Transitional Justice in Chile
By Piere-Louis Le Goff

Cover of the first edition of the “Nunca Mas” report released by CONADEP

Throughout Latin America ‘Nunca Más’ has become a mantra, a warning.  Although the phrase was originally used as the name for the final report of the Argentine Comisión Nacional sobre la Desaparición de Personas (National Commission on the Disappearance of Persons – CONADEP),[i] which in 1984 detailed the crimes of the outgoing military dictatorship, it has been adopted by several countries in Latin America as a promise to never again allow such campaigns of widespread and systematic human rights violations take place.

Thus far, the region has, for the most part, kept its promise.  However, it continues to grapple with the task of overcoming the complex challenges related to past violence, repression, and armed conflict.  While some crimes were committed up to 30 years ago, demands to address human rights abuses have not waned; what has become known as ‘transitional justice’ is, as such, a work-in-progress.[ii]

Furthermore, the processes and study of transitional justice are gathering pace throughout the region: Argentina has made great progress in putting repressors on trial and has begun to confront the economic crimes associated with the last dictatorship; Uruguay last year saw its 25-year-old amnesty law finally overturned,[iii] and in March, the State recognised its responsibility in the forced disappearance of María Claudia García Iruretagoyena de Gelman[iv] (daughter-in-law of the Argentine poet Juan Gelman); and Brazil has finally made the important step of establishing a truth commission, which will investigate the crimes of its military dictatorship.[v]  These are but a few emblematic examples.

The domestic process of transitional justice has also been buoyed, or in some cases kick started, by the development of regional and international norms and institutions.  The rise of international treaties, including the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which entered into force in 1987, and the 2006 International Convention on Enforced Disappearances, have legally obligated states to investigate and punish human rights violators, uncover the truth surrounding crimes, guarantee non-repetition, and implement institutional reforms.

Regional bodies, such as the Inter-American Court of Human Rights (IACtHR), have also acted to put pressure on States that failed to fulfill their obligations under international human rights law. The convergence of efforts in the domestic, regional, and international spheres to confront past human rights violations and ensure criminal accountability has been referred to by Kathryn Sikkink as ‘the justice cascade.’[vi]

But transitional justice is not just about clearly delimited transitions; it involves continuous processes aimed at strengthening the democratic system and the rule of law.

While Latin America has never been as democratic as it is today, violations still take place.  Whether it be the Falsos Positivos scandal in Colombia,[vii] inhumane prison conditions in various countries across the region, which have led to scores of deaths,[viii] or the recurrence of forced disappearances carried out by the police, protecting human rights under democracy continues to be a struggle.  What is more, holding those responsible for current abuses to account is rare.  As Amnesty International’s The State of the World’s Human Rights 2012 report summarised, in the Americas ‘impunity for human rights violations remains the norm.’[ix]

Furthermore, the seeds of today’s violations are often rooted in the past. That is, abuses left unaddressed and the failure to reform abusive institutions are likely to lead to continued violations in the future. This is reflected in continued police violence and the culture of el gatillo fácil;[x] the survival of amnesty laws that block avenues of redress for victims and their families and contribute to cultures of impunity; and the perpetuation of structural conditions that exclude sectors of society from the rule of law and have previously led peoples to take up arms. Such relationships are key to understanding the persistence of human rights violations today.

To be sure, Latin America has come a long way since the dark days of the 1970s and 80s, and a great deal has been achieved in overcoming the horrors committed by the region’s military dictatorships.  Nevertheless, if the commitment of ‘Nunca Más’ is to be fully realised, a great deal remains to be done.