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 crimes.

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 injustice.

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 as...reconciliation"?

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 avoiding justice.

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 coup-era repression).

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 institutions.

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.

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