracy, but much still remains to be done in terms of human rights violations in the country. Despite years of democratically elected governments (1990−2017), the political system could not combat the atrocities perpetrated during Augusto Pinochet’s dictatorship of 1973−90, in particular the current human rights violations that affect indigenous peoples and the Lesbian Gay Bisexual Trans and Intersex (LGBTI) community.
In Chile, the Constitution originally implemented by Augusto Pinochet, as well as his self-amnesty decree law, remain in force. Despite the fact that tribunals should deny the application of amnesty laws in cases of crimes against humanity, they have continued, since 1998, to apply the so-called, prescripción gradual − the specific term for the ‘partial lapse of the statutory time period’.
Controversially, this grants freedom to the perpetrators of atrocities and the time that has elapsed since the dates the crimes were committed is included in the statutory period. This state of affairs is enhanced by the fact that the information contained in the Valech I and II Truth Commissions (The National Commission on Political Imprisonment and Torture Report) was declared secret by law for a period of 50 years since the information was originally collected, creating clear barriers 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. 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.
The incapacity of the country’s political system to deal with the gross human rights violations of the past is even more apparent in recent cases. Indigenous peoples’ protests, especially those of the Mapuche people, have historically been criminalised using a flexible and lax counter-terrorism legislation to prevent them from mobilising to claim land and autonomy.
Chilean legislation also continues to discriminate against the LGBTI community. Some progress has been made if the current situation is compared with the reality of a couple of years ago. One example of this progress is the Atala Riffo and daughters v. Chile case, which represents a landmark in anti-discrimination 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) in a judgement that made it 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, alleging that it would cause harm to them and that it is preferable 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 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 and that sexual orientation is part of a person’s personal life and that it is not relevant when their suitability as a parent is 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.
Nevertheless, the powers of the legislative branch are still sometimes restricted, for example the Parliament has been unable to pass a bill on gay and lesbian marriage.
To breach this closed legislative process at the national level, the victims have increasingly had to resort to the Inter-American Human Rights System (IAHRS or ‘the System’). It has introduced important rulings in terms of:
- the right to justice and reparation of survivors and victims of torture perpetrated before the Court’s ratione temporis jurisdiction (see Garcia Lucero case)
- the rights not to be discriminated against, and of previous consultation, and the correct application of counter-terrorist law (see Norín Catrimán et al. case)
- the right of LGBTI communities not to be discriminated against and non-interference in a lesbian couple’s private life (see Atala 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.
Sebastián Smart holds a law degree from Chile’s Pontificia Universidad Católica, and a master’s in human rights from UCL where he is currently pursuing a PhD. He has worked in Chile, Haiti and the UK for TECHO, a non-governmental organisation (NGO) which mobilises youth volunteers to fight extreme poverty in Latin America, and has advised a range of international organisations and NGO’s in Latin America and the UK.
Karinna Fernández has wide-ranging experience in litigating human rights cases at national and international levels. She has also served as an advisor on matters of international penal cooperation and extradition at Chile’s Public Prosecutor’s Office and as a legal advisor to the Interior Ministry.
Cristian Peña is a chartered clinical psychologist and an associate fellow of the British Psychological Society. He is a health research associate at the International Centre for Health and Human Rights, London, and frequently works as a consultant for human rights organisations. He has many years of practical experience working with survivors of torture at the Medical Foundation for the Care of Victims of Torture and other organisations.