Why and how have some countries in Latin America shifted over the last two decades from widespread impunity for past human rights violations towards the implementation of various forms of specific accountability measures?
This chapter lays out the analytical and methodological framework applied to the nine Latin American case studies in this volume. The framework provides a tool for (a) documenting the shift from impunity towards accountability in each country and (b) assessing the relative achievements in accountability across countries. Although the framework is applied here to Latin America, it could be adapted and extended to transitional justice (TJ) processes elsewhere in the world. The empirical focus of our case studies is on four transitional justice mechanisms (TJMs): truth-telling (particularly truth commissions), trials, amnesties, and reparations. We pay close attention to the specific contexts in which transitional justice plays out, discussing a range of institutional and non-institutional factors, including both actors and structures that may affect the establishment and implementation of TJMs.
The framework should be understood as exploratory rather than fully explanatory. The book is not intended as a testing ground for hypotheses about causality. Instead, we opt for thick description, letting the rich, comparative empirical studies speak for themselves. It may be best to think of the framework as a matrix that can be overlaid on particular country experiences in order to illuminate common patterns and allow differences to emerge. Thus, we seek to discern patterns in the data rather than to advance specific hypotheses for testing. By comparing and contrasting findings from the nine case studies, we arrive at conclusions that are presented in the last chapter of the book.
This chapter starts with an overview of recent scholarship on the impact of transitional justice, after which we explain why we have chosen to organise our analysis around the concept of accountability. We then define and discuss the four TJMs selected for this study. We propose that impunity and accountability can usefully be understood as ideal types, at two ends of a continuum, and we present a scheme for assessing the contribution of particular TJMs to accountability or impunity based on their combination, timing and sequencing, and quality.
Transitional justice and impact assessment: a critical review
When the notion of transitional justice was first developed in the 1980s, it focused mainly on questions of criminal accountability. The academic TJ literature has grown enormously over the last two decades, and its scope and scholarly concerns have expanded. Much of the early TJ literature dealt with state-level decisions about truth commissions, criminal prosecutions, perpetrator amnesty, or lustration, and with potential tensions between institutional reform and transitional stability (Barahona de Brito, González-Enríquez, and Aguilar 2001; Hayner 2001; Kritz 1995; Minow 1998; Roht-Arriaza 1995; Rotberg and Thompson 2000; Teitel 2000). Scholars later widened their focus to take the issue of reparations more seriously (de Greiff 2006b; De Feyter et al. 2005; Du Plessis and Pete 2007; Rubio-Marín 2006; Torpey 2006). They also sought to take better account of the pivotal role long exercised by civil society actors in international, national, and subnational (informal, local) spaces (Stover and Weinstein 2004; Fletcher and Weinstein 2002; Huyse and Salter 2008; Shaw, Waldorf, and Hazan 2010; Waldorf 2006).
In the 1990s, the scholarly debate also shifted to include questioning of early heuristic definitions of key concepts such as ‘truth’ and ‘justice’ and to examine more carefully the mix of short-term and medium-term aims and claims assigned to particular mechanisms. More recently, concerns have turned towards impact measurement (Duggan 2010; van der Merwe, Baxter, and Chapman 2009) and the relationships, if any, between TJMs and rule of law, conflict transformation, and democratisation (Skaar, Gianella Malca, and Eide 2015). There has been a proliferation of large-n studies investigating the relationship between transitional justice and peace and democracy, but these studies have come to mixed conclusions, as we will see below.
Drawing heavily on early Latin American experiences, but also on those from Eastern Europe, the early TJ literature tended to regard formal state-level initiatives such as truth commissions, prosecutions, reparations, and amnesties as important contributors to democratisation and (later) to peacebuilding. It was claimed, for example, that TJ measures undertaken by new authorities could help create a break with the past, establish the rule of law and respect for human rights, deter further violence, encourage democratisation, and promote peace, justice, and reconciliation (Bassiouni 2002; de Greiff 2006b; Hayner 2001; Roht-Arriaza and Mariezcurrena 2006). Yet the empirical evidence to support such ambitious claims is contested and inconclusive (Hazan 2006). Although international development cooperation initiatives increasingly include transitional justice issues in their governance and rule of law packages, broadly encouraged by the United Nations (2004, 2010) and by international donors, there is a need to substantiate or revise claims concerning the positive contributions of these mechanisms to long-term peace and democratic governance.
The need for such an assessment is particularly apparent now that conflict or post-conflict contexts are replacing post-authoritarian contexts as the most common settings for TJ application. In a post-conflict situation, the ongoing ‘truth versus justice’ debate (Rotberg and Thompson 2000; Sriram 2004) often poses these two desired outcomes as contradictory alternatives, although some claim this debate has been superseded (Bissett 2012).
An assumption that is still unduly prevalent in the TJ literature – although questions have been raised recently (Mutua 2015) – is that more TJ is better TJ, and that, by extension, more TJMs should produce more or better democracy or peace. However, empirical evidence is, at best, inconclusive. Since these assumptions can be explored but not strictly tested in single-case studies, we refer here to a few large-n studies. Analysing 187 post-conflict cases between 1946 and 2003, Lie, Binningsbø, and Gates (2007) found that transitional justice had only a weak impact on the duration of peace. They found war crimes trials to be associated with longer periods of peace, but only in states they classify as non-democracies. For democratic countries, the effect of trials on peace was found to be negligible. Sikkink and Walling (2007), in an analysis of all Latin American countries for the period 1979–2004, argue that trials for past human rights violations neither undermined formal democracy nor led to detectable exacerbation of ongoing human rights violations or conflict. Expanding the universe of cases to include 100 transitional countries around the world for the period 1980–2004, Kim and Sikkink (2010) found transitional countries with human rights prosecutions to be less repressive in the present day than countries without such prosecutions. Contrary to the findings of Snyder and Vinjamuri (2003), they found that prosecutions carried out during active conflict did not have a lesser impact on subsequent violations when compared to those carried out in peacetime, and might, in fact, have had a greater one. They also found that the holding of a formal (state) truth commission was positively correlated with improved human rights protection.
Olsen, Payne, and Reiter (2010), covering 161 countries over almost 40 years (1970–2007), investigated interaction effects and found that single TJ mechanisms when deployed alone did not have statistically significant positive effects on democracy and human rights. Rather, only certain combinations – trials plus amnesties, or trials, amnesties, and truth commissions together – were associated with improvements in indicators of democracy and human rights compliance. Notably, they found support for a positive effect from the combined adoption of two TJ mechanisms, trials and amnesties, which were previously often considered incompatible.1 They also found truth commissions deployed in isolation to have a negative rather than the expected positive impact on democracy and human rights indicators.
Such diversity of findings suggests the usefulness of a bounded set of country studies offering a range of combinations and sequencing. However, a number of existing cross-country analyses focusing on a small number of countries (and, often, on a single TJ mechanism) come to equally disparate conclusions regarding whether or not TJ ‘works’ in relation to some external horizon or dependent variable (Brahm 2007; Wiebelhaus-Brahm 2010). Most existing impact assessment studies fall into this category. Many single-case studies either do not set out to produce generalisable findings or fail to present plausible cases for generalising their findings. Larger-scale statistical analyses, for their part, may suggest, but do not provide sufficient detail to identify, the intermediate causal mechanisms that might explain observed correlations. There is thus a strong case to be made for an intermediate approach with a small number of countries and greater attention to nuance and detail, attempting to play upon the strengths of the two contrasting research strategies.
In this volume we step back from the broad meta-goals of transitional justice and concentrate on its mid-level or endogenous objectives, tracing the observable empirical dynamics that connect specific TJMs to the truth, justice, and reparation goals that they were overtly designed to pursue – goals that we jointly denominate as ‘accountability’. This apparently limited scope is appropriate and productive, given how little is known about the inner workings of TJ processes and their interactions in particular national trajectories (Hazan 2006; Mendeloff 2004; Thoms, Ron, and Paris 2008). In particular, although few countries have employed only a single transitional justice mechanism in isolation, the existing literature rarely considers interaction effects explicitly. Another key issue, often flagged but rarely explored fully in the literature, is precisely how, rather than simply whether, timing and sequencing in the adoption of TJMs affects medium- and long-term outcomes. The application of a single qualitative framework, using shared key indicators, to a group of related cases, promises to help fill these gaps in the research literature.
We, therefore, opted in this project to study four specific TJMs, in a delimited but substantial number of cases (nine countries), with a certain degree of qualitative depth. This method allows for more nuanced conclusions and a fuller exploration of causal connections than is possible in large-n studies, although the generalisability of the conclusions is correspondingly more modest.
Transitional justice has been promoted as being necessary to bring closure to past violations and facilitate long-term, forward-looking processes such as national reconciliation, democratisation, and peacebuilding. As noted, there is an ever-expanding toolbox of transitional justice mechanisms, formal as well as informal. Given the empirical focus of this volume on Latin America, we concentrate on four of the region’s most commonly employed formal TJMs: truth-telling (especially truth commissions), trials, amnesties, and reparations. Since each term covers a category or group of measures rather than denoting a singular, clearly defined mechanism, we explore some of the definitional complexities below.
Truth-telling, including truth commissions
Periods of violence or authoritarianism are often characterised by active deception, denial, concealment, or lack of openness regarding violations committed and actors involved. Accurate factual knowledge about political violence or repression is frequently scarce. Individuals and groups often have conflicting perceptions of what the violence consisted of, why it happened, and who is or was responsible. Some kind of formal accounting for the past in terms of truth-seeking, truth recovery, or truth-telling is often held to be an essential component of a successful transition, democratisation, or peacebuilding process. Truth is variously assumed to encourage social healing and reconciliation; restore the dignity of victims by rectifying previous official denial or silence; promote – or sometimes replace – justice; allow for the establishment of an official historical record; serve public education; aid institutional reform; promote democracy; and pre-empt or deter future atrocities (Mendeloff 2004). Measures to recover or acknowledge truth should, it is often believed, not only establish facts but also address presumed causes of violence and suggest non-violent ways of dealing with social conflict in the future. But in reality, perceptions about the need for truth and how best to achieve it vary widely, both within a society and between countries.
In this volume we focus principally on truth commissions (TCs) and other (mainly state-level) truth recovery activities, in line with Priscilla Hayner’s classic definition of TCs 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, 558). This, unlike many subsequent definitions, potentially encompasses commissions set up by civil society actors, something particularly significant in Latin America, where commissions linked to or sponsored by the Catholic Church have often rivalled state-level initiatives in reach, depth, and reliability.2 Whether state-sponsored or not, a truth commission’s contribution to accountability is affected by who sets it up, who serves on the commission, and who endorses, disputes, or disseminates its findings. Even official commissions vary widely in type, scope, and perceived legitimacy, as will be evident in our country chapters. The follow-up and implementation of recommendations, whether these are intended to be binding or merely advisory, is also particularly important when considering the contribution of commissions to accountability. The focus in this volume on state-sponsored versions of such initiatives is a heuristic one, and does not blind us to the importance or consequences of non-state actions where these have a demonstrable effect on public demand and/or state policy.
Historically, as well as in the existing transitional justice scholarship, the core understanding of accountability has referred to criminal accountability for human rights violations or atrocity crimes committed by state agents or other actors. Indeed, TJ theorist and jurist Ruti Teitel commented a decade and a half ago that ‘punishment dominates our understandings of transitional justice’ as it is ‘emblematic of accountability and the rule of law’ (Teitel 2000, 27). Although the TJ field has diversified since then, action by the formal criminal or civil justice system against individual perpetrators is still widely held to be essential for establishing or re-establishing the rule of law. Some also argue the need for action against institutional and/or corporate perpetrators believed to have actively colluded with or knowingly benefited from gross abuses of human rights.
Justice in the form of prosecution for past violations of human rights or international humanitarian law has been considered instrumental in avoiding cycles of extrajudicial or vigilante justice, establishing future respect for human rights, and deterring future abuse (Nino 1996). Retributive criminal justice, which includes appropriate punishment, may, it is claimed, pre-empt and deter future atrocities by making individual (and, by implication, institutional) responsibilities explicit. Civil claims, whose use has grown in Latin America in recent times, may similarly spur perpetrators and/or institutions, including the state, to change their behaviour in order to limit future liability. Trials for past atrocity crimes may also support democratisation by demonstrating that the law applies equally to everyone, including the formerly powerful, and by fostering respect for the courts and other justice system institutions, which are an essential part of democratic governance. While these claims are usually based on a universal legal concept of justice, they do not necessarily address issues of historical or structural injustice, which may significantly expand the range of possible claims in particular settings.3 Finally, prosecutions can also contribute to truth-finding.4
In this book, we distinguish between accountability of individuals and accountability of the state. Individual accountability may be achieved through fair trials in domestic, third-country, or international courts. Some level of proportionality of remedy, in the form of penalties reflecting the gravity of the offence where perpetrators are found guilty, is also essential, in our view, if such processes are to be considered fully contributory to accountability. Such an expansive interpretation of the duty of remedy is largely restricted to the Americas and is still considered controversial, even within the region.
State-level accountability, for the actions and omissions of past and present authorities, is also available in the Americas through the inter-American human rights system. As noted in Chapter 1, the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights can officially declare a state to be in contravention of its obligations under the American Convention on Human Rights or other applicable regional instruments, and can require remedial action in truth-telling, justice, attenuation of amnesty, or provision of reparations. As a result, the regional system also contributes to enhanced accountability at the country level. Increasingly, the Court also emphasises that state duties to prosecute are not fully satisfied by the mere toleration of private suits. This is significant in a region whose civil code-based systems generally allow space for victims to initiate criminal investigations. Recent waves of case-bringing in Latin America may, therefore, represent significant accountability advances without necessarily signalling the active compliance of states with their justice obligations.
In this volume, we focus on the evolution of domestic-level trials, which are proliferating throughout Latin America and indeed constitute a growing proportion of trials for atrocity crimes globally. No ad hoc or mixed tribunals have yet been held or mooted in the region, and the International Criminal Court has jurisdiction only over crimes occurring after 2002. This means that for most of Latin America, justice for past crimes will happen domestically and regionally or not at all.5
In the peace-versus-justice debate, a central argument has been that pursuing prosecutions during an active conflict can delay or otherwise interfere with the negotiation of peace (Kim and Sikkink 2010; Snyder and Vinjamuri 2003). This perceived dilemma has brought another mechanism to the forefront: amnesty, which guarantees participants immunity from ex post facto criminal prosecution and/or civil liability for past crimes. We use Louise Mallinder’s (2008) definition of amnesties as laws or executive policies designed to remove criminal and/or civil sanctions from specified categories of offenders or offences. According to this definition, amnesties can be enshrined in law (de jure amnesties) or can take the form of informal agreements (de facto amnesties). Amnesties can include all or some crimes, all perpetrators (blanket amnesties), or only some perpetrators (partial amnesties).6
Prosecutions and amnesty are treated in some early literature as binary opposites and mutually exclusive options: in this framing, amnesty is considered largely synonymous with impunity. Here, however, we deal with prosecutions and amnesty as separate but increasingly coexistent realities. This partly reflects the gradual shift of Latin American TJ from post-authoritarian to conflict resolution modes. However, it also recognises the fact that as post-authoritarian societies have revisited initial TJ settlements, amnesty has often been attenuated or even overturned, at least for core atrocity crimes. Thus, separate treatment better reflects the initial conflict transformation and transitional catalyst role that amnesty laws, properly understood, can, and arguably have, played. It is consistent with another striking reality in the evolution of TJ worldwide, namely that recent growth in prosecutions has not impeded a concurrent rise in the deployment of new amnesties. While counterintuitive, this is explained by an increasing tendency to enact amnesty laws that do not provide blanket impunity, but instead grant conditional and partial amnesties that are compatible with the prosecution of core crimes (Mallinder and McEvoy 2011).
Where early conditions make trials or the threat of future trials politically difficult or potentially destabilising, amnesty has been seen as a possible solution. The combination of truth recovery with some form of amnesty became almost routine in the early Latin American experiences. Transitional settlements that followed this initial recipe are among those facing the most sustained pressure in recent years, suggesting that the gap between factual acknowledgement and formal accountability is closing. Blanket amnesties in particular – those that take little or no account of the type or severity of the crime, ‘amnestying’ entire episodes or periods of history – were clearly not compatible with the emergence of an internationally recognised right to truth and with the long-standing right of access to justice, to which relatives, survivors, and arguably, societies as a whole are entitled. The Inter-American Court has repeatedly declared blanket amnesties to be incompatible with international obligations, and the early Southern Cone examples come in for particular criticism (Thoms, Ron, and Paris 2008). By contrast, Central American amnesties were applied to both guerrillas and authoritarian regimes, albeit unequally, and were undeniably key to ending long-running civil conflicts.
Latin America offers a unique opportunity to construct more sophisticated comparative analyses of amnesty that include a longitudinal element rather than focusing only on initial transitional settlements. Early amnesty laws in the region, in Argentina, Brazil, Chile, El Salvador, and Uruguay, were particularly broad and are today under serious challenge. Later amnesties, for example in Guatemala, tended to be more nuanced, respecting internationally mandated exclusions of atrocity crimes (war crimes, crimes against humanity, and genocide). The most recent transitions, in Peru and Paraguay, dispensed with de jure amnesties altogether. Colombia, still in the midst of an armed conflict, has used partial and conditional amnesties as an incentive to the demobilisation of paramilitary and guerrilla groups (García-Godos and Lid 2010). Our study, therefore, explores conditions under which amnesty has and has not persisted and the factors affecting its social and political legitimacy. The country chapters go into more depth on these issues, making distinctions between self-amnesties, blanket amnesties, and conditional amnesties.
Reparations to those who suffer wrongs are part of any domestic justice system. In a tort model, reparation in the form of restitution or awards for damages can result from findings of civil liability suits; it can also be part of criminal sentencing, where a party found guilty is required to compensate the victim. In a TJ context, reparations can take administrative or judicial forms and are increasingly considered part of the responsibilities of states in an emerging rights-based framing of transitional justice.7 Even where non-state perpetrators are the origin of the specific harm, state responsibilities are invoked via the ‘failure to prevent’.8
The provision of reparations, to victims, survivors, their relatives, and sometimes others, is generally held to have a positive impact on truth (through acknowledgement), justice, and/or reconciliation (Laplante 2014). Also noted, however, is the potentially counterproductive impact of selective reparations in setting individuals or communities at odds with one another. Moreover, the provision of reparations to former perpetrators who are also victims has caused controversy in recent years.
Forms of reparation vary widely but fall into two broad categories: material reparations and symbolic reparations. Material reparations can include cash transfers, pension or tax credits, and health or welfare services designed to ameliorate or reverse specific harm. Here the empirical challenge is often to distinguish reparations from health care or other public spending that is, or ought to be, part of the delivery of basic socio-economic entitlements to victims and non-victims alike. Symbolic reparations, such as official memorials and state museums, can restore the good name and social standing of victims and emphasise the current repudiation of past abuse.
The underlying assumption of reparations policy is that physical, psychological, and social harm must be both acknowledged and addressed. A wide range of both ameliorative and compensatory measures have accordingly been attempted (García-Godos 2008; de Greiff 2006a). Restoration of the status quo ante, a common standard in civil tort law, is hardly feasible in contexts of massive human rights violations. We might also question whether the tort model obfuscates questions of state or institutional responsibility by constructing reparations as a private payment from a guilty to an injured party (Gray 2010). Most states in our study have implemented administrative reparations programmes, for which international standards increasingly require active participation of survivors and relatives in the reparations process. Justice efforts increasingly produce Inter-American Commission settlements or Inter-American Court rulings awarding economic and symbolic reparations. Latin America has recently seen a wave of memorialisation activities framed as symbolic reparation, many of them privately sponsored initiatives. Concerning symbolic reparations, this book focuses on officially initiated and/or officially funded initiatives only: thus, a state-sponsored memorial to victims might count as reparations, whereas a plaque placed by private subscription or grieving relatives would not.
Accountability and impunity as ideal types
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. 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. We define impunity as the absence or active negation of accountability in any or all of the aspects mentioned in this definition. In general terms, TJMs as public policy decisions are adopted, combined, and set in motion at the time of a transition or peace agreement to either promote or avoid explicit assignment of responsibility for acknowledged wrongdoing to some or all perpetrators of past atrocities. In cases where mechanisms, including amnesty, are initially selected precisely to avoid this kind of public accounting, we can speak of impunity.9 By contrast, where the state adopts TJMs to allocate responsibility and, in some cases, add specific justice, reparations, and truth-telling activities, we can properly speak of accountability.
In this book, we consider impunity and accountability to occur along a continuum. At one end of this spectrum, full accountability suggests the most complete imaginable level of official and social repudiation of past abuses. This would probably imply comprehensive and not significantly contested truth-telling; a holistic reparations package for direct and indirect victims, and at least the possibility of specific attribution of responsibility to individual and/or institutional perpetrators through prosecutions, accompanied by proportionate penalties. At the opposite end of the spectrum, a situation of complete impunity might include official silence about, denial or justification of past atrocities; non-existent, incomplete, or significantly contested official truth-telling; and application of de jure or de facto blanket amnesties for perpetrators. In between, we find situations of more or less impunity and accountability, reflecting variations in the number, scope, and quality of TJMs that have been implemented. Table 2.1 summarises the characteristics of accountability and impunity as ideal types in relation to each TJM.
| TJM | Impunity  |
Accountability |
| Truth-telling, particularly truth commissions | Official truth-telling mechanisms are absent, and offences are explicitly divorced from consequences, e.g. by secrecy laws or bans on naming of perpetrators. Atrocities are denied, forgotten, or incorrectly attributed exclusively to non-state actors or to losers in the conflict. State dismisses or discredits civil society sources and archives. Strong discipline, hierarchy, and loyalty within perpetrator ranks prevents confessions. |
Comprehensive or incremental official truth-telling mechanisms are established with a mandate to allocate responsibilities and/or recommend reforms. Access to information is provided through laws and/or opening of official archives. Active investigative journalism or other forms of investigation progressively reveal details about atrocities. Significant anniversaries attract public attention and media coverage. Regional developments include extradition requests or document discovery in neighbouring countries. |
| Justice, including trials and other judicial processes |
No individual or institutional criminal responsibility or civil liability for atrocities is assigned or accepted. |
Victims and survivors are free to bring criminal or civil claims; state fulfils duty to prosecute. |
| Amnesties |
De facto or de jure blanket amnesty is granted to some or all perpetrators of politically motivated crimes, disregarding internationally mandated exclusions of atrocity crimes (war crimes, crimes against humanity, and genocide). |
Domestic amnesty is absent or limited (compliant with international law). |
| Reparations |
There are no reparations measures and no acknowledgement of victims. |
Specific, comprehensive forms of symbolic and material reparations are offered to victims, survivors, their families, and sometimes others. Access to reparations does not exclude the possibility of pursuing criminal or civil liability. Public apologies are made. |
The impunity–accountability spectrum can be applied to each TJM separately, empirically locating countries along the range according to the extent to which they have or have not deployed each measure. Preferably, in our view, the spectrum can be used to locate countries relative to one another according to an aggregate assessment of the combined effect of various TJMs. The ideal types of impunity and accountability are thus, in one important sense, descriptive rather than explanatory. It is also important to note that a country’s movement along the impunity–accountability continuum cannot be explained solely as a result of TJMs. The adoption, presence, absence, and extent of TJMs can be both contributors to and indicators of these shifts. Explanations for particular changes or configurations are to be found not in the concepts of impunity or accountability themselves – since this would lead to a circular logic – but in the structural forces and the institutional and individual actors responsible for the decisions and outcomes that situate a society on the spectrum. Accordingly, we go on to identify a number of variables that, taken together, indicate the predominance of impunity or accountability in a specific place.
There are a number of contextual factors, in addition to the TJMs discussed in this volume, which may have a direct or indirect impact on accountability. We group these factors into four main categories: power holders or state institutions; government policies and prevailing norms; legal-institutional factors; and other factors (see Appendix 1). We suggest how each set of factors can be identified or observed on the ground, thereby creating indicators of impunity and accountability as ideal types. We do not, of course, expect any society to be a perfect fit with either ideal type.
Some power constellations are more conducive than others to accountability. Continuation in office of the same set of political power holders and/or the high command of the security forces, power-sharing between former warring parties, and continuity in public administration are likely to impede accountability. Conversely, political alternation, lustration, and the vetting or replacement of officials involved in repression is likely to contribute to accountability (see Appendix 1, Table A.1). Accountability is also strongly influenced by how the transitional or subsequent government perceives the need for dealing with past atrocities, by the government discourse (if any) on human rights, and by the ideological distance between the government and former perpetrators. The international environment, both normatively and through institutions, including financial and economic, may also influence TJ policy and policy discourse (see Appendix 1, Table A.2).
Legal-institutional frameworks may be more or less conducive to accountability according to whether there is constitutional reform; whether and how rights are framed and guaranteed in new constitutions; the strength, independence, and resource base of the justice system (directly affecting how the criminal justice dimension of accountability is implemented); and whether or not permanent structures to oversee and promote human rights are created (see Appendix 1, Table A.3).
A host of other factors may contribute to accountability or preserve impunity. At the time of transition, demands by civil society for more or less accountability can be crucial in determining the place of TJ on the agenda of politicians and perhaps also of the courts. These demands are linked to the type and scope of violations that have taken place and to the profiles of perpetrators, victims, and survivors. The residual strength of military networks and economic elites may weigh heavily, but there may also be some level of public sympathy for former authoritarian power holders (or for former combatants). Regional and global civil society networks may have influence, and unforeseen events may irrupt dramatically into domestic TJ processes: the arrest of Pinochet in London and that of Fujimori in Chile are two well-known examples (see the country chapters on Chile and Peru and Appendix 1, Table A.4).
In sum, this flexible understanding of impunity and accountability as a continuum allows us to consider a variety of measures as indicative (or not) of impunity or accountability. Post-conflict or transitional societies are located along this spectrum according to the configuration, at any given moment, of measures, actions, and attitudes regarding past violence and atrocity. The location of a society on the spectrum is, therefore, dynamic and changing. Change may come gradually with the passage of time, but specific events may also propel a society towards either end of the spectrum. Although we contend that most of the Latin American societies studied here have moved, in recent years, towards the accountability pole, this direction of change is not inevitable. Changes are reversible and complex. That is, there may be movement towards accountability at the aggregate level, taking into account all dimensions, but this may include stagnation or counter-change along one or more of the four dimensions – truth-telling, justice, amnesties, and reparations. Changes in the trajectory of specific TJMs may be both indicators of the current situation and causes of further changes along one or more dimensions. Only a textured, in-depth exploration of each country case can illuminate the specific drivers of change for each setting. In this sense, the specific independent variables driving change in TJ settings emerge from field data rather than being pre-defined.
Empirically, most countries in our study are located closer to the midpoint than to either end point of the spectrum. This leaves the question of what methodology we can use to deal with this complexity without simplifying the picture to the point of distortion. How can we identify, measure, weigh, or assess signs of impunity and accountability in real-life settings? The next section lays out our approach to this quandary.
The impunity–accountability spectrum: a qualitative approach for assessing accountability
This book assesses the place of TJMs in a process of societal movement between the primacy of impunity and the prevalence of accountability for past atrocity. We look at various stages of the transitional justice process: the establishment of TJMs, their implementation, and their estimated impact on accountability. For each of these stages we carry out a detailed empirical analysis, paying close attention to the actors who drive or oppose the TJ processes; the official policies, norms, and discourses that frame TJ policies; and the legal-institutional framework in which the TJ process takes place. Appendix 1 presents a summary of how each of these sets of factors can contribute to either impunity or accountability.
The time frame for the empirical studies extends from the time of transition (i.e. the first free and fair democratic elections held after a period of military rule or the signing of a lasting peace agreement after the end of civil war or armed conflict) to the end of 2014, which marks the end of data collection. We also take into account the period immediately preceding the transition to gauge the level of violence committed and the balance of power between central actors such as political parties, the military, and paramilitary groups, which create the context for TJ action (see Appendix 1, Table A.1). In other words, we are looking at long, complex historical trajectories.
While the principal focus of analysis is the four TJMs identified above, we know that accountability is more than the sum of these mechanisms. Our chapter authors analyse each TJM separately, discussing the empirical trajectory of its implementation as well as the related debates, facilitating factors, and obstacles. The order in which the TJMs are presented follows the chronology of TJ implementation in each country and thus varies somewhat from chapter to chapter. One chapter, on Colombia, treats trials and amnesties together since they are intrinsically linked. Each chapter includes both an assessment of each TJM’s contribution to accountability (or to impunity) and an overall evaluation of their joint contribution. Some contextual variables may strongly affect the final evaluation of the current status of accountability in each country.
Our study starts with the premise that each of the four TJMs matters for accountability – positively or negatively. Our second premise is that it is necessary to investigate how the TJMs, singly and in combination, affect accountability. In particular, we explore the assumptions made in recent TJ literature that the combination, timing and sequencing, and quality of TJMs all have consequences for their impact on accountability. In order to investigate these effects and consequences, we need to find some way to assess the impact of TJMs on accountability (a) across time within each country, and (b) between countries. We propose to do this in a stepwise fashion.
Basic premise: the presence of TJMs in a country matters for accountability
We presume that states that have established TJMs have made at least some conscientious effort to address violations of the past. Other things being equal, we therefore expect these countries to achieve more in terms of accountability than countries that have not established TJMs, except in cases where the only measure adopted is amnesty (as discussed below). The first step in our analysis is thus to record the presence or absence of each of the four TJMs. Each country chapter documents this through an historical analysis, using the definitions of TJMs provided earlier in this chapter. The findings are recorded in Table 2.2, where x indicates the presence of a given TJM in the period from the time of transition through the end of 2014.
| TJM | Argentina | Brazil | Chile | Paraguay | Uruguay | Peru | Guatemala | El Salvador | Colombia |
| Truth-telling | x | x | x | x | x | x | x | x | x |
| Trials | x | x | x | x | x | x | x | ||
| Amnesties | x | x | x | x | x | x | x | x | |
| Reparations | x | x | x | x | x | x | x | x | x |
Note: An x indicates that the measure was in use for some, though not necessarily all, of the period since transition.
As the table shows, all nine of the countries have employed at least three of the four TJMs. Measured solely in terms of the number of TJMs present, then, there is little variation among the countries. This is where a limited statistical analysis, using binary variables, might stop: by recording the presence/absence of a TJM without any reference to its scope, type, or quality. However, a much more nuanced approach is needed to say anything sensible about the potential links between the four TJMs and accountability levels in different countries. Having similar independent variables (truth-telling, trials, amnesties, reparations) and different outcomes for the dependent variable (location on the impunity–accountability spectrum) allows us to dig deeper into the features of each TJM – its qualities, the motivations driving it, the actors who push for or obstruct it, etc. – and see how this affects accountability.
Hypotheses: the combination, timing and sequencing, and quality of TJMs matter for accountability
In our empirical analysis, we investigate three hypotheses that come out of recent scholarship on transitional justice but remain underexamined:
H1: The combination of TJMs matters for accountability.
H2: The timing and sequencing of TJMs matters for accountability.
H3: The quality of TJMs matters for accountability.
H1: the combination of TJMs matters for accountability
Our first hypothesis is that the state’s commitment to TJ processes (and indeed, to accountability) is reflected not only in the number of TJMs but also in the way they are combined. Some combinations are arguably more potent than others in achieving positive effects. For instance, Olsen, Payne, and Reiter (2010) find that, statistically speaking, amnesty in combination with trials is associated with improvements in indicators of democracy and respect for human rights (implying a positive impact on accountability levels), whereas truth commissions in isolation are reported to have no effect on these indicators (implying no impact on accountability levels). They also find that no TJM in isolation has a measurable impact on democracy. Apart from the Olsen et al. study, however, we are not aware of any scholarship that has systematically examined all possible combinations of the four TJMs that we investigate in this volume. Attempting more depth and detail than statistical studies can offer, albeit over a restricted number of cases, we consider how various combinations of TJMs may or may not contribute to accountability. Our aim, and therefore our findings, on this question differ in evident ways from those of Olsen, Payne, and Reiter (2010) and similar works: although single TJMs may not have measurable impacts on democracy, they clearly affect accountability, either positively or negatively.
Below we consider combinations of the four TJMs: truth commissions (TC, here used as shorthand for all truth-telling activities), trials (T), amnesties (A), and reparations (R). Combining them may, in theory, result in 16 different scenarios: one with nothing (no TJMs); four with only one TJM (A only, TC only, T only, R only); six combinations of two TJMs (A+TC, A+R, A+T, TC+R, TC+T, R+T); four combinations of three TJMs (A+TC+R, A+TC+T, A+R+T, TC+R+T), and one combination featuring all four TJMs (A+T+TC+R).
These possible combinations are presented in Table 2.3, along with their most likely rankings along the impunity–accountability spectrum. For the purpose of determining the rankings, we take it as likely that (a) a combination of TJMs excluding amnesty is more conducive to accountability than one with amnesty; (b) a combination including trials is more conducive than one without trials; and (c) truth commissions are more important for accountability than are reparations. We thus suggest that criminal prosecution of alleged perpetrators through courts is the measure that contributes most strongly to accountability, followed, in order, by the potential contributions of truth commissions and reparations.
This relative valuation is often reflected empirically in the level of domestic contention surrounding the adoption of these TJMs and what this is taken to imply about the recognition of the role and responsibility of the state in particular. Whether or not to prosecute those responsible for violations has invariably been the most contentious issue, politically as well as legally, in Latin American countries undergoing transitions from military rule to democratic rule or from armed conflict to peace. While truth commissions can be controversial and even bitterly disputed, assigning individual guilt to perpetrators of human rights violations has been considered more politically sensitive than documenting patterns of abuse. Movement along the amnesty–prosecution axis may be particularly likely, therefore, to bring a society closer to (full) accountability. Truth commissions have generally been regarded as less of a threat to current or previous authorities, while reparations in general have been seen as the least controversial of the three measures that advance accountability. To express this in a simple manner, we can evaluate the positive contributions of TJMs to accountability in the following order: T>TC>R>A.
As Table 2.3 shows, the worst-case scenario is amnesty only. This would, by definition, effectively preclude trials, with no other measures in place to compensate for the absence of criminal justice by revealing the truth or making compensation to victims. The second-poorest option, nothing at all, is slightly better than amnesty because there is no law in place to specifically hinder trials. Accountability must be achieved by some means other than TJMs. At the other end of the scale, the best-case scenario is the combination of trials, truth commissions, and reparations, with no amnesty laws imposing restrictions on criminal prosecutions. All the other combinations fall in between the two extremes; ranking them requires a judgment call.
H2: the timing and sequencing of TJMs matters for accountability
The effect of a combination of TJMs may depend not only on which measures are included, but also on their timing and sequencing. In the immediate aftermath of a political transition or the end of an armed conflict, violations are fresh in people’s minds. Demands for truth and justice may, therefore, be passionate, at least in some sectors, but may be accompanied by fears as to possible repercussions. State responses are often perceived by all parties as inadequate. Depending on the balance of power between different forces in the society, it may not be politically possible (or even desirable to a significant majority) to address human rights violations at such an early stage (Correa Sutil 1997). The first TJMs that are established in response to strong domestic or international demands are thus likely to evoke high expectations among their proponents, but may have limited chances of success. However, the balance of power between actors may change over time, as will other aspects of the domestic context (Hunter 1998; Skaar 1999). What was initially deemed impossible may eventually (in some cases years later) become possible. It is an open question, of course, whether it also remains, or becomes, desirable.
There is an assumption in recent TJ literature that not only timing but also sequencing of TJMs matters: that is, that the order of occurrence of specific TJMs makes a difference (Olsen, Payne, and Reiter 2010). Since TJMs have multiple, divergent, and even counterproductive goals (Leebaw 2008), the sequence in which they are attempted or implemented may be more or less successful in leading to the impacts that were envisaged or desired by their proponents and supporters. Deliberate sequencing might be intended to enhance positive synergy. For instance, if a truth commission is set up before trials are held, information gathered may be used as evidence in the trials. As Juan Méndez argues, ‘With respect to domestic prosecutions … some reasonable sequencing can be helpful because the state needs time to restore the credibility and legitimacy of its judiciary, and a period of truth-telling can lay the groundwork for later prosecutions’ (2012, xxvii). If a truth commission strongly recommends reparations programmes, this may increase the likelihood that the government will make a commitment to reparations. Some scholars maintain, in a similar vein, that early-stage amnesties can usefully pave the way for later truth and justice.
In terms of evidence on the importance of sequencing, however, there is not much scholarly work to draw on. In a recent article, Dancy and Wiebelhaus-Brahm (2015) test whether combinations such as A+TC would differ from TC+A. They also test whether the establishment of a particular TJM increases the likelihood that this TJM will be attempted or implemented more than once in the same country – so-called ‘path-dependency’. However, based on a qualitative comparative analysis of Latin American countries, the authors find little evidence for path-dependency owing to the chronological order of TJMs. There is thus still a gap in the TJ literature regarding the observable effects of both timing and sequencing. This is a gap that our nine case studies help to fill, inasmuch as each tells an actual story of the unfolding of a set of interrelated TJ measures in one place over time.
H3: the quality of TJMs matters for accountability
The fact that a state implements a TJ mechanism (other than amnesty) signals some degree of commitment to accountability. Yet the significance of this commitment varies, depending, in part, on a range of variables that can be revealed through empirical investigation. They include the intentions driving a particular TJM as well as its design, establishment, and implementation on the ground – a group of factors we refer to collectively as ‘quality’.
To capture some of the nuances concerning the quality of TJMs while avoiding purely subjective evaluations, we asked our chapter authors to address a predefined set of questions when examining specific TJMs in the country cases (see Appendix 2). The answers to these questions were scored numerically when we developed the accountability graphs, principally as a way to facilitate comparison across country cases. A fair amount of subjective judgment is involved in the assignation of scores such as these, especially where authors are asked to give an ‘overall’ score to a dimension that may have proceeded through a series of measures – more than one truth-telling instance, various forms of reparation – or through advances and regressions, such as where amnesty is followed by renewed prosecution or vice versa. The questions and scoring guide allow us to go beyond existing qualitative studies, using common standards to increase the rigour of comparative case analysis without falling into the trap often imposed by more rigid kinds of statistical study, where context cannot be adequately captured due to the need for binary yes/no definition.
The indicators of quality are different for each TJM. For example, a truth commission with trusted commission members, an ample budget, numerous, highly trained personnel, and a broad mandate is likely to have more clout than a commission where the members are perceived as political appointees, the budget is inadequate, the personnel are few and untrained, and the mandate is narrow. Likewise, a truth commission report that is officially launched, supported, and widely disseminated will arguably contribute to higher levels of accountability than a report that is neither made public nor endorsed by the government and not widely disseminated, perhaps not even written in a language accessible to most inhabitants of the country. Moreover, a truth commission that issues a wide range of recommendations that are taken seriously and implemented by the government (for instance, with respect to reparations or legal and institutional reforms) will contribute to more accountability than a truth commission that issues a few recommendations that are largely ignored by the government.
State-sponsored reparations may be directed to individuals or collectivities. Programmes that are both material and symbolic and extensive in scope – in terms of who is eligible for reparations, and for what kinds of crimes – contribute more to accountability than limited reparations programmes that are inaccessible to most survivors and victims’ kin. Another important point is whether the reparations have a symbolic and reparatory value that goes beyond citizens’ existing socio-economic entitlements to, for example, pensions or health care.
To assess the contribution of criminal prosecution for past wrongs, we not only count the number of trials (as may be done in large-n studies) but also consider who is on trial for what crimes, what kinds of verdicts and sentences are handed down, what sentences are actually served, and under what conditions (e.g. in special prisons or under house arrest). Extensive trials against a large number of perpetrators from all ranks of the military or perpetrating institutions, conducted in a free, fair, and efficient manner, represent a greater contribution to accountability than trials of a small number of alleged perpetrators, prosecuted for a very limited number of atrocities, with lenient sentences and very short times actually served.
Finally, trials are closely linked to the presence and status of amnesties. The type, scope, and timing of amnesties are important factors to consider when assessing to what extent amnesties are conducive to impunity. Limited amnesties allow accountability for core atrocity crimes. They can have a politically stabilising effect by facilitating transitions to democracy or the signing of peace accords, which may pave the way for justice later. amnesty laws are, however, generally designed to limit or prevent criminal prosecution for human rights violations. The country chapters pay particular attention to the type of amnesty laws introduced and whether or not they have been seriously challenged or defended by the judiciary, the legislature, or the executive branch at the behest of external or in-country, non-state actors. They also consider whether domestic amnesty laws have been challenged by the Inter-American Commission or the Inter-American Court, and whether the scope for prosecution of perpetrators has broadened as a result.
Documenting and assessing TJM trajectories
The next step, based on the considerations above, is to operationalise the shift or movements from impunity towards accountability in the nine Latin American countries. Examining the establishment and implementation of TJMs over time in each country provides the basis for assessing the shift from impunity towards accountability at the country level, by documenting and evaluating the transitional justice trajectory.
We do this by ranking the contribution to accountability of each of the four TJMs on a scale from 0 to 10, where 0 marks no contribution to accountability and 10 marks maximum contribution to accountability. Using the questions listed in Appendix 2 as a point of departure for each TJM, the chapter authors identify eight to ten events or markers that, in their opinion, signalled particular milestones in either accountability or impunity. Drawing on their detailed knowledge of the country context, supplemented by interview material and data collection, the authors make a qualitative judgment regarding each TJM’s contribution to accountability. Both the extent of the contribution and the direction (pro-accountability or pro-impunity) are considered. The main period examined starts with the year of transition for each country and ends, for the most part, in December 2014, when fieldwork and most desk work for the nine country studies was concluded.10 If any measures that affect accountability (such as amnesty laws) were in place before the transition, the years immediately preceding the transition are also included in the time frame. The chapter authors construct individual graphs for each TJM, showing movement along an impunity–accountability spectrum from a low of 0 to a high of 10. We refer to these graphs as ‘TJM trajectories’.
Scoring the amnesties component requires particular care. We pay particular attention to two aspects: (a) the type of amnesty law, and (b) the seriousness of efforts to overcome the amnesty laws. Amnesties generally aim to preclude or limit criminal accountability, as we have seen. They may also hamper truth-finding by mandating silence on key facts. It is, therefore, essential to distinguish between different types of amnesties. The presence of a de facto or de jure blanket amnesty would yield an accountability score of 0. A limited amnesty law, precluding only certain kinds of prosecutions, for certain kinds of crimes or certain categories of perpetrators, would receive a slightly higher accountability score. An amnesty law that is annulled or revoked, thus allowing, at least in theory, prosecutions to take place, attracts a higher overall accountability score. The annulment of amnesty provisions would earn the highest score, 10, on this dimension. In essence, the amnesty dimension measures the space defining the possibility of criminal trials taking place. Whether trials actually take place or not is captured by the trial’s dimension.
In order to fully evaluate the relative openness of a country to trials for past serious crimes, it is insufficient to assess in a simplistic binary fashion the presence or absence of specific amnesty legislation. An informal de facto amnesty without explicit legal underwriting can be at least as potent as a formal law, yet is less susceptible to overt challenge. Keeping in mind the findings of Mallinder (2012a, 2014) and Olsen, Payne, and Reiter (2010) about the possible coexistence of amnesty with prosecutions, we evaluate not just the presence or absence of amnesty legislation but also (a) its quality, scope, and real-life application where it does exist and (b) actual justice practice (diligence or not, and respect for due process, in pursuing prosecutions) where it does not. Country study authors accordingly consider the text, spirit, date, and proximate cause of domestic amnesties, paying particular attention to whether they exclude internationally recognised human rights crimes from their ambit of application. Only then is it possible to determine whether a particular amnesty law is, on balance, positive, negative, or neutral for an anti-impunity agenda.
All the country chapters conclude with presentation of an overall trajectory from impunity towards accountability over time, based on the authors’ assessment of the combined effect of the four TJMs under study.
This chapter has mapped out the analytical framework to be systematically applied to the nine country studies featured in this volume. Using thick description and qualitative comparative analysis, we study transitional justice in terms of possible shifts from impunity towards accountability, introducing a longitudinal dimension to each country study and to the project as a whole. We strive for a balanced appreciation of TJ as a dynamic and long-term process – a perspective that has often been missing from comparative studies, which have focused primarily on official decisions taken at the initial moment of transition. Latin America, effectively the first region to undergo concentrated TJ experiences in modern times, today offers a unique opportunity to see how these national experiences have evolved and interacted with one another over time in a geographically delimited and culturally/linguistically related area.
Notes
*For valuable input in developing this framework, the authors thank panel participants at the Latin American Studies Association congresses in San Francisco and Chicago, USA, in 2012 and 2014, and at the European Consortium for Political Research conference in Bordeaux, France, in 2013, as well as country case authors at the project workshop held in Santiago, Chile, in November 2012. We are also grateful to Rachel Sieder, Catalina Smulovitz, and Eric Wiebelhaus-Brahm for helpful comments on earlier drafts.
1These findings are compatible with recent work by Louise Mallinder (2012a, 2012b, 2014), suggesting that worldwide, amnesties and prosecution are increasingly coexistent and mutually limiting.
2Examples of truth commissions set up by the Catholic Church or non-governmental organisations include Nunca Mais in Brazil, Nunca Más in Uruguay, and the Recovery of Historical Memory Project (REMHI) in Guatemala (see the country chapters for details). Wiebelhaus-Brahm (2009) offers a more detailed analysis of definitional discrepancies in discussion of truth commissions.
3Recent debates over transformative justice and the socio-economic dimension of TJ are discussed by Winter (2013), Lambourne (2014), de Greiff and Duthie (2009), Sharp (2014), and Gready and Robins (2014).
4Prosecution potentially produces cumulative ‘legal truths’ that may win broader adherence than the essentially administrative truths produced by a one-off commission. Informal truth-telling by survivors, journalists, artists, and even perpetrators and their sympathisers can also have significant impact, but our concern here is principally with the portion of these ‘truths’ that are taken up and validated by the state.
5Third-country prosecutions or civil claims in domestic courts in other regions are also an alternative and were significant in the 1990s. But with respect to this option, Latin America increasingly has become a venue as well as an object of third-country justice, with cases brought in Argentina over Spanish civil war crimes, as detailed in the Argentina country chapter.
6For a comprehensive overview of how amnesties differ from other leniency measures, such as pardons, reduced sentence measures, statutes of limitations, status-based legal immunities, and prosecutorial immunities, see Freeman (2009, 14–15). For another discussion of amnesties in comparative and international perspectives, see Lessa and Payne (2012).
7See UN General Assembly Resolution 60/147, ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’, 21 March 2006.
8In Peru and Colombia, the moral, legal, or financial liabilities of non-state perpetrators are also included.
9In contrast, some appropriately restricted forms of amnesty – excluding core atrocity crimes – could be compatible with our definition of accountability.
10Particularly significant shifts in individual country trajectories during 2015 were sometimes incorporated in the qualitative (narrative) sections of country chapters.
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