translated from Spanish: Calling the horror: about the “generalized” and the “systematic”

In Chile, the human rights of people who have taken part in the demonstrations in recent weeks have been violated. There can be no doubt about this, following the recent submission of the lay reports of Amnesty International and Human Rights Watch, two of the world’s most prestigious international human rights organizations. Both reports acknowledge the seriousness of the violations, although they do not agree on their classification as “generalized” or “systematic”.
According to Amnesty International: “The security forces under President Sebastián Piñera – mainly the Army and Carabineros (the national police) – are committing widespread attacks, using force unnecessarily and excessively with the intention of harming and punishing the manifesting population.” For its part, Human Rights Watch has noted that “Members of the Chilean National Police (Carabineros) committed serious human rights violations, including excessive use of force in the streets and abuses in detention, following massive protests that began on 18 October 2019 and continued for several weeks.” However, Human Rights Watch has found no evidence that the violations have been committed systematically, a criterion consistent with what was stated a few weeks ago by the Director of the National Institute of Human Rights.
But how important is it to classify these human rights violations as “widespread” or “systematic”? Is not any violation of human rights deplorable, no matter how it is committed? Can you rate the horror?
This is precisely what international law and the regulatory standards that make it up seek to do. In accordance with this branch of law, the State of Chile has various obligations to respect and guarantee human rights, duties that even find its normative consecration internally in article 5(second) of the current Constitution. Moreover, the State of Chile has not only assumed a number of international human rights obligations, but also has a responsibility to protect its population from atrocities such as genocide, war crimes, ethnic cleansing and crimes against humanity (A/RES/60/1, para. 138). Hence the importance of considering whether the serious human rights violations that have been committed have been “widespread” or “systematic”, since both categories are an integral part of the concept of “crimes against humanity”.
Pursuant to article 7 of the Rome Statute creating the International Criminal Court, signed and ratified by Chile, a “crime against humanity” is an act (such as murder or torture) committed as part of a “widespread or systematic attack on a civilian population and with knowledge of such an attack”. This is a type of crime under international law of extreme gravity, which, together with genocide, war crimes and the crime of aggression, has the potential to activate the jurisdiction of the International Criminal Court.
But at the level of domestic law it is also relevant to determine whether an act consists of a crime against humanity, mainly due to two reasons. First, to the extent that a State properly pursues and punishes such crimes, it will not be necessary to activate the jurisdiction of the International Criminal Court, whose jurisdiction is complementary to the States Parties to its Statute. Secondly, pursuant to Law No. 20.357, which typifies Crimes against Humanity and Genocide and War Crimes and War Crimes, the penalty for murder conduct, for example, is increased by higher presitude in its middle-level (penalty for simple homicide) to higher inmate to fullest degree to perpetual presidio, or even qualified perpetual presituium (if a considerable number of people are sought). That is, crimes against humanity receive penalties greater than common crimes, a scale of penalties that is explained by the great importance assigned to the legal assets of them injured in connection with the mode (generalized or systematic) of their injury and the agent (the State or an organized group) that commits it.
But what is meant by a “generalized” or “systematic” attack on a civilian population? The Rome Statute does not define these concepts, although Article 7:2 clarifies that such an attack must be committed “in accordance with the policy of a State or an organization to commit such an attack or to promote such a policy”. This means that the letter of the Rome Statute functionally links the presence of a policy with attacks, whether they are widespread or systematic.
In international jurisprudence there appears to be greater development of both categories, as evidenced this year by the United Nations Commission on International Law, in particular its Chapter IV on crimes against humanity, the subject by the Special Rapporteur, Sean D. Murphy (A/74/10).
According to international practice, it has been understood that an attack is “generalized” when committed on a large scale and affects a large number of victims (Prosecutor v. Dragoljub Kunarac, Radomir And Zoran Vukovic, Case No. IT-96-23-T & IT96-23/1-T; Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T; Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08). It can also be widespread if it is committed in various geographical locations (Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11).
On the other hand, in international jurisprudence an attack is understood as “systematic” when it is organized, not random or sporadic, but obeys a pattern or methodical plan for the implementation of a policy (Prosecutor v. Mile Mrksei, Radislav Radio and Veselin, Case No. IT95-13/1-T; Prosecutor v. Duko Tadi a/k/a “Dule”, Case No. IT-94-1-T; Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07). It should be noted that, according to Amnesty International, such a pattern would already be present in the action of the Chilean police forces.
Our Law No. 20.357, in Article 2, defines as generalized “a same act or several simultaneous or immediately successive acts, which affect or are directed to a considerable number of persons”, while systematic means “a series of successive acts that extend for a certain period of time and which affect or are directed to a considerable number of persons”. That is, unlike the Rome Statute, the differentiating criterion between one category and another for Law No. 20.357 is not the number of victims (which rather appears to be a common factor between the two concepts), nor the existence of a plan or policy (also a unifying factor under Article 1), but the opportunity at the time during which the attack is verified.
For its part, our Supreme Court has noted in recent years: “While the term ‘generalized’ implies a rather quantitative meaning: that an act will be carried out on a large scale, involving a large number of victims, the expression ‘systematic’ has a rather qualitative meaning that requires the act to be carried out as a result of methodical planning” (Role 94.858-16, Sixth Recital).
In short, as Amnesty International concludes in its report, the determination of whether a widespread or systematic attack has taken place on the population, and consequently whether crimes against humanity have been committed in addition to having violated the human rights of individuals, must be a matter of an independent and impartial judicial authority that takes due account of these normative criteria arising from international and domestic law. Such is the way a rule of law must qualify and contain horror, when it is unleashed on its streets and turned against its own citizens.
 
The content poured into this opinion column is the sole responsibility of its author, and does not necessarily reflect the editorial line or position of El Mostrador.

Original source in Spanish