Memory and Transitional Justice in Argentina and Uruguay

Against Impunity

Francesca Lessa

• Publisher: Palgrave Macmillan
• Year: 2013
• Print ISBN: 9781349443918, 9781137269386
• eBook ISBN: 9781137269393
• Topic: Politics & International Relations
• Subtopic: Civil Rights in Law
• Index: Politics & International Relations

This interdisciplinary study explores the interaction between memory and transitional justice in post-dictatorship Argentina and Uruguay and develops a theoretical framework for bringing these two fields of study together through the concept of critical junctures.

Chapter 1

Theoretical Framework

Critical Junctures, Transitional Justice, and Memory Narratives

What is the relationship between transitional justice and memory? Despite the importance of this question, scholars have largely left it unanswered. In fact, the present trend is to tackle transitional justice (TJ) and memory separately, with some researchers working on transitional justice—mostly in the social sciences—and others working on memory—mainly in the humanities. As Barahona de Brito has rightly argued (2010, 359), “studies of transitional justice . . . and memory studies . . . have not crossed paths.”

Undeniably, there were some initial links between TJ and memory in the work of some scholars, in particular those looking at memorialization through commemorative dates, museums, and memorials, relating to the traumatic events of the military dictatorships in the Southern Cone of Latin America (Jelin 2002; Jelin and Langland 2003; Lazzara 2006; Wilde 1999, 2008).

The unique contribution of this book is therefore to take these preliminary steps forward and develop a new approach that explores the interrelationship between TJ and memory, employing the concept of “critical junctures” from the literature on political change, to better understand modifications in TJ and memory narratives over time. Attention is also focused on “memory narratives” to see how they are activated and used for political purposes to justify the adoption of specific TJ policies. The book uses critical junctures—moments of change or transition—and demonstrates how they help explain shifts in TJ and memory; critical junctures do not necessarily generate new TJ mechanisms or memory narratives but rather account for why they evolve and change across time. This project is in line with an existing trend within the literature; indeed, TJ has become increasingly relevant to other academic disciplines. Numerous publications have lately explored the relationship between TJ and other fields, such as development (de Greiff and Duthie 2009; Mani 2008), gender studies (Duggan, Paz y Paz Bailey, and Guillerot 2008; Rubio-Marín and Sandoval 2011), peace building (Lambourne 2009), human rights (Lessa 2011a), and memory studies (Barahona de Brito 2010).

This chapter initially deals with TJ and memory studies literatures individually, defining and outlining key concepts and debates, and then attempts to bring them together in the concluding section on critical junctures. The chapter endeavors to build a new framework for conceptualizing and analyzing the relationship between TJ and memory, and it argues that it is important to detect and categorize critical junctures and their exact nature to better understand modifications to TJ policy and the accompanying changes to hegemonic memories in societies that are coming to terms with difficult pasts.

Transitional Justice

TJ materialized as a field of policymaking and an academic discipline in the 1980s, examining how societies emerging from authoritarian rule or conflict came to terms with past atrocities. Back then, it drew upon the work of leaders and scholars in Latin America who, upon redemocratization, had to tackle the dilemmas associated with balancing demands for justice and redress for human rights abuses without jeopardizing newly acquired and often fragile democratic structures (Alfonsín 1993; Malamud Goti 1990; Nino 1991; Sanguinetti 1991; Zalaquett 1992). An unprecedented rise in efforts to pursue accountability domestically and internationally has since unfolded, prompting “a global phase of transitional justice” (Teitel 2008, 2).

TJ has come a long way; from its origins in international law and political science, it now embraces several disciplines such as anthropology, peace and conflict studies, international relations, psychology, and sociology. By 2013, it had two dedicated journals, the International Journal of Transitional Justice and the Transitional Justice Review; a burgeoning bibliography of almost 2,500 scholarly publications;¹ several research institutes and INGOs, including the International Center for Transitional Justice in New York City; a rising number of panels at international conferences; a network of national and international experts and policymakers; academic centers like the Transitional Justice Institute at the University of Ulster; and offices in international organizations and UN-sponsored publications, such as the Rule-Of-Law Tools for Post-Conflict States series. Unsurprisingly, it was recently labeled the “incredibly fast field” (Bell 2009, 6).

The literature abounds with descriptions of the term TJ; therefore, it is important to specify which definition is followed here. The 2004 UN Secretary General report The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies defined TJ as comprising

the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof. (UNSG 2004, 4)

This characterization importantly underscores the complex and multiple moral, ethical, and political questions associated with transitions and human rights violations; encompasses a variety of TJ mechanisms of both retributive and restorative natures; and recognizes the numerous spheres on which TJ unfolds at national, regional, and international levels.

TJ policies and mechanisms attempt to bridge “a violent or repressive past and a peaceful, democratic future,” establishing a clear distinction between “‘now’ and ‘then’” (Nagy 2008, 280). Although there is no agreement on how best to confront the past, there is a shared recognition that “some crimes are of such a magnitude that the wounds they leave in society cannot and must not be simply swept under the rug” (Méndez 1997b, 1) and that revealing the truth about past abuses amounts to a “non-negotiable moral obligation of governments” (Orentlicher 2007, 12). In the 1980s, trials were perceived as the optimal method for responding to atrocities (Bassiouni 1996; Méndez 1997a; Van Dyke and Berkley 1992). Indeed, legalistic arguments supported the existence of a universal duty to prosecute perpetrators of crimes like torture, genocide, and war crimes—notably defined as the “prosecution preference” (Aukerman 2002, 39–40). Other scholars however presented more nuanced positions (Kritz 1996; Nino 1991; Zalaquett 1992). Diane Orentlicher, for instance, recognized that a duty to prosecute could not be construed as demanding actions incompatible with political and legal dynamics on the ground and be systematically applied to all cases; instead, a limited and selective program of exemplary trials of individuals most responsible might be sufficient (Orentlicher 1991).

Frequently, issues central to TJ challenges were presented through a “dualized way of thinking” (Moon 2008, 19), as encompassing dichotomous positions: truth versus justice; restoration versus retribution; national political order versus international legal imperatives; trials versus forgiveness; peace versus justice; and amnesty versus punishment. These tensions, summarized for a long time by the truth versus justice dilemma, have recently been transcended and replaced by the acknowledgment that there is no consensus on how best to deal with the past (Biggar 2001). In fact, as Juan Méndez importantly noted, “what has worked in one country may fail in another” (Méndez 2009, 160). Truth and justice are no longer seen as mutually exclusive positions but as complementary processes (Roht-Arriaza 2006). Indeed, the “prosecution preference” has been replaced by holistic approaches that focus on the intertwined sets of obligations and needs arising in the aftermath of systematic crimes, which include elements of truth, justice, reparations, memory, and guarantees of nonrepetition (Fletcher and Weinstein 2002). This shift also reflected the changing nature of transitional societies over past decades. While in the 1980s and early 1990s TJ mainly occurred after episodes of state terrorism, lately it arises in the aftermath of armed conflict and during transitions toward edgy peace (Branch 2007; Longman 2006; Wigglesworth 2008). Because of the complexities that define contemporary transitional societies, there is now increasing attention being paid to local dynamics, culture, and heritage with the awareness that TJ “must be both contextually and culturally appropriate” (Lutz 2006, 333). Several examples of grassroots (local or customary) mechanisms and traditional practices of communal justice have been studied, such as East Timor’s dispute-resolution process of nahe biti bot (unrolling of the mat), the Acholi (Luo) reconciliation mechanism of mato oput in Uganda, Rwanda’s gacaca courts, and Mozambique’s healers (curandeiros) (Huyse and Salter 2008; Shaw, Waldorf, and Hazan 2010).

To assess whether TJ mechanisms actually work in practice, some scholars have recently begun to study their impact by empirically testing claims—previously derived from single case studies—and developing large-N datasets (Kim and Sikkink 2010; Thoms, Ron, and Paris 2010; Van der Merwe, Baxter, and Chapman 2009). For example, the “justice balance” theory developed by Tricia Olsen, Leigh Payne, and Andrew Reiter (2010) calls for a holistic approach to TJ. Their statistical analysis showed how no single TJ mechanism reduced human rights violations or strengthened democracy on its own; rather, a combination of two or more mechanisms (trials and amnesties; or trials, amnesties, and truth commissions) produced statistically significant improvements because of their net positive impact on human rights and democracy indices in transitional societies.

Before examining the memory literature, the key TJ mechanisms discussed later in the empirical chapters are briefly outlined here. These tools—some new, some preexisting—were developed while endeavoring to strike an often difficult balance between demands for justice by victims and requests for impunity by perpetrators in the aftermath of violence; these encompass amnesty, truth commissions, reparations, prosecutions, lustration and vetting, and grassroots approaches. This book focuses on four of these, namely amnesties, trials, truth commissions, and reparations, with a brief and basic description of each provided here. Detailed discussions and debates surrounding each tool cannot be fully addressed in the following sections; however, there is a wealth of literature worth exploring for that purpose.

Amnesties

For long, confronting the past simply meant turning the page: amnesties were enacted before or in the aftermath of transition in places as varied as Brazil, Cambodia, Chile, Spain, Uganda, and South Africa (Lessa and Payne 2012). Amnesties have existed since ancient times with the word amnestia meaning forgetfulness or oblivion in ancient Greek (Joinet 1985; Mallinder 2008). Essentially, amnesties officially terminate liability for specific crimes committed by particular individuals and/or groups, eliminating the possibility of criminal and civil prosecution (Walsh 1996); conversely, pardons are executive actions that mitigate or set aside punishment for a crime (Huyse 1995).

Amnesties and pardons are generally granted by the executive or the legislature; they often are component parts of peace accords, offered in exchange for the end of hostilities or to demobilize and resettle combatants (Clark 2012). Former perpetrators frequently retain significant authority and influence in new democratic settings and can pose a real threat to the country’s stability and democratic consolidation (Cohen 1995). Thus, despite the fact that international and regional human rights bodies have considered amnesty laws incompatible with state obligations (see sentences by the Inter-American Court of Human Rights (IACtHR) in the Barrios Altos, Almonacid Arellano, and Gomes Lund cases), amnesties and pardons have long been the norm in a context of impunity (Laplante 2009). Over the past 30 years, in spite of advances in human rights accountability, amnesties have continued to be granted at a steady rate (Mallinder 2012).

Trials

Since the mid-1970s, dominant impunity began to be challenged by the onset of prosecutions for atrocities. The so-called justice cascade (Lutz and Sikkink 2001) describes the dramatic “shift in the legitimacy of the norm of individual criminal accountability for human rights violations and an increase in prosecutions on behalf of that norm” (Sikkink 2011, 5). Three types of trials for human rights violations can be distinguished: domestic, foreign, and international (Sikkink and Booth Walling 2007). Domestic trials are conducted in a country for violations committed in that same country; examples encompass ongoing prosecutions against members of the Pinochet regime in Chile and the 2009 trial of former president Alberto Fujimori in Peru (Burt 2009). Since the 1990s, foreign and international fora have also played a key role in accountability. Foreign trials make use of the judicial system of a state—other than the one where abuses were committed—to prosecute individuals responsible; these prosecutions rely on claims of universal jurisdiction as in Spain or Belgium, or the passive personality principle as in proceedings in Italian, French, and Swedish courts regarding crimes in the Southern Cone. International trials are instead prosecutions for atrocities committed in a particular country or conflicts that take place at the global level, such as the UN International Criminal Tribunal for the former Yugoslavia (ICTY) and for Rwanda (ICTR), and the International Criminal Court (ICC).

Truth Commissions

Since the mid-1980s, truth commissions have proliferated, particularly in the Americas and Africa; Archbishop Desmond Tutu notably defined them as a “third way” between trials and blanket amnesty or national amnesia (Chapman and Ball 2001, 2). The first commissions were set up in Uganda in 1974 and in Bolivia in 1982 (Hayner 1994), but it was Argentina’s CONADEP in 1983 that was the first to complete a final report and receive widespread international attention (Grandin 2005).

Since then, approximately 70 commissions have been established throughout the world, from Chile and South Africa to the most recent ones in Canada and Brazil. In parallel to the justice cascade, a “truth cascade” has occurred, with truth commissions being “fashionable” in times of transition (Daly 2008, 23) and becoming “a staple of the transitional justice menu” (Roht-Arriaza 2006, 4). Truth commissions are “bodies set up to investigate a past history of violations of human rights in a particular country—which can include violations by the military or other government forces or by armed opposition forces” (Hayner 1994, 600). They focus on truth finding, more precisely the official documentation and acknowledgment of past crimes (Chapman and Ball 2001). Over time, truth commissions have adopted different formats, mandates, time limits, staff, budget, resources, and structures. These bodies share four characteristics: they focus on the past; they investigate a pattern of abuses over a period of time—rather than a specific event—while attempting to sketch the overall picture; they are temporary bodies, existing for a limited, predefined, period of time, and cease to function upon submission of the final report; and they are officially sanctioned and established by states or international organizations in order to have greater access to information (Hayner 2001).

Reparations

Truth alone is often insufficient for victims: “In the absence of other positive and tangible manifestations truth, by itself, can easily be considered as an empty gesture, as cheap and inconsequential talk” (de Greiff 2006b, 2). Under international law, measures used to remedy harm can take five forms: restitution, compensation, rehabilitation, satisfaction, and guarantees of nonrecurrence (UNG 2005). The victims’ right to reparations is rooted in tort law (Roht-Arriaza 2004) and the doctrine of state responsibility, according to which “the state has a duty to compensate victims for breaches of state obligations” regardless of leadership changes (Walsh 1996, 112). In the context of TJ, reparations demonstrate the willingness of the state to accept liability and acknowledge human rights crimes, to satisfy the need for justice stemming from victims and societies, and help them rebuild their lives (Laplante and Theidon 2007). Reparations occupy a unique space among TJ measures as they not only recognize individual suffering but also seek to attain national and individual reconciliation (de Greiff 2006a, 2006b). They denote sets of coordinated measures that endeavor to provide direct benefits to victims; they can be material or symbolic, and distributed individually or collectively (Garcia Godos 2008). Material reparations constitute a form of compensation, that is, payments in cash, or service packages, such as provisions for education, health, and housing. Symbolic reparations fall under satisfaction and may include official apologies, changing names of public spaces, the establishment of commemorative days, memorials to the victims, and assistance in reburials and culturally appropriate mourning ceremonies (Brett et al. 2008; Hamber and Wilson 2003). Individual reparations give concrete benefits to recipients and underscore the value of each human being, while collective reparations focus instead on delivering benefits to people who suffered as a group (Magarrell 2007). Reparations programs have been adopted across the world, from Argentina, Chile, and Colombia to Malawi and Peru (de Greiff 2006a; Gualde and Luterstein 2009).

After this brief overview of central debates in the TJ literature and a concise description of its main mechanisms in this section, the next section focuses on memory studies, outlining its key concepts and debates, and discussing memory narratives and their relationship with TJ mechanisms.

Memory Studies

Similar to TJ, memory studies has also witnessed an unprecedented development and attracted rising academic interest; this has led scholars to voice an unparalleled concern, sometimes an obsession, with memory (Huyssen 1995; Traverso 2007). In fact, memory has become a central concept for research, touching nearly every academic field in the humanities and the social sciences (Radstone 20...

Table of contents

• Cover
• Title Page
• Introduction
• 1   Theoretical Framework: Critical Junctures, Transitional Justice, and Memory Narratives
• 2   The Downward Spiral toward Dictatorship
• 3   Transitional Justice in Argentina (1983–2012): A Global Protagonist with Its Ups and Downs
• 4   Reconciliation versus Justice: Entwining Memory and Transitional Justice in Argentina
• 5   Transitional Justice in Uruguay (1985–2012): Latecomer or Unique?
• 6   Pacification or Impunity? The Ley de Caducidad and the Interweaving of Memory and Transitional Justice in Uruguay
• Conclusion
• Appendix 1   Details of Interviewees
• Appendix 2   Abbreviations
• Notes
• Bibliography
• Index