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
Effects of Mega
Court Jurisdiction over Civilians
Due Process, Political Prisoners,
and AntiTerrorism Law
Access to Justice
Recovery of Ancestral
of Mapuche Demands
Destruction of Environment
Access to Justice and Due
Recognition of Indigenous Rights
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
"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
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
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
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.
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
-This Mission was shown search orders which were totally blank
forms that police officers modified to suit their social control
- 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
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.
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
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.
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
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.
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
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.
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.
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.
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
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.
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
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.
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.
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
Indigenous rights must be protected and must have adequate
defense, and measures must be taken to assure they understand
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.
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
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
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
"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
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
Ethnocentrism. Methods of Cooptation
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.
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
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
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
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
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
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
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
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
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
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,
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.
6.11 UN Declaration on the rights of indigenous peoples, September
6.12. International Covenant Rights of Children