Justice: Evasive and Amorphous

Contribution to Institution Building and Reform

The Chilean and Salvadoran commissions analyzed the quality and independence of the judiciary and the role of the armed forces in the violence. The Rettig commission advised law schools to incorporate human rights education; the Salvadoran commission referred to the new Judicial Training School described in the peace accords and its need to train competent members for new or existing courts.⁶²

Both commissions recommended procedural changes for appointing judges and prosecutors: in Chile the president was to identify more candidates for appointment to the Supreme Court, and in El Salvador lower court judges were to be named by a new National Council of the Judiciary rather than the disproportionately powerful High Court.⁶³ The Rettig Commission also called for the publication of clear standards of judicial qualification and formulation of rules of impeachment for judges who violated said standards. The Salvadoran Truth Commission recommended that lower court judges possess greater budgetary control and receive higher salaries.⁶⁴ All of these reforms aimed at strengthening judicial independence, integrity, and accountability.

A crucial issue following the civil war in El Salvador and in Chile was the principle of due obedience, which requires soldiers to comply with orders regardless of their content.⁶⁵ For example, in December 1981 the Salvadoran Army’s Atlacatl Battalion deliberately and systematically murdered the entire civilian population of the village of El Mozote – more than 200 men, women, and children.⁶⁶ Mark Danner’s account of the massacre suggests that some of the soldiers involved in the operation felt uneasy about its brutality and its necessity; when Captain Salazar heard about the men’s misgivings, he angrily berated their hesitation and insisted, “this is what war is.” ⁶⁷

In Chile the Rettig Commission evaded making a decisive pronouncement on the matter of command responsibility, and only recommended scrutiny of the due obedience principle to prevent it from facilitating human rights violations.⁶⁸ The Truth Commission in El Salvador went further, though its actions were still limited. It recommended a strict system of discharge for officers who violated human rights and the codification of legal penalties for said violations; it demanded the eradication of any relationship between members of the armed forces and the death squads; and it called for a special legislative commission to ensure the completion of the transition to the new model of the armed forces as delineated in the peace agreements.⁶⁹ Though all of these recommendations sound appropriate, here one can imagine that the criminal prosecution of both commanders and subordinates complicit in the massacre of El Mozote might have had a significant, or at least stronger, impact on the willingness of soldiers and commanders alike to perpetrate atrocities in the future.

Since the hybrid court in East Timor failed to accomplish much in its own jurisdiction, it is doubtful that it had positive effects on other institutions in the country. There was also little domestic judicial capacity-building. Though the court building and all its employees were new, little guidance and training were provided, administrative staff was severely shorthanded, and files and evidence were routinely misplaced.”⁷⁰ Meanwhile, the embryonic judicial system faltered under the continuously growing case load. Linton writes,

“The persistent failure to provide adequate support [by international actors] to the court, prosecution and defence, coupled with resentment of alleged interference in professional independence, led to difficult relations between UNTAET’s Ministry of Justice and East Timorese judicial personnel…The adoption of the Serious Crimes project was viewed with much anger by the East Timorese jurists, who felt they had been excluded from the process and that the atrocity cases, which they had previously been dealing with, were being taken away from them by the international community.”⁷¹

Thus, the international community is not truly building local judicial capacity so much as half-heartedly imposing its capacity on East Timor.

The ICTR, operating distantly in Arusha, Tanzania, has had little effect on domestic institutions and has not served to enhance the protection of political and civil liberties in Rwanda.⁷² Notwithstanding its poor location, the Rwandan International Tribunal has not been competent in itself, let alone helped build the Rwandan national judicial system. According to Neuffer, trials at the ICTR “sputtered along” – witnesses and defense attorneys failed to appear, prosecutors were unprepared, motions could not be found or had not been translated, and the court even lacked a reference library.⁷³

Contribution to Human Rights

Both the Chilean and Salvadoran truth commissions furthered the promulgation of human rights by advising the adaptation of political constitutions and legal statutes to reflect international human rights standards, the ratification of any international human rights treaty, and the review of any reservations submitted with previous ratifications.⁷⁴ They called for amendment of those provisions of the constitution and the military code of justice incompatible with international human rights law, as well as for institutional reforms. These recommendations led to changes in national law and legally institutionalized international human rights norms in both countries.

In particular both commissions examined amparo and habeas corpus remedies, due process, criminal procedure, and administrative detention.⁷⁵ The Rettig Commission in Chile “focused on the routine practice of secret indictments which compromised the rights of the accused to an adequate defense, and the incommunicado detention of suspects for inordinate lengths of time without justification.”⁷⁶ The Salvadoran Truth Commission reviewed the violation of suspects’ rights to defense from the start of legal proceedings and to the presumption of innocence; the commission also examined the arbitrary authority of administrative officials to impose imprisonment penalties.⁷⁷

It is unclear what exactly the East Timorese transitional justice mechanism will achieve for human rights in the country’s future. But thus far it has pushed, to some extent, the principle of accountability for human rights violations. The Serious Crimes panel has indicted hundreds of perpetrators, including senior Indonesian military officers, though most indictees remain outside the panel’s jurisdiction.⁷⁸ Meanwhile the CRP program has meted out “acts of reconciliation” as punishment for perpetrators of less serious crimes. There is an understanding that human rights violators will not simply get away with impunity.

In Rwanda it is unclear how the three-tiered pathway to justice will affect long-term human rights protection. The government’s policy of “maximum accountability” to end the culture of impunity⁷⁹ certainly condemns human rights violations and reinforces the concept that human rights must be protected. However, the lack of accountability for abuses by the Rwandan Patriotic Front and other Tutsis undermines this verbally aggressive approach to justice and perpetuates the sense that human rights are not respected in Rwanda.

Conclusion

The truth commissions in Chile and El Salvador definitely had some positive effects. Both implicated the respective national judicial system in covering up human rights abuses and recommended amendment of provisions of the constitution and other legal statutes which were incompatible with international human rights law. As Snyder and Vanjamuri write, “While the government rejected the [Salvadoran] commission’s call for the resignation of a long list of members of the judiciary, a reformist ruling coalition implemented some of its recommendations.”⁸⁰ In Chile the judiciary was resistant to change after the transition, but in the late 1990s the Frei administration pushed the reform effort forward and these reforms “have had a dramatic effect on the judiciary and on Chilean politics more generally.”⁸¹ For example, the number of Supreme Court justices was increased and the court has taken on a more activist approach to human rights.

In East Timor’s case the “sham” nature of the Indonesian ad hoc tribunal and the incompetence of the hybrid court in Dili have impeded the pursuit of justice. International human rights norms have also not been meaningfully integrated into the domestic system. However, East Timor’s Community Reconciliation Process has been fairly effective and received positive reviews by participating victims and perpetrators.

In Rwanda the ICTR, national judiciary, and gacaca courts have all been undermined by corruption, procedural problems, and the taint of victor’s justice. The gacaca courts, due to their community-based, participatory nature, have the potential to facilitate reconciliation in a way the other two mechanisms have not, but they too must overcome their functional deficiencies.

These four case studies yield several lessons. First, accessibility by victims and visibility to the larger society are critical to any transitional justice mechanism’s meaning, weight, and legitimacy. Many Rwandans feel alienated from the ICTR because much of its work is hidden and they cannot actively participate in it. Many East Timorese feel the same alienation, not because of distance, but because of friction with and lack of true collaboration with the international elements supporting their nascent national court. In Chile and El Salvador, the truth commissions’ reports were published but their findings did not satisfy many of the victims.

This leads to the second conclusion, which is that investigations must be extremely comprehensive, encompassing human rights violations by all sides and of all types.⁸² Third, where truth commissions are used rather than prosecutions, there must be some outside recourse for victims who feel that adequate justice has not been attained and who want to further pursue accountability for the violations they suffered. Finally, international support, if provided, must be competent and adequately funded. If it is not fully capable, funded, and staffed, international judicial assistance will do little to help, if not detract from, newly developing or destroyed post-conflict national judicial systems. No approach to transitional justice has proven exceptionally effective, but each country’s experience sheds light on what can be done to ensure its success in the future.

Endnotes

1. “Country profile: Chile,” BBC News, 16 Mar 2007, (30 Apr 2007).
2. Robert L. Maddex, “Disappearance,” International Encyclopedia of Human Rights: Freedoms, Abuses, and Remedies (Washington, D.C.: CQ Press, 2000), 112.
3. Tom Gibb, “US role in Salvador’s brutal war,” BBC News, 24 Mar 2002, (30 Apr 2007).
4. Mark Ensalaco, “Truth Commissions for Chile and El Salvador: A Report and Assessment,” Human Rights Quarterly, Vol.16, No.4 (Nov 1994): 658-659.
5. Human Rights Watch as cited in Patrick Burgess, “Justice and Reconciliation in East Timor,” Criminal Law Forum (2004): 135-136.
6. Laura Dickinson, “The Promise of Hybrid Courts,” The American Journal of International Law, Vol.97, No.2(Apr. 2003): 298.
7. War crimes, crimes against humanity, and genocide as well as murder, sexual offenses, and torture. Dickinson, 298.
8. Suzannah Linton, “Cambodia, East Timor and Sierra Leone: Experiments in international justice,” Criminal Law Forum, Vol.12, Iss.2 (2001): 2.
9. Linton, 2.
10. Burgess, 137-138.
11. Samantha Power, “A Problem from Hell: America and the Age of Genocide” (New York: Harper Perennial, 2002), 334.
12. Jack Snyder and Leslie Vinjamuri, “Trials and Errors: Principle and Pragmatism in Strategies of International Justice,” International Security, Vol.28, No.3 (Winter 2003/04), 32. Brahm, 24.
13. Anuradha Chakravarty, “Gacaca Courts in Rwanda: Explaining Divisions within the Human Rights Community,” Yale Journal of International Affairs (Winter/Spring 2006): 133.
14. Literal translation: justice on the grass
15. Chakravarty, 133-134.
16. Jones, 13.
17. Nicholas Jones, “Adjudicating the Perpetrators of Genocide: A preliminary investigation into the judicial response to genocide in Rwanda,” (PhD diss., University of Calgary, 2006), ii.
18. Ensalaco, 672.
19. Ensalaco, 659-660.
20. Ensalaco, 660.
21. Ensalaco, 663-664,
22. Ensalaco, 664.
23. Ensalaco, 665.
24. “Justice Denied for East Timor,” Human Rights Watch, www.hrw.org/backgrounder/asia/timor/etimor1202bg.htm 1 May 2007.
25. Ibid.
26. Mandate covers period from 1 January to 25 October 1999. Burgess, 143.
27. Linton, 9.
28. Linton, 12.
29. Linton, 12.
30. Following the evacuation of Indonesian military and Timorese militias from East Timor in September 1999, “those most responsible are likely to remain outside the reach of effective prosecution.” Burgess, 140-141.
31. Jones, 78.
32. Jones, 13-14.
33. Rwanda was the only country to vote against the UN resolution invoking its mandate. Jones, 15-6.
34. Amnesty International, “Rwanda: The enduring legacy of the genocide and war,” Amnesty International Library, 6 Apr 2004, 1 May 2007.
35. Elizabeth Neuffer, “The Keys to My Neighbor’s House: Seeking Justice in Bosnia and Rwanda” (New York: Picador, 2002), 342-43.
36. Neuffer, 344.
37. Neuffer, 265.
38. Neuffer, 268.
39. Jones, 17.
40. Amnesty International, “Rwanda.”
41. Jones, 19.
42. Neuffer, 339-341.
43. Jones, 78.
44. Jones, 90-98.
45. Jones, 97-98.
46. Amnesty International, “Rwanda.”
47. Amnesty International, “Rwanda.”
48. Eric Brahm, “Truth and Consequences: The Impact of Truth Commissions in Transitional Societies,” PhD thesis, University of Colorado, 2002), 162-163.
49. Brahm, 163-4.
50. Brahm, 110.
51. Burgess, 143-144.
52. Burgess, 145.
53. Burgess, 148.
54. Burgess, 151.
55. Burgess, 151.
56. Burgess, 152.
57. Neuffer, 339.
58. Neuffer, 340.
59. Neuffer, 377.
60. Allison Corey and Sandra Joireman, “Retributive justice: The Gacaca courts in Rwanda,” African Affairs (Jan 2004): 88.
61. Lydiah Bosire, “Overpromised, Undelivered: Transitional Justice in Sub-Saharan Africa,” International Center for Transitional Justice (July 2006), 22.
62. Ensalaco, 668.
63. Ensalaco, 668.
64. Ensalaco, 668.
65. Ensalaco, 669.
66. Mark Danner, The Massacre at El Mozote (New York: Vintage Books, 1993), 271.
67. Danner, 79,81.
68. Ensalaco, 669.
69. Ensalaco, 669-670.
70. Linton, 12.
71. Linton, 12.
72. Snyder and Vinjamuri, 25.
73. Neuffer, 344.
74. Ensalaco, 666.
75. Ensalaco, 667.
76. Ensalaco, 667.
77. Ensalaco, 667.
78. Burgess, 158.
79. Jones, 13.
80. Snyder and Vanjamuri, 32.
81. Brahm, 192.
82. For example, violations which did not result in death