The Reparative Effects of Human Rights Trials

Lessons From Argentina

Rosario Layus

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351627627
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Justice in domestic courts is one of the most prominent aims of victims seeking to obtain accountability for human rights violations. It is, however, also one of the most difficult to achieve. In many Latin American countries, as well as elsewhere, activists have put human rights prosecutions forward as a fundamental means to end impunity, build democracy, strengthen the rule of law and address victims' rights. But there is still little knowledge about what actually happens when these judicial mechanisms are effectively put to work. Can prosecutions of mass human rights violations contribute to overcome the effects of state violence and impunity? Can trials enable meaningful reparative changes for victims in their local contexts? Analysing the human rights trials in Argentina established to prosecute those responsible for human rights violations during the military dictatorship, this book addresses how and why domestic prosecutions can operate as a means for reparation and contribute to dealing with the damage caused by crimes against humanity. Based on a series of interviews conducted with victims participating in these prosecutions, as well as with lawyers, prosecutors, judges and other relevant actors in five provinces of Argentina, this book will be of considerable interest to those studying and working in the interdisciplinary field of transitional justice and human rights. The PhD thesis on which this book was based was awarded with the 2016 Doctoral Studies Award of the Philipps University of Marburg in Germany.

Part I

Theoretical approaches to reparative criminal justice

Chapter 1

Justice and reparation of human rights violations

This chapter proposes some theoretical framings in order to understand why trials can work as a reparation mechanism. A cursory glance at the literature on human rights prosecutions reveals three features. First, studies on the effects of human rights trials in domestic courts are very scarce. Most focus on international or hybrid tribunals, their dynamics, the advances they have achieved in terms of international law, and their incorporation of international law into domestic norms; the impact and effects of such trials remain under-researched. Second, the few examples of such scholarship on the scope and effects of human rights trials focus mainly on their impact on legal norms and institutions, usually from a quantitative perspective (see e.g. Olsen, Payne and Reiter 2010; Sikkink 2011; Collins, Balardini and Burt 2012), but not sufficiently on their reparative function. In turn, those studies that understand domestic trials as an appropriate state-sponsored instrument to redress victims provide a well-intentioned approach but without enough empirically based results to support their conclusions. Third, among those authors concerned with the implications of transitional justice initiatives – not only trials – there is a very narrow view of the effects of criminal prosecutions on the victims of mass human rights violations. Indeed, many scholars have excluded tribunals as an appropriate mechanism for granting reparation to victims, arguing that criminal justice focuses on punishing perpetrators (Zehr 1990; Walgrave 2003). Advocates of restorative justice initiatives (e.g. truth and inquiry commissions) question the reparative function of criminal trials by claiming that there are greater benefits in other alternatives, where punishment of perpetrators is excluded (McElrea 2013; Mallinder 2013).

This chapter addresses these research gaps and provides alternative theoretical approaches in order to understand how and why human rights trials can enable a process of reparation for victims. In Section 1, I outline the contributions and limitations of the existing literature on the impact of human rights trials as well as the arguments for and against retributive justice. In Section 2, I analyse the concept of reparation (which is used in international legislation but also discussed by several scholars specialised in the field), and the three different types of reparation provided by human rights trials: civic, personal and social. Finally, in Section 3, I address different theoretical approaches to the power of law and why it has the potential for reparative effects on the victims of mass atrocities. An understanding of the functioning of the law in society is fundamental to seeing why trials can work as an effective instrument for the redress of victims’ harm and rights.

1.1 Research on human rights prosecutions

An overview of the existing scholarship on criminal trials dealing with human rights violations at international and domestic levels and a discussion of its contributions and gaps reveal how little has been written about the reparative effects of domestic human rights trials. This can be due to the fact that it is indeed a relatively new field. Since the deployment on a large scale of domestic justice for past human rights violations is itself a recent phenomenon with most of the cases – though not only – concentrated in Latin American countries (e.g.: Chile, Argentina, Perú, Colombia and Guatemala), empirical evidence has to date been scarce.

1.1.1 The post Second World War trials

From a historical perspective, much focus has been placed on the scope of trials: What, for instance, are trials supposed to achieve and what are they not? These debates go back to the immediate period after the Second World War in Europe. It was not until then that war criminals were held accountable for their crimes. The Nuremberg trials (1945–1946) tried 22 leading Nazi officials, acquitting three of them. Twelve of the defendants received the death sentence. In Tokyo, Japanese war criminals were prosecuted in a similar manner. The legacy of Nuremberg was very important for further judicial developments since it was the first serious attempt to punish individuals for such crimes. In fact, the Nuremberg trials are generally seen as the starting point of a worldwide human rights movement. They inspired such justice endeavours as the Eichmann trial in Jerusalem in 1961 and the Holocaust trials in France in the 1980s.

However, in none of these cases were trials seen as an instrument to redress victims. Their scope has been reduced to the allocation of individual responsibility of perpetrators. One of the most influential scholars advocating for the limited role of prosecutions was Hannah Arendt. In Eichmann in Jerusalem: A Report on the Banality of Evil, Arendt insists that the purpose of trials is to render justice and nothing else. According to her, the main function of trials is to administer justice, understood as determining the guilt or innocence of an individual, and to punish the guilty (1964). Also Tzvetan Todorov (1996), when referring to the successive trials of Paul Touvier in France in the 1980s and 1990s, stresses that prosecutions should only focus on the trials of the accused. According to these scholars, the law should not attempt to have other functions than prosecution. Other potentialities of trials, such as restorative outcomes or the reconstruction of history, would not apply to the judicial processes. These debates did not consider justice as a form of reparation for victims.

1.1.2 The transitional justice approach

From another perspective, one of the main approaches to human rights trials is that of transitional justice (hereafter TJ). This perspective analyses the relationship between political changes or transitions and judicial initiatives, that is to say, how the nature of a political transition can influence the modality of the trials to be implemented (e.g. O’Donnell and Schmitter 1995; Huyse 1995; Teitel 2000; Hayner 2002; Arthur 2009; Olsen, Payne and Reiter 2010). The TJ approach often considers the introduction of “special” justice measures in the period immediately after a change of regime. In their focus on the immediate transitional period, scholars have tried to identify what factors may activate, promote and/or hinder the early adoption of domestic criminal trials for human rights violations committed by previous regimes. Political science approaches have tended to emphasise factors of path dependency and political agency such as how the previous regime ended, the balance of power at the time of transition (Binningsbø, Elster and Gates 2005; Lie, Binningsbø and Gates 2007), the role played by elites, (Huntington 1991; O’Donnell and Schmitter 1995; Posner and Vermeule 2003), the duration of the period of illegal repression (Huyse 1995), the level of popular support for the new regime (Gloppen 2005), the nature of the ideological preferences of the political elite, the political commitments of the new regime (Barahoma de Brito, Gonzalez-Enriquez and Aguilar 2001), the increasing involvement of domestic non-governmental organisations (Collins 2006), the influence of transnational actors, international courts and networks (Risse 1995; Sikkink 1993; Sikink 1998; Finnemore and Sikkink 1998; Keck and Sikkink 1998; Risse and Sikkink 1999; Call 2004; Collins 2006; Hafner-Burton, Tsutsui and Meyer 2008; Burt 2009), and bilateral and multilateral foreign policy sanctions (Lutz and Sikkink 2000). Given their date of production, the early examples of this literature were primarily focused on decisions made about trials (or other mechanisms such as truth commissions) right after a political transition had occurred (O’Donnell and Schmitter 1995; Huntington 1991; Huyse 1995; Zalaquett 1995). These approaches left largely unexplored questions about the likely future evolution and effects of judicial policies and practices in what some would describe as “post transitional contexts” (Collins 2010), or at least, contexts where formal regime change or cessation of open hostilities took place decades ago. Such is the case in present-day Argentina, where formal political transition took place in 1983, as in much of the rest of the Southern Cone of Latin America, which also emerged from periods of military dictatorship through the course of the 1980s (or in the case of Chile, in the 1990s). In this sense, the recent trials for crimes committed by the military in Argentina offer a useful opportunity to observe the effects at a significant distance in time after the change from a dictatorial to a constitutional regime, in the context of continuous reworking and renegotiation of initial transitional settlements. In the case of Argentina, it should be noted that the current prosecutions are not considered by their main actors – witnesses, plaintiffs, attorneys, prosecutors, judges, etc. – as an instance of TJ. Even though many scholars have tried to classify the ongoing human rights trials as such, this labelling is a critical point. While mechanisms of TJ are regarded as special, temporary and extraordinary, and trials are seen as just one option among others, the Argentine trials are being conducted in regular and domestic institutions of the local criminal justice system. As a matter of fact, most of my interviewees, with the exception of some judges and lawyers, did not even know what the concept of transitional justice means (Figari Layús 2015).

1.1.3 The debate for and against prosecutions

The analysis of the reparative repercussion of prosecutions is highly relevant since scholarship on this field is scarce. In order to gain a better understanding of the advances but also the gaps in research on the impact of these trials, I will briefly summarise the most relevant works produced so far on the effects of prosecutions at international and domestic levels.

In the first place, one should note that there are important debates among those scholars who argue in favour of the positive impact of trials, in both international tribunals and domestic courts, and those who oppose them and question their scope and effects. Authors stress, on the one hand, that trials are not as effective as other justice mechanisms due to their limited scope on individual perpetrators and responsibility. The focus of trials on individual criminals responsible for ordering or carrying out acts of mass violence would not address all the responsibilities involved: particularly, perhaps, the systematic quality of those violations and/or state instigation or complicity (Arendt 1964; Malamud-Goti 1996; Hayner 2002; Drumbl 2005). On the other hand, scholars such as Forsberg assert that “there is little evidence that prosecutions and forgiveness perform any better than forgetting” (2003, 68). By trying to challenge these critical perspectives on the scope and efficiency of trials, Katryn Sikkink identifies in the literature four repeated assumptions in terms of their possible negative impact: 1) trials would destabilise democracy and lead to new military coups, 2) prosecutions would increase human rights violations, 3) trials would prolong violence or conflict, 4) prosecutions would impede the consolidation of the rule of law (Sikkink 2011, 142). Similarly, Samuel Huntington argues “[D]o not prosecute, do not punish, do not forgive, and above all, do not forget” (Huntington 1991, 231). Underlying this statement is the concern that efforts to prosecute the military in the midst or right after a negotiated transition to democracy might result in the military re-entering politics. Taking power again in the face of prosecution, military leaders would then be even more reluctant to return power to a civilian administration and might react violently in an effort to avoid being brought to court (Roehrig 2009, 723). Rather than risk any of these problems, others argue that civilian governments should choose to avoid prosecutions (Neier 1990). Leslie Vinjamuti and Jack Synder identify this stance as the “pragmatist approach,” noting that “the consequences of trials for the consolidation of peace and democracy trump the goal of justice per se, since the future prospects for justice depend on the establishment of social peace and unshakeable democratic institutions” (2004, 353). Other scholars argue that justice has to be sacrificed in order to establish the truth about the past (Hayner 2002; McElrea 2013; Mallinder 2013). The “justice versus truth” model corresponds to the politics implemented in South Africa and Colombia, where in exchange for full confessions, perpetrators received reduced or lower sentences or no punishment at all (Laplante and Theidon 2007; Figari Layús 2010). As I show in the next chapters, in Argentina, as well as in several other cases such as Colombia, reduced sentences or the total absence of punishment have not guaranteed that perpetrators would tell the whole truth about their crimes. Finally, those who oppose prosecution usually maintain that a successful transition to democracy requires a society to move on from a horrible past and seek reconciliation between victims and perpetrators (Ibid., 724). According to these authors, prosecutions open old wounds and increase the desire for retribution, both of which make it more difficult to create consensus and a functioning democracy (Huyse 1995, 63).

On the other hand, those who are in favour of prosecutions and the so-called legal paradigm consider the use of law as the most appropriate tool to provide reparation for the victims. Many scholars and activists conceive trials and the right to justice as the centrepiece of social reparation in response to victims’ rights and needs (Beristain 2009, 33; Edelman 2010, 107; Lagos 2010, 116; Bekerman 2010, 131), in an effort to promote the rule of law after mass atrocity (Roht-Arriaza 1990; Orentlicher 1991; Sikkink 2011). According to them, trials may contribute to rebuilding communities after mass atrocities by attempting to: 1) discover and publicise the truth of past atrocities; 2) punish perpetrators, thereby producing a deterrent effect, preventing future human rights abuses; 3) respond to victims’ needs or wishes; 4) promote the rule of law in emerging democracies; and 5) promote reconciliation (see De Greiff 2008; Sikkink and Booth Walling 2007; Van Boven 2005; Orentlicher 1991 and Roht-Arriaza 1990 for a representative sample of these views).¹ Moreover, according to Juan Méndez, allowing military leaders to escape justice fosters an impunity that “will only encourage new abuses in the near or distant future” (Mendez 1997, 3–4). In recent years, especially in Latin America, there has been a greater consensus on the positive effects of properly conducted human rights trials (Kordon et al. 2010; Sikkink 2011; Collins, Balardini and Burt 2012). In this respect, Diana Orentlicher suggests that when trials are initiated by domestic regimes instead of international courts, the government’s willingness to hold wrongdoers accountable signals to citizens that the country is entering a period of reform (1991).

One of the main contributions about the institutional consequences of domestic trials, from a quantitative perspective, is the series of studies by Kathryn Sikkink and other scholars on what they call a “justice cascade,” meaning the increase of criminal accountability for human rights violations worldwide (Lutz and Sikkink 2000; Sriram 2005; Sikkink and Booth Walling 2007). Sikkink and others such as Chandra Lekha Sriram have acknowledged and documented the growing deployment of trials for mass atrocities in diverse countries. This increase in prosecutions was even described by Sriram as a “revolution in accountability” (Sriram 2005). As for the concrete effects of prosecutions, Sikkink has analysed the impact of domestic trials in different countries and evaluated whether the growing number of trials is actually associated with positive developments in democracy and indices of human rights (Sikkink 2011). Using a quantitative approach, they demonstrate that prosecutions can indeed have positive effects on human rights practices and in promoting democracy. These scholars perceive a growing normative consensus away from blanket amnesty or impunity and towards the inclusion of some dimensions of judicialisation. This shift would be mainly attributed to the national adoption of international norms in favour of prosecutions and human rights norms. However, this “internationalist perspective” underestimates local or national factors such as power configurations and the fight of the local human rights movement and victims, as well as other efforts by civil society to promote memory and justice. From a different perspective and focusing on Chile, Cath Collins (2013) shows that domestic trials have, at least partially, “educated” judicial personnel and contributed to the incorporation of international human rights standards into Chilean judicial practice and the legal framework to deal with mass atrocities (2013, 77–80).

All these works provide a strong motivation for the analysis of trials. However, most of them do not analyse the reparative function of prosecutions on victims in national settings. In order to analyse why and how judicial accountability dealing with mass human rights violations can be reparative, it is necessary to explain what the concept of reparation means in general and in particular in relation to human rights trials.

1.2 What does reparation mean?

Traditionally, reparations consist of administrative or judicial proceedings providing monetary compensation to redress harm resulting from an unlawful act that violates the rights of a person (García-Godos 2008; Laplante 2014). However, the meaning of reparation has expanded in the last decade. Recent international legislation and academic scholarship define “reparation” as a set of material and symbolic modalities of redress for victims of human rights violations (Shelton 1999, 2006; Van Boven 2005; De Greiff 2008; Beristain 2009). International law has established an obligation on the state to provide redress to victims of human rights abuses. One of the best known and most comprehensive documents is Theo van Boven’s UN Basic Principles and Guidelines (2005). The Basic Principles provide a framework predicated on a growing body of jurisprudence concerning the right to reparations.

Van Boven’s guidelines outline four forms of reparation: 1) restitution, 2) compensation, 3) rehabilitation and 4) satisfaction and guarantees of non-repetition. Van Boven clearly understands the notion of reparation in a wider sense than the mere pecuniary one. According to the Basic Principles, the victim’s right encompasses among other things (a) access to justice (Section VIII) and (b) access to factual information concerning the violations (Section X). The right to justice is also recognised as an important form of symbolic reparation. The modalities of reparation can have multiple meanings according to the consequences of state violence in a particular context. For that reason, it is essential to undertake an analysis of the local scenario in order to know what might be considered as a reparative outcome in that case.

From the experience of Argentina, it is possible to see a more expansive vision of what prosecutions can achieve in terms of reparation in terms of reparation, going beyond the traditional narrow concepts of retributive justice or monetary compensation. Trials contribute to a new concept of reparation: reparation as change. This concept implies a change in victims’ lives which is perceived by them as positive. In order to be reparative, that change should modify those legal, political and social conditions that either generated the original violence or perpetuated victimisation over time. Impunity was one of the main conditions preventing such change in Argentina. This change also depends on the perceptions and social reality of t...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Illustrations
• Acknowledgments
• Abbreviations
• Introduction: “small victories”
• Part I Theoretical approaches to reparative criminal justice
• Part II Implications of state terror, limited justice and impunity for victims of human rights violations
• Part III Reparation through domestic human rights trials
• Bibliography
• Annex: list of interviews
• Index