Transitional Justice in Latin America

1. Transitional Justice in Latin America -Are trials desirable? What are their limitations? -What are limitations of truth commissions? -What kinds of trials are possible?

2. Transitional justice debates What is the aim of transitional justice? • Example of escraches: is this justice? • What do victims/survivors want? • “My day in court”/symbolic chance to tell story from victim’s point of view • Chance to find out truth of what happened • Vengeance • Deterrence • Monetary compensation • Societal recognition that what happened was wrong • To remember • To forget • Not everyone agrees that trials are best way to achieve these aims

3. “Truth not trials” approach • “clean slate” • Focus on societal reconciliation, truth-telling rather than individual accountability • Fear of triggering authoritarian backlash • Argentina: under Alfonsin, top officers convicted, but then 1986 amnesty, 4 military uprisings in late 1980’s-> Pres. Menem pardoned all military officers • 2007: Supreme Court annuls pardons • More collaboration from perpetrators • Can allow criticism of courts themselves • “More complete” social process

4. Legal Accountability • Failure to prosecute past crimes undermines rule of law • Justice should not be held hostage by fear • Reconciliation cannot happen without punishment • Criminal trials also provide truth-telling, healing

5. Is there a middle ground? • Priscilla Hayner: truth vs. justice is not a trade-off • Truth commissions can fortify criminal prosecutions • South Africa TRC is best example

6. Forms of prosecution for HR crimes

7. Forms of criminal prosecution for human rights crimes • Domestic courts in country of occurrence • Limited by amnesty laws, political climate in country • International (ICC, ICTY, ICTR) • Must exhaust domestic remedies first (principle of complementarity) • ICC is not retroactive • CICIG in Guatemala: new model • Transnational (trials in domestic courts of a country other than country of occurrence) • UN Conventions against Torture, Genocide oblige all subscriber states to prosecute certain types of crime • Some states’ domestic laws particularly strong in this regard (e.g. Spain) • Also must exhaust domestic remedies

8. Forms of civil prosecution for human rights crimes • Domestic courts • Limited by amnesty, political climate • International • IACHR (of the OAS) can hold governments, not individuals, accountable • Transnational • 1980 Filartiga: Paraguayan doctor sued former Paraguayan police official for torture in US federal courts using Alien Tort Claims Act of 1789 (ATCA) • Romagoza 2002- ATCA and Torture Victims Protection Act (1992) • Defendant must be in USA for US courts to have jurisdiction • Actions must have violated international law • Awards monetary damages, seldom paid • No need to exhaust domestic remedies • Plaintiffs have greater control over case

9. Cutting-edge issues in human rights law: ATCA • 1993: first corporate ATCA case • more than 2 dozen cases filed against US corporations for involvement in human rights abuses overseas • Only 2 have gone to trial, and in both cases companies prevailed • Doe v. Unocal case: • Forced labor in construction of pipeline by Burmese military • Company said it was a “passive investor” • Plaintiffs said company delegated security to govt, was accountable for govt actions • Unocal settled out of court with Burmese villagers 2005, right before case went to jury trial (after 9 years)

10. ATCA Controversies • US Justice Dept: amicus curiae brief on Unocal case, arguing ATCA not suitable for cases outside USA • National Foreign Trade Council, an organization of corporations, warns ATCA suits could “seriously damage the world economy” • National Association of Manufacturers: “Private suits threaten to impose new liabilities on American companies arising from activity abroad by a foreign government. [This] risks allowing a further erosion of the President’s exclusive prerogatives on foreign policy and his ability to develop relationships with foreign governments in ways that he determines will best advance U.S. national interests.”

11. ATCA: new directions Fresh Del Monte case • Guatemalan union SITRABI in 1999 conflict with plantation owned and operated by Del Monte: leaders abducted, held at gunpoint for hours, forced to make radio announcements to workers, threatened with death • Unusual liability structure • Union leaders filed criminal charges in Guatemala, attackers given nominal fines • ATCA case sought to hold Del Monte liable for violations of rights to associate, organize, and bargain collectively • District courts said leaders were treated cruelly, not tortured; not egregious enough • September 23, 2007 Marco Tulio Portela killed

12. ATCA: ongoing challenges Drummond case 2002-2007 • First case to go to trial; withstood motions to dismiss • international mining company sued for involvement in deaths of labor leaders at mine in Colombia • Plaintiffs alleged that company provided financial and other support to paramilitaries who eliminated union • July 2007: jury ruled in Drummond’s favor • March 2009: new suit against Drummond

13. Transnational justice efforts What are the limitations of justice in these fora? • Sovereignty • Limited public hearing • Monetary compensation often not delivered “Justice cascade” (K. Sikkink)

14. Honduras Fault Lines: 100 Days of Resistance in Honduras http://www.youtube.com/watch?v=EYY4vj9ROC0 http://www.youtube.com/watch?v=upMu_oR2YUU