Justice: The First Casualty of Truth?
The global movement to end impunity for human
rights abuses faces a daunting question
by Reed Brody
The Nation magazine, April 30, 2001
If Gen. Augusto Pinochet had not been arrested in England
on the night of October 16, 1998, the truth about his crimes would
never have been fully revealed and democracy in Chile might have
remained in a state of arrested development.
Eight years after Pinochet relinquished power, he still cast
a long shadow over Chilean society. The Senate was stacked with
his supporters. The Chilean courts lacked true independence. Painfully
little progress had been made in restoring democratic rights to
the importance they had enjoyed before the military takeover.
Although a majority of Chileans hoped that Pinochet would stand
trial for the atrocities committed during his rule, the "Senator
for Life" benefited from parliamentary immunity and a 1978
amnesty that the military had granted itself. In the face of Pinochet's
lingering power, the elected government quickly abandoned its
pledge to seek derogation or annulment of the self-amnesty law.
Indeed, despite a highly regarded report by a government-sponsored
truth commission, proof of Pinochet's own role in the worst atrocities
remained largely circumstantial.
Pinochet's arrest by British police, and his seventeen months
of humiliating detention, changed all that, unleashing a renewed
debate in Chile about the legacy of the military government and
rekindling hopes of justice for Pinochet's thousands of victims.
Previously timid Chilean judges began looking for chinks in the
dictator's legal armor. After decades of silence, Pinochet's former
collaborators stepped forward to tell of his role in covering
up atrocities, revelations that have had a snowball effect.
The number of criminal cases against Pinochet jumped to dozens,
then hundreds. By the time British Home Secretary Jack Straw sent
Pinochet back to Chile, ostensibly on health grounds, the myth
of his immunity had been totally shattered.
The reinvigorated Chilean courts skirted the 1978 military
self-amnesty by ruling that prosecutions of ongoing "disappearances"
are not barred, because the crime continues as long as the fate
of the victim is concealed. Pinochet could thus be prosecuted
for his role in the "Caravan of Death," a helicopter-borne
military group that executed and "disappeared" seventy-five
political prisoners shortly after the 1973 coup. In a historic
ruling last August, the Chilean Supreme Court lifted Pinochet's
senatorial immunity. Months later he was formally indicted by
a Chilean judge for murder and disappearances and placed under
house arrest, something that would have been simply inconceivable
two years ago.
At several stages, Pinochet's shrill and seemingly powerful
supporters-the military, the wealthy and the principal newspapers
they own-sought to create an institutional crisis with gestures
of defiance; but each time they backed down in the face of government
and popular support for the rule of law.
When Pinochet was questioned about the Caravan of Death by
the investigating judge, a historic act in itself, he seemed to
pass the buck down the chain of command. This prompted Joaquin
Lagos, a retired general who commanded a prison visited by the
caravan, to go on television in January-the first time he had
told his story publicly. He was graphic: "They took out [the
victims'] eyes with knives, broke their jaws, their legs and then
killed them." He said he reported the killings in writing
to Pinochet, who rather than reprimanding the murderers asked
Lagos to alter his report. A week later, Chilean newspapers published
a document bearing Pinochet's signature with orders to cover up
the torture of a political opponent.
According to Roberto Garreton, a leading Chilean human rights
lawyer, "October 16 [Pinochet's London arrest] was fundamental,
so that we could at last complete our transition to democracy."
The Pinochet case has inspired victims of abuse in country
after country, particularly in Latin America, to challenge the
transitional arrangements of five and ten years ago, which allowed
the perpetrators of atrocities to go unpunished and, often, to
remain in power. These temporary accommodations with the 'ancien
regime' did not extinguish the victims' thirst to bring their
former tormentors to justice. In Guatemala, a powerful UN-sponsored
truth commission report issued in 1999, which charged that the
military, with US support, committed acts of genocide against
Mayan Indians, has spurred victims to seek redress in the courts
of both Guatemala and Spain. In Argentina, years after amnesty
laws put an end to "Dirty War" prosecutions, eleven
officials, including four members of the military juntas, are
either in jail or under house arrest for "baby-snatching,"
the theft of the children of disappeared mothers; and just weeks
ago, on March 6, an Argentine judge boldly struck down the 1987
amnesty laws as a violation of both the national constitution
and international law.
At the same time, Pinochet's London | arrest reflected, and
strengthens, a new | (though uneven) international movement-spurred
by the twin genocides of the 1990s in Bosnia and Rwanda, and facilitated
by the end of the cold war- to end impunity for the worst abuses.
After the creation of United Nations tribunals for Yugoslavia
and Rwanda, in 1998 the UN voted overwhelmingly in Rome to establish
an International Criminal Court to prosecute future genocides,
crimes against humanity and serious war crimes when national courts
are unable or unwilling to do so. The United States, after failing
to win a 100 percent guarantee that no US soldier or policy-maker
would ever be prosecuted, was one of only seven countries to oppose
the Rome treaty. President Clinton did sign the treaty, however,
to remain involved in the court's formation, and though the Bush
Administration may be less willing to play along, much less ratify
it, the ICC is sure to have the needed sixty ratification's (it
now has twenty-nine) within a few years.
"International justice" is already beginning to
be a plausible backstop when national justice fails or a perpetrator
flees. In Sierra Leone and Cambodia, the UN is preparing to sponsor
tribunals together with local authorities. Former dictator of
Chad Hissene Habre was arrested on torture charges last year in
his Senegalese exile. (The Senegalese Court of Final Appeals ruled
in March that he could not be tried there, but human rights groups
are now seeking his extradition to stand trial in Belgium.) The
Mexican government has agreed to extradite to Spain an Argentine
naval officer accused by Judge Baltasar Garzon of torture. A Dutch
court is pressing charges against former Surinamese military strongman
Desi Bouterse for the 1982 killing of fifteen government opponents.
Shadowy Peruvian spymaster Vladimiro Montesinos was surprised
to find that in the post-Pinochet world he was denied exile even
in Panama, which had acquired something of a reputation as a safe
haven for the world's washed-up dictators. (Raoul Cedras of Haiti
and Jorge Serrano of Guatemala are there now; in the past it hosted
the Shah of Iran.) On March 20, in a landmark ruling, the Inter-American
Court of Human Rights said that the amnesty laws of Peru violated
the American Convention on Human Rights.
Like Chile's prosecution of Pinochet, Serbia's recent arrest
of former Yugoslav president Slobodan Milosevic on corruption
charges also illustrates the dynamic interplay between international
and national justice. Milosevic's indictment by the Yugoslavia
war crimes tribunal, and the international pressure on Serbia
to act, certainly facilitated the dramatic move-and like the arrest
of Pinochet, the showdown in Belgrade has further weakened Milosevic,
who is sure to be discredited even more as details of his crimes
emerge. Of course, prosecuting Milosevic in Serbia on corruption
charges can never provide justice for the hundreds of thousands
of non-Serb victims of wartime atrocities in Bosnia, Croatia and
Kosovo, and the international community is right to insist on
Milosevic's transfer to The Hague to face trial for his worst
All these events have revived the debate over what has become
known as "transitional justice"-or, as Ruti Teitel phrases
it in her book of that name, "How should societies deal with
their evil past?" Teitel's book offers a historical and comparative
analysis of the problem and, while dense and at times repetitive,
raises the key practical, legal and moral dilemmas facing transitional
regimes. "What emerges," she writes, is a "pragmatic
balancing of ideal justice with political realism." Focusing
on the role of the law itself in times of transition, Teitel observes
that "legal practices bridge a persistent struggle between
two points: adherence to established convention and radical transformation....
the jurisprudence of these periods does not follow such core principles
of legality as regularity, generality, and prospectivity-the very
essence of the rule of law in ordinary times."
At the heart of the matter is whether to prosecute those who
have committed atrocities. Most people would agree that leaders
who organize mass murder, torture and the like should be brought
to justice. The history of the past fifty years, however, reveals
that until very recently, butchers like Pinochet, Idi Amin, Ferdinand
Marcos, Anastasio Somoza and Mengistu Haile Mariam were less likely
to end up behind bars than a squeegee man from the streets of
New York. In Teitel's words, "transitional practices show
trials to be few and far between, particularly in the contemporary
period." The reason was sometimes pragmatic-these tyrants
were offered a way out to induce them to hand over power without
making their people suffer further. As Teitel notes, the legal
and practical questions are also not trivial. Often the courts
are so corrupted that a fair trial is impossible. When the crimes
were committed at the regime's outset, there are problems of statutory
limitations. It is impossible to prosecute all the perpetrators
in criminal regimes, but selective prosecutions can also create
Enter truth commissions. They were first established in places
like Argentina and Chile, where deniable disappearances made truth
the first order of the day. But it is South Africa's Truth and
Reconciliation Commission that, "though flawed in many ways,
has set a high standard for future commissions," in the words
of Robert Rotberg in his excellent introduction to the subject
in Truth v. Justice, an engaging collection of essays mainly about
South Africa. The contributors examine the TRC and debate the
fundamental moral question suggested by Amy Gutmann and Dennis
Thompson: Can one "sacrifice the pursuit of justice as usually
understood for the sake of promoting other social purposes such
The TRC was an explicit political compromise between the broad
amnesty that apartheid leaders sought and the prosecutions proposed
by the African National Congress, which would have antagonized
any hope of a peaceful transition. The ingenious solution was
to keep the prosecution option open (some were indeed conducted)
but grant individual amnesties for those who came forward and
told the truth about their crimes, in public and often on television.
This quasi-penal process encouraged confession and transparency.
As Ronald Slye says in his essay in Truth v. Justice, the TRC's
was "the most sophisticated amnesty undertaken in modern
times, if not in any time, for acts that constitute violations
of fundamental international human rights." The TRC process
has been rightly challenged because it focused not on the apartheid
system itself, including massive displacements and the pass system,
but on "excesses" that even apartheid considered criminal,
like murder and torture. And while there were a number of dramatic
examples of victimizers and victims embracing, there was no requirement
that the perpetrators atone or ask forgiveness to obtain amnesty.
A respected poll showed that two-thirds of South Africans believed
that the TRC investigations led to a deterioration of race relations.
Nevertheless, "it can safely be said that South Africa is
a better country in light of the accomplishments" of the
TRC, as Richard Goldstone writes in a short essay in his book.
The TRC's major accomplishment, says Goldstone, a leading South
African judge who went on to become the first prosecutor of both
the Rwanda and Yugoslavia tribunals (about which he also writes),
is that no one now can deny the worst manifestations of apartheid.
Yet the human rights movement now faces a "South Africa
problem": While the TRC amnesty-for-truth process merits
respect as the most honestly designed transitional arrangement
short of "real" justice (i.e., prosecution), most of
its counterparts around the world are producing or promising a
lot more amnesty than truth. The conditions in South Africa, particularly
the credible threat of widespread prosecution, which brought all
manner of perpetrators forward, are hard to replicate elsewhere,
especially in the developing world. At the same time, prosecutions,
as we have seen, are much more politically possible than just
five years ago.
Yet it seems that because of South Africa, the international
community has become blindly besotted with truth commissions,
regardless of how they are established and whether they are seen
as precursors or complements to justice or, very often now, as
substitutes for justice.
According to Priscilla Hayner in Unspeakable Truths, her useful
analysis of truth commissions around the world, they are "fast
becoming a staple in the transitional justice menu of options."
Truth commissions can indeed produce important results. They can
uncover hidden abuses and lift the veil of denial, help a fractured
country come to grips with its past, provide a platform for victims
and propose structural reforms. But to be as effective as the
TRC, truth commissions must be independent, well resourced and
endowed with subpoena power; must hold public hearings when necessary;
and must be able to name the accused publicly. Few commissions
today meet these criteria.
Commissions can also lay the groundwork for reparations to
the victims in a way that trials probably cannot. My own experience
bears out Hayner's observation that "especially for the very
poor, the possibility of receiving financial assistance seems
to be a primary reason to come forward to give testimony."
In Chile the families of those listed by the commission as killed
or disappeared (but not those tortured) receive monthly checks
for life. In Argentina, litigation before the Inter-American Commission
on Human Rights has resulted in payments to families as well as
to those wrongly detained or exiled. As Hayner points out, however,
"in very poor states, or where hundreds of thousands of persons
were killed or disappeared, substantial individualized monetary
compensation may simply not be feasible." Indeed, the compensation
recommended by the El Salvador and Haiti commissions has never
materialized. Even in South Africa, victims remain frustrated
in their attempts to win meaningful compensation.
"Reconciliation," on the other hand, even if it
could be defined, is too contested an ideal on which to base policy.
Many victims, particularly in Latin America, see "reconciliation"
without contrition by the perpetrators (or their punishment) as
a cruel joke. Argentine journalist Horacio Verbitsky, who spearheads
the campaign to overturn Argentina's amnesty law, says that "to
try to impose reconciliation between the families of the victims
and their executioners would be sadistic from an individual point
of view and irrelevant for society. The only solid base on which
to build the future is for all citizens to accept the law and
its procedures." This echoes David Crocker in Truth v. Justice:
"It is morally objectionable as well as impractical for a
truth commission...to force people to agree about the past, forgive
the sins committed against them, or love one another." On
a more practical level, Hayner quotes Argentine activist Juan
Mendez as saying that in his country reconciliation "was
a code word for those who wanted nothing done."
Yet to many international donors, reconciliation is a feel-good
idea, while justice, as we are seeing now in Chile, is a potentially
messy affair in which there are not only winners but losers. But
the perpetrators of atrocities should be losers. Hayner defines
truth commissions as bodies that "investigat[e] politically
motivated or politically targeted repression that was used as
a means to maintain or obtain power and weaken political opponents."
If the leaders used repression to empower themselves, then in
an ideal transition they are disempowered, something that trial,
conviction and punishment does most effectively.
In the best of cases, of course, truth commissions can lead
to justice, and the two are naturally complementary. Hayner correctly
notes that in Argentina and Chad the facts compiled by truth commissions
were later used by prosecutors. But Hayner, who is regularly consulted
in the establishment of truth commissions, too easily brushes
off the charge that there is no trade-off between truth and justice.
She quotes a Guatemalan minister of defense: "We are fully
in support of a truth commission. Just as in Chile: truth, but
no trials." (In fact, the Guatemalan truth commission has
given impetus to justice efforts.) Into the early 1 990s, truth
may have been the best the victims could hope for. Today it is
increasingly seen by abusive governments as a soft option for
Sierra Leone, in a somewhat different context, illustrates
the folly of trading justice for truth. The brutal civil war waged
by the rebel Revolutionary United Front was characterized by the
most revolting abuses I have personally witnessed, including the
rebels' signature atrocity of cutting off the arms of civilians.
A peace agreement signed in July 1999 included, with South Africa
in mind, a blanket amnesty and a truth commission. In a historic
move, the UN, under pressure from rights activists, backed away
from the pact's amnesty, but no steps were actually taken to bring
the perpetrators to justice. Not surprisingly, within months the
rebels were at it again. Only when they made the mistake of attacking
UN peacekeepers, however, was rebel leader Foday Sankoh arrested,
and a UN-sponsored tribunal is now being established to try Sankoh
and his henchmen.
Truth commissions can also divert international attention
and scarce resources from justice efforts. In Haiti, where I worked
with President Aristide's minister of justice, we were explicitly
told by international donors that they could not fund a special
prosecutor's office-the government's priority-because they were
supporting a truth commission (whose report, published years after
its completion, only confirmed what people already knew about
It is true that trials are more demanding and costly than
truth commissions. Criminal guilt must be proved beyond a reasonable
doubt. It's one thing to say that thousands were killed under
Pinochet; it is harder to prove his personal guilt in a particular
case. But because most commissions rely on victim testimony, they
fail to infiltrate the repressive apparatus, which, as we are
now seeing in Chile (and as any prosecutor of organized crime
knows), is the best way to establish the individual responsibility
of top officials. And while truth commissions can elicit broader
historical truths than trials, the value of this will depend on
whether the crimes were carried out in a manner designed to evade
responsibility (say, by disappearances or death squads) or whether,
as in Bosnia, Rwanda and Sierra Leone, they were incited and practiced
in the open.
At least where they are politically possible, there are other
powerful reasons to use trials. Truth-telling, however complete,
simply does not adequately address the gravity of many crimes.
As Aryeh Neier has argued, the results of a truth process would
not have been commensurate to the criminality that took place
in Rwanda or Bosnia. Trials are a foundational and forward-looking
affirmation that no group, including public officials and the
armed forces, is above the law and that the new democracy will
not tolerate such behavior. (Teitel argues that they are, at the
same time, backward-looking.) Indeed, trials can emphasize that
a transition to democracy has been successful by demonstrating
that the 'ancien regime' is too weak to impede them. Trials also
enable victims to establish or recover their dignity as holders
of legal rights. In Haiti, the total impunity with which a small
elite literally got away with murder and plunder for generations
had left the poor majority assuming that they had no rights. Trials
can also (if conducted fairly) juxtapose the meticulous rules
of due process with the conduct of the accused. While it was a
rich irony that Pinochet, whose war tribunals conducted sham trials
and ordered the summary execution of political opponents, would
take advantage of the full measure of British rule of law for
well over a year, it was precisely in honor of the rule of law
that he was prosecuted.
The argument that if perpetrators are threatened with prosecution
they will not relinquish power, or will undermine a new democracy,
deserves attention. In some negotiated transitions, such as South
Africa, this may be true and should impose a responsible caution.
In most cases, however (think of Cedras and Duvalier in Haiti,
Stroessner in Paraguay, Idi Amin in Uganda, Mobutu in Zaire, Suharto
in Indonesia), bloody despots are overthrown or leave kicking
and screaming when their time is up anyway. Last year, it was
widely argued that to induce Slobodan Milosevic to step down,
he should be assured that he would not be prosecuted. No such
assurances were made, and he not only gave up power, he is now
being prosecuted domestically and is likely to stand trial one
day before a war crimes tribunal. Fears of destabilization are
often brandished by successor governments that would rather accommodate
the 'ancien regime' than invest the political capital in disempowering
it further. In Chile, forebodings expressed by opponents of Pinochet's
arrest (including the elected government) that "reopening
old wounds" would threaten the country's democracy were revealed
to be largely a bluff-democracy has *n fact been strengthened.
In Argentina in 1987, after trials of the top generals threatened
to spread to more junior military officers, rebellious officers
began a mutiny. In a tense moment for the young democracy, civilians
surrounded the barracks and some 200,000 people gathered in the
Plaza de Mayo to support the constitutional order. Rather than
capitalizing on this public outpouring to strengthen civilian
control, President Raul Alfonsin asked the throngs to go home
and then halted further prosecutions. While it is hard to second-guess
a president with solid democratic credentials faced with a very
real revolt, it is undeniable that his path of lesser confrontation
led to spiraling military demands, including the eventual pardons
of those already convicted, and the consequent weakening of democratic
While the House of Lords was hearing arguments that would
lead to its famous decisions that Pinochet was not immune from
torture charges, South Africa's last apartheid president, F.W.
de Klerk, was across London releasing his autobiography. "Would
an apartheid criminal who has been granted an amnesty...be liable
to be prosecuted for crimes against humanity in a non-South African
court?" asks Richard Goldstone in For Humanity. Goldstone
has "no doubt that such a prosecutor [of a foreign court
or the future ICC] should not be inhibited by national amnesties.
In international law they clearly have no standing and would not
afford a defense to criminal or civil proceedings before an international
court or a national court other than that of the country that
grants the amnesty. That does not mean that in deciding on an
investigation or prosecution, the prosecutor will not take into
account" the circumstances of the amnesty. Goldstone sensibly
proposes that "an international prosecutor ignore self-amnesties
of the kind granted to General Pinochet," which unfortunately
are the norm around the world. On the other hand, he suggests
that it would be appropriate in the South African case for the
prosecutor, in the exercise of his or her discretion, to take
into account the fact that the individual amnesties were granted
pursuant to a scheme "approved by a democratically elected
legislature-a legislature that is representative of the victims
of apartheid." One area begging for a truth commission is
US support for atrocities abroad. Because the US public would
not have countenanced open and notorious American support for
crimes against humanity, there was usually, as in Nicaragua or
Chile, a layer of deniability, either about the crimes or about
US support or, as in East Timor in 1975, a virtual news blackout.
The national truth commissions in El Salvador, Chile and Haiti
were disappointingly silent on US complicity. Their counterparts
in Guatemala and Chad were less shy. As a result of recent Pinochet-driven
disclosures, the fuller US role in undermining Chile's democracy
and then in knowingly supporting Pinochet's crimes is coming to
light. Proving the individual criminal (as opposed to political)
liability in specific abuses of high-ranking American policy-makers
such as Henry Kissinger may not be easy and prosecutions politically
unlikely (especially as Dr. Kissinger now watches where he travels).
But a full airing of US cold war support for abusive forces in
places like Chad, El Salvador, Greece, Haiti, Indonesia and Nicaragua
(and direct US atrocities in Cambodia, Laos and Vietnam) by an
officially appointed nonpolitical panel could establish an important
historical record, promote a measure of accountability and, if
the United States were ready to apologize (as Clinton recently
did to Guatemala), foster a kind of reconciliation with the countries
whose people suffered the abuses.
Reed Brody, advocacy director of Human Rights Watch and a
lecturer at the Columbia University School of Law, participated
in the Pinochet case in London and coordinates the prosecution
of Hissene Habre.