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Review on the transitional justice

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After years of brutal state terrorism, who deserved to pay for the people’s suffering? Did anyone? And what consequences would such punishment have for a society that was not only in a delicate period of transition but also historically rather unstable, with no non-military, democratically elected government has completed its term since 1928?[1]

On the other hand, what consequences, both moral and political, would arise from not pursuing such punishment? And even more fundamentally, what was the real truth about the past seven years? What had happened to the disappeared, and who had done this to them? Questions like these are not unique to Argentina. Across the world, nations emerging from repression have developed methods of transitioning from dictatorship to democracy, and of dealing with the memory of massive human rights violations. As the Cold War ended and both right-wing and communist dictatorships toppled, a literature of “transitional justice” emerged in an attempt to draw conclusions about these processes. Originally, this literature seemed to come to a consensus that there were two basic options for societies in transition.

The first was alternately referred to like the choice of “reconciliation,” “peace,” or “truth.” In this situation the wrongdoers would not be punished, usually out of fear that punishment would reopen old wounds, leading to violence and further instability (hence the name “peace”). Instead, the focus would be on forward-looking policies meant to consolidate a pluralistic democracy (“reconciliation”) and on establishing an accurate collective memory about violations (“truth”). The second option usually referred to as “justice,” would involve punishing the fallen dictatorship for its violations. This punishment would be meted out by a judicial body after either a domestic or international trial[MN1]. The most prominent example of the “truth,” “peace,” or “reconciliation” option is that of Nelson Mandela’s South African Truth and Reconciliation Commission, while an example such as the Nuremberg Trials more accurately displays the option of “justice.”[2] This bright-line dichotomy, while useful in some ways, is unable to accurately account for the complexity of many nations’ transitional experiences. Argentina, for example, had both trials and a truth commission, CONADEP (for Comisión Nacional sobre la Desaparición de Personas[MN2] ).

Further complicating the situation, there were amnesties following the trials, but those amnesties were eventually nullified, paving the way for new trials that took place twenty years after the dictatorship fell. The amnesties and the truth commission would seem to fit the “truth” or “peace” option, but the early trials and more recent attempts to punish violations would seem to put Argentina in the “justice” category. The literature on transitional justice has attempted to deal with complexities like these in various ways. One suggestion has been that while we may assign mechanisms like trials to the category of “justice” and those like truth commissions to the category of “truth” or “peace,” most nations use a combination of mechanisms from both categories.[3] Another proposed theory is that instead of two distinct choices, there is a spectrum of options for nations in transition, ranging from those most friendly to those least friendly to fallen dictatorships.[4][MN3] Despite these proposed theories, no consensus has yet been reached on how the field of transitional justice can most effectively account for complexity, and the truth-versus-justice viewpoint is still dominant in many ways.

This essay will contribute to this debate by developing a new framework through which to view Argentina’s transition, and then engaging in an analysis of its various stages through that new lens. Specifically, rather than viewing the options available to Argentina as either a dichotomy or a scale, this essay will present Argentina’s transitional process as an attempt to achieve three interrelated goals: justice, truth, and peace. Furthermore, by examining the ways in which different actors in the transitional process interpreted or perceived these goals, it will attempt to explain how and why such widely varying views of the trials’ success arose. Finally, the essay will incorporate an analysis of the recent resurrection of dirty war trials, an issue with which most scholars have not yet had the opportunity to engage.

Argentina is undergoing significant changes regarding the investigation and prosecution of human rights violations that occurred from 1976 to 1983 when the country was ruled by a military dictatorship and an estimated 10,000 to 30,000 people “disappeared.” This paper outlines transitional justice developments in Argentina and explores the history behind these advances.

Various governments have implemented a range of initiatives pertaining to truth-seeking, prosecutions, and reparations since Argentina’s return to democracy in 1983. Raul Alfonsín, the first democratically elected president after the end of military rule, inherited a weakened democratic infrastructure and a strong military that actively resisted accountability for past crimes, frustrating initial justice efforts. However, some key military leaders were successfully prosecuted in two major landmark trials.

In 1989 and 1990, President Carlos Menem issued two pardons, one for a handful of officers who were still facing trials, and another for those who had already been convicted. This was a blow for victims and their families and foreclosed many options to continue pursuing justice for past crimes. Several cases were opened in the courts in the latter half of the 1990s, and have continued since. An economic crisis that started in the late 1990s and reached its peak in December 2001 drew focus away from but did not halt transitional justice initiatives. Since Nestor Kirchner was elected president in May 2003, he has been addressing issues of justice for the violations committed more than 25 years ago.

There is a movement to end impunity for human rights abuses in Argentina. This is partly because of the support of recent governments, but also a result of years of hard work by Argentine human rights organizations, initiatives of the Argentine judicial system, and the contribution of activists who established a strong base of information and continued to work for justice for victims.

Moreover, the field of transitional justice – or to continue the comprehensive justice during periods of political transition – is interested in the development of a wide variety of strategies to address the legacy of human rights violations in the past, analyzed and applied in practice in order to create a more just and democratic future. In the theoretical and practical side, transitional justice aimed at dealing with the legacy of abuses in a wide and comprehensive manner include criminal justice and fairness to repair the damage, social justice, and economic justice.

In addition, it based on the belief that responsible judicial policy must include measures envisage a dual purpose, which is accountability for past crimes and the prevention of new crimes, taking into account the collective character of some forms of violations. So, transitional Justice as defined by the United Nations is “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation”.

During this period of transition, the society is facing a very important problem which is dealing with the issues of human rights abuses, whether physical or economic rights or even political. Indeed, the transitional justice process focus on five initial approaches to deal with human rights violations occurred during the war. Including firstly, prosecution whether civil or criminal, national or international, domestic or foreign. Secondly, search for truth and fact-finding commissions. Third, reparations either through symbolic or in-kind compensation or rehabilitation. Fourth, institutional reform with the removal of the perpetrators from the public offices. Fifth, memorials and the establishment of the so-called collective memory. Indeed, in the aftermath of the conflict, societies which live the trauma and passing in transition period often express their needs to understand the extent of violence and the nature of the conflict or the abuses which occurred during the time of the former regime.

According to Argentina’s case, Argentina’s trials for crimes committed during the dictatorship of military juntas are widely seen as a successful national effort to seek accountability for past abuses. And while victims’ demands for justice continue to remain high, the judiciary is facing challenges to ensure the cases are dealt with expeditiously and fairly. At the same time, the harrowing evidence presented during trials seems to be getting increasingly less attention in the public discourse.

The 1983 collapse of Argentina’s military dictatorship ended a dark chapter of terror, torture, and kidnappings. It its wake, thousands of victims demanded justice. Argentina successfully established criminal trials and truth-seeking mechanisms to seek accountability for widespread abuses, and to establish the truth about disappearances of more than 30,000 people.

Argentina was a transitional justice pioneer not just for the region, but for the world. Between 1976 and 1983, thousands of people were tortured, murdered and disappeared. In 1983, Argentina established a truth commission to shed light on the crimes committed during the military dictatorship. What led to the decision to create a truth commission?

The decision to create a truth commission came about because the outcry from society was huge. It was a way of collecting information that was largely unknown or at least thought to be unknown. The truth commission was the first attempt to organize information that existed and to give people a place to file complaints. In our trials today we still use the criminal reports filed at that time as evidence because they are valuable. Thirty years later, the witnesses’ memory may be thirty years old, but all those criminal reports stay fresh[MN5].

In 1976, when Argentina was wracked by economic strife, a military junta under General Jorge Videla seized power. The parliament was dissolved. This dictatorship continued under four different generals—Jorge Videla, Roberto Eduardo Viola, Leopoldo Galtieri, and Reynaldo Bignone—until it fell in 1983, after suffering significant losses in the Malvinas (Falklands) War with Great Britain. Civilian rule was then restored. Raul Alfonsín was elected president and set up La Comisión Nacional Sobre la Desaparición de Personas (National Commission on Disappeared Persons, CONADEP) and charged it with investigating the fate of the disappeared. In 1984, CONADEP released a report, Nunca Más (“Never Again”), that listed numbers of victims and detention centers where individuals were murdered and tortured under the authority of the army, navy, and police forces. CONADEP obtained none of the evidence through the cooperation of the military, either officially or unofficially.[8]

As the democratic government was reinstated, there was an immediate need to investigate past human rights violations. In early 1984, judges began ordering exhumations. However, medical doctors in charge of the work had little experience analyzing skeletal remains, whereas many local forensic experts were part of the police force and complicit with the previous judicial system.[9]

In the course of its work, CONADEP joined forces with Abuelas de Plaza de Mayo (Grandmothers of the Plaza de Mayo), a group of women with disappeared children and grandchildren. Since its inception in 1977, the group has been searching for disappeared children, some born in clandestine detention centers or disappeared with their parents. CONADEP and the Abuelas de Plaza de Mayo requested assistance from the Science and Human Rights Program at the American Association for the Advancement of Science. A group of experts traveled to Argentina, calling for exhumations to be halted until they could be done properly. Dr. Clyde Snow, an expert in forensic anthropology, worked with archaeologists, anthropologists, and physicians to form the Argentine Forensic Anthropology Team. The team was trained using traditional archaeological and forensic anthropology techniques to identify and uncover the remains of the disappeared in a manner that helped in the investigation and documentation of human rights violations, as well as identification of the bodies for the victims’ families.

President Alfonsín sent a law to Congress proposing that military courts try the top leaders responsible for committing human rights abuses during the regime. The law noted that all those who planned, controlled, and organized the repressive[MN7] operation were to be punished. The trials were eventually held in a civilian appeals court. CONADEP handed case files directly to the judicial system, which they had access to a large number of witnesses and was able to build cases rapidly.[11] The trials began just 18 months after the military government left power. In the significant case of the trial of the junta members, more than 800 witnesses were presented, covering some 700 individual cases taken from CONADEP’s case files, as well as others.

The issue of economic assistance for victims (in the form of partial pensions) emerged under Alfonsín and laws on reparation were approved starting in the early ’90s under the Menem administration. Beginning in 1991, Menem issued Decree 70, ordering reparations for some former prisoners who had sued Argentina before the Inter-American Commission on Human Rights. The decree was, in effect, a settlement of that lawsuit. In 1994, similar benefits were extended, this time by law, to all persons who had been detained administratively without charges under the state of siege, and to those prosecuted or tried by military courts. Later, a similar statute was passed to benefit the families of the disappeared. CONADEP had reported that 8,960 people had disappeared under the military regime, and the files on those individuals comprised the core records for the reparations program. Family members of anyone listed could make a claim for reparations, and all were entitled to receive a lump sum paid in government bonds.

New cases of disappeared persons not listed in the CONADEP report had to be corroborated through evidence, such as a mention in the press, a report issued to a national or international human rights organization, or evidence that a habeas corpus petition was submitted to the courts when the person disappeared. The laws on reparations established a very simple, straightforward administrative process to apply for benefits, and state agencies assumed most of the evidentiary burden. In August 2004, a law was adopted providing monetary compensation to children born in captivity. And in 2005, a legislative initiative is making its way through Congress to provide reparations for those forced into exile. This initiative has not yet been adopted.

The main leaders of the regime were sentenced in the famous trials of the Juntas. However, the trials came to a halt when the Punto Final (End Point) law and the Obediencia Debida (Due Obedience) law were passed, which protected the military from lawsuits. So it wasn’t until 2005 that the amnesty laws were declared unconstitutional, opening the door for cases to be brought against the military. How those cases are proceeding and what they have meant for Argentine society?

The cases were re-opened in 2003, but the trials didn’t begin until 2006. Since then, the Argentine federal justice system has been devoted to making headway on trials for human rights violations during the dictatorship, and the justice system is still busy carrying out these trials. Argentina doesn’t have a statute of limitations on cases dealing with crimes against humanity, so the courts will continue with the trials until the last of the accused dies. However, there are statutes of limitations on all other cases of serious crimes, for example, corruption among civil servants. As a result, there many things still happening in Argentina that doesn’t make it to trial because they expire.

In conclusion, due to the inability of the criminal justice to prosecute the large numbers of perpetrators. The result was granting amnesty to criminals. Thus, “the function of deciding who would be granted amnesty fell to the TRC. Amnesty was granted only if the crime was political in nature and if the individual fully disclosed the details of the act for which amnesty was sought”.[14] When in fact, granting amnesty serves offenders much more than victims. Which in its turn and due to the different reactions for victims in dealing with this, it may lead some victims to revenge. As a final point, both national and international trials have no legitimacy in many cases for many reasons. “In a post-conflict situation domestic trials often lack legitimacy because the judicial institutions are not impartial and independent or are not perceived as such. Trials by purely international courts such as the ICTY, ICTR, and ICC, however, are also considered to lack legitimacy because those who have been most directly affected by the crimes lack ‘ownership’ of the trials.

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