SANTIAGO, Chile, July 31, 2013 (ENS) – To avoid “widespread disorder and violence,” the Chilean government must stop applying an anti-terrorism law against its Mapuche indigenous people, who are fighting to recover their ancestral lands, warns a United Nations human rights and counter-terrorism expert.

The controversial law dates from General Augusto Pinochet’s 1973-90 dictatorship. It is now being used by the government of billionaire President Sebastian Pinera.

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UN Special Rapporteur Ben Emmerson is a UK barrister and international law specialist. (Photo courtesy UN)

“The anti-terrorism law has been used in a manner that discriminates against the Mapuche,” said Special Rapporteur Ben Emmerson of the United Kingdom on Tuesday, at the end of a two-week investigation in Chile.

“It has been applied in a confused and arbitrary fashion that has resulted in real injustice, has undermined the right to a fair trial, and has been perceived as stigmatizing and de-legitimizing the Mapuche land claims and protests,” he said.

These protests have been characterized by land occupations as well as arson and other forms of physical attack directed at agricultural, logging and industrial property associated with the commercial settlement of Mapuche territory.

“The Mapuche religion and culture is premised upon their relationship with their natural environment as well as the principle of respect for all living things,” wrote Emmerson in a preliminary report.

“The occupation and commercial exploitation of their ancestral land, with the adverse environmental consequences that go with intensive commercial land usage, is thus viewed by sections of the Mapuche as an attack on their essential values and even on their very right to exist,” he wrote.

While in Chile, Emmerson met with government officials, public prosecutors, public defenders and high-level members of the investigative police. In addition, he met with victims of rural violence, local landowners and civil society representatives, and representatives of the Mapuche community, who make up nine percent of the Chilean population.

He also met with lawyers, academics, representatives of the Church, including the Archbishop of Temuco, associations of victims of rural violence, private sector and civil society representatives.

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Mapuche people display a resistance banner (Photo by Unrepresented Nations and Peoples Organization)

Emmerson conducted visits to three detention facilities, the Temuco City prison, the prison of Angol and the El Manzano prison in Concepción, which all house detainees from Mapuche communities, both those convicted and those still awaiting trial for offenses connected with the Mapuche protests in the Araucanía region.

He received numerous reports of excessive use of violence by the police against Mapuche communities, some of which had been upheld in judicial proceedings. The allegations included the infliction of gunshot injuries on the elderly, and on women and children.

Despite the existence of apparently credible evidence and judicial findings, Emmerson was informed that no criminal prosecutions have been brought against suspects among the police.

Emmerson warned that the situation in the Biobío and Araucanía regions is “extremely volatile” partly due to the misuse of the counter-terrorism legislation within the context of “an inexcusably slow” process of ancestral repatriation.

“In the absence of prompt and effective action at a national level, this situation could very quickly escalate into widespread disorder and violence,” he said in a statement.

Special rapporteurs are appointed by the Geneva-based UN Human Rights Council to examine and report back on a country situation or a specific human rights theme. The positions are honorary and the experts are not UN staff, nor are they paid for their work. Emmerson will present his findings and recommendations to the Council in 2014.

Emmerson said that while there should be no impunity for crimes committed during violent land protests, Chilean prosecutors do not need to resort to anti-terror laws and can instead use ordinary criminal laws to investigate, prosecute and punish violence.

Emmerson has recommended the creation of a new independent investigative body tasked with inquiring into crimes of excessive violence committed against Mapuche communities by members of the Carabineros and the investigative police.

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Mapuche men demonstrate for land rights, July 2011 (Photo by Grupo Arturo Jauretche)

“Such a body should be institutionally independent of both forces, should have the power to investigate and to require the prosecution of criminal and disciplinary proceedings where the evidence justifies this,” he said.

“It should also have power to inquire into the failure of the Office of the Military Prosecutor to secure accountability in the many cases of excessive violence in which it has so far failed to take any effective action,” Emmerson advised.

“The anti-terrorism legislation has been disproportionately and unfairly applied against Mapuche defendants, and has been implemented without a coherent policy for distinguishing those cases that meet the threshold test for an act of terrorism and those that do not,” he said.

The government must place the Mapuche question as one of the top priorities of the national political dialogue, and urgently promote the adoption of a national strategy on this issue, he said.

“The cornerstone for a national strategy should be the constitutional recognition of the Mapuche’s right to exist as indigenous peoples within the State of Chile, together with the creation by the incoming government of an adequately staffed and funded ministry for indigenous affairs,” Emmerson said. “The resolution of this dispute needs to be a political priority for the next incoming government.”

Parliamentary elections were last held on December 13, 2009, and are next scheduled to take place on November 17, 2013.

In his preliminary report, Emmerson wrote, “The Mapuche are a proud and generally peaceful indigenous peoples who have lived in the territory south of the Biobío river since pre-Colombian times. They successfully resisted attempts at colonisation by the Spanish, and retained exclusive control of their territory, recognised by the State of Chile, until they were overrun by the Chilean army in the 1880′s and their lands occupied for settlement.”

“A large number of Mapuche now live in relative poverty in the major cities. However, the remainder continue to attempt to maintain their traditional way of life in rural communities in the Araucanía and Biobío regions. Since the first occupation of Mapuche territory at the end of the 19th century, the State of Chile has progressively encroached upon Mapuche ancestral lands. This encroachment continued largely unabated through the sale of ancestral lands to commercial interests, often at less than their full value,” wrote Emmerson.

“The point has now been reached at which the surviving Mapuche rural communities have been driven to occupy pockets of relatively unproductive land in often isolated areas of the Araucanía and Biobío regions. Their communities are typically impoverished, and are surrounded by commercial farming, logging and other economic activities which they regard as exploiting the natural resources of their land,” wrote Emmerson.

“It is a source of great resentment among the Mapuche that these activities are performed on their ancestral territory, within sight of the communities that have been dispossessed,” he wrote.

The historical debt owed by the State of Chile to the Mapuche people is described in the report of the Commission on Historical Truth and New Deal with the Indigenous Peoples issued in October 2008. But, explained Emmerson, while this report recommended the compensated expropriation of Mapuche land from settlers and its repatriation to the Mapuche, the Chilean government has rejected this solution.

Instead, the government has established a regional program aimed at re-purchasing small tracts of land from the settlers, together with limited regional grants aimed at enabling Mapuche communities to make effective use of the land.

The repatriation process has been administered by the Indigenous National Development Corporation, or CONADI, and is viewed as “slow, arbitrary and viewed as largely ineffective by the Mapuche,” wrote Emmerson. Poor administration by CONADI, combined with land speculation by settlers which pushed up the purchase price, have delayed the process.

Over the past two years, CONADI has attempted to accelerate the land repatriation process and has stabilized the market value of the land.

But representatives of CONADI told Emmerson that “the central budget available for this purpose is grossly insufficient, and that on the current budget it will take several decades before even the earmarked lands can be returned.”

Emmerson called this state of affairs “unsatisfactory and dangerous,” and advised that the government of Chile must set the necessary funds aside in order to achieve current repatriation targets within a defined timescale, measurable in months and years, not decades.

“This will require not only an exponential increase in resources,” he wrote, “but also a shift in political will within government, so as to give the Mapuche question the priority it deserves.”

Copyright Environment News Service (ENS) 2013. All rights reserved.