Participants: State of Chile, Clínica de Derechos Humanos de la Universidad Diego Portales
General Human Rights Situation


On October 25, 2010, the Clínica de Derechos Humanos de la Universidad Diego Portales (CDH) and the State of Chile participated in a thematic hearing before the Inter-American Commission on Human Rights (IACHR) concerning the human rights situation in Chile, particularly the rights of indigenous peoples. CDH focused on the Chilean government’s responses to the recent hunger strike undertaken by thirty-four indigenous Mapuche prisoners to protest being charged under Chile’s anti-terrorism laws for events related to a land dispute. In particular, CDH raised concerns about Chile’s compliance with the International Labour Organisation (ILO) Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), Chile’s reform of national anti-terrorist legislation and the jurisdiction of military courts, and the effectiveness of the national human rights institute established this year.

The Mapuche prisoners’ hunger strike reactivated the Chilean Congress’s consideration of granting constitutional recognition to indigenous peoples. CDH stated that the Chilean government did not afford indigenous groups their right to consultation during the three-day debate. Article 6 of ILO Convention 169 requires that “governments consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly.” Commissioner Dinah Shelton inquired about the extent to which indigenous groups are currently consulted during decision-making processes. Chile emphasized its commitment to working with indigenous communities, and stated that it is currently developing more comprehensive consultation mechanisms. It also remarked that the public often overlooks the constructive aspects of the government’s work with indigenous communities, such as poverty alleviation projects in rural regions.

CDH also discussed the recent reforms of Chile’s anti-terrorism laws and military jurisdiction laws. The government reformed the anti-terrorism law to remove the presumption that certain conduct constituted a terrorist act. CDH criticized the reformed law’s failure to define terrorism, which in practice allows common crimes to be prosecuted as terrorist acts. Without a clear definition for terrorism, the law grants officials wide discretion in determining terrorist conduct. This is problematic because the anti-terrorism laws provide harsher penalties and permit longer periods of preventative detention of arrested individuals, and the lack of clear definition for terrorism increases the likelihood of human rights abuses. Commissioner María Silvia Guillén asked whether due process is guaranteed and whether there are any efforts to clarify the meaning of terrorism to curtail the discretion currently afforded to officials. Commissioner Shelton asked if the government has considered reviewing past convictions made under the anti-terrorism law to see whether the reformed law would change the outcome of those cases. The Chilean representatives referenced the technicalities of the legal reforms and the lack of a mechanism for reclassifying crimes already prosecuted as terrorist acts, and emphasized the progress made in removing military courts’ jurisdiction over civilians.

CDH examined the effectiveness of the newly established national human rights institute in Chile, and stated that the institute cannot currently fulfill its most important purpose of serving as a “link between the framework of the international human rights standards and Chilean local realties.” CDH pointed out that the institute does not have sufficient autonomy to engage the state in addressing past human rights violations because of the hierarchical nature of government offices. CDH acknowledged that the human rights institute has the potential to be effective, but urges the government to prioritize addressing human rights violations over protecting its own officials.

The arguments presented by both CDH and Chile during the hearing demonstrated a national desire to promote and protect human rights in accordance with international standards, particularly related to indigenous peoples. Commissioner Shelton concluded the hearing by reminding Chile that the IACHR, as a promotional and protective human rights organization, is available to provide technical assistance to the state as it seeks to accomplish its human rights protection objectives.