NYLS Journal of International and Comparative Law

Volume 11 Number 3 SYMPOSIA: 1990 Article 7

1990

PANEL DISCUSSION: CRIME AND PUNISHMENT: ACCOUNTABILITY FOR STATE-SPONSORED MASS MURDER

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Recommended Citation (1990) "PANEL DISCUSSION: CRIME AND PUNISHMENT: ACCOUNTABILITY FOR STATE-SPONSORED MASS MURDER," NYLS Journal of International and Comparative Law: Vol. 11 : No. 3 , Article 7. Available at: https://digitalcommons.nyls.edu/journal_of_international_and_comparative_law/vol11/iss3/ 7

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RUTI TEITEL: As the program indicates, the next panel addresses the issues of punishment, amnesties and pardons. The last ten years have witnessed in Latin America and other regions of the world, transitions from military regimes to democratically elected regimes. This shift has brought a call for a response by the legal systems to the gross abuses of prior military dictatorships and to the massive violations of basic human rights, including disappearances and torture.' This response took the form of trials of military officers in Argentina and other places.2 Amid this call for trials and justice are now heard arguments announcing the need for amnesty, non-punishment and national healing. Instead of each panelist talking about their country's experiences in general, the following questions will be discussed: What did people seek to achieve in the countries where there were trials? What did the trials accomplish? What are the differences between these concepts? What does it mean not to punish? What are the mechanisms other than legal responses? What are the non-national legal responses?

I. ACCOUNTABILITY FOR STATE-SPONSORED HUMAN RIGHTS VIOLATIONS

I would like to start by raising the issue of trials. Earlier today, we heard from our distinguished guests about the need for legal responses, for trials and for an International War Crimes Court. They raised the following question: what is the purpose of prosecuting prior military officers? Since Argentina is the leading example of trial use in Latin America, I would like to address this question to the representatives and commentators of the Argentine system first. Luis (Ocampo), since you just spoke about trials, can you give us some sense of what was and was not achieved by trials and your general comments?

LUIS MORENO OCAMPO: The trials signify a legal response to the illegality. This is especially impressive for the Argentine people because those accused were former presidents, generals and admirals who, generally speaking, are above the law in Argentina. The trials have another dimension; that is, in a country with a history of military coups, the trials were a bridge between dictatorship and a working democracy. It is proof that one can replace the arbitrariness and terror of the totalitarian regime with the justice of the democratic system.

1. See L. WECHSLER, A MIRACLE, A UNIVERSE 3-4 (1990). 2. Id. at 165-67; D. HODGES, ARGENTINA: 1943-1987, at 239 (1986). N.Y.L. SCH. J. INT'L & COMlP. L. [Vol. I I

TEITEL: I want to follow up with Roberto (Garraton Merino) and ask him about the many cases that we do not know about that were initiated by civilians. What about the success or possibilities of those cases initiated by private parties in Chile against the military? What does the future look like in Chile for legal responses to those crimes?

ROBERTO GARRA TON MERINO (TRANSLATION): I will have to give some information concerning the legal realities in Chile at the present time. In Chile, since the beginning of the military dictatorship, trials were carried out against those people who opposed the regime. These trials practically accounted for all crimes committed in Chile. Since the system of violation of human rights presupposes impunity, those who actually commit the crimes suppose that they will never be called to account for them. In fact, the question is not one of crimes committed but, rather, one of what positive contribution must be made for the welfare of the country. Despite the fact that much evidence has been collected, trials have not yielded great or even good results. Unfortunately, the Chilean Supreme Court and the military tribunals do not care about the quality of the evidence when they try those who opposed the regime. But when it comes to trying the military, they become very precise and they demand exact evidence. In the murder of a friend and companion of mine, it was known before his body was found that he was detained with other people in an unknown location. Some of the other prisoners stated that they were held captive and blindfolded. In addition, they testified that they were tied to a column, which they claimed was two inches in diameter. The court, however, found that the testimony was invalid because the column was not two inches in diameter but rather only an inch and a half. This is why we have been unable to achieve any positive results. But there is another problem-a problem of a legal nature. In 1978, the dictatorship adopted an amnesty law that covered all crimes. 3 However, they insisted on one condition: the law would apply solely to those crimes whose perpetrators were unknown, that is, the crimes they committed for which the dictatorship was responsible. 4 This law is in force and is applicable to any incident that occurred before 1978.' For those incidents occurring after the enactment of the amnesty law, there is no amnesty.' The program, as it was put together during the campaign of the democratic government, proposed that the democratic

3. Rosenberg, Fall of the Patriarch, NEW REPUBUC, Dec. 18, 1989, at 20. 4. Id. 5. Id. 6. Politzer, Chile Chooses a President, NATION, Dec. 25, 1989, at 781. 1990] PANEL DISCUSSION government, through the Congress, would abolish the amnesty law. Those of us who put forth that proposition expected to win a majority in both houses of the Congress. Our expectations were fulfilled in that in the Senate, we managed to elect twenty-two senators while the dictatorship was able to elect sixteen. 7 Unfortunately, the constitution establishes that the president of the nation's previous administration, in other words Pinochet, could name nine additional senators.8 This meant that our majority, twenty-two to sixteen, was converted into a minority of twenty- five to twenty-two. This also meant that what was offered to the people could not be carried out unless the democratic government would violate the law and go against the constitution. The only path remaining to choose was to establish the truth. For acts committed before 1978, a commission will be created similar to the Sabato Commission in Argenti- na, which will seek to clear up the facts. For those acts occurring after 1978, the trials, as they have been carried out thus far, will continue. The government's duty is to put the police to work for the truth and to compel the courts to do justice. But I would like to be frank and acknowledge that the police are the same police that were there before. Consequently, their cooperation is not guaranteed. I would like to convey one final idea, that is, the victims of the violations of human rights have understood the difficulties that we face because we lack a majority in the Senate. They are hurt, not by a government that cannot do what is forbidden by the law, but rather, by the lack of a significant majority of people who will assume to take on the pain and suffering of the victims of human rights abuses.

FELIPE MICHELINI: The criminal trials in Uruguay started just before the national elections of 1984.' However, when the new democratic authorities started working in parliament under the new government, there were only 100 criminal claims still outstanding. This was very few given the number of human rights violations that occurred in Uruguay following the 1973 military coup d'etat. There are many reasons why the number is so small, but that is not the point. The point is that there were very few criminal claims at that time. The only claims asserted were those against well known torturers-whose identity and crimes were known by all of society. The terms of the Comision Nationale stated that there was national agreement on the decision to bring official claims before the judicial

7. Constable, Aluyn's Triumph in Chile Offset by Rightist Gains, Boston Globe, Dec. 16, 1989, at 2, col. 1. 8. See id.; E. BIZZARO, HISTORICAL DICTIONARY OF CHILE 133 (2d ed. 1987). 9. L. WECHSLER, supra note 1, at 167. N.Y.L. SCH. J. INT'L & CoMP. L. [Vol. I1I branch.'0 Since the beginning of these trials, there has been a judicial struggle between the ordinary court and the military court over who had the right to judge these crimes. It took six months for these trials to go to the criminal courts, to call the criminals and to call those that were accused of these crimes. Two and a half years ago, the trial came to the Supreme Court." The Supreme Court decided that, in fact, it was the civil court that had the right to judge these crimes. 12 In any event, the trials stopped working in December 1986. In July 1986, six months after the law of impunity was put into effect, the amnesty law was passed. The law was passed to relieve the obligation of one of the torturers to present himself before the court. It was clear that the goal of the law was to stop any kind of investigation and punishment for these crimes.

TEITEL: I would like to turn to Ken Anderson and ask about Guatemala. Has there been any case of an official brought to trial for human rights violations and are there any other sorts of cases either initiated by the state or civil parties? Are there civil actions in Guatemala?

KENNETH ANDERSON: I am afraid that Guatemala is going to be, in many respects, the nightmare alternative to what is being discussed here. The Guatemalan justice system has had no experience in dealing with human rights cases. I suppose that the fundamental reason for this is that the military has never relinquished its power even though it has been subject to all the elements of democracy. Therefore, all these other questions about alternative forms of punishment are, to a large extent, rendered moot. I think this can be seen in the fact that there simply have been no prosecutions for human rights offenses. There have been occasional hearings, albeit for other kinds of matters and not for human rights violations per se. Thereis a very good reason for the lack of human rights trials-the people running the country, who sit directly behind the civilians, are the military. They do not believe that they have to go through any legal forms; they have granted themselves amnesties. This lack of involvement with human rights does not have to be the outcome anywhere in Latin America. I do not think that Guatemala should be a disheartening example; certainly, it is something that ought to give all of us great pause when we look around and see the efforts to conform to democratic procedures. We ought to skeptically consider the belief that it is better to hold elections and set up democratic procedures

10. But see id. 11. Id. at 167, 214. 12. Id. at 214. 199Ol PANEL DISCUSSION when no compelling reason exists for the military to retire itself. It may turn out that rather than sketching the outlines of democracy and filing in the content later, that in fact we will sketch out the outlines of democracy and leave the military exactly where it is-where it will serve no just purpose whatsoever. The Guatemalan justice system simply has no weight with respect to human rights. It does not abuse human rights; it does not enforce human rights; it has nothing to do with human rights. This is a great tragedy, but I certainly do not blame the judges; would you step into a situation in which you were asked to enforce tights that never existed? Keep in mind, it may cost you your life. For example, a former university student disappeared in Guatemala, and shots were fired at the Guatamalan rural human rights monitor. In addition, the United States recently removed its ambassador because of Guatemala's numerous human rights violations. These ongoing human rights violations are all directly related to the fact that there was never any clean-out of the military. The Guatemalan situation demonstrates that we should be more cautious before deciding that it is better to set up a government that is democratic in form but not in substance.

TEITEL: We now have a flavor of what is going on in the Southern Cone and in Guatemala. I would like to turn now to Professor Garro and his expertise with the inter-American system. What is the status of the obligation to punish any of these countries? Have they agreed to standards?

ALEJANDRO M. GARRO: Legal accountability for past human rights offenses is a formidable challenge presented to post-authoritarian societies seeking to establish, restore or consolidate the rule of law. This subject has emerged as an important topic in international human rights law, primarily in response to a series of general amnesties and presidential pardons granted in the 1980s by Latin American countries, which had the worst records of human rights abuses in the 1970s. Prominent examples of amnesties granted in Latin America include: Chile in 1978,13 Brazil

13. Decree-Law No. 2191, D.O., No. 30042, Apr. 19, 1978 (Chile). The Chilean amnesty law granted amnesty for crimes committed between September 11, 1973, and March 10, 1978, so long as those persons were not under process or convicted. Id. The statute also benefitted persons convicted by military courts after September 11, 1973. Id. For an English translation of this legislation and a description of the scope of this amnesty, see U.N. GAOR (Agenda Item 12) at 63 and Annex XXVIII, U.N. Doc. A/33/331 (1978). Chilean courts interpreted this statute to bar both investigation and punishment. Id. In a case involving the disappearance of 10 persons arrested in December 1976 by the security forces, Appeals Court Judge Carlos Cerda FernAndez indicted a total of 40 persons on charges of illegal association and kidnapping. Id. Included among the accused were N.Y.L. SCH. J. INT'L & COMP. L. (Vol. I11 in 1979,4 Argentina through a series of statutes and decrees adopted between December 1986 and December 1990,'" Guatemala in 1986,6 El Salvador in 19877 and Uruguay in 1986.1' Identification of the

members of the Air Force, carabineros, police forces and civilians. Id. In an appeal brought by four of the accused in September 1986, the Santiago Court of Appeals held that the amnesty law barred the indictments handed down by Judge Cerda and ordered Judge Cerda to close the file. Id. On October 6, 1986, the Supreme Court affirmed. Id. Because Judge Cerda expressed his unwillingness to close the case, the Supreme Court stripped him of jurisdiction in the case and suspended him from the bench for two months at half pay. See ASS'N OF THE BAR OF THE CITY OF N.Y. & OF THE INT'L BAR ASS'N, HUMAN RIGHTS AND THE ADMINISTRATION OF JUSTICE23-28 (1987). In August 1989, the case returned to Judge Cerda so he could issue the final stay and close it permanently. Id. He refused, once again, on the ground that the 1978 amnesty law violated Chile's international obligations. El porqu. Ministro Cerda no dictM el "caiplase" en fallo sobre 10 detenidos-desaparecidos, La Segunda (Santiago), Aug. 2, 1898. The Supreme Court did not take notice of Cerda's opinion until July 1990 and ordered him to stay the case. Id. Judge Cerda refused to do so, and the Supreme Court disciplined Judge Cerda once again in January 1990. Id. 14. Enacted in 1979, the amnesty statute applied to human rights abuses committed by state officials but excluded about 200 government opponents who had committed violent political crimes. N.Y. Times, Sept. 9, 1979, at 21, col. 1. 15. Law No. 23492 of Dec. 24, 1986 [XLVII-A] A.D.L.A. 192-93 (Argen.) ("full stop" law); Law No. 23521 of June 4, 1987 [XLVII-B] A.D.L.A. 1548 (Argen.) ("due obedience" law). On June 22, 1987, in a four to one decision, the Argentine Supreme Court upheld the constitutionality of the "due obedience" law. See [1987-D] L.L. 94. In October- 1989, President Carlos Menem issued blanket pardons to a group of 39 former military officers accused of abusing civilians during the military government, which lasted from 1976 to 1983. Id. He also pardoned 164 officers who allegedly took part in three armed challenges against former President Raill Alfonsin, three convicted of negligence in the 1982 Falklands War and dozens of terrorist suspects. Decrees No. 1002, 1003, 1004 & 1005, B.O., Oct. 10, 1989 (Argen.). In December 1990, another presidential decree covered former presidents Jorge Rafael Videla and Roberto Viola, four other former high- level officials, who were serving long-term sentences, and Mario Firmenich, a former guerrilla leader who was serving a 30-year sentence. See AMERICAS WATCH, TRUTH AND PARTIAL JUSTICE IN ARGENTINA: AN UPDATE 65-70 (1991). 16. Days before leaving office, the military promulgated 08-86, an amnesty for "all people implicated in political crimes and all related common crimes during the period from March 23, 1982 to January 14, 1986." See THE ADMINISTRATION OF INJUSTICE, MILITARY ACCOUNTABILITY IN GUATEMALA 2 (1989) (Washington office in Latin America). 17. A broad amnesty, which was enacted in 1987, immunized Salvadoran government officials and guerrillas from prosecution for past offenses. The amnesty decree, which passed by a vote of 60 to 45, encompasses the following crimes: common crimes in which 20 or more persons participated; crimes connected with armed conflict; crimes committed for political motives; and "crimes against the State," which are described in Articles 373- 80, 400-11 and 151 of the Salvadoran Criminal Code. Decreto No. 805, D.O., No. 199, Oct. 28, 1987 (El Sal.). The Code includes offenses such as terrorism, subversive association, conspiracy and the like. Id. 1990l PANEL DISCUSSION international legal principles governing this issue has become increasingly important as challenges to various amnesty laws are being considered by the Inter-American Commission on Human Rights of the Organization of American States. Admittedly, the question about what should be done about the killers and torturers cannot be reduced to an examination of existing international legal obligations. One must acknowledge at the outset the complex moral and political dimensions of the problem. Pardoning the unforgivable can never be justified on moral grounds, and the political wisdom of freeing the authors of serious human rights violations is highly questionable, especially when such violations conform to a pattern of systematic state- sponsored mass murder. Yet the imperatives of "national reconciliation" and the need to forge constructive civil/military relations have been invoked by governments as a political justification to waive prosecution of death-squad killers and sadistic torturers.19 The allegation that national reconciliation requires staying prosecutions for the previous regime's depredations is highly questionable;' at the same time, however, it is difficult to measure the actual deterring effects of prosecutions. The fact that the destabilizing or deterrent effects of prosecutions are uncertain and closely related to the political circumstances

18. Ley de Caducidad de la Pretensi6n Punitiva del Estado, Law No. 15848 (Law of Peremption of the State's Right to Punish Certain Crimes), Dec. 22, 1986 (Uru.). The Ley de Caducidad terminated the State's power to prosecute and punish military and police personnel responsible for human rights violations during Uruguay's period of military rule and until March 1, 1985. Id. The statute purposefully omitted any reference to the word "amnesty" because several draft amnesty laws had already been rejected by the Uruguayan Parliament, and, according to Uruguayan law, a def