Transitional Justice: What to Do About the Torturers?
BY JO-MARIE BURT
One of the most contentious issues facing transitional democracies is the problem of gross human rights violations committed during the previous regime. How should fragile democracies address the question of accountability, given the known deficiencies of their judicial systems; the ongoing power of the torturers themselves and/or those who benefited from their violence; and the fear that still grips civil society?
Typically the debate is polarized among those who argue that criminal trials are a political and ethical imperative, both to affirm the principle of equality before the law and hence democratic governance and to repair the damage caused by violence both to individuals and society as a whole, and those, taking a more real politick perspective, that trials risk destabilizing fragile democracies.
Criminal prosecutions against human rights violators have proven an unlikely outcome in such contexts. While trials were held in Germany, Japan and elsewhere after World War II, this was the result of a military victory by an outside power. The transitional democracies of today are more likely the outcome of complex negotiations, formalized in pacts or otherwise, that make trials unlikely. Powerful actors, particularly the armed forces, may remain in strategic positions of power; judiciaries may have been compromised during the period of authoritarian rule or civil war or may simply be too weak to handle human rights trials; and there is always the question of priorities, particularly over resources, in countries where large numbers of people remain poor and marginalized.
The debacle surrounding the prosecution of the top generals of Argentina’s military dictatorship (1976-83), during which some 30,000 people were tortured and then ‘disappeared’ by state agents, seemed to reinforce the notion that trials were unattainable. The new democratic government of Raúl Alfonsín established one of the world’s first truth commissions with the express purpose of gathering evidence that would then be used in trials against the principal architects of the military’s ‘dirty war’. This was a remarkable departure from the policy adopted by Argentina’s neighbors, Brazil and Uruguay: official denial and silencing, accompanied by blanket amnesties for rights abusers. In an unprecedented trial, five of nine generals were convicted and sent to jail. However, military uprisings, civilian uncertainty, and political expediency led the Alfonsín government to backtrack on its human rights policy, passing a series of laws that prevented any further judicial inquiry even in civil courts, followed by a full-blown amnesty put in place by the subsequent administration. The five previously incarcerated generals were also pardoned and regained their freedom.
Thus came a sort of conventional wisdom about the possibility of justice in transitional democracies. Trials were either (a) logistically impossible (they were costly; judiciaries were often weak, still corrupted from the previous authoritarian period; the military and their allies remained powerful; and even if successfully culminated in the short term trials would provoke reactions, as in Argentina, that would destabilize democracy and threaten a return to dictatorship) or (b) undesirable (more pressing issues must be addressed, including socio-economic reforms and consolidating democracy; focusing on the past opens old wounds and prevents national reconciliation, the necessary basis for moving forward both politically and economically). Some politicians and military officers justified repression outright, suggesting that it was a necessary response to a greater evil (subversion, communism, terrorism, etc.); thanks, not trials, was due to those who committed such acts.
Since the Argentine debacle, political elites negotiating transitions from authoritarian rule have sought alternative routes to addressing the pressing issues of the past. Ignoring the past in the name of ‘reconciliation’ or simply denying the relevance of looking into such issues—as occurred in Brazil and Uruguay—became increasingly less viable given the growth of transnational human rights movements and the expansion of international human rights law. Truth commissions have increasingly been adopted in this context to address the abuses of the past in countries as disparate as Chile, El Salvador, Guatemala, South Africa, Peru, Sierra Leone, and Timor-Leste. Other mechanisms have also been adopted, such as the use of vetting in Eastern Europe, the process of purging officials who collaborated with prior Communist regimes and/or prohibiting them (and in some cases civilian collaborators as well) from seeking public office for specified periods of time.
In Chile, for example, after seventeen years of dictatorial rule under General Augusto Pinochet, a truth commission was created by the new democratic government led by Patricio Alywin, but its unwillingness to challenge an amnesty law decreed during the military government precluded any trials from occurring. The commission investigated certain crimes (extrajudicial killings and disappearances, but not torture or exile), producing an important report as well as recommendations for reparations programs for survivors of the dictatorship, but impunity remained in tact.
A similar scenario prevailed in El Salvador. The United Nations sponsored truth commission investigating political violence during that country’s brutal civil war—most of which was perpetrated by state agents and their proxies—refrained from recommending trials because its members recognized the continued power held by the armed forces in the context of a negotiated peace process between the conservative government and the Farabundo Marti National Liberation Front (FMLN). Days after the commission’s report was released, Congress acted upon the President’s suggestion that a blanket amnesty should be declared.
It is perhaps not surprising that even powerful elites came to see truth commissions as an alternative to justice. Priscilla Hayner, whose book Unspeakable Truths offers a superb primer on truth commissions around the world, cites a Guatemalan military officer who, in the face of a UN-imposed truth commission in that war-torn country, saw truth as a virtual guarantee of impunity: “We are fully in support of a truth commission,” he notes. “Just as in Chile, truth but no trials.”
And yet, truth commissions remain a powerful mechanism, particularly in societies where the fact of state repression was routinely denied, silenced or justified, to document, explain, and acknowledge past abuses. Moreover, there is no ‘one-model-fits-all’ approach to truth commissions, and indeed, new truth commissions have adopted distinct and sometimes quite innovative strategies to avoid the pitfalls of their predecessors.
For example, the South African Truth and Reconciliation Commission sought to avoid the blanket amnesty approach that had proven so divisive in Latin America by creating a formula whereby perpetrators of human rights crimes had to apply for amnesty and were required to provide truthful testimony of their involvement in these crimes so as to reach a fuller account of what happened in South Africa during the era of apartheid. Advocates of this model suggest it is a paradigm for transitional countries, a sort of ‘third way’ in that it does not allow complete impunity yet favors reconciliation over retribution, while also acknowledging the complex political and economic realities of that country’s transition to democracy.
In addition, advocates note, by placing victims (or, more aptly perhaps, survivors) at the heart of the process of investigating and recounting the horrors of the previous regime, truth commission provide an alternative form of justice, referred to as restorative justice. Given that state-sponsored violence is often denied and negated, bringing state crimes to light is indeed important, as is questioning the official stories plied by dictators to justify their rule and their political crimes. Truth commissions may also provide a broader historical understanding of what happened and why, something trials, with their focus on individual crimes, presumably cannot do. This approach has not been without its critics, of course. Family members of well-known victims of the apartheid regime such as Steve Biko, for example, challenged the validity of the Truth and Reconciliation Commission in court, arguing that it denied their right to seek retributive justice.
The Peruvian Truth and Reconciliation Commission, which presented its nine-volume report on political violence in Peru in 2003, did not adopt the amnesty-for-truth approach of its South African counterpart, meaning it was less able to obtain information from official, particularly military, sources. But it did place a premium on holding public hearings on a variety of themes, including sexual violence against women—a topic rarely acknowledged—in order to make the process of truth-telling a more inclusive and comprehensive one. It also developed a unique strategy for linking truth-telling with retributive justice by establishing a legislative unit tasked with building concrete cases that could be handed over to prosecutors in the attorney general’s office. As part of its final recommendations, 43 such cases, involving some 150 military and police officials, were handed over to the judiciary for prosecution. (Criminal acts committed by insurgent groups, also documented by the Commission, have already been prosecuted, though in some cases retrials are being held because of violations of due process during the initial proceedings.) While only a handful of cases have successfully been brought to trial thus far, human rights activists are cautiously optimistic about the possibility of achieving not only truth but also justice in the Peruvian case.
Whether trials will be brought to fruition successfully in the Peruvian case (as well as others, such as Timor-Leste, whose Truth Commission recently released its report, which documents the murder of some 100,000 Timorese citizens at the hands of Indonesian security forces and with the complicity of the U.S. government) remains to be seen. As activists around the world seek to develop more effective mechanisms in domestic and international law to punish crimes against humanity, efforts to re-establish the link between truth and justice, as in the Peruvian case, may gain greater force and if successful will have a significant impact on the field of transitional justice.
The field of transitional justice is an emerging one, to date dominated by policy analysts, lawyers, and philosophers. Social scientists can make a positive contribution to the development of the field. There is a need to move beyond the normative issues that are inherent (and necessary) to the discussion over truth and justice to evaluate the behavioral dimensions of those engaged in the enterprise of transitional justice, including politicians, military officials, economic elites, social movements, and the international community, as well as the structural factors that shape decision making in transitional societies over these issues. Also of interest is how struggles over truth and justice shape contentious politics in post-transitional societies, as evidenced today in Argentina and Chile, where groups in civil society have waged campaigns domestically and at the international level, leading to renewed efforts to seek retributive justice. The Center for Global Studies (CGS) is seeking to establish a working group that will explore the possibility of developing an interdisciplinary research agenda on these issues; interested parties may contact CGS for further information.
Jo-Marie Burt (jmburt@gmu.edu) is associate professor of public and international affairs (http://pia.gmu.edu), an affiliate of the Center for Global Studies, and a 2005 CGS faculty grant recipient for her research on the Peruvian Truth and Reconciliation Commission. She is also founder of the Transitional and Transnational Justice working group at CGS, promoting interdisciplinary and collaborative research on the ways in which local societies and global institutions respond to mass atrocity.
