New Critical Spaces in Transitional Justice

Gender, Art, and Memory

Arnaud Kurze, Christopher K. Lamont

• Publisher: Indiana University Press
• Year: 2019
• Print ISBN: 9780253039903
• eBook ISBN: 9780253039927
• Topic: Politics & International Relations
• Subtopic: International Law
• Index: Politics & International Relations

Since the 1980s, transitional justice mechanisms have been increasingly applied to account for mass atrocities and grave human rights violations throughout the world. Over time, post-conflict justice practices have expanded across continents and state borders and have fueled the creation of new ideas that go beyond traditional notions of amnesty, retribution, and reconciliation. Gathering work from contributors in international law, political science, sociology, and history, New Critical Spaces in Transitional Justice addresses issues of space and time in transitional justice studies. It explains new trends in responses to post-conflict and post-authoritarian nations and offers original empirical research to help define the field for the future.

PART I

ART, ACTIVISM, AND POLITICS: REDEFINING SPACE IN TRANSITIONAL JUSTICE

1

BORROWING ACHILLES’S ARMOR

The Political Afterlife of Former Transitional Justice Mechanisms

Marcos Zunino¹

IN BOOK FIFTEEN OF THE ILIAD, ACHILLES’S REFUSAL to take part in the fighting leads to the Greeks being pushed back against their ships by the surging Trojan forces. To prevent a disastrous end to the expedition, Patroclus convinces his friend Achilles to lend him his conquering armor to lead the Myrmidons into battle.² Just as Patroclus sought to use someone else’s arms to help him in combat, in 2013 both the Argentine government and the political opposition tried to borrow the prestige of past human rights policies and institutions to help them in their political fray. In this manner, the victorious armor of successful transitional justice mechanisms is worn by different political groups with different purposes.

Argentina has long been at the forefront of the development of transitional justice. The trials of the military in the 1980s and the difficulties surrounding them left a mark in the discourse and practice of transitional justice. So, too, did the National Commission on the Disappearance of Persons (Comisión Nacional sobre la Desaparición de Personas [CONADEP]), established in 1983 to reveal the whereabouts of those abducted by the security forces. Argentina has also been conspicuous in other areas of transitional justice such as the use of forensic anthropology, innovative litigation strategies, and championing global justice in international forums.³ In fact, Argentina has been recently ranked as the most successful country in Latin America in achieving accountability for past human rights violations.⁴

This chapter concentrates on another way in which developments in Argentina seem to be pushing the boundaries of the space of transitional justice. Two recent events indicate that truth commissions have been proposed for uses that depart from their ordinary scope and purpose. In this sense, the meaning of the concept of truth commission is being expanded. The first example of such an expansion relates to the 1994 bombing of a Jewish community building in Buenos Aires. In a context of Argentine judicial proceedings paralyzed due to the impossibility of questioning Iranian suspects, Argentina signed in 2013 a memorandum of understanding with the Islamic Republic of Iran to establish a truth commission. This body would be composed of international legal experts who would review the evidence and make recommendations on how to move forward with the investigation. The second example refers to the proposal by politicians then in the opposition to establish a national commission on public ethics (Comisión Nacional de Etica Pública [CONAEP]). In a political scenario where the government was accused of corruption, this institution, expressly modeled on the 1983 CONADEP, would investigate and report on acts of corruption by state officials.

What these proposed institutions have in common is the use of the name “truth commission” despite the differences separating them from previously established bodies. One of the foremost experts on truth commissions, Priscilla Hayner, defines them as “official bodies set up to investigate and report on a pattern of past human rights abuses.”⁵ Likewise, according to the United Nations, truth commissions “are official, temporary, non-judicial fact-finding bodies that investigate a pattern of abuses of human rights or humanitarian law committed over a number of years.”⁶ Neither the panel of international legal experts tasked to review the existing evidence of a criminal investigation nor the proposed commission to investigate corruption seem to fit comfortably these definitions.

Transitional justice occupies a distinct discursive space with its own objects, concepts, and themes. Within this space, actors deploy concepts, to which they attribute varying connotations according to their perspective. This process is made possible because the meaning of the concepts of transitional justice is not fixed. They function as what Ernesto Laclau and Chantal Mouffe have called floating signifiers: concepts that can be filled with different meaning depending on the strategy of the actor.⁷ In assigning new meanings to concepts, the actors push the boundaries of the space of transitional justice, introducing new ideas and expanding the scope of particular mechanisms. This process can be driven by intellectual convictions as well as by political considerations.

This chapter argues that the appeal to the expanded concept of truth commission in the two Argentine cases represents an attempt by political actors to borrow from the prestige that CONADEP has in Argentine society. In one instance, by calling the international panel a truth commission, the government sought to minimize the perception that the memorandum signed with Iran was a capitulation of the demand for justice following a terrorist attack. In the other case, the political opposition’s constant reference to CONADEP aimed at stressing the seriousness of the corruption they claimed enveloped the government, thus undermining the government’s human rights credentials.

These two examples demonstrate that the space of transitional justice is not static and that the concepts that populate this arena are open to contestation and strategic redefinition for political purposes. Both the government and the opposition deployed the concepts of transitional justice and human rights in this way. In doing so, they were stretching the meaning of the concept of truth commission.

Moreover, these cases reveal how past transitional justice mechanisms and human rights policies can be utilized for political reasons. Whereas extant initiatives can often be the object of political manipulation,⁸ these Argentine examples are cases of the memory of a past institution being coopted and fought over.

In order to develop this argument, this chapter analyzes the political discussions surrounding the two proposed truth commissions. It pays particular attention to politicians’ statements as well as to journalistic coverage of these proposals to glean how they were perceived by opinion makers and the public. When considering the proposed truth commission with regard to the 1994 bombing, it is necessary to note that this chapter is concerned exclusively with the Argentine side of the negotiations and does not engage with Iranian motives or implications.

The first part of the chapter briefly delineates the origin, work, and social perception of CONADEP. The second part examines the context and content of the memorandum. It also offers an analysis of the Argentine’s government motivations behind calling the panel a truth commission. The third section moves to the proposed CONAEP and describes the proposals for its creation as well as the reactions it has garnered. The section also explains the political reasons for this appeal to the memory of the past truth commission. The final part draws both examples together, looking at the use of the concept of the truth commission as a shortcut to tackle complex issues, the openness of the concepts of transitional justice, and the contestation over past accountability mechanisms.

A Prestigious Institution

President Raúl Alfonsín created CONADEP on December 15, 1983, within five days of assuming office.⁹ Human rights had been at the forefront of his campaign, and he immediately sponsored legislation on this area.¹⁰ Because many people had disappeared during the preceding civilian-military dictatorship of 1976–83, determining their fate was a crucial first step to confront the repression of that period. CONADEP was aimed at performing that task.

CONADEP comprised sixteen members: ten appointed by the president and six by Congress.¹¹ The members included writer Ernesto Sábato (who presided over the commission), journalist Magdalena Ruiz Guiñazú, surgeon René Favaloro, academic Hilario Fernández Long, Protestant pastor Carlos Gattinoni, Catholic bishop Jaime de Nevares, rabbi Marshall Meyer, and mathematician Gregorio Klimovsky.¹² The commission’s mandate was to shed light on the facts related to the disappearance of people. To that end, it was tasked with receiving complaints and evidence; discovering the whereabouts or fate of the disappeared; establishing the location of abducted minors; reporting any attempt to conceal or destroy evidence; and producing a final report.

CONADEP had 180 days to fulfill this mandate. Although it could not compel people to testify, public officials, including security personnel, had to provide written testimony. It is important to note that the commission was meant to complement and facilitate the work of the courts, not to compete with them. Therefore, it had to hand over to the judiciary any evidence or complaints related to the possible commission of crimes. Moreover, CONADEP was expressly barred from passing judgment on facts and circumstances, which were the exclusive jurisdiction of the courts.¹³

Once the commission started working, it reached out to the human rights organizations that had opposed the initiative because they advocated for prosecutions. Eventually, most organizations collaborated with CONADEP, encouraging their members to testify, handing over the evidence they had, or providing personnel to the commission.¹⁴ CONADEP interviewed witnesses and conducted visits to morgues, cemeteries, and illegal detention centers.¹⁵ It thus gathered copious amounts of evidence that it made immediately available to human rights organizations. Although the government wanted the evidence to be submitted to the military courts, CONADEP, demonstrating its independence, sent the evidence to the civilian courts instead.¹⁶ Hence, the commission referred 1,086 cases to the judiciary.¹⁷ The commission also set up a data bank to help identify the children born to women in detention who had been illegally given up for adoption.¹⁸

The report, titled Nunca Más (Never Again), together with fifty thousand pages of evidence, was presented to President Alfonsín on September 20, 1984.¹⁹ CONADEP’s investigation documented 8,961 enforced disappearances and 380 illegal detention centers.²⁰ It also revealed a systematic pattern of atrocity by which people were abducted, detained in secret centers, and tortured. Many of the detainees were then killed, and their bodies were disposed of without informing their families.²¹ The report was published as a book, which became an immediate best seller.²² As an additional form of outreach, the commission sponsored a television program that publicized its findings.²³

CONADEP is widely considered a success. It accounted for many of the disappeared; the evidence it gathered formed the basis of the military trials that followed; it gave victims a place to testify; and it won the support of human rights organizations. Furthermore, it was the first truth commission in Latin America and the first of such mechanisms that published its report. Indeed, according ...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Preface
• Acknowledgments
• Introduction: Reconceptualizing Transitional Justice: Exploring the Nexus between Agency and Spatiality
• Part I: Art, Activism, and Politics: Redefining Space in Transitional Justice
• Part II: Civil Society, Gender, and Transitions: Emerging Spaces and Victimhood
• Part III: Spatiality, Temporality, and the State
• Conclusion: Practicing Critical Transitional Justice and the Road Ahead
• Bibliography
• Index
• About the Editors