Transitional Justice in Latin America

The Uneven Road from Impunity towards Accountability

Elin Skaar, Jemima Garcia-Godos, Cath Collins

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317526209
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This book addresses current developments in transitional justice in Latin America – effectively the first region to undergo concentrated transitional justice experiences in modern times. Using a comparative approach, it examines trajectories in truth, justice, reparations, and amnesties in countries emerging from periods of massive violations of human rights and humanitarian law. The book examines the cases of Argentina, Brazil, Chile, Colombia, Guatemala, El Salvador, Paraguay, Peru and Uruguay, developing and applying a common analytical framework to provide a systematic, qualitative and comparative analysis of their transitional justice experiences. More specifically, the book investigates to what extent there has been a shift from impunity towards accountability for past human rights violations in Latin America. Using 'thick', but structured, narratives – which allow patterns to emerge, rather than being imposed – the book assesses how the quality, timing and sequencing of transitional justice mechanisms, along with the context in which they appear, have mattered for the nature and impact of transitional justice processes in the region. Offering a new approach to assessing transitional justice, and challenging many assumptions in the established literature, this book will be of enormous benefit to scholars and others working in this area.

Chapter 1

Introduction

The accountability challenge

Elin Skaar, Jemima García-Godos, and Cath Collins^*

The Latin American region often evokes associations with turbulent politics, military regimes, fragile or patchy rule of law, and high levels of inequality. The Central American and Andean countries, including Colombia, are often characterised as riven by criminality linked to the drug trade and/or migration. The southern part of the region is known for brutal military dictatorships that used violence against guerrilla insurgencies, leftist activists, and members of social movements, casting a shadow of state terror over entire societies in the 1960s and 1970s.

Yet in recent decades, beginning in the 1980s, Latin America has been a pioneer in transitional justice mechanisms aimed at confronting the legacy of past military rule or internal armed conflict. As such, it was one of the first regions of the world to attract the sustained attention of transitional justice theorists and practitioners. Indeed, the term ‘transitional justice’ was coined by analysts whose attempts to construct a concept, and a field, drew in large part on the Latin American struggle in the 1980s and 1990s to deal with the terrible human cost of repressive dictatorships.

The course of transitional justice in the region has been uneven, both over time and between different countries. Initial efforts by Latin American states in transition from military rule or internal armed conflict were characterised by a strong emphasis on pragmatic or enforced accommodation around justice, combined with halting and incomplete programmes for truth-telling. Impunity through amnesties for past violations and concessions to elites were often considered essential to avoid the breakdown of the transition. Even large-scale, deliberate slaughter, such as the Guatemalan genocide of the 1980s, was rarely punished after transition to a new regime.

Nevertheless, on balance, Latin America is arguably the region of the world that has done the most to deal actively with serious crimes committed through the state apparatus and by non-state actors during past periods of military dictatorship or internal armed conflict. Why and how have some countries in the region been more able than others to address past political violence, sometimes more robustly than they deal with contemporary criminality? This question is the focus of our book.

We aim to describe and account for the recent transitional justice trajectory of Latin America by looking at the individual paths of nine countries. Although conventional analyses of transitional justice in the region focus primarily on the 1980s and 1990s and the initial transitions to democracy, this book extends the analysis into the first decades of the twenty-first century. It also focuses on specific transitional justice mechanisms rather than on the broad canvas of political transition.

We highlight complex patterns of changes over time with respect to impunity and accountability. Transitional justice trajectories that initially combined truth commissions with blanket amnesty for perpetrators, at the time of regime change or the signing of a peace agreement, have often later undergone substantial change in areas such as official and unofficial truth-telling, demand for and delivery of reparations, memory and counter-memory initiatives, and, most notably, persistent or resurgent demands for formal justice proceedings against perpetrators of historic crimes. What Geoffrey Robertson has called the ‘age of human rights enforcement’ (2013, xxxiii) has also been described as the ‘age of accountability’ (Sikkink 2012, 19). In the twenty-first century, in Latin America and beyond, transitional justice challenges are increasingly framed in the language of rights, entitlements, and obligations rather than of political bargaining, concessions, and expediency.

New patterns of transitional justice

In late 2015, as this book is completed, several examples of vibrant transitional justice activity are under way in the region. The ‘Operation Condor’ trials unfolding in courtrooms in Buenos Aires represent the largest and most extensive efforts to date in Latin America to systematically try military officials for cross-border crimes committed during the 1970s and 1980s.¹ Twenty-one defendants, all retired military officials, are facing charges of kidnapping and illicit association involving 106 victims and around 500 witnesses. The oral hearings are expected to last two years; a long prior investigation phase has already been completed. Such large-scale criminal investigations reinforce Argentina’s current image as a protagonist of transitional justice.

Other Latin American countries have also seen recent justice activity over past violations such as forced disappearances, torture, extrajudicial killings, and crimes against humanity. This activity has been entirely home-grown, since no ad hoc or hybrid tribunals have operated in the region, and the International Criminal Court (ICC) has no temporal jurisdiction except, potentially, in the case of Colombia. In September 2012, Brazil opened its first state-sponsored criminal complaint against former military officials accused of torture during its last period of right-wing military rule, 1964–85. Only a few months earlier, President Dilma Rousseff had inaugurated the first official truth commission to examine a range of abuses committed during that regime.

As the first court case was under way in Brazil, prosecutors in Guatemala were preparing the trial of former general and ex-head of state Efraín Ríos Montt in a case that had bounced between Spanish and national courts. The Guatemalan Court for High Risk Crimes (Tribunal A de Mayor Riesgo) in May 2013 found Ríos Montt guilty of command responsibility for massacres against Ixil Maya indigenous people in Guatemala and sentenced to him to 80 years in prison. Although the Constitutional Court later set aside the judgment because of alleged procedural errors, this case marked the first time that a former head of state had been found guilty of genocide and crimes against humanity by the national justice system of his own country.

The unsuccessful battle to extradite former Chilean dictator Augusto Pinochet from the United Kingdom to Spain, which began in 1998, evoked the post-Nuremberg principle of universal jurisdiction. It became part of the back story to the founding of the ICC through the adoption of the Rome Statute in 1998 and its entry into force in 2002. The 2007 extradition of former Peruvian head of state Alberto Fujimori from Chile to Peru to face trial made him the first former head of state to be successfully prosecuted by a home-country court for gross human rights violations.

Developments in historical memory and truth-telling have been equally striking, fundamentally changing how violent events are remembered and retold (Atencio 2014; Hite 2013; Lessa 2013). Both in terms of formal judicial action and in terms of memory, the violent past is being remembered and acted upon.

Temporal distance from the violence and the levels of brutality involved vary significantly across countries. Gross human rights violations committed during dictatorships in Brazil and the Southern Cone (Chile, Argentina, Uruguay, Paraguay) in the 1970s and 1980s were matched, and even outstripped, by broad and intense fatal violence during internal armed conflicts in other parts of the region (Guatemala, El Salvador, Peru) from the 1960s to the 1990s. The conflict in Colombia continues, despite important strides in 2015 towards a peace agreement. Although it is an outlier in a temporal sense, the Colombian case is included here as a novel (for the region) example of efforts to consciously deploy transitional justice strategies and mechanisms even before completion of a peace settlement.

Gross violations, as well as early efforts to address or move beyond them, occurred in country contexts where impunity was part of the historical and social landscape. Elite actors and institutions generally expected, and usually secured, exemption from the legal, social, and political rules that applied to other members of society. This sense of being ‘untouchable’ inspired some of the worst expressions of state and paramilitary violence.

Given this reality, many of the transitional settlements of the 1980s and early 1990s focused on formal political change rather than substantive efforts to hold accountable those responsible for past violence. The motive was not always fear or incapacity. Sometimes there was a genuine belief that concessions providing impunity to former authoritarian regime figures or non-state combatants would, by securing peace and/or democracy, give rise to changes that would eventually weaken – or even overcome – such distorted patterns of privilege and of being ‘above the law’. Even after successful transitions to peace or democratic government, full accountability was more the exception than the rule. Amnesty, whether written or unwritten, was the predominant response to past violations of human rights or of international humanitarian law.

Since the late 1990s, however, a different pattern has begun to emerge. In the more recent Latin American cases, that is, those countries embarking on transitional justice trajectories, truth commissions remain the most common policy response. However, they are much less likely than before to be accompanied by the introduction of blanket amnesty laws preventing criminal prosecution.² Today, more perpetrators are facing prosecution, domestic amnesty laws are being weakened or dismantled, and victims’ rights have entered the public arena in a much more forceful way than previously. This suggests that the former picture of impunity in the formal judicial sphere is fading or at least changing. Reparations to victims and survivors have become a standard part of the post-violence repertoire, with more robust and internationally enshrined requirements for their scope.

What explains this observable shift from impunity towards accountability for past human rights violations? In order to explore when, how, under what conditions, and in response to whose agency accountability processes unfold, this book traces experiences since the 1980s in nine Latin American countries: Argentina, Brazil, Chile, Colombia, El Salvador, Guatemala, Paraguay, Peru, and Uruguay. The empirical description is fr...

Table of contents

• Cover
• Endorsement
• Half Title
• Series Information
• Title Page
• Copyright Page
• Dedication
• Contents
• List of tables and figures
• List of Contributors
• Acknowledgements
• Abbreviations
• Chapter 1 Introduction: The accountability challenge
• Chapter 2 Analytical framework
• Chapter 3 Argentina: Regional protagonist of transitional justice
• Chapter 4 Uruguay: Halfway towards accountability
• Chapter 5 Brazil: The tortuous path to truth and justice
• Chapter 6 Chile: Incremental truth, late justice
• Chapter 7 Paraguay: Accountability in the shadow of Stroessner
• Chapter 8 El Salvador: The difficult fight against impunity
• Chapter 9 Guatemala: Truth and memory on trial
• Chapter 10 Peru: Beyond paradigmatic cases
• Chapter 11 Colombia: Transitional justice before transition
• Chapter 12 Conclusions: The uneven road towards accountability in Latin America
• Appendix 1: Impunity and accountability factors
• Appendix 2: Guiding questions and evaluation of specific TJMs
• Index