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Chile
Practice Relating to Rule 159. Amnesty
Section B. Prohibition on amnesty for war crimes
In the Saavedra case in 1993 concerning the application of Chile’s 1978 Decree-Law on Amnesty to serious violations of the 1949 Geneva Conventions, the Supreme Court of Chile ruled that:
The appellant claims in the writ of appeal that the ruling appealed from is contrary to the Conventions of Geneva of 1949, because the decree-law of amnesty by definition does not apply to persons accused of serious infractions of the aforementioned Conventions. In this connection, it should be stated that Articles 2 and 3 common to the four Conventions establish the scope of their application to international conflicts and armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties. Concerning armed conflicts not of an international character, it is the opinion of this Court that disturbances or other situations of internal order, usually accompanied by terrorist or unlawful actions such as the one in question, do not constitute conflicts governed by what is known as the Law of Geneva, and the appellant’s argument in this case is invalid. The facts of this case are not congruent with the characteristics of the situations of internal war referred to by Article 3 common to the said Conventions. 
Chile, Supreme Court, Saavedra case, Judgment, 19 November 1993; see also Supreme Court, Bascuñán case, Judgment, 24 August 1990, where it is stated: “It can be concluded that the Geneva Conventions are not applicable to the unlawful acts investigated in the case giving rise to the appeal; and so although these acts did take place during the state of siege covered by the amnesty, they have not been shown to be the consequence or result of a state of internal conflict of the nature described [in the 1949 Geneva Conventions]. Consequently, the provisions of the aforementioned Conventions are unaffected by the legal precept that granted the amnesty of 1978.”
In the Videla case in 1994 concerning the abduction, torture and murder of a Chilean woman in 1974, Chile’s Appeal Court of Santiago held that the acts charged constituted grave breaches under Article 147 of the 1949 Geneva Convention IV, which it found applicable, and that:
Such offences as constitute grave breaches of the Convention are … unamenable to amnesty; … [it is not] appropriate to apply amnesty as a way of extinguishing criminal liability. Any attempt by a State to tamper with the criminality of and consequent liability for acts which infringe the laws of war and the rights of persons in wartime is beyond the State’s competence while it is a Party to the Geneva Conventions on humanitarian law. 
Chile, Appeal Court of Santiago (Third Criminal Chamber), Videla case, Judgment, 26 September 1994.
In its judgment in the María Barros Perelman case in 2005, Chile’s Court of Appeal of Santiago stated:
… thus, a … norm of general international law prevails and determines that the prohibition of criminal action under domestic law with respect to crimes against humanity is null and void because the non-applicability of statutory limitations to crimes against humanity is an imperative norm of general international law, which has … been incorporated into constitutional law by way of international treaties [such as the 1949 Geneva Conventions] and [prior to this incorporation] was binding as a general principle of international human rights law.
Moreover, the previously described norm of international law has tacitly derogated the provision on amnesties in the [1977] Additional Protocol II to the Geneva Conventions. [The Additional Protocol II] was not in force at the time when the alleged acts were committed and therefore does not apply to the present case. 
Chile, Court of Appeal of Santiago, Fifth Chamber, María Barros Perelman case, Case No. 24.471-2005, Judgment, 5 September 2009, § 19.
In its judgment in the Episode of San Javier case in 2006, Chile’s Court of Appeals of Santiago stated:
Chile assumed the responsibility of safeguarding the safety of persons who may have been participants in armed conflicts on its territory, in particular if they were detained. Measures aimed at providing protection from offences committed against particular persons or at achieving impunity for oneself or another State remain prohibited. [By ratifying the 1949 Geneva Conventions,] Chile waived the right to exonerate itself or any other State from its responsibility for [violations of the Geneva Conventions]. 
Chile, Court of Appeal of Santiago, Eighth Chamber, Episode of San Javier case, Case No. 2.182-1998, Judgment, 27 July 2007, § 13; see also § 12.
The Court also stated:
By virtue of its sovereignty, a nation may amnesty criminal offences committed within its jurisdiction. However, the state may not [adopt such amnesties] if [it is bound by] an international treaty which limits its discretion in this respect. There is no doubt that the amnesty [decree examined in the present case] amounts to an act of self-exoneration of criminal responsibility, not only because it was imposed after the commission of the acts which the amnesty is supposed to cover, but also because the amnesty was established by those in power and with regard to events directly related to the exercise of this power, thus aiming at securing the impunity of those responsible who acted under the protection [of those in power]. In sum, [the amnesty] … is prohibited by article 148 of the [1949] Geneva Convention IV, and therefore does not apply to the present case. 
Chile, Court of Appeal of Santiago, Eighth Chamber, Episode of San Javier case, Case No. 2.182-1998, Judgment, 27 July 2007, § 19; see also § 21.
The Court further stated:
This prohibition of self-exoneration does not only concern explicit situations such as … amnesties, but also concerns the temporary proscription of pre-existing institutions, such as the prohibition of criminal action, … devised in order to apply in situations of institutional normality, during social peace, rather than in situations in which the legal order is characterized be infringements and exceptionality. 
Chile, Court of Appeal of Santiago, Eighth Chamber, Episode of San Javier case, Case No. 2.182-1998, Judgment, 27 July 2007, § 22.
In its decision on annulment in the Víctor Raúl Pinto case in 2007, Chile’s Supreme Court stated:
[T]aking into account that international agreements must be complied with in good faith, by signing and ratifying said [1949 Geneva] Conventions, Chile assumed the responsibility of safeguarding the safety of persons who may have been participants in armed conflicts on its territory, in particular if they were detained. Measures aimed at providing protection for offences committed against particular persons or at achieving impunity for oneself or another State remain prohibited. [By ratifying the Geneva Conventions,] Chile waived the right to exonerate itself or any other State from its responsibility for [violations of the Geneva Conventions]. 
Chile, Supreme Court, Criminal Law Chamber, Víctor Raúl Pinto case, Case No. 3125-04, Decision on Annulment, 13 March 2007, § 17.
The Supreme Court also stated:
[A]mnesties may not be used in cases of war crimes committed under the protection of … official agents or State officials … [if these war crimes were] subject to severe penalties under domestic law and international law when they were committed. Thus, national law is used as an instrument for [addressing] non-compliance and violations of international treaties in force and of general principles of the law of nations. … [W]ith the priority given to the rights contained in treaties over the amnesty law, the latter becomes inapplicable due to the greater force and resilience of the Geneva Conventions, the application of which is given preference. Moreover, the International Committee of the Red Cross has stated that this cannot be interpreted as supporting amnesties that “violate humanitarian law, but rather that at the end of the war they must facilitate the liberation of those who were detained or punished for merely participating in the conflict, not for those who have breached international humanitarian law” (Report 1/99, Lucio Parada Cea et al., El Salvador, 27 January 1999, paragraphs 114 and 115). 
Chile, Supreme Court, Criminal Law Chamber, Víctor Raúl Pinto case, Case No. 3125-04, Decision on Annulment, 13 March 2007, § 21.
The Supreme Court further stated:
Following the above line of reasoning and referring to international humanitarian law, the rules of international humanitarian law could never be applied if the competence to the State party to erase war crimes systematically committed by its own agents through amnesties were to be recognized. 
Chile, Supreme Court, Criminal Law Chamber, Víctor Raúl Pinto case, Case No. 3125-04, Decision on Annulment, 13 March 2007, § 22.
The Supreme Court also stated:
The so-called amnesty law can clearly be defined as an act of exonerating oneself from criminal responsibility for serious human rights violations since it was drafted after these acts took place and by those in power during and after the acts, thereby guaranteeing the impunity of those responsible for these acts. [The amnesty law therefore] violates Article 148 of [the 1949] Geneva Convention IV. 
Chile, Supreme Court, Criminal Law Chamber, Víctor Raúl Pinto case, Case No. 3125-04, Decision on Annulment, 13 March 2007, § 24.
The Supreme Court further stated:
[A]mong the characteristics that distinguish … [war crimes], the most notable include the non-applicability of statutes of limitation, the fact that it is impossible to grant amnesty for them or to establish exculpatory circumstances that impede the investigation and punishment of those responsible for grave breaches of fundamental rights such as torture, summary, extralegal or arbitrary execution and enforced disappearance, all of which are prohibited under international human rights law. 
Chile, Supreme Court, Criminal Law Chamber, Víctor Raúl Pinto case, Case No. 3125-04, Decision on Annulment, 13 March 2007, § 30.