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Home > JHR > Vol. 6 > Iss. 1 (2008)

 

Abstract

The Mapuche of South America have long struggled to maintain control over their ancestral lands, territory that now falls under the sovereign domain of Argentina and Chile. Since Chilean independence in the 19th century, the relationship between the Mapuche and the Chilean government has ranged between full-blown conflict and various forms of compromise and accommodation. However, over the past few decades, the Chilean government's economic interests in Mapuche lands have grown significantly and the government has seized control of significant portions of the lands. The Mapuche have consistently resisted the government's encroachment on their lands and have protested through both violent and non-violent means. Faced with mounting pressure from government and business interests to quell Mapuche opposition, the Chilean government recently turned to an archaic terrorism statute left over from the Pinochet regime. By prosecuting Mapuche defendants under the terrorism statute, the government was able to bypass procedural protections afforded to non-Mapuche defendants accused of similar conduct under the ordinary criminal code.

This comment argues that the Chilean government's misuse of the terrorism statute exemplifies the need for discrete consideration of indigenous and minority group treatment when analyzing whether a country conforms to rule of law principles. Minority and indigenous groups are most vulnerable to breakdowns in the rule of law, a reality that is only amplified by the current geopolitical climate of counterterrorism. Therefore, the comment argues that rule of law analyses, by considering the particular vulnerability of indigenous and minority populations, can play a pivotal role in striking the proper balance between counterterrorism and human rights.

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