From January 27 to 31, 2008 the American Association of de Jurists (AAJ) and the Argentine Assembly for Human Rights (APDH) conducted a joint mission to Region IX, centered in Temuco, southern Chile to personally investigate reports of systematic human rights violations against the Mapuche people and to gather information regarding laws applied in the course of conflicts that affect the zone.

Mission members from the Chilean branch of the AAJ were attorneys Graciela Alvarez, President; Manuel Jacques, Vice president; and Yenive Cavieres, expert in indigenous affairs. On behalf of the Argentine branch of the AAJ participated President Ernesto Moreau and Claudia Viviana Rocca as well as Raul Prytula of the Argentine Assembly of Human Rights.

During five days the delegation met with Mapuche leaders, Chilean governmental officials, and Mapuche prisoners in the Angol Prison and the Temuco Prison for Women.

Below we present excerpts from the Report on Repression and Criminalization of the Mapuche People in Chile, presented to the public April 16, 2008, including the Conclusions and Recommendations in their entirety.

For more information and to obtain the complete Report, contact AAJ Chilean Branch [email protected] or Argentine Branch [email protected]

Territorial Reduction
Effects of Mega Projects
Territorial Militarization
Military Court Jurisdiction over Civilians
Due Process, Political Prisoners, and AntiTerrorism Law
Access to Justice
Recovery of Ancestral Lands
Constitutional Reform

Legitimacy of Mapuche Demands
Destruction of Environment and Megaprojects
Antiterrorist Law
Militarized Territories

Special Jurisdiction
Access to Justice and Due Process
Mapuche Children
Constitutional Recognition of Indigenous Rights



Territorial Reduction

The phrase Territorial Reduction refers to manner in which Mapuche communal or individual territory was reduced and transformed by force and by a succession of laws. Various sources describe the process:
"When Europeans arrived in la 1536, the influence of the Mapuche nation extended North to the Copiapo River and as far south as the Island of Chiloe. Throughout this extensive territory including the northern coasts, the dominant language was Mapuzugun."

The Report of the Historical Truth Commission, created by presidential decree in January i2001 in order to advise the government of President Ricardo Lagos in drafting new indigenous policy, indicates that in the early XVth century, the various groups that comprised the Mapuche culture were settled in the extensive territory from the Limari River in the north and the Great Island of Chiloe to the south. Subsequently, a series of meetings with representatives of the Spanish Crown resulted in recognition of Mapuche autonomy in a territory that spanned approximately 10,000,000 hectares, south of the Bio Bio River.

After the 1881 military defeat of the Mapuche, commonly known as Pacificación de la Araucanía, the Chilean State (1884 a 1930) reduced Mapuche territory to 500,000 hectares, in the process expelling Mapuches and dismembering its traditional political organization, by granting deeds over small areas of what had been ancestral territory. The territorial reduction process continued through a series of laws that up to 1990 allowed dividing communities, resulting in a loss of another 200,000 hectares.

Great Mapuche leaders, known as lonkos, were thus compelled to reduce their communities, with many extensive families obliged to move to other zones, with the population scattered in small areas subordinate to the Chilean government, intent on eliminating the existence of native peoples in order to form a uninational State.

Figures on indigenous population vary. According to the CASEN governmental statistics survey for the year 2000, 666,319 indigenous people, or 4% the total population of 15 million. The 1992 National Census noted 1 million people identified themselves as indigenous, whereas indigenous organizations set the figure at 1, 700,000.

At present, the economic development model has imposed a form of territorial reduction as a consequence of the mega projects that irreversibly affect the environment and endanger the survival of the Mapuche people. Extended families once again are forced to move, traditional organization and culture are destroyed. The Mapuche people perceive this as a modern day "pacification", invasion and war against their traditional way of life.

Effects of Mega Projects on Survival of the Mapuche People
The foundation of the Chilean neoliberal export economy is the exploitation of natural resources, primarily in mining, forestry, fishing, and fish farming, which create pressure upon land and indigenous resources. Indigenous Law 19.253 fails to adequately protect either indigenous lands or natural resources. Neither the adoption of the Convention on Biological Diversity nor Agenda 21 (Sustainable Development Action Program), both signed by Chile at the Rio Summit of 1992 provide effective protective mechanisms.

The right to consultation, enshrined both in the Indigenous Law as well as Convention 169 and the Universal Declaration of the Human Rights of Indigenous Peoples has not been respected in Chile. Indigenous communities are accorded symbolic participation in Environmental Impact Studies.

Chilean law stimulates and protects corporate acquisition of lands that have traditionally belonged to the Mapuche people. In what was once Mapuche territory, Regions Eight, Nine and Ten, a number of sociocultural conflicts have arisen as consequence of massive development projects.

The most significant examples are the Ralco Hydroelectric Dam on the Upper Bio Bio River, the Temuco by-pass construction and, the Quepe airport project. In Lafkenche territory the Coastal Highway, water treatment plants, cellulose waste plants, and salmon farming have impeded access to traditional fishing and coastal resources with tremendous environmental impact on water quality, as well as flora and fauna that have important value in Mapuche cosmology.

Many megaprojects are located on sacred lands or spiritual sites. The alteration of the habitat affects not only the agricultural economy but also Mapuche medicinal tradition, and sources of traditional herbs.

This process has accentuated poverty in the region, forcing many young people to migrate. Mapuche communities speak of great difficulties and obstacles to accessing governmental assistance programs, including legal and administrative assistance in refuting corporate environmental impact statements. The absence of governmental technical and social assistance is a common complaint we heard from Mapuche communities.

A tension can be perceived between the development of a globalized capital production system and the life of the Mapuche people, who assert the value of traditional cultural. The transcendence of one implies the destruction of a way of life for the other. Lonkos, the Mapuche elders, spoke to us about this issue, pausing in conversation, as if to suggest that the destiny of their lives is intertwined to that of their environment, the hills, and gathering the fruit of the araucaria tree. Lacking these, their culture will die.

Territorial Militarization. Use of Force. Role of Police
The Mapuche have employed various means of pressure, including social mobilizations and protests, to defend their rights and demand restitution of traditional lands. This Mission has received denunciations of police search and seizure raids of Mapuche communities that share the following characteristics:
- They are not supervised by a court official nor civilian witnesses. Police officers do not exhibit any appropriate court order.

-This Mission was shown search orders which were totally blank forms that police officers modified to suit their social control requirements.

- Even though the raids are generally conducted at night and against the will of residents, the forms note the raids are conducted with their authorization and in daylight hours.

- Elements of force are symbolically used to intimidate. Areas are saturated with disproportionate and excessive police personnel, equipped with long weapons that are shot for the object of intimidation, police combat vehicles, helicopters, military combat formation, unnecessarily breaking possessions, use of authoritarian language and total lack of dialogue.

- Violent treatment of people who are beaten with police firearms, step upon with their boots, violently immobilize on the ground for long periods of time, at times forcing them to undress, using racist and insulting language not only with men but also with women and elderly. The Mission received denunciations of rape during police raids.

- Children are treated the same as adults. They are beaten, threatened with firearms, insulted, left alone when their parents are arrested, and sometimes taken in trucks (as reported by people in Temucuicui and Tricauco).

This Mission has verified the permanent presence of police force in certain communities who restrict right of move freely about, and submit residents including children to uncalled for interrogations. Members of this Mission observed how the sound of police vehicles causes panic in children. Chile lacks any specific guideline for police conduct in demonstrations and conflicts, and police officers admit they are not trained for the most basic levels of dialogue and negotiation.

Military Court Jurisdiction over Civilians

In Chile, the authority to hear and try civil and criminal cases affecting military personnel pertains exclusively to the military courts, as set forth under the Military Justice Code (Art. 1, Libro I, Titulo I.) Military court jurisdiction should pertain only to military jurisdiction matters that affect national sovereignty. It includes cases of military type crimes with the specific exception of crimes committed by civilians, which in any case, correspond to civilian courts of law. (crimes under articles 284 and 47, offenses or defamation, orally or in writing or by any other means against the Armed Forces, its units or institutions or members. This also includes police in crimes involving threats that are punished under articles 296 and 297 of the Criminal Code.)

Despite the explicit exception in crimes committed by civilians, Mapuches have been charged under the Military Justice Code, which calls for a more rigorous proceeding and a higher penalty. Military judges belong to Military Tribunals, comprised of the Martial Courts, the prosecutors, and tribunals of each branch of the Armed Forces, during time of peace. All Naval, Army and Air Force bases have tribunals. Military jurisdiction is exercised by the Commanders in Chief, the Joint Chief of Staff, and may be high ranking military officials. (articles 14, 15 and 16 of the Military Justice Code)

The Military Justice Code also establishes the office of Prosecutor, known as Auditor. The next appeals instance are the Martial Courts, comprised of two judges of the Santiago Court of Appeals, the Auditors of the Air Force, Carabinero Police, the Army Justice Colonel and in Valparaiso the Naval Auditor General and a Navy officer. Only the Prosecutors are required to have a law degree.

This Mission learned that the individuals charged in the aggravated homicides of Alex Lemun and Matias Catrileo, were tried in a military court and released. We have also received numerous denunciations of human rights violations committed by police during search and seizure raids, repression against Mapuche events and demonstrations, such as injuries, rapes, abuse of authority, torture, illegal deprivation of freedom, falsification of public instrument, false testimonies, racism, damages, robbery, trespassing. This suggests the prevalence of impunity in regards to the human rights of the victims.

Due Process. Political Prisoners. Antiterrorist laws.

Anti Terrorist Law

Anti Terrorist Law 18.314 inscribes a vague penal intention to "spread fear" or to "force officials to make certain decisions." It also has contains ambiguities regarding the methods employed and who the alleged victims are, and includes actions against property. It calls for severe punishment and restrictions. It exceeds the bounds of what international law considers terrorist crimes, understood as serious attacks against human rights.

Article 16 permits the use of unidentified witnesses. Lawyers and officials the Mission interviewed indicated that in every case, this law has been invoked against individuals who have not committed any kind of terrorist action, in the common usage of the term. The sanction has only been used against social activists, regardless of whether they may have committed any other crime. The law increases the punishment and restricts due process as well as prisoner benefits such as the possibility of a presidential pardon.

Law 19055, enacted as a de facto law during the military government of Pinochet, amends the Constitution in articles 9, 19 N 7, last clause and last clause of article 60. The law impedes the president from exercising discretionary power to grand a pardon and for Congress to grant a pardon requires a special quorum, for people convicted for acts of terrorism. It also states that bail for defendants charged with such crimes must be set higher and requires the unanimous approval from the Tribunal Superior.

Law 18.825, of the same authoritarian origins, incorporates in Article 9 of the Constitution, the prohibition against persons convicted under these law from serving in public office, teaching, communications or in political, neighborhood, professional, or student organizations during 15 years. The text of Article 19 of the Constitution that incorporates this de facto regulation can be used to prevent and uproot any political party in a community in conflict.

Court cases

After studying a number of cases, this Mission finds: The interpretation of a statutory crime as "terrorist" is forced and contrived. Sentences make reference to actions that were not the subject of the trial. The conduct under judgment is framed in the context of a set of other actions that lack a specific author and are not issues in the proceeding. This suggests a presumption of an action, without specific criminal offense, with the intent of spreading fear in the population or part of the population, and to compel officials to make decisions. It allows the use of unidentified, concealed and even paid witnesses, frequently the only element of proof to accredit the crime, and the basis for most convictions under these laws.

In the Poluco Pidenco witnesses were allowed to change their sworn statements and were given photos prior to the identification proceedings. In addition to sentences of up to 10 years and a day and the payment of $424.964.798 (approximately US$921,000) in damages, defendants were prohibited from holding public or political positions, as set forth in Law 18.825, exceeding the maximum punishment of 15 years as set forth in the law.

Therefore, these defendants are prevented for the rest of their lives from excercising political and social rights such as political participation, leadership positions in community, student, business or professional organizations, teaching or communications. In practice it amounts to a civil death.

In July 2003 the Supreme Court of Chile overturned a ruling that had acquitted Lonkos Pascual Pichun and Aniceto Norin and proceeded to charge another legal action against them, in which they ended up with convictions for the crime of arson under the Anti Terrorist Law. One of the property owners of the plantations burned was Agriculture Minister and a member of the Constitutional Tribunal. Also, in the Poluco Pidenco case, the Court removed a judge who had refused to invoke the Anti Terrorist law, and had ordered that the identity of protected witnesses be revealed.

Both the Anti Terrorist Law as well as the manner in which trials have proceeded againt Mapuche community members constitute a violation of due process principles, including all judicial guarantees protected by the American Convention of Human Rights.

We observe a clear infringement of the right to justice, the right to equality under the law and no discrimination. Such protections do not permit making any arbitrary differentiation between parties and procedural equality. These principles are absent in the trials against Mapuche that are conducted with such a weight against them that procedural equality that should make no distinction for race, sex, ethnic origin or religion is violated.

In addition the right to speedy trial is violated by investigations that last more than a year, while defendants are held in pretrial detention, violating the presumption of innocence and right to an effective and speedy recourse that upholds rights enshrined by the American Convention. The right to defense as an element of due process is dramatically violated with public defenders who formally satisfy procedural requirements, but are government employees in a larger conflict in which the State, as plaintiff, is a party to the case.

Unified Administrative Regulations on Prison Conditions

This Mission has verified that implementation of sentences and prison conditions are regulated by a dispersed body lacking a unified criteria and principles, which hinders access. And Chile does not have a specific tribunal that supervises this issue. Court decisions regarding prison benefits, prison conditions, and implementation of sentence are resolved by a Technical Committee, an administrative agency, under the National Prison Guard office. Its rulings cannot be appealed in ordinary court. To compensate for this deficiency, individuals exercise the Constitutional Protection Motion, a mechanism Mapuche prisoners have not used for lack of adequate defense.

Access to Justice
In the majority of interviews we conducted, a recurrent grievance of Mapuches was the lack of legal assistance. This need includes both legal representation of victims of crimes or human rights violations, as well as legal counsel for communities on environmental and civil rights or administrative remedies. A legal defense office has assisted Mapuche defendants who criticize its inefficiency and its incapacity to ably represent the interests and rights of the Mapuche people.

The Judicial Assistance Corporation, a government legal aid agency, and a similar service under CONADI also fail to meet the particular defense needs of Mapuches, according to the communities the Mission met.

Defendants or persons accused in the Mapuche conflict with whom the Mission met, with few exceptions, seriously question the performance of public defenders assigned to these cases. The procedural situation of Roberto Painemil and Hector LLaitul are just two examples of this mistrust. From the Mapuche perspective, both the public defender and the CONADI legal counsel are employees of the same government that has criminalized their grievances and violated their territorial rights. The lack of access to justice has made the Mapuche community feel it is not subject to the constitutional state.

Recovery of Ancestral Lands
The expropriation of their territory is historically the most serious problem for the Mapuche people. This Mission heard from the majority of communities the phrase "without land there is no culture." For this culture, Mapu (land) represents the origins, the place of belonging to which they are connected through the lineage of their ancestors. It also means that environment is the source of means of survival. But its significance does not end here.

The concept of territory is fundamentally political, the basis of institutional organization and collective identity. Transcending the mere productive concept of land, it is the foundation of cultural survival and persistence of its cosmology. The long process of depriving Mapuches of lands began in the 19th century with the military invasion by the Chilean government, that forcibly divided their land and sold it to private property owners.

Communities were reduced to 5 percent of their territory, granted by what were called deed de Merced, over small fragments of the original territory. This original territory is what Mapuches call "ancestral or ancient lands," the object of their demands today.

During the government of Salvador Allende the Agrarian Reform was deepened. The Agrarian Reform Corporation (CORA) was the agency that administered this process, with active participation of the Mapuche community that began to recover rights over part of their ancestral territory. The military coup headed by Pinochet reversed the process, taking land away from their again and creating a forestry plantation system that persists to our times.

Therefore, claims to recover Mapuche lands involve varied legal situations. Some lands are claimed on the basis of the Deeds de Merced and Ancestral Títulos recovered during agrarian reform, while other ancestral lands are claimed through land takeovers and public petitions.

Land purchase program initiated by democratic governments through the creation of the National Indigenous Development Corporation (Conadi, law 19.253) that provides for transfer of deeds of private lands but not recovery of ancestral lands, has been implemented very slowly and with insufficient funding allocations. Together with real estate speculation that raises the price of land, has impeded extending the program to all zones, resulting in frustration among the indigenous population. The high proportion of economic inequality, despite the lessening of poverty, affects indigenous peoples more than other Chileans.

Land owned by Mapuche is extremely limited and overexploited. Many communities are increasingly isolated within territories exploited by private companies, primarily large forestry plantations that are fenced in and protected by private security guards, creating difficulties in transiting through areas, harassment, and lack of access to forests. Chilean legislation states that water, topsoil, resources of the sea and lakes, as well as productive usage associated with these, are governed by an entirely separate regulatory system than land property. Thus, property and exploitation rights may be subject to (free) concessions at the discretion of the State.

Constitutional Reform. Convention 169.

No Chilean law explicitly recognizes indigenous peoples and their rights. At the time of our fact finding mission, Parliament was debating three bills that would grant constitutional recognition of indigenous peoples, a major indigenous demand that past presidential candidates have promised.

On March 17, 2008 the Senate Constitution Committee called a special session without the presence of major indigenous organizations and leaders. However, a few Lafkenche leaders who were able to get into the Senate chamber, argued that recognition ignores rights and the pre existence of indigenous peoples. They also point out that the proposal fails to recognize true rights, amounting to a superficial or folkloric recognition that is meaningless without political participation.

Leader Domingo Rain stated as follows to the Senate Committee:
"We, as Lafkenche Territorial Identity, in an assembly held September 1, 2 and 3 of 2006, passed a resolution that states we oppose constitutional recognition in a constitution imposed during dictatorship. However, in light of current developments or if there is a compelling reason for the State to create constitutional recognition of native peoples, a prerequisite is participation those of us who would be the affected parties or beneficiaries of that legislation."

After 18 years, Parliament finally approved Convention 169 of the OIT. However, government officials and representatives themselves fear Congress will add an interpretative clause that will diminish the effectiveness of the treaty.

The great challenge for Chilean society today consists of bringing national legislation in compliance with the standards and rights set by the Convention and the Universal Declaration of Rights of Indigenous Peoples. The contentious process of enacting constitutional recognition and evident mistrust aired during debate over Convention 169 ratification has generated frustration and wariness among indigenous peoples regarding the real effectiveness of such regulations.


Legitimacy of Mapuche Demands

At the United Nations and in international law in general, the right to self determination of indigenous people and their territory has gained broad recognition. The Declaration of Rights of Indigenous Peoples, recently approved by the UN General Assembly, is the most comprehensive recognition of these rights. Its first four articles affirm the condition of free and equal peoples, the right to free self determination for economic, social and cultural development. It also implies the right to autonomy or self government on these matters.

Article 1, paragraph 2 of the Convention of Civil and Political Rights states that indigenous peoples must have the freedom to use their natural resources and wealth, and under no circumstances can be deprived of means to maintain itself.

Multiple historic, legal and territorial factors validate Mapuche territorial demands.
Evidence also abounds regarding State incapacity to provide an institutional solution to a conflict whose origins can be traced directly to the occupation of indigenous territory. The strategy to criminalize the Mapuche movement as government policy and the lack of response from the constitutional state may lead to the aggravation of a conflict that has been badly approached.

The land restitution policies implemented by the governmental indigenous affairs agency CONADI are insufficiently funded, entail complex, bureaucratic procedures and have been influenced by special interests all of which subsequently deepened the conflict. It is important to note that Convention 169 calls upon governments to recognize the importance of land for indigenous cultures, with the concept of land including territory. It sets forth that indigenous peoples may not be moved from their land, except with consent, respect for the right to return to ancestral land, or receiving equivalent lands or compensation, according to the preference of the indigenous people.

The transfer of land between indigenous people must be respected and legal sanctions shall apply against unauthorized use and intrusion by others. The flawed legal framework of Law 19.253, the lack of constitutional recognition of their rights as a people, and the delay in ratifying Convention 169 situates Chile far from the standards established in the UN Declaration of Rights of Indigenous Peoples, the Convention on Civil and Political Rights, article 1, paragraph 2 and art. 27, and art 21 of the American Convention on Human Rights.

In this regard, the recently ratified Convention 169 and the need to bring Chilean legislation in compliance could bridge this legal gap and could be a new point of departure for dialogue as posed by the government. This mission wishes to point out that any restriction of the Convention is a violation of article 18 of the Vienna Treaty that establishes the obligation not to obstruct the objective and purpose of a treaty before it comes into effect.

. Destruction of the Environment and Megaprojects
National and multinational mega development projects have conflictive relations regarding preservation of Mapuche historical territory, intrinsically associated with Mapuche culture and life of Mapuche people. Public policy favors giant development projects, which frequently cause environmental damage, and restrict Mapuche access to natural resources, resulting in the fragmentation of its community fabric.

Such policies result in the violation of rights guaranteed by articles 24, 25, 26 and 29 of the Declaration of Rights of Indigenous Peoples and provisions of Convention 169 that protect natural resources on indigenous lands and call for consultation with native peoples before prospecting or exploiting those resources. Far from creating segregation as opponents allege, recognition of Mapuche territorial autonomy in these matters would guarantee sustainable development.

It is important to note that the effects on biological diversity not only harm the Mapuche people but also directly effect Chilean society as a whole. Since 1994 the State of Chile has been a signatory to the Convention on Biodiversity but has delayed bringing national law and policy in compliance. Chile has failed to implement the guidelines of Article 8j of the Convention on Biodiversity in regards to protection of traditional knowledge, nor has it implemented the Akwekon recommendations on sacred sites.

Antiterrorist Law and Persistence of Antidemocratic Institutions
Chile has never had terrorist attacks within its borders, yet since its creation during dictatorship the Antiterrorist Law has been used as a tool for political persecution. After 2002, it has been aimed primarily at the Mapuche conflict, a fact that seriously questions the existence of this law and requires amendment to exclude its application in property crimes.

The de facto law 18.314 decreed by the dictatorship consists of the vague penal classification of "causing fear" or "forcing governmental decision" that are open to discretionary interpretation or presumptions. Presumptions of guilt are contrary to guarantees set forth in Article 19 of the Constitution. Including crimes against property exceeds the framework of international law, specifically, as set forth in the Inter American Convention against Terrorism, articles 1 and 2, as well as Article 9 of the Constitution, provisions that define terrorist crimes as acts that violate human rights and attack democratic constitutional order.

Article 16 of the anti terrorist law permits the use of unidentified witnesses. This recourse violates the right to legitimate defense and produces the risk of non compliance with due process guarantees. It is included with no limitations for the use of such anonymous witnesses and the law does not even describe the serious circumstances that would justify this practice.

The practice violates Article 14 of the Convention on Civil and Political Rights and has evoked sharp criticism from international organizations. This fact finding Mission concludes that the Constitution of 1980, in light of amendments to laws 19055 and 18825, contains provisions that restrict political rights, due process guarantees, and personal freedom. These restrictions in and of themselves are questionable and have serious implications for the Mapuche conflict. The persistence of this legal void and other restrictions implanted by dictatorship is incompatible with a democratic society.

Militarized Territories. Police Repression. Undue Use of Force.

Police are permanently stationed, complemented by unidentified armed individuals at the entrance to private plantations. That agents of the State are employed as guards for private property has resulted in a situation that risks endangering basic rights such as life, physical safety, freedom of movement and personal security.

Within this context of infringement of rights, police conduct mass raids of Mapuche communities without court orders, with verbal and physical violence and clear racist undertones. Such unlawful search and seizure operations have caused destruction of property, and deeds that accredit historic rights over ancestral territory.

The situation Mapuches endure violates protections conferred in the Convention of Civil and Political Rights, as well as the Convention on Economic, Social and Cultural Rights, that Article 5 of the Chilean Constitution promises to uphold. In this regard, article 30 of the Declaration of Rights of Indigenous Peoples states:
1. Military operations shall not be conducted on indigenous land or territory, unless justified by a serious threat to public interests unless by agreement with the indigenous peoples, or if communities request police presence.
2. Governments shall conduct effective consultation with indigenous peoples regarding appropriate procedures before making use of their lands or territory for military activities.

Special Jurisdiction

Military tribunals are comprised of active duty armed forces officers, subject to the claim of military command, and are not required to have law training. Therefore, these courts have not the minimal independence required to guarantee a fair trial, and violate Article 14 of the Convention of Civil and Political Rights. Their excessive jurisdiction was condemned by the Inter American Human Rights Court in the Palamara Case, that calls on the Chilean government to modify the competence these tribunals exercise over civilians.

It is important to recall that the InterAmerican Court resolution said that military criminal jurisdiction must be limited to crimes committed by military personnel while on active duty. r "so that under no circumstances may a civilian be subject to military criminal court jurisdiction." When military judges try their peers, they tend to validate their actions, grant impunity, and fail to try serious human rights violations.

Access to Justice and Due Process
The Mapuche community complains of the difficulty in accessing private legal services, both due to lack of funds and lawyers who are afraid to take their cases. At the same time the public defenders are ineffective, as is evident in the procedural situation of Mapuche prisoners and the failure to question serious due process violations. This situation gravely infringes the right to legal defense, and consequently also affects due process, under Article 14 of the Convention of Civil and Political Rights and Article 8 of the American Convention of Human Rights.

Under Convention 169, national court systems must take into account the customs or common law rights of indigenous peoples, and establish procedures to resolve conflicts between both systems. Moreover, the treaty calls for consideration of indigenous customs in penal law, stating that social, economic and cultural characteristics must be weighed and alternatives to incarceration are preferable.

Indigenous rights must be protected and must have adequate defense, and measures must be taken to assure they understand the proceedings.

In terms of implementation of sentences, Chile must bring its legislation in line with the minimal regulations that protect inmates, adopted by the First United Nations Congress on Prevention of Crime and Treatment of Criminals, held in Geneva in 1955, and approved by the Economic and Social Council. This accords establishes that regulations must be applied in an impartial manner with no distinction for race, color, sex, language, religion, political opinion or any other opinion, national or social origin, wealth, birth or any other factor.

Mapuche Children
Institutional violence also affects children, as a consequence of political persecution of adult members of the community. In areas where the conflict has been more intense, even children are subjected to police violence and verbal abuse. This infringes rights in Articles 14, 16 and 19 of the Convention of Rights of Children.

As a consequence of exclusion, plunder, and discrimination of Mapuche communities, children do not receive intercultural and bilingual education, lack equal education opportunity, quality of life, and health services, implying Chilean non compliance with international norms on these issues, as set for in Articles 20, 24, and 27 of the Convention of Rights of Children.

The dramatic situation that affects Mapuche children was denounced before the Commission Inter American Human Rights Commission of the OAS and other international human rights organizations in March 2005, based on the Report drafted by the Araucania Norte Health Service. The report represents the first recognition by a governmental agency (Araucania Norte is a public clinic) of the effects of daily violence on the lives of hundreds of Mapuche families as a result of police harassment. The report states:
"Police have threatened children, spanked them against the floor and walls, beating them with firearms, and have forced them to observe dramatic scenes in which their parents, guardians or other relatives are physically and psychologically assaulted."

The Coordinating Board of Mapuche Organizations and Territorial Identity has provided us with that report, in which the Araucania Norte Health Service emphasizes the violation of the rights of children of Cacique Jose Guinon Community in the municipality of Ercilla.

Ethnocentrism. Methods of Cooptation and Racism
Indigenous policy as reflected in various governmental programs have not resulted in substantial positive changed in living conditions of Mapuches. On the contrary, government policy has provoked and deepened conflict. Actions by various governmental agencies have prevented the creation of instances for legitimate and effective community participation, rather, they have introduced mechanisms that manipulate and co-opt Mapuche organizations. These methods have been used to divide the Mapuche people and their organizations, by offering charity especially to the most politically and economically vulnerable communities.

Interviewees have described the methods of co-optation. Mapuches who assimilate and abandon their demands are rewarded with economic aid, while individuals who fight for their rights are punished. Persecution is meant to destroy a way of life, cosmology, community organizations, family and social, political structures. Public policy in practice limit participation to its own definition, with the goal of keeping the most active groups under control.

Convention 169 recognizes as part of collective rights, good faith consultation of indigenous peoples regarding legislation that affects them and the obligation of the State to establish means for participation in agencies and institutions that carry out public policy that affects them.

On other matters, the communication media exhibit a biased focus in regards to conflicts that affect the Mapuche communities, and the use of racist language has been observed.

Constitutional Recognition of Indigenous Rights
In light of the economic, social and cultural rights international law demands, the recognition Chile owes the Mapuche nation must encompass the right to self determination. The major argument of opponents to this concept is fear of jeopardizing the unity of the Chilean State. This position proposes separating the concept of people as international law understands it, due to its relation to the idea of self determination.

However, that argument is unjustified, as the Declaration of Rights of the Indigenous Peoples goes further to establish in Article 46, clause 1 the following:
"Nothing posed in this
Declaration shall be interpreted in the sense of conferring to a State, people, group or individual the right to participate in activities contrary to the United Nations Charter or that authorizes or fosters the rupture or limitation, either partially or completely of the territorial integrity or political unity of sovereign and independent States."

In addition, recognition of indigenous peoples must have the approval of indigenous organizations and must include compensation for damages and property rights, usage and management of natural resources existing in indigenous territory, as a component of collective and individual rights set forth by the international treaty cited above. Autonomy does not signify leaving the State, rather, it refers to a form of government that seeks to inclusion of native peoples with full exercise of citizenship rights.

The constitutional reform proposal on recognition of indigenous peoples is insufficient and has been drafted without participation of indigenous representatives, who for this reason, consider it illegitimate.

Bulletin 552207 to Parliament by the President of Chile states, "The Chilean nation is multicultural. The State recognizes the existence of indigenous peoples who inhabit its territory and the rights of indigenous, peoples, communities, and individuals to preserve, develop, and strengthen their identity, languages, institutions, and social and cultural traditions."

It amends Article 19 N 24 by adding a new clause n 10, which thus becomes N 11: "The law must protect the lands and water rights of indigenous individuals and communities."

Indigenous leaders take issue with this proposal because it fails to recognize the existence of indigenous peoples prior to the creation of the State of Chile and their territorial and political rights, as well as nearly all collective rights outlined in Convention 169 and the Declaration of Indigenous Peoples.

In countries that have introduced this concept, integration of the diverse groups that inhabit a same territory has been strengthened. Differences are preserved and plurality is recognized in a new form of mutual coexistence.


On the basis of the above conclusions, this fact finding Mission recommends:

1) Foster constitutional reform to incorporate rights of native peoples, in compliance with international law on this subject.

2) Comply with provisions of Convention 169 without amendments that restrict its application or obstruct its objectives, as provided in Article 18 of the Treaty of Vienna.

3) Foster revision of the legislative and institutional framework that governs indigenous peoples to ensure compliance with Convention N169, in particular law that regulates natural resources.

4) Bring domestic law in compliance with the United Nations Declaration on Indigenous Peoples Rights.

5) Promote amendment of Law 19253, in conformity with art. 27 of the Convention on Civil and Political Rights.

6) Ensure dissemination of Convention 169 among governmental officials at all levels, as well as indigenous peoples.

7) Implement, with indigenous community consent, an intense, effective ancestral land recovery program. The regulatory framework and the manner public policy are put into practice should guarantee Mapuche privileged access to their natural resources, above free enterprise interests, as set forth in articles 1 and 27 of the Convention on Civil and Political Rights.

8) Consult with Mapuche communities and organizations prior to granting concessions for economic exploitation of land and all development projects within their territory, but without circumventing rights protected by Convention 169.

9) Advance amendment of Law 18253, adopting a more precise definition of terrorist crimes, in compliance with the Inter American Convention against Terrorism, article 14 of the Convention and article 19 pf the Chilean Constitution, to prevent its utilization as a tool for political persecution.

10) Promote the elimination of restrictions to political rights, authority, and constitutional guarantees permitted in law 18.825 and 19055.

11) Systematic under a single regulatory body, the set of laws related to implementation of sentence, and create a specific jurisdiction over due process guarantees..

12) Limit military jurisdiction to crimes committed by active duty military personnel, so that no civilian under no circumstances can be brought to trial in military courts.

13) Provide the means to ensure competent legal defense with adequate understanding of indigenous culture, to comply with the standards of international law that recognize rights of indigenous peoples, including the assistance of bilingual interpreters knowledgeable in all legal procedures.

14) Ensure respect for indigenous customs, culture and cosmology in every judicial or administrative case that affects indigenous people.

15) Initiate a demilitarization of the territory in conflict, taking effective steps to end abuses, harassment, surveillance, and police violence, especially in regards to children, the elderly and the most vulnerable members of indigenous society.

16) Establish a set of guidelines for police during demonstrations and protest actions, with adequate authority, and special training.

17) Allocate adequate budget to the Bilingual Intercultural Program for access throughout Mapuche areas. Hold ongoing consultation with the community for the purpose of achieving consensus and to evaluate program results.

18) Implement strategies for promoting traditional indigenous medicine, prioritizing the preservation of zones where medicinal plants are gathered and traditional knowledge.

19) Take measure to create a national human rights defense and protection agency (Peoples Defender) as set forth in the Principles of Paris, with offices throughout the country to ensure access to all the Chilean population, and, particularly, the most vulnerable groups.

20) Ensure Mapuche communities access to mass communications media, promoting broad and balanced coverage, free of racial prejudice, of the social conflicts and situation of the Mapuche people.

6.1. Universal Declaration of Human Rights. Adopted and deceed by the United Nations General Assembly, Resolution 217 A (III),
6.2. UN International Convenant on Civil and Political Rights. December 16, 1966.
6.3. American Declaration of Rights and Duties of Man, approved by the Ninth International American Congress, Bogota, Colombia, 1948
6.4. American Convention on Human Rights. Subscribed in San Jose, Costa Rica November 22, 1969, at the Interamerican Specialized Conference on Human Rights
6.5. Set of Principles for Protection of all Persons Under any Form of Arrest or Imprisonment.
6.6 UN Convention on Biodiversity 1992.
6.7. Convention 169 of the OIT. 1966
6.8. International Convention on the Elimination of all Forms of Racial Discrimination. UN. New York, 1974
6.9. International Consonant on Economic, Social and Cultural Rights. A/RES/2200 A (X XI), December 16, 1966
6.10. Convention 107 OIT on indigenous populations and tribes. 1957.
6.11 UN Declaration on the rights of indigenous peoples, September 2007.
6.12. International Covenant Rights of Children






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