Related: Check out Lawdragon's International Justice page for more articles.
Much has changed since Naomi Roht-Arriaza, as a UC Berkeley law student, first started looking into the legal responsibilities that nations might have to hold perpetrators of massive human rights violations accountable. In the late 1980s and early 1990s, transitional justice – which involves the use of prosecutions, truth commissions, reparations, institutional reforms, memorials and other mechanisms to address past abuses – had not yet taken shape as its own field. (Roht-Arriaza earned both a J.D. and master's of public policy in 1990.) Over the past few decades, however, it has become a robust area of academic and advocacy work in which Roht-Arriaza, a professor at the University of California Hastings College of Law, has played a leading scholarly role.
Having grown up in both New York and Latin America, including a two-year stint in Chile where she moved as a 10-year-old, Roht-Arriaza has focused much of her research on transitional justice efforts in Latin American countries grappling with the legacies of brutal dictatorships and civil conflicts. Her 2005 book, "The Pinochet Effect: Transitional Justice in the Age of Human Rights," examined the ripple effects of Spain’s decision to initiate criminal proceedings against former Chilean dictator Augusto Pinochet, using the principle of “universal jurisdiction.” (Pinochet was arrested in London in 1998 on a Spanish warrant but ultimately returned to Chile for health reasons and died there.)
Her most recent paper, “After the Amnesties are Gone: Latin American National Courts and the New Contours of the Fight Against Impunity,” which will be published in the May 2015 edition of Human Rights Quarterly, looks at ongoing efforts to prosecute past human rights violations in domestic systems now that amnesty provisions have largely been invalidated across the region. In the paper, she describes the process as “fragile and incomplete” but also inspiring thanks to the creative and persistent efforts of members of civil society “to change law, policy and political consensus.”
I. The Early Phase
Lawdragon: How did you get interested in the field of transitional justice?
Naomi Roht-Arriaza: When I went to law school, I studied a lot of both environmental and human rights related courses and issues. I got pulled into the question of what, if any, are the obligations of states in the wake of transitions from dictatorship – from truly repressive and unlawful governments – to something that was much more civilian-led and much more democratic? What were the obligations that states took on?
I remember very clearly that, while I was in law school in the late 1980s, there was an article from Amnesty International basically saying that it's entirely up to the state to decide what it wants to do in the wake of past human rights violations, and that there is really nothing anybody else can say about it. I remember thinking, “Wait, that can't be right. There's got to be something there. Otherwise, what's the point of all this human rights law?” So I started looking into it, and that became an article, and the article eventually became a book. That was how I got started in this field, when there really wasn't a field to speak of. It's only been in these last 25 years that this has developed into a whole area of practice of law.
LD: It wasn’t too far into that early period when the U.N. Security Council created the first international criminal tribunals since the post-World War II Nuremberg and Tokyo tribunals, one for the former Yugoslavia (the ICTY, in 1993) and another for Rwanda (the ICTR, in 1994). Were you in favor of the creation of the tribunals in response to those conflicts?
NR: I generally thought that the international tribunals were a good idea for a number of reasons. They demonstrated a level of international concern around these issues that had not been there before. They allowed for some degree of redress in a situation where the national courts were not in a position to provide any redress at the time. And they allowed for the development in the jurisprudence. They had problems – too far away, too easy to be dismissed by one political group or another – but they were a step forward.
There were a whole series of treaties that came out right after the Second World War, including for genocide and for war crimes, and then in the 1980s with the Torture Convention, but there really wasn't a whole lot of law there. It was just the treaties and some academics like myself sitting around and speculating as to what the treaty might mean. One of the big contributions of the ad hoc tribunals for the former Yugoslavia and Rwanda was to supply a lot of that jurisprudence, to try and apply this treaty law in a specific situation and give us some idea, rightly or wrongly. It's usually right. Sometimes, I've absolutely disagreed with them, but they've developed a jurisprudence that's quite useful going forward.
LD: Once those tribunals got going, did you then support the creation of the permanent International Criminal Court, which is meant to take on cases only when nations who are a party to the court can’t or won’t handle their own cases?
NR: I did. I actually worked on the creation of the ICC as part of the Victims' Rights Caucus, which was made up of people who were working to make sure that the victims had a voice and also to try and create some kind of reparations facility in the ICC. The thinking was that it couldn't just be about trying a couple of bad guys, it had to be a much more holistic kind of enterprise.
The problem that I think has happened with the ICC was similar to what I saw with the ad hoc tribunals for former Yugoslavia and Rwanda – there was an issue with over-promising what could be delivered, and the problem of a lot of people seeing it as an overarching solution. It was never meant to be the solution. It was meant to be one of a panoply of different steps that needed to be done all at the same time. One of the unfortunate aspects about the creation of the ICC is that it became, at least for many NGOs and many civil society groups, the end-all-and-be-all, the only thing that they did in this area, and so a lot of other issues were neglected.
The structure of the court is such that you would think it would be able to be part of a broader range of efforts because we have these complementarity provisions that seem to say, "Go to the national courts first," but there are no resources to go with that exhortation. There's no ability of the court to help make that happen, and so I think that's been a problem.
II. Prosecuting Cases in Latin American Domestic Systems
LD: As your paper on Latin American national courts explains, several countries that do have the resources to bring their own domestic cases have been doing so. In many of these situations, it once seemed that widespread amnesties would have been the dominant outcome. Did you think these prosecutions would happen when you were more at the outset of your research?
NR: No. I've been happily surprised by how far some of these processes have gone. Of course, in retrospect, it all looks inevitable. Earlier I didn't think any of this was going to happen. Even if you told me five years ago that there would be a genocide trial in Guatemala, I would have told you must be dreaming.
It was pretty clear early on that the people in these nations were not going to give up, that it wasn't one of these situations where the government could just decree, "OK, now we've done everything that we can do about this, so let's all move on," and everybody was just going to nod their heads. It was pretty clear that people were going to keep pushing to create holes in amnesty laws, that they were going to use the loopholes that already existed, and that they were going to keep questioning whether what they were being told was the truth or not. That part of it didn't surprise me.
LD: What part did?
NR: The uptake and the change in the judiciaries I found really interesting and a little surprising, although, in retrospect, of course, it probably should not have. There was a process of renovation and reform of judiciaries in many of these countries that made it possible for those civil society pressures to actually work. I think also that outside pressure, while I don't think you could say caused the change, created part of the underlying conditions or atmosphere. Everything from the creation of the International Criminal Court to the use of universal jurisdiction to the monitoring and reporting process that takes place under the human rights treaties.
All of those things created an atmosphere in which the legal systems became more porous so that even if, domestically, it wasn't possible to bring these cases, it was possible to bring them under a theory of universal jurisdiction. That created pressure on the domestic judiciaries to do something about their own cases rather than let some foreign judge deal with them.
LD: Your article describes the region as having largely moved past the “first generation” issues – meaning getting past the widespread use of amnesties – and now countries have been dealing with the second phase of how to actually conduct the prosecutions.
Argentina is trying many defendants together in large cases, or “mega-trials,” of members from the military juntas, while Guatemala tried the more focused genocide case against its former military dictator Jose Efrain Rios Montt. Is there any determination about which prosecutor approach is better, or will it just be a case-by-case analysis?
NR: I think it's pretty case-by-case. But I think what is important is something that's starting to happen in several Latin American countries, although not in all of them, is the idea that this is about systematic crime. It’s not about taking these on a individual-case basis as somebody walks in to the prosecutor's office and says, "I've been a victim of a crime," and then the prosecutor and the judge and everybody starts looking at that individual crime.
You can't really do these kinds of crimes that way. They are systematic, and that means you have to investigate them in a very different way by trying to draw the links, trying to draw the connections, trying to figure out how one thing connects up to another so that you see a pattern. If you look at these individually, you might have just a set of murders, but, if you look at them together, you've got a crime against humanity. I think that's been the important move here. The rest of it I think, in part, is about the history of the place.
I think one of the reasons why Argentina is trying a large number of people now is because of the history of the earlier due obedience laws, which basically left only a handful of people that could be tried – and so it's kind of a reaction to that. Whereas, in Guatemala, I think the reason why the Rios Montt trial was so contested and so important was, in part, because it was genocide, but also because the prosecutor's office had some understanding that you don’t get the opportunity to do this overarching case most of the time – that you might not get the chance to do it again. There have been cases before and after in Guatemala, but they're much more incident-specific.
LD: A panel of judges found Rios Montt guilty of genocide in 2013, but then the nation’s Constitutional Court annulled the judgment and the retrial has been delayed. Also, the Constitutional Court held that the attorney general who brought the case had to step down, and the bar association there suspended the judge who presided over the first trial. Is the Rios Montt trial a net positive for accountability or is it a failure?
NR: It's both a success and a failure at the same time. It shows you what's possible, and it shows you what the limits are. This is a country where the military and the economic elite still hold so much power, where there hasn't really been a process of change in the actual power structure of the country. But just to have that kind of trial and to have people be able to watch from all these communities and see the former dictator sitting as a defendant in a courtroom is amazing. I think it really made a big difference for the communities involved irrespective of the verdict. What they will tell you is, "We got our trial. We got our verdict. The fact that the Constitutional Court annulled it, that's just a technicality. We had judges find that, on the evidence, this constituted genocide. That's what's important for us. The rest is just technicalities and it's just the system fighting back.” They knew the system was going to fight back.
LD: Colombia, too, has enacted accountability measures for crimes committed in its civil conflict by government security, paramilitary and FARC rebel forces even as the present regime attempts to finalize a peace agreement with the FARC.
The ICC has been monitoring the situation in Colombia and could try to exercise jurisdiction there for crimes that took place after 2002 if it’s not satisfied with the progress of cases, which has been a point of pressure on the Colombian government. Is this a situation where the dynamic between the ICC and a state party to the court is working as it should?
NR: I think up to a certain point the Colombian example is exactly how it's supposed to work. Without the ICC there, I think the Colombians probably would have some of the same processes in place, but not all of them, especially when it comes to the cases of politicians who were aligned with the paramilitary groups. But, at a certain point, though the Colombians talk a good line, the results are actually fairly meager in terms of convictions of paramilitaries. Last time I looked, there were 14 convictions out of several thousand of demobilized paramilitaries who had applied to be part of the demobilization process. This has been a work in progress for quite some time now.
It really raises the question of what “unwilling” means in the Rome Statute. At what point does the ICC stop looking at good intentions and start at looking at results? For me, that's the problem. On the other hand, given the current peace talks, I think it would probably not be helpful for the ICC to step in and short-circuit that process. It's complicated. It's like a clutch and the gas in a car. You want to maintain a certain amount of tension, but not too much. It's a tricky balance.
LD: The victim’s law in Colombia, which establishes the basis for a comprehensive reparation and land-restitution program for the millions displaced from the decades of conflict, also has yet to really take effect. What would the impact for the field of transitional justice if that type of program goes forward?
NR: Too soon to tell. It surely is one of the more elaborate reparation efforts. Again, it remains to be seen to what degree all of these elaborate plans and structures and institutions will actually deliver. If they do what they said they were going to do and what the victim’s law tells them that they should do, it would be probably the most comprehensive efforts since the Second World War to provide reparations, especially since they're trying to do land restitution, which is one of the core underlying issues in the Colombian conflict.
Now, so far, they've done a lot of work setting up institutions, but not a lot of restitution that's actually worked, in part because the security situation has been terrible in those areas. There are dozens of cases of people who've asked for restitution of their land and turn up dead. It's not a really great incentive for people to come forward and ask. The Colombians are aware of this. It's not like they don't know it. They're working on it. They're trying, but I think it's still a question how much they're actually going to be able to do.
III. The Status of Amnesties
LD: Given the movement towards prosecutions, where does this leave the legality of amnesties and what their place may be in the field? As you’ve noted, certain crimes – genocide, grave breaches of the Geneva Convention, torture – cannot be amnestied. But what about other crimes and the range of perpetrators involved in a conflict?
NR: One thing that’s clear is any domestic amnesty doesn't bind foreign or international courts that may want to try these cases. A second thing that seems to be clear is that an unconditional blanket amnesty no longer passes muster under international law. But that leaves a lot of area in the middle. Let me just give you a couple of things that are sort of up in the air and still being debated. If amnesties have to be conditional, then what are the conditions? Do they have to involve truth telling? Do perpetrators have to show remorse? Do perpetrators have to make reparation to the victim, and how do you do that? We've gotten to the point of being able to say, "Fine, amnesties have to be conditional," but we don't have a whole lot of consensus of the meaning of conditional.
LD: What about in terms of how many you have to prosecute?
NR: That’s a second problem. There's a debate going on about whether prosecutions can be limited to those most responsible for the crimes. Prosecuting those people and giving conditional amnesty to everyone else seems to be an emerging model. But who's in the category of most responsible? Is it just the people who are the nominal leaders, which is a very small group of people? Or is it everyone who had an operational role, in which case, that's a rather large group of people? What do we do about the people who are lower in the formal hierarchy, but had actual operational control?
The third issue that I would say is still up in the air is the question of what might be the specific and special responsibility of state agents. When we started thinking about the whole area of transitional justice, most of us were pretty focused on the state whose job it was to protect and serve instead of repressing and committing violations of human rights. Then we got into this situation where the scope of transitional justice expanded to cover situations involving non-state actors such as guerrillas and insurgents. Do we treat them differently than people who were in the military and police who had a special responsibility? I think that's a lot where the arguments lie.
LD: You also noted in your paper how Colombia’s peace and justice law allowed for five-to-eight year sentences for members of paramilitary groups who agreed to demobilize and meet a number of conditions – which might appear too lenient to some stakeholders.
NR: Yes. What do we mean by “amnesty”? Can we investigate, prosecute and convict – and then put on parole? Is that an amnesty? There’s no pardon, you're still convicted, but you don't serve any jail time. Or, how about if we investigate, prosecute and convict but then reduce the jail time? We sentence from five-to eight-years rather than 40. Is that a problem? The issue of exactly where the line is between amnesty and withholding or softening punishment is I suppose a fourth issue that's still out there.
IV. The State of the Field
LD: Looking big picture, you wrote in your introduction to “Transitional Justice in the 21st Century: Beyond Truth Versus Justice" that the field has moved beyond the earlier debates between which mechanism worked best – say, between truth commissions and prosecutions – and towards a recognition that post-conflict states should attempt to package together different justice mechanisms. That book came out eight years ago – has this consensus continued to take hold?
NR: Yes and no. There are some things that have gotten more widely agreed on, but then there's been a backlash against the agreement. One of the things that came out of that book was the idea that it's not about trying to oppose one mechanism to the other. It's about how do these things play off each other and play together and how you can think of ways in which they support each other – to create more of an integrated approach that has elements of truth-telling, elements of justice, elements of reparation and elements of structural reform.
I think that that idea has become more pronounced over time. The problem has just been that, in a sense, we're all kind of victims of our own success. That idea has become so successful that it's ended up looking like, “OK, here's a toolbox, check off the boxes.” It becomes this kind of one-size-fits-all that may not be right for each situation, so now we have some push-back against that.
And there continues to be a debate around peace versus justice, with the emerging contours of an idea that says, “You have to do some justice. You can’t do nothing. But you also can’t prosecute everybody.” Somewhere in the middle is where we end up. What's not exactly clear is how many things are in the middle.
LD: What’s your next area of research?
NR: There has been a debate in the field in recent years over to what degree transitional justice can deal with root causes and issues like land and natural resource conflicts, which are, to one degree or another, the heart of a lot of what turns into armed conflicts with the massive violations of human rights. The debate goes a little bit like this: On the one hand, how can transitional justice really be transformative if you don't look at not just the politics, but also the underlying socioeconomics that led to a conflict? If you ask people what they want, what they tell you is they want a house and clean water and a job. How can transitional justice not engage with that set of issues so people don't feel the need to return to armed conflict in order to get what they need?
On the other hand, the counterargument is that transitional justice should focus on doing well the few things that it promises to do, but expanding that agenda will dilute the message, and people who work on transitional justice are really not in the best place to think about development issues.
That's where we are. One of the things that I've been trying to think about is to what degree we can rethink the concept of guarantees of non-repetition to take into account some of these issues without opening up such a broad agenda that really transitional justice just becomes socioeconomic justice and doesn't have any particular claim to specificity. I don't know the answer, but that's what I'm starting to think about at this point. And I'm not the only one.