Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism,
Mission to Chile***
At the invitation of the Government, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism conducted a visit to Chile from 17 to 30 July 2013. He wishes to thank the Government for the invitation and the excellent cooperation extended to him.
The main focus of the visit has been the use of anti-terrorism legislation in connection with protests by Mapuche activists aimed at reclaiming their ancestral lands and asserting their right to collective recognition as an indigenous peoples and respect for their culture and traditions.
The Special Rapporteur examines the general political background of the conflict and analyses the national legislative framework. He discusses the importance of a strict definition of the concept of terrorism so that it is not overly expansive in scope and notes with concern a number of inconsistencies between the Counter-Terrorism Act and the guarantee of respect for the principle of legality and the right to due process. He also expresses serious concern at the excessive use of force by the police (Carabineros) and the investigative police in the context of searches or raids in Mapuche communities and at the lack of accountability for such violations.
The Special Rapporteur concludes that the situation in the Araucanía and Biobío regions is extremely volatile, with the frequency and gravity of the violent confrontations intensifying over the past three years. He urges the Government of Chile to give the matter the priority it deserves and makes a number of key recommendations in the framework of a comprehensive and integrated national strategy for addressing the Mapuche question.
[English and Spanish only]
Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson,
on his mission to Chile
I. Introduction 1–8 4
II. Context of the visit 9–46 5
A. General political background 9–22 5
B. Challenges identified 23–28 7
C. Legislative framework 29–46 9
III. Main findings 47–82 12
A. Application of the counter-terrorism legislation 47–54 12
B. Procedural shortcomings 55–68 13
C. Excessive use of force by the police 69–79 16
D. Conditions of detention 80–82 19
IV. Conclusions and recommendations 83–97 19
A. Conclusions 83–87 19
B. Recommendations 88–97 20
Pursuant to Human Rights Council resolutions 15/15, 19/19 and 22/8, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism conducted an official visit to Chile from 17 to 30 July 2013 at the invitation of the Government.
The purpose of the visit was to gather information and engage in a dialogue on the content and application of the Counter-Terrorism Act (No. 18,314), and compliance with the rule of law and the protection of human rights.
During the course of his visit, the Special Rapporteur had productive meetings with the Minister of Justice; the Vice-Minister of Interior and Public Security and a representative of the Ministry’s human rights programme; the Director General for Multilateral Affairs and the Director for Human Rights of the Ministry of Foreign Affairs; as well as a regional representative of the Ministry of Social Development. He also met with the National Prosecutor (Attorney General) and the Chief Prosecutors responsible for regions VIII and IX of the country. He further met with the National Chief of the Public Defender’s Office and the Chiefs responsible for the regions of Araucanía and Biobío; with representatives of the Legal Assistance Corporation and the National Indigenous Development Corporation (CONADI); and with the Director of the human rights unit of the Prison Service. Members of the judiciary with whom the Special Rapporteur held meetings included the President of the Supreme Court and the magistrate responsible for coordination of human rights matters, and the President of the Constitutional Court.
The Special Rapporteur held meetings with various representatives of the Carabineros, including the Director General, the Chief of the Department for Human Rights, the Chief Inspector General responsible for regions VIII, IX and XIV, and the Chief Officers of regions VIII and IX. He further met with the National Chief of human rights crimes of the investigative police and with the Regional Chief of the investigative police of Araucanía. During a visit to the National Parliament, the Special Rapporteur met with the Presidents of the Committees on Human Rights, Nationality and Citizenship and on Constitution, Law, Justice and Regulation of the Senate; with the President of the Committee on Human Rights, Nationality and Citizenship of the Chamber of Deputies; and with individual deputies. In addition, he met with the Director and representatives of the National Human Rights Institution.
During his visit, the Special Rapporteur also met with lawyers, academics, representatives of the Church, including the Archbishop of Temuco, associations of victims of rural violence, private-sector representatives, and civil society organizations, including NGOs. Furthermore, he met with a significant number of representatives of different Lof (Mapuche communities or territorial units).
The Special Rapporteur conducted visits to three detention facilities, notably the Temuco City prison, the Angol prison and the El Manzano prison in Concepción which all house detainees for offences connected with the Mapuche protests, both those convicted and those awaiting trial. He met privately with a number of Mapuche detainees.
Furthermore, the Special Rapporteur consulted with relevant United Nations agencies, including the United Nations Development Programme, the United Nations Children’s Fund (UNICEF) and the Economic Commission for Latin America and the Caribbean. He would like to thank the United Nations system, in particular the Office of the United Nations High Commissioner for Human Rights, Regional Office for South America, in Santiago for providing valuable support throughout his visit.
The Special Rapporteur thanks the Government of Chile for the invitation and the constructive and cooperative way in which all Government representatives approached the visit.
The focus of the Special Rapporteur’s country visit has been upon the use of counter-terrorism legislation in connection with protests by Mapuche activists aimed at reclaiming their ancestral lands and asserting their right to collective recognition as an indigenous people and respect for their culture and traditions. In 2003, the then Special Rapporteur on the rights of indigenous peoples stated that charges for offences in other contexts (“terrorist threat”, “criminal association”) should not be applied to acts related to the social struggle for land and legitimate indigenous complaints (E/CN.4/2004/80/Add.3, para. 70).
Mapuche land protests have typically been characterized by land occupations, as well as arson and other forms of physical attack directed at agricultural, logging and industrial property associated with the commercial settlement of Mapuche territory. In recent years, however, the scale, frequency and intensity of those incidents has increased, partly owing to the slow rate of progress in the State’s scheme for repatriating Mapuche territory.
The present situation of indigenous peoples in Chile is the outcome of a long history of marginalization, discrimination and exclusion, mostly linked to various oppressive forms of exploitation and plundering of their land and resources that date back to the sixteenth century and continue to this day (E/CN.4/2004/80/Add.3, para. 8). The current problems facing indigenous peoples cannot be understood without reference to the history of their relations with Chilean society (ibid.).The Special Rapporteur went into greater detail on that issue in his end of visit statement.1
The largest indigenous group is the Mapuche people, which is concentrated in the south in the Araucanía and Biobío regions and is subdivided into various indigenous territorial groups. A sizeable contingent of Mapuche people also lives in relative poverty in the metropolitan area of Santiago.
Through his meetings with the representatives of Mapuche communities, the Special Rapporteur learned that the Mapuche religion and culture is premised upon their relationship with their natural environment and the principle of respect for all living things. The occupation and commercial exploitation of their ancestral land, with the adverse environmental consequences that go with intensive commercial land usage, is thus viewed by sections of the Mapuche as an attack on their essential values and even on their very right to exist.
Since the first occupation of Mapuche territory at the end of the nineteenth century, the State of Chile has progressively encroached upon Mapuche ancestral lands. That encroachment continued largely unabated through the sale of ancestral lands to commercial interests, often at less than their full value. The point has now been reached at which the surviving Mapuche rural communities have been driven into pockets of relatively unproductive land in often isolated areas of the Araucanía and Biobío regions. Their communities are typically impoverished and surrounded by commercial farming, logging and other economic activities, which they regard as exploiting the natural resources of their land. It is a source of great resentment among the Mapuche that those activities are performed on their ancestral territory, within sight of the communities that have been dispossessed. The Special Rapporteur has visited some of these communities and seen for himself the impoverished conditions of life in which many of the rural Mapuche are forced to live.
The historical debt owed by the State of Chile to the Mapuche people is described in the report of the Historical Truth and New Deal Commission issued in October 2008. However, while that report recommended the expropriation of Mapuche land from the settler community (with compensation) and its repatriation to the Mapuche, the State has so far rejected that proposal. Instead, it has established a regional programme aimed at repurchasing relatively small tracts of land from the settler communities, together with limited regional grants intended to enable Mapuche communities to make effective use of the land. Until 2010, the repatriation progress, which has been administered by CONADI, was slow, arbitrary and viewed as largely ineffective by the Mapuche. This was due in part to poor administration by CONADI, combined with land speculation by members of the settler community, which had the effect of pushing up the purchase price per hectare, and thereby delaying the process of repatriation.
Over the past two years, CONADI has instituted a number of measures aimed at speeding up the land repatriation process and has succeeded in stabilizing the market value of the land. According to information received, the total budget for CONADI has increased from US$ 124 million in 2010 to US$ 181 million in 2013. Regarding production development, in 2011, 26,300 families benefited from the Indigenous Territorial Development Programme of the National Institute for Agricultural Development. In previous years, that programme had only covered 3,000 families (CERD/C/CHL/19-21, paras. 200–202). However, during a meeting with the Special Rapporteur, representatives of CONADI acknowledged that the central budget available for that purpose was grossly insufficient, and that with the current budget it would take several decades before even the earmarked lands could be returned. That assessment has subsequently been contested by the Government of Chile, which has estimated the duration of process of return of earmarked lands at approximately six years.
Another issue of particular concern to the Special Rapporteur is the lack of constitutional recognition of indigenous peoples, despite the international obligations of Chile. In that respect, he notes recent reform initiatives, but observes that organizations representing indigenous peoples have criticized those initiatives for being designed without their prior consultation or participation.
The Special Rapporteur has taken due note of the various initiatives taken by the Government of Chile to enhance the participation and consultation of indigenous peoples (see CCPR/C/CHL/6, paras. 144–147). These include the establishment by CONADI of a unit for work on International Labour Organization (ILO) Convention No. 169 (1989) concerning Indigenous and Tribal Peoples in Independent Countries and the launch on 8 March 2011 of the Consultation on Indigenous Institutions with the objective of addressing three major subject areas.2 The consultation process was subsequently suspended following requests to that effect by representatives of indigenous community leaders and a number of politicians. The Special Rapporteur understands that the decision to suspend the process was primarily based on the need to initially focus on the setting up of mechanisms and procedures for indigenous consultation and he is encouraged by the recent adoption of new regulations for such consultation (see A/HRC/WG.6/5/CHL/1, paras. 48–60).
Notwithstanding those developments, the Special Rapporteur concurs with the concerns expressed by the Committee on the Elimination of Racial Discrimination at the slow pace of progress towards the establishment of an effective mechanism for consultation with indigenous peoples and for the promotion of their participation in accordance with international instruments (CERD/C/CHL/CO/19-21, para. 12).
The Special Rapporteur also wishes to draw attention to the absence of political consensus on whether Mapuche land protests can or should be stigmatized as terrorism. The Special Rapporteur met with elected political representatives from the Government and opposition with a close interest in that issue. It is clear that political opinion in Chile is deeply divided on the use of the anti-terrorism legislation against the Mapuche, and that such polarization has impeded progress towards a consistent and principled application of the law. One point of view is that the anti-terrorism legislation should be strengthened and more frequently applied and legislation has been proposed to that effect.
The opposing view is that anti-terrorism legislation has no role to play at all in connection with the Mapuche question; that Mapuche protests have not taken the form of recognizable terrorism; that the use of the anti-terrorism legislation in connection with Mapuche land protests is counterproductive to the promotion of a peaceful resolution to the Mapuche question; and that, at its worst, it amounts to a form of labelling aimed at delegitimizing the underlying cause of the Mapuche people. That view was endorsed, to varying degrees, by elected politicians from the Government and the opposition who are most closely associated with constituencies in the Araucanía and Biobío regions, and are therefore closer to the problem.
The only point on which all were agreed is that the current application of the anti-terrorism law is unsatisfactory and inconsistent. The Special Rapporteur did not encounter any interlocutor (apart from the public prosecutors) who expressed satisfaction with the present state of affairs.
B. Challenges identified
Chile is a signatory to the United Nations Global Counter-Terrorism Strategy unanimously adopted by Member States on 8 September 2006 in General Assembly resolution 60/288, and most recently reaffirmed by the General Assembly in June 2012 in its resolution 66/282. The Strategy is a global instrument to enhance national, regional and international efforts to counter terrorism where all Member States have agreed to a common strategic approach to fight terrorism. The Strategy is not limited to sending the clear message that terrorism is unacceptable in all its forms and manifestation. It is also aimed at taking practical steps individually and collectively to prevent and combat it.3
The first pillar of the Strategy requires all States to devote the necessary efforts to address the conditions conducive to the spread of terrorism and violent extremism. The core philosophy underlying that pillar is that the spread of violent extremism cannot be effectively countered by law enforcement measures alone. Indeed, the collective experience of the Member States is that excessive and discriminatory law enforcement aggravates the threat of violent extremism and is counterproductive. In accordance with the first pillar, States must address not only the manifestations of social and political violence, but also its root causes. All Member States of the United Nations, including Chile, have reached a consensus to the effect that the conditions conducive to the spread of politically motivated violence and extremism include long-running regional disputes, such as land disputes, poor governance, violations of human rights, legal discrimination and political, economic and educational exclusion.
The Special Rapporteur notes that all of these factors are present in the conditions underlying the Mapuche land protests. Historical grievances, once recognized, must be effectively and promptly addressed. Where State policy raises expectations that then remain unfulfilled due to lack of resources and poor administration by public officials, there is an ever-present risk that the protests will escalate to the level of widespread public disorder. Political and economic exclusion of the kind still experienced by the Mapuche people is a recognized cause of violent extremism. The responsibility for addressing those issues rests squarely with the State. Since the restoration of democracy in Chile, no Government of either political hue has given the issue the priority it deserves. The Special Rapporteur underlines that the State of Chile has a duty to promote a peaceful and just solution to the Mapuche questions. This is a duty which the Government owes not just to the Mapuche, but also to the settler communities in the rural areas of Araucanía and Biobío, to the law enforcement officials in those regions upon whom the State relies to keep the peace and to the wider community in those regions who are entitled to expect the State to discharge its public administration obligations effectively and without discrimination, so as to maintain the principles underlying representative democracy.
As already noted, the scale, frequency and intensity of the Mapuche protests have increased in recent years. There have been increasingly frequent attacks on members of the Carabineros who have in the past been perceived by sections of the Mapuche community to be partisan, and to have operated as an instrument of State repression. At least one member of the Carabineros has been killed and many more have been the victims of potentially fatal attacks. Particularly disturbing was the death, in January 2013, of the couple Werner Luchsinger and Vivian Mackay during an arson attack on their farm. The attack followed a series of previous non-fatal attacks on property belonging to members of their extended family, which has been engaged in large-scale commercial farming in the region for many years.
The Special Rapporteur notes that the settler community is also deeply dissatisfied with the political strategy that has so far been pursued by the State of Chile in its efforts to resolve the Mapuche question. During meetings with organizations representing victims of rural violence, small landowners complained forcefully that insufficient compensation had been set aside to enable them to resettle elsewhere in Chile under conditions comparable to those under which they had previously lived and worked. Others, including representatives of commercial interests in the region, complained that the lack of political will within central Government to seek and deliver a lasting solution to the problem left their communities and their enterprises unprotected. During the entirety of the Special Rapporteur’s visit, none of the stakeholders in the Araucanía and Biobío regions expressed satisfaction with the efforts made by central Government to address the issue.
The Special Rapporteur assesses the situation in Araucanía and the surrounding areas to be volatile, and liable to spread into a full-blown regional conflict unless urgent action is taken to address not only the manifestations of the violence, but also its root causes. All interlocutors familiar with the situation agreed that, while those perpetrating acts of violence are currently few in number, the degree of tacit sympathy for their actions is potentially much more widespread among Mapuche communities. In the opinion of the Special Rapporteur, the risk of escalation is very real and it is imperative that the State of Chile take urgent action to address the situation before it veers out of control. At the same time, the Special Rapporteur reiterates that indigenous persons and peoples should always ensure that their statements and demonstrations take a peaceful form and respect the human rights of others.
C. Legislative framework
1. Human rights and other international obligations
Chile is a State party to the core human rights treaties and it cooperates regularly with the international human rights treaty bodies, including through the timely submission of reports, endeavouring to put their recommendations into practice, and bringing domestic legislation into line with international instruments. It has also acted on the recommendations and judgements of the inter-American human rights bodies (see A/HRC/WG.6/5/CHL/1, paras. 15–17).
The political will of the Government to effectively counter terrorism is visible in the number of international anti-terrorism instruments to which Chile is a State party. To date, the Government is a State party to 14 of the 16 international anti-terrorism instruments.
In 2008, Chile ratified ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, so that in compliance with international standards, the Government has to open an indigenous participation and consultation process (see A/HRC/WG.6/5/CHL/1, para. 58).