Transitional Justice: It is the only answer?
by Carlos Pissolito.
In a recent article titled appeared on WPR, about the benefits of Transitional Justice in order to prosecute military who violated humans rights during the "civil wars" that scorched South America during the 70`s, we can read in its conclusion that: The trials, truth commissions, reparations programs and institutional changes carried out in each country have, overall, helped to consolidate democracy and make military coups unthinkable—even to the military.
But whether the language of human rights, employed primarily to deal with the crimes of the past, can successfully be applied to current issues—including police brutality, natural resource-related conflicts and crimes against environmental and indigenous activists—is still an open question.
I can add some other and relevant concerns to those of Ms. Naomi Roht-Arriaza, the author of the mentioned article.
First of all, if we cannot categorize those "civil wars" as a War. At least in a strict Clausewitzian way of its definition. However, there were, technically, Internal Armed Conflicts (III Protocol of Genève Conventions). In fact, several South American States were under attack by Marxists guerrillas. Furthermore, my country, Argentine, started to suffer such aggressions during a democratic elected government. Therefore, the argument that they were a liberation movement against a dictatorship is erroneous. On the contrary, they had the intention to take political power by force. Using the doctrine of Revolutionary War designed by Mao Zedong and Ernesto "Che" Guevara, amongst other Marxist theorists.
According to the article of the Chapter VII of United Nations Chart and its Resolution 3314 (Act of Aggression) of December, 1974, all those attacked States had the rights to defends themselves, even using deadly force. In a similar way that the United States had the right to a proportional response after September 11 terrorist attacks. This argument is more relevant, if we put under consideration the proved fact that this "movement" enjoyed external support from Cuba and other countries of under the influence of the Soviet Union.
Secondly, as in every conflict there were combatants and non combatants. In addition, as is also usual in many confrontations, both sides committed atrocities. The "guerrilleros" mainly against civilian population by committing terrorist acts (kidnapping, murders, bombings, etc.) and military against combatants who had ended combat (murders, torture, and forced disappearing).
Obviously, those atrocities committed by the State and by professional soldiers, especially when they put themselves in charge of the State, were the most serious of all. However, that did not imply that the aggressors were innocent at all and free of legal prosecution.
Thirdly, eventually after the conflicts, several armed forces commander-in-chief recognized this fact and produced several apologies to the victims and to society. Furthermore, military implemented deep educational transformation in order to avoid such abuses in the future. Introducing Human Rights as a subject in all military academy. Today, we can say that we have learned the lesson. Our peacekeeping forces, deployed in difficult spots as Haiti, are the best example of that.
On the other hand, none of the guerrilla groups proceeded in a similar way. Just, some of their members recognized the reason for doing that. But, no institutional response was ever produced.
Fourthly, in Argentina, after several and contradictory judiciary decisions, only the military are being prosecuted today. The Argentine government is using for that "Transitional Justice". But, I prefer to call it: "Victor Justice." Because of the following arguments:
• Mainly, because several former "guerrilleros" are high ranking officials of the Argentine government now. And, more important, none of them have showed regrets or made an apology for their atrocities.
• Actual prosecution is based on the Rome Statute model. This legal model was adopted at a diplomatic conference in Rome in 1998 and it entered into force in 2002. However, penal law shouldn´t have any retroactive actions.
• In order to put military on trial, Congress and the Supreme Court, pressed by the Kirchner administration have annulled several national laws. Including presidential constitutional pardons for both, military and "guerrilleros". Producing a legal chaos and breaking the legal continuity of the State. Also, keeping open the door for more legal battles and a never ending cycle of revanchist actions.
• Secondary, several human rights organization have miscarried the use of money delivered in compensation for the victims. Using it as a political tool, even taking these funds for personal benefit. Producing a significant corruption scandal and providing a deep discredit of human right government policies.
I can answer, now, Ms. Roht-Arriaza´s main final question: if the language of human rights, employed primarily to deal with the crimes of the past, can successfully be applied to current issues. At least in Argentina. The simple answer is no. Because the so called "Transitional Justice" has just been the elegant excuse to cover the revenge against one of the sides of the conflict.
Particularly about current issues, the balance is negative, if we consider that after 10 years of Kirchner administration there are more than 30,000 murders produced by insecurity. But, even the balance for the past war crimes is not fair.
Mainly, the wounds are still open. Which only means that, eventually, they could lead to a new reverse revanchist turn. For instance, most of the running presidential candidates have expressed their concern about the topic and stated their desire to stop what they called the human rights business or simple political exploitation.
If we define justice as the intention to deliver to everybody what they deserve. We can conclude that there has not been the pursuit of justice at all.
For instance, the judiciary system manipulated by the Kirchner administration has just prosecuted only one of the sides of the contenders, using special and debatable judicial principles for that. Also, it has provided with generous but -in some cases- dubious compensation to victims and so-proclaimed victims.
Probably, if we considered that more than 30 years, a generation, has already passed. We should pay more attention to Archbishop Desmnod Tutu´s declaration, Chairman of South African Truth and Reconciliation Commission, about that in such situation there is no future without forgiveness.
Maybe in Argentina and other South American nations, the time for strict and legal justice has just passed. And it is time for reconciliation and forgiveness.
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