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 Follow this and additional works at: https://digitalcommons.nyls.edu/ journal_of_international_and_comparative_law Part of the Law Commons 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 This Article is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Journal of International and Comparative Law by an authorized editor of DigitalCommons@NYLS. PANEL DISCUSSION 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.