PART ONE
Chapter Two

Norms, Concepts, and Criteria on Which
the Commission's Conclusions Have Been Based

The previous chapter indicates how the Commission worked in a material sense, that is, how it was organized and what tasks it carried out in order to meet objectives. The Commission also believes it should explain the norms, concepts, and criteria that provided the framework for its deliberations and conclusions. Given the seriousness of what is presented in this report, readers must be fully informed about its moral and theoretical foundations.

1. NORMS
   
   
   1. HUMAN RIGHTS
      
      The decree creating the Commission on Truth and Reconciliation stated that its purpose should be to contribute to the overall clarification of the truth about the most serious violations of human rights committed in recent years. The decree defines those "most serious violations" to be situations of those persons who disappeared after arrest, who were executed, or who were tortured to death, in which the moral responsibility of the state is compromised by acts of its agents or persons in their service, as well as kidnappings and attempts on the life of persons committed by individuals for political reasons.
      
      The Commission wishes to make the following observation about the meaning of human rights and how the most serious violations are to be defined:
      
      
      1. The norms set forth in the Universal Declaration of Human Rights and other relevant international documents proclaim rights which were already substantially part of Chile's legislation and its best civic traditions. Nevertheless, the expression "human rights," which is now consecrated by its wide use, appropriately emphasizes that such rights are inherent in every person and also points to the universal acceptance they enjoy. Moreover, current international norms on human rights make it clear that previously our nation's legislation was defective in a number of ways and was therefore unable to effectively protect the rights it proclaimed.
         
         
      2. The relevant international norms encompass a wide range of civil, political, economic, social, and cultural rights. Although this report deals only with the violations of some of these rights, the importance of other rights is by no means thereby denied. It can be said, nonetheless, that the major values which human rights norms seek to defend are respect for life, the dignity and the physical and psychological integrity of persons, as well as the ideals of freedom, tolerance, respect for diversity, and mutual support among all human beings. During Chile's recent experience, very serious excesses of intolerance and division occurred among Chileans; the most extreme manifestations of those excesses were killing and torture. Hence for the purposes of this report, and with no intention of offering a universally valid judgement applicable to other situations, it is reasonable to characterize as the most serious human rights violations those that led to the death of persons.
         
         
      3. The Commission has studied all denunciations of violations of this nature case by case and has come to a determination concerning each.
         
         
      Torture also must be regarded as one of the most serious of such violations; this report also considers the practice of torture during the period under consideration as indeed it was obliged to do. Nevertheless, it does not make a case by case determination on those who were victims of torture unless such torture led to death, or unless the fact that torture occurred has been important for coming to a judgement on aspects essential to a case (for example to establish irregularities in war tribunal proceedings or to note the unlikelihood that prisoners were in fact trying to escape as claimed). The Commission's founding decree formally restricts the consideration of individual torture cases to such instances. The Commission itself, however, understood that this limitation had been imposed for a substantive reason: to have carried out a detailed investigation of individual complaints of torture-which in all likelihood would have been very numerous-would have inevitably delayed this report, and the country had a right to expect it to be concluded quickly. Moreover, given the time that had elapsed and the circumstances under which torture had been applied, it would have been virtually impossible to come to a conscientious conclusion in a vast number of specific cases. Such obstacles are not a factor, however, if the aim is to come to an overall assessment of the practice of torture. Indeed, the Commission encountered abundant and convincing evidence on the characteristics and extension of this most serious practice.
      
      The Commission also sought and received confirmation from the president that it should make a case by case examination of politically motivated assassination attempts and kidnappings committed by private citizens only when such actions ended in the death of the intended victims. This decision did not preclude making overall observations on such terrorist practices and on other similar unlawful actions committed by private citizens.
      
      
   2. LAWS OF WAR OR INTERNATIONAL HUMANITARIAN LAW
      
      The norms of humane behavior governing armed conflict (also known as the laws of war or international humanitarian law) are likewise part of Chilean legislation and tradition. Specifically, Chile has ratified the 1949 Geneva Conventions.
      
      The norms of international humanitarian law do not consider the question of when it is lawful to resort to war or armed rebellion. Traditionally, it has been specialists in social and political ethics who have dealt with such issues. According to the most well-established positions, turning to war is justified when what is at stake is the legitimate defense of the nation or its allies, or of other similarly important values, or in response to unjust aggression; armed rebellion against a regime is justified only as a last resort in order to end a tyranny and provided that other important requirements are met.
      
      To apply these moral principles to specific situations entails interpreting social and political circumstances, about which people's opinions are often very deeply divided.
      
      The Commission has refrained from taking a stand on whether the use of force on September 11, 1973, and immediately thereafter was legitimate, both by those who sought to overthrow the government of President Salvador Allende and by those who sought to defend it. In addition to the obvious difficulties that would have been involved had this point been debated, the Commission did not believe it to be necessary for its assigned purposes. Indeed, whether having recourse to weapons was justified or not, there are clear norms forbidding certain kinds of behavior in the waging of hostilities, both in international and internal armed conflicts. Among these norms are those that prohibit killing or torturing prisoners and those that establish fair trial standards for those charged with a criminal offense, however exceptional the character of the trial might be.
      
      The main sources of those norms are international humanitarian law, the essence of which is part of Chilean law, as has been noted. Such norms are also clearly part of the universal ethical consciousness and the traditions of military honor.
      
      Certainly, these and other norms are often violated in practice and certain factors may make such violations more likely. Such transgressions, however, are never justified, as is made clear further on.
      
      
   3. OTHER NORMS GOVERNING THE USE OF FORCE
      
      Besides the norms mentioned above, the Commission has kept in mind the general norms governing the use of force:
      
      
      • The state, through its bodies and officials duly empowered by the constitution and by law, enjoys a monopoly over legitimate force, namely that which can be rationally used to enforce the laws and maintain public order. The use of force should be justified and in proportion to the end being legitimately pursued; otherwise, it may be deemed unjustified or excessive.
        
        
      • Private citizens may use force in legitimate self-defense or to defend others through means reasonably aimed at repelling imminent attack, as well as in exceptional circumstances such as a citizen's arrest.
        
        
   4. WHO IS GUILTY OF VIOLATING HUMAN RIGHTS?
      
      When committed by a government official, the very same illicit act can be defined in different terms without falling into contradiction. For example, if in the context of an internal armed conflict, a soldier or police officer tortures a prisoner, the act can be termed a crime, because the law declares it to be such. It can also be termed a human rights violation because it specifically violates the norms of various human rights agreements and conventions. Finally, it can be termed a violation of international humanitarian law, which expressly prohibits such behavior in situations of armed conflict.
      
      If an individual involved in guerrilla warfare against a government commits the same act against a member of the military or police who has been captured or kidnapped, it can be termed a crime and a violation of the norms of international humanitarian law. But may such an act be termed a human rights violation as well?
      
      Although this issue would seem to be purely academic, it has been the object of a good deal of controversy. One reason that it is so controversial is that the term "human rights violation" has taken on a symbolic power far beyond its technical meaning both in our country and in the concert of nations. Hence, while some take one side or other of the issue without any ulterior motive, others do so for political reasons. Since this matter has also been discussed in Chile, the Commission is bound to explain what the controversy is about and state its own position.
      
      Until recently, the traditional position of the most respected human rights organizations was that such rights norms primarily govern relations between the state and citizens, and that it is therefore inappropriate to call actions committed by private citizens "human rights violations." Today there is a tendency to move away from this position, although many human rights organizations still maintain it.
      
      The traditional grounds for this position are as follows. The Universal Declaration of Human Rights was proclaimed and human rights covenants were signed and ratified by states. Certainly, the actions of private citizens may also affect human life or other important values, but such attacks can appropriately be called crimes, acts of terrorism, or something else, depending on the case. To designate them "human rights violations" diverts attention away from how serious it is when the state, which wields public force and is charged with protecting the rights of citizens, uses that force to violate those rights. If private citizens commit crimes, even for political motives or pretexts, the state has at its disposal the judicial system, the police, the press, and public opinion, that is, an array of powerful institutions and means at hand for denouncing, investigating, and punishing such crimes. When the state itself uses such power to assault the rights of its citizens, they are rendered utterly defenseless.
      
      Those who argue that it is preferable to speak of human rights violations only in connection with actions by the state and its agents also point out that various governments from a wide range of countries often designate violent actions committed by those in opposition "human rights violations" as though doing so might justify their own abuses, which they present as necessary for responding to such actions.
      
      Granting the power of such arguments, those who hold that the term should also apply to actions of non-governmental agents can also draw on valid theoretical arguments. Furthermore, in practice it has been observed that when the expression "human rights violations" is limited to government actions, public opinion very often tends to interpret it as an effort to condone or justify abuses or atrocities that may be committed by certain opposition political groups. There is no doubt that public opinion overwhelmingly condemns resorting to abuses or atrocities whether in order to retain or seek power or to resolve political conflicts. The idea that there are certain values of humane behavior that not only the state but all political actors must respect has become enshrined in the public conscience. Those norms of humane behavior derive partly from the norms of human rights and partly from the norms of international humanitarian law or the laws of war. In peacetime, they govern all political actors, governmental or non-governmental; and in the case of armed conflict, whatever its nature, they are obligatory for all combatant forces. Public opinion has a deep intuition of these norms of humane behavior, which it has taken to be synonymous with the expression "human rights." Thus in practice people have been moving beyond the more restricted historic or technical meaning of this term.
      
      The Commission believes that these reasons explain why its founding decree regards as human rights violations not only certain acts committed by agents of the government, but also other politically motivated acts of private citizens.
      
      The Commission is certainly bound to follow the terminology set down in the decree. However, it wants to make clear that in carrying out its assigned task, it also accepts the need to acknowledge this broader interpretation of the term "human rights" that has gradually become prevalent in public opinion. This does not mean that such broader interpretation is to be regarded as universally valid, nor does it entail a disregard for the power of the arguments that originally led to a more restricted use of the term. Indeed, the Commission believes that it should always be emphasized that acts of terrorism or other illegitimate actions committed for political reasons cannot be used to seek to justify human rights violations committed by the state and that the state's use of its monopoly over public force to violate the rights of persons is a matter of the gravest concern.
      
      
2. CONCEPTS
   
   
   1. RESPONSIBILITIES
      
      During the period when the Commission was at work, national public opinion witnessed the intensification of a debate already underway. At issue was the kind and degree of responsibility to be attributed to individuals, political parties, the armed forces and police, or other institutions and sectors involved in the events this Commission was to examine.
      
      It is appropriate and indeed unavoidable that the Commission articulate its position on this matter.
      
      
      1. The relationship between the political situation prior to September 11, 1973, and subsequent human rights violations
         
         One of the issues being debated at the time the Commission was formed and while it was at work was the period that its report should cover. Some argued that the Commission should also consider human rights violations, or the political situation, or both as they were prior to September 11 (and opinions differed about how far back the investigations should extend). They believed that events before and after that date were inextricably interconnected, or at least that it was important to keep in mind that connection. Others, however, pointed out that the human rights violations that took place starting on September 11, 1973, were uniquely grave, systematic, and numerous, and had not been acknowledged by the state nor was the public properly informed about them. Thus this Commission's report could justifiably be limited to the period of military government.
         
         This Commission has devoted itself to a case by case analysis of the most serious human rights violations committed between September 11, 1973 and March 11, 1990, whether by government agents or politically motivated private citizens. Such was its specific assignment. However, the Commission believes it must take into account the situation of the country leading up to September 11, 1973. That situation led to a break in our institutional life and a deep division between Chileans which made it more likely that human rights would be violated. One of this Commission's assigned tasks is to propose preventive measures, that is, to suggest what should be done so as to prevent the recurrence of the kinds of infractions we have investigated. Hence, it is imperative that we examine not only such deeds and their immediate circumstances but also the circumstances that created a climate that made their perpetration more likely.
         
         Nevertheless, the Commission wishes to assert very firmly that even when certain circumstances increase the likelihood that certain acts will be committed, or weaken the institutional and social defenses that help prevent them, by no means do such circumstances constitute the slightest justification or excuse for the violation of legal and ethical norms which are absolute, such as those governing the situations that this Commission has been charged with examining.
         
         The argument sometimes proposed, directly or indirectly, that it is naive to expect certain norms to be observed in a situation of war or some other disturbance, is unsustainable. Indeed, the ethical and legal norms governing armed conflicts have been devised precisely for those situations that are known to be prone to excesses. These norms do not seek to completely avoid all conflict but rather to set certain limits upon them. Moreover, although such regulations are often violated or overlooked in practice, the validity of such norms and the need for them is not thereby diminished. The situation is not essentially different from that of the laws governing peacetime, which are not made less valid or necessary by the fact that they are often violated. Thus instead of emphasizing how much the norms governing armed conflict tend to be violated in practice, the focus should be on what would happen if there were no applicable norms at all.
         
         The argument we are here seeking to refute is even less defensible with regard to the cases this Commission has had to examine, since for the most part the events did not take place in the heat of an armed clash nor immediately thereafter. Rather, these were assaults on people who were unarmed or imprisoned.
         
         In short, this report takes into account the situation prior to September 11, 1973, and notes that that situation and its consequences objectively jeopardized human rights and made it more likely that they would be violated, but by no means did it justify such violations.
         
         
      2. The state's "moral responsibility"
         
         The decree creating the Commission mentions "acts in which the moral responsibility of the state is seen to be compromised as a result of actions by its agents or by persons in their service." As far as the Commission has been able to determine, this concept of the "moral responsibility of the state" does not have a precise legal or technical meaning.
         
         The Commission has understood that phrase to mean the kind of responsibility which may rightly be attributable to the state due to acts committed by its agents (or by persons serving them) in compliance with policies or orders from state agencies, or due to actions carried out by such persons without specific policies or orders, provided that their actions were subsequently approved by state agencies or that the protection of, or inaction by, state agents allowed their behavior to go unpunished.
         
         This meaning of "moral responsibility" is the one that the Commission members have established in accordance with their own judgement; it does not have any legal effects other than to lay the groundwork for measures of reparation which the branches of the government, within their own proper functions, may decide to award. Finally, the Commission wishes to make it clear that its own judgement of moral responsibility has no effect on other judgements of responsibility that may be made on the government or individuals by the judiciary or other competent bodies.
         
         
      3. Other kinds of responsibility: those which fall on individuals and those which fall on the institutions to which they belong
         
         It is generally accepted that the same action can give rise to different kinds of responsibility and hence to different kinds of punishment. From a legal standpoint, responsibility can be criminal, administrative, civil (contractual or noncontractual) or political. From the standpoint of ethical or social norms, one can speak of responsibility being moral or historical, and in a different sense of the term, of political responsibility as well.
         
         This is not the occasion to discuss these distinctions in detail. However, it must be noted that except for responsibilities of a civil character, which can affect juridical persons and even government bodies (and which are generally translated into the obligation to pay damages), other types of responsibility generally only affect natural persons. In the case of moral, historical or political responsibilities (not understood in the strictly legal sense), however, it is often and correctly said that such a responsibility may fall on one sector or institution or another, and even on all of society.
         
         The Commission believes that it must state clearly its opinion on the individual and institutional responsibility that may stem from the human rights violations it has had to examine. More explicitly it must state what responsibility-if any-should fall on the armed forces and security forces for human rights violations committed by individuals on active duty in their respective institutions.
         
         One opinion repeatedly expressed by representatives of a wide range of political parties as well as by other voices which help shape public opinion in our country, holds that the responsibility for such actions is always that of individuals and in no way affects the institutions they serve. Underlying these statements, the Commission believes it discerns conceptual assumptions, value judgements, and motivations which it shares. It is also of the opinion, however, that to deal with the issue simplistically runs the risk of not only making conceptual errors, but also of jeopardizing the higher interests of the military and police forces themselves, as well as the higher interest of the country to the extent it overlaps with the interest of those forces.
         
         Indeed it is correct to say that the responsibilities of a criminal character and other legal responsibilities that may derive from human rights violations are personal in nature and do not affect the institution to which the perpetrator belongs. It is also true that the fundamental role played by the armed forces and security forces in the history of the country should be fully appreciated, as should be their character as permanent and essential national institutions. Finally, it is praiseworthy to strive to avoid any use of the issue of human rights to attempt to sully these institutions, or to detract from their contribution to the country and the role they are called to play in the future.
         
         Nevertheless, these points cannot be invoked to deny the historic or moral responsibility that may befall one institution or another as a result of the practices it ordered, or to which it consented, or with regard to which it failed to do all that was required to impede or prevent their recurrence. Just as we have spoken of the moral responsibility of the state, which would be inconceivable if the actions of its officials could never affect it, we can also speak properly of the moral or historical responsibility of political parties, of other institutions or sectors of national life, and of society as a whole. The armed forces and the security forces are no exception. It is human beings who forge and make institutions great, and it is also human beings who can affect them negatively.
         
         It is not a purely conceptual concern, however important it might be, that prompts this Commission to make these distinctions. This Commission believes that if matters came to the point that an institution would always be immune from any harm or loss of respect no matter what the behavior of its individual members might be, there would be a danger of falling into an attitude of complacency, the result of which could be serious damage to the institutional integrity and prestige that everyone rightly seeks to preserve.
         
         When the nation's institutions acknowledge their historic and moral failures-and few if any are completely free of such failures-they are in fact ennobled, made better, and enabled to serve more fully the high purposes for which they were created.
         
         
   2. SOME FORMS OF HUMAN RIGHTS VIOLATIONS
      
      The Commission believes that at this point certain kinds of human rights violations frequently mentioned throughout this report should be defined.
      
      
      1. Disappearance after arrest^c [detenidos desaprecidos, literally, "disappeared prisoners"]
         
         The expression "disappeared prisoners" became common in Chile and outside the country during the period covered by this report. It refers to the situation of those who were arrested by government agents or by persons in their service and about whom the last information is that they were apprehended or that they were seen later in a secret prison. Officials deny having arrested them, claim to have freed them after a certain period of time, offer other unsatisfactory explanations, or simply say nothing.
         
         This situation is quite different from that of persons whose fate or whereabouts are simply unknown, even though they may be described in similar terms. These latter are matters for the police, and may involve suicide, a common crime, some other kind of misfortune or someone's free decision to move away from his or her circle and break ties with relatives and friends.
         
         In the case of disappeared prisoners, however, this Commission has arrived at a moral conviction that the so-called "disappearance" is not a disappearance at all, as will be explained in detail in Part Two. In fact, all the cases which this Commission treats under this term involve an arrest along with, or followed by, measures to conceal it and official denials. Torture was generally used during such detention, and there is a moral certainty that it ended in the victim's death and the disposal of the remains so as to prevent their being discovered.
         
         The Commission became familiar with two main forms of this practice of "disappearance." In the kind of disappearance most common after September 11, 1973, arrests seem to have been made throughout the country by different units of official forces, sometimes accompanied by civilians. These basically consisted of a summary execution or murder of the victim and the disposal of the body (generally by throwing it into a river or burying it secretly) followed by a denial or false stories. In such cases disappearance is primarily a way of hiding or covering up crimes committed, rather than the result of centralized coordination aimed at eliminating predetermined categories of people. [The second form of] "disappearance" was carried out primarily during the 1974-1977 period, mainly but not exclusively, by the DINA. The Commission is convinced that behind most of these cases was a politically motivated and systematically implemented effort to exterminate particular categories of persons.
         
         Even though both kinds of disappearance constitute extreme forms of human rights violations, which deserve absolute condemnation, the Commission believes that this intention to exterminate certain categories of persons makes this second form singularly reprehensible.
         
         
      2. Executions^b
         
         This Commission encountered cases of executions carried out in accordance with a death sentence issued or supposedly issued in a war tribunal. Without seeking to take a position on the more general issue of the legitimacy of the death penalty, the Commission regards these executions as human rights violations, since these trials, when they in fact took place, lacked the minimum guarantees for a fair trial.
         
         The Commission also examined various kinds of executions in which therewas no trial whatsoever. In the technical terminology of international organizations these are known as extrajudicial or extralegal executions.
         
         During the months after September 11, 1973, the so-called "law of escape" was often invoked in connection with such executions. In the well-worn official explanations offered in these cases, it was generally claimed that government troops had shot prisoners who were trying to escape and who paid no attention to orders to halt, and therefore were killed.
         
         
         
         Even if these explanations were plausible, it would not have been justified to shoot to kill at people who could have been subdued in some other manner. However, the Commission found that these explanations were implausible in all the cases of the "law of escape" which it examined, and hence it judged them to be extrajudicial executions, and that the false story of attempted escape was used as a justification. In a few isolated cases, narrated below, the circumstances are somewhat different, without however, altering the unlawful character of killing committed by government authorities.
         
         The Commission also examined many instances of execution in which there was no effort to offer any justifying explanation. In some of these cases the victims were physically under the control of their captors.
         
         In some instances the remains of disappeared prisoners have been discovered subsequently and hence they may also be regarded as executed. This report nonetheless refers to them as disappeared prisoners in order to make it clear that their remains were not found for a long time. As has been noted, however, this Commission regards the fate of both categories of victims, executed or disappeared prisoners, as the same. The only difference lies in the fact that in some instances the remains have been found, while in others they have not.
         
         
      3. Use of undue force
         
         The Commission also examined many cases of human rights violations which it has qualified as the use of undue force. These are killings committed by on-duty government agents which were not a premeditated action against a previously chosen victim. Use of undue force specifically includes situations in which the use of force was unjustified as well as others in which the use of force may have been justified in principle, but was excessive and bore no proportion to the requirements of the situation.
         
         Specific situations varied a great deal. They included cases such as police officers who while arresting a drunk person needlessly beat him with their rifle butts so badly he died; shots fired at participants in a demonstration causing the death of one or more, when circumstances would have permitted imposing order through other means; or shooting to kill an unarmed boy who instinctively ran down the street at the sight of men in uniform, out of the mere vague suspicion prompted by such a reaction.
         
         
      4. Killings during curfew hours
         
         The Commission learned of many cases of killing during curfew hours. Many of these took place in rather obscure circumstances and hence could not be called human rights violations. The persons who were killed in this fashion are nevertheless regarded as victims, as is stated further on in this chapter.
         
         The Commission judged that many other cases fell into the previous category of the use of undue force, because from the evidence (described in each case) it could be deduced that the reaction had been excessive. The Commission decided that in some cases an execution had taken place.
         
         
      5. Abuse of power
         
         The Commission was told of many instances in which government agents killed people not for political reasons but out of revenge or for other private reasons unrelated to their tasks as government agents or to superior orders. If the government took administrative measures or prosecuted the case, the Commission has regarded it as a common crime, and hence as excluded from its mandate. If, however, officials condoned the deed, either by failing to condemn it or by providing the means whereby the perpetrator could enjoy immunity, the Commission has judged that the moral authority of the state has been compromised, and that a human rights violation has thereby been committed.
         
         The Commission is aware that at various periods in our country's history people have been killed as a result of the abuse of power. Nevertheless, such acts remain human rights violations, if the government, instead of punishing them, itself becomes a participant by condoning or supporting them. In other periods of our country's history, there have also been deaths due to the use of undue force or during curfew periods. It does not follow, however, that such acts should not always be judged in accordance with the criteria set forth here.
         
         
      6. Torture
         
         The Commission has made use of the definition of torture in Article 1 of the Convention against Torture, and Cruel, Inhuman or Degrading Treatment or Punishment (which according to the Constitution is in force in Chilean law) which states:
         
         For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.
         
         The Commission has had to determine reasonably and honestly in which cases a victim has died as a result of torture, as specified further on in this chapter.
         
         
      7. Terrorist acts
         
         The Commission has examined many cases of politically motivated killings committed by private citizens and judged them to be human rights violations.
         
         Moreover, the Commission has also judged such actions to be terrorist when they constitute indiscriminate assaults on people. Examples of such actions are he placing of explosives in a public site or the toppling of high tension wires to electrocute either those who live in the vicinity or passers-by (or disregarding the danger that they may be killed). Selective treacherous attacks on government agents are also regarded as terrorist attacks.
         
         
   3. THE VICTIMS
      
      
      1. Victims of human rights violations
         
         Based on these formulations, the Commission has defined as victims of human rights violations those who were subjected to:
         
         
         • forced disappearance, that is, those who disappeared after being arrested;
           
           
         • execution, in any of its forms;
           
           
         • use of undue force leading to death;
           
           
         • abuse of power resulting in death, if the government has condoned the action or permitted it to go unpunished;
           
           
         • torture resulting in death;
           
           
         • murder attempts leading to death, committed by private citizens, including acts of terrorism, whether indiscriminate or selective, as well as other kinds of attacks on life.
           
           
         The Commission has also regarded as victims of human rights violations those who have taken their own life, if the circumstances make it possible to come to a reasonable and honest judgement that the person committing suicide was led to despair or impelled to make such a decision due to physical or psychological torture, or to the conditions of imprisonment or some other situation for which the government was responsible, and which itself violated human rights. In assuming this position the Commission is not taking a stand on whether suicide itself is ethically justifiable but on the unlawfulness of the causes that make it understandable.
         
         
      2. Persons who were killed in armed clashes or who were, in a general sense, victims of the situation of political confrontation
         
         We refer here to people who strictly speaking cannot be regarded as victims of human rights violations. Their death is nonetheless directly connected to the political conflict in our country or to its effects. The Commission has also declared them victims (although clearly distinguishing them from the victims of human rights violations). The decree creating the Commission does not formally consider these situations. Nevertheless, given the complexity of the cases it examined, the Commission judged that it was its moral duty to consider each case of those who perished in this manner. They fall into one of the following categories:
         
         
         • Combatants on one side or another, as well as non-combatants, who died as a result of the exchanges of fire on September 11, 1973, and during the subsequent period (the length of which the Commission has had to weigh case by case). The Commission believes it must be concluded that the armed clashes that took place on September 11 and subsequently were over a struggle for political power, either for or against the government of President Allende. (On the other hand, executions or the use of undue force during that period are regarded as human rights violations);
           
           
         • Persons who took their own life in a situation of armed confrontation from which they had little hope of escape, if the circumstances were such that had they been killed in the confrontation they would have been regarded as victims of the situation of political violence;
           
           
         • Persons who died accidentally as the result of an armed clash of a political nature in which they were not involved, as well as persons who died as the result of the unintended effect of an act which in itself is not necessarily unlawful, for example, the person who died after inhaling tear gas under circumstances when the use of the gas was not necessarily unjustified;
           
           
         • Persons who died while using weapons in self-defense trying to resist efforts by the DINA, the CNI or other security agencies (which this report treats below in Chapter Five) to arrest them, in circumstances in which they could reasonably fear that their fate would be torture and death. This Commission holds that regardless of what might be thought of the ideas or political activities of those who were killed in this fashion, and even though being killed in such a clash cannot be regarded as a human rights violation in the strict sense, no one can be faulted either rationally or morally for defending himself or herself from being arrested when there is a well-founded fear that arrest will entail torture and death. (If, however, those resisting in this manner were captured and while in the hands of their captors were put to death or if already wounded were finished off, they are not regarded as killed in an armed clash but as victims of a human rights violation, namely that of being executed without any trial whatsoever).
           
           
         On the other hand, and consistent with this position, the Commission does not regard as victims of political conflict those who took part in armed robbery or assault or any other similar unlawful action, even if it may have been politically motivated, and who died in an exchange of fire with the security forces who came seeking to arrest them.
         
         
      3. Cases falling outside the Commission's mandate
         
         Besides the cases just mentioned, that is, of those who were killed as a result of a lawful action by the police forces, the Commission has also ruled out the following situations: accidents which took place outside the context of armed clashes and which cost lives, whether among those in uniform or opponents of the military regime, including automobile accidents; accidental shootings by one's fellow combatants, or accidental explosions of devices being carried by the victims themselves. A fuller discussion of these situations is to be found in the first appendix of this report.
         
         
3. CRITERIA
   
   
   1. HONEST DECISION ON THE BASIS OF THE INFORMATION GATHERED
      
      The Commission had to come to a reasonable and honest decision on every case presented to it as well as on the overall truth that could be drawn from these cases and from other events. For that purpose it was able to gather a vast body of information on the events and circumstances that were part of its task, as was indicated in the previous chapter.
      
      The Commission reached a reasonable and honest conviction about each case based on the testimony of the victims' relatives, of eyewitnesses to relevant events, of current and former government agents, uniformed and civilian, including statements by now-retired high and mid-level ranking officers of the armed forces and police and by former agents of state security; press reports; expert testimony and opinion; some visits to the places where events took place; documentation from human rights organizations; official documents and certificates such as birth certificates, death certificates, autopsy reports, voter registration rolls, criminal records, immigration service records about entry into and departure from the country and many other official documents; copies of court records and responses to official requests that the Commission sent to institutions under the authority of the executive branch, including the armed forces and security forces.
      
      The utilization of all these items as the basis for examining thousands of cases made it possible to achieve a thorough vision of the context of the events under study throughout the country and in each region or location during various periods. It also made it possible to understand the working methods of particular government bodies as well as those of the various political opposition groups as they evolved over time.
      
      Thus it was possible to evaluate the veracity of testimony and documents not only directly but by comparing them with information already established concerning the same events or related events.
      
      Furthermore, the Commission made an effort to always have proof of each specific case. In cases of disappeared prisoners it obtained proof of arrest or that the person was in one of the secret detention sites where the disappeared were often kept, particularly starting in 1974.
      
      In a few cases, relying on the power and agreement of convincing circumstantial evidence, the Commission concluded that the person had suffered forced disappearance even though it did not have proof. Among such indications were the following: the victim's political activism, the time and place of the events, the knowledge that other activists with proven ties to the victim were arrested during the same days and disappeared, the fact that relatives had been searching for fifteen or sixteen years without any results or the lack of any records of subsequent travel or registration to vote.
      
      The Commission has examined these cases very rigorously, especially when the remains of the victim have not been found. However, it cannot entirely rule out the possibility that in one or other isolated case it may have made the mistake of qualifying a person as "disappeared" and presuming him or her to be dead. Nevertheless, the Commission fears that even more numerous will be the cases of genuine victims about which, given its own rigorous standards and the fact that the investigation could not be pursued further, it has been forced to state that it could not reach a conviction about whether the person's human rights were violated or not. The Commission hopes that in the future it will be possible to determine the truth about what has happened in such cases.
      
      
   2. THE PERPETRATORS AND THEIR MOTIVATIONS
      
      
      1. The decision not to assign blame to particular individuals
         
         In carrying out its investigations, the Commission received information about the identity of government agents, both uniformed and civilian, and about people in their service, as well as about members of political parties or armed groups opposed to the military government, all of whom were said to have been involved in one or more of the events it was examining.
         
         The Commission has not included those names in this report. Its founding decree forbade it to take a stand on the potential responsibility of individual persons in these events in accordance with existing legislation. The reasons for that prohibition are both clear and compelling: only the courts of justice can determine the responsibility of particular persons for crimes committed. If this report had included the names of those presumed responsible, whether of government agents or private citizens, the practical result would be that a commission appointed by the executive branch would be publicly accusing of committing crimes people who had not been able to defend themselves. Indeed, they had no such obligation to defend themselves since the Commission did not have any judicial authority, nor indeed did it prosecute any case. Such a procedure would have been an obvious violation of the principles of the rule of law and of the separation of the powers of government, as well as of the basic norms of respect for human rights.
         
         Those considerations notwithstanding, in all relevant cases the Commission has sent the respective items of evidence to the courts.
         
         
      2. Determining the institution or group
         
         In this report the Commission is offering as much information as it could obtain about actions committed by government agents except for the names of the individuals alleged to have participated. Thus when such information is available the report names the branch or branches of the armed forces or police forces or the security or intelligence agencies said to have participated, and specifically the regiment, base, police precinct, garrison, or group from which the official forces came. When the Commission was unable to obtain such information but did come to the conviction that the person was killed by, or disappeared in the hands of, government agents, it has stated so.
         
         When available, the Commission has also provided information on the political affiliation of private citizens who committed terrorist acts or other kinds of politically motivated attacks.
         
         The Commission has not presumed that government agents were involved in the death of individuals, even when it is clear that they were killed by firearms and when there is every reason to believe that the motivation was political, unless there are grounds for that judgement. Hence it has stated that the human rights of some people were violated for political reasons, without, however, attributing the deed either to government agents or to private citizens acting for political reasons.
         
         
      3. Motivation of the perpetrators
         
         In order that instances of attacks by private citizens be regarded as within the competence of this Commission, it is essential that there has been political motivation.
         
         As already noted, when government agents have committed violations, political motivation is of no concern. In fact, the Commission judges that in most cases of death inflicted by government agents, such motivation has been present either specifically, in an effort to eliminate certain people because of their political membership or activities, or more generally, in order to gain access to power, impose order, or intimidate real or potential political opponents. However, the Commission also examined cases in which common criminals were killed by government agents in what was ostensibly a campaign against crime. Such cases were also taken into account in this report.
         
         
      4. References to private citizens
         
         When the Commission here refers to perpetrators as private citizens acting for political reasons or pretexts, it does not always mean that these were people who were opposed to the military government. In some cases the political motives of such private citizens were quite the contrary, that is, they supported the government. In some of these cases, which will be narrated in the chapter on those killed during protest actions, the Commission does not rule out the possibility that such private citizens were really security agents in civilian dress.
         
         
   3. DETERMINATION OF CAUSAL CONNECTIONS AND OF THE FATE OF THE VICTIMS
      
      
      1. Connection between torture and death
         
         As has already been noted, the Commission judged that it was obligated to come to a reasonable and honest judgement on whether the torture a person had undergone either caused, led to, or contributed to his or her death. Making such a determination is especially difficult when a relatively long time has elapsed between the treatment suffered and subsequent death. The medical specialists whose opinion the Commission sought whenever there was doubt, always pointed out that in most cases medical science can only provide estimates of probability. Nevertheless, their expert opinions proved extremely valuable for establishing the parameters within which the Commission made its decision in conscience.
         
         
      2. The fate of the disappeared
         
         After examining all the available evidence about individual cases and the relevant context, this Commission concluded that it was morally obliged to declare its conviction that in all the cases which it has accepted as disappearances, the victims are dead; that they died at the hands of government agents, or persons in their service; and that these or other agents disposed of the victims' mortal remains by throwing them into a river or the sea, by covertly burying them, or by disposing of them in some other secret fashion.
         
         

c) The term "arrest": The Spanish text version of this report uses the term detener in referring to persons who were deprived of their liberty by Chilean armed or security forces or civilian agents in their service between September 11, 1973, and March 1990. The literal translation of this word is "to detain." A more commonly used English term is "to arrest." Although both in English and Spanish there are legal differences between detener-arrestar and "detain"-"arrest," the exact definition is not preserved in either text. Therefore the translator has chosen to use the more commonly recognized term "to arrest" when referring to the deprivation of a person's liberty.

The term "execute": The Spanish text of this report uses the term ejecutar in referring to persons who were killed by Chilean armed or security forces or civilian agents in their service and whose deaths were certified to the victims' families. They are distinguished from those persons identified as "disappeared after arrest" ( detenido-desaparecido), whose deaths were not certified and whose corpses were never returned to their families. A more thorough explanation of these categories is cited above. In the individual case material, ejecutar as well as ser muerto (literally-"to be killed") are used in describing executions and other killings resulting from use of undue force, the abuse of power, or torture. The translator has preserved the Spanish word ejecutar and in both instances used "to execute" or "execution" in the translation. In English these terms usually carry the connotation of being a killing sanctioned by the State as a punishment for a crime. Although in some instances the victims were killed as a result of a war tribunal sentence (see Part Two, Chapter Three) and all the killings were committed with the impunity of the State, the nuance here is not the same. In the translation of this report the words "execute" or "execution" will refer to the deliberate killings committed by the agents of the State in an extra-judicial/extra-legal manner or which were ordered during a trial that lacked the minimum guarantees of fairness.

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Posted by USIP Library on: October 4 2002
Source: Report of the Chilean National Commission on Truth and Reconciliation
(Notre Dame, Indiana: University of Notre Dame Press, 1993), vol. I/II, Part One, Chapter Two, 27-44.
Note: Digitized and posted by permission of the University of Notre Dame Press, February 22, 2000.