The bomb attack perpetrated recently on Monday, September 8, in Santiago of Chile has produced such a social commotion that different political coalitions and the government agree in the need to amend the so called “Anti-Terrorist Law” (N° 18.314), to bestow more power to organs capable of preventing and of repressing such conducts.
As a matter of fact, the recent events present the State of Chile with the opportunity to fulfill the mandates of international bodies regarding the need to amend its terrorism legislation. Indeed, on May, 2014, the Inter-American Court of Human Rights issued its ruling in the case Norín Catrimán and others v. Chile, in which it commanded the State of Chile to declare null the criminal sentences for the crime of terrorist fire imposed upon mapuche people who had committed incendiary attacks against private property. The Court concluded this measure after determining that, among other infractions, the Chilean Anti-Terrorist Law violated the right to a due process of law and to the presumption of innocence, for at the time of its application to the victims of the case, the law presumed the specific terrorist criminal intent for the use of explosive or incendiary objects (this presumption was derogated in 2010). Likewise, the Court declared that the Chilean Anti-Terrorist Law did not define the crime of terrorism in a sufficiently clear and precise manner, so as to distinct it from other non-criminal conducts, or from other ordinary criminal conducts.
On its part, the Human Rights Committee, the UN specialized body in charge of supervising the compliance with the International Covenant on Civil and Political Rights (ratified by Chile), concluded in its report on Chile, of July 2014, that the State must adopt a clear and precise definition of terrorism under its law. This is meant to avoid the arbitrary criminalization of a part of the population, such as the mapuche people, in criminal prosecution.
The momentum that the anti-terrorist spirit has acquired during this days, should be canalized in an appropriate manner, so as to take this opportunity to comply with the resolutions of international bodies, whose decisions are not mere suggestions but are mandatory for the State of Chile.
In this sense, a new definition of terrorism should reflect the nuclear components for this concept that have been identified under international law, in which terrorism has, according to scholars, at least the status of a treaty crime, and it is even considered by some as a crime under international law.
Specifically, the notions set forth in the International Convention for the Repression of the Financing of Terrorism (1999), in Resolution 1566 of the UN Security Council (2004), and in the model definition of terrorism proposed by the UN Special Rapporteur for the promotion and protection of human rights in the fight against terrorism (2010), should be taken into account. All of them identify the following elements as essential for a terrorist conduct to occur: (i) the perpetration of a grave criminal act against civilians, such as causing death, severe bodily injures or kidnapping; and (ii) the alternative intent to spread fear among the population (or a part thereof) or of forcing a government or international organization to act or to abstain from acting.
Hopefully, a potential new definition of terrorism under Chilean law will be as clear and as precise as possible, respecting this international standards, while at the same time not meaning a step back, which would occur if the presumption of terrorist intent (abolished in 2010) would be reenacted, or if the criminal liability for this actions would include again minors under 18 years old (derogated in 2011). It would be also desirable to abolish or at least to strongly restrict the practice of confidential testimonies, currently in force, for the criminal prosecution to be conducted in a responsible and transparent fashion by the State.