Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (57 page)

To graph our results we counted each country once for each year in which at least one transitional justice trial was held. As figure
12.3
indicates, domestic trials were largely insignificant until the 1980s, after which there is a significant and uninterrupted increase in the number of domestic trials in countries having undergone democratic transition. Even when domestic transition trials are separated out from the World War II successor trials, the slope remains relatively unchanged. We suspect that our trial data underestimates the actual number of domestic human rights trials in the world today. So many domestic trials are occurring in different countries that it is difficult to count all of them. If we are in error, it is because we have underestimated the magnitude of the trend and the increasing judicialization of human rights is actually steeper.

In the case of foreign trials, nearly all of which have occurred within the European and Central Asian region, we see a mild increase between the 1960s and 1980s followed by a sharp increase until the mid‐1990s, after which the number of foreign trials begins to decline yet still remain significant. It is important to note two dominant trends we discovered in our foreign trials data, once World War II successor trials were excluded. The first trend is that many foreign trials are the result of
insider–outsider coalition strategies where crimes committed largely in the Americas, and particularly in Argentina and Chile are tried in European courts, regardless of whether or not the victims are citizens of the prosecuting country. The second trend among foreign trials are trials held largely in European countries for war crimes committed abroad, most notably in the former Yugoslavia, Rwanda, or other states in the Great Lakes region of Africa, by individuals who are arrested on the soil of the prosecuting state and who are not under indictment by a domestic or international tribunal.

That foreign trials continue to decrease at the same time that domestic trials continue to increase highlights the interaction between domestic and international legal and political spheres with regard to human rights trials. When domestic opportunity structures are closed, international activism is often used as an alternate option to seek justice. Similarly, as new norms and practices of transitional justice begin to cascade, including putting human rights violators, among them former heads of state, on trial for their domestic crimes, the need to access available international opportunity structures diminishes. As domestic political and
legal opportunity structures increasingly open up in the Americas, for example, we can expect the number of foreign trials to decrease. Similarly, as we move further away in time from the wars in the former Yugoslavia and the genocide in Rwanda, the number of cases related to these conflicts will also likely diminish. We can expect that the number of foreign trials may also continue to decrease as European governments begin to revise their judicial practices, and indeed their laws, because of political and economic pressure from powerful states.
In 2003, for example, Belgium modified its universal competence law after the United States threatened to move NATO headquarters from Belgium because of controversial charges brought against members of the US presidential administration and military command.

International trials were instituted following both World War I (Constantinople, 1919) and World War II (Nuremberg, 1945; Tokyo, 1946). International trials for humanitarian law violations and human rights abuses remained closed until the International Criminal Tribunal for the former Yugoslavia
(ICTY) was established by Security Council Resolution 827 in 1993, followed shortly thereafter by the International Criminal Tribunal for Rwanda established by Security Council Resolution 955 in 1994. Subsequently,
hybrid trials combining international and domestic features were initiated in Kosovo (1999), Timor Leste (2000), and Sierra Leone (2002) and are currently under development for Cambodia (2003). The recent emergence of hybrid trials, described elsewhere in this volume, illustrates what seems to be increasing support for the belief that domestic judicial procedures are preferential to alternate international remedies and that when domestic political and legal structures are not sufficiently developed, hybrid trials containing some national elements
are preferable to international trials.

Argentina fits nicely into these trends, indeed, has been a trailblazer in creating them. The Argentine case is an example of what can happen in a country in which both international and domestic opportunity structures are relatively open to questions of legal accountability for past violations of human rights. Domestic activists privileged domestic political change, but kept international activism as a complementary and compensatory option. Domestic political change is closer to home and more directly addresses the problems activists face, so they concentrated their attention there. However, activists who learned how to use international institutions in an earlier phase kept this avenue open in case of need. We call this the insider–outsider coalition category.

The insider–outsider model is of particular importance because it is not limited to Argentina but may be a key dynamic in the future as more countries face increasingly open domestic and international opportunity structures for transitional justice.

After the amnesty laws were passed in 1986 and 1987 human rights organizations implemented a two‐track strategy. They launched a series of innovative legal challenges to try to make an end run around the
amnesty laws, and they cooperated with and initiated some international and regional tactics as well.

The first regional
legal opportunity structure that activists turned to was that offered by the Inter‐American human rights system (made up of the Commission [IACHR] and the Court [Inter‐American Court]. In 1992, the IACHR concluded that the Argentine laws of
Punto Final
and
Obediencia Debida
, and the pardons issued by President
Menem for crimes committed during the dictatorship were incompatible with the American Convention.
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This opened a regional legal option that human rights activists could try to take advantage of by bringing the case of the amnesty laws again to the Inter‐American system should they be completely stymied in the domestic legal arena. In 2001, this possibility was heightened when the
Inter‐American Court adopted the Commission's analysis to declare in the
Barrios Altos
case that two Peruvian amnesty laws were invalid and incompatible with the American Convention on Human Rights.
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The innovative domestic legal challenges included efforts by the legal team of the Grandmothers of the
Plaza de Mayo to hold military officers responsible for the kidnapping and identity change of the
children of the disappeared, who in many cases had been given up for adoption to allies of the military regime. The Grandmothers' lawyers argued that because the crimes of kidnapping of minors and changing their identity had not been covered in the amnesty laws, they were not blocked from pursuing justice for these crimes. The kidnapping of minors exception, along with other exceptions for property theft and for crimes involving civilians, became one of the wedges that domestic groups used to open a breach in the amnesty laws. Their legal strategy began to succeed by the mid‐1990s, but initially most of those
found guilty were lower level military and the adoptive families.
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But on June 9, 1998, Federal Judge Roberto Marquevich ordered preventative prison for ex‐president General
Rafael Videla for the crimes of kidnapping babies and falsifying public documents. It is often overlooked that when Pinochet was detained in London three months later, Argentine courts had already done the equivalent by ordering the preventative detention of an ex‐president for human rights violations. And they had done it using domestic political institutions. But, even in this case, the international sphere was also involved.
Videla had been tried for human rights violations during the trials of the Juntas in 1985, convicted, and sentenced to life in prison, but he had been released in 1990 under President
Menem's pardon. Why, all of a sudden, was Videla back under arrest?

At the end of May of 1998, President Menem came back from a diplomatic trip to Scandinavian countries. Instead of the economic contacts he had been seeking, both the Finnish and the Swedish governments asked for an investigation of the cases of two
disappearances: that of the Swede, Dagmar Hagelin, and the Finn, Hanna Hietala. European human rights activists and family members of the disappeared had made these cases
causes célèbres
in their respective countries and had recruited allies at the highest levels of the relevant European governments. The European press focused its coverage of the Menem visit on these two cases. These two cases in
turn are connected to two other cases of disappearances, those of two French nuns, Alice Domon and Leonie Duquet, because all were kidnapped by a Navy group in which the notorious Captain Alfredo Astiz had participated. Menem realized that in his upcoming visit to Paris a week later he would also face demands for the
extradition of Astiz to France, where he had been condemned
in absentia
for the kidnapping of the nuns. Menem was scheduled to meet with French President Jacques Chirac, who had publicly stated that he wanted Astiz to be extradited to France. Just a few hours before the Chirac–Menem meeting, Judge Marquevich decided to detain
Videla. In his meeting with the French press, instead of facing criticism, Menem was greeted as a human rights hero. Menem told reporters that “this is one more sign that we have one of the best justice systems in the world.”
[25]

This is an excellent example of an insider–outsider coalition at work. Domestic human rights organizations using innovative legal strategies had done all the preliminary legal and political work to secure
Videla's arrest. They still needed some help from their international allies, however, for the final push to put a top‐level military leader in jail. The judge who ordered Videla's arrest was not known for his commitment to human rights, but for his intense loyalty to President Menem, who had appointed him. There is strong reason to believe that Judge Marquevich was responding to
Menem's political agenda in his trip to France when he ordered the detention.
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Four months later, after Pinochet had been detained in London, and the Spanish court had issued arrest warrants for a wide range of Argentine military officers, another Menem loyalist on the bench ordered the preventive detention of Admiral Emilio Massera, ex‐head of the Navy and Junta member, and, after
Videla, the second most powerful leader in Argentina during the most intense period of repression. The context and timing of Massera's arrest suggests that the decision to imprison Massera was apparently a preemptive measure in response to Spanish international arrest warrants for Argentine military
officers.
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On November 2, 1998, Judge Garzón in
Spain issued indictments against 98 members of the Argentine military for
genocide and terrorism. Three weeks later, the Argentine judge ordered the preventative imprisonment of Massera for kidnapping babies.

Why would international arrest warrants lead local judges to order arrests in Argentina? International arrest warrants for Argentine military officers created international and domestic pressure to extradite the officers to Spain to stand trial. But the Argentine military was adamantly opposed to extradition, and nationalist sentiment in Argentine political parties resisted the idea. The relevant international legal precept was that a state must either extradite or try the accused domestically. To fend off political pressures to extradite many officers, the Argentine government apparently decided to place under preventative detention a few high profile, but now politically marginalized officers, like
Videla and Massera.

Another key legal innovation in Argentina was the concept and practice of “truth trials.” After the amnesty law blocked trials for most past human rights violations, the relatives of victims nevertheless encouraged judges to develop trials to learn the truth about the fate and whereabouts of the disappeared. In 1995, family members associated with the Center for Legal and Social Studies (CELS) presented the first petition arguing that although the amnesty laws had blocked criminal proceedings, family members still had the “right to truth” and they could pursue that right through judicial investigations. When a Federal Court of Appeals allowed the petition, it began to establish a judicial process that would come to be called the “truth trials,” where Argentine courts solicited and analyzed information and testimony (mainly from members of the Armed Forces)
to find out the truth about the disappeared.

In 1998, when truth trials were stalled in Argentina, human rights activists once again sought help outside their borders when they filed a petition with the IACHR. The Commission in turn reached a friendly settlement of the case with the Argentine government that provided a framework for truth trials to proceed in Argentina. Since 1998, truth trials have been underway not only in Buenos Aires, but also in courts in various other cities of Argentina. For the purposes of this volume, the concept of the “truth trial” is particularly interesting because it brings together elements from both truth commission and criminal justice. It also illustrates yet another example of Argentine leadership
in developing new human rights tactics and mechanisms.
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