Balmaceda, head of the investigation into irregular adoptions. In charge of this file for 5 years, the judge has 1,100 international adoption files to process, covering the period 1970 – 1999. To date, 650 files have been analyzed. The judge declared: “during the five years of investigation, I have not succeeded in establishing the commission of a crime”.
This partial assessment may seem surprising if we consider the circumstances in which international adoption of Chilean children developed. The dictatorship of General Pinochet (1973 -1990) is known for having resorted to forced disappearances of political opponents and discrimination against indigenous minorities. The government, aware of its “image deficit” internationally, and considering the number of “orphan” children, opened the country to international adoption, thus hoping to give the world a more human face of the regime. Several thousand children have been adopted in Western countries, for example in Sweden , France, the United States and Switzerland. The context was therefore conducive to abuse, and today, many Chilean families are demanding accountability (see also my publication of 01/13/2023).
To explain this lack of convictions, it must be emphasized that Judge Balmaceda does... the work of a judge: he analyzes the facts and decides whether they constitute a crime within the meaning of the law. The judge notes that although it sometimes came close, it was not possible to construct a legal argument that could lead to a conviction: “All the people who seem concerned and who are alive have been heard, but the existence of a punishable act could not be established, nor the presumptions allowing the qualification of participation in the facts as author, accomplice or receiver. The people who seemed most involved in the facts and who could possibly have established some responsibility, are now deceased.” Asked how to qualify the facts reported by the victim families, the judge replied: “It is difficult to judge the events of the time with today's mentality. Most of the 1,100 cases occurred before 1989, when the legislation was changed and was vastly different from what it is today. It included far fewer guarantees and made it possible to place children with people for adoption.” The judge also details the processes which made it possible to achieve a national or international adoption, and notes how difficult it is to question practices which, at the time, were, at least formally, in conformity with the law in force. And the judge concluded: “an act may be morally reprehensible, but I am the criminal judge, and I must punish behavior that constitutes a crime.”
This testimony is important in light of current debates surrounding responsibilities linked to irregular adoptions of the past. It sheds very specific light on the way in which these acts can be qualified from a purely criminal point of view. If the observation of the impossibility of a criminal conviction can be difficult for the victims to accept (the organization “Hijos y Madres del Silencio” has also requested the resignation of the judge following this article), “the exercise Chilean” has the merit of demonstrating that the legal route is not always the preferred route. Of course, this does not mean that nothing wrong was done and that we should move on; In this sense, historical studies and restorative measures remain absolutely necessary.
But this new piece of the puzzle questions more broadly initiatives aimed at “criminalizing” practices linked to irregular adoptions, in particular those which seek to qualify them as crimes against humanity. Having already expressed myself several times on the subject, I am not going to reopen the debate here, but Judge Balmaceda's findings raise questions: if ordinary criminal law does not allow conviction, is it a question of persisting in this direction and to try to construct other legal reasoning to achieve a conviction “at all costs”? Or is it rather a matter of taking note of the fact that the law's response is precisely to say that it is not possible to convict? Naturally, the diversity of contexts, eras and actors could allow other conclusions to be reached. The fact remains that the law is also subject to general principles of human rights (no punishment without law for example) which must also be respected.
