Panel: Transitional Justice and Democratization. New Comparative Dimensions

Transcription

1 Panel: Transitional Justice and Democratization. New Comparative Dimensions Transitional Justice Models and Contrasts in Latin America: The Cases of Argentina and Colombia Author: Rosario Figari Layus 1. Introduction The so called transitional justice paradigm offers a variety of mechanisms to address for massive human rights violations. Accountability is pursued by a variety of policies such as holding trials in domestic or international courts, granting amnesties and reduced sentences, vetting and purging wrongdoers from public or security posts, creating truth and inquiry commissions, providing reparation to victims, allowing public access to security files, building memorials and offering public apologies (Posner & Vermeule 2003: 5). 1 Among these mechanisms, justice in the courts is one of the most demanded justice instruments in Latin America, however, one of the most difficult to obtain. This paper will analyze and compare two modalities of trials and their role to deal with mass atrocities in Argentina and Colombia. Trials try to respond to mass and systematic violence by focusing on individual perpetrators of serious violations of national and international human rights law. The so called Legal Paradigm considers the use of law as the most appropriate tool to repair victims and societies, strengthen the rule of law and democracy. Thus, human rights prosecutions have gradually assumed heightened importance since many scholars, activists and policy makers conceive trials and the right to justice as the centerpiece of social repair (Roht-Arriaza 1990, Orentlicher 1991, De Greiff 2008, Sriram 2003). However, this paper aims to explain that the trials by themselves are not a step toward democratization but the way in they are conducted it is. In doing so, I will analyze two different modalities of trials in Colombia and in Argentina to deal with human rights 1 In general terms, Jose Zalaquett identifies these mechanisms as the two main categories of transitional justice policies (1995: 5): The first group of mechanisms includes those aimed at repairing the damage inflicted, such as the displacement of people and the dispossession of land through, for example, the return of territory. The second group consists of mechanisms preventing the recurrence of abuses and achieving accountability through mechanisms such as trials and truth commissions (Bell, Campbell and Ni Aoláin 2004: 314). 1

2 violations and abuses. By analyzing trials in these two different contexts, I analyze the possible consequences and meaning of these trials for victims and also in the political system in terms of democratization. 2. The Different Forms of Political Violence and Counter Insurgency Policies 2.1. Argentina In spite of the differences between Colombia and Argentina societies, illegal repression and practices such as torture and enforced disappearance of people have been applied massively in both countries. In Argentina the state political violence took place systematically in the period of the military dictatorship ( ) 2, in which the military junta institutionalized a system of repression within the scope of the so-called fight against subversion. In this context, students, trade unionists, intellectuals and dissidents opponents in general were kidnapped, tortured and made disappear by state forces (Duahlde 1983). 3 According to human rights groups, some 30,000 people were forcibly disappeared by the regime Colombia In Colombia the 40-year-old conflict has been defined by its civilian victims. Over the last 20 years, more than 70,000 people, the vast majority of these civilians, have been killed as a result of the conflict, while between 3 and 4 million have been forcibly displaced from their homes and between 15,000 and 30,000 people have been and continues to be victims of political violence by the state and illegal armed groups (Amnesty International 2008). As in Argentina the dictatorship persecuted all those persons characterized as subversive, the Colombian security forces have also employed a counter-insurgency strategy which focuses primarily on 2 Even though the military coup took placed in March 1976, the repressive activities began around the middle of See the section devoted to the historical background. 3 In most of the cases once abducted, victims were taken to one of the more 400 secret detention centres located throughout the country, where detainees were kept in subhuman conditions and subjected to all types of torture, torments and humiliation (CELS 1982, International Federation for Human Rights 2009). In most of the cases detainees were also thrown alive into the sea, during so-called death flights, as a result of which bodies were washed up along the Argentine coasts (Verbitsky 2004). 2

3 undermining what they perceive to be the civilian population s support for guerrilla groups what imply the criminalization and persecution of social protest and opposition movements. The result of labeling such groups as sympathetic to guerrilla forces or terrorists has justified a pattern of systematic abuses targeting human rights defenders, journalists, trade unionists, peasants movements, indigenous and afro-descendant communities, and those living in areas of strategic economical importance to the government (AI 2008:7). 4 For this the state counted with the support of paramilitary groups that arose to protect the interests of the powerful elite and suppress social opposition movements (Laplante and Theidon 2007: 54). In this sense, the use of systematic political violence in both countries aims to intimidate and annihilate the political movements which in their majority opposed to the implementation of economical and political policies from which just a reduced elite could profit. Thus, one of the great differences between Argentina and Colombia is that whereas in Argentina the dictatorship, political frame of the systematic illegal repression, is over, in Colombia the systematic political violence is still occurring. The guarantee of non-repetition is the main difference between the two countries, factor that could have a significant influence in the effect and role these trials have in the victims but also in the society. 3. Legal Ups and Downs 3.1. Argentina When civilian rule returned to Argentina in 1983, survivors, relatives, and human rights organizations demanded investigations into the crimes committed by the military regime and prosecution of those responsible. During 1984 and 1985, the commanders-in-chief of the first three Argentinean Juntas were put on trial and some of them were sentenced to life imprisonment. However, hopes that justice would be done were dashed by the adoption of 4 The systematicity of the political violence in Colombia was confirmed by the UN Special Rapporteur on extrajudicial, summary or arbitrary killings said that extrajudicial executions "were carried out in a more or less systematic fashion by significant elements within the military" (Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions Mission to Colombia 2010). 3

4 amnesty laws 5 which foreclosed any successful prosecution of ex-military leaders for human rights crimes. Yet human rights groups continued to demand justice. Finally, the abrogation by the parliament in 2003 and by the Argentine Supreme Court in 2005 of the above mentioned laws, paved the way for new national trials addressing human rights violations. These trials are being conducted in regular and national institutions of criminal law and they are currently taking place throughout the whole country. Between January 2006 and December 2012 Eighty six verdicts were issued by different federal courts in1 22 of the twenty-three Argentine provinces. During this time frame, 426 former military, police and a few civilians were convicted. As Figure 1 shows, there was a remarkable acceleration of the criminal processes. While between 2006 and 2009 there were only twenty-three sentences, there were forty judgments in the years 2010 and This increase of verdicts can be attributed to the gradual overcoming of both legal and political obstacles as well as the gain of experience in this kind of litigation. Figure 1 Development of the judgments pro year between 2006 and 2012 in Argentina Source: Cels 2012: 36 5 The Full Stop and Due Obedience laws were passed in 1986 and 1987, respectively, and pardons weregranted by former president Carlos Menem in 1989 and

5 Now, during the course of the trials it became clear that they needed additional support that regular criminal trials normally would require due to the nature and extension of the crimes. Thus, tthe government of former president Nestor Kirchner ( ) and current president Cristina Fernández de Kirchner ( and re-elected in 2011) have deployed diverse special institutions and programs to support these trials, for example, a Prosecution Coordination Unit for the Prosecution of Cases of Human Rights Violations Committed during the Period of State Terrorism, a National Program of Psychological Accompaniment to Plaintiffs, Witnesses and Victims of State Terrorism and a national Program for the Protection of Witnesses Colombia In Colombia between 2002 and 2010 the government of Álvaro Uribe counted with great support to hand a demobilization process of right-wing paramilitary groups, along with the implementation of transitional justice policies such as penal prosecutions and the creation of a National Commission for Reparation and Reconciliation to address justice, truth and reparation for victims of paramilitary violence. The demobilization process began when in 2002 the United Self Defence Forces of Colombia (Autodefensas Unidas de Colombia, AUC) agreed to participate in a government-sponsored demobilization process. Paramilitary groups, who often have common interests to political elites, were responsible for the vast majority of human rights violations for a period of over 30 years. The government designed a special legal framework that envisaged great leniency for paramilitaries who committed serious crimes and reparations for victims of paramilitary violence. More than 30,000 paramilitaries have supposedly demobilized under this process between January 2003 and August Law 975 of 2005, also known as the Justice and Peace Law, contemplates a special prosecution model that includes alternative sentencing, i.e., reduced sentences from 5 to 8 years, for those demobilized former AUC paramilitary grouops that contribute to clarification of the truth and reparations to victims. Thus, the Colombian Justice and Peace Process implied the softening of criminal justice procedure through the introduction of a special legal framework. For this process, special courts were created known as the Justice and Peace Tribunals. By June 2013, approximately 2,000 former paramilitaries had passed through the Justice and Peace tribunals, but only 14 had been sentenced. 5

6 Along with this process, new institutions and laws were created. One of them was the like the National Commission for Reparation and Reconciliation (CNRR) which was implemented to respond to victims needs and rights. In 2010, Congress enacted Law 1424, which established a non-judicial truth-seeking mechanism that provides legal benefits to members of illegal organized armed groups in exchange for agreeing to contribute to clarification of the truth about the conflict. The offer is not extended to those accused of crimes against humanity. In response to the growing demands of the victims, the administration of President Juan Manuel Santos ( , ongoing) promoted the passing of Law 1448, or Victims Law, which established a comprehensive reparations program and land restitution procedure. The government created new institutions to implement these programs, namely the Victims Unit, the Land Restitution Unit, and the Historical Memory Center All these measures have created great expectations regarding reparations for the victims of paramilitary violence, but after more than 7 years little has been done regarding the legal and effective application of these promises (ICTJ 2009). This kind of situation is inconsistent with the message that a reparations policy should carry. The risk of great slowness in judicial processes and reparations measures can have serious consequences for the legitimacy and credibility of the whole process. Furthermore, the lack of judicial prosecutions of members of the security forces continues to be a serious issue. Furthermore, in Colombia the effectiveness of justice institutions has been vastly reduced by the high levels of corruption, pressures of the political powers and by the systematic political violence that puts at risk the lives of all those persons demanding for justice. Indeed, it is very high the number of killings and threats against witnesses, lawyers, judges, human rights defenders and prosecutors involved in human rights cases 6. All these factors have impeded to bring to justice those responsible for human rights abuses committed during the country s long-running armed conflict. 4. Toward a Differentiation of Trials to deal with Human Rights Violations 6 According to the UN report on Colombia, at least 300 people working as part of judicial investigations had been killed in the past 15 years (UN Report 2010). 6

7 Both cases present two different modalities of implementing prosecutions to deal with mass crimes and atrocities. In both cases, justice is the result not only of civil society demands but also demands of other political forces and interests within society. Now, the analysis of the Colombian and Argentine justice processes, show us a distinction not only between different modalities of criminal trials to deal with human rights violations: transitional justice trials and human rights trials, which are not necessarily one and the same and may have different effects on the judicial system regarding the protection of human rights. To deepen this idea, I will first discuss some of the key and controversial aspects of the transitional justice paradigm which may hinder or enhance the effective incorporation of human rights standards in a long term of a country political system. Second, I will analyze the Argentine and Colombian cases to characterize what I believe are different kinds of criminal trials The Transitional Justice Paradigm: the choice and exception perspective In the transitional justice paradigm, accountability is pursued by a variety of mechanisms or policies such as: holding trials in domestic or international courts, granting amnesties and reduced sentences, vetting and purging wrongdoers from public or security posts, creating truth and inquiry commissions, providing reparation to victims, allowing public access to security files, building memorials and offering public apologies (Neil 1995, Posner and Vermeule 2003). In this sense this TJ Paradigm offers a variety of instruments to address human rights violations. Within this framework, criminal trials are presented as one among others and, therefore, it becomes a matter of a "preference" or "free will" (see for example Sikkink 2011, Olsen, Payne and Reiter 2010, Forsberg 2001). This approach presents prosecutions as an extraordinary or special mechanism, which may be implemented or not by special or international courts. This focus, which I call the choice perspective, tends to present trials and the rights to justice, present in many international treaties, as a matter of negotiation. One of the main consequences of this perspective it is the creation of different kind of exceptions in the ordinary regular justice system. Some of them are the following: As previously described the Justice and Peace Process in Colombia is one of the most typical example of the transitional Justice Paradigm. In most of the cases, criminal trials or procedures implemented in the frame of transitional justice processes imply some kind of trade off or 7

8 exceptionality of ad hoc measure of what should be a typical case of ordinary criminal law. This exceptionality has different modalities. One of them is the justice in exchange for truth formula implemented in countries not only as Colombia but also as South Africa 7 in which in exchange for full confessions, perpetrators received reduced sentences or no punishment at all, even though they committed serious crimes (Figari Layús 2010). In these cases special legal frameworks and laws are created to carry out extraordinary judicial procedures which due to the asymmetric correlation of forces in favor of perpetrators at the moment of implementation did not allow the applicaiton of the regular criminal law what usually is used in society for criminal acts. Another modality of trials in the transitional justice paradigm has been the creation of international tribunals and temporary domestic or hybrid courts (combining national and international courts) to deal with cases of massive human rights violations. Examples of this are the special tribunals of the Justice and Peace process which were specially created for these procedures. Other international examples include the ICTY for the crimes committed in the former Yugoslavia, the ICTR for Rwanda and the hybrid tribunals for Sierra Leone. In all these cases, in one or another way, the application of ordinary criminal justice is modified and replaced by other legislation and ad hoc institutions. This creates an alternative and extraordinary criminal system of laws and institutions which coexists parallel with the regular criminal system which is usually applied for the rest of people in the country. Thus, the application of the special framework is only limited to some perpetrators. The criminal justice system is distorted by the asymmetric relation of forces and power in the particular context in which it is being applied. Thus, transitional justice involves, in most of the cases, an alteration of criminal justice in the best interests of the perpetrators, who still have the power to impose conditions. In general terms of the most achievements of transitional justice policies is the access to truth that in no negotiated trials may be more difficult. The fact that trials in trnasitional context are the result of a negotiation (truth for reduction of sentences or amnesties) has facilitated in cases such 7 The South African Truth and Reconciliation Commission (TRC) was one of the fist bodies that awarded perpetrators with amnesty if they told the complete truth about what happened and their crimes. 8

9 as the Colombian and South African case, for example, the confessions of paramilitaty members about mass graves and specific crimes The Human Rights Trials Paradigm: the Incorporation of Human Rights Standards in the Legal System In contrast to the Transitional Justice model implemented in the Colombian case, significant for human rights trials such as in Argentine is the fact that they are not being conducted by international or hybrid tribunals or special laws, but by regular and national criminal laws and institutions. The inclusion of the prosecutions in the frame of the domestic criminal law and institutions and not under the modality of transitional justice means an important step toward the construction of a norm within the legal system when it comes to dealing with human rights violations. Thus, the conduction of trials with domestic institutions and laws in Argentina was a decision in favor of internalization of human rights standards in the criminal justice - in contrast to the exceptionality of transitional justice procedures including amnesty laws and reduced sentences - which in cases of human rights violations is especially relevant. Thus, the fact that trials in Argentina are being conducted under the ordinary laws and institutions of the judicial system shows a meaningful difference to trials in the framework of transitional justice. The prosecution of human rights violations will gradually cease to be a choice or an exception to be the norms of criminal justice. However, it raises the question: does their being conducted within the ordinary criminal justice system mean that these trials are like any other ordinary criminal trials? In order to answer this question, it is necessary to make some important distinctions regarding different kinds of criminal justice trials. Even though ordinary criminal trials and human rights trials have much in common, they present some interesting differences, as the Argentine case shows. In fact, over the course of the trials in Argentina, it became clear that they needed some additional support and infrastructure that is unusual in ordinary criminal processes. The trials in Argentina express a specific modality of criminal trials: human rights trials. In order to understand the differences and similarities of these criminal trials, it is important to clarify the difference between what human rights violations and ordinary crimes, as well as between human rights trials and ordinary 9

10 criminal trials. Human rights trials are criminal trials dealing with a special category of crimes which are human rights violations. From a legal perspective, not all abuses or crimes or any form of violence are technically violations of human rights. The main characteristic of human rights violations is that they are committed by agents of the state (Nikken 1994: 28, 29, Skkink 2011: 135). As international treaties 8 assert, human rights violations are either perpetrated by the state or supported by it. Human rights violations are the result of a state's active policy against human dignity, or result from the lack of political will and concrete measures to stop crimes and guarantee the exercise of fundamental rights. Thus, the state can violate human rights by action or omission. Human rights violations are never the end of state policy but the means of it to achieve certain political, social or economic goals. In this sense, it is necessary to make another distinction between ordinary criminal trials dealing with crimes committed by private actors and human rights trials dealing with crimes perpetrated by agents of the state. Even though both criminal trials may use the same national criminal code, the nature and scope of human rights crimes, as well as of the perpetrator, is different from ordinary crime. Whereas the former is applied to regulate and punish offenses committed by the civil population, the latter is focused on state-sponsored crimes. Thus, domestic accountability in cases of systematic human rights violations represents the internal mechanism that the state uses to control its officials and institutions and to redress the victims their rights. Trials have the function of making political power holders accountable, that is, obliging public officials to justify their acts and policies, which should in fact ensure human rights, as established in constitutions, international conventions and national laws (Gloppen, Gargarella and Skaar 2004: 1). 8 See for instance the International Convention for the Protection of All Persons from Enforced Disappearance, introduced in December 2006, which defines in its article 2: "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. (UN Convention 2006: Article 2). 10

11 Furthermore, as the Argentine case showed, human rights trials usually require the support of additional institutions and programs. One of the main causes of this is that many victims of human rights violations, due to the large scope, massiveness, cruelty and systematic nature of those crimes, require special treatment, attention and security measures. Over the course of the trials in Argentina it became clear that they needed some additional support and infrastructure that is unusual in ordinary criminal processes. The trials required the creation of additional programs and institutions, which does not mean a softening or modification of the criminal code or a temporary court, as in the case of Colombia but the support of the already existing and functioning institutions. The creation of these institutions aims to give an appropriate and sensitive treatment to the victims of these crimes. Table: towards a Differentiation of Criminal Trials to deal with Human Rights Violations Kind of crimes Transitional Justice trials Crimes a committed by state and non-state actors Ordinary Criminal Trials Crimes committed by by private actors Type of Tribunal Temporary and ad hoc Permanent Permanent Jurisdiction International and domestic Domestic Domestic and hybrid Legal Framework Domestic Criminal Code Institutional Structure Consequences Ad hoc legal framework: introduction and modification of the ordinary criminal code (e.g.: reduced sentences or amnesty laws) Creation of new institutions and programs ( truth Commissions, reparation programs, etc) Prosecution of Human rights are a choice and exception Ordinary Domestic Institutions Regulation of social behavior Human Rights Trials Crimes committed by state actors Domestic Criminal Code and introduction of International Human Rights Law Creation of new complementary institutions and programs (e.g. Porgram of Witness protection, Programs of Psychological support of victims and witnesses etc) Regulation of state agents behavior throught the incorporation of Human Rights Prosecutions as Standards in the Legal Criminal System 5. Conclusions 11

12 In this paper I analyzed some problematic issues underlying the use of transitional justice trials to deal with gross human rights violations. On the one hand, the Colombian case shows how the legal treatment of human rights violations can be considered as an extraordinary or exceptional phenomenon in a certain period of time. In contrast, the Argentine prosecutions of human rights violations understood as a function of the regular criminal system demonstrates the attempt to incorporate these kinds of prosecutions in the justice system instead of treating them as an exception. If criminal law tends to create social norms which regulate societal behavior, the conduction of human rights trials should aim to regulate and control stable agents behavior creating and protecting human rights standards. However, as was also shown, despite sharing several common aspects with ordinary criminal trials, prosecutions dealing with mass human rights violations present specific characteristics and challenges which require some additional efforts and policies. However, it is important to make clear that these additional initiatives are not like the ones of transitional justice that tend to soften the application of criminal law in favor of the perpetrators, but that in the case of human rights trials they tend to reinforce the well being and security of the victims. 6. Bibliography Amnistia Internacional (AI) (2008). Leave us in peace: Targeting civiliansin Colombia sinternal armed conflict. London: Amnesty International Publications. Cels - Centro de Estudios Legales y Sociales (2012) Informe 2012 sobre la situación de los derechos humanos en Argentina. Buenos Aires: Siglo Ventiuno Editores S.A. De Greiff, P. (2008). Justice and Reparations, in Pablo de Greiff (ed.), The Handbook of Reparations. New York: Oxford University Press: Figari Layús, R.(2010): The role of transitional justice in the midst of ongoing armed conflicts: the case of Colombia. Potsdamer Studien zu Staat, Recht und Politik 5. Potsdam University. 12

13 Gloppen, S., Gargarella, R. and Skaar, E. (2004). Introduction: The accountability function of the courts in New Democracies. In Democratization and the Judiciary (London: Frank Cass Publishers, 2004): 1-6. Laplante, Lisa J., and Kimberly Theidon (2007). Transitional Justice in Times of Conflict: Colombia s Ley de Justicia y Paz. Michigan Journal of International Law 28 (1): Neil J. Kritz (ed.) (1995), Transitional justice. US Institute of Peace Press, Washington D.C.- Nikken, Pedro (1994). El concepto de Derechos Humanos. Estudios de Derechios Humanos vol. 1: Orentlicher, Diane (1991): Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime. 100 Yale Law Journal: Posner; Eric and Vermeule, Adrian (2003). Transitional Justice as Ordinary justice. Public Law and Legal Theory: Working Paper 40, University of Chicago: Sikkink, Kathryn (2011). The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics. New York: W. W. Norton. Sriram, Chandra Lekha (2005), Globalizing Justice for Mass Atrocities: A Revolution in Accountability. New York: Routledge. Special Coordination Unit of the Public Prosecutor (2011). Informe sobre el estado de las causas por violaciones a los derechos humanos cometidas durante el terrorismo de Estado. Buenos Aires. UN Report of the Special Rappoteur on extrajudicial, summary or arbitrary executions-mission to Colombia

14 Verbitsky, Horacio (2004), El vuelo: una forma cristiana de muerte, confesiones de un oficial de la armada. Buenos Aires: Ed. Sudamericana. Zalaquett, Jose (1995). Confronting Human rights violations committed by former governments: Principles applicable and political constraints, in Neil J. Kritz (ed.), Transitional Justice: How emerging democracies reckon with former regimes Vol. 1. Washington D.C: United States Institute of Peace Press: