Oscar Godoy Arcaya, professor at the Institute
of Political Sciences of the Catholic University of Chile and a member of the Academy of Social, Political and Moral Sciences of the Institute of Chile
Fabiola Letelier del Solar and Víctor Espinoza Cuevas, respectively president and executive secretary of Chile’s Corporation for the Defence of the People’s Rights (CODEPU)
Chileans
have made a pact to ease the transition to democracy. But the collective memory has
played a more crucial part in progress towards a rule of law
 An anti-Pinochet demonstration outside the Chilean embassy in Madrid in October 1998. |
“Justice as far as possible,” was the line taken by Patricio Aylwin while he was president. The work of the Truth and Reconciliation Commission (see box) formed part of this approach. Its aim was to compile a list of victims of human rights violations under the military regime and identify the guilty parties. The idea was to establish the truth, award material and moral compensation to the victims, and lay the foundations of national reconciliation. But the Commission’s work has been limited by an amnesty law passed under the military regime. In other words, its role has been largely symbolic: to preserve the history of the repression in the collective memory.
The Commission’s report has nevertheless had a considerable impact. The truth began to come out, opening up new opportunities for “justice as far as possible”. Under the current president, Eduardo Frei, the courts have handed out prison sentences to the former head of the DINA, the dictatorship’s secret police, and to other military and police officers involved in the repression.1
But two big issues have been put on the back burner—the crimes covered by the amnesty law (committed between 1973 and 1978) and the responsibility of General Augusto Pinochet. Many Chileans and foreigners wonder why a democratic government has not managed to repeal a law which seems a disgrace and was passed in undemocratic circumstances.
How is it that Pinochet has remained beyond the reach of the law and that his political and criminal responsibility has not been established? The answers to these questions are connected to the special nature of Chile’s transition to democracy, which includes an unspoken agreement to keep the amnesty law on the books and guarantee immunity for Pinochet. The transition is the result of a pact, whose effects have been strengthened by the existence of a right-wing electorate comprising up to 40 per cent of voters and an electoral system that prevents a majority from dominating parliament. Agreements have been made; there has been neither passivity nor laxity.
Reawakened memories
The society’s collective memory is stronger than this, however. Whenever a debate arises about the political heritage of the military regime or someone tries to amend the constitution, memories are reawakened of prisoners who vanished, executions with or without trial and the torture inflicted on thousands of Chileans. There is no collective amnesia: the wickedness of the crimes has left an indelible mark.
For nearly nine years, there was a tug-of-war between collective memory and political determination to forget. On the one hand, several legal actions were started against Pinochet and members of his regime. On the other, one coul
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Disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind. Preamble
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Pinochet enjoys immunity because he has a diplomatic passport and is a senator for life, and the Chilean government has accepted this. The government maintains that it cannot accept foreign jurisdiction over him that it has neither recognized by treaty nor through ratification of an international legal instrument.
I approve of this approach because states are subject to international law even if it conflicts with my ideals. I also approve of it because I think the democratic transition is our business. I would like to see, in my lifetime, Chilean courts put Pinochet on trial for what he did and remove him from parliament. I would like to see the armed forces quietly accept and respect court decisions and see the pro-Pinochet right accept the requirements of the rule of law and representative democracy. In sum, I would like to see
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Knowing how to forget is more a matter of chance than an art. Baltasar Gracian, Spanish moralist and essayist (1601-1658) |
Pinochet’s detention has moved the Chilean justice system forward. Politicians have turned a spotlight on the crimes of the dictatorship, and public opinion is starting to accept that globalization doesn’t only involve trade. This is a process which is taking us towards a cosmopolitan society equipped with supra-national bodies based on freedom and the defence of human rights.
1 Manuel Contreras, the former head of the DINA, was sentenced in Chile for the murder in Washington of Orlando Letelier, Minister of Foreign Affairs in the Allende government, because Chile’s amnesty law does not cover crimes committed abroad. In July 1999, in a decision described as “historic”, Chile’s Supreme Court confirmed the indictment of high-ranking officers on the grounds that when victims’ bodies could not be found, the crimes involved were “permanent and not subject to limitation” and therefore not covered by the amnesty law. Editor
Only a few
of those responsible for crimes under the dictatorship have so far been tried
 A woman with photos of her father and other missing people takes part in a candlelight vigil organized in Chile in October 1999 by relatives of those who disappeared during the dictatorship. |
But all efforts to stifle memory have failed. The arrest of Augusto Pinochet in London on October 16, 1998 revealed how fragile the Chilean democratic system is and showed the true face of a country which cannot face up to a period of its history which continues to divide Chileans into two irreconcilable camps.
The systematic cover-up of the dictatorship’s crimes began on the day of the military coup d’état against President Salvador Allende in 1973. But from the start of the repression, human rights organizations and groups of victims’ families tried to find out the truth. They all worked together to build this collective memory of the past. After a while, the action of a band of mothers who denounced the crimes committed against their loved ones became the mainspring of the struggle to restore democracy. The main theme of the campaign was “never again”—only the establishment of a nationwide culture of respect for human rights, a complete account of what went on and full rights to justice could ensure that history would not repeat itself.
We were critical of the National Truth and Reconciliation Commission set up at the beginning of the transition process (see box). Why, we asked, did its brief only cover those who disappeared and leave aside those who were tortured, forced to flee abroad, arbitrarily arrested or sent into internal exile?
Most of all, we objected to its decision not to name those responsible for the crimes, which would have at least been symbolic justice. And the truth that the Commission established was only the version presented by the victims, their families and human rights organizations, since the main culprits, the armed forces, refused to have anything to do with it. So it was only half the truth. A page of our history is still unwritten.
International solidarity
Yet through the Commission’s brief, the government recognized that the dictatorship had systematically violated human rights on a massive scale. This organized remembrance of the recent past was really an appeal for people to face the future bolstered by a determination that such crimes must never happen again.
Later, fearing the clashes that digging up the truth and dispensing justice would inevitably provoke, the nine-year-old government coalition passed measures that removed the issue from the public arena. The Truth and Reconciliation Commission and its successor, the Reparations and Reconciliation Commission, were supposed to have settled the problem once and for all. But far from recognizing the ethical, political, judicial and social dimensions of the problem, they reduced it to a search for the remains of those who disappeared, with the result that the nation’s ordeal was revived.
Pinochet’s arrest means the country cannot avoid facing the events whose memory, however painful it may be, we have been fighting to keep alive. Indeed, over 40 complaints have been made against Pinochet before a judge which have so far led to the arrest and trial of a dozen military officers (see note below).
The determination of the complainants, along with international solidarity, made possible an act of justice none of us had imagined: the imprisonment of Pinochet in a gilded cage. As the former head of state, he is the chief perpetrator of what we regard as crimes against humanity committed under his rule inside and outside the country. These crimes should be tried by an international tribunal. Since such a tribunal is still not functioning, Pinochet ought to be tried in his own country.
But Chile has neither adequate institutions nor the political will for that. So far there has been no real move to repeal the 1978 amnesty law or end the system of appointed senators. All this means that Chile is a partial and hesitant democracy, unable to guarantee a fair trial for Pinochet. Also, because he is a senator for life, his parliamentary immunity would have to be lifted before he could be tried. But since he is still a military officer, an examining magistrate could declare himself incompetent to handle the case and might send it to a military court, which obviously would not be independent enough. So Pinochet should be tried in Spain. This would be a big step towards ending impunity, and an exemplary act against the treachery and tyranny of all dictatorships.
Building a collective memory implies knowledge of the past and all its consequences. As long as it is shrouded in the veil of pardon without justice, we cannot plan a future of peace in a society reconciled with itself.
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Timeline
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