Blog of the International Journal of Constitutional Law

Transitional Justice in Latin America: Recent Developments

Last Tuesday April 20, a federal court in Argentina sentenced former president Reynaldo Bignone to 25 years in prison for human rights abuses during the 1976-1983 “dirty war”. The Court also sentenced five other retired military officers to prison terms ranging from 17 to 25 years in connection with abuses during the military regime. These sentences consolidate the effort of coming to terms with the past in Argentina that, after many ups and downs since the transition to democracy (1983), got a definitive impulse since the arrival of Nestor Kirchner to the presidency in 2003. As soon as he took office, former president Kirchner fired 52 senior military officers, and during his first year of presidency 97 military personnel were charged with human rights violations and detained.

In recent years other Latin American countries have made important advances in judging the abuses committed during part autocratic regimes. In Chile, for instance, a country where for many years it was not possible to revisit the past, by 2009 judges had opened over 2,500 investigations and have convicted and sentenced 276 former security agents (data taken from Alexandra Huneeus. 2010. “Judging from a Guilty Conscience: The Chilean Judiciary’s Human Rights Turn.” Law and Social Inquiry, vol. 35, no. 1). Another recent interesting case is that of Peru, where televised trials of former president Alberto Fujimori also produced a jail sentence of 25 years for his participation in two episodes of mass killings that took place during his administration.

But not all countries in the region have been able to prosecute past abuses. For example, top military officers in Brazil recently objected the creation of a strong Truth Commission created y president Lula, effectively limiting its reach. There is also the frustrated attempt of former Mexican president Vicente Fox to prosecute the massive student killings that took place in 1968 and 1971 under the authoritarian regime of the PRI. Moreover, Bolivian president Evo Morales is currently trying to prosecute former presidents and other political figures using procedures that are closer to what Otto Kirchheimer called “victor’s justice” than to the exemplary trials in Argentina, Chile or Peru conducted by ordinary courts that effectively guarantee the procedural rights of the defendants.

These events, and the current trial in Spain against Judge Baltazar Garzón for, among other things, trying to investigate the crimes that occurred during the Franco regime, revive the question of the conditions under which transitional justice can take place. In any case, this week’s sentences in Argentina are a welcome development in the quest for coming to terms with the past in this region of the world.


4 responses to “Transitional Justice in Latin America: Recent Developments”

  1. Manuel Avatar

    Another important issue in Argentina in the last years has been the recovery of babies (currently thirty year olds) that were kidnapped with their disappeared parents during the last dictatorship. These kidnappings actually generated many convictions in the last years, as they were used in order to circumvent the pardons issued by Menem in the 1990s.
    On this same topic, it is very interesting to follow the coverage (or lack thereof) on the adopted son and daughter of Ernestina Herrera de Noble, owner of the Clarin Group, the most powerful media conglomerate in Argentina. It has always been suspected that these two “kids” are stolen babies, and the Abuelas de Plaza de Mayo have been fighting legally, and unsuccessfully, for almost 10 years to get them to take DNA tests. Generally neglected by most media for obvious reasons, the case appears to have finally become a public issue recently. Check these out (both in spanish):

    It seems that the (post) transitional justice process in Argentina is not as successful or as a done deal as some think. I know this is not the case with Julio, but I just thought I’d share my two cents.

  2. Miguel Schor Avatar

    These are largely welcome developments. The cost-benefit analysis for would be dictators is undergoing a long-term transformation in Latin America. I’m curious whether you have any suggestions why the outcome has been different in Brazil than in Argentina and Chile. One possibility that comes to mind (and this comes from Anthony Pereira’s work) is that the military in Brazil retained closer ties or linkages to civilians throughout the period of dictatorship than either Argentina or Chile. Does the military in Brazil have powerful allies?

  3. Ran Hirschl Avatar

    A telling illustration of how political this whole process has been, is the Argentine Supreme Court decisions (2005) to declare the Amnesty/Full-Stop laws of the late 1980s unconstitutional. Serious concerns about the legality of these laws have always been in the air, and, if memory serves, were given formal status by the Inter-American Court of Human Rights in the early 1990s. But it was not until the political climate in Argnetina has changed and judges of the Court replaced that the Supreme Court itself recognized the illegality of the Amensty/Full Stop laws. Gretchen Helmke’s 2005 book is quite illuminating in that respect.

  4. Julio Rios-Figueroa Avatar

    Thanks for the comments. Miguel asks why the outcomes in Brazil are different than in Argentina. I advance some ideas, but I am far from having a complete answer. Two conditions that, I think, are crucial for explaining why Transitional Justice (TJ) occurs in some places but not in others are (i) the extent of the human rights violations and (ii) the strenght of the authoritarian legacies left in place by the outgoing regime. These conditions may help explain the difference between Argentina and Brazil (and Mexico) but how they relate to each other and to other factors can be very complicated. One possible reading of Pereira’s book is that in Brazil (i) was lower and (ii) perhaps higher than in Argentina. In Mexico, the extent of the violations was also relatively limited while the strenght of the PRI after the transition to democracy very high. Very strong authoritarian legacies also may explain why Chile waited so long to start its processes. But this last example also points to other factors, such as international law and actors (judge Baltazar Garzón, ironically) plus, as Ran points out, the preferences of individual judges and presidents that are also important to determine both the timing and the particular form of TJ processes. Moreover, Jon Elster (in “Closing the Books”) also mentions emotional factors that impact the probability of having TJ processes. If I rememember correctly, he considers that the passing of time since the transition impact negatively the probability of having TJ, in which case the Spanish case is an interesting counterexample.
    Finally, regarding the cost-benefit analysis of would be dictators mentioned by Miguel, I am not sure if that would opperate in the direction one may hope. For instance, and Elster also points out, the likelihood of being judged by a future regime may increase the need for keeping power at all costs (hopefully Venezuela won’t take this path). In any case, taking into account Manuel’s cautionary note, fortunately there are some welcoming developments in the region.

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