December 8, 2011 | Posted by: Laura Seelau & Ryan Seelau
Last Wednesday, Nov. 30, four Mapuche individuals filed a claim against the Chilean government for violating their human rights. The claim was turned into the Inter-American Commission of Human Rights, which is a part of the Organization of American States (OAS) – an international body similar to the United Nations, but only for the Americas. While there is a lot of legal complexity with the case, several aspects make it ideal to explain a little bit more about how international legal systems function and how they can be used to promote human rights.
First, a little (simplified) background about the case. In 2008, four Mapuche men – Héctor Llaitul, Ramón Llanquileo, José Huenuche and Jonathan Huillical – were charged with various crimes by the Chilean government. Some of these charges were regular criminal charges, but others fell under Chile’s Antiterrorism Law. Because some of the charges were related to alleged acts of terrorism, the four Mapuche men were imprisoned and tried differently than if there were no accusations of terrorist activity.
One of the most important differences occurred at their trial. Under Chile’s Antiterrorism Law, the prosecution is permitted to use “anonymous witnesses” which are people who testify, but whose identity is kept secret from the defendants. In fact, the defendants never see the witnesses who are testifying against them. Anonymous witnesses were used in the trial of the Mapuche men.
Mapuche defendants.
Ultimately, the Chilean courts found the men guilty of non-terrorist crimes. All of the terrorist charges failed. When this happened, the Mapuche prisoners claimed that they were entitled to a new trial for the non-terrorist charges – one without the use of anonymous witnesses. In essence, the defendants argued that their conviction quite possibly came from anonymous witnesses who never should have been used in a trial for non-terrorist crimes. The Chilean Supreme Court rejected this argument last June.
In response, the Mapuche men filed a petition with the OAS. They are arguing that their human rights were violated when they were denied a new trial. Specifically, they suggest that their right to due process – that is, a fair trial – was violated by the Chilean government and they want the OAS to condemn Chile’s actions among other things.
And that brings us to a major limitation on how international law works. International law tends to resolve issues by condemning actions and recommending procedures to improve the situation. This is very different than how law works in Chile or any other country. If you break the law in Chile, the government can arrest you and, ultimately, can fine you or even put you in prison. But for the most part, international law relies on political pressure to get governments to change a situation. No one is going to arrest or likely even fine the Chilean government in a case like this – although the OAS may decide that Chile should pay the Mapuche prisoners to compensate for having their rights violated.
In this sense, international law offers more options than traditional law because the OAS, if they find in favor of the Mapuche men, can offer any type of condemnation or recommendation that they want. They can recommend that Chile re-write its law, or that Chile pay the prisoners some sort of compensation, or that Chile re-design its trial process. So, on the one hand, international law provides many more opportunities to change government systems. But on the other hand, there is significantly less force behind those actions. Since there is no risk that Chilean government officials will go to prison, and since the OAS can’t force Chile to do anything, at the end of the day, the decision to act is up to Chile in cases like this one.
But, more often than not, countries do have an interest in complying with international law. One reason is because most countries like to hold themselves out as respecting human rights and as wanting to appear genuine in their desire to comply with international standards. Another reason is that failing to comply can result in other countries using other means – for instance, trade embargoes – to pressure a country into defending human rights. Thus, although change may be slow, it does happen.
As far as the Mapuche case is concerned, only time will tell how effective their claim will be. The OAS first has to decide to take the case, and if they do, a lengthy process will likely begin to determine what course of action can best resolve the conflict. That said, as little as 65 years ago the Mapuche prisoners would have had no additional recourse whatsoever. So, while international law is far from perfect, it does offer the possibility and hope that any case might be the one that is the next big victory for human rights. And whether those rights arise from the situation of indigenous peoples or not, that is a good thing for everyone.
Source: I Love Chile