The Chilean Senate should reject a legislative proposal that would criminalize the denial of the heinous abuses committed during the country’s military dictatorship, Human Rights Watch said on Monday.
On September 22, 2020, the Chilean House of Representatives passed a bill that would punish people who “justify,” “approve” of, or “deny” the human rights violations committed during the country’s dictatorship between 1973 and 1990 with up to three years in prison. The bill still needs to be approved by the senate.
“Objectionable and offensive speech should be countered with speech, not criminal punishment,” said José Miguel Vivanco, Americas director at Human Rights Watch. “The ‘anti-denial’ bill contravenes international human rights standards and will probably do little to stop offensive speech.”
The bill applies to statements regarding rights violations documented in reports by official bodies charged with revealing the atrocity crimes committed during the country’s dictatorship. The bill would apply to such statements only if they “disturb the public order” or “illegitimately obstruct or limit” others’ exercise of their rights.
Under international law, freedom of expression may only be limited under very specific circumstances. The International Covenant on Civil and Political Rights (ICCPR) and American Convention on Human Rights (ACHR), both ratified by Chile, state that laws may only limit the right to free speech to the extent necessary and proportionate to ensure respect for the rights or reputations of others, or “the protection of national security, public order, or public health or morals.” The restrictions in the Chilean bill are neither necessary nor proportionate to the goals of protecting the rights of others or public order.
Chile has a legitimate interest in preserving an accurate public understanding of the horrific abuses committed during the country’s dictatorship, and ensuring respect for their victims, but the criminalization of speech is not an acceptable way to pursue those aims, Human Rights Watch said.
The Inter-American Legal Framework Regarding the Right to Freedom of Expression says that the tolerance, pluralism, and openness necessary in any democratic society require that “freedom of expression must be guaranteed not only with regard to the dissemination of ideas and information that are received favorably or considered inoffensive or indifferent but also in cases of speech that is offensive, shocking, unsettling, unpleasant or disturbing to the State or to any segment of the population.”
The United Nations Human Rights Committee, the expert body that interprets and evaluates state compliance with the ICCPR, has held that “laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties.”
“Punishing offensive speech is not an effective way to counter offensive ideas, and may even be counterproductive,” Vivanco said. “Laws that criminalize speech risk turning their targets into victims and drawing even more attention to their ideas.”