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Francesca Lessa, Ph.D.(LSE), University of OxfordFB38 – Transitional Justice and Human Rights –March 18, 2011 1 N N u u n n c c a a M M á á s s T ThheePPoolliittiiccssoof f T Trraannssiittiioonnaall J JuussttiicceeiinnAArrggeennttiinnaaaannddUUrruugguuaayy11998833--22001100 FB38– Transitional Justice and Human Rights ISA Convention 2011, Friday18 March 10:30–12:15PM Abstract Argentina has been aptly defined as a 'global protagonist' in transitional justice (TJ), because of its pioneering innovations with accountability for past crimes (Sikkink, 2008). Conversely, Uruguay chose a path of amnesty and oblivion in coming to terms with its own past evils. This paper contends that three phases in TJ can be identified in Argentina and Uruguay. In the first, these countries adopted opposite approaches: Argentina established a truth commission and carried out prosecutions, while Uruguay selected oblivion and silence. The second phase sawArgentina and Uruguay's positions becoming increasingly aligned. Initially, both societies witnessed a silencing of any discussion on the dictatorship. Later on, by the late 1990s, they slowly began to warm up to questions of accountability. Only in the early 21st century, these issues forcefully returned to the social and political arenas. During this third and current phase, Argentina and Uruguay adopted similar stances, attempting to explore their pasts from the perspectives of truth, justice and memory. The progression among these phases is explained with reference to several factors, including Presidential leaderships; the attitude of the armed forces; the role of human rights activists; and finally, developments on the international stage. Introduction In 1983, Argentina was one of the first countries to emerge from military rule at the dawn of the era of transitional justice (hereafter TJ). Kathryn Sikkink aptly defines Argentina’s human rights trajectory as one from ‘pariah state to global protagonist’, stressing the remarkable evolution from the years of systematic disappearances in the 1970s to Argentina’s pioneering developments in accountability for past crimes (Sikkink, 2008:1). Conversely, Uruguay −a model of democracy in the region− chose a completely different path in confronting ‘the ghosts of the past’ upon democratization. Uruguay's choice of amnesty and oblivion –so strikingly different from Argentina’s–constitutes an interesting comparison, when juxtaposing various ways to confront ‘past evils’.This fundamental difference begs the question of why almost opposite approaches were adopted when these two countries lived through similar military regimes and experienced comparable types of human rights abuses? Francesca Lessa, Ph.D.(LSE), University of OxfordFB38 – Transitional Justice and Human Rights –March 18, 2011 2 Uruguay’s experience with TJ was very much Uruguayan: negotiations, pacts, concern with stability and governability, and slow and conciliatory attitudes are enduring features of this tiny state. Conversely, Argentina required a clear break with itslong heritage of military interventionism begun in 1930. Former President Raúl Alfonsín clearly underscored the importance of ‘establishing new foundations for an authentic democratic system’, generating new institutions, routines, and novel ways for people to learn to live together (Alfonsín, 1993:15).This papercontends that three phases of TJ in Argentina and Uruguay can be identified over the past thirty years. In the first (mid to late 1980s), Argentina and Uruguay adopted almost opposite approaches. Argentina, under President Alfonsín, initially confronted the inheritance of human rights violations head on, establishing a truth commission and initiating prosecutions. Uruguay, instead, followed the lead of President Sanguinetti, who successfully imposed oblivion and silence regarding the past. In the second stage (covering the 1990s), Argentina and Uruguay’s positions became increasingly aligned: by the early 1990s, a mantle of amnesia had been firmly put in placeregarding the years of military rule and political repression. Or so the respective governments wished: against this backdrop, human rights activists continued to work relentlessly to ensure that the past remained, in some way, ‘present’. The third and current phase began in the 21 st century, when issues of accountability forcefully returned to the social and political arenas. At this time, Argentina and Uruguay started exploring their recent past once again, through the perspectives of truth, justice, reparations and memory. The paperfurther wishes to contend that the evolution of TJ in Argentina and Uruguay can be explained with reference to several factors: differing Presidential leaderships and, consequently, the diverse approaches to the question of the past; the attitude of the armed forces that, despite being politically defeated, retained a significant amount of power and, with this continuing influence, attempted to control TJ initiatives, enjoying more success in the early years and less so as time went by; human rights activists were constant and persistent actors that, notwithstanding defeats and numerous obstacles, kept the flame of truth and justice burning over the decades; the role of the judiciary, capable of influencing the momentum towards accountability or restraining it; and, finally, the developments on the international and regional spheres regarding accountability. 1Explanatory Framework This sectionintroducesthe social, political, historical and institutional variables that playeda role in the materialisation and later developmentand evolution of policies of TJ. This Francesca Lessa, Ph.D.(LSE), University of OxfordFB38 – Transitional Justice and Human Rights –March 18, 2011 3 framework is divided into three temporal phases (pre-, during, and post-transition) that reflect the key stages of transitions to democracy, and encompasses several factors and actors that have the potential to shape and influence the TJ path to be adopted. Specific nationaland international actors are examinedin endeavouring to explain the variation of TJ initiativesover time. Here is a schematic summary of theframeworkand the key factors to be considered: Pre-transition phaseTransition phasePost-transition phase Nature of authoritarian rule and repressionProcesses of transitionNew political, legal and institutional settings Nature of the previous regime; Duration; Nature of repression and crimes.Typology of transitional processes: Collapse; Negotiation; Transformation.Typology of democratisation processes: Continuous; Legal breakdown/rupture; Legal restoration.Influence, power and interests of specific actors: new government; previous regime; civil society groups; international actors; judiciary. Pre-Transition Authoritarian Rule and RepressionWhen coming to terms with past crimes, strategiesof TJare likely to be affected not only by current political dynamics and power balances, but also by the intrinsic features of the human rights repressionthat TJ aims to redress: its nature, length and the intensity of the violence(Adler, 2001; Elster, 2006).The durationof authoritarian rule and repression is significant. In cases like Brazil, Spain or the former-communist countries, for example, repression was hardest early on. At transition, the passage of time had blurred the memories of what had happened and/or direct victims or their families were no longer around to galvanise the momentum for accountability (Nino, 1996).The intensity and the magnitude of repression also has an impact on unfolding TJ demands (Acuña & Smulovitz, 1996).In cases where repression was particularly bloody, the outgoing regime has generally little to offer in return for escaping prosecutions. As a consequence, pacts between opposing actors are less likely. In Latin America, Panizza (1995:169) pertinently highlights how ‘the Francesca Lessa, Ph.D.(LSE), University of OxfordFB38 – Transitional Justice and Human Rights –March 18, 2011 4 massive and unprecedented nature’ of the abuses ‘made human rights a crucial component of publicdebate in the region’. The type of violence (public vs . hidden) can also impinge upon later attempts to demonstrate that crimes have indeed occurred, given that most information may be unknown, and abuses wereroutinely denied. Then again, secret repression can catalyse families into action to find out the fate of missing loved ones, spurring the development of human rights activism. Finally, was repression selective? The randomness of the brutality, with terror used as a mechanism for social control, canproduce either a culture of fear hard to eradicate, producing passivity and apathy, or generate strong opposition against the regime, that may result in strong demands for accountability.For instance, Guatemala and Honduras adopted contrasting strategiesto tackle the legacies of their pasts. In Guatemala, the country which had the highest number of victims and had witnessed brutal waves of violence, two truth commissions were established, and several local groups carried out grassroots initiatives. Conversely, Honduras had more modest policies, with only one report that investigated human rightsviolence and prosecutions with limited outcomes. Transition Modes of transition The type of transition, that is to say the way in which a country moves from atime of authoritarianism or conflict to new democratic settings, is quite significant. The mannerin which the transition unfolded can help account for the differences in later accountability processes, often directly determining their scope and boundaries (Aguilar-Fernández et al., 2001).Transition modes have adirect impact on democratisation processes, as well as the nature and prospects for the consolidation of the new democracy. Resulting power balances between old elites and their successors, as well as political constrains, shape the way in which a countryis likely to confront past crimes, at least during the first democratic administration (Karl & Schmitter, 1991).Powerdynamics srcinating from transition are, in fact, not cemented. Rather, they are likely to change due to social demands for truth and justice, international variables or internal political agendas(Skaar, 1999).Recent waves of democratisation have followed three patterns: collapse, negotiation or transformation . 1 Situations of collapse are generally the most favourable for accountability to flourish, in that they often produce positive conditions for wide-ranging TJ policies. Indeed, few political constraints exist, therefore facilitating the fulfilment of demands for truth and justice.Under this scenario, the old regime has often been weakened to the point 1 Huntington (1991) uses replacement, transplacement, and transformation; Nino (1996) and Calhoun (2004) rupture, negotiated (pacted) and transformation. Francesca Lessa, Ph.D.(LSE), University of OxfordFB38 – Transitional Justice and Human Rights –March 18, 2011 5 of disintegration, giving the opposition the opportunity to seize power (Mainwaring, 1992).These transitions are normally the least problematic. There is a clear break with the past and the weakness of previous elites lends itself to the creation of new institutional frameworks without preconditions or limitations (Munck & Skalnik-Leff, 1997).The collapse of regimes can be attributed to several factors,notably foreign intervention or the use of force (Nicaragua; Bolivia);loss of internal legitimacy, loss of control of key powers or defeat in an external war (Argentina; Greece);revolutionary action by military forces (Portugal);or incorporation as East Germany (Aguilar-Fernández et al., 2001).Regardless of the motivation for the collapse, the old regime is discredited, and its leaders have to relinquish office. Consequently, TJ initiatives are less likely to suffer from constraints, given that former incumbents are unable to prevent investigations into past abuses(Calhoun, 2004). Transitions by negotiation as in Chile, Spain, Hungary and Poland, or by transformation like Bulgaria and Brazil, are considered the least conducive to accountability. Successor regimes are unlikely to prosecute or investigate past crimes, as their predecessors often retain sufficient power to threaten democratic consolidation, oppose TJ policies or influence their remit(Calhoun, 2004).In instances of negotiation , pacts, whether formalised or not, between the regime and the opposition normally address crucial features of transition. In cases of military dictatorships, it is highly likely that accords firmly guarantee that the past will be overlooked and secure the broad participation of the military in the civilian government(Mainwaring, 1992; O'Donnell, 1992).Under this scenario, the old regime is weakened but it is still able to dictate the terms of transition, and later may undermine democratic consolidation, given that the new elites only have limited options. The relative power of these two groups of actors ‘hang in an often wobbly balance’ (Calhoun, 2004:14).Outgoing authorities may receive favourable terms in exchange for handing over power, and successor governments are usually too vulnerable to provoke still powerful elites. Transitions by transformation occur when authoritarian regimes decide to gradually open up, attempting to transform themselves into democracies. A process of democratisation is initiated, with slow political change orchestrated from above that normally culminates in free elections(Calhoun, 2004).In this scenario, authoritarian incumbents remain decisive actors throughout.The decision to open up may arise because the authoritarian intervention was always only ever meant to be a short parenthesis in a crisis situation, or more frequently because the costs of retaining power have increased whilst concurrently the costs associated with democratisation have decreased (Mainwaring, 1992).Political openings are created through a steady process of political change and stakes in the new system are invested by
