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University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1995 Truth as Justice Investigatory Commissions in Latin America Naomi Roht-Arriaza UC Hastings College of the Law, [email protected] Margaret Popkin Follow this and additional works at: https://repository.uchastings.edu/faculty_scholarship Recommended Citation Naomi Roht-Arriaza and Margaret Popkin, Truth as Justice Investigatory Commissions in Latin America, 20 Law & Social Inquiry 79 (1995). Available at: https://repository.uchastings.edu/faculty_scholarship/1175 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Truth as Justice: Investigatory Commissions in Latin America Margaret Popkin and Naomi Roht,Arriaza In recent years, Latin American countries have sought to come to terms with prior periods of widespread human rights violations, relying increasingly on investigatory commissions. Investigatory efforts have been undertaken by democratically elected governments that replaced military dictatorships, by UN,sponsored commissions as part of a UN,mediated peace process, and by national human rights commissioners. This article examines truth commis, sions in Chile and El Salvador, an investigatory effort in Honduras, and a proposed commission in Guatemala. It compares the achievements and limi, tations of these commissions within the political constraints and institutional reality of each country, focusing on four major goals: the effort to create an authoritative account of the past; vindication of victims; recommendations for legislative, structural, or other changes to avoid repetition of past abuses; and establishing accountability or the identity of perpetrators. In the past 15 years a growing number of countries have tried to come to terms with periods of widespread human rights violations, during which national institutions failed to address rights abuses. Increasingly, coming to terms has involved the constitution of investigatory commissions, often known as "truth commissions." These may be ad hoc commissions ap, pointed by the executive or by parliament, international commissions under United Nations (UN) or regional auspices, or those operating under a more permanent national structure like an ombudsman's office. Such commis, Margaret Popkin is a fellow at the Washington Office on Latin America. Naomi Roht,Arria%a is an assistant professor of law at Hastings College of Law, University of California. The authors thank Professor Party Blum for her insightful comments on an earlier draft. Some material for this article is taken from N. Roht-Arriaza, ed., Impunity and Human Rights in International Law and Practice (New York: Oxford University Press, 1995). © 1995 American Bar Foundation. 0897-6546/95/2001-0079$01.00 79 80 LAW AND SOCIAL INQUIRY sions have been constituted in at least 15 countries in the last 20 years. l In South Africa, in Haiti, in Guatemala, the creation of a truth commission tops the list of proposed measures for looking into past abuses. In the Balkans and Rwanda, although attention has focused on an international tribunal, commissions of inquiry were also created to gather the facts needed for subsequent prosecutions. Indeed, the truth commission model has be~ come so well known that it runs the danger of being perceived as something of a panacea rather than as one of a panoply of measures needed to under~ take the complex process of coming to terms with the past. This article looks at several investigatory commissions in Latin America and evaluates what they did, why they did it, and how successful they were at meeting their own stated and implicit goals. We look at the truth commissions of Chile and EI Salvador, a "truth commission"~like in~ vestigatory effort in Honduras, and a proposed commission in Guatemala. We evaluate the commissions by looking at four major, and overlapping, goals: creating an authoritative record of what happened; providing a plat~ form for the victims to tell their stories and obtain some form of redress; recommending legislative, structural, or other changes to avoid repetition of past abuses; and establishing who was responsible and providing a measure of accountability for the perpetrators. Regarding these objectives, we con~ sider how well each commission has done, which have taken precedence, and why.2 Part I sets out the context for the establishment of truth commis~ sions in Latin America, while Part II talks about the specific commissions. Part III evaluates the way each commission satisfied each of the goals dis~ cussed above. Part IV concludes by comparing the goals and exploring why the commissions focused their work as they did. 1. For the most exhaustive list and description to date of truth commissions, see Priscilla B. Hayner, "Fifteen Truth Commissions-1974 to 1994, A Comparative Study," 16 Hum. Rts. Q. 597 (Nov. 1994). 2. It is difficult to assess the "success" of an investigatory commission in meeting these goals, at least in the short term. Its impact on a society and even its success on its own terms may well depend on the passage of time and the accretion of historical memory. Thus the impact of a commission's work may be perceived far differently now than 20 years hence. Moreover, the same constraints and possibilities that arise from the social context and polit~ ical culture and influence the choices made in serting up a commission are likely to determine the extent of follow-up to it-and may also dicrate the limits to its success. Thus it becomes virtually impossible to disentangle these "background" effects from the choices made by the commissions. Still, perhaps a measure of how well the commission met its goals is the extent to which its work ameliorated, or at least altered, these same background conditions. On the other hand, a "successful" commission may be more a reflection of favorable background conditions than of anything the commission does. In any case, while we recognize that the choices made about the content and method of the work of such a commission are not unconstrained, we believe that such choices exist and that different designs may produce different outcomes even within a similar set of constraints. We hope, therefore, that our exploration may prove useful to those in other countries who are beginning to grapple with the issues of truth ana justice in the context of successor regimes or negotiated settlements. Truth as Justice 81 I. TRUTH COMMISSIONS IN LATIN AMERICA 'f -1 Truth commissions in Latin America have been formed in two kinds of circumstances. In the first, civilian governments have replaced formal or de facto military dictatorships. During the period of military rule, real or per, ceived government opponents were summarily killed, jailed, and tortured by the security forces and their allies. The scope and severity of human rights abuses led to demands on the new government for an accounting of the human rights violations of the prior regime. Chile and, to a lesser extent, Honduras fit this mold.3 In the second scenario, demands for investigation have arisen in the context of a negotiated end to civil wars-wars that were themselves largely an outgrowth of frustration with exclusionary political and economic poli, cies.4 Aside from the summary execution, torture, or forced disappearance of those considered subversives, Latin American militaries carried out mas' sacres of peasant communities as part of their counterinsurgency strategy.5 By the time these conflicts were settled, a civilian government already ex, isted, but military domination continued and large sectors of the population were still excluded from the political process. EI Salvador and Guatemala fit into this category. In both these scenarios, several factors encourage governments to choose the truth commission as the centerpiece of its efforts to confront the past. First, the need for "truth" is related to the types of violations commit, ted under the former regime or during a period of war. While most people had at least some inkling that human rights violations were occurring, the nature of the violations themselves-especially of disappearances and kill, ings by anonymous "death squads" -entailed secrecy and deniability. The phenomenon of "disappearances" was a particularly nefarious aspect of the military regimes: people were picked off the streets or from their homes, often by armed plainclothesmen, and never seen alive again. The detention was never acknowledged; the only clue family members had of the fate of those disappeared was the periodic appearance, in some countries, of muti, lated, often unidentifiable bodies along roadsides. When killings were offi, cially acknowledged, they were dismissed as the work of "subversives" or, at 3. Argentina, not discussed here, also fits into this type of situation. The Argentine truth commission (the Sabato Commission) is discussed in, e.g., Hayner, 16 Hum. Rts. Q., and in International Commission of Jurists, "Human Rights in the World: Argentina, the Truth about the Disappeared," 33 Rev. Int'l Commission of Jurists 1-8 (Dec. 1984). 4. See, e.g., Walter LaFeber, Inevitable Revolutions: The United States in Central America (New York: Norton, 1983). ' 5. See, e.g., Ricardo Falla, Massacres in the Jungle, Ixcdn, Guatemala, 1975-1982 (Boul­ der, Col.: Westview Press, 1994) ("Falla, Massacres in the Jungle"); Mark Danner, The Massacre at El Mozote: A Parable of the Cold War (New York: Vintage Books, 1994) ("Danner, Massacre at El Mozote"); United Nations, From Madness to Hope: The 12,¥ear War in El Salvador (Re­ port of the Commission on the Truth for EI Salvador) (U.N. Doc. S/25500; New York: United Nations, March 1993) ("UN, From Madness to Hope"). 82 LAW AND SOCIAL INQUIRY best, the lamentable excesses of wartime, even if the victims were civilians with little or no connection to an armed organization.

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