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  • Chile: Land Reclamation Is Not Terrorism
  • Juan Vargas Viancos (bio)
    Translated by Laurel Jarombek

In Chile, indigenous peoples' ownership of their ancestral lands was stripped not during the colonial era, but when the Chilean state was formed in the 19th century. In a process known as the "pacification of Araucanía," the Chilean military and settlers invaded and occupied indigenous territory. The government has done little to address this injustice, and so the Mapuche—the most numerous group in this region—have begun to take action to reclaim the land. Their activities, however, have become increasingly violent: Arson attacks have targeted houses, forestry machinery, and churches, and Mapuche activists have seized roads and territories. The escalation has led to deadly confrontations with police and landowners.

The situation has worsened since 2000, when Chile transitioned from an inquisitorial justice system to an adversarial one. The new penal system was designed to make criminal investigations more efficient and broaden the right to a defense, putting in place policies such as an explicit recognition of the presumption of innocence and greater restrictions on imprisonment. But when the government implemented a pilot version of the reform in Araucanía, Mapuche communities interpreted it as a mechanism of state repression.

As the system became more efficient and more cases were brought to trial, the reforms meant to offer protections to the accused were overshadowed by instances when anti-terrorist legislation was applied to cases involving violent land reclamation efforts. The decision to employ the anti-terrorist law is made by a politically appointed official, not by the district attorney. The legislation, when activated, increases punishments for crimes, and grants procedural advantages to the Public Prosecutor's Office, primarily in the use of protected or faceless witnesses. The majority of the cases where it has been used in recent years have involved Mapuche defendants. Periodic hunger strikes among Mapuche prisoners have prompted the state to abstain from applying the legislation, but only temporarily. [End Page 6]

A national and international movement has risen to oppose the criminalization of the Mapuche conflict, with a particular focus on the designation of acts of land reclamation as terrorism. The use of the anti-terrorist law has come to the attention of the Inter-American Court of Human Rights, with the most famous case being Norín Catrimán et al. Although in that 2014 case the court condemned Chile for the way the Mapuche tribal leaders had been treated throughout the penal process, it fell short of addressing the broader, systemic problem. It failed to recognize that the most serious violations emerged from the legislation itself, and instead concluded that mistreatment resulted from incorrect application of the law. With this ruling, the Chilean state retained the option to apply the anti-terrorist legislation to future land reclamation cases.

Unsurprisingly, these legal battles have intensified the conflict and the Mapuche people's demands for political autonomy. It's clear that the state's targeted application of criminal law will only generate further resentment. [End Page 7]

Juan Vargas Viancos

JUAN VARGAS VIANCOS is a professor and the dean of the department of law at Diego Portales University in Chile. He is the former executive director of the Justice Studies Center of the Americas, an Organization of American States initiative.



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