Submitted to: International Journal of Transitional Justice. Title: Transitional Justice in the Southern Cone. Author: Antonio C.

Transcription

1 Submitted to: International Journal of Transitional Justice Title: Transitional Justice in the Southern Cone Author: Antonio C. Hsiang Affiliation: Associate professor of International Trade Department and the Director of Center for Latin American Economy and Business Studies, both at Chihlee Institute of Technology. Hsiang is also research fellow of Taiwan s Society for Strategic Studies, and Global Studies Institutes in Hong Kong. Mailing address: 6F, No. 31, 21 Lane, Yu-Nong Road, Shihlin Taipei, Taiwan. Telephone number: address: ahsiang1@ms39.hinet.net 0

2 Transitional Justice in the Southern Cone He who controls the present, controls the past. He who controls the past, controls the future. George Orwell, Big Brother (Nineteen Eighty-Four), Abstract Citizens of the Southern Cone countries that have decades-old grievances against former authoritarian regimes are now seeking for transitional justice. This paper compares cases in the region, focusing on truth commissions, individual prosecutions, and external factors. The case of Chilean former president Augusto Pinochet, who died on December 10, 2006 without personally standing trial for human rights crimes, exemplified justice delayed is justice denied. From the first trial of Jorge Rafael Videla in 1985 to his sentence to life in 2010, Argentina s case exemplified that the problem may take decades to resolve. Peruvian case of former president Alberto Fujimori marked the first time a democratically elected head of state in Latin America had been extradited and put on trial for human rights violations and convicted. Finally, unlike her predecessors, Brazilian President Dilma Rousseff is moving towards seeking for transitional justice for the sixth economy in the world. Keywords: Transitional Justice, Latin American, Southern Cone, Argentina, Brazil, Introduction In April 2011, the World Bank issued a World Development Report (WDR), entitled Conflict, Security, and Development that linked transitional justice to security and development. This was the first time the World Bank placed human rights violations at the heart of its analysis of conflict. The central message of the Report is that strengthening legitimate institutions and governance to provide citizen security, justice and jobs is crucial to break cycles of violence. 1 Transitional justice is one of the core program tools recommended by the WDR to forestall cycles of violence. 2 1 WDR 2011:Conflict, Security, and Development, 2. 2 Human Rights and Transitional Justice in the 2011 WDR, ICTJ 10 Years. 1

3 This international acknowledgement of the importance of transitional justice to security and development comes belatedly; Latin American leaders have long recognized the importance of transitional justice to making democracy stick. For example, according to Oscar Arias, the former President of Costa Rica and the Nobel Peace Prize laureate in 1987, one of the major obstacles blocking Latin American development is the fragility of the Latin American commitment to democracy [and] Latin America still has a soft spot for authoritarian. 3 Democracy in Latin America has never been completed because, as Arias suggests, we owe it to the victims of dictatorships, who during the twentieth century wrote with their own blood the saddest pages in Latin American history. We owe it to the survivors of oppression and torture. We owe it to those who saw their worst fears realized in the presence of a soldier. 4 The first step was to get past the general amnesty laws that protected former regime members in various Latin American countries. Latin America s post-cold war amnesty laws may have been understandable in the 1980s and 90s: they reflected a desire to get on with the work of democracy-building without the distraction of further bad blood. But former soldiers and guerrillas alike will have to get used to the fact that in the 2000s and 2010s, Latin American countries are increasingly deciding that getting on with the future requires taking 3 Oscar Arias, Culture Matters: The Real Obstacles to Latin American Development, Foreign Affairs, 90, No. 1 (Jan./Feb., 2011), 5. 4 Ibid., p.6. 2

4 on the past in an official capacity. 5 In August 2011, President Alvaro Colom apologized for Guatemala s coup against elected president Jacobo Arbenz Guzman in 1954, and called it a great crime. That day changed Guatemala and we have not recuperated from it yet It was a crime to Guatemalan society and it was an act of aggression to a government starting its democratic spring, according to Colom. 6 In December 2011, Colombian President Juan Manuel Santos signed five decrees laying out regulations under the so-called Victims Law, which will pay compensation to an estimated 4 million victims of the country s long-running civil conflict. Santos said at a ceremony that he hopes the law will transform a past of horror into a future of hope. 7 In 2012, one week after Otto Pérez Molina was sworn in as Guatemala s president on Jan. 14, a judge ordered former military dictator, Efraín Ríos Montt, 85, to appear in court. On Jan, 26, nearly three hours into the prosecutors presentation, the judge asked Mr. Ríos Montt if he had any response. In a firm voice, he said, I prefer to remain silent. The judge ordered Mr. Ríos Montt to be detained under house arrest. 8 5 Tim Padgett, Sins of the Past: Will All of Latin America Find Justice for Cold War Atrocities? Time, Nov. 3, Elisabeth Malkin, An Apology for a Guatemalan Coup, 57 Years Later, The New York Times, Oct. 20, Cesar Garcia, Colombian to start paying victims of violence, AP, Dec. 21, Elisabeth Malkin, Accused of Atrocities, Guatemala s Ex-Dictator Chooses Silence, The New York Times, Jan. 26,

5 Although the trend in Latin America has been toward greater transitional justice, Haiti s handling of Jean-Claude Duvalier provides a counterexample. According to Human Rights Watch, François Duvalier (Papa Doc.) and Jean-Claude Duvalier (Baby Doc) are estimated to have ordered the deaths of between 20,000 and 30,000 Haitian civilians. In 2007, President Préval told reporters that [Jean-Claude] Duvalier would face justice for the deaths of thousands of people and the theft of millions of dollars if he returned. 9 Nonetheless, Jean-Claude Duvalier was allowed to return to Haiti in January His return prompted calls for justice from international human rights groups, a handful of Haiti s allies and a growing number of the people who were kidnapped and tortured by his repressive government. However, Préval was not expected to make good on that promise. This situation is similar to the what happened with former president Jean Bertrand Aristide. According to Raoul Peck, a Haitian filmmaker and once a supporter of Aristide, the sad truth for the millions of Haitians who had placed their destiny in the hands of Father Aristide in 1990 and again in 1994 is that he left a legacy of lies, intolerance, corruption, nepotism and conspiracy to eliminate his rivals and detractors. 10 Worse still, in January 2012, President Michel Martelly proposed a blanket pardon of Baby Doc who has been accused of corruption and human rights abuses and told the 9 Return of the dictator, The Miami Herald (editorial), Jan. 18, Mary Anastasia O Grady, Homecoming for Haitians, The Wall Street Journal, March 14,

6 Press, I do believe that we need that reconciliation in Haiti. Amy Wilentz, the author of The Rainy Season: Haiti Since Duvalier, correctly pointed out, Haiti will not achieve real democracy if its justice system remains unwilling to condemn the crimes of the past, punish the perpetrators and make it clear that such abuses will not be tolerated in the future. 11 Haiti s frustrating example proves that, Latin America is a hemisphere populated by recovering authoritarians, and demonstrate the challenges and pitfalls of amnesia and impunity. 12 The rest of this paper will be divided into six sections, including a literature review on transitional justice, case studies on Chile, Argentina, Peru, Brazil, and the conclusion. Literature Review Since the third wave of democratization, a growing body of literature has examined and shaped the parameters of the emergent field of transitional justice. 13 The United Nations defines transitional justice as 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 involve judicial and 11 Amy Wilentz, Impunity in Port-au-Prince, The New York Times, Feb. 8, Alison Brysk, Recovering from State Terror: The Morning After in Latin America, Latin American Research Review, 38, No. 1 (2003): Guillermo O Donnell and Philippe C. Schmitter, Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain Democracies, (Baltimore, MD: Johns Hopkins University Press, 1986); Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century, (Norman, OK: Oklahoma University Press, 1991); Paige Arthur, How Transitions Reshaped Human Rights: A Conceptual History of Transitional Justice, Human Rights Quarterly 31, No.2 (2009):

7 non-judicial mechanisms (with differing levels of international involvement, or none at all) that include individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof. 14 And the most successful transitional justice experiences owe a large part of their success to the quantity and quality of public and victim consultation carried out. Local consultation enables a better understanding of the dynamics of past conflict, patterns of discrimination and types of victims. 15 Transitional justice is also defined by International Center for Transitional Justice as: [A] response to systematic or widespread violations of human rights. It seeks recognition for victims and to promote possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse. In some cases, these transformations happen suddenly; in others, they may take place over many decades. This approach emerged in the late 1980s and early 1990s, mainly in response to political changes in Latin America and Eastern Europe-and to demands in these regions for justice. At the time, human rights activists and others wanted to address the systematic abuses by former regimes but without endangering the political transformations that were underway. Since these changes were popularly called transitions to democracy, people began calling this new multidisciplinary field transitional justice. And the basic approaches to transitional justice include the following initiatives: Criminal prosecutions. They are judicial investigations of those responsible for human rights violations. Prosecutors frequently emphasize investigations of the big fish : suspects considered most responsible for massive or systematic crimes. Truth commissions. These commissions of inquiry have the primary purposes of investigating and reporting on key periods of recent past abuse. They are often official state bodies that make recommendations to remedy such abuse and to prevent its recurrence. Reparations programs. They are state-sponsored initiatives that help repair the material and moral damages of past abuse. They typically distribute a mix of material and symbolic benefits to victims, benefits which may include financial compensation and official apologies. Gender justice. These efforts challenge impunity for sexual- and gender-based violence and ensure women's equal 14 United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, Report of the Secretary-General, United Nations. Aug. 23, 2004, Ibid., p.7 6

8 access to redress of human rights violations. Security system reform. These efforts seek to transform the military, police, judiciary and related state institutions from instruments of repression and corruption into instruments of public service and integrity. Memorialization efforts. They include museums and memorials that preserve public memory of victims and raise moral consciousness about past abuse, in order to build a bulwark against its recurrence. 16 There are four basic theoretical approaches to transitional justice. The first is maximalist approach that advocates a strong form of accountability to meet moral, legal, and political obligations to address past wrongs, deter future human rights violations, and strengthen democracy. This approach warns that failing to try perpetrators will lead to cycles of retributive violence or vigilante justice. 17 International law and treaties lend credence of this approach because international agreements arguably impose a duty on countries to prosecute perpetrators of past atrocities. The second approach is minimalist and endorses a soft form of accountability and amnesty in order to promote a stable transition. This approach contends that trials jeopardize democracy by incite actors that wish to spoil the democratic process. Meanwhile, amnesty neutralizes these actors, paving the way to stronger democracy and human rights protections Details see website at 17 Diane F. Orentlicher, Setting Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, Yale Law Journal, 100, No. 8(1991); Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, California Law Review 78, No.2 (1990). 18 Jack Snyder and Leslie Vinjamuri, Trails and Errors: Principle and Pragmatism in Strategies of International Justice, International Security, 28, No.3 (2003). Helena Cobban, Amnesty After Atrocity? Healing Nations Genocide and War Crimes, (Boulder: Paradigm Publishers, 2007). 7

9 The third approach, one that is moderate, promotes truth commissions as a way to balance the demand for accountability with the need to move on in the vulnerable transitional moment. This approach acknowledges the past and hold perpetrators accountable, but focuses on restorative over retributive justice, presenting less threat to potential actors that seek to spoil the democratic process. 19 The fourth approach is holistic. This approach holds that no single mechanism can deal with the myriad problems societies face after atrocities. Instead, the use of multiple mechanisms can improve human rights and achieve democratic objectives more effectively. 20 To help test the validity of these four theoretical approaches, Leigh A. Payne, Tricia D. Olsen, and Andrew G. Reiter at the University of Wisconsin began the Transitional Justice Data Base Project in The team created a global database of over 900 mechanisms (trials, truth commissions, amnesties, reparations, and lustration policies) used from Main strategies of transitional justice see Table 1. Table 1:Strategies of Transitional Justice Amnesia Amnesty Forgiveness Truth-Telling Reparation Purges Trials Restorative Justice Retributive Justice Sources: Mark R. Amstytz, The Healing of Nations: The Promise and Limits of Political Forgiveness, New York: Rowman & Littlefield Publishers, 2005, p José Zalaquett, Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints, Hamline Law Review, 13, No.3 (1990). 20 ICTJ, What is Transitional Justice? 8

10 Truth commissions Ever since South Africa set up its Truth and Reconciliation Commission under the Promotion of National Unity and Reconciliation Act, No. 34 in 1995, there has been increasing global emphasis on truth-seeking institutions for achieving transitional justice. The hope is that studying successful commissions such as South Africa s would illuminate some of the nuances of what makes transitional justice work and what causes it to fail. On the ground, the truth business is booming. In March 2001, the world s first truth commission consulting firm -- the International Center for Transitional Justice (ICTJ) -- set up shop in a Wall Street office suite. 21 A new academic discipline has sprung up to study the commissions, with courses on the topic now offered at New York University, Harvard, Michigan, and Columbia law schools. These developments are particularly important to Latin America because, it is likely that truth commissions have had special salience in Latin America because state terror often involved the disappearance of victims. 22 Criminal Prosecutions The investigation and prosecution of serious international crimes, such as genocide, crimes against humanity, and war crimes helps strengthen the rule of law by sanctioning those 21 Jonathan D. Tepperman, Truth and Consequences, Foreign Affairs, 81, No.2 (2002): Alison Brysk, Recovering from State Terror: The Morning After in Latin America, Latin American Research Review, 38, No. 1, (2003):

11 who violate laws with criminal penalties. It also demonstrates that crime will not be tolerated, and that human rights abusers will be held accountable for their actions. But implementing investigation and prosecution is highly dependent on the circumstances on the ground. Scholars have argued that transition by collapse provides the most likely scenario for criminal prosecutions following regime change: powerful economic and military elites who might oppose such trials have been weakened and political elites may pursue a prosecutions strategy to differentiate the new regime from its predecessor. 23 Generally, the better the economy develops during the transitional period, the less likely the criminals will be prosecuted. Perhaps most important, it ignores the hybridity and complexity of much state coercion and violence, in which the precise boundaries between civilian and military are (sometimes deliberately) obscured. 24 Some justice advocates have thus turned to international tribunals to offer transitional justice. For a country attempting to make a transition from a repressive regime to a democracy, these tribunals offer citizens and leaders the opportunity to put their faith in the equitable rule of law. 25 It is on this aspiration that the United Nations Security Council established international tribunals for the former Yugoslavia in 1993 and Rwanda in Carlos Santiago Nino, Radical Evil on Trial, (New Haven: Yale University Press, 1998.) Jo-Marie Burt, Guilty as Charged: The Trail of Former Peruvian President Alberto Fujimori for Human Rights Violations, The International Journal of Transitional Justice, 3, (2009): Anthony W. Pereira and Diane E. Davis, New Patterns of Militarized Violence and Coercion in the Americas, Latin American Perspectives, 27, No. 2, (2000). 25 Neil J. Kritz, Transitional Justice: How emerging democracies reckon with former regimes. Washington: USIP,

12 The effort went even further when, in 1998, the world s governments gathered in Rome to adopt a treaty for an International Criminal Court (ICC) with potentially global jurisdiction over genocide, war crimes, and crimes against humanity. Located in the Hague, the ICC was officially established on July 1, Despite the dream of a universal criminal court in the ICC, regional tribunals continued to pop up. For example, the UN and Cambodia agreed in 2003 to a hybrid court called the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC became fully operational in June The turn to international justice has its share of critics. Former US Secretary of State Henry Kissinger criticizes the extraordinary attempt of the ICC to assert jurisdiction over Americans even in the absence of U.S. accession to the treaty. 26 However, Kenneth Roth, Executive Director of Human Rights Watch, argues, the United States itself asserts such jurisdiction over others citizens when it prosecutes terrorists or drug traffickers, such as Panamanian dictator Manuel Noriega, without the consent of the suspect s government. 27 External Factors One of the ironies of international justice is that many transitioning countries were given carte blanche to commit crimes against its own citizens by external forces (usually the United States and nongovernmental organizations). For example, the United States anti-communism 26 Henry Kissinger, The Pitfalls of Universal Jurisdiction, Foreign Affairs, 80, No. 4 (2001). 27 Kenneth Roth, The Case For Universal Jurisdiction Foreign Affairs, 80, No. 5(2001). 11

13 policy strongly shaped the behavior of Latin American countries such as Chile. Washington provided covert funding to undermine Chilean President Salvador Allende s leftist government in the 1970s. 28 Indeed, after Allende was elected as Chilean President in 1970, Henry Kissinger warned, I don t see why we need to stand by and watch a country go communist because of the irresponsibility of its own people. 29 Haiti provides another example par excellence. The United States has hard time reconciling its current interests and past behavior towards Haiti. During her short visit to Haiti on Jan. 30, 2011, US Secretary of State Hillary Clinton said, We have a deep commitment to the Haitian people That goes to humanitarian aid, that goes to governance and democracy programs, that will be going to a cholera treatment center. But little mention was made of how to help President Rene Préval face so-called transitional justice process because he owes it to the Haitian people to explain who gave Mr. Duvalier the green light and why to return after 25 years in exile. While the US government may not be sanguine on punishing Duvalier or Preval, other groups are enthusiastically pursuing the cause. Duvalier s return prompted calls for justice from international human rights groups, a handful of Haiti s allies and a growing number of 28 Russell Crandall, The Post-American Hemisphere, Foreign Affairs, 90, No.3, (2011): Meeting of the 40 Committee on covert action in Chile (27 June 1970) quoted in The CIA and the Cult of Intelligence (1974); the quotation was censored prior to publication due to legal action by the government. See New York Times (11 September 1974) Censored Matter in Book About C.I.A. Said to Have Related Chile Activities; Damage Feared by Seymour Hersh. 12

14 the people who were kidnapped and tortured by his repressive government. The complex case is part of a global push to hold former dictators accountable for atrocities during their reigns This case [also] provides a real chance to put Haiti s justice system squarely on the side of those who have suffered under his rule, according to Human Rights Watch counsel Reed Brody. 30 Case Studies Chile The National Commission for Truth and Reconciliation Report, or the Rettig Report, is a 1991 report by a commission designated by then president Patricio Aylwin encompassing human rights abuses resulting in death or disappearance that occurred in Chile during the years of military rule under Augusto Pinochet, which began on September 11, 1973 and ended on March 11, It is named after its chairman, Raúl Retting, a former ambassador of President Salvador Allende. The report determined that 2,279 persons were killed for political reasons. This figure included 957 disappeared after arrest and 164 victims of political violence. According to statistics supplied by the Human Rights Programme of the Chilean Ministry of the Interior in August 2009 to the Human Rights Observatory of the Universidad 30 David McFadden, Duvalier foes seek justice for dictatorship abuses, AP, Feb. 12,

15 Diego Portales, Chile, 554 former regime agents were under formal investigation for human rights crimes committed between 1973 and Unfortunately for the victims pursuit of justice, Chile has experienced tremendous long-run economic growth under the four multiparty center-left Concertación coalition administration of Patricio Aylwin (Christian Democrat, ), Eduardo Frei (Christian Democrat, ), Richard Lagos (Social Democrat, ), and Michelle Bachelet (Social Democrat, ). While economic growth is undoubtedly a positive development for human welfare, as mentioned earlier, the better performing the economy is during the transitional period, the less likely the criminal will be prosecuted. This may help explain why Pinochet remained free from prosecution for so long. The international community took notice of this and tried to take matters into its own hands. And although much research has been focused on the factor of the pluralization of truth and justice mechanisms, both domestic and overseas, that opened up juridical, political and societal fields of contestation against impunity and amnesia, 32 the truth is, alleging that crimes committed in Chile must be tried in Chile, the Concertación government[s] sought to secure Pinochet s return and use the arrest to improve on the insufficient progress that had been made to right the wrongs of the past. In the end, Pinochet was returned to Chile, and 31 Cath Collins, Human Rights Trials in Chile during and after the Pinochet Years, The International Journal of Transitional Justice, 4 (2010): Onur Bakiner, From Denial to Reluctant Dialogue: The Chilean Military s Confrontation with Human Rights( ), The International Journal of Transitional Justice, 4 (2010):47. 14

16 though he was tried, he was never sentenced for human rights violations. 33 Transitional justice for the country is best served when the process is indigenous. This is even more true when complicit foreign governments try to forget its involvement in supporting the repressive regime. In 1998, then-president Bill Clinton said when visiting Chile, No one loves freedom more than those who have had it and lost it. No one prizes it more than those who have lost it and regained it. 34 But by March of 2011, the US position had changed. When President Barack Obama visited Chile, he was asked whether he would also ask for forgiveness for the United States role in the 1973 coup against Allende. Obama responded that his administration would consider any requests for information as Chile seeks a truthful record of that period, but that neither country should be trapped by our history. 35 Before Obama s visit, Ariel Dorfman, a professor at Duke University and the author of the Feeding on Dreams: Confessions of an Unrepentant Exile, reminded Obama that he will be having dinner at the presidential palace where Allende died defending the right of his people to choose their own destiny. Allende is buried in a cemetery not far from where the 33 Patricio Navia, Living in Actually Existing Democracies: Democracy to the Extent Possible in Chile, Latin American Research Review, 45, Special Issue, (2010): Thomas F. McLarty, A reliable U.S. partner, The Miami Herald, April 13, Jackie Calmes, Obama Cites Latin Americans as Example for Others, The New York Times, March 21,

17 country s elite will be toasting the friendship between the United States and Chile. 36 The implications were surely not lost on Chileans. In fact, as historical facts are slowly being uncovered, international involvement in transitional justice seems more and more problematic. Among archives declassified in 2010, the document confirms that it s Kissinger s complete responsibility for having rescinded a cease-and-desist order to Condor killers, according to Peter Kornbluh, an analyst with the National Security Archive and author of a 2004 book titled The Pinochet File: A Declassified Dossier on Atrocity and Accountability. 37 For instance, in the cable dated Sept. 16, 1976, Kissinger rejected delivering a proposed warning to the government of Uruguay about Condor operations and ordered that no further action be taken on this matter by the State Department. Five days after Kissinger s message, Chilean exile Orlando Letelier and an American colleague were killed in Washington s Embassy Row in a car bombing later tied to Chilean secret police working through the Condor network. The killings are considered one of the most brazen attacks ever carried out in the United States. 38 One must wonder, then, at Kissinger s motivations when he cites the Pinochet case to argue that international justice interferes with the choice by democratic governments to 36 Ariel Dorfman, Ghosts of Chile, Los Angeles Times, March 20, Andrew Zajac and David S. Cloud, Kissinger cable heightens suspicions about 1976 Operation Condor killings, Los Angeles Times, April 11, Ibid,. 16

18 forgive rather than prosecute past offenders. 39 Nonetheless Kenneth Roth rebuts that Pinochet s imposition of a self-amnesty at the height of his dictatorship limited Chile s democratic options. Only after 16 months of detention in the United Kingdom diminished his power was Chilean democracy able to begin prosecution. Such imposed impunity is far more common than democratically chosen impunity. 40 That Pinochet died without formal punishment exemplifies the sentiments behind justice delayed is justice denied. Nonetheless, perhaps justice still comes better late than never. At the end of January 2011, a judge had opened the first official investigation into the death of former president Allende, the democratically elected Socialist who died during the 1973 military coup led by General Augusto Pinochet. 41 The inquiry is part of new investigations into 726 human rights-related crimes in which the victims or their relatives had never filed suit. Argentina According to Mary Anastasia O Grady, Argentina lived another tragedy prior to, and for some time after, the military seized power. It was a wave of carnage and destruction 39 Henry Kissinger, The Pitfalls of Universal Jurisdiction, Foreign Affairs, 80, No. 4 (2001). 40 Kenneth Roth, The Case For Universal Jurisdiction Foreign Affairs, 80, No. 5 (2001). 41 Pascale Bonnefoy, Judge Orders Investigation into Allende s Death, The New York Times, Jan. 27,

19 brought on by bands of Castro-inspired guerrillas who sought to take power by terrorizing the nation. Their actions provoked chaos on a national scale that led to the military coup. 42 After the military coup against Isabel Perón occurred on March 24, 1976, the junta headed by General Jorge Rafael Videla, Admiral Emilio Eduardo Massera and Brigadier Orlando Ramón Agosti took the official name of National Reorganization Process, and remained in power until From the beginning, the military government proceeded to crush subversive movements ruthlessly. Compare to other Latin American experiences in transitional justice, Argentina has emphasized the legal process, beginning with the trial of military juntas in Later Carlos Menem issued pardons in 1989 and 1990 to those convicted in the 1985 trial. Those pardons were subsequently declared unconstitutional in 2001 and in Finally, on December 22, 2010, Jorge Rafael Videla, de facto president of Argentina from 1976 to 1981, was sentenced to life in a civilian prison for the deaths of 31 prisoners following his coup d'état. The case exemplified the formidable task in pursuing transitional justice. The Truth-Commission was established shortly after Raúl Alfonsín was elected as President in La Comisión Nacional Sobre la Desaparición de Personas (National Commission on Disappeared Persons, CONADEP) compiled the internationally acclaimed 42 Mary Anastasia O Grady, Argentina s Forgotten Terror Victims The Wall Street Journal, Jan. 3,

20 Nunca Más (Never Again) report on the dictatorship s human rights abuses in The trial began just 18 months after the military government left power. The military, however, soon bridled at the ignominy of being submitted to the civilian justice system. Under severe pressure from the armed forces, Alfonsín introduced the so-called Full Stop law in December 1986, requiring all new cases to be presented before a court within 60 days. The unintended effect was a quadrupling of cases virtually overnight, and an uprising the following Easter by the rebel Lieutenant Colonel Aldo Rico. 43 However, Menem issued Decree 70 in 1991, ordering reparations for some former prisoners who had sued Argentina before the Inter-American Commission on Human Rights. In 1994, similar benefits extended to all other prisoners. Three days before his resignation in December 2001, De la Rúa signed Presidential Decree 1581, formalizing his government s refusal for Argentines to stand trial abroad for human rights crimes. Soon after taking office in May 2003, Nestor Kirchner surprised the world by standing down powerful military and police officials. Stressing the need to increase accountability and transparency in government, Kirchner overturned amnesty laws for military officers accused of torture and assassinations during the dirty war under military rule. In August 2004, a law was adopted providing monetary compensation to children form in 43 Phil Gunson, Raúl Alfonsín: Argentine president who played a key role in the restoration of democracy, The Guardian, April 2,

21 captivity. And in 2005, a legislative initiative is making its way through Congress to provide reparations for those forced into exile. 44 On December 22, 2010, Jorge Rafael Videla was sentenced to life. For Carlos Gamerro, author of An Open Secret, in Argentina, the winners make history and the losers write it. But, it seems nobody won. 45 Peru Alberto Fujimori, Peru s former president ( ), is and will be remembered by many Peruvians as the crusader against Sendero Luminoso and the rescuer of the national economy. However, Fujimori also gave birth to a new term in South America: the democratic dictator. 46 In fact, Fujimori s authoritarian inclinations soon became evident because of the auto-golpe, or self-coup, that occurred on April 5, Since the auto-golpe, Peru became the first South American country of the 1990s to slip back in authoritarianism. 48 Fujimori s administration can be defined as a Democradura, refering to a model of constrained or uncivil democracy in which elected civilian-led democracies continue to violate human rights despite considerable success in democratizing political 44 Rebecca Lichtenfeld, Accountability in Argentina: 20 Years Later, Transitional Justice Maintains Momentum, Case Study Series, International Center for Transitional Justice, Aug Carlos Gamerro, An Open Secret, (Translated by Ian Barnett), (Pushkin Press, 2012). The price of love, The Economist, Nov. 26, Anthony Faiola, A Wounded Samurai on the Run, The Washington Post, Nov. 21, 2000: A Jo-Marie Burt, Guilty as Charged: The Trail of Former Peruvian President Alberto Fujimori for Human Rights Violations, The International Journal of Transitional Justice, Vol. 3, 2009: Thomas E. Skidmore, Peter H. Smith, Modern Latin America, (New York: Oxford University Press, 2005):

22 institutions. 49 Fujimori left office in November of Barely more than six months later, on June 2, 2001, Valentín Paniagua issued a decree law establishing a truth commission with perhaps the most comprehensive mandate of such a commission to date. On August 28, 2003, the Truth and Reconciliation Commission (CVR) presented its Final Report to President Alejandro Toledo. 50 One of the most important findings is: Alberto Fujimori was criminally responsible for the creation and operations of Colina Group death squad and therefore for the criminal acts committed by the Colina Group, including the Barrios Altos and Cantuta massacres. 51 On April 7, 2009, the Special Criminal Court of the Peruvian Supreme Court found Alberto Fujimori guilty of grave human rights violations and sentenced him to 25 years in prison the maximum penalty allowed by Peruvian law. The trial of Fujimori is truly historic: it marks the first time a democratically elected head of state has been extradited to his own country, put on trial for human rights violations and convicted. 52 He is also the first elected 49 Orlando J. Pérez, Democratic Legitimacy and Public Insecurity: Crime and Democracy in El Salvador and Guatemala. Political Science Quarterly, 118, No.4 ( ): On the CVR, see, Eduardo González, The Peruvian Truth and Reconciliation Commission and the Challenge of Impunity, in Beyond Truth versus Justice: Transitional Justice in the Twenty-First Century, eds. Naomi Roht-Arriaza and Javier Mariezcurrena, (New York: Cambridge University Press, 2006); and Lisa Laplante, The Peruvian Truth Commission s Historical Memory Project: Empowering Truth-Tellers to Confront Truth Deniers, Journal of Human Rights 6, No.4, (2007): CVR, supra n 11 at Vol. 2, ch. 2, Jo-Marie Burt, Guilty as Charged: The Trail of Former Peruvian President Alberto Fujimori for Human Rights Violations, The International Journal of Transitional Justice, 3(2009),

23 president in living Latin American history to receive a prison term, since up to now only former military rulers have been sentenced by their own national courts. 53 Peru s contributions to justice, at home and abroad, are not limited to the trial of Alberto Fujimori. The work of the Truth and Reconciliation Commission and especially its ground-breaking report issued in 2003 stand out as a major example of a society coming to grips with its legacy of human rights violations through a fair, honest, transparent process that forces a reckoning with the root causes of the tragic violence of the 1980s and 1990s. 54 According to Salomón Lerner, President of Peru s Comisión de la Verdad y Reconciliación (CVR), it is necessary to link truth and reconciliation, but truth cannot be achieved automatically, and truth cannot carry us automatically to reconciliation. There has to be a mediation to achieve reconciliation, that would be not the sufficient but certainly the necessary condition for reconciliation, and the necessary condition for reconciliation is justice. 55 When Keiko Fujimori, the former president s daughter, ran for the Peruvian presidency, she said on March 8, 2011, that if elected she would set aside a personal grudge and work to strengthen the judicial system with the judge who jailed her father. Unfortunately for her, she was defeated by Ollanta Humala, who led an uprising against Alberto Fujimori as President in 53 Lauren Nelson, The Legacy of Alberto Fujimori: Is Now a Chance for the Vindications of Human Rights? COHA Report, October 10, Juan E. Méndez, The Trial of Fujimori: Implications for US Policy, Global Justice and Democracy, in Jo-Marie Burt, ed., Project of Human Rights, Global Justice & Democracy, George Mason University, Working Paper No. 1, (Spring 2009):1. 55 Jo-Marie Burt, Guilty as Charged: The Trail of Former Peruvian President Alberto Fujimori for Human Rights Violations, The International Journal of Transitional Justice, 3(2009):

24 the wake of Fujimori s multiple corruption scandals in October The future development of Peru s transitional justice now depends on how Humala will treat the case. Brazil On October 27, 2011, Dilma Rousseff s government announced a plan to establish a truth and reconciliation commission that will investigate crimes against humanity from 1946 to 1988, which encompasses the period during which the South American giant was run by a military junta. 56 Like his predecessor, Lula opposed the military dictatorship that ruled Brazil between 1964 and 1985 But since he has been in office, he has not paid much heed to these issues, according to Jorge G. Castañeda, professor of New York University and a member of the Board of Directors of Human Rights Watch. 57 However, Rousseff seems to have decided not to follow Lula s counterproductive approach, especially to Brazil s goal of winning a permanent seat on the U.N. s Security Council. Shortly after she won the election runoff last Oct. 31, 2011 she began criticizing the human rights records of Iran and Cuba, something Lula never had the courage to do Alex Sanchez and Lauren Paverman, Brazil s Truth and Reconciliation Commission: A Small Step in the Right Direction, COHA Report, Nov. 7, Jorge G. Castañeda, Not Ready for Prime Time, Foreign Affairs, 89, No. 5 (2010): Mary Anastasia O Grady, Why Obama Went to Brazil, The Wall Street Journal, March 21,

25 In fact, right after Rousseff was elected, Brazilian prosecutors argued that a 1979 amnesty law that pardoned civilians and military personnel for crimes between 1964 and 1985 does not prevent charges under civil law. A possible reason of the change is -- that Rousseff herself was a victim of the military government. She joined the anti-dictatorship Vanguard group in 1967 as a 19-year-old economics student. For three years she helped lead that organization, instructed comrades on Marxist theory and wrote for an underground newspaper. 59 She was captured in 1970 and incarcerated until On Nov. 4, 2011, prosecutors filed a lawsuit seeking damages against four dictatorship-era agents accused of killings and kidnappings. Among the defendants is former army Capt. Mauricio Lopes Lima, who prosecutors hold responsible for the torture of Rousseff after she was captured in early Consequently, more than a quarter-century later, many see hope that the victims of Brazil s 21-year-long tyranny, and the victims families, might finally be heard. Rousseff was emboldened two weeks before her inauguration when the Inter-American Court of Human Rights declared Brazil s amnesty law invalid and called on the Brazilian government to properly investigate the cases of at least 62 people who disappeared during the 59 Stan Lehman, Brazil president-elect s guerrilla past described, AP, Nov. 20, Bradley Brooks, Brazil wants Rousseff s alleged torturers tried, AP, Nov. 4,

26 country s hapless, short-lived guerrilla war in the early 1970s, something previous governments have refused to do. 61 Because up to that point Brazil had been the only country in Latin America not to have investigated deaths and torture which took place under its dictatorship, Rousseff said in her inauguration speech, we must do this for the families of those who were killed or disappeared. 62 Indeed one of the most likely differences between Rousseff and Lula will be the fervor with which each sought transitional justice. Conclusion Pursuing transitional justice not only helps Latin American countries to consolidate their democracies, but it also contributes experiences to guide other countries in democratic transition. Perhaps this is help countries such as Haiti, where transitional justice is still a dream. There is no doubt that Haiti has obligations under international law to pursue transitional justice. As a signatory country, international conventions that require it to investigate and prosecute crimes committed by Duvalier and his government. Human Rights Watch, the United Nations and even the Inter-American Commission on Human Rights urged the country s courts to respect its international obligations and put Duvalier on trial. 61 Andrew Downie, Is Brazil Ready to Face the Skeletons of Its Junta Years? Time, Feb. 8, Robin Yapp, Brazil to introduce truth commission to investigate decades old military murders, The Daily Telegraph, Jan. 4,

27 International law makes it clear that when it comes to crimes against humanity, there can be no statute of limitations. 63 Now it is up to Haiti itself to overcome domestic obstacles. Looking further afield, the Latin American cases can provide lessons for other transitional democracies such as the African countries. Take Egypt, for example. While there are certainly differences between Pinochet and Hosni Mubarak, as well as between the ways in which both were ousted, Egypt could learn from the Chilean case. According to Andrés Oppenheimer, among the most important: Create Truth and Reconciliation Commission, such as that created in Chile after Pinochet and later emulated in South Africa after the apartheid regime to avoid vigilante justice, and to channel all human rights accusation through the judiciary Haiti s Duvalier must be brought to justice, Los Angeles Times (editorial), Feb. 6, Andrés Oppenheimer, Egypt, Tunisia could learn from Chile s transition, The Miami Herald, March 9,

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