Special Features

Chile to Vote on Whether to Adopt New Constitution with Right to Life Provision

By: Carlos Dominguez Scheid

Impunity Watch Staff Writer

SANTIAGO, Chile – On November 7, 2023, the Chilean Constitutional Council presented President Gabriel Boric with a proposal of a new constitution that includes a right to life provision and outlaws the death penalty.

 
President Gabriel Boric is presented with the proposal of the New Constitution by Beatriz Hevia, President of the Constitutional Council | Photo courtesy of the Associated Press
  

The current Chilean Constitution, in effect since 1981 and approved by referendum in 1980 during Augusto Pinochet’s dictatorship, has been a point of contention due to its undemocratic origins despite undergoing significant reforms in 1989 and 2005. In response to major social unrest in October 2019, political parties agreed to initiate the process of drafting a new constitution, seeking to address the popular demands for improvements in the quality of life. In a 2020 referendum, with a 50.95% turnout, 78.28% of voters supported the creation of a new constitution and endorsed the establishment of a new, independent body, distinct from Congress, tasked with drafting it. The election for the 155 members of the Constitutional Convention was held in May 2021, and the results yielded a supermajority for the left and far left. In the September 2022 referendum, the people rejected their drafted Constitution, with 62% voting against it. The referendum had a historic 85.86% turnout.

Subsequently, a new political agreement led to a different process, involving a Commission of Constitutional Experts appointed by Congress to prepare a draft constitution. This was to be reviewed and voted on by the Constitutional Council, a 50-member body elected in May 2023. With a supermajority held by the right and center-right, the Council is poised to introduce changes to the proposed constitution.

Article 4.1 of American Convention of Human Rights (About the Right to Life), from 1969, states that:

“Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”

In Chile, the current Constitution states that:

“The Constitution ensures to all persons the right to life and to the physical and mental integrity of the person. The law protects the life of the one about to be born. The death penalty may only be instituted for a crime established in a law approved by a qualified quorum.” (Article 19 N° 1)

The Commission of Constitutional Experts proposed the following change:

“The Constitution ensures to all people the right to life. The death penalty is prohibited.”

The Constitutional Council’s final proposal, which will be voted on in the December 17th Referendum, states:

“The Constitution ensures to all people the right to life. The law protects the life of the one who is to be born. The death penalty is prohibited.” (Article 16 N° 1)

This constitution is the first in Chile’s history to prohibit the death penalty. If approved, it would close the debate on this issue. Although the death penalty was abolished in the Penal Code in 2001, it remains in effect for military crimes during wartime. This has allowed for legislative proposals to reintroduce it in the Penal Code, arguing that Chile has not fully abolished it and therefore is not bound by Article 4.3 of the American Convention on Human Rights.

The issue about the protection of the right to life of the unborn was subject to a strong debate. In Chile, abortion is governed by the Penal Code and the Sanitary Code. A total ban on abortion was implemented in 1989, during the last year of the dictatorship, through an amendment to the Sanitary Code. It was only in 2017 that abortion was legalized again, but strictly under three distinct situations: if the woman’s life is at risk, if the fetus is diagnosed with a condition that renders it nonviable outside the uterus, or in cases where the pregnancy has occurred due to rape, with the gestation period capped at twelve weeks (fourteen weeks for those under 14 years of age). This legislative change, stemming from a constitutional mandate ​to protect ‘the life of​ the one about to be born,’ was hotly debated. Ultimately, the Constitutional Court upheld the legality of this limited decriminalization of abortion in a 6-4 decision.

The right and center-right dominated Council proposed a key change to the current constitution and to the draft of the Commission of Constitutional Experts, focusing on enhancing the protection of the unborn. In the debate, ​Article 4.1 of the American​ ​Convention on Human Rights​ was referenced. The distinction between ‘the law protects the life of the one about to be born’ and ‘the law protects the life of the one ​who is about to be born​’, while subtle, underscores crucial legal and ethical interpretations regarding the protection of the nasciturus. The use of ‘who’ suggests personhood, advocating for the recognition of the unborn as individuals with rights from conception. This implies a broader scope of protection, viewing the fetus as an individual entity, rather than an extension of the pregnant woman.

A referendum was announced for December 17, 2023, where Chileans will vote on whether to adopt the new constitution.

For further information, please see:

Reuters – Chile voters sour on right-wing constitution as abortion clause stirs debate – 6 Oct. 2023

Bloomberg – Chile’s Right Takes Aim at Abortion, Gender in Amendments to Constitution Draft – 18 Jul 2023

Le Monde – Chile’s draft constitution calls into question right to abortion – 24 Sept 2023

The Guardian – Chile’s right wing presents draft conservative constitution – 7 Nov 2023

AP News – Chile president calls for referendum on new constitution proposal drafted by conservative councilors – 7 Nov 2023

Inter-American Commission of Human Rights – The Death Penalty in the Inter‐American Human Rights System: From Restrictions To Abolition – 31 Dec 2011

Rodrigo Delaveau Swett – Constitution of Chile – 2021

 

Brazil Criminalizes Use of Homophobic Slurs

By: Molly Osinoff

Impunity Watch News Staff Writer

BRAZIL – In August 2023, Brazil’s Federal Supreme Court held, by a 9-1 vote, that homophobic slurs are punishable by prison. The Brazilian Association of Lesbians, Gays, Bisexuals, Transvestites, Transsexuals and Intersexes (ABGLT), an organization dedicated to protecting LGBTQ people’s citizenship and human rights, brought the case to the Supreme Court.

People marching holding a large rainbow flag | Photo Courtesy of Getty Images

In 2019, Brazil’s highest court ruled that homophobia was a crime. The decision made homophobia, as applied to the LGBTQ+ community, a crime. The recent court ruling, however, applies to attacks directed at specific individuals.

In Brazil, there is a difference between racism, which punishes discriminatory offenses against a group of people, and making a racial insult, which is a crime that penalizes a person for using race to offend another person’s dignity. ABGLT argued that a distinction between homophobia and using homophobic slurs should be made to provide broader protection to Brazil’s LGBTQ community. ABGLT advocated for a law against homophobic insults, mirroring the law prohibiting racial insults. The recent court decision effectively equates homophobia to racism.

Despite transphobia’s classification as a crime in Brazil for the past three years, Brazil is the country with the highest number of transgender and queer people murdered in the world. A report published by Transgender Europe, a network of organizations that collects and analyzes data regarding transphobia, stated that 70 percent of murders of transgender people globally have occurred in South America and Central America. Thirty-three percent of those murders occurred in Brazil.

The Court’s ruling, a recent achievement for the LGBTQ community, comes after the conclusion of President Jair Bolsonaro’s term. Bolsonaro has famously said: “”I would not be able to love a gay son. I would rather he die in an accident.” During Bolsonaro’s presidency, Brazil’s education ministry terminated its department dedicated to diversity and human rights, reversing much progress that has been made during the past ten years, including the legalization of same-sex marriage in 2013 and the legalization of name and gender changes in 2018.

The recent court decision is an important step forward in protecting Brazil’s LGBTQ community. According to the national LGBTI+ Alliance, a Brazilian LGBQT rights group, “Such a decision brings legal certainty and reinforces the court’s understanding with regard to the principle of equality and nondiscrimination.” Minister Edson Fachin called this decision “a constitutional imperative.” Brazil’s Federal Supreme Court has officially demonstrated its intent to hold individuals accountable for their homophobic language.

For further information, please see:

ABC News – Jair Bolsonaro: Controversial Far-Right Politician Elected as Brazil’s Next President, Beating Rival Fernando Haddad – 28, Oct. 2018.

Barron’s – Brazil High Court Rules Homophobia Punishable By Prison – 22, Aug. 2023.

Buenos Aires Times – Brazil High Court Rules Homophobia Punishable by Prison – 23, Aug. 2023.

Brazilian Association of Lesbians, Gays, Bisexuals, Transvestites, Transsexuals and Intersexes (ABGLT).

Brasil de Fato – Brazil continues to be the country with the largest number of trans people killed – 23, Jan. 2022.

Transgender Europe – Trans Murder Monitoring Update – 11, Nov. 2021.

Washington Post – LGBT Rights Under Attack in New Far-Right President – 18, Feb. 2019.

Experts Present Principles for International Criminal Judges

By: Sarah Sandoval 

Impunity News Staff Writer 

The Hague, Netherlands – For the past eight months, the Ecole Nationale de la Magistrature, and the Siracusa International Institute for Criminal Justice and Human Rights have been working on a project designed to unify a code of ethics for the international criminal justice system. This project, “Ethica – The path to a common code of ethics for international criminal judges,” is a result of the 2017 Paris Declaration on the Effectiveness of International Criminal Justice. 

 
Cover page of the Ethica pamphlet, which was created as part of the Ethica project | Photo Courtesy of the Nuremberg Academy
  

According to the Siracusa International Institute, the project “aims at identifying the ethical rules applicable to international criminal judges, based on concrete cases that [arose]before international criminal jurisdictions.” The principles that the project outlines have been established by a group of highly regarded international experts, who held two seminars for this purpose; one in Nuremberg on February 6, 2023, and the other in Paris on May 15, 2023. 

Though the official launch of the project is scheduled for later this month, the principles are available for viewing now on the International Criminal Court, International Nuremberg Principles Academy, and France Diplomacy websites. The pdf pamphlet outlines 25 principles in three different categories. The category of “Independence and Impartiality” includes tenets such as that “[International Criminal Judges] should exercise caution when interacting with State representatives and in particular when deciding whether to attend events organized, sponsored or cosponsored by States that may have an interest in a pending case or investigation or one likely to become so,” while one of the principles listed in the “Dignity, Integrity, and Probity” category advises International Criminal Judges to be aware of how they and their families present themselves on social media. The final category, “Career and Professional Conscience” includes a principle that states “ICJs should be physically and mentally fit to perform their functions throughout their mandate and should report any doubt about their ability to perform their judicial functions to the presidency of the tribunal.” 

The pamphlet also includes background information about how these principles should be interpreted. Specifically, it states that the ethical principles are a living document, designed to be interpreted within the broader context and “shaped by the evolution of society, technology and the needs of international criminal justice.” The principles will be presented within the next couple of months, first in Siracusa, Italy on October 13th, followed by New York, United States on October 24th, before the final presentation on November 15 in The Hague, Netherlands. 

For further information, please see: 

Ethica – Ethical Principles for International Criminal Judges – September 22, 2023

France Diplomacy – France supports the Ethica project on ethical issues in international criminal justice – September 2023

ICC – ICC President contributes to Ethical Principles for International Criminal Judges – September 26, 2023

INPA – New publication: Ethical Principles for International Criminal Judges – 

SII – “Ethica, towards a common code of ethics for international criminal judges” – May 2, 2023

 

VA Denies Healthcare to Some Overseas Veterans

By: Christina Ralph

Journal of Global Rights and Organizations Senior Articles Editor & Veterans Legal Clinic Student Attorney

In 2022, there were 171,736 United States military service members permanently stationed overseas. While these service members are representing the U.S. across the globe, they are making connections to people and places, that will last a lifetime. It is unsurprising then that most will travel abroad at some point after they finish their service, and some will make another country their temporary or permanent home. What many of the people serving our country do not know is that while they earn healthcare benefits through their service, once they are veterans should they experience a non-service related emergency while outside of the U.S., the U.S Department of Veterans Affairs (VA) will not cover the cost of their care. 

VA denies basic healthcare and even emergency care to Veterans who travel or live abroad
if their medical issue is deemed not service-connected | Photo Courtesy of Getty Images

Whether a veteran lives overseas or is just traveling outside of the US, the VA denies them reimbursement for emergency services determined not connected to their service. This includes veterans who are 100% disabled.  Thus, veterans are not provided the emergency care to which they are entitled, and which would be completely covered by the VA if their medical emergency had occurred in the US. The reimbursement process causes Veterans to wait “long periods of time and endure great financial hardships” waiting to find out whether they will be reimbursed by the VA for the cost of their emergency care. Denial of reimbursement often forces veterans to choose between their physical health and their financial well-being. 

American service members are sent all over the world as part of their service to our country. These overseas assignments are the catalyst for veterans who travel abroad and especially for those who become expatriates.  There are many reasons veterans choose to live abroad. Most common is that many, such as Ken in Germany, meet their spouses while on assignment in another country. Ken and his wife raised their daughter in Germany where he worked 21 years for the Army and Air Force Exchange Service. Despite living in Germany, Ken remains a “strongly patriotic” American citizen.  He is active in the local VFW and is the Commanding Officer of the 1982 American Legion.  While he used to travel back to the U.S. often, traveling to access VA healthcare is not a viable option for him. Now widowed, Ken resides with his daughter and his grandchildren in Germany. Ken continues to help other veterans navigate the VA claims process, even while he struggles to get the VA services he needs. 

Another reason veterans live outside the US is that they can live a better quality of life, funded by their VA retirement or disability payments, in countries where the cost of living is significantly less than it is in the U.S. Donny in the Dominican Republic, retired from the U.S. Air Force. Rather than seek work to supplement his military pension, he and his wife chose to move near her family in the Dominican Republic where the cost of living has allowed them to fully retire and have the “lifestyle they want right away”. Donny and his wife currently travel to the U.S. for their healthcare. Donny has not had an emergency in the Dominican Republic, but if he does, he plans to seek care at a private hospital, then undertake the long process of seeking reimbursement from the VA.  

As you might imagine, given that they chose to serve in the US military, these veterans are staunchly patriotic. They remain US citizens, pay US taxes, vote in US elections, and stay abreast of issues affecting the US. As Ken, in Thailand says, “An American is an American, no matter in what country he/she resides”. Regardless of the reasons for deciding to live abroad, these veterans have earned their VA healthcare benefits, but are being denied them, simply because they do not live in the U.S.

Neither the Department of Defense nor the VA tracks the number or location of veterans who live abroad. Some estimate approximately 77,058 veterans live abroad. The estimate of disabled veterans living abroad is 28,000.   These veterans are denied non-service related emergency and basic healthcare merely because they live abroad, leaving many feeling forgotten and abandoned by the very agencies that are tasked with honoring their service by providing the benefits they have earned. This was especially true during the Covid pandemic when the VA refused to provide vaccinations, tests, or care for Veterans who were not in the US. Jesse in Mexico, suffers from service-connected sleep apnea, but could not get a Covid vaccine. In his opinion, veterans living abroad were “completely left behind”. Despite begging the VA for help, Jesse and others like him were denied assistance. According to Jesse, it is because expatriate veterans “are obviously not very high on the secretary’s list of priorities.”  It is hard to argue with his logic given that reimbursing veterans for the cost of emergency care is at the discretion of the VA secretary, but the VA still chooses to outright deny veterans coverage for non-military related emergency care outside the US. 

Representative Dingell of Michigan declared, “no veteran should ever have to worry about whether they can afford costly medical expenses, especially when it comes to an emergency,” when, in 2021, legislation was passed requiring the VA to reimburse veterans for emergency health care claims. However, the VA has interpreted the legislation to exclude emergencies experience by veterans outside the U.S., despite the provision having no such limiting language. So, veterans traveling or living abroad are still being denied emergency services when their medical issue is deemed not service-related, requiring veterans to pay for these emergency services out of pocket.  The government has been discussing the issue of healthcare benefits for veterans who travel or live abroad since at least 1962, but the problem persists.  

Even though the well-being, and even the lives, of tens of thousands of veterans, are affected by the lack of basic healthcare and medical emergency coverage they have earned through their service the VA claims it cannot act, and neither Congress, nor the courts, seem willing to act on what they claim is a complicated issue. But veterans around the world do not see it that way. As Ken in Thailand says it is simply “shameful at best; cruel and deceitful at worst” that the VA makes a veteran’s location a condition of receiving healthcare benefits. 

For more information, please see:

Blumenthal & Dingell Introduce Legislation Requiring VA to Reimburse Veterans for Emergency Health Care Claims – 10 Aug. 2021

Court Rules that VA Must Reimburse Veterans for Emergency Care at non-VA Facilities – 3 Nov. 2022

Disabled American Vets Living Overseas Are Getting Screwed Out of Healthcare – 12 May 2018

Expat Retiree Profile: Retiring in the Dominican Republic – 26 Apr. 2023

Medical Care for Veterans Outside the U.S. – 7 Aug. 2022

The Civilian Lives of US Veterans: Issues and Identities – 2016

USA Facts – What Is the State of the Military and How Are US Veterans Faring?

Van Dermark v. McDonough, 57 F.4th 1374 (Fed. Cir. 2023)Vets Living Abroad Left to Navigate Pandemic Problems Without VA Help – 9 Dec. 2020