The accountability challenge
The Latin American region often evokes associations with turbulent politics, military regimes, fragile or patchy rule of law, and high levels of inequality. The Central American and Andean countries, including Colombia, are often characterised as riven by criminality linked to the drug trade and/or migration. The southern part of the region is known for brutal military dictatorships that used violence against guerrilla insurgencies, leftist activists, and members of social movements, casting a shadow of state terror over entire societies in the 1960s and 1970s.
Yet in recent decades, beginning in the 1980s, Latin America has been a pioneer in transitional justice mechanisms aimed at confronting the legacy of past military rule or internal armed conflict. As such, it was one of the first regions of the world to attract the sustained attention of transitional justice theorists and practitioners. Indeed, the term ‘transitional justice’ was coined by analysts whose attempts to construct a concept, and a field, drew in large part on the Latin American struggle in the 1980s and 1990s to deal with the terrible human cost of repressive dictatorships.
The course of transitional justice in the region has been uneven, both over time and between different countries. Initial efforts by Latin American states in transition from military rule or internal armed conflict were characterised by a strong emphasis on pragmatic or enforced accommodation around justice, combined with halting and incomplete programmes for truth-telling. Impunity through amnesties for past violations and concessions to elites were often considered essential to avoid the breakdown of the transition. Even large-scale, deliberate slaughter, such as the Guatemalan genocide of the 1980s, was rarely punished after transition to a new regime.
Nevertheless, on balance, Latin America is arguably the region of the world that has done the most to deal actively with serious crimes committed through the state apparatus and by non-state actors during past periods of military dictatorship or internal armed conflict. Why and how have some countries in the region been more able than others to address past political violence, sometimes more robustly than they deal with contemporary criminality? This question is the focus of our book.
We aim to describe and account for the recent transitional justice trajectory of Latin America by looking at the individual paths of nine countries. Although conventional analyses of transitional justice in the region focus primarily on the 1980s and 1990s and the initial transitions to democracy, this book extends the analysis into the first decades of the twenty-first century. It also focuses on specific transitional justice mechanisms rather than on the broad canvas of political transition.
We highlight complex patterns of changes over time with respect to impunity and accountability. Transitional justice trajectories that initially combined truth commissions with blanket amnesty for perpetrators, at the time of regime change or the signing of a peace agreement, have often later undergone substantial change in areas such as official and unofficial truth-telling, demand for and delivery of reparations, memory and counter-memory initiatives, and, most notably, persistent or resurgent demands for formal justice proceedings against perpetrators of historic crimes. What Geoffrey Robertson has called the ‘age of human rights enforcement’ (2013, xxxiii) has also been described as the ‘age of accountability’ (Sikkink 2012, 19). In the twenty-first century, in Latin America and beyond, transitional justice challenges are increasingly framed in the language of rights, entitlements, and obligations rather than of political bargaining, concessions, and expediency.
New patterns of transitional justice
In late 2015, as this book is completed, several examples of vibrant transitional justice activity are under way in the region. The ‘Operation Condor’ trials unfolding in courtrooms in Buenos Aires represent the largest and most extensive efforts to date in Latin America to systematically try military officials for cross-border crimes committed during the 1970s and 1980s.1 Twenty-one defendants, all retired military officials, are facing charges of kidnapping and illicit association involving 106 victims and around 500 witnesses. The oral hearings are expected to last two years; a long prior investigation phase has already been completed. Such large-scale criminal investigations reinforce Argentina’s current image as a protagonist of transitional justice.
Other Latin American countries have also seen recent justice activity over past violations such as forced disappearances, torture, extrajudicial killings, and crimes against humanity. This activity has been entirely home-grown, since no ad hoc or hybrid tribunals have operated in the region, and the International Criminal Court (ICC) has no temporal jurisdiction except, potentially, in the case of Colombia. In September 2012, Brazil opened its first state-sponsored criminal complaint against former military officials accused of torture during its last period of right-wing military rule, 1964–85. Only a few months earlier, President Dilma Rousseff had inaugurated the first official truth commission to examine a range of abuses committed during that regime.
As the first court case was under way in Brazil, prosecutors in Guatemala were preparing the trial of former general and ex-head of state Efraín Ríos Montt in a case that had bounced between Spanish and national courts. The Guatemalan Court for High Risk Crimes (Tribunal A de Mayor Riesgo) in May 2013 found Ríos Montt guilty of command responsibility for massacres against Ixil Maya indigenous people in Guatemala and sentenced to him to 80 years in prison. Although the Constitutional Court later set aside the judgment because of alleged procedural errors, this case marked the first time that a former head of state had been found guilty of genocide and crimes against humanity by the national justice system of his own country.
The unsuccessful battle to extradite former Chilean dictator Augusto Pinochet from the United Kingdom to Spain, which began in 1998, evoked the post-Nuremberg principle of universal jurisdiction. It became part of the back story to the founding of the ICC through the adoption of the Rome Statute in 1998 and its entry into force in 2002. The 2007 extradition of former Peruvian head of state Alberto Fujimori from Chile to Peru to face trial made him the first former head of state to be successfully prosecuted by a home-country court for gross human rights violations.
Developments in historical memory and truth-telling have been equally striking, fundamentally changing how violent events are remembered and retold (Atencio 2014; Hite 2013; Lessa 2013). Both in terms of formal judicial action and in terms of memory, the violent past is being remembered and acted upon.
Temporal distance from the violence and the levels of brutality involved vary significantly across countries. Gross human rights violations committed during dictatorships in Brazil and the Southern Cone (Chile, Argentina, Uruguay, Paraguay) in the 1970s and 1980s were matched, and even outstripped, by broad and intense fatal violence during internal armed conflicts in other parts of the region (Guatemala, El Salvador, Peru) from the 1960s to the 1990s. The conflict in Colombia continues, despite important strides in 2015 towards a peace agreement. Although it is an outlier in a temporal sense, the Colombian case is included here as a novel (for the region) example of efforts to consciously deploy transitional justice strategies and mechanisms even before completion of a peace settlement.
Gross violations, as well as early efforts to address or move beyond them, occurred in country contexts where impunity was part of the historical and social landscape. Elite actors and institutions generally expected, and usually secured, exemption from the legal, social, and political rules that applied to other members of society. This sense of being ‘untouchable’ inspired some of the worst expressions of state and paramilitary violence.
Given this reality, many of the transitional settlements of the 1980s and early 1990s focused on formal political change rather than substantive efforts to hold accountable those responsible for past violence. The motive was not always fear or incapacity. Sometimes there was a genuine belief that concessions providing impunity to former authoritarian regime figures or non-state combatants would, by securing peace and/or democracy, give rise to changes that would eventually weaken – or even overcome – such distorted patterns of privilege and of being ‘above the law’. Even after successful transitions to peace or democratic government, full accountability was more the exception than the rule. Amnesty, whether written or unwritten, was the predominant response to past violations of human rights or of international humanitarian law.
Since the late 1990s, however, a different pattern has begun to emerge. In the more recent Latin American cases, that is, those countries embarking on transitional justice trajectories, truth commissions remain the most common policy response. However, they are much less likely than before to be accompanied by the introduction of blanket amnesty laws preventing criminal prosecution.2 Today, more perpetrators are facing prosecution, domestic amnesty laws are being weakened or dismantled, and victims’ rights have entered the public arena in a much more forceful way than previously. This suggests that the former picture of impunity in the formal judicial sphere is fading or at least changing. Reparations to victims and survivors have become a standard part of the post-violence repertoire, with more robust and internationally enshrined requirements for their scope.
What explains this observable shift from impunity towards accountability for past human rights violations? In order to explore when, how, under what conditions, and in response to whose agency accountability processes unfold, this book traces experiences since the 1980s in nine Latin American countries: Argentina, Brazil, Chile, Colombia, El Salvador, Guatemala, Paraguay, Peru, and Uruguay. The empirical description is framed by the spectrum ranging from impunity to accountability and by the role of transitional justice (TJ) and of specific transitional justice mechanisms (TJMs) in changing the level of accountability over time. We use the term ‘transitional justice’ to refer to processes and mechanisms for dealing with past atrocities in societies emerging from repressive regimes or internal armed conflicts. Although TJ encompasses a wide range of both formal and informal measures, this book’s main focus is on truth-telling (including, but not limited to, truth commissions), criminal prosecution (for which we use the shorthand ‘trials’), amnesties, and reparations. In particular, we explore how more recent democratic transitions3 or peace settlements, as well as major changes in previously established settlements, may challenge traditional TJ thinking and practice.
This book makes three distinctive contributions to the TJ research literature. First, in evaluating the impact of TJ, it takes a step back from the broad goals often considered – such as peace, democracy, the rule of law, and reconciliation – to focus instead on more immediate indicators and outcomes of accountability. Throughout this volume, we define accountability as an explicit acknowledgement by the state that grave human rights violations have taken place and that the state was involved in or responsible for them.4 Means of accountability can include, but are not limited to, the recovery and diffusion of truth, criminal prosecution, reparations, and efforts to guarantee non-repetition. This working concept of accountability incorporates, but also extends beyond, a minimal definition of accountability as the use of formal criminal justice mechanisms against perpetrators.
Second, the book offers a conceptual framework for exploring in depth how different TJMs play out in different contexts (Chapter 2), and how they may – or may not – contribute to increased accountability in the broad sense adopted here. Looking beyond the mere presence or absence of TJMs, we analyse their functioning, progress, consequences (intended and unintended), and limitations. We also consider other contextual factors that promote or inhibit accountability.
Third, the book provides detailed empirical evidence from nine Latin American countries, each featuring a systematic examination of a set of explanatory factors (Chapters 3–11). This allows the book to provide qualitative comparative analysis of TJ processes over time in a set of related countries. This approach differs from the single-country case studies that have dominated the TJ literature, as well as from the large-n quantitative studies that have also been prominent in recent years. Our focus is to carefully investigate to what extent there has been a shift from impunity towards accountability for human rights violations of the past in Latin America. Rather than the strict hypothesis-testing of large-n studies, the chapter authors use ‘thick’ narratives of multiple cases, guided by a common conceptual framework. The intention is to provide sufficient detail and nuance to account for variation among the cases, with a common structure to enable comparative analysis. Chapter 12 summarises such comparative judgments and assesses the weight of the evidence on theoretical questions of when, why, and how particular TJ measures come to constitute, or contribute to, accountability.
Explaining variations in shifts from impunity towards accountability for past human rights violations
Assessment of the impact of TJ mechanisms has often concentrated on macro-level changes, using indicators of broad societal phenomena such as peace or democracy. The results of such investigations are inconclusive, given the many difficulties in defining success. This is particularly the case with the trend of considering the ‘transformative’ potential of transitional justice interventions; strong claims are made for their ability to address long-term developmental goals along with socio-economic and gender injustice.5 In Latin America, such ambitious agendas may give rise to tensions, given that the right-wing political violence with which transitional justice has historically been most concerned was largely a reaction to attempted revolutionary social change.
This book deliberately takes a less ambitious approach, focusing more narrowly on the effects of specific TJ mechanisms over time, both in the early paradigmatic transitions and in the subsequent trajectory in each country. Does transitional justice, after all, become just ordinary justice (Posner and Vermeule 2004), or do social, political, and legal responses to past violence continue to be identifiably special? In short, we focus on the distinctive goals of TJ mechanisms, namely to address, and ideally to ameliorate, the negative social and political legacy of past political violence.
Our guide to summarising the impact over time is the spectrum bounded by the ideal types of ‘impunity’ and ‘accountability’. Although neither extreme exists in a pure form in the real world, the spectrum serves as a conceptual framework for comparing degrees of accountability or its absence (impunity). In the TJ field, accountability is generally associated with criminal accountability; impunity is considered to be its antithesis (Teitel 2000). The Inter-American Court of Human Rights has repeatedly defined impunity as a systematic failure to investigate, prosecute, arrest, adjudicate, and convict those responsible for violations of rights protected by the American Convention on Human Rights (Cassel 2007). We expand this minimal legalistic definition and employ impunity and accountability as end points of a wider spectrum that also includes the results of other forms of TJ, such as truth commissions, reparations, and informal mechanisms to deal with the memory of past violations.
Kathryn Sikkink (2012) distinguishes between three models of accountability: the immunity or impunity model (model 1), the state accountability model (model 2), and the individual criminal accountability model (model 3). She contends that impunity, that is, failure to allocate responsibility for serious human rights violations (model 1), can be erased by holding responsible either the state (model 2) or the individual(s) who allegedly committed the violations (model 3). As will become evident in our nine country chapters, most Latin American countries have moved in recent times from model 1 in the direction of model 2, model 3, or a combination of both.
Through a careful selection of country cases, this book attempts to map and then explain variations in accountability across time and across countries. We argue that mono-causal explanations fall short of capturing complex and frequently non-linear shifts from impunity towards accountability. Accordingly, we first track and explain such shifts within each country during the years that have elapsed between the initiation of transition (or signing of a peace agreement) and the end of 2014. Second, we compare and contrast observable levels of accountability at the time of writing across our nine country cases. The choice of cases from the Latin American region allows for comparison of countries that share a regional context, yet have a range of distinctive experiences in their transitional justice trajectories.
There are good reasons why a study of transitional justice trajectories in Latin America is timely. First, this world region pioneered the use of TJ mechanisms. Latin America saw the origins of the official truth commission (TC) in the early 1980s; the region contains at least 12 of the 40 or so countries worldwide that have utilised TCs over the past three decades (Hayner 2011).6 Latin America was also the pilot for the active involvement of the United Nations (UN) in peace processes in the post-Cold War period: the UN’s involvement in El Salvador in 1991–92 and Guatemala in 1996–97 preceded its involvement in setting up the ad hoc tribunals in Rwanda and the former Yugoslavia. Nonetheless, in keeping with the prevailing wisdom of the time, the UN focused its role in Central America on peace mediation and truth-telling rather than on, as in the later cases, actively supporting criminal prosecution.
Second, Latin America is the world region that has seen the highest numbers of alleged human rights violators prosecuted in third-country courts. This has influenced international human rights law as well as domestic court practice (Skaar 2011). Since the 1980s, former members of Latin American armed forces and security services have been tried, sometimes in absentia, in the domestic courts of several Western European countries, including Spain, France, Italy, and Belgium. These cases, which include the 1998 Pinochet case in Spain, have contributed to advances in human rights jurisprudence and to the construction of limited enforceability for existing international human rights norms (Sikkink and Walling 2007).
Third, ongoing human rights trials in the region’s domestic courts are, as we will see, probably the most extensive in the world today in both absolute and relative terms. They increasingly reach across borders, tracking intra-regional repressive networks such as Operation Condor but also drawing in US and Spanish courts. Parallel to this horizontal reach, domestic transitional justice dynamics have both stimulated and been stimulated by regional court activity. In the case of Colombia, they have led to the longest-running (since 2005) preliminary examination by the ICC and to the first contemplated theatre of ICC action outside Africa.
Finally, Latin America has also been a forerunner in reparation programmes for victims, survivors, their families, and sometimes others. Particularly in recent years, there has been an increased focus on bottom-up, victim-centred, and victim-driven reparation processes. Peru has emphasised the notion of collective reparations for indigenous communities, mirroring recent developments in acceptance of the principle of collective rights. The 2011 Victims’ Law in Colombia is particularly notable for its historical extensiveness and for addressing land issues that lie at the heart of the decades-long conflict (García-Godos 2013). This exemplifies the socio-economic turn in transitional justice thinking. The victim-centred discourse surrounding reparations also requires attention to connections between state-initiated and bottom-up TJ processes.
This rich regional experience entails substantial variation in the way countries have dealt with their violent pasts. Some countries, like Argentina and Chile, may be considered world leaders in putting former military dictators and other alleged perpetrators on trial. Other countries, such as Brazil, have only very recently started to address their violent past, at least at the level of internationally visible public policy.
Thus, we can explore questions such as the following: What makes some countries apparently more able and willing than others to deal actively with past human rights violations? What affects the timing and depth of the debate when such issues are addressed nationally? Are the countries with less present-day activity simply those that satisfactorily resolved the issues at a previous juncture? Why have some countries seen more actions and initiatives that fall under our definition of accountability, and others less? Are patterns sufficiently explained by the relative intensity of violations? Is the key factor political will, level of judicial competence, judicial will, or culture? Is it a matter of the level of respect for human rights norms in general, or of elite and civil society actors pushing for or against particular transitional justice processes? What is the role and relative contribution of international actors?
In sum, Latin America can offer many useful lessons for transitional justice theory, and for practice in other parts of the world, due to its rich mix of types and time periods of transitional justice experience. Comparisons over recent decades allow insight into the extent to which ‘international time’ and trends in international scholarly and policy thinking on transitional justice may have operated alongside national and regional factors. Recent changes in formal justice outcomes, particularly the turn from amnesty to prosecutions in the south of the region, offer a unique chance to study the process and outcome of large-scale criminal trials for domestic atrocities. The special case of Colombia, meanwhile, serves as a bridge to active conflict settings in other regions.
Contextualising Latin American TJ development
To understand Latin America’s recent trajectory in addressing past violations, it is important to keep in mind developments at the regional level that may have aided, or at least provided an enabling environment for, the shift from impunity towards accountability in specific countries. Here we focus on three: political developments, judicial developments, and normative development in the field of human rights.
Two political trends in Latin America are particularly relevant: the endurance of formal democracy and an ideological shift to the left in the early 2000s, with moves from right-wing to centre-left, or to left-wing governments in some countries.
Democratic rule, for all its imperfections, now seems firmly rooted. Whereas military coups were almost routine in the 1970s and 1980s, since the year 2000 there have been, at most, half a dozen attempts, mostly unsuccessful, at forcible power transfer. No Latin American country is under military rule as of mid-2015, with Cuba generally considered the sole remaining authoritarian regime. Only Colombia is currently immersed in internal armed conflict, and peace talks are ongoing there. Some see the region as democratically consolidated. Even those who are concerned about deterioration, stagnation, or backsliding tend to agree that Latin America is ‘enjoy[ing] its most democratic period ever’ (Mainwaring and Pérez-Liñán 2013, 246). This means that elections are acceptably competitive, free, and fair; the military is back in the barracks; and there is heightened respect for the rule of law and the protection of basic citizenship rights. Increased efforts at democratic accountability (horizontal, vertical, and social)7 in many Latin American countries can be expected, where successful, to also affect human rights compliance positively insofar as respect for human rights is intrinsic to democratic practices.
The second general political shift is ideological. Whereas right-wing dictatorships, frequently propped up by the United States, formerly dominated much of the continent, making common cause against a perceived ‘communist threat’, these regimes gave way in the 1980s and 1990s to elected governments of a more centrist hue. The decade beginning in 2000 then saw a leftward turn in, for example, Argentina, Brazil, Chile, Ecuador, El Salvador, Guatemala, Nicaragua, Uruguay, and Venezuela.8 Though some left or centre-left governments did relatively little to address past human rights violations, several oversaw substantive changes in this respect. Current or recent heads of state in Chile (Michelle Bachelet, 2006–10 and 2014–), Brazil (Dilma Rousseff, 2011–), and Uruguay (José Mujica, 2010–15) were all personally victimised by authoritarian-era repression. In Argentina, left-wing presidents Nestor Kirchner (2003–7) and Cristina Fernández de Kirchner (2007– 16) quickly adopted a strong pro-accountability stance. As detailed in the country chapters, both personal histories and state-level politics affected issues of human rights and transitional justice.
Another development in the region that positively influenced formal criminal accountability for past crimes was a wave of judicial reforms in the 1980s and 1990s. These reforms, aided by external actors such as the World Bank and the Inter-American Development Bank, were encouraged by regional judicial experts and driven by institutional and citizen concern with the functionality of state institutions and the rule of law. Courts and other criminal justice institutions were overhauled in many countries (Dakolias 1996; Biebesheimer 2001; Buscaglia, Dakolias, and Ratliff 1995; Hammergren 1998; Jarquín and Carrillo 1998). Reforms aimed to increase the independence, accessibility, and efficiency of the courts. Many countries switched their criminal justice procedures from inquisitorial to accusatorial, with public prosecutors’ offices redesigned and given more prominent roles.
Where successful, such reforms instigated a speedier, more democratic, judicial process more accessible than before to a range of citizens, including victims of human rights abuses. Where judges became more independent, they became, in principle, more able to take on human rights cases that in earlier times would have been rejected due to internal political pressure. Although the effectiveness of the reforms has been questioned (Hammergren 2010; Prillaman 2000), the bulk of the literature, including our own previous research, suggests that judicial reform measures have, on balance, aided the shift towards accountability for past crimes. Courts on the continent are now, on average, more accessible to victims, with judges more sensitive to human rights and hence more receptive to claims for truth, reparations, or justice than they were ten or 20 years ago (Skaar 2011).
Finally, as part of an overall international trend, there has been a normative shift in Latin America towards acceptance of the validity of human rights framings. This is reflected in at least three areas: constitutional reform, treaties, and conventions that codify human rights protections, and the development of international human rights norms. Together, these point to the development of national iterations of a regional and international human rights culture.
First, constitutional reforms have rebalanced power relations within the state by increasing internal checks and balances and by reducing the relative power of presidents in a region with a strong tradition of presidentialism. The reforms have also improved protection of minority rights and women’s rights (Sieder and McNeish 2012).
Second, a growing body of treaty law offers explicit protection of core human rights. Particularly relevant are the American Convention on Human Rights (which entered into force in 1978), the Inter-American Convention to Prevent and Punish Torture (1987), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987), and the Inter-American Convention on Forced Disappearance of Persons (1996). The Convention against Torture granted universal jurisdiction for torture. Significantly, the Inter-American Convention on Forced Disappearance explicitly classified disappearance as a crime against humanity, exempt from statutes of limitations, and as an ongoing or continuous crime (delito permanente) as long as the fate and whereabouts of the victim remain unknown. These concepts have been key in domestic court treatments of past Latin American crimes in Latin American and European courts, as detailed in the country chapters. The sequencing of regional followed by international treaties also demonstrates that Latin America has not only taken up, but also actively spearheaded, a change in international norms. Argentina, for example, was a key protagonist of the 2006 adoption of the International Convention for the Protection of All Persons from Enforced Disappearance.
Third, there has been further development of the concept of core atrocity crimes and common (universal) responsibility for prosecuting such crimes (Bassiouni 2001; Einarsen 2012). The 1998 Pinochet arrest and ensuing legal battle is the best-known example in which ‘bystander’ domestic courts have invoked this idea (Roht-Arriaza 2005). National prosecutions in third-country courts seem finally to be coming of age as a viable option alongside the emerging range of international venues for prosecution of atrocity crimes. This trend, running from Nuremberg and Tokyo through the ad hoc tribunals of the 1990s and later hybrid or mixed tribunals,9 found its greatest expression in 2002 with the establishment of the International Criminal Court.
The interplay of these various domestic, regional, and international dynamics has given rise to Latin America’s emerging ‘age of accountability’. Growing concern for human rights in the region is intimately linked to the dual processes of democratic consolidation and judicial/constitutional reform briefly described above. This concern and an emphasis on transitional justice in particular, has been reinforced by the inter-American system for human rights protection. As this system forms an important institutional and legal backdrop to national TJ processes, it warrants discussion in greater detail.
The inter-American system of human rights protection
Latin America and Africa are the only two regions of the world that have both a court and a commission to deal with the promotion and protection of human rights.10 The inter-American system dates back to the establishment of the Organization of American States (OAS) and the signing of the American Declaration of the Rights and Duties of Man in 1948, which became the first regional codification of human rights. The Inter-American Commission on Human Rights, created under the OAS Charter in 1959, is located in Washington, DC. The American Convention on Human Rights entered into force in 1978, and the Inter-American Court of Human Rights was set up in 1979 in San José, Costa Rica, to enforce and interpret provisions of the Convention.
Participation in this regional system of human rights protection has been widespread, excepting only the United States and Canada. At time of writing in mid-2015, 23 of the 35 independent states of the Americas – including all nine of the Latin American country cases examined in this book – are parties to the American Convention and subject to the contentious jurisdiction of the Inter-American Court (Table 1.1).11
| Country | Signed American Convention | Ratified American Convention | Accepted contentious jurisdiction of Inter-American Court |
| Argentina | 2 Feb 1984 | 5 Sep 1984 | 5 Sep 1984 |
| Brazil | 22 Nov 1969 | 25 Sep 1992 | 10 Dec 1998 |
| Chile | 22 Nov 1969 | 21 Aug 1990 | 21 Aug 1990 |
| Colombia | 22 Nov 1969 | 31 Jul 1973 | 21 Jun 1985 |
| El Salvador | 22 Nov 1969 | 23 Jun 1978 | 6 Jun 1995 |
| Guatemala | 22 Nov 1969 | 18 Jul 1978 | 9 Mar 1987 |
| Paraguay | 22 Nov 1969 | 24 Aug 1989 | 11 Mar 1993 |
| Peru | 27 Jul 1977 | 28 Jul 1978 | 21 Jan 1981 |
| Uruguay | 22 Nov 1969 | 19 Apr 1985 | 19 Apr 1985 |
Source: IACHR 2013.
The Inter-American Commission and Court
The Inter-American Commission on Human Rights has monitoring and advisory powers and acts as gatekeeper to the Inter-American Court of Human Rights. It advises member states of the OAS on improving human rights protection, conducts on-site visits, publishes country and annual reports, and investigates specific situations. Outcomes of investigations can include ‘friendly settlements’, the soliciting of an advisory opinion from the Court, or the referral of a case to the Court. According to its Rules of Procedure, the Commission can order a state to adopt precautionary measures when ‘serious and urgent situations [present] a risk of irreparable harm to persons or to the subject matter of a pending petition or case’.12 Measures may be of a collective nature, that is, designed to protect people belonging to a particular group (the Convention on Forced Disappearance is one of the explicitly cited bases for this power).
The Inter-American Court has both advisory and adjudicatory functions. In the former capacity, it issues advisory opinions, solicited by the Inter-American Commission, agencies, and/or OAS member states, regarding the correct interpretation of the American Convention or other regional instruments. Its adjudicatory function involves hearing specific cases related to human rights violations allegedly committed by ratifying states that have accepted its jurisdiction (Pasqualucci 2013). The Court can also advise on the compatibility of domestic laws and bills with the state’s duties under the regional human rights instruments.
The Court rules only on whether states have complied with treaty and other obligations. Since it is not a criminal court, it cannot decide on individual guilt. At most, it may rule that a state has infringed rights directly, by commission, or indirectly, such as by the denial of timely justice in a domestic criminal case. Complementarity also operates, as cases are only admissible if domestic remedies have been exhausted. Unlike in the single-tier European system, individuals do not have direct recourse to the Court but must first petition the Commission. Only states that have ratified the Convention and accepted the Court’s contentious jurisdiction can be investigated and judged by the Court regarding individual alleged violations. Rulings of the Court are binding on the affected state and can involve pecuniary and non-pecuniary reparations for moral and physical damage of individual or collective character (Sandoval-Villalba 2009). The Court can also order a state to reopen a domestic case, offer a public apology to victims, publish details of a ruling in national media, and/or modify domestic legislation to bring it into line with Convention obligations. Both the Commission and the Court have mechanisms to follow up or supervise state compliance (Naddeo 2010), although the system’s overall effectiveness in this respect is often questioned.
The contribution of the regional human rights system to transitional justice
It is widely agreed that the inter-American system of human rights protection has made a significant contribution to domestic accountability for past human rights violations. The system played a role in struggles for justice, truth, and reparations during times of repression and conflict as well as in the aftermath (Salazar and Antkowiak 2007; SLADI 2011). This had both symbolic and practical significance during the 1970s and 1980s, providing victims with a forum when national justice systems were inaccessible, compromised or actively hostile. The Commission’s on-site visits and reports carried special significance at that time. Precautionary measures, especially in cases of enforced disappearance, protected lives (see González 2010), and the Commission’s early assertion (1985) of the right to truth became central to individual and collective struggles for defence of human rights.
Indeed, the inter-American system can be considered a pioneer of the rights-based framing of transitional justice practice that is emerging in the region and beyond (IACHR 2014, para. 236). According to Alexandra Huneeus, the Court has played ‘a leading role in developing international doctrine on disappearance, amnesties, the victim’s right to the truth, the obligation of states to prosecute, and judicial guarantees’ (2011, 500).13 The inter-American system continues to play a key role in protecting individuals from human rights abuse, promoting awareness of human rights, creating space for democratic dialogue, and giving voice to victims and their families (Dulitzky 2007).
In the field of criminal accountability, Inter-American Court rulings have strongly supported access to justice14 and have addressed dilemmas in prosecuting state and non-state agents for atrocity crimes. The Court’s milestone ruling in Velásquez Rodríguez v Honduras (1988) clearly articulated that states parties have a general obligation to ensure Convention rights, which implies the obligation to investigate, prosecute, and punish gross violations of human rights and to provide reparation. A further series of judgments have been central in reinterpreting domestic amnesty laws, thus widening space for judicial proceedings against alleged human rights violators in national courts. In Barrios Altos v Peru (2001), the Court declared that the amnesty imposed by former president Alberto Fujimori violated victims’ right to access to justice. In Almonacid v Chile (2006), the Court ruled that amnesty laws could not be allowed to contravene Convention obligations. This applied particularly to what the Court termed ‘self-amnesty’, that is, amnesty laws designed to principally or exclusively favour the regime or administration that instituted them. Forced disappearance was interpreted as prohibited by jus cogens (Goiburú v Paraguay, 2006) and was also declared a continuous crime (Contreras et al. v El Salvador, 2011). These principles, which can also be derived from domestic law principles, were previously and subsequently significant in national prosecutions in, among other countries, Chile, Argentina, Brazil, Uruguay, and Peru.15
Another central contribution to the struggle against impunity in the region has been the system’s emphasis on the right to truth. Following the Commission’s early lead, the Court accepted, in Velásquez Rodríguez and subsequently, that victims and relatives have the right to truth. The Court has also discussed truth as a social right and a form of reparation in, for example, Gomes Lund (Guerrilha do Araguaia) v Brazil (2010) and Gelman v Uruguay (2011) (IACHR 2014).
In spite of this substantial progress, there are also limitations to inter-American system influence on domestic TJ processes. First, temporal jurisdiction restrictions have most likely prevented a number of cases for past violations from being brought before the Court. In five of our nine case studies, systematic torture, killing, forced disappearance, and illegal imprisonment took place before the relevant state had ratified the Convention and/or accepted the jurisdiction of the Court, leaving it no competence to investigate the original alleged offence. However, this problem has been overcome in some recent cases by use of petitions that cite ongoing denial of truth or justice as, for example, in Serrano-Cruz Sisters v El Salvador (2005) and García Lucero v Chile (2013).
Second, levels of non-compliance suggest that there is still a fair amount of political and judicial resistance to Court rulings and Commission recommendations. A case in point is the reluctant implementation of the remedies ordered in the Gelman case, further discussed in the Uruguay chapter in this volume, or Chile’s nine-year delay (as of September 2015) in complying with the 2006 Almonacid ruling by legislating on amnesty.
Third, some states have grown dissatisfied with the entire system. Trinidad and Tobago withdrew from (‘denounced’) the American Convention in 1998, in order to remove itself from the Court’s jurisdiction, and Venezuela followed suit in 2012. Peru threatened to do so in 1999, under Fujimori. These withdrawals may herald attempts by other states to question or reduce the competence of the system, since tensions between national sovereignty and regional governance are as present in Latin America as in other parts of the world. However, the system’s current significance for regional transitional justice is undeniable and is confirmed in the nine country cases.
Country studies: selection and grouping
Our nine case studies – Argentina, Brazil, Chile, Colombia, El Salvador, Guatemala, Paraguay, Peru, and Uruguay – share a number of important features, explored in more depth in Chapter 2. While it is important not to overstate the similarities, the existence of roughly homologous formal state and legal systems and two mutually comprehensible official languages (Spanish and Portuguese) has undoubtedly facilitated intra-regional exchanges and the diffusion of transitional justice practices at both official and grassroots levels. Nevertheless, these nine countries also differ significantly with respect to the implementation of TJ measures. On the basis of conflict and transition type, we can divide them into three clusters or groups of cases. The variations between and within groups provide opportunities to examine, first, how transitional justice has evolved over time within national settings, and second, how the transitional justice menu itself now reflects the regional and international realities of the new millennium rather than those of the 1980s.
Group 1, which we call ‘post-authoritarian’ cases, consists of countries in which the state was responsible for an overwhelming proportion of the most serious abuses. This group includes the Southern Cone countries plus Brazil, which were linked not only by geographic proximity but also by Operation Condor. In both of the remaining two groups, state violence was accompanied by significant violations of international humanitarian law by non-state armed actors. Group 2, the ‘post-conflict’ group, includes the Central American countries and Peru. Group 3 consists of Colombia, which is distinct in being the only case where political violence is still ongoing. Although an active peace process was under way as of 2015, with transitional justice questions on the table as an agreed part of the agenda, no conclusion had been reached at time of writing. Table 1.2 provides details on significant characteristics reflecting differences between these three broad contexts.
| Group | Characteristics | Transition type | Countries |
| Group 1 | Military authoritarian regime, state mainly responsible for violations; effective self-amnesty; subsequent significant tensions in civil-military relations; elite reaction against challenges to impunity in the courts; justice system reform as an independent variable producing or facilitating post-transitional accountability. | Post-authoritarian | Argentina Brazil Chile Paraguay Uruguay |
| Group 2 | Civil/internal wars followed by peace processes and/or amnesties intended to secure peace; higher perceived legitimacy of amnesty given contribution of non-state armed actors to fatal violence; varied levels of subsequent social pressure for accountability; historically low levels of justice system functionality; potentially demobilising effect of high levels of rurality and relatively low human development index and income per capita scores when compared to Group 1 (except Paraguay). | Post-conflict | El Salvador Guatemala Perua |
| Group 3 | Ongoing and long-lasting armed conflict; equal and/or greater responsibility of non-state armed actors for fatalities; TJMs currently considered as contributing to, as well as resulting from, a transition to peace; possible external (international) justice intervention (ICC preliminary examination); cumulative intra-regional learning and explicit appropriation of transitional justice idiom and norms. | Ongoing conflict | Colombia |
a.Peru has experienced multiple transitions: from military rule to democracy in 1980, from armed conflict in the mid-1990s, and from civilian authoritarian rule in 2000. It is thus a hybrid case for purposes of our taxonomy, yet, on balance, it lies closer to the Central American contexts of Group 2 than to the post-authoritarian cases of Group 1.
The subdivision of the nine cases into three groups is designed to maximise, for control and comparison purposes, similarities within groups and differences between groups along the following: (a) timing of and time elapsed since transition (domestic and international timing); (b) type of conflict and transition (post-authoritarian, post-conflict, or ongoing conflict); (c) type and scale of violations (low/high) and victims’ political and sociological profiles; (d) number and sequencing of TJMs (few/many, early/late); and (e) drivers of justice (local/state/international). See Table 1.3 for a summary comparison of some of these basic data. Within each of the three groups, the countries are listed chronologically by year of formal initiation of transition away from authoritarian rule or internal armed conflict, paralleling the order of the country chapters in this book.
| Group | Country | Year of formal transition | Conflict or regime type before transition | Number of dead, detained-disappeared (DD), and displaced (all figures are contested estimates) | Primary actor(s) in transition/early TJ | Type and sequencing of official TJMs | |
| Under transitional government | Later (post-transition) | ||||||
| Group 1 | Argentina | 1983 | Military dictatorship | 10,000–30,000 dead and DD; extensive torture | National actors | TC, trials, amnesty, reparations | Large-scale trials from 2000 |
| Uruguay | 1984 | Military dictatorship | 190 dead and DD; 200,000 tortured | National actors | TC, amnesty | Trials; 2nd TC; reparations | |
| Brazil | 1985 | Military dictatorship | 420 dead and DD; extensive torture | National actors | Amnesty | TC established 2011 | |
| Chile | 1991 | Military dictatorship | 3,200 dead and DD; 40,000 tortured | National actors | TC, amnesty, reparations | 2nd TC; large-scale trials from 1998 | |
| Paraguay | 2003 milestonea | One-man/one-party military rule | 400 dead and DD; 20,000 tortured | National actors | No amnesty; TC later | Reparations | |
| Group 2 | El Salvador | 1991 | Internal armed conflict | 50,000 killed and DD | International actors (UN) and national actors (warring parties) | TC, amnesty | |
| Guatemala | 1996 | Internal armed conflict | 200,000 killed, some in genocide | International actors (UN) and national actors (warring parties) | TC, limited amnesty | Trials for Guatemala | |
| Peru | 2000 milestoneb | Authoritarian regime and internal armed conflict | 69,000 dead and DD; 600,000 internally displaced | National actors | TC, trials reparations | Fujimori conviction 2009; other high-level trials ongoing | |
| Group 3 | Colombia | Ongoing (2005 milestonec) | Internal armed conflict | Large-scale killings; 4 million internally displaced | National actors, with high levels of international consultation; ICC active in formal justice discussion | Conditional amnesties, trials, reparations, truth-seeking | N/A |
a.Dictator Alfredo Stroessner was ousted in a palace coup in 1989, but his Colorado Party remained in power until 2008. The Paraguayan TC investigated human rights violations from 1954 up to the time of its establishment in 2003.
b.The year 2000 marks the end of the authoritarian civilian Fujimori presidency (1990–2000) and the beginning of discussion of TJMs.
c.The Justice and Peace Law (Law 975), enacted in 2005, established the legal framework for implementation of TJ mechanisms in Colombia.
In addition to the distinctions outlined above, our cases also vary with respect to their rates of compliance with verdicts, settlements, and remedies required by the Inter-American Commission and Court (Basch et al. 2010). To consider Court and Commission influence over domestic TJ processes, each country chapter will examine the levels, content of, and domestic receptivity to major inter-American system activity regarding transitional justice matters – including, where relevant, domestic court citation of rulings by the regional system in relation to other states.
Colombia has been selected as a special case for three reasons. First, as already discussed, it is the only case where TJ mechanisms are being implemented before the end of an internal armed conflict. This provides a unique opportunity for a baseline study of what can happen when TJMs are employed at an early stage in the peacebuilding process (rather than after the conflict has ended, as in Guatemala, El Salvador, and Peru).
Second, whereas most of the other cases are characterised by significant sequencing and spacing of TJMs, Colombia has been able to learn from almost three decades of accumulated TJ experience in the rest of the region. Thus, it has chosen to attempt simultaneous implementation of all four of the TJMs on which this study focuses.16 Third, Colombia’s current process is unfolding in a climate of substantially more complete and stringent regional and international norms and presumptions regarding victims’ rights to truth, justice, and reparations.
In developing our framework, we first define ‘impunity’ and ‘accountability’ as ideal types representing the opposite ends of a spectrum. Chapter 2 elaborates this conceptual framework and identifies elements we will examine to provide thick descriptions of specific instances in the case studies. Our methodological approach entails application of a common set of variables to all country cases, with a focus on social actors and surrounding dynamics. We apply process-tracing techniques to produce nuanced accounts of how particular TJMs and processes have evolved over time. This longitudinal approach contrasts with the more common approach of comparative studies, which focus mainly on the formal decisions taken at the initial transitional ‘moment’.
The empirical studies provide detailed descriptions of specific transitional justice processes in each of the nine countries, as well as, where available, some indication of how national populations, or at least key domestic actors, evaluate and perceive them. These descriptions, including interpretation of particular political and legal phenomena as constituting or contributing towards impunity or accountability, benefit from the on-the-ground expertise of the country case authors. The mere presence or absence of a specific TJM does not in itself constitute a shift towards or away from accountability. Rather, a society will be classified as moving closer to one extreme or the other through a nuanced decoding of the meaning and quality of each TJ action as well as the sum of its TJ actions at a given point in time. Chapter 2 also explains in more detail our methodology for aggregating, comparing, and graphically representing the outcomes of these assessments.
Primary data for the case studies were collected principally during fieldwork carried out by the chapter authors in 2012–13 in each of the nine countries, supplemented subsequently by additional field data and input by the in-country chapter authors. All authors consulted and collaborated closely with national institutions and organisations working on TJ issues, and some were aided by local field assistants. Each country chapter draws upon a mix of primary and secondary sources. The former include extensive interviews with a variety of actors in the TJ field, including judges, prosecutors, relatives and survivors, staff of human rights organisations, public officials, journalists, academics, and other experts.
We have argued that a systematic structured comparison of selected Latin American cases is timely for two reasons. First, it provides new comparative empirical information on how a selection of transitional justice mechanisms can combine over time to provide accountability for grave human rights violations committed during authoritarian rule or internal armed conflict. Second, this empirical analysis can inform our theoretical and conceptual framework for thinking about transitional justice trajectories over time – both in and beyond the Latin American context.
Chapter 2, covering the conceptual and methodological framework, defines the impunity–accountability spectrum and introduces the four specific TJ mechanisms considered in the case studies. The case studies then appear in Chapters 3–11 in the order explained above: Argentina, Uruguay, Brazil, Chile, Paraguay, El Salvador, Guatemala, Peru, and Colombia. The concluding chapter draws overall comparative conclusions on the trajectory of shifts along the impunity–accountability spectrum, including the factors affecting the adoption and contribution to accountability of specific TJ mechanisms.
Notes
*The authors are grateful to Catalina Vallejo for valuable research assistance in preparing the section on the inter-American system. We also thank Juan Ochoa, Clara Sandoval, Catalina Smulovitz, Eric Wiebelhaus-Brahm, and three anonymous readers for constructive comments on earlier drafts.
1Operación Cóndor refers to a semi-clandestine network of coordination for repression that operated between the armed forces of Argentina, Chile, and Uruguay in 1973–74, formalised in 1975. Military intelligence agencies in these three countries plus Bolivia, Brazil, and Paraguay collaborated to hunt down, execute, or forcibly ‘disappear’ purported subversives, conducting joint operations and rendition across national borders. Peru and Ecuador also became peripherally involved. See McSherry (2005).
2In Latin America, Guatemala’s 1993 amnesty law was the first to explicitly respect the international prohibition of amnesty for crimes against humanity. Subsequent transitions in Paraguay and Peru abandoned amnesty laws altogether. On the gradual decline of attempts to enshrine impunity in domestic Latin American legislation since the 1990s, see Collins (2012).
3We use the term ‘transition’ here, and throughout, in its widest sense to denote the process of a society moving from one set or type of formal political arrangements to another.
4State responsibility is foregrounded here, as it is in the relevant international instruments, by virtue of the state’s direct responsibility for its own actions and omissions and its related duties to prevent and protect with regard to the actions of non-state actors. In general terms, of course, transitional justice, like human rights thinking and practice in general, is extremely deficient in its current treatment of the state/non-state actor divide.
5See, among others, Posner and Vermeule (2004), de Greiff and Duthie (2009), Waldorf (2012), O’Rourke (2013), Sharp (2014), and García-Godos (2013).
6We adopt here Hayner’s classic definition of truth commissions as ‘bodies set up to investigate a past history of violations of human rights in a particular country – which can include violations by the military or other government forces or by armed opposition forces’ (1994, 598).
7Scholarship on democracy and the role of courts addresses, variously, ‘horizontal’ and ‘vertical’ accountability (O’Donnell 1999) and ‘social’ accountability (Peruzzotti and Smulovitz 2006), and identifies courts as a key agent of each type (Gloppen, Gargarella, and Skaar 2004). In essence, accountability operates when certain institutions, agencies, or collectivities successfully hold responsible other institutions, agencies, or individuals when they break established rules or overstep constitutionally or otherwise mandated powers. Institutions with an explicit horizontal accountability mandate are entrusted with overseeing, from an equivalent position in the hierarchy, the actions of parts of the state. Such institutions may include human rights commissions, ombudspersons, electoral tribunals and commissions, national audit institutions, and anti-corruption bodies (Gloppen et al. 2010, 2). Vertical accountability is exercised by the state towards society through the criminal justice system, and by society towards the state through elections. The distinctive contribution of the notion of social accountability is to consider the multiple additional ways in which citizens’ groups and a free media can demand transparency and probity from state institutions independently of electoral cycles.
8The change in Guatemala was later reversed when centre-left President Álvaro Colom, elected in 2007, was replaced in 2011 by a right-wing former general, Otto Pérez Molina.
9The ad hoc tribunals are the International Criminal Tribunal for the former Yugoslavia, established in 1993, and the International Criminal Tribunal for Rwanda, established in 1994. Hybrid tribunals have included those for Cambodia, Sierra Leone, and Lebanon.
10Africa has the African Court on Human and Peoples’ Rights (2006) and the African Commission on Human and Peoples’ Rights. Europe has the European Court on Human Rights, but the corresponding commission was abolished in 1998. Asia has had a commission since 1986, but no equivalent court.
11Recent criticism of the system by some countries has led to threats of withdrawal, but only Venezuela has withdrawn from the Convention as of mid-2015. Withdrawal does not, however, automatically remove a state from the purview of the Inter-American Commission, given its dual status as a Treaty-based and Charter-based body.
12Rules of Procedure of the Inter-American Commission on Human Rights, Art 25.
13On the duty to punish rather than only to investigate and prosecute, however, see the recent El Mozote v El Salvador ruling (2012), in which the Court seems to soften its previously strong assertion.
14Based on Arts 8 and 25 of the American Convention; see Cassel (2007).
15On Peru, see Sandoval (2008). Regarding the now widespread positive citation of this and other inter-American jurisprudence on international crimes, see work by the Due Process of Law Foundation (DPLF 2010, 2013, 2015).
16While there is no formal amnesty in place, the Justice and Peace Law offers conditional amnesties. Some observers also consider capped maximum sentencing for grave crimes to be an attempt at a norm-compliant version of amnesty principles.
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