Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (55 page)
Read Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice Online
Authors: Naomi Roht-Arriaza
[22]
The case, as well as all the legal documents pertaining to the Habré affair, can be found on the following website:
http://www.hrw.org/french/themes/habre.htm
.
[23]
In May, another 53 Chadian victims joined the original plaintiffs, as well as a Frenchwoman whose Chadian husband had been murdered in 1984.
[24]
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature, ratification and accession by General Assembly Resolution 39/46 of December 10, 1984.
[25]
“Un Dictateur face a la Justice”,
Jeune Afrique l'Intelligent
, February 15–21, 2000.
[26]
Article 5 section 2 of the Torture Convention, which imposes a legislative duty, states: “Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over [acts of torture] in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him . . .” Article 7, section 1, which establishes the obligation to extradite or prosecute, states: “The State Party in the territory under whose jurisdiction a person alleged to have committed [acts of torture] is found shall . . . if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.”
[27]
Article 79 of the Senegalese constitution reads, “Les traités ou accords régulièrement ratifiés ou approuvés ont, dès leur publication, une autorité supérieure à celle des lois, sous réserve, pour chaque accord ou traité, de son application par l'autre partie.”
[28]
République du Sénégal, Cour d'Appel de Dakar, Chambre d'accusation, Arrêt no. 135 du 4 juillet 2000. Available at
http://www.hrw.org/french/themes/habre-decision.html
.
[29]
The court focused on the Convention's Article 5, which calls on states to adopt legislation establishing competence over extraterritorial torture, rather than on Article 7 which sets forth more clearly the requirement of
aut dedere aut judicare
. The decision was based on the absence of any legislative measure establishing jurisdiction over torture‐related offences, as required by Article 5. The court distinguished a previous Supreme Court case involving administrative law, which subordinated national law to an international treaty, on the ground that criminal law operates under more strict rules requiring that crimes formally be set forth. See République du Sénégal, Cour d'Appel de Dakar, note 28 above.
[30]
République du Sénégal, Cour de Cassation, Première chambre statuant en matière pénale, Arrêt no. 14 du 20‐3‐2001 Pénal, Souleymane Guengueng et Autres Contre Hissène Habré. Available at
http://www.hrw.org/french/themes/habre-cour_de_cass.html
.
[31]
Letter from Chief, Support Services Branch, Office of the High Commissioner for Human Rights, to Reed Brody,
http://www.hrw.org/french/themes/images/guengueng_small.jpg
.
[32]
With one week to go before the judge's scheduled visit, final permission had still not been granted. AVCRP President Ismael Hachim, together with the victims' Belgian lawyer George‐Henri Beauthier and Human Rights Watch's Olivier Bercault, literally laid siege to the office of the Minister of Justice until permission was granted.
[33]
Ismael Hachim, the president of the AVCRP, couldn't stop telling his friends the story of how he had confronted the man who had ordered his detention and torture 13 years earlier. Hachim had spent 17 months in the infamous
Piscine
. When he got out of jail upon Habré's overthrow, the three officers who took him into custody told him that it was Touka Haliki, Habré's Director of Intelligence, who had ordered his arrest and torture, but it was only a year later when Hachim got a hold of his DDS files that he could be sure. Haliki, still a police supervisor, was one of those called in by Fransen to testify, and when Haliki denied involvement in the persecution of the Zaghawa, the judge called Hachim to encounter Haliki face‐to‐face. When Haliki still claimed his innocence, Hachim whipped out the DDS document in which Haliki ordered his arrest and another in which Haliki signed off on Hachim's interrogation. “In that moment, he became very small, and I became very tall,” gloated Hachim to all who would listen. “Even if he is never prosecuted, I now feel like some justice has been done. That's what this is really about, isn't it?”
[34]
Arrest Warrant of April 11, 2000 (
Democratic Republic of the Congo
v.
Belgium
), Judgment of February 14, 2003.
[35]
Ibid
., para. 66.
[37]
Assembly of the African Union, “Declaration on the Hissène Habré Case and the African Union”, January 24, 2006.
[38]
United States Department of State,
Country Reports on Human Rights
(2004).
[39]
Communiqué de presse L'AVCRP, les ADH et le Comité International pour le Jugement d'Hissène Habré, October 6, 2000. On file with the author.
[40]
Discours du Président de l'association des victimes des crimes et répressions politiques au Tchad à l'occasion de la tenue des états généraux de la justice à N'Djaména
, http://hrw.org/french/press/2003/tchad0619.htm.
[42]
The judge's ruling can be found at
http://www.hrw.org/french/themes/habre-decisionduconseil.html
.
[43]
“Engagé à tout mettre en œuvre pour ne pas entraver le cours de la justice, afin que la vérité sorte au grand jour et que le procès aboutisse.”
[44]
Les crimes et détournements de l'ex‐Président Habré et de ses complices
, Rapport de la Commission d'Enquête Nationale du Ministère tchadien de la Justice (Éditions L'Harmattan, 1993), p. 97.
[45]
Reed Brody, “Justice comes to Chad”, March 20, 2002,
http://www.hrw.org/editorials/2002/justicetochad.htm
.
[46]
“Tchad: les victimes de Hissène Habré demandent reparation”,
http://hrw.org/french/docs/2004/01/30/chad7166.htm
.
Kathryn Sikkink
University of Minnesota
Carrie Booth Walling
University of Minnesota
In order to understand the diverse transitional justice mechanisms discussed in this book, we need to look at developments at the international and regional level as well as within individual countries. The doctrine of complementarity built into the statute of the
International Criminal Court can be
seen as a metaphor for a much broader form of interaction of the international and domestic legal and political spheres in the area of transitional justice. Developments at the international level depend upon processes at the domestic level, and vice versa.
In addition to discussing the case of Argentina, we will also sketch out some broad international and regional trends in the area of transitional justice. These trends make clear that dramatic changes have occurred in the world with regard to accountability for past human rights abuses. This trend is what Lutz and Sikkink
[1]
have called “The Justice Cascade” – a rapid shift towards new norms and practices of providing more accountability for human rights violations. The case of Argentina is particularly interesting because far from being a passive participant in or recipient of this justice cascade, Argentina was very often an instigator of particular new mechanisms within the cascade. The case illustrates the potential for global human rights protagonism at the periphery of the system. The Argentine case also supports the general thesis of the volume that multiple transitional justice mechanisms are frequently used in a single case.
To discuss this interaction of domestic and international legal and political contexts and processes, we think about transitional justice occurring within a domestic
and
international political and legal opportunity structure.
[2]
Social movement theorists define political opportunity structures as consistent dimensions of the political environment that provide incentives and constraints for people to undertake collective action by affecting their expectations of success or failure.
Political opportunity structures only invite or constrain mobilization if they are perceived by activists.
[3]
As we will see in the case of Argentina, social
movements do not only face existing opportunity structures, but can also help create them at both the domestic and the international level.
We focus on an essential aspect of
political opportunity structure at both the domestic and the international level – access to institutions, in other words how open or closed domestic and international institutions are to pressures for accountability for past human rights violations. Internationally, this degree of openness has varied significantly over time, across issues, and across regions. There has been an increase in judicialization or legalization of world politics in the last few decades.
[4]
Depending on how we count, there are now between seventeen and forty international courts and tribunals. The expansion of the international judiciary has been described by one analyst as “the single most important development of the post‐Cold War age.”
[5]
This expansion of international legalization, however, is uneven, in that it is more pronounced in some issues areas and in some regions than in others. Trade issues have high levels of international legalization in hard treaty law, while regional security regimes display less legalization. In terms of region, Europe is by far the most legalized, but Latin America is also relatively highly legalized in comparative terms. Thus, Latin America has a more propitious regional opportunity structure for human rights activism than Asia, for example, because of the existence and density of the Inter‐American human rights norms and institutions, while Asia has no such regional human rights regime.
[6]
The mere existence of these domestic and international opportunity structures, however, does not matter unless there are actors poised to take advantage of these opportunity structures. Here domestic and international movements become important. Domestic human rights organizations and
transnational human rights networks both operate in existing opportunity structures and either take advantage of them or not. They can also help create new opportunity structures.
Before 1976, domestic, regional, and international opportunity structures were relatively closed for demands for accountability for past human rights violations. Human rights activists in the 1960s and early 1970s in the Soviet Union, Eastern Europe and authoritarian regimes in Latin America initially faced this closed situation. United Nations procedures prohibited the institution from acting in the case of a specific country unless there was a clear threat to international peace and security. Protocol prohibited even the naming aloud of a specific country
engaged in human rights violations in the meetings of the Human Rights Commission. The basic human rights treaties, the Covenants on Civil and Political Rights, and on Economic, Social, and Cultural Rights, had been completed and opened for ratification but had not yet entered into force.
After 1976, however, the situation began to change. In that year, the International
Covenant on Civil and Political Rights (ICCPR) as well as the International Covenant on Economic, Social, and Cultural Rights received the requisite number of ratifications and entered into force. With the entry into force of the ICCPR, the
UN Human Rights Committee was set up to receive government reports and communications on compliance with the Covenant. For countries that ratified the first Optional Protocol to the
ICCPR, the Committee was also authorized to receive and consider communications from individuals claiming to be victims of violations. In the UN Human Rights Commission, important changes also began to occur in the 1970s. After 1977, a series of “special procedures” were subsequently developed in the Human Rights Commission to enhance its ability to look into specific human rights situations, including the use of special rapporteurs and working groups.
Before the late 1970s, the
Inter‐American human rights system was also relatively closed to demands for accountability for human rights violations. The Organization of American States created the Inter‐American Commission for Human Rights in 1959, but the Commission was not very active until the 1970s. When the American Convention on Human Rights, which created the
Inter‐American Court of Human Rights, came into force in 1978, the regional situation began to be more open. Activists began to bring more cases to the Inter‐American Commission for Human Rights, and the Commission initiated more on‐site investigations of human rights situations in specific countries. The
Inter‐American Court, however, did not become a more significant structure for accountability until the 1980s.
Activists from countries like Argentina and Chile were not passive beneficiaries of these changes, but active protagonists in helping create the change in opportunity structures. Human rights NGOs and their state allies pushed for the adoption of the special procedures in the Human Rights Commission. These later provided more points of access to the institution, since NGOs could send information to special rapporteurs and working groups, and in some cases, members of NGOs were named as rapporteurs or working group members. Latin American activists also filed more cases with the Inter‐American Commission on Human Rights and urged it to conduct on‐site visits. Likewise, as states ratified human rights treaties and those treaties went into effect, new
mechanisms for access were created in the form of the treaty monitoring bodies that received reports from countries. Human rights activists (inside and outside of states) succeeded in transforming the international opportunity structure from one that was fundamentally closed, to one that offered some important areas of access.
The military coup that brought
General Jorge Videla to power in 1976 was preceded by an upsurge in activities by right‐wing death squads and by left‐wing guerrilla movements. Although disappearances surged
after the military coup, over 200 people disappeared before the military took power. Once in power, the military government initiated a program of brutal repression of the opposition, including mass kidnappings, imprisonment without charges, torture, and murder. Estimates still vary about the total number of disappearances. The
National Commission on Disappearances (CONADEP) documented a total of 8,960 deaths and disappearances in Argentina during the 1975–83 period. Human rights organizations in Argentina have long used much higher estimates of disappearances, based on the assumption that for every reported disappearance, there were many unreported disappearances. While we do not have agreement on an absolute number of deaths, we do know that over 9,000 people were killed, and that the great bulk of these murders took place in a relatively short time period in 1976 and 1977. Most of the “disappeared” were eventually murdered, and their bodies buried in unmarked mass graves, incinerated, or thrown into the sea.
[7]
The early period of human rights activity in Chile,
Uruguay, and later in Argentina can be seen as a moment where human rights activists, closed off from domestic institutions by authoritarianism and repression, tried to create new international opportunities within existing international and regional human rights organizations. So, for example, Chileans managed to open new international space in the UN Commission on Human Rights and in the General Assembly to work explicitly on human rights in Chile. The Chilean case was the first time the UN responded to a human rights situation that was not seen as a threat to international peace and security, through country‐specific resolutions, requests for on‐site visits and for a country rapporteur.
[8]
Uruguayan human rights activists took advantage of the fact that Uruguay had ratified the Covenant on Civil and Political Rights, and its first Optional Protocol, giving Uruguayan citizens the right to bring complaints before the UN Human Rights Committee. In its early years, the Human Rights Committee decided more cases against the Uruguayan government than
against any other government in the world.
[9]
Argentine human rights activists were especially active in the Inter‐American Commission on Human Rights
(IACHR). The IACHR did its first major country report, based on an on‐site visit, on Argentina. Likewise, when the Argentine government with the support of the USSR blocked demands for country‐specific actions within the UN Commission on Human Rights, Argentine activists and their allies helped create the Working Group on Disappearances, the first such procedural mechanism that would later become a staple of UN human rights activity.
In the case of Uruguay, the decision of the (democratic) Uruguayan government to ratify the Optional Protocol to the ICCRP before the coup created an international opportunity structure that was not open to the other countries. Chilean human rights activists, on the other hand, taking advantage of the situation in the UN where they had the support of both the Soviet Union and the United States (after Carter took office in 1977) were able to help create international political opportunities within the
UN Human Rights Commission and the General Assembly for condemnation of the Chilean regime that were not open to other countries without this broad support. Argentine human rights activists worked closely with the IACHR to provide testimony for its path‐breaking country report on Argentina. Essentially, these groups took a situation where both domestic and international institutions were closed to them and converted it into a situation where at least some international and regional
political opportunities were more open to their demands.
Not surprisingly, virtually all moves towards accountability for past human rights violations have happened after transitions to democratic or semi‐democratic regimes (thus the name transitional justice). Transition to democratic rule would appear to be a necessary condition for establishing accountability for past human rights abuses, but not a sufficient condition. The nature of the transition itself also influenced whether or not activists were able to demand more accountability. Because the Argentine military regime collapsed after its defeat in the Malvinas/Falklands War, the armed forces were not able to negotiate the conditions of their exit from power.
After the elected government of
Raul Alfonsín came into office in 1983, one of its early moves was the establishment of a truth
commission, the National Commission on the Disappearance of
Persons, or CONADEP. This was the first important truth commission in the world, and provided a model for all subsequent truth commissions. The
CONADEP report, entitled
Nunca Mas
, was the first published truth commission report. The title has since become a slogan and a symbol of
the transitional justice movement. The CONADEP report, now in its fifth edition, has been constantly in print in Argentina since it was issued in 1985 and has been translated into English and published in the United States.
[10]
The
Alfonsín government might have been satisfied with the path‐breaking truth commission report, but the human rights movement continued to push for trials. The government first gave the task of trials to the armed forces themselves, but when they failed to make even a minimum good faith attempt at prosecution, the trials were transferred to a civilian court. The trial (
El Juicio a las Juntas
, as it is known in Argentina) of the nine commanders in chief of the armed forces who had been the members of the three
military Juntas that ruled Argentina was as path‐breaking as the truth commission had been. It lasted almost an entire year in 1985, was attended by large numbers of members of the public and the press, and produced a vast historical record.
[11]