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Justice and a Lack Thereof: Comparative Perspectives on Accountability in the Southern Cone

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Justice and a Lack Thereof: Comparative Perspectives on Accountability in the Southern Cone W&M ScholarWorks Undergraduate Honors Theses Theses, Dissertations, & Master Projects 2013 Justice and a Lack Thereof: Comparative Perspectives on Accountability in the Southern Cone Elsa M. Voytas College of William and Mary Follow this and additional works at: https://scholarworks.wm.edu/honorstheses Part of the International Relations Commons Recommended Citation Voytas, Elsa M., "Justice and a Lack Thereof: Comparative Perspectives on Accountability in the Southern Cone" (2013). Undergraduate Honors Theses. Paper 622. https://scholarworks.wm.edu/honorstheses/622 This Honors Thesis is brought to you for free and open access by the Theses, Dissertations, & Master Projects at W&M ScholarWorks. It has been accepted for inclusion in Undergraduate Honors Theses by an authorized administrator of W&M ScholarWorks. For more information, please contact [email protected]. Justice and a Lack Thereof: Comparative Perspectives on Accountability in the Southern Cone A thesis submitted in partial fulfillment of the requirement for the degree of Bachelors of Arts in International Relations from the College of William and Mary by Elsa Marya Voytas Accepted for ____________________________________ (Honors) Professor Maurits van der Veen, Advisor International Relations & Government Departments College of William and Mary Professor Michael Tierney International Relations & Government Departments College of William and Mary Professor Betsy Konefal History Department College of William and Mary Professor Donald Campbell Economics Department College of William and Mary Williamsburg, VA May 2, 2013 2 ACKNOWLEDGEMENTS The completion of this honors thesis was possible only with support and encouragement from a great number of individuals to whom I am indebted. I would like to thank Professor Maurits van der Veen for his service as my thesis advisor and his unwavering support, guidance, and assistance not only in writing my thesis, but throughout my undergraduate career at William and Mary. His help has made writing my thesis a rewarding process, and his teaching has largely aided my intellectual development. I am also grateful to Professor Michael Tierney for convincing me to come to William and Mary and providing mentorship as soon as I arrived on campus. I am indebted to him for fostering my interest in international relations and providing me a wealth of opportunities academically and otherwise. I would also like to thank Professor Betsy Konefal for helping me cultivate a passion for human rights trials in Latin America and her guidance over the years. Additional thanks to the International Relations department at William and Mary, Swem Library for granting me an individual study room, Professor Don Campbell for serving on my examining committee, Nuria Peña at SIT for helping me conduct research in Argentina, and to those I interviewed in construction of this thesis, from Buenos Aires to Brussels. Finally, I would like to extend my gratitude to my parents, Karen and Bob Voytas, for continued support and encouragement, to Althea Lyness for her assistance in proofreading and brainstorming, to Professor Dan Cristol for constant advising as an 2 undergraduate, and to my brothers, Luke, Evan, and Gabe who are the best friends anyone could ask for. 3 ABSTRACT Brazil and Argentina, despite geographic proximity and similar histories of oppressive military dictatorships, have pursued decidedly different policies toward judicial accountability for crimes committed during the regime period. In Brazil, amnesty persists, while in Argentina, prosecutions started in 2005. These opposing policies beg the question: what factors determine the introduction and persistence of amnesty laws in a post-conflict reconstruction process? This paper uses comparative case studies to investigate the impact of the type of transition a society undergoes, as well as the role of the judiciary, the executive, human rights organizations, external actors, and public opinion in predicting a country's approach to justice for former offenders. The results suggest that the role of the executive and judiciary are of primary importance in abrogating or affirming amnesty, while human rights organizations and external actors can play a substantial role in establishing accountability if they are able to influence decision-making bodies. More fundamentally, the factors explaining why amnesty is introduced and maintained are interconnected, and a combination of forces are necessary to establish individual accountability measures. CHAPTER 1: INTRODUCTION The concept of transitional justice has garnered the attention of scholars, public officials, and citizens in post-conflict societies. The process of transitional justice has increased since the second world war. Now, more countries embark on a process of transitional justice following political transformation, a series of measures that often, though not always, includes trials of former offenders. Historically, neither institutional mechanisms to ensure accountability nor amnesty laws, granting blanket impunity, existed in post-conflict society; war criminals and their human rights violations were unaddressed in new democracies. Today, however, it is both possible and common for a perpetrator of crimes against humanity to be held individually accountable in an international or domestic context. Although international attempts at accountability in 4 post-conflict scenarios have been attempted since 1815, their efforts toward justice were typically fruitless.1 But, over time, things changed considerably. In a striking example of individual accountability, on September 5, 2003, Dragan Nikolic pleaded guilty to gruesome human rights violations committed during the 1992-1995 Bosnian War.2 Nikolic admitted personally taking part in brutalities against prisoners at the Susica detention camp, including committing numerous murders, employing ax handles to beat prisoners, and allowing Serbian soldiers and guards to abuse and rape Muslim women and girls every night.3 Mr. Nikolic was the 11th person to plead guilty at the International Criminal Tribunal for the Former Yugoslavia in the Hague, but his guilty plea stood out. Mr. Nikolic had been the first man indicted by the tribunal in 1994 and was not captured until six years later in 2000 when he went to trial and pleaded not guilty. At his 2003 trial, however, the outcome was quite extraordinary. For nearly 30 minutes, the German judge Wolfgang Schomburg read the full text of Nikolic’s indictment, pausing after each paragraph and asking Nikolic to affirm its correctness. Repeatedly, after each gruesome account of crimes against humanity, Nikolic reasserted that he had indeed committed them, responding “Correct” or “Yes, your honor” at Judge Schomburg’s pauses.4 Trials like Nikolic’s have become more routine since the end of the Cold War. Holding perpetrators of human rights abuses individually accountable through trials poses a stark contrast to previous policies of overlooking past war crimes. This “new age of 1 Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, (Princeton: Princeton University Press, 2000), 5. 2 Marlise Simons, “Serb at Hague Pleads Guilty to Brutalities,” New York Times, September 5, 2003, accessed March 31, 2013, http://www.nytimes.com/2003/09/05/world/serb-at-hague-pleads-guilty-to- brutalities.html. 3 Simons, “Serb at Hague.” 4 Simons, “Serb at Hague.” 5 accountability,” as UN Secretary Ban ki-Moon has dubbed it5, has reached every region of the world and has become entrenched in international conventions; nonetheless, amnesty laws and the impunity they ensure are also common among post-conflict communities. This thesis will investigate why some countries pursue accountability while others promote amnesty. In this introduction, I will provide a brief compendium of transitional justice and address trends in legal norms regarding personal accountability. I will address the increased presence of individual accountability for human rights violations and this concept’s presence in international treaties. Further, the many outlets for carrying out accountability measures will be explained. This discussion will form the backdrop of qualitative case studies of Argentina and Brazil, both of which transitioned to democracy in the 1980s. Argentina and Brazil have conflicting policies toward accountability despite sharing a similar history of human rights violations by oppressive military regimes. Transitional Justice Transitional justice can be defined as “the process by which societies move either from war to peace or from a repressive/authoritarian regime to democracy while dealing with resulting questions of justice and what to do with social, political, and economic institutions.”6 Through her empirical research of states in the midst of transitional justice processes, Wendy Lambourne identifies four key forms of justice: truth, socioeconomic, 5 Ban Ki-moon, “The Age of Accountability,” UN Chronicle, 2010, accessed February 10, 2013, http://www.un.org/wcm/content/site/chronicle/home/archive/webarticles2010/The_Age_of_Accountability. 6 Joanna R. Quinn, Reconciliation(s): Transitional Justice in Postconflict Societies (Montreal: McGill- Queen’s University Press, 2009), 3. 6 political, and accountability.7 Truth refers not only to fact-finding attempts, but also to offenders acknowledging their responsibility in the conflict and how it impacted society in order to best aid the reconciliation process.8 The process of obtaining the truth is perhaps
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