Confronting Past Human Rights Violations

This book examines what makes accountability for previous abuses more or less
possible for transitional regimes to achieve. It closely examines the other vital
goals of such regimes against which accountability is often balanced. The
options available are not simply prosecution or pardon, as the most heated
polemics of the debate over transitional justice suggest, but a range of options,
from complete amnesty through truth commissions and lustration or purification
to prosecutions. The question, then, is not whether accountability can be
achieved, but what degree of accountability can be achieved by a given country.
This book examines five countries’ experiences in detail—El Salvador,
Honduras, Argentina, South Africa, and Sri Lanka—and offers a comparative
survey of nearly 30 countries’ experiences. It discusses three factors that affect
the accountability achieved: international or external influences, the balance of
forces between civilians and the military and or government and opposition
forces, and the extent and nature of previous rights abuses. The book also
examines strategies of transition, trade-offs and compromises that regimes (and
international actors assisting them) may make in an attempt to achieve greater
accountability or greater stability. The focus is on the politics of transition: what
makes accountability more or less feasible and what strategies are deployed by
regimes to achieve greater accountability (or alternatively, greater reform). The
result is a more nuanced understanding of the different conditions and
possibilities that countries face, and the lesson that there is no one-size-fits-all
prescription that can be handed to transitional regimes.
Chandra Lekha Sriram is Lecturer in the School of International Relations
at the University of St. Andrews, where she teaches international relations and
international law, and human rights. She obtained her doctorate from Princeton
University in 2000.
 THE CASS SERIES ON PEACEKEEPING
ISSN 1367–9880
General Editor: Michael Pugh
This series examines all aspects of peacekeeping, from the political, operational
and legal dimensions to the developmental and humanitarian issues that must be
dealt with by all those involved with peacekeeping in the world today.
1. Beyond the Emergency: Development within UN Missions
edited by Jeremy Ginifer
2. The UN, Peace and Force
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3. Mediating in Cyprus: The Cypriot Communities and the United Nations
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4. Peacekeeping and the UN Agencies
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8. Peacekeeping and Conflict Resolution
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edited by Thierry Tardy
 iii

15. Confronting Past Human Rights Violations: Justice vs. Peace in Times
of Transition
Chandra Lekha Sriram
Confronting Past Human
Rights Violations
Justice vs Peace in Times of
Transition

Chandra Lekha Sriram

FRANK CASS
LONDON and NEW YORK
 First published in 2004 in Great Britain by Frank Cass
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
This edition published in the Taylor & Francis e-Library, 2005.
“To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of
thousands of eBooks please go to www.eBookstore.tandf.co.uk.”
Simultaneously published in the USA and Canada
by Frank Cass
270 Madison Avenue, New York, NY 10016
© 2004 Chandra Lekha Sriram
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
The publisher makes no representation, express or implied, with regard
to the accuracy of the information contained in this book and cannot
accept any legal responsibility or liability for any errors or omissions
that may be made.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Sriram, Chandra Lekha, 1971–
Confronting past human rights violations: justice vs. peace in times of
transition/Chandra Lekha Sriram.—1st ed.
p. cm.—(The Cass series on peacekeeping, ISSN 1367–9880; 14)
Includes bibliographical references and index.
1. Truth commissions-Case studies. 2. Human rights-Case studies.
3. Crimes against humanity-Case studies. 4. War crimes-Case studies.
5. Government liability-Case studies. 6. Restorative justice-Case studies.
7. Amnesty-Case studies. I. Title. II. Series.
JC580. S65 2004
323.4’9–dc22 2004002936

ISBN 0-203-31289-9 Master e-book ISBN

ISBN 0-7146-5599-6 (Print Edition)

 Contents

Preface vii
Acknowledgements viii
List of abbreviations x

Introduction: Truth, justice, and accountability 1

1 What makes accountability possible? 21
2 Global experiences in transitional justice 40
3 El Salvador: ‘Negotiated revolution’ and the truth commission 82
4 Argentina: Struggle for accountability 112
5 Honduras: Justice in semi-transition 133
6 South Africa: The exchange of truth for justice 154
7 Sri Lanka: Justice in the midst of war 179

Conclusion: Compromises of transition 211

Bibliography 222
Index 235
 Preface

The basic questions that this book asks are ‘What makes accountability for past
abuses more or less possible in transitional regimes that still face serious
resistance from elements of the old regime?’ and ‘Against what other goals is
accountability likely to be balanced?’ I begin with the continuum of possible
outcomes: the options are not simply prosecution or pardon, as the most heated
polemics of the debate over transitional justice might have us believe, but a range
of options—from complete amnesty through truth commissions and lustration or
purification to prosecutions. The question, then, is not whether or not
accountability can be achieved, but what point on the accountability continuum
can be achieved by a given country. I hypothesize that there are three factors that
make accountability more or less feasible in a particular country: international/
external influences, the balance of forces between civilians and the military and
or government and opposition forces, and the extent and nature of previous rights
abuses. Then, as the relatively small literature that does address factors affecting
accountability runs the risk of being too deterministic, I argue that there are also
strategies of transition, trade-offs and compromises that regimes (and
international actors assisting them) may make in an attempt to achieve greater
accountability or greater stability. It is these last two practical aspects that the
book emphasizes, articulating and investigating hypotheses about what makes
accountability more or less feasible and what strategies can be deployed to
achieve greater accountability (or, alternatively, greater reform). The result is a
more nuanced understanding of the different conditions and possibilities that
countries face, and the lesson that there is no one-size-fits-all prescription that
can be handed to transitional regimes considering the legacy of the past.
 Acknowledgements

A project of this size cannot be undertaken, much less completed, without the
support of many people. I am grateful to my friends and colleagues, for support
both intellectual and emotional, during the protracted development, research and
editing of this book, and particularly to the support and advice provided by my
advisers and dissertation committee.
Any list is bound to be incomplete given the vast number of people who have
contributed. Any errors of fact or judgement are, of course, my own. I would like
to thank, first and foremost, my primary advisers, Professors Michael Doyle and
Richard Falk of Princeton University. Their advice, criticism and encouragement
continuously enabled me to refine my argument and consider novel theoretical
approaches. I am also very indebted to two committee members who provided
insights and helpful discussions nearer the completion of the project, Professor
Gary Bass and Alexandra Barahona de Brito. The book has since benefited
immeasurably from the comments of anonymous reviewers, and from my editors
at Frank Cass, Sian Mills, Sally Green and Andrew Humphrys.
Innumerable colleagues, in my department as well as around the world, have
pushed me further, enabling me to think about my argument in new contexts, and
with new frameworks. A special and heartfelt thanks is due to an extraordinary
man and politician, Dr Neelan Tiruchelvam, whose graciousness and support
were matched only by his dedication to human rights and reform in Sri Lanka.
He was assassinated by an LTTE suicide bomber in 1999, and the world is much
the poorer for the loss.
I am also particularly grateful for extended conversations and advice from Amy
Ross, Ram Manikkalingam, Amanda Dickins, Angela Tsay, Jonathan Allen and
Pete Furia, as well as more recent conversations that have provoked me to think
further while revising, with Brad Roth, Donald Rothchild, Marie-Joelle Zahar,
Stephen Brown, Jamie Mayerfeld, Ramani Muttetuwegama, Laila Manji, Jamal
Benomar, John Clarke, Ben Reilly, Elizabeth Cousens, Bronwyn Leebaw and
Rama Mani. I gained much insight from colleagues at the Instituto de Derechos
Humanos at the Universidad Centroamericana, in particular Boris Solorzano, and
the Centre for Human Rights at the University of Colombo, in particular
Ravindra Fernando and of course from all of my interviewees. I am especially
grateful for the hospitality and insights of Manouri Muttetuwegama.
 ix

I have benefited particularly from my time at the International Peace Academy

(IPA), both in the quality of my colleagues and the support shown by the
institution as I sought to revise this book while carrying on work on conflict
prevention. For this I owe a debt of gratitude to the management of IPA,
particularly David Malone, John Hirsch and Necla Tschirgi. I have gained much
from working with and learning from all of my colleagues at IPA, but I
particularly want to thank Karin Wermester, Karen Ballentine, Zoe Nielsen,
Sorrel Osborne, Lotta Hagman, Angela Muvumba, Marlye Gelin-Adams,
Adekeye Adebajo, Jake Sherman, Jilla Moazami and Simon Chesterman for
friendship, ideas and support.
I am happy to count so many of those above as good friends as well as
colleagues, but am perhaps most indebted to many friends who had no stake at
all in this project or set of issues except as my friends. Their support, and often
their insights and questions, as persons expert in completely different areas, have
enriched my life and this project. I especially want to thank Stephanie Harves,
Michael Siu, Janet Klein, Andy Bye, Robin Huffstutter, Sean Corner, Wayne
Snow, Mira Seo, LaTanya Rucker, Nick Tolwinski, Florian Becker, David
Kasunic, Michael D’Alba, Patrick Shorb, Olivier Pauluis, John Normand,
Antonio Garcia, Jenny Tsien, Sal Mustafa, Elizabeth Letcher, Jill Cetina,
Credence Fogo, Karen DeLeon-Jones, Dani Eurynome, Margaret Lo, Ping
Foong, Rebel McKinley, Susan Nicastro, Kim Germain, Bridget Guarasci,
Andrew Croce, Yvan Fitch, Alan Adkins, Anna Lau and the late Moshe Levy.
And of course I wish to thank my mother, Carolyn Nikkal, for continuously
believing in me even when I didn’t.
Last but certainly not least, this project would not have been possible without
financial support from a number of sources. These include my graduate support
at Princeton University, specific grants from the Princeton Department of
Politics and the Stafford Fund, from the Princeton University Center for
International Studies and the Mellon Foundation, from the Social Science
Research Council and MacArthur Foundation and from the Institute for the Study
of World Politics.
 List of abbreviations

ANC African National Congress (South Africa)

ANSP Academia Nacional de Seguridad Pública (national police
academy, El Salvador)
CES Cuerpo Especial de Seguridad (special security body,
Honduras)
CIA Central Intelligence Agency
CNDH Comisionado Nacional para la Protección de los Derechos
Humanos(national commission for the protection of human
rights, Honduras)
CNJ Consejo Nacional de la Judicatura (national judicial council, El
Salvador)
CODESA Convention for a Democratic South Africa
CONADEP Comisión Nacional sobre Desaparición de Personas (national
commission for the disappeared, Argentina)
COPAZ Comisión Nacional para la Consolidación de la Paz (national
commission for the consolidation of peace, El Salvador)
CSCE Conference on Security and Cooperation in Europe
DIC Dirección de Investigacion Criminal (criminal investigation
agency, Honduras)
DNI Dirección Nacional de Investigaciones (national investigation
agency, Honduras)
DNS doctrine of national security
EU European Union
FAES Fuerzas Armadas de El Salvador
FMLN Farabundo Martí National Liberation Front (El Salvador)
FSP Fuerza de Seguridad Pública (public security force, Honduras)
ICCPR International Convention on Civil and Political Rights
ICITAP International Criminal Investigative Training Program
 xi

IFP Inkatha Freedom Party (South Africa)

IPA International Peace Academy
IPKF Indian peacekeeping force (Sri Lanka)
JVP Janata Vimukthi Peramuna (Sri Lanka)
KGB Committee of State Security (USSR)
KR Khmer Rouge (Cambodia)
LTTE Liberation Tigers of Tamil Eelam (Sri Lanka)
MPNP Multi-Party Negotiating Process (South Africa)
NATO North Atlantic Treaty Organization
NGO non-government organization
NP National Party (South Africa)
NSF National Salvation Front (Romania)
OAS Organization of American States
OAU Organization of African Unity
ONUSAL UN Observer Mission in El Salvador
PA People’s Alliance (Sri Lanka)
PAC Pan-Africanist Conference
PNC Policía Nacional Civil (national civilian police)
PSO Public Security Ordinance (Sri Lanka)
PTA Prevention of Terrorism Act (Sri Lanka)
SADF South African Defence Force
SANDF South African National Defence Force
SAP South African Police
SLFP Sri Lankan Freedom Party
TEC Transitional Executive Council
TRC Truth and Reconciliation Commission (South Africa)
TSE Tribuna Supremo Electoral (supreme electoral tribunal, El
Salvador)
TULF Tamil United Liberation Front (Sri Lanka)
UCA Universidad Centroamericano (El Salvador)
UDF United Democratic Front (South Africa)
UN United Nations
UNP United National Party (Sri Lanka)
UNTAC United Nations Transitional Authority for Cambodia
URNG Unidad Revolucionaria Nacional Guatemalteca (Guatemalan
National Revolutionary Unity Guatemala)
 Introduction
Truth, justice, and accountability

Our common sense seems to support both positions: that a voluntarily

committed criminal act is deserving of punishment, and that the social
consequences of applying this punishment must be considered. It
would be irrational to impose a punishment when the consequences of
doing so, far from preventing future crimes, might cause greater social
harm than that caused by the crime itself or by the absence of
punishment. It would be unjust, however, to seek merely to avoid
future crimes without taking into account, when applying the penalty,
whether the person who committed the misdeed deserves to be
punished.
Former president of Argentina, Raúl Alfonsín1

The dilemma: justice vs. peace

‘No justice, no peace.’ From the riots in Los Angeles following the first verdict
in the Rodney King beating case in 1992 to the outcry in England over the
botched inquiry into the murder of Stephen Lawrence in 1993, there is a
widespread intuition that justice and peace are inextricably linked. Furthermore,
a vast literature expanding upon this intuition has developed.2 Where there is
justice, there can be peace, and peace justice; but the absence of one may
necessarily result in the absence of another. Can one imagine a generally
functioning court system such as that of the USA in the context of civil or
external war where stability is gone and national security supersedes individual
security? And, after the riots in Los Angeles, can one imagine peace following
what appears to be a gross miscarriage of justice? In stable, established
democracies such as the USA or the UK, the linkage of peace and justice appears
quite logical.
However, citizens of countries emerging from civil war, authoritarian,
totalitarian or military governments (or some combination of these) may rightly
view the relationship between peace and justice quite differently. Having
suffered vast human losses through conflict, repression, torture and
2 INTRODUCTION

disappearances, they desire peace, or at least an end to the conditions that led to
these losses. They will also, however, desire some type of justice or
accountability for the losses they sustained. They then desire justice and peace
but, in the dozens of nations that have undergone such transitions since the early
1970s, the people and their new democratic leaders often learn that peace and
justice cannot be achieved simultaneously in such situations. The difficulty is that
in the near term, these two goods may be at odds, even though in the long term a
just and stable society requires that they be united.3
Consider, for example, the situation faced by President Raúl Alfonsín in
Argentina in 1983. Following the ‘dirty war’, a period of repression under a
military dictatorship which sought to eliminate all opposition under the guise of
fighting communist subversives, he was faced with two contradictory impulses:
to ensure stability and consolidate democracy, and to punish members of the
junta and others for the appalling human rights violations that they committed. He
quickly found that pursuing justice could come at the cost of peace: in response
to prosecutions and arrests, the military staged several coups and threatened
more, and Alfonsín retrenched, vastly limiting the scale of prosecutions.
Argentina’s experience is at once unique and typical. It is unique in that, alone
among the cases examined in depth here, there was no significant external
involvement in the transition. This absence of external actors may well have
increased the challenges faced by Alfonsín. It is typical, nonetheless, in that the
tensions faced and trade-offs made in Argentina look not dissimilar from those in
Honduras, or El Salvador, for example.
However, while Alfonsín’s experience illustrates the difficulty of achieving
justice and peace in transitional times, it does not mean that transitional regimes
can pursue either peace and stability, or justice, but not both. To the contrary,
consolidating democracies have a wide range of options with regard to justice
and accountability: they can pursue selective prosecutions, purges and even
commissions of inquiry that lay bare the legacy of the past. These measures may
not provide complete justice, but they may be the best option available. Wise
leaders will recognize that there is a balance to be struck between justice and
peace, and tread carefully.

Justice and peace: lessons

The purpose of this book is to provide lessons and guidance for policymakers,
internal and external, facing the justice vs. peace dilemma so that they might be
able to achieve as much of each as possible. However, not every new regime is
born in the identical domestic military and political, or international context.
Further, regimes experience differing constraints as they move through
frequently protracted periods of transition. Thus it is important to understand
what sort of constraints different regimes face as they move to democracy.
This book first seeks to identify the military, political, historical and
international factors that make it more or less possible for a regime to pursue
 INTRODUCTION 3

accountability without running the risk of instability or even reversion to non-

democratic rule. For example, El Salvador at the time of its transition was
formally democratic but in the end-stages of a brutal civil war, and the
military dominated political life. It not only began the screening of its security
forces, but did so under the auspices of a UN-brokered and monitored peace
accord. Thus, while it faced constraints with regard to the pursuit of justice, we
can expect those to be different from those faced by Honduras, a formally
democratic state where the military still carries much political weight and which
is still struggling to assert civilian control over the military, and where external
actors have played a much smaller role in aid of democratization.
Once we identify the constraints that a new democracy faces, we can then ask
exactly how it might choose to strike a balance between peace and justice. While
any sacrifice of justice to peace may seem repugnant, the reality is that countries
from southern Europe to South America have felt compelled to make it, so it is
worthwhile to determine what they might gain in the bargain. I therefore seek to
identify the goods beyond the simple absence of active conflict (negative peace)
that a state might achieve by pursuing lesser accountability. Most importantly,
the state might seek to entrench democracy and prevent a recurrence of the
violence in the long term, particularly by subordinating the military to civilian
control, engendering the preconditions for eventual positive peace.

Transitional justice and peacebuilding: moving beyond

common debates
There is a vast literature on both transitional justice and peacebuilding and, while
this book seeks to build upon that literature, it also moves beyond it. Arguments
about appropriate approaches to past abuses have taken several forms. These
have been normative (examples include work by Martha Minow and Mark Osiel,
cited in this introduction), empirical but case-specific (examples include the
work of Malamud-Goti and of Barahona de Brito, cited in this introduction) and
empirical and overarching but non-comparative (such as the excellent work of
Hayner, which offers extended comparisons, but not structured qualitative
comparative analysis such as I have tried to engage in here). All of these have
made important contributions to thought and policy with regard to transitional
justice, but there remains a gap. That is an exploration of the issue that is
undergirded by normative considerations, and that examines empirical cases, but
which does so in a comparative context. This approach lends methodological
credibility to claims about which outcomes are likely to obtain, and also provides
deeper insights for those confronting choices about transition, both local actors
and the international peacekeepers and peacebuilders that seek to assist them.
While many of the difficult choices about transition must be taken by local
actors, and all must be taken with reference to local needs, the reality is that
many are taken, de facto, by international peacekeeping and peacebuilding
actors, ranging from the United Nations to bilateral donors. Only such cross-case
4 INTRODUCTION

comparisons that provide generalizable propositions with a deep understanding of

specific needs in context can provide guidance for these actors.
Much of the work in transitional justice pursues explicitly normative claims
about what is good for societies and victims, or simply what is ‘right’. This is the
case in the work of, for example, Neier, Minow and Osiel, of Crocker and of
Cohen. This is an important foundation for developing policy, but may well be
too narrow. In particular, such approaches only occasionally offer insights into
the prerequisites for peacebuilding.4 This may be in part because considerations
of stability are perceived to be at odds with justice, rather than necessary for and
complementary to it. As I suggest throughout this book, while there are trade-
offs, the choice is not simply either peace or justice.
There is also a vast number of article- and book-length examinations of the
single experience of one or another country that experienced this choice, and/or
of the role of international peacekeepers and peacebuilders that sought to assist
them; the work of Johnstone on El Salvador5 or Malamud-Goti on Argentina are
good examples. Such studies have yielded important insights regarding the
specific challenges in those cases, and are often asserted to be generalizable.
However, little work has sought to systematically compare cases across time and
space to develop propositions that may be reliably extended to future cases.
Drawing upon a host of cases, other literature has developed general
propositions about what is feasible or appropriate with regard to accountability.
For example, the crucial role of the truth commission in mediating at least in part
the peace/justice divide has been elaborated upon or examined by Hayner,
Rotberg and Thompson. The function of public discourse in aiding reconciliation
through commissions and beyond has been articulated by Osiel. Much of that
work, however, refers to the rich experiences of myriad countries by way of
illustration only, and thus, while important, may be more wide than deep. As a
result, while it enables us to develop important generalizations about the subject,
it may fail to take sufficient account of the differences among cases.
This study engages in structured, focused, comparative examination of five
very different country experiences, in which national actors, and in most
instances external actors engaged in peacekeeping or peacebuilding, faced
similar dilemmas. A close examination of each enables me to develop general
claims about the preconditions that make accountability more or less feasible,
and about the trade-offs among various goals that are entailed. A further
examination of nearly 30 national experiences allows me to substantiate my
claims with reference to a broader set of cases, including the very distinct
transitions in southern Europe and eastern Europe. This approach allows me,
then, to develop an argument based upon evidence that is both wide and deep.
While the book argues for policies about accountability that are responsive to
local needs and capacities, the reality is that in most instances local actors do not
act alone, but rather are supported or hindered in their transitions by a host of
external actors engaged in peacekeeping or peacebuilding. In only one of the five
cases I examine in depth were international actors not deeply involved in the
 INTRODUCTION 5

transitional period. This is the case of Argentina, yet, as I discuss in Chapter 4, it

engaged in roughly the same set of choices as those where international actors
were more involved. This consistency would seem to substantiate the argument I
develop about the general sets of trade-offs in which states engage, with or
without external assistance. Examination of this case in depth, as well as a
number of the nutshell cases in southern Europe and elsewhere, in which
external actors were not heavily involved, may also help to control for the
possibility of bias by external actors, that they systematically promote a particular
resolution of the tensions between peace and justice.

Peace vs. justice: learning from experience

This book addresses the peace/justice divide at the level of theory and practice,
offering lessons for transitional regimes and those who would seek to help them.
I have discussed elsewhere the moral objections to sacrificing justice to stability,
and do not delve deeply into that complex issue here.6 I address here the
practical continuum of outcomes: the options are not simply prosecution or
pardon, as the most heated polemics of the debate might have us believe, but a
wide range of options from complete amnesty through truth commissions and
lustration (purification or purges) to prosecutions. The question, then, is not
whether or not accountability can be achieved, but what point on the
accountability continuum can be achieved by a given state at a given point in
time. I articulate factors that make accountability more or less likely in a given
country, which are further illustrated by the case studies. Finally, I argue that,
despite the importance of these factors for accountability, there are also
strategies of transition, trade-offs and compromises that regimes (and
international actors assisting them) may make in an attempt to achieve greater
accountability or stability. The emphasis here is on these two practical aspects:
what makes accountability more or less feasible, and what trade-offs are engaged
in by transitional regimes and the external actors that seek to help them? The
result is a more nuanced understanding of the different conditions and
possibilities that new democracies face, and the lesson that there is no one-size-
fits-all prescription that can be handed to transitional regimes considering the
legacy of the past.
It is worth pointing out that what is feasible varies not simply with the
particular context of each country, but with the ‘period’ of transition the country
is in. That is to say, measures that might not be feasible during peace
negotiations or initial transitional stages may become feasible as democracy
becomes increasingly consolidated over time. For example, Argentina scaled
back attempts at accountability in response to coup attempts and threats by the
military in the mid-1980s, but the prospect of further prosecutions was raised
again in 1995, more than a decade after the formal transition to democracy began.
Democratization is a process rather than a moment, and this study examines
countries in the period leading up to transition—the exit of militaries from
6 INTRODUCTION

formal or informal control of governance, the end of a civil war, or the end of an
authoritarian regime. It examines their experiences through
relevant negotiations, explicit and implicit, and articulates the compromises that
are struck throughout. There is no set terminus to the examination of any case,
other than (a) the apparent waning of strong demands for, or opposition to,
accountability, or (b) the completion of activities of the research project in
December 1999.
It is worth noting in passing that an important phenomenon on the rise,
particularly since the detention of General Augusto Pinochet Ugarte in Great
Britain on an arrest warrant issued by a Spanish magistrate, that of
internationalization of justice, is too recent to be examined in great detail here,
although I have examined the proliferation of cases based upon universal
jurisdiction elsewhere.7 Over the next few years it is likely to be the case that
increasing pressure from external legal proceedings will affect domestic choices
about transitional justice in ways good and ill; to date it is only in Chile that we
have seen a significant effect.8 The theory I articulate here may be adapted to
include this phenomenon as it develops—the types of international/external effects
that have included traditional power politics and positive and negative incentives
may also include in future the internationalization of justice and the effects it has
on domestic processes.

Peace vs. justice: beyond simple dichotomies

I have already laid out the basic potential conflict between peace and justice, and
have sought to illustrate that it is more complex than an either/or choice.
However, many transitional leaders seem to believe, or are told by other internal
and external actors alike, either that they must pursue justice because a good
polity cannot be built upon a foundation of injustice, or that they must sacrifice
justice for the sake of stability or reconciliation. Such arguments are heard from
international and domestic human rights organizations or, at the other end of the
spectrum, from members of military organizations fearing prosecution. I address
these arguments in more detail below.9 In Chapter 1 I turn to the question of
what makes accountability more or less feasible for a particular nation, and
strategies that new democracies might deploy to strike a balance between peace
and justice.10 The remainder of the book fleshes out these claims through case
studies drawn from countries around the world. I must turn first, however, to the
peace vs. justice debate in slightly more detail, in order to begin to lay bare what
is really at stake in this stark dilemma.

Seeking peace, seeking justice: arguments for punishment

and amnesty
Those who argue that past human rights abuses must be punished are often
concerned with the value of retribution, deterrence, how the victims themselves
 INTRODUCTION 7

feel, and the impact on society (social pedagogy).11 Conversely, those who argue
for amnesty argue for the need for national reconciliation or stability. I begin by
spelling out the ethical and practical arguments underpinning the defence
of punishment and accountability before turning to the defence of amnesty. It is
worth noting that there are myriad ways in which the case for and against
different modes of punishment can be categorized; this synopsis is meant to
categorize the most common rationales and approaches.12

Practical and ethical bases for punishment

International human rights groups such as Amnesty International and Human
Rights Watch, as well as domestic groups such as the Madres de la Plaza de
Mayo (the mothers of the disappeared in Argentina) place great pressure on new
regimes to address the abuses of the past through prosecution or other forms of
accountability. The arguments they make for punishment fall into several
categories: retributivism, deterrence, victims’ rights and the pedagogic effect of
trials for society.
Retributivism, in plain language, requires that past abusers, such as members
of the junta in Argentina, be punished for one simple reason: their actions were
reprehensible. There is no concern here with deterrence or bolstering the rule of
law: the goal is simply to make clear that wrongdoing must be punished. On this
account, then, selective prosecutions like those carried out in Argentina are
unacceptable,13 because any wrongdoing requires punishment,14 and thus even
low-level criminals must be prosecuted,15 even if they are less accountable than
those who actually ordered them to commit murder or other heinous acts.16 Thus,
the sort of legislation passed in Argentina allowing certain offenders the defence
of superior orders is also unacceptable.
Alternatively, retributive approaches may demand punishment not just
because of the atrocious nature of the crime (that goes without saying), but also
because failure to punish invites repetition, though this point is more important
for deterrence, addressed next17 and is not a purely retributive argument.18 It has
been heard quite commonly in arguments for the war crimes tribunal in the
former Yugoslavia: to fail to punish ethnic cleansing is to invite Milosevic and
leaders elsewhere in the world to look upon it as a legitimate policy tool. For our
purposes, however, the central concern of retributivism is that it is the wrongness
of the act that calls forth punishment, not effects on societies, victims or even
criminals.
However, pursuing prosecution for such reasons may prove problematic in
practice. Such punishment by its very nature may continue the abuse of the legal
system by the previous regime. Not all perpetrators can possibly be punished, so
instead somewhat specious distinctions among state actors are made: some of the
guilty may be punished, but others are untouched and, by implication, innocent.
A pure punishment/prosecution approach to the problem simply continues
socially embedded habits of blaming and divisive ‘us vs. them thinking’ that
8 INTRODUCTION

were adopted under the previous regime: all the blame is put on a select few who
are punished; the rest go free, and the justice system remains suspect. It may be
argued that such a situation occurred with the selective prosecutions in
Argentina.19
Punishment might also prove counterproductive if it provokes a response from
elements of the old regime that may undermine the nascent democracy,
weakening its legitimacy and undermining its authority over the security
forces.20
Alternatively, a transitional regime may wish to punish past abuses if it has
positive behavioural and societal effects—that is, if it helps to deter future
abuses. Given a clear proscription of certain behaviour, and the punishment of
that behaviour when it occurs, future violators will be deterred;
complementarily, a larger societal deterrent is expected to result from the
reinforcement of the rule of law, human rights and democratic processes. The
idea is that, for example, another dirty war is prevented not only because
members of the former junta (or potential copycats) fear punishment but also
because the rule of law is so entrenched as to make the return to lawlessness or
abuse of law virtually impossible.
Thus, punishment may serve to restore (or install) democracy, the rule of law
and respect for human rights, by making it clear that certain actions are not only
proscribed by law, but subject to punishment.21 On the other hand, an amnesty
might encourage future abuses by appearing to condone them. The point is to
demonstrate that the rules of a civilized society ‘cannot be flouted’.22 Both
Amnesty International and Human Rights Watch officially state that it is the
responsibility of new regimes to prosecute, lest abuses recur, or a self-
perpetuating cycle of violence be set in motion by those seeking vengeance for
prior wrongs, but using similar means.23 However, both note that, where this is
not feasible, at the very least a public airing of the truth must take place, as a sort
of second-best deterrent measure.
Prosecution, then, has the effect of deterring potential individual violators, and
strengthening societal respect for the rule of law and new democratic
institutions. Failure to punish perpetrators will weaken the new state by raising
serious doubts about the legitimacy and efficacy of the judicial system.24
Successful punishment will not only enhance the credibility of the new regime,
but also aid its consolidation and reform efforts.25 While not every crime must be
punished, at least some exemplary punishments are necessary for deterrent
purposes.26
However, as we have already noted, rather than reinforce the foundations of a
nascent democracy, attempts at prosecution could undermine them.27 The
possibility that seeking accountability will lead to instability and even a return to
abusive authoritarianism is at the very heart of the dilemma that transitional
regimes face.
Prosecuting perpetrators as a deterrent may also seem morally unsatisfactory,
lacking a moral justification of the right to punish.28 This could have undesirable
 INTRODUCTION 9

effects—what seem to be clearly morally bad actions are not punished because
they do not serve the cause of deterrence.
Finally, however, there is a practical problem with the hope that prosecution will
deter future abuses: it is based on the assumption that the perpetrator knew or
believed her/himself to be wrong, and many leaders and active participants in
authoritarian and abusive regimes have by all accounts not believed themselves
to be doing something wrong. For example, many former military officials in
Argentina continue to insist that the ‘dirty war’ was a justifiable war against
subversion. If this is indeed the case, then such abuses are undeterrable, since
potential abusers will see such punishments as unjustifiable, or simply as
punishment of behaviour not analogous to their own.29
There is another powerful reason to pursue prosecutions: the costs that the
victims have already incurred, and the future costs that may be incurred by
failing to acknowledge their claims.30 Victims may lose their sense of control
and autonomy, and often feel isolated. After state-sponsored human rights
abuses, victims may feel especially isolated, as others in the community will
often have distanced themselves from victims of such abuses, contending that
‘they must have done something to deserve this’, or fearing a sort of guilt by
association.31
The paramount concern, then, should perhaps be to lessen victims’ suffering in
ways responsive to the harm they have suffered: the state should help them
regain a sense of control and help them reintegrate into society. It is also
important that the process of helping them involve their active participation,
helping them to find meaning and a catharsis following what was frequently
seemingly random victimization,32 and restore their dignity by giving them ‘their
day in court’.33
To aid victims, any measures taken should promote the perception of
procedural fairness and participation of the victims by allowing them to tell their
own stories to the greatest extent possible. However, though a formalized
adversarial setting is important, the process does not necessarily have to lead to
incarceration for perpetrators or compensation for the victims. This is because a
significant portion of the benefit for victims comes in publicly telling the truth
and having it formally acknowledged and pronounced: the ‘truth’ about abuses is
often known, but what is important is the official acknowledgement of the
truth;34 further, public disclosure of the identities of perpetrators is a form of
punishment in itself.35 Truth commissions may be one tool to address the pain of
the victims: in South Africa many have argued that simply having a commission
with the trappings of officialdom provided some catharsis for victims; in El
Salvador the truth commission made a point of naming the names of certain
perpetrators in full recognition of the improbability of prosecutions.
While punishment is useful, then, it is not the only, or even frequently the best
solution, if one’s concern is the aid of victims. Trials may be of use, but so may
truth-telling procedures such as truth commissions. Victims may benefit by
10 INTRODUCTION

having a public platform, by having the truth officially endorsed, and by being
compensated.36
Of course, while this approach may have significant benefits for those directly
victimized by previous abusive regimes, it may ignore larger societal needs, such
as the re-establishment of the rule of law and faith in the legitimacy of the
regime through public accountability (through prosecutions or lustration, for
example). In so failing to establish the new regime’s commitment to
human rights and the rule of law, it might inadvertently undermine deterrence
and send the wrong message to potential coup-makers.37 Lingering resentments
over the past may also resurface later, posing problems for the new regime.38
Trials may do more than deter abuses, set past harms right or satisfy the victims:
they may strengthen a new democracy through their educational impact.39 They
are a public spectacle that fosters discussion and forces society to face its recent
past; such discussion, it might be hoped, could help prevent a reversion to the
patterns of abuse that occurred in the past. The goal of a trial need not be solely
to construct a single narrative of victims and victimizers, but rather an open
dialogue that embodies and enables the liberal virtues of toleration and respect.40
However, prosecutions on this basis are still risky: it may just as easily
destabilize a new regime to have a trial conducted for pedagogic purposes as it
would to have a trial conducted for deterrence or pure punishment. Instead of
fostering dialogue, this approach may widen and reify rifts in society. Actors that
one might seek to re-educate are likely to be resistant to assertions that what they
did might have been morally wrong.

Practical and moral grounds for amnesty

At the same time, there may be multiple reasons to promote amnesties,
including: concerns for social peace, reconciliation and stability.
Pragmatic considerations loom large in any consideration of this dilemma.
While human rights advocates and many new democrats, as well as those who
seek to help them in the UN and elsewhere might ideally desire to punish
perpetrators of abuses, the fear of retribution by those perpetrators may convince
even the staunchest human rights advocate that amnesties are preferable to coups.
For example, while President Carlos Menem of Argentina had been persecuted
during the dirty war and vowed not to pardon military figures convicted of
human rights abuses, he did just that when faced with a restive military.
There may also be more normative reasons for amnesty: should accountability
be made a top priority by a nascent, fragile democracy, a rebellious military
could easily end the democratic experiment, and democratic stability and the
goods it protects may be viewed as moral goods themselves.41 The future
stability of a state in which the rule of law reigns and human rights abuses do not
take place might be reasonably placed above the satisfaction and legitimation
generated by prosecutions and punishments, although that trade-off is not cost-
free.42 This trade-off will be apparent to reforming democrats even before a
 INTRODUCTION 11

transition, and likely affect the sacrifices they seek from the authoritarian
regime, particularly in negotiated transitions: reformers will recognize that the
chances of a handover are slim where members of the current regime fear future
retribution.43 There is a very real danger that prosecutions intended to strengthen
the rule of law and nascent democracy could have the reverse effect; thus
reformers may have to accept amnesties and other compromises.44
Finally, in many countries punishing all of those responsible for human rights
abuses may not be feasible because violators abound: this was a serious concern,
for example, in the Uruguayan transition. Defenders of the amnesty there cited
the number of potential defendants, as well as the likely destabilizing effect on
the nation of pursuing all of them.45 As the newly elected president of Guatemala
said in 1985, ‘We’re not going to be able to investigate the past. We would have
to put the entire army in jail.’46
Argentina, facing a large number of potential defendants, took a tiered
approach to prosecutions: only those who gave orders or directly carried them out
were targeted. Even the president’s human rights adviser at the time now argues
that the tactic of selective prosecution, chosen because of the vast number of
perpetrators, was a mistake: it split the military, and generated further resentment
against the civilian regime. Many saw the strategy as mere scapegoating, and the
authority of the judicial system was undermined. Instead, in a country with a
history of structural violence and social scapegoating, the courts were seen as an
instrument of revenge rather than justice.47 In such situations, amnesty might
well be preferable; perhaps the past must simply be pardoned, and society must
focus on the future.
Amnesty for the purpose of ‘national reconciliation’ is often suspect, based as
it may be on cynical self-serving arguments made by officials of abusive
regimes.48 Locating the normative core of the ‘national reconciliation’ defence of
amnesty is difficult: at the base of most arguments are the practical concerns
discussed previously. Meanwhile, many so-called ‘laws of national
reconciliation’ are frequently nothing more than final-hour self-amnesties by
outgoing regimes, padded with rhetoric about a societal need to forgive if not
forget.
However, one might argue forgiveness is a part of social healing: in its
absence, trials might perpetuate an unhealthy cycle of blame and scapegoating.
In countries where massive abuses have occurred, mistrust of fellow citizens and
the justice system is widespread, so prosecutions might be counterproductive. It
might be preferable to pass an amnesty law, and attempt to begin social healing
by focusing on the future rather than the past. In some instances it might be
healthier for all concerned to forgive if not forget, and move forward.49 It might
be the case that reconciliation is not a moral ‘second-best’ because there is no
practical preferable option. There may still be some moral virtue in the process
of reconciling narratives and attempting to reconcile groups and persons.50
Social reconciliation, while it may necessitate amnesty, does not preclude other
forms of ‘punishment’. The revelation of the truth, it is sometimes claimed, may
12 INTRODUCTION

both enable the victims to heal, and also serve to ‘shame’, and thus punish, the
perpetrators. It may also serve to enable national debate over past events that can
eventually enable reconciliation. For this to be the case, of course, amnesties
need to be crafted carefully, so that they allow for a measure of accountability
and revelation of the truth, rather than simply shielding perpetrators.51
However, amnesty on any grounds will still be highly suspect. Perhaps
amnesty does not enable stability, and a stable democracy cannot be built on
such a weak foundation: a government that begins its term by rejecting the rule
of law and accountability undermines its own claims to legitimacy. And it might
be the case that social reconciliation cannot be achieved by simply turning a
blind eye to the past: victims and victimizers alike need a process to achieve
reconciliation—at least a public outing of the truth, perhaps prosecutions as well.
Further, it may be that, even if forgiveness and reconciliation is the ‘right’
approach, it is for the victims, not the government, to approve this path.
Frequently, new democracies choose a compromise approach: the truth
commission. National reconciliation, or at the very least stability, is sought
through offering elements of the old regime amnesty, but at the same time the
various benefits to victims and society as a whole through outing the truth are
sought through a formalized mechanism of truth-telling. There were at least 15
truth commissions, some government sponsored, some not, between 1974 and
1994, and more have been developed since, most notably in Guatemala and
South Africa.52 This particular compromise has been especially common
following transitions in Latin America, where old authoritarian and/or military
rulers retained significant control over the process of transition, limiting the
political feasibility of accountability efforts beyond truth-telling.53
These efforts sought to reap the putative benefits of truth-telling that have
been discussed to this point: in particular vindication of the victims,54 and
official acknowledgement of the truth and in some cases the identity of the
perpetrators. While acknowledged to be compromise results in the face of
political obstacles, truth commissions, say their advocates, aid reconciliation and
stability.55 They may further do so where the mandate of the commission
empowers its members to recommend specific measures of judicial, military,
police or other institutional reform. It is worth recognizing the limits of truth
commissions, both as substitutes for justice and where they are simply badly
implemented.56 They are, notwithstanding their flaws, popular solutions, and are
seldom the only tool deployed, as the cases in this book illustrate.

Choosing between peace and justice while seeking long-

term peace and justice
It is not my intention at this stage to contend that one or another of these
approaches to the peace/justice dilemma is correct, or even to suggest that none
of them is correct and propose my own comprehensive solution to the dilemma.
 INTRODUCTION 13

I do suggest, however, that one needs to look at competing interests before

formulating a policy: some states may need public articulation of the truth, some
states amnesty, some states prosecution, and most a complex admixture of
several. Thus, rather than arguing that one or another approach is universally the
best, a case-by-case analysis is called for, both to assess what is needed and, as I
address shortly, what is feasible. There are numerous competing goods or goals
to be sought, and it may be reasonable to make principled trade-offs among them.57
In the remainder of the book I deal with historical cases and practical
considerations. In Chapter 1, I discuss the practical aspects of the dilemma: given
that there will be a wide spectrum of cases in which accountability is more or
less feasible, it is worth attempting to establish what features of the state itself or
of international politics affect the range of possible outcomes. I then discuss
those factors that appear most salient, drawing on lessons from the comparative
study of civil-military relations and transitional regimes.
As I discussed above, I seek to build on the existing literature on transitional
justice as well as relevant literature on peacekeeping and peacebuilding, but to
add to it by emphasizing a question it fails to address in a truly systematic
fashion: what makes accountability more or less possible?58
The range of options available to a transitional regime will depend, not
surprisingly, on the type of transition it has undergone:59 for example, whether a
country has experienced the complete overthrow of a military regime, or has seen
a negotiated exit from power, or the old regime has orchestrated its own exit
affects the strength of status quo elements and thus affects the accountability that
is feasible. This is undoubtedly the case; however, to tell a fuller story, I seek to
articulate conditions and pressures prior to, during and shortly after the period of
transition that affect the choices made.
I suggest that the level of accountability that is feasible is dependent upon the
nature of civil-military relations and/or the balance of power between the
government and opposition, the nature of international involvement in the
transition, and the nature of past abuses.60 While the last varies significantly across
cases, it is less clear what effect it ultimately has on outcomes.
Does the importance of such pre-existing factors mean that transitional
regimes have no meaningful options with regard to justice? I argue that we
should not be overly deterministic in our assessment of the avenues open to
regimes, and point to possible trade-offs that they may engage in—with or
without the aid of international organizations or non-government organizations
(NGOs)—to pursue reform and accountability. If civil-military relations are a
central element of a new regime’s stability,61 then their ‘corporate interests’ will
be of great concern.62 I suggest that regimes that attempt to take on the question
of accountability will face recalcitrant members of the old regime, and
particularly of the military, not just on this issue but on other issues that are
generally high on the reform agenda of new regimes: the size and budgets of
militaries and their force structure, doctrine and education. For example, in El
Salvador, while prosecution was essentially impossible, the new regime made
14 INTRODUCTION

bold moves in curtailing the military’s autonomy, subordinating it to civilian

control and a new doctrine, reducing its size and budget, and separating it from
the police, which even came to include former rebels.
While addressing these issues that affect military autonomy may be a central
part of consolidating civilian rule and preventing a renaissance of the culture of
abuse, new regimes must recognize that moves on these issues will be viewed
with suspicion by the military and that some trade-offs may need to occur. I
return to this question in the case studies, illustrating the delicate compromises
that new regimes tend to make on the issues of accountability, budgets and
institutional reform of the security forces.
In Chapter 2, I provide thumbnail sketches of a variety of nations not
discussed in further detail here, to help flesh out the universe of approaches to
the dilemma that recent decades have seen. For each case, I suggest which of the
factors I have articulated were salient and how, as well as identify the outcomes
reached on the question of accountability.
Finally, I turn to my five cases, and allow the stories to speak for themselves,
before attempting to analyse the choices each transitional regime made. In the
conclusion I attempt to provide a rough set of prescriptions that vary by case-
type.
The bulk of the book addresses five cases in detail, drawing on literature
dealing with civil-military relations, transitions and democratization in
particular. I go about examining the choices tackled by each regime through a
combination of legal documents, historical and journalistic narrative, and
interviews with relevant political players. I rely not just on what the actors said
their intentions were in constructing particular mechanisms of accountability or
other transitional processes, but on the structural or institutional products and
practical effects of these efforts as well.
Drawing lessons from such a small number of cases is, of course, a risky
proposition. I have sought to make this somewhat more defensible by examining
cases that differ in terms of (a) international involvement, (b) balance of forces
and (c) nature of violations.63 Finally, I examine experiences beyond Latin
America, where the bulk of the cases arose until eastern Europe began to face the
issue, by including South Africa and Sri Lanka as case studies.

The findings and lessons

As I have explained, there are two strands of argument developed in this study,
which are further examined through five in-depth case studies. First, location on
the spectrum of accountability that a country can choose will depend on its
context and history. I argue that international factors, the balance of forces, and
the nature and extent of past abuses and strife affect the degree to which
accountability can be attained. Second, accountability might be traded against
other goods a transitional regime seeks to attain, such as military reform and
reduction, which may contribute to democracy and stability. These strategies do
 INTRODUCTION 15

not simply entail the abandonment of justice for some other political end, but the
considered weighing and trading of important goals. One must ask not only what
is feasible in a given country, a question I seek to shed light on here, but also how
desired goals are to be attained.

Notes

1 Raúl Alfonsín, ‘Never Again in Argentina’, Journal of Democracy, 4, 1 (January

1993).
2 The literature is vast and expanding, and any listing will necessarily be incomplete.
In addition to works cited throughout this chapter, further key volumes include
Robert I.Rotberg and Dennis Thompson (eds), Truth v. Justice: The Morality of
truth commissions (Princeton, NJ: Princeton University Press, 2000); Edward
Newman and Albrecht Schnabel (eds), ‘Recovering from Civil Conflict:
Reconciliation, Peace, and Development’ International Peacekeeping, 9, 2
(Summer 2002) (special issue); Carla Hesse and Robert Post (eds), Human Rights
in Political Transitions: Gettysburg to Bosnia (New York: Zone Books, 1999);
M.Cherif Bassiouni and Madeline H.Morris (eds), ‘Accountability for International
Crimes and Serious Violations of Fundamental Human Rights’, Law and
Contemporary Problems, 59 (1996) (special issue); Richard Louis Siegel,
‘Transitional Justice: A Decade of Debate and Experience’, Human Rights
Quarterly, 20 (1998), pp. 431–54; Michelle Parlevliet, ‘Considering Truth: Dealing
with a Legacy of Gross Human Rights Violations’, Netherlands Quarterly of
Human Rights, 16 (1998), pp. 141–74.
3 See, on the necessity of marrying peace and justice, Rama Mani, Beyond
Retribution: Seeking Justice in the Shadows of War (Cambridge: Polity, 2002).
4 For the challenges of peacebuilding, see Elizabeth M.Cousens and Chetan Kumar,
with Karin Wermester (eds), Peacebuilding as Politics: Cultivating Peace in
Fragile Societies (Boulder, CO: Lynne Rienner, 2001); John Paul Lederach,
Building Peace: Sustainable Reconciliation in Divided Societies (Washington, DC:
US Institute of Peace, 1997); compare a critique of the traditional assumptions of
peacebuilding in Roland Paris, ‘Peacebuilding and the Limits of Liberal
Internationalism’, International Security, 22 (1997), pp. 54–89.
5 Ian Johnstone, Rights and Reconciliation: UN Strategies in El Salvador (Boulder,
CO: Lynne Rienner, 1995).
6 Chandra Sriram, ‘Truth Commissions and Political Theory: Tough Moral Choices
in Transitional Situations’, Netherlands Quarterly of Human Rights, 18, 4
(December 2000).
7 Chandra Lekha Sriram, ‘Contemporary Practice of Universal Jurisdiction:
Disjointed and Disparate, yet Developing’, International Journal of Human Rights,
6, 4 (2002); Sriram, ‘Externalizing Justice Through Universal Jurisdiction—
Problems and Prospects’, Finnish Yearbook of International Law XII (2001).
8 For considered views on both sides of this issue, see Juan E.Mendez, ‘National
Reconciliation, Transnational Justice, and the International Criminal Court’, and
Brad R.Roth, ‘Peaceful Transition and Retrospective Justice: Some Reservations’,
in Ethics and International Affairs, 15, 1 (2001), pp. 25–50.
16 INTRODUCTION

9 See, for example, Nigel S.Rodley, ‘The International Legal Consequences of

Torture, Extra-legal Execution, and Disappearance’ and Ellen Lutz, ‘After the
Elections: Compensating Victims of Human Rights Abuses’, in Ellen L.Lutz, Hurst
Hannum and Kathryn J.Burke (eds), New Directions in Human Rights
(Philadelphia, PA: University of Pennsylvania Press, 1989). I do not, however, deal
with the obligation to prosecute under international law; see Diane Orentlicher,
‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior
Regime’, Yale Law Journal, 100 (1991), pp. 2537–615. See also Margaret Popkin
and Nehal Bhuta, ‘Latin American Amnesties in Comparative Perspective: Can the
Past be Buried?’, Ethics and International Affairs, 13 (1999), pp. 100–3; Carlos
S.Nino, ‘The Duty to Punish Past Abuses of Human Rights Put into Context: The
Case of Argentina’, Yale Law Journal, 100 (1991). On the degree to which these
international obligations are applied by states, see Naomi Roht-Arriaza, ‘The
Developing Jurisprudence on Amnesty’, Human Rights Quarterly, 20 (1998), pp.
843–5. See also Steven R.Ratner and Jason S.Abrams (eds), Accountability for
Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy
(Oxford: Oxford University Press, 2001).
10 Jose Zalaquett, ‘Balancing Ethical Imperatives and Political Constraints: The
Dilemma of New Democracies Confronting Past Human Rights Violations’,
Hastings Law Journal, 43 (1992), p. 1430 articulates this balance well, as one
between the Weberian ethics of responsibility and ethics of conviction.
11 Less common are arguments that refer to the inherent normative value of upholding
the rule of law; it is more common to argue for the importance of the rule of law only
in the context of reinforcing democracy and stability. But see Stanley Cohen, ‘State
Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the
Past’, Law and Social Inquiry, 20, 1 (Winter 1995), p. 22. I elaborate on the value
of the rule of law and ‘doing justice’ in itself elsewhere, in Sriram, ‘Truth
Commissions and Political Theory’.
12 In this I distinguish my categories from, for example, those offered by Mani in
Beyond Retribution, which emphasizes rule of law, rectificatory justice and
distributive justice. While I concur with her thesis that long-term justice and peace
entail distributive justice, and that their absence is a contributor to conflict, I here
emphasize the structural needs not merely of rule of law, but of the larger security
situation, without which long-term positive peace will also be impossible to attain.
Such an emphasis should not enable a minimalist approach to international
assistance that focuses on thin institution-building, but a thick understanding of a
host of societal and individual needs, which include broad security.
13 Nino, ‘The Duty to Punish Past Abuses’, pp. 2619–21, though this is not the
normative position that he takes.
14 Ronald J.Rychlak, ‘Society’s Moral Right to Punish: A Further Exploration of the
Denunciation Theory of Punishment’, Tulane Law Review, 65, 2 (December 1990),
pp. 325–31.
15 Rychlak, ‘Society’s Moral Right’, pp. 326–27. This approach leads to Kant’s
infamously perverse notion of a criminal’s ‘right’ to be punished. Nino, while not
agreeing with retributivism, in essence takes this logic one step further in an attempt
to reconcile liberalism with punishment, by conceiving of punishment as resulting
from consent or contract: Carlos S.Nino, ‘A Consensual Theory of Punishment’,
Philosophy and Public Affairs, 12, 4 (Fall 1983), pp. 289–306.
 INTRODUCTION 17

16 Aryeh Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice
(New York: Random House/Times Books, 1998), pp. 83–4, makes the retributivist
case.
17 Jamal Benomar, ‘Justice After Transitions’, Journal of Democracy, 4, 1 (January
1993), p. 4. See also Neier, War Crimes, p. 222 on the utility of trials, even a small
number of exemplary ones, towards these ends. I would argue that these arguments
that point to the external effects rather than the nature of the crime or offender
ought to be separate from pure retributivist arguments. See Alfonsín, ‘Never Again
in Argentina’, treating retribution and deterrence motivations as opposed; J.L.
Mackie, ‘Morality and the Retributive Emotions’, Criminal Justice Ethics, 1, 1
(Winter/Spring 1982), p. 4.
18 But see Mackie, ‘Morality and Retributive Emotions’, who begins with the
intuitive emotional appeal of retribution and seeks to derive a moral account to
justify punishment. For a similar claim, that adds that there may be times when it is
morally inappropriate to forgive, see Jeffrie Murphy, ‘The Retributive Emotions’,
and ‘Forgiveness and Resentment’, in Jeffrie G.Murphy and Jean Hampton,
Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988), but see
Hampton, ‘Forgiveness, Resentment, and Hatred,’ in the same volume. For a
defence of punishment based on deserts that is not strictly retributive, but depends
rather upon the balancing of benefits and burdens dealt the criminal and victim,
see Wojciech Sadurski, ‘Distributive Justice and the Theory of Punishment’,
Oxford Journal of Legal Studies, 5, 1 (1985), pp. 47–59. See also Martha Minow,
Between Vengeance and Forgiveness: Facing History after Genocide and Mass
Violence (Boston, MA: Beacon Press, 1998), which acknowledges the value of
both extremes, but seeks to identify other purposes and paths between them.
19 This argument is made particularly forcefully in the Argentine context by Jaime
Malamud-Goti, Game Without End: State Terror and the Politics of Justice
(Norman, OK: University of Oklahoma Press, 1996), pp. 187–98.
20 Mani, Beyond Retribution, pp. 33–6, 54–86, elaborates upon this with an emphasis
on restoring rule of law, but not larger structural/institutional reordering. Lynn
Berat and Yossi Shain, ‘Retribution or Truth Telling? Legacies of the Transitional
Phase’, Law and Social Inquiry, 20, 1 (Winter 1995), p. 166; Nino,’ The Duty to
Punish Past Abuses’, p. 2639.
21 I elaborate upon this in Sriram, ‘Truth Commissions and Political Theory’. See also
Mani, Beyond Retribution, pp. 32–3; Jon M.Van Dyke and Gerald W.Berkley,
‘Redressing Human Rights Abuses’, Denver Journal of International Law and
Policy, 20, 2 (1992), pp. 244–5. Alfonsin, ‘Never Again’, p. 19; compare Rychlak,
‘Society’s Moral Right to Punish’, pp. 299–338. While Rychlak’s denunciation
theory is presented as preferable to deterrence theory, the concern with the effects
on society do overlap somewhat: see pp. 331–5.
22 Neier, War Crimes, p. 222, ‘Symposium: Transitions to Democracy’, p. 1056
(remarks of Diane Orentlicher). It should be noted that deterrent concerns may also
underpin calls for truth-telling, for similar reasons: fear of discovery may help
deter future abusers. See Cohen, ‘State Crimes of Previous Regimes’, p. 19.
23 Human Rights Watch, ‘Policy Statement on Accountability for Past Abuses’, and
Amnesty International, ‘Policy Statement on Impunity’, in Neil J.Kritz (ed),
Transitional Justice: How Emerging Democracies Reckon with Former Regimes
(Washington, DC: United States Institute of Peace Press, 1995), vol. I, pp. 217–19.
18 INTRODUCTION

It should be noted, however, that the position of Amnesty International is conflicted

on the question of amnesty, flatly opposing pre-conviction, but not post-conviction,
amnesties. ‘Symposium: Transitions to Democracy and the Rule of Law’,
American University Journal of International Law and Policy, 5, 4 (Summer
1990), pp. 1044–5 (remarks of Nigel Rodley).
24 Diane F.Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights
Violations of a Former Regime’, in Kritz (ed), Transitional Justice vol. I, p. 377.
See also ‘Symposium: Transitions to Democracy’, p. 1040 (comments of Jaime
Malamud-Goti), and Jaime Malamud-Goti, ‘Punishment and a Rights-based
Democracy’, Criminal Justice Ethics, 10 (Summer/Fall 1991), pp. 1–13.
25 See Malamud-Goti, remarks in ‘Symposium: Transitions to Democracy’, pp. 1040–
1.
26 Orentlicher, ‘Settling Accounts’, pp. 407–9. See also Jaime Malamud-Goti,
‘Transitional Governments in the Breach: Why Punish State Criminals?’ in Kritz
(ed.), Transitional Justice, pp. 189–93, although it is worth noting that his more
recent work points to serious flaws in the strategy of selective prosecution.
27 Van Dyke and Berkley, ‘Redressing Human Rights Abuses’, p. 246.
28 Rychlak, ‘Society’s Moral Right to Punish’, pp. 322–5. See also, in connection
with this dilemma, the commentary on the Kantian critique of the utilitarian
defence of punishment in David Little, ‘A Different Kind of Justice: Dealing With
Human Rights Violations in Transitional Societies’, Ethics and International
Affairs, 13 (1999), p. 67. The philosophical issue of the underpinnings of a right to
punish is beyond the scope of this inquiry for the moment.
29 Naomi Roht-Arriaza, ‘The Legal Setting’, in Naomi Roht-Arriaza, Impunity and
Human Rights in International Law and Practice (New York: Oxford University
Press, 1995), p. 14; Rychlak, ‘Society’s Moral Right to Punish’, pp. 309–10.
30 See, in particular, Naomi Roht-Arriaza, ‘Punishment, Redress, and Pardon:
Theoretical and Psychological Approaches’, and Jaime Malamud-Goti, ‘Punishing
Human Rights Abuses in Fledgling Democracies: The Case of Argentina’, in Roht-
Arriaza, Impunity and Human Rights.
31 Roht-Arriaza, ‘Punishment, Redress, and Pardon’, p. 19; Malamud-Goti,
‘Punishing Human Rights Abuses in Fledgling Democracies’, pp. 166–8, and
generally Malamud-Goti, Game Without End; Cohen, ‘State Crimes of Previous
Regimes’, p. 19; Minow, Between Vengeance and Forgiveness, p. 21.
32 Roht-Arriaza, ‘Punishment, Redress, and Pardon’, p. 19; a related claim can be
found in Kenneth Bloomfield, ‘How Should we Remember? The Work of the
Northern Ireland Victims Commission’, in Brandon Hamber (ed.), Past Imperfect:
Dealing with the Past in Northern Ireland and Societies in Transition (Derry/
Londonderry, Northern Ireland: INCORE, 1998), pp. 50–6, a volume that deals
generally with the issues of remembering and forgetting the past and the needs of
victims.
33 Van Dyke and Berkley, ‘Redressing Human Rights Abuses’, p. 244; Berat and
Shain, ‘Retribution or Truth Telling in South Africa?’, p. 166. See also Juan
E.Mendez, ‘In Defense of Transitional Justice’, in A.James McAdams (ed.),
Transitional Justice and the Rule of Law in New Democracies (Notre Dame:
University of Notre Dame Press, 1997).
34 The difference between ‘knowledge’ and official ‘acknowledgement’ is well
articulated by Aryeh Neier, ‘What Should be Done About the Guilty?’, New York
 INTRODUCTION 19

Review of Books, 1 February 1990, p. 34; it is also attributed to Thomas Nagel’s

remarks in Aspen Institute, Justice and Society Program, State Crimes: Punishment
or Pardon? (Wye Center, CO: Aspen Institute, 1989); see also Priscilla Hayner,
‘Fifteen truth commissions—1974 to 1994: A Comparative Study’, Human Rights
Quarterly, 16 (1994), pp. 607–9; and Hayner, Unspeakable Truths: Confronting
State Terror and Atrocity (London: Routledge, 2000). But see Benomar, ‘Justice
After Transitions’, p. 10; Minow, Between Vengeance and Forgiveness, pp. 52–79
generally.
35 Roht-Arriaza, ‘Punishment, Redress, and Pardon’, pp. 19–21; Van Dyke and
Berkley, ‘Redressing Human Rights Abuses’, p. 246. In some instances the
findings of a commission may be used to facilitate regular judicial proceedings: see
Popkin and Roht-Arriaza, ‘Truth as Justice’, p. 105–7.
36 These are just three of the eight goals or goods that one analyst suggests are to be
pursued in such transitional situations. See David A.Crocker, ‘Reckoning with Past
Wrongs: A Normative Framework’, Ethics and International Affairs, 13 (1999),
pp. 47–62.
37 Naomi Roht-Arriaza, ‘Conclusion: Combating Impunity’, in Roht-Arriaza (ed.),
Impunity and Human Rights, p. 292.
38 Berat and Shain, ‘Retribution or Truth Telling in South Africa?’, pp. 166–7.
39 Mark Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick:
Transaction Publishers, 1997).
40 Osiel, Mass Atrocity, p. 2.
41 This is articulated as the ‘reconciliation view’ in Jamal Benomar, ‘Justice After
Transitions’, in Kritz (ed.), Transitional Justice, vol. I, pp. 32–3. See also
Orentlicher, ‘Settling Accounts’, p. 379; Roht-Arriaza, ‘Conclusion: Combating
Impunity’, p. 296.
42 But see Mani, Beyond Retribution, pp. 53–86, on the limits of relying upon rule of
law alone.
43 Van Dyke and Berkley, ‘Redressing Human Rights Abuses’, p. 246.
44 Cohen, ‘State Crimes of Previous Regimes’, p. 34–5.
45 Van Dyke and Berkley, ‘Redressing Human Rights Abuses’, p. 252.
46 Quoted in Cohen, ‘State Crimes of Previous Regimes’, p. 7.
47 Malamud-Goti, Game Without End, esp. pp. 167–98.
48 Cohen, ‘State Crimes of Previous Regimes’, p. 36.
49 Van Dyke and Berkley, ‘Redressing Human Rights Abuses’, p. 246; Cohen, ‘State
Crimes of Previous Regimes’, pp. 41–2; Donald W.Shriver Jr, An Ethic for
Enemies: Forgiveness in Politics (New York: Oxford University Press, 1995).
50 Susan Dwyer, ‘Reconciliation for Realists’, Ethics and International Affairs, 13
(1999).
51 Mani, Beyond Retribution, pp. 111–13; Cohen, ‘State Crimes of Previous
Regimes’, pp. 36–7.
52 Hayner, ‘Fifteen truth commissions’.
53 Margaret Popkin and Naomi Roht-Arriaza, ‘Truth as Justice: Investigatory
Commissions in Latin America’, Law and Social Inquiry, 20, 1 (Winter 1995), pp.
79–116.
54 Popkin and Roht-Arriaza, ‘Truth as Justice’, pp. 100–1.
55 Popkin and Roht-Arriaza, ‘Truth as Justice’, p. 83.
56 Mani, Beyond Retribution, pp. 101–9, states these limits well.
20 INTRODUCTION

57 Crocker, ‘Reckoning with Past Wrongs’, pp. 47–62.

58 For some exceptions see Alexandra Barahona de Brito, Human Rights and
Democratization in Latin America (Oxford: Oxford University Press, 1997), and
Luc Huyse, ‘Justice After Transition: On the Choices Successor Elites Make in
Dealing with the Past’, in ‘Symposium: Law and Lustration: Righting the Wrongs
of the Past’, in Law and Social Inquiry, 20, 1 (Winter 1995). For more general
overviews, see Guillermo O’Donnell and Philippe C.Schmitter, Transitions from
Authoritarian Rule: Tentative Conclusions about Uncertain Democracies
(Baltimore, MD: Johns Hopkins University Press, 1991) and Kritz (ed.),
Transitional Justice.
59 See, for example, Samuel P.Huntington, The Third Wave: Democratization in the
Late Twentieth Century (Norman, OK: University of Oklahoma Press, 1991), esp.
pp. 112–61; Huntington, ‘How Countries Democratize’, Political Science
Quarterly, 106, 4 (1991–92), pp. 579–616; Terry Lynn Karl, ‘Dilemmas of
Democratization in Latin America’, Comparative Politics, 23 (October 1990), pp.
1–21.
60 This is a category that will vary widely, and may be too complex to ultimately have
a clear causal role to play. It may include everything from the duration of a conflict
and casualties sustained by all, to the way in which killings were done (were people
killed or were they disappeared?), whether torture was involved, and the proportion
of the population affected by or implicated in the abuses.
61 See, for example, Morris Janowitz, The Professional Soldier: A Social and
Political Portrait (Glencoe, IL: Free Press, 1960); Samuel Huntington, The Soldier
and the State: the Theory and Politics of Civil: Military Relations (Cambridge, MA:
Belknap/Harvard University Press, 1964); Huntington, ‘Reforming Civil-Military
Relations’, Journal of Democracy, 6, 4 (October 1995), pp. 9–17; Samuel E.Finer,
The Man on Horseback: The Role of the Military in Politics (Boulder, CO:
Westview, 1962, 1988); Eric A.Nordlinger, Soldiers in Politics: Military Coups
and Governments (Englewood Cliffs, NJ: Prentice-Hall, 1977).
62 Alfred Stepan, Rethinking Military Politics: Brazil and the Southern Cone
(Princeton, NJ: Princeton University Press, 1988) and several essays in Constantine
P.Danopoulos (ed.), From Military to Civilian Rule (London: Routledge, 1992).
63 Gary King, Robert O.Keohane and Sidney Verba, Designing Social Inquiry:
Scientific Inference in Qualitative Research (Princeton, NJ: Princeton University
Press, 1994), pp. 137–8. Such selection on the independent explanatory variable is
designed to compensate for the small number of cases.
 1
What makes accountability possible?

Introduction
The debate over ‘law and lustration’ or the treatment of wrongdoers by successor
(often democratic) state regimes has focused on the relative merits of
prosecution, amnesty and truth commissions. However, this literature largely
focuses on desirable outcomes and what is sacrificed given significant state and/
or military opposition to any or all of these measures.1 Few studies have
considered the preconditions under which these measures become more feasible.
In this chapter, I set forth factors that I hypothesize affect the outcome that can
be attained. I also address strategies of transition that may be adopted both by
transitional states and by the international community, and which are informed
by my discussion of the previously discussed factors.
Accountability outcomes can be seen, in one sense, as a function of will and
capacity. A sheer desire by many to see justice done following a regime change
may not make it occur, given practical obstacles like, say, a strong military. On
the other hand, there may be cases where, even though the military is no longer
an obstacle, there are powerful reasons not to pursue full-scale accountability,
for example, because vast sections of society are implicated in the abuses. My
goal, here, is to spell out what limits or enables new regimes in the pursuit of
accountability: what are political obstacles, and for what other reasons might
they choose to forgo justice? Alternatively, what steps can be taken to enhance
the degree of accountability achievable?
In this chapter, I develop the hypotheses that the following factors affect the
degree to which accountability can be attained:

• the level/nature of international involvement,

• the balance of forces between the rulers and civilian/guerrilla opposition, and
• the nature of past human rights abuses, repression and/or civil strife.

This mode of analysis is temporally prior to the more common emphasis on

‘transition type’ and, I argue, more sensitive to differences among cases.
However, this is not simply a deterministic analysis: while the factors I set forth
22 WHAT MAKES ACCOUNTABILITY POSSIBLE?

may set the parameters of state action, there are strategies that states can
employ to achieve more accountability or, if they prefer, to achieve greater
reform to prevent future abuses. I argue that states will end up in a delicate
balancing act, trading off the goods of accountability, and the reform and the
reduction of security forces against each other in most cases.

The dilemma
A specific dilemma drives case selection: the concern here is the actions of
successor regimes dealing with previous human rights abuses in the face of
recalcitrant elements of the government or the military. In these instances, there
has been a precarious transition, and the military often still commands great
power. Governments are faced with the demands of victims and their families, as
well as domestic and/or international human rights organizations and other
external groups, to prosecute such perpetrators. However, they know that while
such actions would satisfy many, and lend legitimacy to the nascent regime,
powerful officials and generals could feel so threatened that they would be
provoked to seize power. Therefore, governments face this putative dilemma:
they must choose between ‘peace’ and ‘justice’. There is a range of measures
from which they can choose: from the strongest, prosecution, through truth
commissions, to the least strong, amnesty for perpetrators.

The existing literature

Much of the existing literature on justice in transitional states consists of case
studies documenting the choices that governments have made, and following
closely their implementation or non-implementation, and their outcomes. These
studies often treat rather well the agonizing choices faced by successor regimes,
and the compromises democratic regimes may make with holdover militaries in
particular. One can find any number of typologies of measures that may be
taken, and analysis of the merits of each. What seems to be missing, however, is
an analysis of the forces that drive these outcomes.
A key foundation for examining the ways that transitional regimes behave
with regard to human rights violations is an understanding of the larger context of
democratization itself. Therefore, it is useful to turn to the democratization
literature, in particular that of Samuel Huntington with regard to the ‘third wave’
of democratization in the late 1980s and 1990s.
The literature on democratization, and on transitional justice more generally,
has emphasized the impact of the nature of the transition from authoritarianism
on the range of options that the new government has.2 While this observation is
useful, I suggest that the nature of the transition is a mediating factor, a product
of the variables I discuss below, as well as a factor in the outcomes of interest to
this study. Here, I briefly discuss the literature on transition types, and discuss its
relation to my hypotheses.
 WHAT MAKES ACCOUNTABILITY POSSIBLE? 23

Huntington articulates four transition types: transformation, transplacement,

replacement and intervention. He suggests that the level of accountability
will range from minimal in transformations, which are initiated by the old
regimes, to substantial in replacements and interventions. In Chapter 2 I
categorize a larger number of countries’ experiences using some of his typology,
so it bears brief examination here.
According to Huntington, the least amount of accountability will be achieved
in situations of transformation from above, where ‘those in power in an
authoritarian regime take the lead and play the decisive role in ending that
regime and changing it into a democratic system’.3 Slightly more accountability
will be achieved in a transplacement, where ‘democratization is produced by the
combined actions of government and opposition’; while the status quo elements
aren’t willing to initiate change, they will ultimately recognize the need to
negotiate it.4 Replacement occurs when the old regime is ultimately replaced by
the opposition through a struggle, frequently coup or civil war; here
accountability, according to Huntington, is particularly feasible.5 Finally,
interventions by external forces may bring about a change in regime and in
regime type; as I explain below, for our purposes here they can be placed into an
aggregate category, ‘effective overthrow’, with replacements.
It should now be apparent that, while transition type is important, we must begin
our inquiry at the stage before the transition, and understand the balances of
power between civilian and military, government and opposition, as well as
international factors. It is these factors that truly affect accountability, although
the nature of the transition is an important, and visible, mediating factor.
Given the presence of strong demands for accountability, what are the factors
that affect which measures are actually selected? Little extant work seeks to
specify the conditions, and most of it does not systematically operationalize them.6

Factors affecting accountability

I argue that the relevant factors to be considered are:

(1) the protractedness and intensity of the prior conflict or abuses, in other
words the nature and extent of repression, rights abuses and the impact of
war;
(2) the prior state of civil-military relations, as well as subsequent reform; and
(3) the effect of international factors and politics on the peace/justice process.

First, the nature of human rights violations. Ex ante, it would appear that a long
and bloody conflict could contribute to the prosecution of crimes, or hinder
them. Certainly the desire for justice on the part of the victims could increase
with the aggregation of abuses;7 on the other hand, exhaustion from the conflict
could lead many to compromise with former abusers and grant amnesty. Thus
the number of years the conflict endured and the casualties incurred matters, but
24 WHAT MAKES ACCOUNTABILITY POSSIBLE?

the nature of violations also matters: disappearances and torture have different
psychological, social and political effects from killings where the location of the
dead is acknowledged or detentions that do not result in deaths.
A related issue is the strength of domestic opposition/guerrilla groups. This
would, clearly, have an effect on the protractedness of a conflict, but the
presence of an alternative centre of power can be expected to influence outcomes
in its own right. The relative strengths of governments and opposition
movements are better dealt with in the next category, civil-military relations,
which may be cast as a larger category dealing with the ‘balance of forces’.
Next, civil-military relations and the ‘balance of forces’. It seems obvious that
where a military establishment has kept a civilian government subordinate, or
where the government was a military one, the transition and prosecutions will be
more difficult, since the perpetrators will be in possession of the power to halt
change. Similarly, the degree to which a military has reformed may affect the
degree of justice possible, though this factor is at least partially contingent upon
the former nature of civil-military relations. Justice may be limited generally
where the military has penetrated civil society and civilian political life.
Furthermore, military reform and the pursuit of justice may be traded off against
one another. The corporate interests of the military are likely to be protected in at
least one of three aspects: the protection of members from prosecution, the
maintenance of large military budgets, and the defence of institutional
prerogatives.8 Progress may be achieved on one or two, but probably not all
three, of these areas. I discuss these ‘strategies of transition’ below.
The relative strengths of government and opposition/guerrilla groups will be
important, as they will affect the amount of leverage each has in a transition,
negotiated or otherwise. While much attention has been paid to the role of
military opposition, civilian opposition should not be discounted. In many
countries opposition was led by political parties, or human rights NGOs, or
church groups, placing pressure at pivotal moments on repressive regimes.
Finally, international/external factors. Not only international involvement in a
conflict and its resolution, but also shifts in the structure of international politics,
may affect the nature of transitions. It may be the case that international factors are
permissive of or more directly manipulative of regime change.9 Regimes may
change because the external environment has changed (for example, a patron
ceases to support a repressive regime), in part as a result of shifting norms, or
examples set by neighbours, in response to pressure such as aid conditionality, or
because of the forces of transnational non-state actors. While permissive
conditions are certainly important in that they create unique historical
opportunities for change, they cannot frequently be created; thus my discussion
of strategies of transition focuses only on those international factors that seem
more manipulable. I touch only briefly on the permissive conditions that were
perhaps especially important in the so-called ‘third wave’ of democratization.
Broad shifts in international politics, in particular the end of the Cold War,
affected a number of transitional states: many repressive regimes lost
 WHAT MAKES ACCOUNTABILITY POSSIBLE? 25

guarantees of external support, and in the former Soviet bloc the threat that the
Soviet Union would intervene to quash liberalization was removed. Conversely,
the vanishing of the Soviet threat, real or perceived, altered US policies towards
states under its influence.
Another external factor that undoubtedly played an enabling role is what is
sometimes referred to as the ‘human rights revolution’. The proliferation of
NGOs, both domestic and international, as well as the increase in numbers of
conventions on rights and signatories to them, as well as United Nations, (UN),
European Union (EU) and Organization of American States (OAS) bodies
monitoring and occasionally enforcing these rights can be said to have changed
the environment in which state actors worked. While the Cold War may have
protected dictators in either sphere of influence from accountability for a time,
with its end the new norms were able to play a greater, even unexpected, role.10
Arguably, to the degree that external arbiters are involved in the negotiation of
peace, greater justice might be possible, since militaries might be cowed by the
fear of further intervention. Conversely, however, external players may be more
willing to make compromises about justice. In discussing ‘strategies of transition’,
I address possible strategies that international actors and transitional regimes
might employ to facilitate transitions and transitional justice.

The players in transitions

Two distinct sets of actors may be involved in framing strategies for transitions:
international actors such as the UN (or strong actors like the USA), and the
transitional states themselves. After examining the various factors that enhance or
impede the possibility of imposing accountability, I address the ways that some
of these factors may be manipulated by transitional strategies.
International or external actors such as the UN or the USA can have significant
effects on transitions in several ways. First, they may pressure regimes to
liberalize, or warring factions to negotiate, through ‘good offices’, or more active
negotiations such as those undertaken by the ‘friends of the secretary-general’ in
Cambodia and El Salvador. They may condition aid on altered policies. Such
actions may help tip the ‘balance of force’ if not in favour of the opposition, at
least in favour of negotiation. Finally, they may provide funds for mechanisms of
accountability, such as the significant contributions made to the Salvadoran truth
commission by the UN, and in particular member states such as the United
States.
Democratizing regimes themselves may wish to develop strategies that
reassure militaries that their corporate status is protected. This will, of course, be
more important where there has been significant military involvement in or
domination of politics; militaries may be eased out of power only with certain
guarantees regarding protection of their budgetary allocations, or amnesties of at
least a few high-ranking officers, or promises that the military itself will not be
radically restructured.
26 WHAT MAKES ACCOUNTABILITY POSSIBLE?

The factors in depth: theoretical discussion

The nature of past abuses and conflict

The duration of a conflict or its intensity11 may affect the choices available at a
transition in a number of ways. An intense conflict may reach a stalemate in
which, out of exhaustion, the parties are more amenable to political
compromises. Simultaneously, however, a prolonged conflict may mean that
there are many victims and perpetrators, such that while the demand for
accountability may be intense, the obstacles to judicial or other action may also
be greater.
Compromises may also be more attainable when the parties reach what is
referred to as a ‘hurting stalemate’.12 The conditions may be most ripe for a
peace accord when both parties to a civil conflict have become exhausted, and it
appears that no resolution is available in which either side ‘wins’.13 It may take
some time for this stalemate to be reached, however, because rebels and
governments have different aims: governments win by defeating the rebels,
while rebels win simply by enduring. For negotiations to begin, both sides need
to have lost faith in the possibility of a military victory and be seeking a way to
cut their losses through a negotiated compromise.14 At this point third-party
mediators may become particularly useful, especially in holding a negotiating
party to its changed perception of incentives.15 El Salvador in late 1989 appears
to have reached such a stalemate, so that international mediation was more likely
to yield results. Alternatively, exhaustion may even incite an authoritarian
regime not faced with a strong military opponent to initiate transition. This may
be particularly true, as we shall see, with military regimes that begin to feel that
their own institutional efficacy is being undermined by the burdens of
governance.
However, prolonged conflicts also frequently generate more victims, making a
reckoning significantly more risky. Victims and their families may clamour for
punishment, but not only are there powerful perpetrators objecting, there are a
vast number of them. This may mean that, at best, some sort of selective
approach must be pursued, as with the selective prosecutions in Argentina.
Additionally, where repression was not only institutionalized but pervaded the
society, it may be particularly difficult and dangerous to pursue all perpetrators
and collaborators.16 Thus accountability may be particularly hard to seek in
instances where repression was prolonged and/or intense. It matters too, as I have
already discussed, what form the repression took. Disappearances may be more
difficult to overlook because of the trauma felt by not knowing the locations of
loved ones; outright killings may be brutal, but at least this issue is resolved.
Similarly, in some countries killings may have been relatively few, but the
number of detentions large, as in Uruguay: this may or may not make forward-
looking policies easier.
 WHAT MAKES ACCOUNTABILITY POSSIBLE? 27

The role of external and international factors

Pressures on a transitional regime may derive from a regional or other
superpower or from international organizations or both. I discuss the possibilities
of these two types of influence in turn.
Transitional regimes may be subject to the influences of either a regional
power or a great power. In most of the cases examined, the power was the USA,
though in the case of Sri Lanka the influence of India on its tiny neighbour
should not be underestimated. Not surprisingly, the influence of a great power
may cut both ways. The USA was heavily involved in the domestic and military
politics of its Latin American neighbours, frequently to the detriment of human
rights. However, there was always a countercurrent, deriving in particular from
congressional opinion, that occasionally led US policy to pressure recipients of
military aid to respect human rights. While this latter policy was not always
successful, or of a high priority, the political landscape changed significantly
with the end of the Cold War.17 The US conceptualization of its interests in the
region changed significantly: it no longer saw communism as a threat and thus
concerns that its allies and military aid recipients (at least in the region) were
non-democratic or abusive of human rights came to the fore. This change in
interests or the conception of interests meant that US influence was at times now
shifted to encouraging peace accords and promoting human rights: I next discuss
some of the functional ways that external influence might shape domestic
accords.
Institutions (or regional or global superpowers playing an analogous role) may
help promote peace agreements and/or human rights accountability in two related
ways: they may help lower transactions costs and thus facilitate negotiations, and
they may apply pressure to induce compromises. Institutions may enable
compromise and agreements; they reduce transactions costs and enable
cooperation.18 In particular, they provide neutral fora for interactions, and more
importantly may lessen the risks of cheating by increasing transparency. In many
of the current transition cases, the impact is increased because of the monitoring
roles institutions may play.19 Institutions may also facilitate agreement because
they are perceived as relatively neutral actors in politically charged contexts, and
because they in turn create transitional institutions within the country: for
example, the peace negotiations in El Salvador created the transitional body, the
national commission for the consolidation of peace (COPAZ).20
Not only may institutions (or large powers) facilitate and monitor agreements,
they may help induce them by altering the incentives of the parties. Through the
use of carrot and stick, such as aid or the denial of it, external actors may
manipulate parties. Institutions such as the UN may have fewer direct aid dollars
to use as carrot or stick, but may still be important for the role that their agencies
play in creating programmes and funnelling aid dollars into post-conflict
development.21
28 WHAT MAKES ACCOUNTABILITY POSSIBLE?

In addition, it might be argued that the spread of norms of democracy and human
rights aid transitions to democracy and encourage governments to respect human
rights and reform civil-military relations.22 While the influence of norms on
political actors should not be discounted, it is of course notoriously hard to
measure, and I focus on the more tangible or observable influences exerted by
great powers and international bodies.

Civil-military relations and the balance of forces

The ‘balance of forces’ element turns out, when unpacked, to be rather more
complex than it appears at first glance. It is no more than tautology that regimes
where militaries are subordinate to civilians are regimes where militaries do not
intervene in politics. What is more interesting is why, when a military has
intervened in politics, directly or indirectly, it might choose to withdraw. There are
really two steps to this question: what sort of resistance from below might push a
military to withdraw from politics, and, once the decision is taken, how much
reform will the military allow? I call these steps, respectively, the question of
balance of forces and the question of corporate interests.
The ‘balance of forces’ level of analysis itself has two elements: civil-military
relations and the relative strengths of state security forces and resistance (for
example, guerrilla) groups.
Civil-military relations themselves are a key factor. It is generally
acknowledged that there is something unique about militaries in comparison to
other institutions, even highly disciplined and hierarchical state structures. The
military is separated from the rest of society by virtue of its education,
socialization and training, by the values assumed by its members, and by its
extremely rigid and vertical hierarchy.23 However, as is discussed in greater
detail below, while this separation and specialization can make for ‘good’
professionalism in some countries, it can make for ‘bad’ or praetorian
professional militaries in some developing societies.24
In many developing countries the traditional isolation of the military from
society was compounded by the effects of the so-called doctrine of national
security (DNS), particularly in Latin American states. The DNS can be
understood as a direct result of the east-west ideological and geopolitical struggle
between the USA and the USSR in the postwar era. With the advent of the
bilateral nuclear threat, the USA’s strategic conceptions shifted, particularly with
respect to the countries in its sphere of influence, from an emphasis on total war
to that of flexible response. The security threat was seen to be not simply from
external attack, but from internal, inevitably viewed as communist, subversion.
American security policy with respect to the region was, therefore, concerned
with aiding local governments and militaries in combating such internal
subversion.25
The specific result of this regional strategy was the creation, beginning in the
early 1950s, of mutual defence pacts and an extensive programme of training
 WHAT MAKES ACCOUNTABILITY POSSIBLE? 29

local military members by the USA either in the USA or at extraterritorial

bases.26 The revolution in Cuba fanned the flames of anticommunist paranoia
and of the DNS. Secretary of Defense McNamara articulated the policy in June of
1963 in the following way: it would serve American interests to provide aid to
local armies to face local conflicts and subversion.27 Despite some shifts in
application, the doctrine remained intact into the Reagan administration.28
The content of the DNS itself can, in retrospect, be seen to be a precursor to
the repression that many of these regimes would adopt in the name of ‘security’.
The communist threat was thought to be everywhere, and, most insidiously, to
come from within, in the form of subversives and guerrillas who would destroy
the state and the security of the region.29 Thus, there was a heavy emphasis on
rooting out not only active subversives, but elements of the civilian population
that might support them. This concern necessitated the creation of elaborate and
secret communications and intelligence.30 Further, and somewhat
counterintuitively, some variants of the DNS drew on French counterinsurgency
doctrine in Indochina, which viewed various nationalisms as also potentially
subversive.31
Also relevant is the strength of civil society and the level of civilian
opposition. Obviously, guerrilla groups are not the only form of opposition to
military or otherwise repressive regimes. Civilian opposition may come in the
form of human rights and other NGOs, opposition political parties, or other social
networks of resistance. Many expect that civic traditions and various civilian
interactions and organizations would serve as a shield against authoritarian rule
or, should it come, perhaps help to eventually bring it down. That is, where
people are linked through trust, norms and networks, they can overcome
collective action problems to defend rights and democracy. Alternatively, where
they are relatively atomized, such coordination will be much harder.32
While it is not the purpose of this study to examine or test for the effects of
‘civil society’ per se, I observe where this phenomenon appears to be more or
less important. Thus, where there has been a longer tradition of democracy one
might expect it to be more difficult for an authoritarian regime to entrench itself;
one might also expect that strong NGO or other political opposition play a
significant role in the generation and nature of the transition.
Even before authoritarian and/or military regimes step down, the question of
the relative strengths of government and opposition is a salient one. Elites do not
operate in a vacuum, but rather their hold on power will depend on the degree to
which they have consolidated and institutionalized it and the degree of
opposition offered by other societal forces. Regimes may not simply choose to
leave power, but rather the transition may be initiated by the shifting nature of
domestic politics and power alliances.33
Obviously where a military/authoritarian regime has actually been ousted it
will be in a particularly weak position vis-à-vis the forces of reform. However,
the situations examined in this book are more nuanced. Further, it is worth noting
that even where the military remains relatively strong within an authoritarian
30 WHAT MAKES ACCOUNTABILITY POSSIBLE?

regime it may not necessarily oppose a democratic transition: it might even lead
it if it views such a transition as in its interests.34 Nonetheless, the military will
be concerned to protect its own interests: as we shall see, this self-protection will
affect the level of accountability for past abuses that can be achieved, and also
may limit the extent of other reforms that civilians can effectuate.

Strategies and trade-offs of transition: lessons from

military corporatism
Having discussed the basic factors that affect the degree to which accountability
is possible, I now turn to a key area where careful strategy is required, but where
levels of accountability (or other goods) may be manipulated to some degree by
new regimes or their international mentors. At issue here is what provokes
military intervention in politics, the way that militaries are moved ‘back to the
barracks’, and the role of military corporate culture. From these I derive lessons
about the ways that these players can and do make trade-offs among goods/ends
of which militaries will be fiercely suspicious: accountability, institutional/
doctrinal reform and budgetary reduction.
Naturally, to some degree the possibilities for change in any of these arenas
will be affected by the larger context, that is, the nature of the transition.35 For
example, transitional regimes will have much greater leeway where previous
regimes (and, where the regime itself is not military, their military supporters)
have been replaced. However, many cases will be those of negotiated transition,
where military forces allow a civilian government to come to power, or refrain
from intervention as a civilian authoritarian government democratizes.36 Thus it
becomes important why the move back to the barracks takes place.
It has been argued that to move soldiers back to the barracks, nothing more is
needed than to reverse the processes that provoked the military to intervene in
the first place. However, the reasons adduced for the original intervention are
wide-ranging—from sectional, class or ethnic interests to a belief that the
government is inefficient or pursuing dangerous policies.37 By contrast, in many
cases the return to the barracks depends upon the militaries themselves, and
results from the breakdown of military regimes and the recognition of this
breakdown.38 More recently, some have recognized the need to reassure officers
about the maintenance of their institutional positions. However, even this
instructive analysis may not tell the entire story: militaries and security agencies
may be worried about their ‘corporate status’, but may be worried about some
elements of it more than others.
Following Stepan, in the book I analyse three issue areas of concern to
militaries in transitional situations: how the new regime handles the legacy of
human rights violations, how it deals with the organizational mission, structure
and control of the military, and how it handles the military budget.39 A closer
examination of cases will reveal the compromises that transitional regimes must
make in arenas of deep concern to militaries. Encroachment on one traditional
 WHAT MAKES ACCOUNTABILITY POSSIBLE? 31

area of military power (say, the budget) will likely be simultaneous with
significant compromise in another area (say, accountability). While it is possible
to further disaggregate areas of military concern into sub-issue areas, that is not
necessary for our purposes.40

Militaries, society and intervention

Clearly, the level of professionalization of the military matters, as does instability
in society and politics, although the reasons for intervention in and withdrawal
from politics are more complex. Some emphasize the level of professionalization
of the military and, in particular, the officer corps,41 arguing that attaining
objective civilian control would result from maximizing military professionalism,
making it a tool of the state and keeping it out of politics,42 in opposition to
earlier claims that intervention is more likely to occur where there was a tradition
of military involvement in politics or where there were low levels of social
mobilization.43 It may also be the case that democracies are able to reform civil-
military relations with the diffusion of norms of civilian control that has taken
place around the globe, and where civilianizing is in the interests of both
militaries and civilians (because military control of the state is difficult and
distracts militaries from their core functions), and because, other than the costs
imposed on militaries themselves, military reform is virtually cost-free to
societies.44
The impact of professionalism may be disputed: it can just as easily provide an
impetus to intervention by the military, not least because the corporate loyalty
that is integral to professionalism also generates an autonomous corporate
interest that may be served by intervention.45 Given the many advantages which
militaries have over civilians, including superiority in organization,
emotionalized symbolic status and a monopoly of arms, perhaps the interesting
question is why we ever see civilian governments. The answer may be found in
the political weaknesses of militaries: they lack legitimacy and the technical
capacity to administer any but the most primitive community.46 Several factors
inhibit intervention, including the (Janus-faced) professionalism, fear of loss (of
fighting capacity, of a civil war) and a belief in the principle of civilian
supremacy.47
On the other hand, intervention results from a confluence of factors, including
motive, mood of the military, and opportunities presented for intervention.
Motives include various sectional interests, and claims about the ‘national
interest’, as well as claims about the role of soldiers as saviours of countries.48
‘Mood’ factors are related to ‘self-importance’, or the degree to which militaries
consider themselves superior to civilians.49 Finally, opportunities to intervene
arise where civilians are more dependent on militaries, or where there are
domestic crises or power vacuums.50 Intervention will happen most frequently
where soldiers do not believe in civilian supremacy, and civilians are dependent
upon the military.51
32 WHAT MAKES ACCOUNTABILITY POSSIBLE?

Conditions include the disintegration of the original conspiratorial group, the

growing divergence of interest between the junta of rulers and the military who
head active fighting services, and the political difficulties of the regime.52
Conditions of military withdrawal may include, inter alia, a lack of self-
confidence, a belief in civilian supremacy, adequate protection of corporate
interests, and a civilian organization that can assume power. The case
studies illustrate this logic: African scholars argue that the lack of political order
is endemic, and is a key enabling factor for military intervention.53 Alternatively,
some argue that handbacks occur where the military’s unity is threatened, or
where there is a civilian renewal.54 Thus many argue intervention is more likely
where it is seen to be in the corporate interests of the military, and where
civilians are weak and there is disorder. Militaries are generally not pushed back
to the barracks by civilian pressure, but by internal rifts that make governing
difficult.

Militaries, transitions and democratization: more recent

arguments
The more recent literature on intervention and withdrawal makes somewhat
different arguments. Militaries’ corporate interests still matter, but so does the
strength of civilian players and the role of outside players.55 First, there are
factors attributable to civilian actors and societal dynamics. There is widespread
consensus that intervention is facilitated by weak civilian rulers, and that return
to civilian rule may occur when civilians resolve their differences, and the
military begins to lack performance legitimacy.56 Such indigenous forces aid
democratization generally, by pushing for it and highlighting the declining
legitimacy of authoritarian regimes in a world where democracy is increasingly
valued.57 Military corporate interests also play a role. Military rulers may initiate
change in response to internal divisions; they will also prioritize military
corporate concerns;58 concerns about corporate interests that may have incited
intervention in the first place are not likely to have waned.59 Finally, international
factors play an important role. These include outside pressure on regimes
regarding human rights records, pressure to democratize in order to join the
North Atlantic Treaty Organization (NATO), and loss or embarrassment in an
international conflict.60

Militaries and transitions: hypotheses about strategies and

trade-offs
What, then, are the issues of greatest concern to militaries in transitions? I am
less interested here in external factors that might prompt militaries to try to
reform, than in the processes by which such reform is implemented, and the
interests that are defended or not defended.61 According to many analysts,
militaries will take care to protect their corporate interests in any transitional
 WHAT MAKES ACCOUNTABILITY POSSIBLE? 33

period. Thus, one would expect them to take measures to ensure their continued
institutional prerogatives, sufficient budgets and the protection of members from
retribution for past deeds.62 Each term merits some additional degree of
explication here.
The treatment of members with regard to past human rights violations, or
accountability, encompasses measures beyond attempts at prosecution. It
includes lustration or purges, in which groups of those accountable for abuses are
removed from posts or barred from holding further public office, criminal
accountability and even the naming of some perpetrators by truth commissions.
While the last is only debatably a true punishment, those responsible will resist it
because of the damage it does to their status and the potential that one type of
accountability could lead to another.
Members of the security forces will be wary about any cut in their budget
because, in the context of shrinking missions, they fear that they could be
eliminated or pared down beyond recognition. Bodies that once acted with
impunity internally, when limited to defence of territorial sovereignty and facing
no plausible external threats, will fear that the guns/butter trade-off will turn
increasingly to their disadvantage. They will thus seek not only to maintain high
budgets but control over the budgetary process.
Institutional reform will restrict long-standing institutional prerogatives that
security forces may be concerned with protecting. Reforms are liable to include
civilian control over the armed forces, ranging from who heads the ministry of
defence to who selects the heads of the various branches of the armed forces.
Another concern is the reform of the institutions themselves, for example the
separation of the police from the military and the appointment of a civilian to
head the police, and changes in doctrine and education in both bodies. They will
be concerned that institutional essence will be harmed, and that civilians will
interfere heavily in traditions that, in the minds of officers, have always worked.
A few caveats are in order here. The argument I am making is certainly not
that accountability ought to be completely jettisoned in order to move militaries
out of power. It is also not a claim that instituting institutional reform alone will
safeguard against further abuses or facilitate social peace.63 It is, rather, a claim
that such structural reforms are a vital component underpinning stability, without
which social justice and positive peace cannot be achieved.
As the cases I examine further suggest, militaries may be more concerned
about some of these interests than others. For example, in Argentina and El
Salvador, members of the military were at various points subject to some degree
of retribution for past behaviour.64 At least part of the explanation may be that
concern for corporate interests does not extend to all members, but generally
pertains to the interests of the elite. Thus, one might argue, the military itself is
left intact, and many officers are left unpunished, while individuals may be
called to account for crimes of a prior regime.65
In fact, trade-offs may be made among the three sorts of interests held by the
military, in corporate autonomy, treatment of its members, and in budgetary
34 WHAT MAKES ACCOUNTABILITY POSSIBLE?

allocations. As Stepan argues, ‘[i]n a democratizing regime the degree of

articulated contestation by the military is strongly affected by the extent to which
there is intense dispute or substantial agreement’ concerning the three issue areas.66
In this inquiry, I examine and apply the thesis that, as the recent ‘back to the
barracks’ literature suggests, there is a range of concerns held by militaries that
must be satisfied if civilian rule is to be stable. These concerns fall into
roughly three categories: budgetary levels, institutional prerogatives and the
treatment of members accused of human rights violations. New regimes may be
able to force compromise of some or all of these issues, but will have to
compromise as well. In order to force long-term institutional reform, punishment
might be sacrificed. Alternatively, budgets might be maintained at an
unnecessarily high level so that some form of reckoning with past abuses can
take place.67

Conclusions
In this chapter I have set forth two sets of hypotheses regarding the possibilities
for transitional regimes, with or without the assistance of external players, to
achieve accountability. I first laid out hypotheses about what factors make
accountability more or less possible in a given country. These are the role of
international actors, the balance of forces and the nature of past abuses and
conflicts. In the case studies, I articulate the role of each of these factors, and
identify which appear to be the most salient.
The second set of hypotheses asks how regimes and/or aid-givers might seek
to achieve more accountability, or partial accountability along with reform.
Drawing on the literature dealing with military corporatism, I suggest that
regimes will have to make trade-offs among accountability, institutional/
doctrinal reform and military budget levels. More accountability may be
achieved by sacrificing some elements of reform; alternatively, lesser measures
of accountability may enable reform measures that might help entrench stability
and democratic civil-military relations. In my five case studies, I examine the
trade-offs that each country made on these issues.
The next chapter contains nutshell case studies of about 30 countries that have
confronted the dilemma I examine, describing them in terms of the history of
abuses, the nature of the transition, the factors I have articulated, and the
outcomes. The attempt is to capture the general contours of the larger set of
cases; the in-depth studies go into greater detail and analysis.

Notes

1 See Huyse, ‘Symposium: Law and Lustration’; Roht-Arriaza, Impunity and Human
Rights.
 WHAT MAKES ACCOUNTABILITY POSSIBLE? 35

2 Huntington, The Third Wave, pp. 112–61; Huntington, ‘How Countries

Democratize’; Zalaquett in Kritz (ed.), Transitional Justice, vol. I, pp. 18–19; Karl,
‘Dilemmas of Democratization’.
3 Huntington, The Third Wave, p. 124; see pp. 124–41 on transformations generally.
4 Huntington, The Third Wave, p. 151.
5 Huntington, The Third Wave, pp. 142–51. Compare Zalaquett’s more nuanced set of
transition types. For our purposes, however, Huntington’s simpler categories will
suffice.
6 While I build on the few pieces that do, I seek to make my factors as specific as
possible without articulating an unwieldy number of them. Compare Barahona de
Brito, Human Rights and Democratization, pp. 33–4, 191, which identifies factors
such as the legacy of military rule, the political nature of the transition, and
political conditions in the successor regime; see also Huyse, ‘Justice After
Transition’, emphasizing past legacies, the international legal context and the mode
of transition. Both are rich sets of criteria, but somewhat difficult to operationalize.
7 Berat and Shain, ‘Retribution or Truth Telling in South Africa?’, p. 176. Stepan
argues that the lesser brutality in Brazil (as compared to Argentina) made it easier
for the victims and members of the opposition to accept amnesties: Rethinking
Military Politics, p. 64.
8 This I call generally institutional reform.
9 The various modes of international influence over regime change are characterized
by Philippe C.Schmitter in ‘The International Context of Contemporary
Democratization’, Stanford Journal of International Affairs (Fall/Winter 1993), pp.
1–34, as control, contagion, conditionality and consent.
10 I am again grateful to Alexandra Barahona de Brito for her discussions with me of
this point.
11 This is partially indicated by the number of deaths in armed conflict or the number
of victims of government or opposition group-sponsored human rights abuses, as
well as the length of time that the conflict endured.
12 I.William Zartman (ed.), Elusive Peace: Negotiating an End to Civil Wars,
(Washington, DC: Brookings, 1995), especially Zartman, ‘Dynamics and
Constraints in Negotiations in Internal Conflicts’.
13 Fen Osler Hampson, Nurturing Peace: Why Peace Settlements Succeed or Fail
(Washington, DC: United States Institute of Peace, 1996), pp. 11–21, 23 and
passim.
14 Zartman, ‘Dynamics and Constraints’, p. 18.
15 Zartman, ‘Dynamics and Constraints’, p. 19.
16 This problem, compounded with serious concerns about the rule of law and
retroactive justice, pervaded the eastern European transitions.
17 On the possibilities and limits of US influence over recipients of military aid, see
Richard L.Millett, ‘The Limits of Influence: The United States and the Military in
Central America and the Caribbean’, in Louis W.Goodman, Johanna
S.R.Mendelson and Juan Rial (eds), The Military and Democracy: The Future of
Civil-Military Relations in Latin America (US: Lexington Books, 1990), pp. 123–
40. Noting the impact of the shift in regional or international power balances with
the onset of détente or the end of the Cold War, see generally Hampson, Nurturing
Peace.
36 WHAT MAKES ACCOUNTABILITY POSSIBLE?

18 Robert O.Keohane, After Hegemony: Cooperation and Discord in the World

Political Economy (Princeton, NJ: Princeton University Press, 1984) focuses on the
interstate negotiation.
19 See Hampson, Nurturing Peace, p. 23, and on the Salvadoran case, pp. 129–37.
20 Hampson, Nurturing Peace, pp. 221–2.
21 Institutions may also set the stage for a transition through other sorts of
conditionality, according to Schmitter, ‘The International Context’, pp. 22–3.
22 On the last issue, see Samuel P.Huntington, ‘Reforming Civil-Military Relations’,
in Larry Diamond and Marc F.Plattner, Civil-Military Relations and Democracy
(Baltimore, MD: Johns Hopkins University Press, 1996), pp. 3–11.
23 Janowitz, The Professional Soldier, pp. 175–95; Finer, The Man on Horseback. See
also Juan Rial, ‘The Armed Forces and the Question of Democracy in Latin
America’, in Goodman et al., The Military and Democracy, p. 15. On
contemporary third world strongmen more generally, see Barry Rubin, Modern
Dictators: Third World Coup-makers, Strongmen, and Populist Tyrants (New
York: McGraw-Hill, 1987).
24 For example, Michael Desch argues that countries generate the ‘good’
professionalism when they face real outside threats, but the bad kind when those
are lacking: ‘Threat Environments and Military Missions’, in Diamond and Plattner
(eds), Civil-Military Relations and Democracy, pp. 12–29.
25 Ernesto Lopez, Seguridad Nacional y Sedición Militar (Buenos Aires: Editorial
Legasa, 1987), pp. 41–50; Frederick M.Nunn, The Time of the Generals: Latin
American Professional Militarism in World Perspective (Lincoln, NE: University of
Nebraska Press, 1992). See also Consejo Episcopal Latinamericano, La Seguridad
Naciόnal: Doctrina o Ideología? (Bogotá: CELAM, no date given), pp. 16–18.
26 Lopez, Seguridad Nacional, pp. 55–63. See also Simόn Lázara, Poder Militar:
Origen, Apogeo y Transición (Buenos Aires: Editorial Legasa, 1988), p. 29; Carina
Perelli, ‘The Military’s Perception of Threat in the Southern Cone of Latin
America’, in Goodman et al., The Military and Democracy, pp. 94–101.
27 Moisés Cherñavsky, La Seguridad Nacional y el Fundamentalismo Democrático
(Buenos Aires: Centro Editor de America Latina, 1993), p. 13.
28 Cherñavsky, La Seguridad Nacional, pp. 13–20, discusses the DNS over time.
29 Lázara, Poder Militar, pp. 35–7; Juan Rial, ‘Armies and Civil Society in Latin
America’, in Diamond and Plattner, Civil-Military Relations, pp. 47–65; Perelli,
‘The Military’s Perception’, pp. 96–101; Virginia Gamba-Stonehouse, ‘Missions
and Strategy: The Argentine Example’, in Goodman et al., The Military and
Democracy, p. 165.
30 Lopez, Seguridad Nacional, pp. 148–56.
31 Lopez suggests that it was this French twist that enabled the demonization of
Peronism as subversive in the Argentine case: Seguridad Nacional, p. 156.
32 On the role of civic traditions, see Robert D.Putnam, Making Democracy Work:
Civic Traditions in Modern Italy (Princeton, NJ: Princeton University Press, 1993);
see also Gabriel Almond and Sidney Verba, The Civic Culture: Political Attitudes
and Democracy in Five Nations (Princeton, NJ: Princeton University Press, 1963).
33 Gerardo L.Munck, Authoritarianism and Democratization: Soldiers and Workers
in Argentina, 1976–83 (University Park, PA: Pennsylvania State University Press,
1998).
 WHAT MAKES ACCOUNTABILITY POSSIBLE? 37

34 Gabriel Aguilera, ‘The Armed Forces, Democracy, and Transition in Central

America’, in Goodman et al., The Military and Democracy, pp. 24–31 notes that
militaries may take this opportunity to set boundaries and rules for the transition.
35 The larger context includes a variety of processes that are integral to
democratization, ranging from police and security apparatus reform to the
strengthening of labour organizations. For a fuller discussion of these factors, as
well as a discussion of them in the case of El Salvador, see Robert C.Orr, Paradigm
Lost? US Approaches to Democracy Promotion in Developing Countries (PhD
dissertation, Princeton University, Woodrow Wilson School of Public and
International Affairs, Princeton, NJ, November 1996). However, since my focus
more generally is on human rights violations and accountability, it makes sense to
narrow the focus to actors with more direct influence over the treatment of those
issues, such as the police and the military.
36 For a useful typology, see José Zalaquett’s six-level hierarchy in Kritz (ed.),
Transitional Justice.
37 For a brief overview of theories, see Donald Horowitz, Coup Theories and
Officers’ Motives: Sri Lanka in Comparative Perspective (Princeton, NJ: Princeton
University Press, 1980), pp. 4–6; he points not to corporate or other sectional
interests but a belief by officers that the government was pursuing dangerous
policies and contributing to a national crisis, pp. 146, 208. Even if Horowitz is
right about what provokes (at least some) officers to attempt to seize power, the
concerns that militaries want addressed before stepping down differ thanks to
events that have occurred during their tenure (abuses, centralization of power and
undermining of civilian oversight over military activities) that they do not want
addressed or reversed.
38 Robert H.Dix, ‘The Breakdown of Authoritarian Regimes’, Western Political
Quarterly, 35, 2 (1982), pp. 568–9 identifies a chain of events leading to
breakdown, from delegitimation through the strengthening of opposition and
divisions opening within elites through the actual regime exit.
39 Stepan, Rethinking Military Politics, pp. 68–69. An alternate, but not contradictory
conception is articulated by Aguilera, ‘The Armed Forces’, p. 32, who suggests
that they are concerned with institutional autonomy and immunity for past abuses,
but also with the prevention of what they consider inappropriate reform of the
political system.
40 David Pion-Berlin, ‘Military Autonomy and Emerging Democracies in South
America’, Comparative Politics, 25, 1 (October 1992), pp. 83–102, lists 12 areas of
interest to militaries, arguing that some are political and some professional
concerns, and that ‘core professional functions’ will be more aggressively defended
than others. However, it is not possible to draw a bright line between political and
professional concerns and, as this argument is based on five South American
countries, it may apply less well in other regional, historical and political contexts.
This is recognized by Philip J.Williams and Knut Walter, Militarization and
Demilitarization in El Salvador’s Transition to Democracy (Pittsburgh, PA:
University of Pittsburgh Press, 1997), pp. 158–9.
41 Huntington, The Soldier and the State; but see Tom Skauge, ‘Contraction and
Detraction: Non-equilibrium Studies of Civil-Military Relations’, Journal of Peace
Research, 31, 2 (1994), pp. 189–203, arguing that Huntington’s analysis is too
38 WHAT MAKES ACCOUNTABILITY POSSIBLE?

static, and there are constantly recalibrations in the level of military autonomy, and
that there is never a bright line between the military profession and the state.
42 Huntington, The Soldier and the State, p. 83.
43 With statistical support from the 1969–78 period for this claim, see J.Mark Ruhl,
‘Social Mobilization, Military Tradition, and Current Patterns of Civil-Military
Relations in Latin America: Testing Putnam’s Major Conclusions’, Western
Political Quarterly, 35, 2 (1982), pp. 574–86.
44 Huntington, ‘Reforming Civil-Military Relations’, pp. 9–17.
45 Finer, The Man on Horseback, pp. 20, 41, 188.
46 Finer, The Man on Horseback, pp. 5, 12.
47 Finer, The Man on Horseback, pp. 20–6.
48 Finer, The Man on Horseback, pp. 28–49. See also Nordlinger, Soldiers in Politics,
pp. 66–71, arguing that these corporate interests include budgetary support, military
autonomy, absence of functional rivals and the survival of the military.
49 Finer, The Man on Horseback, pp. 55–63.
50 Finer, The Man on Horseback, pp. 64–6.
51 Finer, The Man on Horseback, pp. 79–80.
52 Finer, The Man on Horseback, p. 174.
53 See, for example, the essays in Henry Bienen (ed.), The Military Intervenes: Case
Studies in Political Development (New York: Russell Sage Foundation, 1968),
particularly Bienen, ‘Public Order and the Military in Africa: Mutinies in Kenya,
Uganda, and Tanganyika’ and Aristide R.Zolberg, ‘Military Intervention in the
New States of Tropical Africa: Elements of Comparative Analysis’. See also
Bienen, Armies and Parties in Africa (New York: Africana Publishing, 1978),
arguing that the real impetus for a return to civilian rule is the internal
fragmentation of the military.
54 Christopher Clapham and George Philip (eds), The Political Dilemmas of Military
Regimes (Totowa, NJ: Barnes & Noble, 1985), pp. 11–12.
55 See Danopoulos, ‘Intervention, Withdrawal, and Civilian rule: Notes and
Perspectives’, in Danopoulos (ed.), From Military to Civilian Rule, p. 4, arguing
that societal, professional military and international factors are responsible for
bringing about and maintaining long-term military disengagement.
56 Danopoulos, ‘Intervention, Withdrawal, and Civilian Rule’, pp. 4–5; Danopoulos,
‘Farewell to Man on Horseback: Intervention and Civilian Supremacy in
Modern Greece’, in Danopoulos (ed.), From Military to Civilian Rule, pp. 38, 51;
Dix, ‘The Breakdown of Authoritarian Regimes’.
57 Huntington, The Third Wave.
58 O’Donnell and Schmitter, Transitions from Authoritarian Rule, p. 19. See also
Myron Weiner, ‘Empirical Democratic Theory and the Transition from
Authoritarianism’, PS, 20 (Fall 1987), p. 864, arguing that for the military to step
down it needs to establish that the conditions prompting it to step in will not return.
59 Danopoulos, ‘Intervention, Withdrawal, and Civilian Rule’, p. 13; Danopoulos,
‘Farewell to Man on Horseback’, p. 38; Fernando Rodrigo, ‘A Democratic Strategy
Towards the Military in Post-Franco Spain,’ in Danopoulos (ed.), From Military to
Civilian Rule, pp. 69–70.
60 See, for example, O’Donnell and Schmitter, Transitions from Authoritarian Rule,
pp. 17–18 (military defeat); Rodrigo, ‘A Democratic Strategy’, p. 73 (NATO);
 WHAT MAKES ACCOUNTABILITY POSSIBLE? 39

Danopoulos, ‘Intervention, Withdrawal, and Civilian Rule’, p. 14; Huntington, The

Third Wave, p. 219.
61 Elsewhere in this study, I deal more explicitly with the factors of international
pressure and the strength of civil society, but here I wish to deal only with the
corporate concerns of the military.
62 Stepan, Rethinking Military Politics, pp. 68–9.
63 The sceptical view of minimalist rule of law reform is well expressed in Mani,
Beyond Retribution, chapters 2–3. I, however, broaden my emphasis to encompass
not rule of law, police and judicial reform alone, but also focus on military reform
as a central component.
64 This point should not be overstated, of course; in El Salvador there were no
prosecutions for human rights violations, and in Argentina perpetrators were
eventually pardoned.
65 See, for example, Huntington, The Third Wave, pp. 211–12, noting that the Greek
regime was an exception, in that members of the military regime were prosecuted
for high treason.
66 Stepan, Rethinking Military Politics, p. 68.
67 This helps to explain the counterintuitive result that, even with the cessation of
internal armed conflict or direct military rule, military budgets do not always
decline. Or, as another scholar notes, in the Latin American region in particular,
budgets may not vary across regime type because militaries exercise a great deal of
influence even where they are not in direct control: Merilee S.Grindle, ‘Civil-
Military Relations and Budgetary Politics in Latin America’, Armed Forces and
Society, 13, 2 (Winter 1987), pp. 255–75.
 2
Global experiences in transitional justice

Introduction
In this chapter, I give a brief overview of each of the 26 transitional cases that
potentially fall within the scope of my inquiry. Because of space limitations, this
book discusses only five countries in detail—El Salvador, Argentina, Honduras,
South Africa and Sri Lanka—but it is worthwhile to understand the wide range
of actual state experience. In a section detailing the experiences of each country,
I describe the history of repression, the balance of forces (civil/ military or
government/opposition), external influences that may have affected the course of
the transition, and the transition type itself (replacement/effective overthrow,1
transplacement or transformation). Finally, I describe the variety of actions taken
in that state to address the ‘legacy of the past’. As already discussed in the
introduction, which introduces the dilemma, the way I have drawn the
parameters of this inquiry excludes certain sorts of cases. I do not investigate
cases where a victory of rebels over the government, or external intervention, has
so completely quashed likely sources of opposition that my dilemma does not
arise. These would include so-called victors’ justice cases like the Nuremberg
prosecutions as well as instances in Ethiopia where the previous regime was
overthrown and then prosecuted. Similarly, if a serious demand for
accountability has not been articulated, the dilemma does not arise. A more
complex situation is that found in many of the post-communist regimes, where
what took place was not an overthrow, but generally transformation or
transplacement, but justice was frequently not pursued for legalistic, rather than
political reasons. I have nonetheless included the last category of cases here.
Table 2.1 illustrates the challenges faced and choices made by each of the
countries outlined here.
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 41

Latin America and the Caribbean

El Salvador
Between 1980 and 1992, El Salvador experienced a civil war between the
civilian government, in which the military and security forces had significant
power, and

Table 2.1 Transitional regimes: factors, outcomes and strategies

Country Factors Outcomes Strategies
El Salvador I, B, H C, L, A R, B
Argentina I, H P, C, L, A, R, A, B
Honduras I, H P, C, A R, A
Uruguay B A
Guatemala I, B C, A R
Chile B P, C, A
Brazil B A, C (non-govt)
Bolivia B P A
Haiti I P R, A
Greece I, B P, L, A, B
Portugal I, B L
Spain I, B A R (state not mil.)
Czechoslovakia I, B P, C, L R
East Germany I, B P, C, L, A
Hungary I, B P, C, L A
Bulgaria I, B P, L, R, A
Albania I, B P, L R, A
Poland I, B P, C, L R, A
Romania I, B P, C, A R, A
Russia B none
Lithuania I L
South Africa I, B P, C, A R, A, B
South Korea unclear P, A A
The Philippines I, B P, C, A
Cambodia I, B P
Sri Lanka B, H P, C R, A
Note
This table is naturally schematic at best. I list the factors that seem to have been most salient
(whether to support or undermine accountability) in each of the regimes listed in Chapter 2,
the outcomes chosen, and the strategies deployed (choices of more or less accountability or
more or less reform, etc). The most salient factors are in bold.
42 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

Key
factors: I=international or external
B=balance of forces
H=nature and extent of human rights
violations
outcomes: P=prosecution
C=commission of inquiry/opening of
files
L=lustration/purges
A=amnesty
strategies: R=reform of security forces
(structure, doctrine, education)
A=accountability
B=budget reduction/control

the Farabundo Martí National Liberation Front (FMLN), a left-wing guerrilla

organization. Some 75,000 people died, and countless numbers were tortured or
suffered serious human rights violations. The war came to an end with a UN-
brokered peace agreement.
While a civilian government formally came to power in 1983, the military
kept a strong grip on political power, an entrenched tradition in El Salvador, where
coups were relatively common and high-level military officers held cabinet posts
unrelated to defence; the war also strengthened the hand of the military over
civilians. The balance between the military and the rebels was more even:
although the government forces had access to more resources in the form of US
aid, military observers agree that neither side could have won the war.
The influence of the USA was important during the war as well as in its
resolution. The doctrine of national security generated an internally oriented
conception of security, strengthening the role of the military and police in
society. Similarly, with the end of the Cold War the US fear of the global spread
of communism faded and the USA began to encourage the government to
negotiate. The end of the Cold War also meant declining external support for the
FMLN, increasing its incentives to negotiate. Finally, the United Nations was
actively involved in brokering accords and monitoring their compliance,
including the ground-breaking human rights accord, which allowed the
establishment of a UN human rights observer mission even before the final
ceasefire was reached.
The Salvadoran transition fits most closely the category of transplacement,
which is to say that the old regime was neither overthrown, nor did it initiate
reform solely from above: rather the new democratic regime was the direct result
of negotiation between the government and the rebels, moderated by the USA
and the UN.
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 43

In El Salvador, there were two salient outcomes with regard to the treatment
of previous human rights abuses. First, the peace accords established a truth
commission, which heard testimony and compiled a report pertaining to past
abuses which named many of those culpable. Second, while a few prosecutions
of human rights abuses did go forward, the new civilian government announced
a blanket amnesty, under heavy pressure from the military. Military budgets also
remained artificially high, but some reform of the security forces was achieved,
with the assistance of the international community.2

Argentina
Between 1976 and 1983, Argentina experienced what is now known as the ‘dirty
war’. Under the military dictatorship, thousands disappeared and nearly 10,000
people were held as political prisoners; many were tortured. After the military’s
defeat by Great Britain in the Falklands/Malvinas conflict, democratization
began.
The military clearly dominated civilian forces in Argentina. There was a long
history of military rule, and the military turned to the so-called doctrine
of national security to legitimate its role in squashing ‘internal subversion’.
However, the prestige of the military was severely harmed by the Falklands/
Malvinas debacle, which many argue prompted the government to initiate reform.
While there were two opposition guerilla groups, it is unclear what level of
threat they posed militarily. Opposition also came from civil society, as human
rights advocates gained a public voice and affected the agenda of President
Alfonsin. Unlike many other cases examined here, there are no obvious
international influences in the transition, save the fallout from the military’s loss
in an external armed conflict. In the Huntington schema, Argentina’s transition
was a transplacement. While the regime initiated change, it did not remain
entirely in its control.
The tension between societal pressures for accountability and military
rejection of such calls led to heavy politicization of the issue of transitional
justice. A commission was established to investigate the disposition of the
disappeared (CONADEP). While a number of prosecutions against high-level
military figures ended in conviction, the restive military staged several coup
attempts, and eventually the civilian government chose to institute a number of
amnesty laws. However, the issue of past abuses arose again late in 1998, when
the ex-ruler Emilio Massera was arrested in connection with the kidnapping of
two infants. This is thought to be part of a larger pattern of kidnapping of infants
of detained mothers; the infants were then given to couples in the security forces.
Another former ruler, Jorge Rafael Videla, is also being held in relation to these
kidnappings; Massera is also under investigation in Spain for past abuses.3 Some
military reform and a significant reduction in force size as well as a reduction in
budgets was also achieved.
44 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

Honduras
Like many Latin American nations, Honduras has a long tradition of military
rule. And, like many Central American nations, Honduras was powerfully
affected by the intensification of Cold War tensions in that region in the 1980s.
Honduras was a strategic country, because the US-trained contras fighting the
left-wing regime in Nicaragua used Honduras as a base. The Honduran military
was in turn the beneficiary of US military aid and training assistance.
From 1980 on, there was a significant increase in human rights abuses, often
perpetrated by the infamous Battalion 3–16, which was trained by the Central
Intelligence Agency (CIA). Members of opposition groups and others
‘disappeared’, while others were detained and tortured. Change would be
initiated after the inauguration of a civilian president in January 1994, who
sought reform of the security forces and accountability for past abuses.
As mentioned above, the military has traditionally been heavily involved in
politics in Honduras, frequently to the extent of governing directly, as it did
before the 1994 Reina regime. There exists no significant opposition force such
as a guerilla group and civil society has formed no significant counterweight.
The Cold War rivalry directly affected Honduran politics, and the waning of
tensions had the reverse effect. While there was a decline in direct US influence
in support of the military, there has not been a significant US effort to encourage
democratization or accountability, although more recently it has provided aid to
police reform efforts. The Honduran transition can be characterized as
transplacement: while the military permitted the elections that ushered it out of
direct political power, further changes have been initiated, if not always
successfully completed, by civilians.
Honduras has had prosecutions as well as a variant on the truth commission. In
December 1993, a government human rights commission issued a report
outlining the history of military and government human rights abuses. President
Reina has pledged to separate the police force from the military and place it
under civilian authority. Further, attempts at holding human rights abusers
accountable for their actions have begun despite the presence of one amnesty law.
One officer was convicted in July 1993. In July 1995, ten more officers were
indicted on charges of kidnapping and torturing students. In response to the push
for accountability, in August the military sent tanks into the streets of the capital
in what was widely viewed as a warning against further pursuit of accountability,
prompting the president to reconsider his stance against amnesty. While recent
steps towards reform of the security forces have been taken, the budget for the
military continues to rise.

Uruguay
Prior to the military takeover that lasted from 1973 to 1985, Uruguay had a
significant history as a relatively stable liberal democracy.4 In the face of
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 45

increased violence by the leftist guerrilla group, the Tupamaros, the armed forces
had taken over the police role in fighting the rebels in 1971. In 1973, the armed
forces forced the president to dissolve parliament, and military rule was
formalized in 1976. While, unlike many other countries in Latin America,
disappearances and state-sponsored killings were not common, significant
numbers of political prisoners were held, and torture was common; in addition,
many civil servants lost their jobs for purely political reasons.5 After a 1980
plebiscite in which the citizenry rejected a draft constitution that would have
institutionalized the role of the armed forces in the national government, the
military initiated talks with various political parties regarding a transition to
civilian rule.
While the Tupamaro movement was armed, it did not seriously harm the
armed forces; when they voluntarily withdrew from power it was intact, and the
army strongman General Medina became the new government’s defence
minister.6 Thus, as one observer has noted, Uruguay lacked certain features
present in countries like Argentina, and change was inhibited because the
military left power of its own accord and unbowed.7 There does not appear to
have been a great deal of involvement by international actors in the initiation or
execution of the Uruguayan return to civilian rule, though UN and Inter-
American human rights bodies were active in monitoring and protesting abuses
and impunity.8
The Uruguayan return to civilian rule has reasonably been characterized as
transplacement: the transition was initiated at the top by the military
government, but negotiated with other Uruguayan political actors. This meant
that the military had significant, but not total control over the shape of the future
political landscape.
The negotiation process culminated in the August 1984 Naval Club Pact,
which provided for free elections. The pact also, according to reports, contained
an unofficial agreement that the new government would not seek to prosecute
past abuses, but would not stand in the way of action by individual citizens in
court.9 The new civilian president, Sanguinetti, had said throughout the
campaign, as had the other candidates, that he would seek accountability for past
violations. Upon his election, Sanguinetti rapidly amnestied political prisoners,
excepting members of the armed forces charged with human rights violations,
and provided for restitution for them as well. An investigative commission into
the fate of the disappeared was created, but had a weak mandate and even less
political impact.
Private lawsuits against members of the armed forces responsible for human
rights abuses also rapidly began in civilian courts, whose jurisdiction the military
challenged. The military made it clear that it would not appear before these
courts, and pushed for an end to the trials. The government sought to avert a
direct confrontation with the armed forces by introducing amnesty bills, which
were rejected. Finally, in December 1986, the legislature passed the law
nullifying the state’s claim to punish certain crimes, which, while not termed an
46 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

amnesty, effectively protected most military members from the judicial process
for human rights abuses. While the law stated that the executive was to
investigate all disappearance cases and report back to the plaintiffs, in a further
concession to the military, the president later delegated the investigations to the
military.10 In 1989, a group of families of victims sought repeal of the law, and
acquired the required number of signatures on petitions to hold a referendum.
The military vocally opposed the referendum as did the president; the measure
was ultimately defeated in a 58–42 vote.11 The military budget continued to rise
throughout the transition and after.12

Guatemala
After a coup by the military in 1954, the government of Guatemala became
increasingly repressive and abusive of human rights. The government later
became engaged in armed struggle with the guerrilla group, the Unidad
Revolucionaria Nacional Guatemalteca (URNG), one which lasted 20 years. The
repression reached its height in the early 1980s, when 200 Mayan villages were
wiped out and tens of thousands were killed, and thousands more forcibly
‘disappeared’.13
While the country made the formal transition to civilian rule in 1986,
the military remained dominant and human rights violations continued; further, a
few days prior to the inauguration of the new civilian president, the military
pushed through an amnesty decree.14 It was not until 1990 that the peace process
began, with a preliminary accord by the government of Guatemala and the
URNG to seek peace through political means. As with many other nations in
transition, the key issues of contention were the treatment of past abuses and the
nature of the security forces. While a few low-level military officers have in fact
been convicted for abuses, high-level officers have not been affected.
However, as in El Salvador, these issues were not the first ones confronted:
instead the first substantive agreement was one in 1994 calling on the UN to
establish a human rights verification mission. The government also promised to
strengthen the office of the human rights ombudsman, fight impunity by
criminalizing acts like forced disappearances and extrajudicial execution, and
continue cleansing the armed forces,15 but particular measures to achieve these
goals were not specified. The UN mission is empowered only to monitor the
human rights situation subsequent to its arrival, not to address the issue of past
abuses.
Also in 1994, the parties agreed to the creation of a variant on the truth
commission.16 According to the terms of the agreement, the commission is to
‘clarify’ human rights violations and violent acts related to the armed conflict.
The commission is not to name names; in fact its findings are not to be used in
subsequent prosecutions. Some observers see this agreement as creating a
commission that is considerably weaker than others such as that of El Salvador.17
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 47

Subsequent agreements in December 1996 sought to separate the military and

the police: they establish the distinctions between the Policía Nacional Civil
(PNC) and the army. In particular, the police are to be professional, respectful of
human rights, and trained by a police academy that inculcates these traits.
Further, with a significant exception, they are to have exclusive control over
matters of internal security. By comparison, the military’s sole role is to pertain
to the defence of sovereignty and territorial integrity, except in exceptional
instances when it might act in aid of internal security, but under civilian
command. The accords further establish that the military is to be under the
control of the president, though the president is to consult with the congress.18
These accords also dictate the terms of demobilization and the reduction of the
military budget. While these reforms would be significant if fully executed, some
observers claim that there has been a complete failure to demilitarize the
police.19 Further, the legacy of political killings made a shocking comeback
when a bishop active in human rights who had just completed a report on past
abuses was killed under mysterious circumstances in early 1998.20 Finally, the
parties agreed to terms for the legal incorporation of the URNG, and on 29
December, the parties signed the final peace accord.
While the URNG was able to carry on an armed struggle against the
government of Guatemala for two decades, some observers have suggested that
the weak terms of the peace accord indicate that it was outgunned and thus had to
accept some serious compromises.21 There was heavy international pressure to
reach an accord, given that Guatemala had the last internal armed conflict in
Central America. Furthermore, the UN took an active part in the peace
negotiations, establishing a human rights mission while the negotiations went
forward, and continues to monitor the peace accords. Like El Salvador’s,
Guatemala’s transition was a negotiated one between the rebels and the
government, something of a transplacement.
Guatemala’s transition was a negotiated compromise, and the result was a
relatively toothless truth commission, but also a promise to purify the armed
forces and reform the police and the military. The move towards accountability
showed new vigour, however, in late 1998, when a court found guilty and
sentenced to death three pro-government fighters for their part in a 1982
massacre.22 Civilian control over the military budget was established in the peace
accords, and the budget held steady for several years and was set to decline in
1999.23

Chile
In 1973, General Augusto Pinochet led a coup, instituting a regime in which
there was widespread repression carried out by the intelligence service.24 While
the judiciary remained in place, it did not seriously examine claims of human
rights abuses, and in 1978 an amnesty law was enacted which barred prosecutions
for abuses between 1973 and 1978. Growing protests through the early 1980s
48 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

prompted Pinochet to declare a state of siege in 1983. Following a 1986

demonstration that involved an assassination attempt, a new state of siege was
imposed and about 15,000 people were arrested. This state was lifted in 1987,
prompted in part by the upcoming visit from the pope. In 1988, Pinochet
consented to a plebiscite on his continued rule; the ‘no’ vote was followed by the
1989 elections that made Patricio Aylwin president.25
There can be no question that before, during and after the transition the
Chilean military wielded overwhelming power over Chilean politics. It did not
face a challenge in the form of armed opposition and, even after relinquishing
control over the state, it maintained its power base and the capacity to oust the
new regime if it so chose. By all accounts it was the fear of confrontation with
the armed forces that led the Aylwin administration to take a softer line on the
legacy of the past than it had initially promised.26 A recent observer has argued
that civil-military relations remain stalemated.27 Unlike many other countries
that experienced this type of transition, external factors were not particularly
salient in the Chilean case, though the issues have recently been internationalized
with the detention of Pinochet in the UK.
The Chilean transition is categorized as a transformation, as the change of
regime type was initiated at the top and remained in Pinochet’s power. Parties
were allowed to participate in the transition only if they promised to respect the
extant constitutional structure. Even after the transition, key facets of the power
of the military and of Pinochet remained intact: the constitution preserved
military influence and autonomy,28 Pinochet was to retain the role of commander
in chief of the armed forces through 1997, most of the judiciary had been named
by Pinochet, and the upper house of the legislature, the Senate, was packed with
military supporters.29
The military and Pinochet thus retained a great deal of power, which
effectively limited the Aylwin regime in its pursuit of accountability. Though the
coalition that had supported the Aylwin campaign had advocated the nullification
or derogation of the amnesty law, the new government acknowledged that it did
not have the political power to pursue punishment.30 Aylwin initially proposed
that there be trials followed by pardon, but major obstacles were resistant judges
and the fear of a restive military.31 Instead, Aylwin created the national
commission on truth and reconciliation, which released a report of its
investigation into some 3,000 cases in 1991, naming victims but, unlike some
commissions, not naming perpetrators. The government also created an extensive
reparations programme.32
Accountability would be much harder to achieve: Pinochet warned the new
government not to ‘touch a single hair of a single soldier’ lest the 1973 coup be
repeated. In December 1990, he put the army on alert to lend credibility to this
threat. In order to appease the military, in 1993 Aylwin proposed legislation that
would provide anonymity for military defendants and witnesses in the human
rights cases that did come before the courts as well as make permanent the 1978
amnesty. Under heavy fire from human rights groups and families of victims, as
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 49

well as opposition from the leftists in the governing coalition, he withdrew the
proposal.33 By early 1994, there had been 20 convictions for post-1978 abuses.34
More recently, the international community and Chile have been forced to
reconsider Chile’s past with the arrest in London of Pinochet pursuant to a
Spanish warrant.35 In the face of the prospect that Pinochet will at long last face
justice, but outside Chile’s borders, the foreign minister pledged that his own
country would pursue accountability, though that promise has been met with
scepticism.36 Pinochet was returned to Chile to face charges there, but in July
2002 the Chilean Supreme Court terminated the prosecution, finding that he was
too ill to stand trial. Other measures of military corporatism, such as Pinochet’s
continued role in politics and the military until his arrest in London and the
relative decline of military spending indicate a mixed result.37

Brazil
In 1964, the armed forces of Brazil overthrew the president and held power for
the next 21 years.38 For most of this period legislatures were tolerated, but had no
autonomy. The use of torture was widespread, and though the number of
‘disappeared’ was relatively small at approximately 300, tens of thousands were
forced into exile, arrested for political reasons, or forced out of their jobs or
schools.
Some limited political activity was permitted during this period, and a
political alliance between political and military elites paved the way for a
gradual opening beginning in 1974. Throughout this period, the military sought
to ensure that it would maintain its influence and avoid accountability for past
human rights violations. In January 1985, a new civilian president finally came
to power. The military was clearly the dominant actor in the Brazilian transition.
While it worked in tandem with civilian elites, it was not forced from power by
opposition groups. Rather, it dictated the terms and timetable of the transition.
While the USA at one point held great sway, in particular over the Brazilian
military, providing training and indoctrination in step with the DNS, by the time
the transition began that influence had waned. Nor was there significant
international involvement in the transition.
Because of the tight management of the transition by the military, it is
described as a transformation. In 1979, the military president put forth and
achieved the passage of an amnesty bill both for those who had been imprisoned
during the military regime and for those who had committed human rights
abuses. Further, there are allegations that the civilian president elected in 1985
had negotiated a deal with the military in which he promised that there would be
no official investigation into allegations of human rights abuses during the
regime. Indeed, the government did not seek to uncover the past; a private
inquiry was undertaken by some in the Catholic church, who produced a report
called Brasil: Nunca Maís.
50 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

As already indicated, there was no official attempt to seek accountability for

human rights violations or even to officially acknowledge the abuses of the past
through a government-sanctioned investigation. Instead, there was an amnesty
and a private report. Furthermore, the high degree of control maintained by the
military over the 12-year transition meant that there was a great deal of
institutional carryover from the military to the civilian regime. The military
budget also rose over the protracted transition.39 Nonetheless, the issue of past
abuses has surfaced recently with a re-examination of a 1981 bombing and a
controversy surrounding the nomination for the chief of the federal police of an
individual accused of torture.40

Bolivia
In Bolivia, the period of authoritarian rule for which accountability is demanded
was relatively brief, lasting from 1980 to 1981 when it was ruled by General
Luis Garcia Meza.41 During this period political opponents were ‘disappeared’
and assassinated, and after civilian rule was restored there were calls for
punishment. In 1986, the congress brought criminal charges against the general
and members of his junta as well as members of the security forces and military.
The general and a number of other defendants then went into hiding, but were
tried in absentia. After years of delay, the supreme court convicted the
defendants on a variety of charges; the human rights violations for which they
were convicted included murder, torture and arbitrary detention. The court
referred to one set of killings as a ‘genocidal’ act, referring to international law.
Eleven of those convicted are now imprisoned, but the general is still a fugitive.
The military claims to have accepted the trials, though there are accusations that
it is sheltering Garcia Meza.
Bolivia presents a somewhat unusual case in that it was the military itself that
overthrew Garcia Meza, though it was faced with mass mobilization and protest
as well. Thus, one commentator argues that it was rupture or collapse in the old
regime that made punishment possible.42 International influence appears to have
been less salient at the time of transition for Bolivia than for some of its
neighbours with which it collaborated in Operation Condor, a region-wide effort
to quash leftist resistance groups. In many ways, Bolivia appears to present a
case of transformation from above, given that it was the military itself that ousted
its own dictator, while seeking to protect itself. It is also a relatively rare case in
that trials were carried out, convictions were achieved and some individuals are
now imprisoned for the human rights violations of the past. Military budgets
were also slashed.43

Haiti
Haiti has a lengthy history of authoritarian rule punctuated by coups.44 The
country’s human rights record was dismal, with high levels of corruption, as well
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 51

as official brutality in which some 40,000 Haitians died between 1957 and 1971.
In 1986, after 31 years of Duvalier rule, first under ‘Papa Doc’ and later under
his son ‘Baby Doc’, that family’s reign finally ended. However, the fall of Baby
Doc did not lead immediately to democratization: instead for four years there
were regimes backed by the military and the economic elite.
During this period there was a minimal response to calls for accountability for
abuses of the past. Some low-ranking military officers and members of the
Tonton Macoutes, a brutal private security body, were prosecuted; high-ranking
military members and the head of the Tonton Macoutes were allowed to leave
the country. In 1990, with significant UN and OAS aid, Haiti finally experienced
a free election. With a 75 per cent voter turnout, Jean-Bertrand Aristide was
elected by two-thirds of the vote. Aristide immediately initiated measures to
reform the security forces and address the legacy of the past: he announced a
commission to investigate the human rights abuses of the past, dissolved the
‘section chiefs’ who reported back to military and ran roughshod over human
rights in rural areas, planned retirement of senior military officials responsible
for human rights abuses, and planned a new system of rural police untainted by
the abuses of the past.
However, the Aristide regime was threatened from the outset: there was an
attempted coup before Aristide took office, and there was a series of coup attempts
that failed before the final successful one in September 1991. This coup forced
Aristide’s removal, reversed his reform initiatives, and began a reign of terror in
which thousands have been tortured or killed and many more have fled in flimsy
boats to the USA. The old system of section chiefs and Tonton Macoutes, now
called attachés, was restored. The military coup leaders installed a civilian puppet
government.
The international community then became involved in efforts to negotiate the
return of Aristide to power and the removal of Raoul Cedras from the military
high command. The negotiations repeatedly foundered on the issue of
accountability for human rights violations. In 1993, an extensive accord was
finally reached which would have provided for an amnesty; and retired Cedras; it
would have allowed other coup initiators to remain in the military but posted
them abroad. The agreement would also have separated the military and the
police, and reformed both. However, Cedras violated the agreement, and the
international community was further outraged when the attaches assassinated the
minister of justice and Aristide’s key financial supporter. The international
community responded with sanctions and an oil and weapons embargo, and the
USA and others sent warships to the region. Finally, in July 1994, the UN
Security Council authorized a US invasion and occupation, which prompted
Haiti’s de facto leaders to negotiate. As a result, Aristide took power, the military
was disbanded and the UN began a police mission in Haiti; in addition a UN-
OAS civilian monitoring mission was installed.
While domestic opposition was vocal, the military held the advantage, easily
forcing Aristide into exile and terrorizing the civilian population. Obviously
52 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

external actors were central to the Haitian transition, from international political
pressure to active invasion, intervention and monitoring under UN auspices.
While the military regime took part in negotiations, it ultimately had little
influence in the process once the international community stepped in; thus the
Haitian transition looks like a virtual effective overthrow. Haiti has not fully
addressed the legacy of the past. Important reforms like the abolition of the
military and the training of a more disciplined police force have gone forward,
with aid from the international community.45 However, the few attempts at
prosecution have not been vigorously pursued.

Southern Europe

Greece
In April 1967, a junta of mid-level officers seized power, suspending the
constitution and parliament.46 Its rule was marked by torture and arbitrary arrests.
In 1974, the military sponsored a coup in Cyprus. Faced with embarrassment and
likely defeat there, the military leaders began negotiations for the return to
civilian rule, which came in July. The outgoing regime retained a significant
degree of power over the transition, passing power to active anticommunist
Constantine Karamanlis. The new regime instituted a programme of
dejuntafication followed by trials, but the overall policies of democratization
were marked by gradualism.
Because the military as an institution remained intact, there were limitations
on the degree of change that the new government could impose. The government
did free political prisoners and announce an amnesty for political crimes other
than those related to the junta, as well as transfer, discipline or dismiss some 100,
000 civil servants who had served under the junta, and limit the power of the
military police. At the same time, junta leaders and 30 security officials were
indicted for deaths in a university uprising in 1973.
Nonetheless, Karamanlis was concerned about confronting the military head
on without a popular electoral mandate, and announced elections. Following
parliamentary elections that gave the Karamanlis government that mandate, he
voided the laws of the junta. In 1975, prosecutions began against 150 persons for
actions by the junta, ranging from ministers to military and police officers. At the
same time, a similar number of senior officers of the armed forces and security
forces were forcibly retired. While many were brought to trial, and three of the
coup leaders were sentenced to death, their sentence was commuted to life and
only eight other individuals received a similarly severe sentence. Other trials for
torture would follow; by December 1976 there had been some 400, but the rate
of convictions was low and did not result in particularly serious sentences.
At the same time, the government took measures to avoid a military backlash,
setting a deadline for private lawsuits and offering a deal to those who testified
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 53

for the prosecution: that they would not be prosecuted. Some of those convicted
were let off with fines or even suspended sentences. Karamanlis further sought to
appease the military by increasing its budget and promising that career
evaluations would be based on future, not past, behaviour.
While the junta was clearly dominant in the political realm, its political clout at
the time of the handover had been severely damaged by the crisis in Cyprus.
Further, the existence of a real threat from Turkey over Cyprus forced the
military to become more externally oriented. The crisis in Cyprus was a key
factor, both because of its impact on the military’s prestige and because of the
demands it placed on the military. The transition in Greece was essentially a
transformation, initiated from above by the military, with its looming presence
placing significant limitations on the actions that a new civilian government
could take. Nonetheless, the military’s weakened state probably enabled the new
government to make the significant strides that it did in instituting trials.
While there were trials of numerous figures, it is worth noting how few
actually were convicted or served extensive sentences. There were some purges,
but the military’s budget actually increased and there were no attempts at
institutional reform.

Portugal
Portugal experienced a half-century of authoritarian rule punctuated by a coup by
a small number of junior and mid-level officers in 1974, overthrowing that
regime.47 There was a purge of citizens for ideological reasons in 1974–75; the
former president and prime minister were exiled. In 1976, however, a new
legislature was democratically elected, and reversed these policies, nullifying the
purges and seeking to reintegrate purged officials.
The new constitution and regime had to mediate between two contending
forces: the right wing, which had held dictatorial power for nearly 50 years, and
the left wing, which had briefly run an authoritarian regime. While there was also
significant domestic opposition to the regime that occasionally took the form of
armed resistance, it was ultimately the coup by the low-level officers that brought
the downfall of the regime. There does not seem to have been significant
international involvement in the transition, but one salient factor may have been
the military’s overextension in colonial warfare in Angola, Guinea and
Mozambique. The transition seems best classifiable as a replacement through a
coup, after which the military would step down.
Purges took place, but the mechanisms like trials and truth commissions that
are so familiar today were not utilized. The military budget spiked before the
democratic legislature took over, but was then drastically reduced, and the
military services were reduced as well.48
54 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

Spain
The dictatorship of General Franco began in 1939 with his faction’s victory in
the Spanish Civil War and lasted for the next 46 years.49 Political repression was
widespread, including the elimination of competing political parties, the
elimination of those who had supported the republicans, and the banning of
nearly all associations save the Catholic church. From 1969 to 1973, the
government was administered by the Opus Dei sect of the Catholic church under
Admiral Blanco. Under this regime, there was an increase in repressive policies,
and in 1971 the Catholic church broke ties with the regime. The assassination of
Blanco by Basque separatists in 1973 struck a severe blow to the regime. In 1975,
Franco died; the new king he had selected initiated reforms. However, many
elements of the previous system would endure. In 1976, the king issued an
amnesty for many who had been convicted of political crimes and, in 1977, a
new bicameral legislature was elected. However, a substantial part of the old
regime was absorbed into the new; police files were not used to purge abusers,
but were sealed instead. And in 1977 the new legislature passed an amnesty
covering all political crimes committed by both government and opposition. The
Francoist political class maintained a strong hand in the project of constitutional
reform, obtaining guarantees of personal continuity and striking out some
features of reform. The only reform that directly affected the Francoist political
machinery was the dissolution of the party created by Franco and of state
corporatist interest associations created for workers and capitalists under his
regime.
No measures could be taken to address the abuses of the past. The tribunal of
public order, a body that was ostensibly created to combat terrorism but was
rather used to repress the opposition, was eliminated in 1977. However, the
opposition had to abandon its demands for prosecution and punishment of those
responsible for abuses under Franco both because of internal divisions that made
the opposition weak and continuing threats to democratic reform. There was a
continued threat of a coup, given that the military high command was still
dominated by men appointed in the Franco years. Further, the upper ranks of
civil servants also had a shaky commitment at best to democracy. The transition
in Spain was thus very gradual: the military was never truly purged, and
maintained a great deal of control over politics, and attempted two coups in the
early 1980s; plots for other coups were revealed subsequently. Further, the strife
in the Basque region strengthened the military’s hand.
There can be no question that the military and Franco had a stranglehold on
the nation for nearly half a century, although there was some civilian political
opposition as well as a serious threat from the Basque separatists. Nonetheless,
the military and upper echelon of civilian Francoists were able to control the
initiation and pace of transition. It has been argued by some that liberalization
was reinforced by Spain’s quest to join the European Economic Community. It
applied in February 1962, but that application was rejected because of the nature
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 55

of the political system. Therefore, the thesis goes, Spain became obsessed with
attaining some democratic credibility in order to gain legitimacy in European
eyes.50
Spain underwent a very protracted transformation from above; as already
discussed, the transition was initiated by the king, but both military and civilian
elites remained largely untouched; purges of the military were prevented by coup
attempts and threats, and large elements of the Francoist bureaucracy remained
entrenched into the 1980s. While there was a formal handover of power to
democratically elected civilians in Spain, the legacy of Francoism was far from
addressed in this long transition. With regard to repression and human rights
abuses, there was no process imposing accountability; there were no purges; and
there wasn’t even a government-sponsored attempt at truth-telling. The military
upper echelons and Francoist civil servants also remained in control of the state
machinery. The military budget continued to rise steadily throughout the
protracted transition, with a three-four year exception.51

Eastern Europe
The experience of countries in eastern Europe is different from that of other
countries studied in the book for a number of reasons. Most notably, rather than
the military running the state or heavily dominating a nominally civilian
government, the military was itself heavily dominated by the communist party
apparatus. Thus, at the time of the transition, the concern with regard both to
accountability and the threat of instability posed by the old guard pertained to the
party rather than the army. Second, that party’s control withered, at least
temporarily, with the decline of its sponsor in the Soviet Union. As a result,
while many in the party and state apparatus remained in power at some level,
they did not pose the same sort of threat as, say, the military did in post-transition
Argentina. Finally, while imposing accountability has been difficult, one of the
most common objections has been that retroactive justice violates the rule of
law, a very different concern from that frequently voiced in Latin American
transitions.52 Like their Latin American counterparts, many former Soviet bloc
states signed additional human rights instruments. Most importantly, many had
signed and ratified the European Convention on Human Rights and accepted the
jurisdiction of the European Court of Human Rights.53

Czechoslovakia (later the Czech Republic and the Slovak

Republic)
In February 1948, the communists seized power in Czechoslovakia.54 Political
prisoners were sent to prisons or labour camps, and thousands were killed by
government forces. In early 1968, the country experienced a brief opening when
Communist Party leader Alexander Dubcek lifted censorship and promised
democratic and economic reforms. That reform was brought to an abrupt halt
56 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

when troops from Soviet and other eastern bloc countries invaded
Czechoslovakia.
The political liberalization from above in the late 1980s in the Soviet Union
and parts of eastern Europe enabled the growth of new opposition groups. During
November 1989, peaceful demonstrations as well as a workers’ strike created
heavy pressure on the communist leader to resign. The opposition group, the
Civic Forum, entered into negotiations with a seriously weakened communist
regime. Some argue that the results achieved were largely dictated by the
opposition because of the disarray in the ruling party.55 By the end of December,
the so-called velvet revolution had achieved that resignation and the installation
of Vaclav Havel as president. Havel immediately moved to grant amnesty to some
20,000 prisoners.
One of the key political issues in Czechoslovakia was how the abuses of the
past should be addressed. In May 1990, a Communist Party official and a
number of police officers were convicted and sentenced for their part in putting
down a student demonstration the previous November. A lustration law passed in
October 1991 barred a large number of persons active under the communist
regime or identified as conscious collaborators from a range of elected and
appointed state posts until January 1996. The legislation came under heavy
domestic and international fire for its expansive nature. In November 1992, the
nation’s constitutional court struck down the clause relating to ‘conscious
collaborators’.
Another key item on the new government’s agenda was the reform of the
police, judiciary and other instruments of power. The state security body, known
as the StB, which had been a huge, unwieldy tool of repression, was finally
eliminated, though not without numerous scandals. With regard to the judiciary,
a screening process was put into place, though it only targeted the most serious
collaborators. However, in the economic realm, old communists remained as the
heads of a significant number of state-owned industries.
In January 1993, the nation split into the Czech Republic and Slovakia; the
lustration legislation was applied with greater vigour in the former than the
latter. In July of that year, the parliament of the Czech Republic passed a
law lifting the statute of limitations on crimes committed during the communist
era which had not been prosecuted for political reasons. In January 1994, the
Slovakian constitutional court rejected calls by the prime minister to overturn the
lustration law. The Czech Republic went further, establishing an office to
investigate the crimes of communism; in early 1998, the government brought
charges against three former top communists for their aid in the 1968 invasion.56
Both nations also took steps to make restitution to victims of the old regime. The
Czech Republic, in 1997, passed legislation allowing those who were
Czechoslovakian citizens during communism to read their files. Both new
republics also took steps to scale back the size of their militaries.57
While superficially the state possessed a preponderance of power, the
lessening of the Soviet hold on the region combined with swelling public
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 57

opposition to weaken and delegitimate the regime. Naturally, the single greatest
influence from the outside was in the form of the declining influence of the
Soviet Union. While in 1968 reform had been crushed by Soviet and allied
troops, no such threat was credible this time, leaving the government perhaps no
choice but to negotiate. More recently, improved respect for human rights has
been driven at least in part by a desire to join the EU.
The Czechoslovak case (and then the cases of the Czech and Slovak republics)
may be characterized as a transplacement, because the government initiated
negotiations and held some power, but did so under heavy opposition power and
made great concessions. The attempts at lustration caused a great public debate,
and it can safely be said that the law was not entirely effective. However, in the
Czech Republic at least it probably served to keep former top communists out of
power. An early prosecution attempt for recent repression was successful; in the
Czech Republic a limited prosecution effort for older crimes has begun only
recently. In Slovakia, by contrast, the admittedly flawed lustration legislation has
generally not taken effect. The law’s use or threat of its use may have served to
keep those implicated in the abuses of the past out of important state roles. The
infamous StB was eliminated, and the judiciary was cleansed in part in both
republics; the dominance of ex-communists was less thoroughly eliminated in
control over state-owned industries.
The Czech Republic has created the office of a commissioner for human
rights, as well as set up an office to document the crimes of the Soviet era: this
office has recommended punishment that has been carried out in some cases, and
lustration laws continue to bar some from holding public office. In Slovakia,
abuses by the successor regime meant that human rights were frequently pushed
aside as a priority but, in late 1997, a new government created a new post, the
deputy prime minister for human rights and minorities.58

East Germany
In 1949, in the Soviet-occupied zone of Germany, the German Democratic
Republic was declared.59 Thus followed some 50 years of a centralized,
repressive communist regime. East Germany’s Stasi was the most pervasive
secret police body in the region, with a vast number of collaborators. It carried
out torture and arbitrary arrests and otherwise repressed the opposition.
With the Soviet relaxation of its grip on the region, in May 1989 East
Germans began fleeing to the west in huge numbers. By fall 1989, there were
demonstrations calling for reunification with West Germany, and political and
economic reform. In October, Erich Honecker was replaced as leader by Egon
Krenz, who was in turn replaced by Hans Modrow when he failed to push
through reforms quickly enough. Modrow initiated discussions with the
opposition and, in March 1990, democratic elections were held. The new
coalition government was led by pro-unification parties; in October, the two
Germanies were reunified.
58 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

After the unification, a number of border guards were brought to trial for
shooting at fleeing East Germans in the period between the construction of the
Berlin wall in 1961 and its fall in 1989. Some 200 East Germans were killed
during that time. The trials, which began in October 1990, resulted in the
convictions of several guards, though they were given relatively lenient
sentences because of their low level of power and the history of propaganda to
which they had been subjected.
In January 1992, the Stasi records were opened for public access; as a result
thousands of civil servants, including judges and police officers, who had been
informers, were dismissed. Civil servants have been screened for past conduct by
the Gauck authority, a special body set up by the government to administer the
vast Stasi files. Public sector employers can solicit information; they then make
their own decisions on a case-by-case basis; the majority of those identified as
informers have in fact retained their jobs. In tandem with the opening of the files
came the creation of a study commission to examine the legacy of the past.60
In November 1992, a trial was opened against Honecker and other former high
officials, but charges against all six defendants were dropped due to their ill
health. More recently, in 1997, Egon Krenz was sentenced to six years’
imprisonment for the ‘shoot to kill’ policy at the border, along with a number of
other former officials.
Like other nations in the region, East Germany was faced with the loss of its
patron’s support and a rising tide of opposition. These circumstances weakened
the strength and legitimacy of the state; that combined with the large number of
fleeing East Germans forced the government to negotiate with the opposition.
Further leverage was given to advocates of human rights and accountability
when the two Germanies merged. East Germany was unique because not only
was it in many ways a defeated regime upon reunification, but it was merging
with a state with more experience of the rule of law and democracy. As with
other cases in the region, the most important influence was probably the lack of
Soviet influence. The desire of people in the Germanies to reunify also played a
role. The German transition is sometimes described as a replacement; it could
reasonably be a transplacement as well. While what makes the East German case
unique is its ultimate essential absorption into West Germany, decisions to
initiate the transition were taken at the top of the Communist Party hierarchy,
albeit under heavy pressure from domestic opposition. The unified Germany has
undertaken a number of high-profile cases against border guards and former high-
level officials, though some of the latter cases have been dropped because of the
defendants’ ill health. The Gauck authority has enabled the screening of public
servants for past collaboration; many have been dismissed as a result.

Hungary
In 1945, Soviet troops occupied Hungary, and the Communist Party began taking
control of ministries.61 By 1947, power was consolidated in the head of the
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 59

party, Matyas Rakosi. In 1953, after the death of Stalin and with the urging of
Khrushchev to loosen this centralized control, Rakosi was replaced by Imre
Nagy, who implemented a programme of liberal reforms that released political
prisoners. A contest for power ensued, and Nagy was replaced by Rakosi;
Rakosi, unable to consolidate his power, was then replaced by Erno Gero in
1956. After police fired on a peaceful student march, there was a popular revolt
aided by the military, which returned Nagy to power in October. Nagy instituted
new reforms and repudiated the Warsaw Pact; in response Soviet troops invaded
and Nagy was executed.
The new leader, Janos Kadar, purged some officials and repression was
reimposed. In the face of the opening in the Soviet Union and concerned by their
own weak economy, reformers within the Communist Party challenged its
hierarchy and formulated plans for economic reform and to some degree political
reform. These events led to Kadar’s downfall, and there were public calls for
economic and political reform. As one observer put it, the regime legitimated the
opposition by inviting them to a series of round-table talks about radical
economic reform from mid-to late-1989.62 The opposition pushed the discussions
beyond the economic realm, winning agreement to free elections. A new
constitution in 1989 expanded freedoms of speech, assembly and the press, and
free elections were held in 1990. The renamed Communist Party won 10 per cent
of the seats in parliament.
The question of addressing the repression of the past, particularly acts
surrounding the 1956 invasion, was a hot political and legal issue. In 1991, the
legislature passed a law that sought to restart the statute of limitations on crimes
of the past such as treason, murder and torture resulting in death that had not
been prosecuted for political reasons. A key concern regarding this legislation
was that it broke promises that the opposition had made during negotiations with
the communists. The point was mooted, however, when it was held
unconstitutional. A subsequent resolution declaring that the statute of limitations
had been tolled by the flaws of the judicial system was also struck down.
However, a new law treating the acts of 1956 as war crimes and crimes against
humanity was upheld by the constitutional court in 1993. Following this decision,
around a dozen people were arrested for the shootings of civilians in 1956. By
February 1998, only three people had been convicted pursuant to this law.63
Hungary also set up a restitution programme to return land that had been
illegally seized by the government. In 1992, the legislature passed laws voiding
convictions for crimes against the state and public order between 1963 and 1989;
it also passed legislation to compensate persons or families who for political
reasons had been deprived of life or liberty unlawfully between 1939 and 1989.
Finally, an executive decree increased the pensions of former political prisoners.
In March 1994, a law was passed that would require screening between 10,000
and 12,000 officials to ascertain whether they had ever been informers for the
secret police. In May, following high unemployment and inflation, popular
discontent returned the communists to power through elections. In 1997, a
60 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

narrow lustration law was passed. Under its terms, the records of senior public
figures are reviewed by a commission. It requests that they resign; otherwise it
exposes their pasts. However, the only power that the commission holds is that
of exposure; the prime minister has admitted that he received a negative report,
but refuses to resign. Finally, following the German example, Hungary has set up
an office to allow people access to their own files.
As with other eastern European countries, in Hungary the ruling party clearly
held the upper hand in terms of political and military dominance. However, its
political standing was weakened both by harsh economic conditions and actions
by reformers within the party. The key factor enabling the opening in Hungary was
the new openness in the Soviet Union which made a repeat of the 1956 invasion
highly unlikely. Hungary saw a transition initiated from above. While economic
problems weakened the standing of the government, it was still in the power of
the communists to initiate and direct discussions of political and economic
transition. Hungary developed a significant programme of restitution and
rehabilitation for the victims of the past. Attempts to prosecute for crimes of the
past have been far more limited, though it is worth noting that the constraints
have been largely legal. A narrow lustration law was passed, but has had a
limited impact.

Bulgaria
In 1947, the Communist Party consolidated power in Bulgaria, leading to over
four decades of repression.64 In the early years of power struggles, there were
vast purges of party members, many of whom were sent to labour camps.
Repression eased slightly after 1962, but there were still tight restrictions on
freedom of the press, speech, religion and assembly, as well as repression of ethnic
minorities, in particular ethnic Turks.
A weak economy combined with the new Soviet openness to shake up the
Bulgarian Communist Party. The government came under increasing domestic
criticism and, in October, there was a large demonstration in the capital
coinciding with a meeting about ecology of the Conference on Security
and Cooperation in Europe (CSCE). In November 1989, party members ousted
longtime ruler Todor Zhivkov, replacing him with a new ruler who announced a
plan of economic, political and legal reform. In 1990, the BCP, now the
Bulgarian Socialist Party, won the election, but an opposition party, the Union of
Democratic Forces (UDF), won the subsequent 1991 parliamentary and 1992
presidential elections.
Bulgaria faced the same range of issues other eastern bloc nations confronted:
how to compensate the victims, whether to prosecute perpetrators, whether to
pass lustration legislation, and whether to open the secret files of the security
apparatus. In 1990, an amnesty was declared for political prisoners; in 1991,
laws were passed providing for their compensation and rehabilitation, and to return
property wrongfully confiscated by the state.
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 61

In 1992, Zhivkov was sentenced to seven years in prison, but for

embezzlement, not human rights abuses. In 1993, however, he and two others
were indicted for the campaign to forcibly assimilate ethnic minorities during the
1980s. He was also indicted for setting up labour camps where 147 prisoners
died between 1959 and 1962; camp officials were indicted for murder. By 1998,
no progress had been made on these cases, and Zhivkov died in August.
The legislature passed two purge laws, which were struck down by the
constitutional court in 1992. Finally, in early 1993, the court upheld a law
instituting screening requirements for members of scientific organizations. The
UDF had campaigned for access to the secret police files, but it closed them in
1993 on national security grounds. The government was clearly weakened by a
poor economy and popular discontent, but still maintained the upper hand. As
with other cases in the region, the most decisive external factor in Bulgarian
reform was the Soviet openness. Bulgaria experienced a transformation from
above; it was reformers within the party that ousted Zhivkov and initiated the
reforms that led to free elections. Victims of repression were rehabilitated and
compensated, but were not allowed access to their secret police files. The
lustration legislation was a relatively narrow screening law for a subset of
workers. Similarly, while Zhivkov and a number of labour camp officials are
charged with abuses, most of the members of the old establishment remain
untouched. The ministry of the interior has incomplete but improving control
over the police and there have been some reforms aimed at increasing this control.65

Albania
Communist forces came to power in 1944 in Albania when the German forces
withdrew.66 The subsequent regime under Enver Hoxha was the most repressive
in the region, with political opponents sent to prisons where forced labour was
imposed; all sectors of society were subject to periodic purges. After Hohxa’s
death in 1985, his successor maintained the same type of regime until 1990 when,
in response to domestic unrest and the fall of communist regimes elsewhere, the
regime initiated some limited reforms. In July, there was a mass demonstration in
the capital, and some 4,700 people sought asylum at European embassies. They
were allowed to leave, and independent political parties were allowed to seek
office.
In 1991, despite a flawed election, the opposition gained one-third of the seats
in the legislature. Political prisoners were also released, though despite these
reforms human rights abuses continued. In December, as a protest to the
socialists’ blocking of reform, the opposition parties withdrew from the
coalition. An interim government was formed, and in the March 1992 elections
the Democratic Party gained two-thirds of the seats in the legislature, and Dr Sali
Berisha became president. In 1993, the country began to face the legacy of the
past. The legislature passed a law on the restitution of expropriated property. It
62 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

also passed a law to screen lawyers and deprive them of their licenses for past
collaboration, but this law was struck down by the constitutional court.
Numerous charges have been filed against former officials and elites. Hoxha’s
widow was sentenced to 11 years in prison for misuse of state funds, and a
border guard was sentenced to ten years for killing persons attempting to flee the
country. In December 1993, ten senior former communist officials were
sentenced to prison terms of five to ten years and ordered to repay . In recent
years, NGOs have sought to retrain Albania’s police with respect to both
technical matters and human rights.
Albania’s ruling class still firmly held power at the time of transition, though
it faced an increasingly restive population. Albania, having been extremely
isolated, was slower to react to the new openness in the region than other
countries, but new Soviet policies and the fall of communist regimes in the
region were important events enabling change in the regime. Albania
experienced a transformation from above. The government was under heavy
domestic pressure, but initiated and controlled the pace of the transition. Victims
of land expropriation were given restitution, and political prisoners were freed,
but no provisions were made for access to secret police files. The one attempt at
lustration legislation was struck down by the high court. However, there have
been a number of successful prosecutions of former elites, though these cases
have focused on corruption as well as repression.

Poland
Following the Second World War, under the Yalta agreement, Poland was to
have fair elections, but those held in 1947 were controlled by the Communist
Party, leading to the establishment of a communist state.67 Periodic uprisings by
workers and students were harshly put down; the most significant of these would
be a workers’ movement known as Solidarity. Solidarity was well positioned to
take advantage of the new Soviet openness and the weakness of the Polish
regime. The regime entered into round-table talks with Solidarity in 1989 after a
dismal level of public support. The negotiations resulted in free elections for a
new upper house of the legislature, but guaranteed the communists 65 per cent of
the lower house. June 1989 elections thus gave the communists dominance of the
lower house, but handed them a crushing defeat in the upper house. The
agreements had also given the communists the power to designate the ministers
of defence and the interior. Otherwise, however, the elections delegitimated the
communists further and enabled Solidarity to implement reforms.
Poland moved slowly to confront the abuses of the past, drawing a ‘thick line’
between the present and the past. There are reports that this slow pace enabled
the security forces to destroy hundreds of thousands of documents pertaining to
past repression. A parliamentary commission investigating deaths under the old
regime received little support from the ministry of the interior, which was still
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 63

dominated by communists. Plans are now set to open the security files to the
populace through a body on the model of Germany’s Gauck authority.
In June 1992, the parliament passed an ill-conceived lustration law which was
so poorly structured as to cause a great deal of confusion and make future attempts
at lustration difficult.68 It was over five years later, in early 1998, that a new,
very narrow lustration law was passed. Individuals seeking high elected or
appointed office must declare at the time whether or not they were collaborators.
Having been a collaborator does not disqualify a candidate for a job; only lying
about one’s status can disqualify one from public office for ten years.69 There
have also been sporadic attempts to prosecute individuals for the abuses of the
past. General Jaruzelski has been indicted for his actions ordering the shooting of
protesting workers in 1970–71, and some other senior figures have been charged
with the deaths of workers who were striking in 1981–82.
A number of observations may be drawn out about the Polish experience.
While the government was still in control in 1989, it faced a particularly strong
and well entrenched opposition group in the form of Solidarity; the opening of the
Soviet Union was, of course, a decisive factor in Poland’s reform. Poland
experienced a transformation from above, and the regime, while ceding power,
was also able to maintain some of its influence.
The holdover of ex-communists in power in legislative positions and in the
bureaucracy is perhaps one of several reasons why Poland has sought to draw a
‘thick line’ between the present and the past. The result is that there has been
minimal lustration, a few prosecution attempts, and there are now plans to open
an archive. However, this lack of lustration also implies a threat to stability.
Until recently this was compounded by a general failure to reform the security
apparatus, but the government has begun to take steps to restructure the military,
increase civilian control and depoliticize it.

Romania
Following the Second World War, the Soviet Union pushed for the inclusion of
the Communist Party in the postwar government; it consolidated power and
steadily pushed non-communists out of power, until the Romanian People’s
Republic was declared following the king’s abdication in late 1947.70 Though the
state under Ceaucescu in the 1960s became increasingly independent of
Moscow, it remained very repressive.
The regime change in Romania was unlike that in other eastern European
countries in that it was rapid and bloody. It began with a popular uprising in
December 1989, sparked by a protest in a small town that soon served to reveal
the lack of support for the country’s ruler, Nicolae Ceaucescu. A larger
demonstration on 22 December followed in the capital, initially put down by the
army and security forces; however they soon joined the crowds instead. The
group that took over, the National Salvation Front (NSF), included many former
64 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

high-ranking Communist Party members and generals, including the future

president, Ion Iliescu.
The following day, the arrest of the Ceaucescus was announced by Iliescu.
They were not given the benefit of a public, civilian trial; instead they were tried
in secret by a military tribunal. Three days after their arrest, national television
broadcast images of the couple shot dead. The videotape of the two-hour trial
indicated that the couple had been charged with genocide, among other things;
they were convicted of undermining state power and the national economy,
conspiracy and destroying public assets. The trial displayed anything but due
process; the defence lawyers failed to serve their clients, and there was no
appeal. The trial also failed to clarify the events that led from the clashes
between demonstrators and security forces to their joining together.
Further trials followed that of the Ceaucesus, including the trials of his brother,
a general, and of their son. In early 1990, in rehearsed and presumably coerced
testimony that the defendants later renounced, four of Ceaucescu’s top aides
were convicted of genocide for their part in ordering the opening of fire on
demonstrations the previous December. However, in 1993, their sentences were
reduced and, by 1994, all four had been paroled or released for medical reasons.
In March 1990, 25 police officers and officials from the state security agency
were charged with complicity in genocide; nearly two years later, 18 were
convicted; of these, ten were pardoned. In July 1990, the entire political
executive committee of the Communist Party were brought to trial. After a
complex procedural history, all were convicted, but have since been paroled or
released for medical reasons. Relatives of the Ceaucescus were also brought to
trial; their son was initially convicted of genocide, but on appeal was convicted
only of illegal firearms possession, and was released in late 1992.
In early January 1990, the new government issued two amnesty decrees. The
first, more broadly phrased, left open the possibility of amnesty not just for those
who opposed the regime but for members of the old regime as well; the second
specifically excluded those who directed or participated in the past repression.
The first amnesty has turned out to be a way to quietly avoid pursuing some past
human rights abuses.71
A further limitation to the confrontation of the past abuses is that the trials
dealt only with the repression of December 1989, not the longer history of
abuses under communism. The new government was pressurized by NGOs
to initiate some sort of trial of communism, but negotiations on this issue failed.
An attempt was made to prosecute key officials under Ceaucescu’s predecessor
who were responsible for torture, internment and forced labour camps, but after
numerous delays the statute of limitations had run and so the indictments were
abandoned in early 1994. In April 1993, nine defendants including seven
Securitate officers and a former minister of the interior were convicted for
carrying out the orders for a summary execution in 1981. Advocacy for further
trials, as well as a judgement of the more diffuse repression under communism,
has yet to bear fruit.
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 65

There have been efforts to address the legacy of the past in other ways. In
1990, a law was passed to compensate former political prisoners. Other efforts
have been less than successful: a law to allow access to security files has yet to
go through, and a commission set up in 1991 to establish the truth has yet to
release a report.
Romania is an unusual case of transition: a popular uprising appears to have
been in essence co-opted by elements of the old regime with a dubious interest in
change. The new regime should have had a relatively free hand in addressing the
abuses of the past, but may also have had powerful incentives not to do so. In fact,
in mid-1990, the new regime violently put down peaceful demonstrators who
argued that the population sought to eliminate the old regime, not give
Communist Party anti-Ceaucescu forces power, and argued that the transitional
NSF government members should not be allowed to run for office.
Romania was of course affected by the changes in the former Soviet Union
and the region more generally. Further, it may have been more susceptible to
external pressure on human rights, in particular from the USA, which examined
the record closely in conjunction with Romania’s application for most favoured
nation trading status. Romania’s application for membership in the Council of
Europe also subjected it to scrutiny on this matter.
Romania’s experience is unusual, and does not fit in comfortably with the
other transitions discussed here. Certainly what change has occurred has been
entirely controlled by the new regime, which not coincidentally contains leaders
who were in the upper echelons of the old communist regime. The ambiguous
nature of the transition has led to ambiguous treatment of the past. The most
decisive step to confront the abuses of the past was in itself a human rights
violation: the sham trial and execution of the Ceaucescus. It seems reasonable to
interpret this trial as aimed less at addressing the legacy of abuse and more at
appeasing a population calling for real change. Further trials took place, but the
effect of the trials was curtailed by the amnesty law, the statute of limitations and
health problems of the defendants. Furthermore, for the most part the larger history
of abuse was not addressed, only the events during the so-called revolution. This
was an approach that seemed to be tailored to appease the population without
endangering members of the new regime, ex-communists themselves. Wider
attempts at opening the records and truth-telling have also failed to bear fruit
thus far. Reforms have shown some success; the new constitution limits the role
of the military to defence of territorial integrity and, since 1993, the USA has
held limited training of military and civilian officials, emphasizing civilian
democratic control over the military. In May 1998, the ombudsman’s office for
complaints provided for in the 1991 constitution finally began its work.

Russia
The case of Russia differs from those of other eastern bloc nations discussed here
in that the repression was imposed purely from within.72 While repression was
66 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

widespread throughout the Soviet era, the most significant abuses occurred
following the rise to power of Joseph Stalin in 1924. The most severe repression
took place in 1937 and 1938, when 8 to 12 million people were deported or
interned in prisons or labour camps. Between 1935 and 1945, some 7 million
people were executed. A first wave of destalinization took place under his
successor, Khrushchev; of more interest for our purposes is the liberalization that
occurred after Mikhail Gorbachev rose to power in 1985.
This liberalization was accompanied by a rise in nationalism; between 1988
and 1990, all republics of the then Soviet Union declared independence. In June
1990, Russia declared independence, and a year later Boris Yeltsin was
democratically elected. In August 1991, the day before the signing of a treaty
passing expanded political and economic powers to the republics a group of
military, Communist Party, and Committee of State Security (KGB) officials
staged a coup which failed. The Communist Party was abolished during 1991
and 1992, but the constitutional court declared that local branches could re-
establish themselves. A second coup attempt took place in October 1993
following a dispute between Yeltsin and the parliament. Members of parliament
were arrested, but in February 1994 members of the new parliament passed
amnesty legislation covering both coup attempts.
With regard to past abuses, rehabilitation attempts had begun under
Khrushchev, but had dwindled before Gorbachev came to power. He pushed
through reforms of the rehabilitation process in 1988–89 under public pressure.
The inadequacy of the compensation granted to those who were rehabilitated
soon became a hot political issue. In 1991, the legislature of the Russian republic
passed a law rehabilitating former political prisoners and providing substantial
compensation for both moral and material harm done to them.
With regard to past abusers, however, the political situation is more complex.
There have been failed attempts to pass a screening law, but nearly all key
political groups opposed them. Furthermore, in 1993, the parliament passed a
bill making it illegal to identify KGB collaborators. The statute of limitations on
the crimes of the past has run, making prosecutions under domestic law virtually
impossible. In one instance, a number of prosecutions that were being processed
were halted by the statute of limitations; publicity surrounding this event led to
the stripping of their positions and degrees. An attempt by an NGO, Memorial, to
bring a case rooted in international law, failed when a court denied the case a
hearing.
Reform in the former Soviet Union and later Russia was initiated from above.
Although there was a growing public call for reform, the two coup attempts
indicate the continued strength and recalcitrance of old party members, elements
of the military and of the KGB. Further, despite reform efforts, the legacy of the
powerful security apparatus endures, according to some analysts.73 Historians
and political scientists will undoubtedly continue to argue for decades about
what led to reforms and the breakup of the Soviet Union. Certainly, one key
cause was a severe economic slump, brought on in part by structural economic
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 67

problems and exacerbated by the high costs of competition with the USA. It is
less clear the degree to which international and in particular American criticism
on issues of human rights and political freedom had an impact on the course of
reforms.
The transformation from above enabled various political and economic reforms,
including its breakup into independent republics. The ruling class was divided,
however: while leaders like Gorbachev and later Yeltsin could initiate reform,
they did so at the risk of a backlash from conservative elements, such as was
manifested in the coup attempts of 1991 and 1993. The continued influence of
these conservative elements is certainly a key reason why Russia has not
addressed the issue of past offences more aggressively. Victims have been
rehabilitated and compensated, but lustration and prosecution attempts have been
frustrated. And, while the historical record is being clarified by a new generation
of historians, there is no project like that in Germany and elsewhere to open
secret police files to the public.

Lithuania
In 1940, the Soviet Union captured Lithuania and declared it a constituent
republic.74 Some 5,000 Lithuanians were executed, and another 35,000 were
deported to Siberia. Lithuania was briefly lost to the Nazis, but the Soviets
recaptured it in 1944, and sent another 60,000 to Siberia. In 1949, in order to
carry out a programme of forced collectivization, another 60,000 were deported.
Until the thaw under Gorbachev, political persecution remained common.
In May 1989, the Lithuanian supreme council declared Lithuanian sovereignty.
A rising tide of nationalism in the Baltic states prompted a human chain between
the capitals of those states calling for independence. In December, a multi-party
system was adopted, and the president who was elected in February 1990 called
for autonomy. When Lithuania declared independence in March, the Soviets
cracked down. However, following the failed coup in Moscow in August 1991,
the Soviet grip on the republics faltered. The international community gave
official recognition to the Baltics and, in September, the Soviet Union recognized
their independence.
The Lithuanian government moved quickly to cleanse state structures; in
November 1991, a government decree barred former KGB employees and
informers from holding official posts for five years. The property of the
Communist Party was also confiscated, and owners of property
nationalized under communism were allowed to petition for its return. However,
a broader law that would have banned more collaborators from a wide array of
state posts, from economy-related jobs to the armed forces, was rejected in May
1992. And former communists were not banned from office: in 1993 the
successor party to the communists captured the presidency.
Lithuania’s independence and reforms would have been impossible had not
the Soviet Union been weakened and loosened its grip on its constituent
68 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

republics. A rising tide of nationalism hastened the state’s independence. The

most obvious external influence on Lithuania’s transition was the waning of the
Soviet Union. Also important was the role of diplomatic recognition in
legitimating the new republic as a sovereign nation. Lithuania could be said to
have experienced transformation from above or transplacement, as its release by
the Soviet Union was followed by a referendum. Lithuania moved swiftly to
implement some purges of the state apparatus, and stripped the Communist Party
of its property. It also sought to restore confiscated property to its former
owners. However, no strides were taken to prosecute those responsible for past
repression or otherwise officially acknowledge the past. A promise to create an
international commission for crimes of the past has not been fulfilled; the only
trial that has been pursued was against a Nazi war criminal.

Africa
Fewer nations in Africa have faced this dilemma than have done in Latin
America or Europe. This is the case in part because fewer nations in the region
are experiencing true civilianization and democratization; further, some of those
that have replaced dictatorships have done so by overthrowing them. In Ethiopia,
for example, the old regime was soundly defeated in a civil war, facilitating the
campaign of prosecutions for abuses of the past that has followed.75 In Uganda,
the resistance movement that overthrew the old repressive regime promised to
step down after a transition period, but failed to do so; the commission of inquiry
it set up to address the abuses of the past had not issued a report after some ten
years. In Rwanda, prosecutions have gone forward at the domestic and
international level following the civil war and genocide of 1994; the genocide
was curtailed only by the overthrow of the regime, but the fighting continues.76
The recent peace accord in Sierra Leone is fragile, and two earlier ceasefire
accords have been broken; nonetheless the amnesty provision has been
questioned by human rights organizations and UN officials. A new special court
has been created, and will supplement the work of a commission of inquiry.77

South Africa
After nearly 50 years of racist, repressive white rule under apartheid, then-
President F.W.de Klerk initiated reform in early 1990 by lifting the ban on
various anti-apartheid and opposition groups, including the African National
Congress (ANC). Negotiations began between the government and these parties
shortly thereafter. The government also created a commission of inquiry (the
Goldstone Commission) to look into a number of particularly notorious instances
of violence; the ANC subsequently created a commission to look into its own
abuses.
During the negotiations, the issue of how to deal with the abuses of the past
loomed large. The ANC had advocated a purge of the military and opposed an
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 69

amnesty, while the position of the government and military was directly
opposed. The parties finally reached agreement on an interim constitution in late
1993, which provides for majority rule, protects the positions of civil servants
and military members, and stipulates that the parliament is to provide for the
provisions of an amnesty.
The new ANC government came to power in early 1994, and shortly
thereafter created a truth commission, which was unique in that amnesty was
given only to those who applied to the commission and came clean about their
involvement in the abuses of the past. In addition, old military officers are being
retired and ex-ANC guerrillas are joining the military.
Guerrilla threats and international disapproval placed pressure on the
government to reform, but it was the government that initiated the reform, which
was tolerated by the security establishment. The government was continually
mindful of the threat of military or right-wing rebellion. International opposition
to apartheid was longstanding and vocal. There are strong disagreements as to
the degree to which international sanctions and disapproval affected decisions to
reform, but these were not irrelevant, as the South African regime liked to view
itself as part of the western world that condemned apartheid. Undoubtedly, the
demise of communism helped assuage fears of the leftist tendencies of domestic
anti-apartheid groups.
South Africa experienced a transformation from above, initiated and
controlled by the de Klerk government, which sought to limit liability for past
violations and protect the positions of those who had served the apartheid regime
in military and civilian capacities. Agreed procedures largely foreclosed the
possibility of prosecutions for the abuses of the past; but, should a person not
apply for amnesty they are still vulnerable to prosecution. In addition, the parties
agreed to protect the positions of military members and civilians alike from the old
regime. However, ex-guerrillas are being integrated into the state security forces
now, and officers from the old regime are retiring. Finally, the budget for the
military dropped somewhat once the costs of transition have been discounted.

Asia

South Korea
Between 1948 and 1987, South Korea was under authoritarian rule with the
exception of a brief period of democratization in 1960–61.78 During that opening,
legislation was passed to enable prosecution of those who had engaged in
election-related crimes as well as large numbers of police. The government also
planned a purge of high-level officers and a reduction of the military, but the
military and the USA vehemently opposed these moves; the regime was
overthrown by Major General Park Chung Hee in 1961. In 1987, then-ruler
General Chun Doo Hwan agreed to opposition demands, including elections. In
70 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

late 1988, there were hearings in the legislature regarding abuses under Chung,
in particular a notorious massacre at Kwanjgu. As a result, a deal was struck in
which Chung apologized on television and went into exile.
In 1994, a prosecutor’s office in Seoul determined that Chun and Roh Tae
Woo had engaged in a military rebellion in 1979, but prosecution did not follow
immediately. The case was reopened in 1995 following the discovery of
corruption by Roh; Chun was sentenced to life in prison (reduced from a death
sentence) and Roh to imprisonment. However, the new president, Kim Dae Jung,
previously persecuted by the former leaders, freed both in December 1997.79
Subsequent pardons were granted to 12 former army generals who had been
close to Roh and Chun.80
While there has been domestic political opposition, nothing like an armed
opposition exists now to threaten the government. The most salient feature of
South Korean political life has been the ongoing rift with North Korea, though it
is unclear what role that or the continued US presence played in the return to
democratic rule. The transition was a transformation from above, with the
military rulers choosing to allow elections to go forward.
South Korea’s treatment of Chun and Roh is unusual in that the former leaders
no longer seem to have posed a serious threat to stability, yet were treated with
some care, with the prosecutor at first declining to pursue the case in 1994, and
the case that was pursued arising originally not out of Kwangju or the coup, but
corruption, though the other issues were eventually drawn in. Finally, Kim does
not seem to have been acting out of fear, but mercy or forgiveness, when he
pardoned the two. While the military budget appears to have increased in real
terms but decreased as a percentage of GDP, it is unclear what import this has
given the heavy role played by the USA in the peninsula.81

The Philippines
Between 1972 and 1986, Ferdinand Marcos held dictatorial power over the
Philippines.82 In 1986, he was defeated at the ballot box by Corazon Aquino, the
widow of a slain opposition leader who headed the ‘people power’ movement.
However, despite the very real popular nature of her support, many believe that
she would not have triumphed without the support of the military. While the
military had been a key supporter of Marcos, and with the police had been a
major human rights abuser, in 1986 the defence minister and vice-chief of staff
of the armed forces switched camps and threw their support to Aquino. This shift
proved an immense aid to the popular opposition movement, and thus Aquino’s
new presidency was beholden to and dependent upon the armed forces.
Given this dependency, serious constraints were placed on the treatment of the
abuses of the past: Aquino generally did not pursue prosecutions of human rights
abusers, particularly those in the military. Nonetheless, before long the defence
minister was planning to oust her. While Aquino survived this and other coup
attempts, she became dependent on one faction of the armed forces to protect her.
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 71

As a result, there has been very little commitment to pursuing cases against the
military. Prosecutions before military tribunals have been shams, and
prosecutions in civilian courts have been undermined by military and police
intransigence. Thus, between 1987 and 1990, 994 complaints were filed resulting
in only six convictions.
Despite subsequent accusations that she had forgotten about human rights,
Aquino came to power with a strong commitment to address the abuses of the
past. She released 500 political prisoners and created a committee on human rights
immediately after taking office. The committee’s mandate was to investigate
abuses of the past and make recommendations, which could include prosecution.
However, following comments by Aquino’s spokesperson that seeking to
prosecute members of the military for rights abuses might be destabilizing, the
members of the committee resigned in 1987. An independent commission on
human rights was created by the February 1987 constitution, but it had little
more power or success. These flaws were exacerbated by the actions of the head
of the commission, who treated the abuses of the government and of the rebel
army as equivalent, although those of the government and military were of a far
greater magnitude.
While the strength of Aquino’s popular support cannot be denied, and the rebel
army undoubtedly formed some threat to the establishment, it was the defection
of a few key military figures that gave Aquino a large boost. This also meant that
she was dependent upon the military and vulnerable to coup threats and attempts.
The military remained strong through the transition, continued to wage war
against rebels, and some elements even gained popularity for their role in ousting
Marcos.
The military itself was split between those who wanted a strong, but
reprofessionalized military, and those who wanted to retain a larger role in
politics. It was this latter group that was responsible for the coup threats and
attempts that posed a serious challenge to Aquino’s rule.83 The USA has played a
central role in the politics and military of the Philippines for a century. It
encouraged the adoption by the military of the doctrine of national security
beginning in the 1950s, and sought to push Marcos towards power sharing in
1984–85. The USA eventually courted Aquino openly, putting pressure on the
regime during the 1986 election with a congressional delegation. The Filipino
transition is a difficult one to categorize, catalysed as it was by a combination of
popular opposition and military support. The result, however, was much like that
of a transformation from above; the military retained a great deal of control over
politics.
As a result, movement to address the human rights abuses of the past was
limited. The committee and later the commission on human rights
generated reports and suggestions, a few of which developed into prosecutions,
but there were even fewer convictions. In 1995, the government offered an
amnesty to former rebels and members of the security forces. Abuses by the
security forces continue and are also not generally punished.84 While there has
72 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

been a significant absolute increase in the military budget, it has not increased as
a percentage of GDP.85

Cambodia
After receiving its independence from France in 1954, Cambodia experienced a
period of political unrest and flux.86 In 1975, the Khmer Rouge (KR) guerrillas
seized power and instituted a ‘reorganization’ of society, more frequently
referred to as genocidal policies, resulting in the deaths of 1 million
Cambodians. The severe repression continued through 1978, when Vietnam
invaded, replacing Pol Pot’s Khmer Rouge regime with one headed by Hun Sen.
Three rebel groups formed a government in exile three years later; one of the
factions was the KR. While there were efforts at truth-telling about the abuses of
the past during this time, prosecutions were rendered impossible by the difficulty
of identifying perpetrators, the fact that many had fled the country, and
fundamental flaws in the judicial system. Khmer Rouge leaders Pol Pot and Ieng
Sary were prosecuted and sentenced to death in absentia, but there was little
chance of their capture at that time.
It was only when Vietnam withdrew its troops in 1989 that peace efforts began
in earnest. In 1990, the five permanent members of the Security Council
presented a peace plan to the parties; the result was the creation of the interim
supreme national council. In October 1991, the parties to the Cambodian conflict
and 18 other nations signed a peace treaty; a UN advance team was sent in a
month later. The agreement itself, to the degree that it touched on human rights,
focused largely on future protection. Although the past genocide loomed large, a
key concern was convincing the KR to disarm, and the USA and China, in
particular, insisted that the KR could not be excluded from participation in a
future government. Thus, political concerns led the parties, domestic and
international, to effectively foreclose the possibility of accountability for the
genocide. The role of a large UN peacekeeping force was to supervise the
cantonment and demobilization of combatants, effectively control the
government and police until a new government was elected and installed, and
ensure greater protection for human rights.
In March 1992, the UN peacekeeping force, to number over 20,000, began
deployment. However, the KR demonstrated increasing intransigence: it violated
provisions regarding cantonment and demobilization and took UN troops
hostage. In early 1993, the KR announced that it would boycott upcoming
elections and intensified its attacks. Elections went forward nonetheless, and a
new government was installed. Through early 1994, the government sought to
negotiate with the KR, but launched an offensive against it when that failed.
Pol Pot himself was eventually captured by members of his own group, but
died before prosecutions could go forward. However, several former top Khmer
Rouge leaders have been charged, and one has already been sentenced to life in
prison, with plans for further proceedings to be televised.87 The government
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 73

rejected a UN proposal to turn over other former leaders to an international

tribunal, but more recently a UN plan has proposed the creation of a joint
national- international tribunal.88
The Cambodian situation is rather complex, due in part to external forces. But
for the Vietnamese invasion, it is impossible to say how long the KR might have
remained in power; even after it was ousted, it remained a force to be reckoned
with, forcing even international partners in the peace negotiations to accept the
prospect of future KR participation in politics. Its defection from the peace process
posed a serious threat to the newly elected government.
International involvement has been extensive, with the UN force in the
country supervising elections, and continuing to place public pressure on the
government to address the legacy of the past, particularly with the offer to create
a tribunal to prosecute past abusers. The Khmer Rouge was effectively
overthrown, but by an outside force, so that the new nation has continually faced
the threat of a resurgence of the party. This has necessarily resulted in
concessions to the group on numerous issues.
The question of how to address past abuses was revived in late 1998 and early
1999 with the surrender of two former leaders of the Khmer Rouge and outrage
at the fact that they were not only not being punished but vacationing at a remote
town. These events sparked renewed demands for trials for crimes against
humanity.89 Reports suggested that Prime Minister Hun Sen favoured a tribunal,
which he later rejected; King Sihanouk expressed willingness to face a tribunal
for his past acts.90 The UN and the Cambodian government have developed a
plan for a tribunal, though it remains to be seen whether it will come into being.
The military budget rose significantly in 1997 but was scheduled to drop in
1999.91 While the United Nations Transitional Authority for Cambodia (UNTAC)
included a civilian police monitoring element, problems with the security forces
were not resolved.92

Sri Lanka
Sri Lanka, unlike most of the cases examined here, has been a democracy since
independence, but has experienced a civil war since the early 1980s.93
Progressive restrictions on civil rights have been imposed with the continuation
of the war, a brutal one that has taken over 55,000 lives. Following an electoral
administration shift in 1994, commissions of inquiry into past abuses were
created and some prosecutions began; the government also created a human
rights commission and a cabinet-level commission to combat harassment. Several
convictions have been obtained against members of the security forces in high-
profile disappearance cases.
Sri Lanka is an unusual case in that it has not experienced a
traditional transition, and in that the primary constraint on accountability is not
the fear of military reaction. While it faces a strong separatist rebel movement
that can neither win nor be totally defeated, and has a strong military that is loath
74 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

to face accountability or reform, this may not be the most salient limitation on
accountability. Indeed, there seems to be no risk that the security forces of Sri
Lanka would stage a coup; civilians are limited because they are dependent upon
the military to wage the war and do not wish to limit their actions or undermine
morale. Sri Lanka is different too in that the international influence it is subject
to is not that of the USA or the UN, but India, which in 1987 sent an ill-fated
peacekeeping force to the island. Ethnic links between the rebels and a populous
state in the south of India brought on India’s involvement in the 1980s; however,
in recent rounds of reform, accountability and negotiation with the rebels, India
has been far less involved.
It may be something of a misnomer to refer to transition in Sri Lanka, as there
has been no transition from authoritarianism to democracy; nonetheless we see
an important policy shift following an electoral regime change. Sri Lanka took
the common routes of prosecution and truth commission; attempts at
constitutional and security force reform have been less successful. Little can be
extrapolated from the continuing rise in military budgets as the civil conflict
continues.

Notes

1 Because of the nature of the cases examined here, the importance of this category is
negligible, as we shall see.
2 William Stanley and Robert Loosle, ‘El Salvador: The Civilian Police Component
of Peace Operations’, in Robert B.Oakley, Michael J.Dzidzic and Eliot M.
Goldberg, Policing the New World Disorder: Peace Operations and Public
Security (Washington, DC: National Defense University Press, 1998).
3 ‘Argentina: Ex-ruler Held in Kidnappings’, New York Times (26 November, 1998),
p. A10; Clifford Krauss, ‘Spanish Judge Investigating Rights Abuses in
Argentina’, New York Times (29 November, 1998), p. 4.
4 Lawrence Weschler, A Miracle, A Universe: Settling Accounts with Torturers (New
York: Pantheon, 1990); Van Dyke and Berkley, ‘Redressing Human Rights
Abuses’, pp. 251–4; Hayner, ‘Fifteen truth commissions’, p. 616.
5 Estimates place the number of Uruguayans who disappeared after being arrested at
164; however, it is also estimated that, by the late 1970s, one in 500 citizens were
sent to jail for political reasons, giving Uruguay the highest per-capita rate of
political prisoners in the world. Further, some 30,000 civil servants were apparently
dismissed for ideological reasons. See Van Dyke and Berkley, ‘Redressing Human
Rights Abuses’, p. 251; Roht-Arriaza, ‘Case Studies: Latin America’, in Impunity
and Human Rights, p. 148; and the editor’s introduction ‘Uruguay’, in Kritz (ed.),
Transitional Justice, vol. II, p. 383. Further, estimates are that some three to four
hundred thousand Uruguayans, of a population that stood at 3 million in 1970,
went into exile. Weschler, A Miracle, A Universe, pp. 87–8.
6 Americas Watch, ‘Challenging Impunity: The Ley de Caducidad and the
Referendum Campaign in Uruguay’, reprinted in Kritz (ed.), Transitional Justice,
vol. II, p. 386.
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 75

7 Weschler, A Miracle, A Universe, p. 166.

8 For example, the Inter-American Commission on Human Rights found that the
amnesty law violated basic provisions of the American Convention of Human Rights
and the American Declaration of the Rights and Duties of Man: Robert K.
Goldman, ‘Amnesty Laws and International Law’, reprinted in Kritz (ed.),
Transitional Justice, vol. II, p. 412.
9 Privately, some officials of the subsequent Sanguinetti government claim that the
Naval Club Pact secretly promised the military an effective amnesty: Weschler, A
Miracle, A Universe, pp. 166–7.
10 The military prosecutor who took up the investigation was, as feared, not impartial,
concluding in the only six cases he looked into that the security forces were not
implicated in abuses: Americas Watch, ‘Challenging Impunity’, pp. 391–2.
11 Carlos Varela, ‘The Referendum Campaign in Uruguay: An Unprecedented
Challenge to Impunity’, Human Rights International Reporter, 13, 1 (Spring
1989), pp. 16–18 discusses the ultimately failed referendum movement.
12 International Institute of Strategic Studies (IISS), The Military Balance (London:
International Institute of Strategic Studies, 1982–90).
13 Roht-Arriaza, ‘Case Studies: Latin America’, in Roht-Arriaza (ed.), Impunity and
Human Rights, pp. 155–9; Acuerdos de Paz (Guatemala City, Guatemala:
Universidad Rafael Landivar-Instituto de Investigaciones Económicas y Sociales,
1997). See also US Department of State, ‘Guatemala Country Report on Human
Rights Practices for 1998’ (26 February 1999), available at http://www.state.gov/
www/ global/human_rights/1998_hrp_report/guatemal. htm.
14 Van Dyke and Berkley, ‘Redressing Human Rights Abuses’, p. 255.
15 ‘Acuerdo Global Sobre Derechos Humanos’, in Acuerdos de Paz, points 3 and 4.
16 ‘Acuerdo sobre el establecimiento de la comisión para el esclarecimiento histórico
de las violaciónes a los derechos humanos y los hechos de violencia que han
causado sufrimiento a la población guatemalteca’, in Acuerdos de Paz.
17 Roht-Arriaza, ‘Case Studies: Latin America’, pp. 157–9.
18 ‘Acuerdo sobre fortalecimiento del poder civil y función del ejército en una
sociedad democrática’, ‘Acuerdo sobre reformas constitucionales y régimen
electoral’, in Acuerdos de Paz.
19 Roht-Arriaza, ‘Case Studies: Latin America’, p. 158.
20 Larry Rohter, ‘Guatemala Cover-up Charged in Killing of Bishop’, New York
Times (23 October 1998), p. A3.
21 Roht-Arriaza, ‘Case Studies: Latin America’, pp. 158–9.
22 ‘Guatemala: 3 Sentenced to Death’, New York Times (2 December 1998), p. A8.
23 International Institute of Strategic Studies, The Military Balance (London:
International Institute of Strategic Studies, 1995–99).
24 Zalaquett, ‘Balancing Ethical Imperatives and Political Constraints’, pp. 1432–8;
Jorge Correa Sutil and Francisco Jimenez, “‘No Victorious Army Has Ever Been
Prosecuted”: The Unsettled Story of Transitional Justice in Chile’, in McAdams
(ed.), Transitional Justice, pp. 123–44; Hayner, ‘Fifteen truth commissions’, pp.
621–3, and Van Dyck and Berkley, ‘Redressing Human Rights Abuses’, pp. 249–
51.
25 ‘Editor’s Introduction: ‘Chile’, in Kritz (ed.), Transitional Justice, vol. II, pp. 453–
4.
76 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

26 Jorge Mera, ‘Chile: Truth and Justice under the Democratic Government’, in Roht-
Arriaza (ed.), Impunity and Human Rights, p. 171. See also Sutil and Jimenez, ‘No
Victorious Army’, p. 124, arguing that the problem was that the Chilean military
was defeated only in the ballot box, not on a battlefield.
27 Mark Ensalaco, ‘Military Prerogatives and the Stalemate of Chilean Civil-Military
Relations’, Armed Forces and Society, 21, 2 (Winter 1995), pp. 255–70.
28 Pinochet ensured that this would be the case by stipulating that in order to
participate in the plebiscite, political parties had to pledge to accept the constitution
of 1980 and not to change it except according to its own terms. Jorge
Correa, ‘Dealing with Past Human Rights Violations: The Chilean Case after
Dictatorship’, in Kritz (ed.), Transitional Justice, vol. II, p. 456.
29 Kritz, ‘Chile’, p. 454.
30 Correa, ‘Dealing with Past Human Rights Violations’, pp. 458–9.
31 Correa, ‘Dealing with Past Human Rights Violations’, pp. 459–60.
32 In 1992, the legislature created a reparations programme for families of victims
named in the report of the truth commission. David Weissbrout and Paul W.
Fraser, ‘Book Review: Report of the Chilean National Commission on Truth and
Reconciliation’, reprinted in Kritz (ed.), Transitional Justice, vol. II, p. 470. The
reparations fund is to provide pensions: it is expected to spend about million
annually. Mera, ‘Chile: Truth and Justice’, p. 173.
33 Mera, ‘Chile: Truth and Justice’, p. 181.
34 Kritz, ‘Chile’, p. 454.
35 Clifford Krauss, ‘Chile Renders a Verdict on Pinochet: Let’s Move On’, New York
Times (22 November 1998), p. 6.
36 Warren Hoge, ‘Chilean Official Says His Country Will Pursue Justice Against
Pinochet’, New York Times (30 November 1998), p. A10; Hoge, ‘British Court
Rules Against Pinochet: Now Cabinet Must Weigh Extradition’, New York Times
(26 November 1998), pp. A1, A8; Barbara Crossette, ‘Dictators (and Some
Lawyers) Tremble’, New York Times (29 November 1998), sec. 4, pp. 1, 3; Tim
Weiner, ‘U.S. Will Release Files on Crimes Under Pinochet’, New York Times (2
December 1998), pp. A1, A8; Warren Hoge, ‘Law Lords in London Open
Rehearing of Pinochet Case’, New York Times (19 January 1999), p. A3.
37 See United Nations Development Programme (UNDP), Human Development
Report 1996 (New York: Oxford University Press, 1996); shows a significant real
rise in expenditures between 1985 and 1994, but a decline by more than half as a
percentage of GDP. See also James W.Wilkie and Jose Guadalupe Ortega (eds),
Statistical Abstract of Latin America, vol. 33 (Los Angeles, CA: UCLA Latin
American Center Publications, University of California, 1997), p. 286.
38 Stepan, Rethinking Military Politics; Robert G.Wesson, The United States and
Brazil: Limits of Influence (New York: Praeger, 1981); ‘Editor’s Introduction:
Brazil,’ in Kritz (ed.), Transitional Justice, vol. II, pp. 431–2.
39 Guillermo O’Donnell, ‘Challenge to Democratization in Brazil’, in Kritz (ed.),
Transitional Justice, vol. II, pp. 433–42. The budget doubled in real terms and as a
percentage of GDP; see UNDP, Human Development Report 1996, p. 174. But see
the figures in Wilkie and Guadalupe Ortega (eds), Statistical Abstract of Latin
America, p. 286.
40 Larry Rohter, ‘Past Military Rule’s Abuse is Haunting Brazil Today’, New York
Times (11 July 1999), p. 12.
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 77

41 Rene Antonio Mayorga, ‘Democracy Dignified and an End to Impunity: Bolivia’s

Military Dictatorship on Trial’, in McAdams (ed.), Transitional Justice, pp. 61–82;
Roht-Arriaza, ‘Case Studies: Latin America’, in Roht-Arriaza (ed.), Impunity and
Human Rights, pp. 151–3. The president who was democratically elected in 1997
began facing calls for accountability more recently for a small number of deaths
that occurred under his earlier military dictatorship: Clifford Krauss, ‘Bolivian’s
Dark Past Starts to Catch Up With Him’, New York Times (14 March 1999), p. 3.
42 Mayorga, ‘Democracy Dignified’, p. 66.
43 UNDP, Human Development Report 1996, p. 174. But compare Wilkie and
Guadalupe Ortega (eds), Statistical Abstract of Latin America, p. 286.
44 Irwin P.Stotzky, ‘Haiti: Searching for Alternatives’, in Roht-Arriaza (ed.), Impunity
and Human Rights, pp. 185–97; US Department of State, ‘Haiti Country Report on
Human Rights Practices for 1998’ (26 February 1999), available at http://
www.state.gov/global/human_rights/1998_hrp_report/haiti.htm.
45 Michael Bailey, Robert Maguire and J.O’Neil G Pouliot, ‘Haiti: Military-Police
Partnership for Public Security’, in Oakley et al., Policing the New World Disorder.
46 Nicos C.Alivizates and P.Nikiforos Diamandouros, ‘Politics and the Judiciary in
the Greek Transition to Democracy’, in McAdams (ed.), Transitional Justice, pp.
27–51; P.Nikiforos Diamandouros, ‘Regime Change and the Prospects for
Democracy in Greece: 1974–83’; Harry J.Psomiades, ‘Greece: From the Colonels’
Rule to Democracy’; Amnesty International, ‘Torture in Greece: The First
Torturers’ Trial, 1975’; ‘Editor’s Introduction: Greece’, in Kritz (ed.), Transitional
Justice, vol. II; Roht-Arriaza, ‘Case Studies: Europe’, in Roht-Arriaza (ed.),
Impunity and Human Rights, pp. 78–80.
47 D.L.Raby, Fascism and Resistance in Portugal: Communists, Liberals and Military
Dissidents in the Opposition to Salazar, 1941–1974 (Manchester: Manchester
University Press, 1988); Kenneth Maxwell, ‘Regime Overthrow and the Prospects
for Democratic Transition in Portugal’; Antonio Costa Pinto, ‘The Radical Right in
Contemporary Portugal’, and ‘Editor’s Introduction: Portugal’, in Kritz (ed.),
Transitional Justice, vol. II, pp. 283–96.
48 IISS, The Military Balance (1972–79).
49 Raymond Carr and Juan Pablo Fusi Aizipurua, Spain: Dictatorship to Democracy
(London: George Allen & Unwin, 1981); Jose Maria Maravall and Julia
Santamaria, ‘Political Change in Spain and the Prospects for Democracy’, Edward
Malefakis, ‘Spain and its Francoist Heritage’, and ‘Editor’s Introduction: Spain’, in
Kritz (ed.), Transitional Justice, vol. II, pp. 297–322.
50 Carr and Aizipurua, Spain: Dictatorship to Democracy, p. 175.
51 IISS, The Military Balance (1977–87). There was a reduction at the time Spain
joined NATO, and the budget remained flat for several years thereafter.
52 See generally Helga A.Welsh, ‘Dealing with the Communist Past: Central and East
European Experiences after 1990’, Europe-Asia Studies, 48, 3 (1996), pp. 413–28;
Claus Offe, ‘Disqualification, Retribution, Restitution: Dilemmas of Justice in Post-
communist Transitions’, Journal of PoliticalPhilosophy, 1, 1 (1993), pp. 17–44;
Judy Batt, East Central Europe from Reform to Transformation (London: Pinter,
1991).
53 In 1995, 14 members from the Soviet bloc had joined; and, by 1996, ten had
ratified the convention and incorporated it into domestic law. See Andrew
Drzemczewski, ‘Ensuring Compatibility of Domestic Law with the European
78 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

Convention on Human Rights Prior to Ratification: The Hungarian Model’, Human

Rights Law Journal, 16, 7 (November 1995), p. 241 and appendix A; Jorg
Polakiewicz, ‘The Application of the European Convention on Human Rights in
Domestic Law’, Human Rights Law Journal, 17, 12 (December 1996), pp. 405–11.
54 Kathleen E.Smith, ‘Decommunizations after the “Velvet Revolutions” in East
Central Europe’, in Roht-Arriaza (ed.), Impunity and Human Rights, pp. 82–98;
Timothy Garton Ash, ‘The Truth about Dictatorship’, New York Review of Books
(19 February 1998), pp. 35–40; Adam Michnik and Vaclav Havel, ‘Confronting the
Past: Justice or Revenge’, Michael Kraus, ‘Settling Accounts: Post-communist
Czechoslovakia’, Jan Obrman, ‘Czech Parliament Declares Former Communist
Regime Illegal’, and ‘Editor’s Introduction: Czechoslovakia’, in Kritz (ed.),
Transitional Justice, vol. II, pp. 533–88.
55 Kraus, ‘Settling Accounts’, pp. 543–4.
56 This followed an attempt to bring similar charges which was barred because the
statute of limitations had run; the legislation lifting the statute of limitations in
certain cases cleared the way for this round of prosecutions.
57 The plan was to reduce forces that had once totalled 200,000 to 65,000.
Compulsory military training was also cut from two years to one. In the Slovak
Republic, plans were made to cut the budget and reduce forces from 42,000 to 36,
000. See US Department of State, ‘Background Note: Czech Republic, July 1994’
and ‘Background Note: Slovak Republic, April 1998’, available at http://
www.dosfan. lib.uic.edu/ERC/bgnotes/eur/czechrepublic9407.html and /
slovakrepublic9804. html.
58 US Department of State, ‘Czech Republic Country Report on Human Rights
Practices for 1998’ and ‘Slovak Republic Country Report on Human Rights
Practices for 1998’, available at http://www.state.gov/www/global/human_rights/
1998_ hrp_report/czechrepublic.html and/slovakre.html.
59 McAdams, ‘Communism on Trial: the East German Past and the German Future’,
in McAdams (ed.), Transitional Justice, pp. 239–52; Garton Ash, ‘The Truth about
Dictatorship’; Smith, ‘Decommunization’; ‘Accountability for State-sponsored
Human Rights Abuses in Eastern Europe and the Soviet Union’ (panel discussion),
Boston College Third World Law Journal, 12, 2 (Summer 1992), pp. 246–52;
Suzanne Walther, ‘Problems in Blaming and Punishing Individuals for Human
Rights Violations: The Example of the Berlin Wall Shootings’, in Roht-Arriaza
(ed.), Impunity and Human Rights, pp. 99–112; Commission on Security and
Cooperation in Europe, ‘Human Rights and Democratization in Unified Germany’
and ‘Editor’s Introduction: East Germany’, in Kritz (ed.), Transitional Justice, vol.
II, pp. 593–691.
60 Hayner, ‘Fifteen truth commissions’, p. 627.
61 Gabor Halmai and Kim Lane Scheppele, ‘Living Well is the Best Revenge: The
Hungarian Approach to Judging the Past’, in McAdams (ed.), Transitional Justice,
pp. 155–84; Garton Ash, ‘The Truth about Dictatorship’; Smith,
‘Decommunization’; Judith Pataki, ‘Dealing with Hungarian Communists’
Crimes’, Alexander H.Platt, Imtiaz T.Ladak, Alan J.Goodman and Matthew R.
Nicely, ‘Compensating Former Political Prisoners: An Overview of Developments
in Central and Eastern Europe’, and ‘Editor’s Introduction: Hungary’, in Kritz
(ed.), Transitional Justice, vol. II, pp. 645–92.
62 Smith, ‘Decommunization’, p. 85.
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 79

63 Garton Ash, ‘The Truth about Dictatorship’, p. 37.

64 Commission on Security and Cooperation in Europe, ‘Human Rights and
Democratization in Bulgaria’; Helsinki Watch, ‘Democratization in Bulgaria’;
Kjell Engelbrekt and Duncan M.Perry, ‘The Conviction of Bulgaria’s Former
Leader’ and ‘Editor’s Introduction: Bulgaria’, in Kritz (ed.), Transitional Justice,
pp. 693–711. US Department of State, ‘Bulgaria Country Report on Human Rights
Practices for 1998’ (26 February 1999), available at http://www.state.gov/global/
human_rights/1998_hrp_report/bulgaria.htm.
65 US Department of State, ‘Bulgaria Country Report on Human Rights Practices for
1998’.
66 US Department of State, ‘Albania Country Report on Human Rights Practices for
1998’ (26 February 1999), available at http://www.state.gov/www/global/human
_rights/1998_hrp_report/albania.htm; Commission on Security and Cooperation in
Europe, ‘Human Rights and Democratization in Albania’ and ‘Editor’s
Introduction: Albania’, in Kritz (ed.), Transitional Justice, vol. II, pp. 723–9.
67 US Department of State, ‘Background Note: Poland, August 1994’, available at
http://dosfan.lib.uic.edu/ERC/bgnotes/eur/poland9408.html. Andrzej S. Walicki,
‘Transitional Justice and the Political Struggles of Post-communist Poland’, in
McAdams (ed.), Transitional Justice, pp. 185–226; Smith, ‘Decommunization’;
and Garton Ash, ‘The Truth about Dictatorship’.
68 The attempt to cleanse the parliament failed because the files obtained from the
security forces listed all members, whether they had been collaborators or targets.
After a great deal of confusion and anger, the parliament voted the government out
of power for favouring lustration: Smith, ‘Decommunization’, p. 96.
69 Garton Ash, ‘The Truth about Dictatorship’, p. 38.
70 Edwin Rekosh, ‘Romania: A Persistent Culture of Impunity’, in Roht-Arriaza (ed.),
Impunity and Human Rights, pp. 129–44; ‘Accountability for State-
sponsored Human Rights Abuses in Eastern Europe and the Former Soviet Union’,
pp. 252–6. See also US Department of State, ‘Background Note: Romania, June
1997’, available at http://www.dosfan.lib.uic.edu/ERC/bgnotes/eur/romania9701.
html; and US Department of State, ‘Romania Country Report on Human Rights
Practices for 1998’, available at: http://www.state.gove/www/global/human_ rights/
1998_hrp_report/romania. html.
71 Rekosh, ‘Romania’, pp. 135–6.
72 Kathleen E. Smith, ‘Destalinization in the Former Soviet Union’, in Roht-Arriaza
(ed.), Impunity and Human Rights, pp. 113–28; Robert Sharlet, ‘The Russian
Constitutional Court: The First Term’, Platt et al., ‘Compensating Former Political
Prisoners’, Victor Yasmatin, ‘Legislation on Screening and State Security in
Russia’ and ‘Editor’s Introduction: Russia’, in Kritz (ed.), Transitional Justice, vol.
II, pp. 735–61.
73 ‘Accountability for State-sponsored Human Rights Abuses in Eastern Europe and
the Soviet Union’, pp. 257–65.
74 ‘Editor’s Introduction: Lithuania’, in Kritz (ed.), Transitional Justice, vol. II, pp.
763–69. US Department of State, ‘Lithuania Country Report on Human Rights
Practices for 1998’ (26 February 1999), available at http://www.state.gov/global/
human_rights/1998_hrp_report/lithuani.htm.
75 See US Department of State, ‘Ethiopia Country Report on Human Rights Practices
for 1998’ (26 February 1999), available at http://www.state.gov/www/ global/
80 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE

human_rights/1998_hrp_report/ethiopia.htm; ‘Ethiopia’, in Human Rights Watch,

World Report 1999, available at http://www.hrw.org/worldreport99 /africa/
ethiopia.html.
76 US Department of State, ‘Rwanda Country Report on Human Rights Practices for
1998’ (26 February 1999), available at http://www.state.gov/www/global/human
_rights/1998_hrp_report/rwanda.htm; ‘Rwanda’, in Human Rights Watch, World
Report 1999, available at http://www.hrw.org/worldreport99/africa/rwanda. html;
and International Criminal Tribunal for Rwanda, Press and Public Affairs Unit,
‘Introduction to the International Criminal Tribunal for Rwanda (ICTR), available
at http://www.ictr.org/english/factsheets/introduction.htm; the statute of the
tribunal is available at http://www.ictr.org/statute.html. For a thorough account of
the history of the events leading up to, including and subsequent to the genocide,
see Human Rights Watch, Leave None to Tell the Story: Genocide in Rwanda
(March 1999), available at wysiwyg://93/http://www.hrw.org/reports/ 1999/
rwanda/.
77 Paul Lewis, ‘Amnesty in Sierra Leone Opposed by Rights Group’, New York Times
(26 July 1999), p. A7. See also www.specialcourt.org.
78 Sung-Joo Han, ‘The Failure of Democracy in South Korea’, ‘The Experiment in
Democracy’ and ‘Editor’s Introduction: South Korea’, in Kritz (ed.), Transitional
Justice, vol. II, pp. 208–39.
79 Neier, War Crimes, p. 87.
80 US Department of State, ‘Republic of Korea Country Report on Human Rights
Practices for 1998’, available at http://www.state.gov/www/global/human_rights /
1998_hrp_report/southkor.htm.
81 UNDP, Human Development Report 1996, p. 174.
82 Gretchen Casper, Fragile Democracies: The Legacies of Authoritarian Rule
(Pittsburgh, PA: University of Pittsburgh Press, 1995); Belinda A.Aquino, ‘The
Human Rights Debacle in the Philippines’, in Roht-Arriaza (ed.), Impunity and
Human Rights, pp. 231–51; Hayner, ‘Fifteen truth commissions’, pp. 620–1.
83 Casper, Fragile Democracies, pp. 161–7.
84 US Department of State, ‘Philippines Country Report on Human Rights Practices
for 1998’ (26 February 1999), available at http://www.state.gov/www/global/
human_rights/1998_hrp_report/philippi.htm.
85 UNDP, Human Development Report 1996, p. 174 and UNDP, Human
Development Report 1997/98, p. 188.
86 Michael W.Doyle, UN Peacekeeping in Cambodia: UNTAC’s Civil Mandate
(Boulder, CO: Lynne Rienner, 1995); Dennis McNamara, ‘UN Human Rights
Activities in Cambodia: An Evaluation’, in Alice H.Henkin (ed.), Honoring Human
Rights and Keeping the Peace: Lessons from El Salvador, Cambodia, and Haiti
(Washington, DC: Aspen Institute, 1995), pp. 57–82; Michael Vickery and Naomi
Roht-Arriaza, ‘Human Rights in Cambodia’, in Roht-Arriaza (ed.), Impunity and
Human Rights, pp. 243–51; US Department of State, ‘Cambodia Country Report on
Human Rights Practices for 1998’ (26 February 1999), available at http://
www.state.gov/www/global/human_rights/1998_hrp_report/cambodia. htm.
87 ‘Cambodia: Khmer Rouge Officer Gets Life’, New York Times (8 June 1999), p.
A8; ‘Cambodia: TV Trial for Khmer Rouge’, New York Times (26 June 1999), p. A5.
 GLOBAL EXPERIENCES IN TRANSITIONAL JUSTICE 81

88 Seth Mydans, ‘Of Top Khmer Rouge, Only One Awaits Judgment’, New York
Times (14 March 1999), p. 6; Philip Shenon, ‘UN Plans Joint War Crimes Tribunal
for Khmer Rouge’, New York Times (12 August 1999), p. A8.
89 Seth Mydans, ‘20 Years On, Anger Ignites Against Khmer Rouge’, New York Times
(10 January 1999), pp. 1, 6.
90 ‘Resolution: Cambodia and the Khmer Rouge’, Far Eastern Economic Review, 162,
2 (14 January 1999), p. 86; P.S.Suryanaraya, ‘Cambodia Planning a truth
commission’, The Hindu (17 January 1999), p. 17; ‘Tutu Will Help Cambodia’,
Daily Mail and Guardian, (18 January 1999).
91 IISS, The Military Balance (1996–99).
92 James A.Schear and Karl Farris, ‘Policing Cambodia: The Public Security
Dimensions of UN Peace Operations’, in Oakley et al., Policing the New World
Disorder.
93 See Chapter 7 on Sri Lanka generally; for a current overview of the human rights
situation, see US Department of State, ‘Sri Lanka Country Report on Human
Rights Practices for 1998’, (26 February 1999), available at http://www.state.gov/
www/global/human_rights/1998_hrp_report/srilanka.htm.
 3
El Salvador
‘Negotiated revolution’ and the truth commission

Introduction
El Salvador is a fertile case for us to examine because it provides myriad
outcomes: it experienced amnesty, a truth commission, reform of the security
forces and nominal purification. In addition, the factors leading to the transition
seem to be multiple, including a virtual military stalemate leading both sides of
the civil conflict to see the virtues of negotiation, and the active pressure and
facilitation of the USA and the UN. This does not mean, however, that full
accountability and reform could be achieved: an amnesty was pushed through,
limiting accountability, but the reform of the armed forces was rather more
successful, as we shall see.

A brief history
From 1980 to 1991, El Salvador was engaged in a brutal civil war between
government forces and the Farabundo Martí National Liberation Front (FMLN).
Thousands were killed, and massive human rights violations were perpetrated
during this period.1 Those responsible were largely members of the military and
security forces. Although the regime during this period was not technically a
military one, the military exerted extraordinary power and influence over the
political process, and the transition would face many of the same obstacles that
transition from military rule faces.
While underlying social and economic complaints went largely unaddressed,
and prosecution of those responsible for crimes was not pursued, the final peace
accord included an agreement to purge responsible officers, abolished two
repressive security forces, and established a new civilian police, the Policía
Nacional Civil (PNC).2 Perhaps most importantly, however, the agreement
established a commission on the truth to investigate past abuses and make
recommendations. Because this commission, and the Salvadoran model in
general, are often offered up as models for resolution of other disputes, their
successes and failures are worth examining here.3
 EL SALVADOR 83

Negotiating peace: events and accords

In El Salvador, the road to peace was long, and often foundered in the face of
military intransigence and opposition to the imposition of responsibility for
human rights violations. Before 1992, there was a long line of attempted peace
accords, but the process leading to the final peace began in 1990 with an
agreement reached in Costa Rica, which established minimum human rights
standards and envisioned the establishment, achieved six months later, of
ONUSAL (UN Observer Mission in El Salvador), a UN human rights
verification mission. A 1991 accord reached in New York established the
national commission for the consolidation of peace (COPAZ), provided for the
demobilization of the FMLN, and for the future access of FMLN members to the
PNC.4 Finally, agreements reached in the last hours of 1991 in New York made
the 1992 Chapultepec peace accords possible.
In this section, I give a detailed account of the context and history of the peace
negotiations, and the shifting positions of both Salvadoran parties, as well as the
role played by international actors. I do this to illustrate more fully the
compromises that were made by both the FMLN and the government of El
Salvador, as well as the influence of actors like the USA and the UN, and the
shifting international climate.
Late 1989 is thought by many to mark the turning point in the long process
leading to peace in El Salvador, as important domestic, regional and
international events took place.
First, the FMLN launched a massive new initiative in November 1989,
demonstrating that, though it might be unable to defeat the armed forces, the
military conflict had reached an impasse.5 In time, this would convince not just
the Fuerzas Armadas of El Salvador (FAES), but also their key patron, the USA,
that their confidence in eventual defeat of the FMLN was misplaced, and that
negotiation was the only solution. Thus, by February of 1990, the US Senate had
passed a resolution calling for UN and OAS mediation for an immediate
ceasefire, and the US Department of State also called on President Cristiani to
consider a ceasefire.6
Shortly after the FMLN offensive began, on 16 November, there was an attack
at the Universidad Centroamericana (UCA), killing six Jesuit priests, a domestic
worker and her daughter, that was subsequently linked to the armed forces. What
might have been simply another instance of serious human rights abuses turned
out to have international consequences. The US Congress, in particular,
expressed outrage at this crime, not least because it was perpetrated by the
Batallion Atlacatl, of whose members about 1,000 had been trained in the USA.7
Another key event enabling political change was the winding down of the
Cold War. The end of the Cold War signalled ideological and material changes
that profoundly altered the political climate in Central America, among other
places. Waning of Soviet international support for communist regimes and
revolutionary rhetoric meant not only that any communist threat in the
84 EL SALVADOR

region was disappearing, but also that the USA could perceive that it was waning.8
This would mean, in time, not only that Soviet aid to Nicaragua would end, but
that Nicaragua would have free elections replacing the Sandinistas, and that
Sandinista aid to the FMLN would end. Not only would the Soviets begin
championing negotiations, but the US A was increasingly able to see the FMLN
as a party that could be negotiated with, rather than part of an all-encompassing
communist threat. The electoral triumph of Violeta Barrios de Chamorro in
Nicaragua was also part of historic changes in the international and regional
environment. In particular, the loss of Sandinista backing was expected to
weaken the FMLN significantly.9
1989 also brought a shift in the political and ideological landscape. The FMLN
moved from calling for socialist revolution to calling for pluralist democracy
after a great deal of internal debate. As a result, its negotiating demands de-
emphasized socio-economic issues and called for institutional reform. There was
a simultaneous moderation in the government camp. While the new president,
Alfredo Cristiani, was part of the conservative ARENA party, the party itself
was split between hard-liners and those who advocated a negotiated settlement to
the war; Cristiani’s campaign had promised to seek negotiations.10 Some place
particular importance on the perspective of Cristiani, which was perhaps in part
motivated by the belief that peace would bring foreign investment and economic
development.11
Thus, a number of domestic, regional and international factors were
important: military stalemate in the country; regional changes arising from the
US invasion of Panama, the elections in Nicaragua and elections of conservative
governments in other countries in the region; interests of local entrepreneurs in
stability for the sake of growth; a shift in US policy due to the apparent waning of
the communist threat, as well as a recognition that its Salvadoran strategy had
neither defeated the rebels nor democratized the society; and a shift in Soviet
foreign policy. These are thought to be the key factors that enabled negotiations
to begin in earnest; once started, they were strengthened by the participation of a
wide array of international actors.12 All of these events, then, were important
preconditions for the negotiations: I turn now to a discussion of each of the key
peace accords and the negotiating tactics employed by both sides in reaching
them, as well as the intervention of members of the international community.
The Geneva accords, reached on 4 April 1990, dealt with little substance, but
laid the groundwork for further negotiations, and active involvement of the
United Nations and member governments. Setting a precedent that would be
followed throughout the negotiations, military activity escalated during the
negotiations, as each side sought to improve its negotiating position with a
strengthened military position.13
Meanwhile, congressional opinion in the USA became increasingly critical of
the Salvadoran government, and of American support of the government and
armed forces of El Salvador. For the first time, Congress named a delegation to
examine human rights abuses in El Salvador, the Moakley commission, headed
 EL SALVADOR 85

by Representative Joseph Moakley, which investigated the killings at

UCA.14 Congressional outrage at the UCA massacre was also articulated in a
way more likely to directly influence the policy of the Salvadoran government:
on 26 April, the US House of Representatives voted for a 50 per cent reduction
in military aid to El Salvador for fiscal years 1991 and 1992. The conditions for
reinstatement of aid were that the government must engage in talks in good faith
with the FMLN, and prosecute those responsible for the UCA massacre.
Cristiani’s immediate response to this cut was to assert that it would send the
wrong message to the FMLN, and to say that money would simply be diverted
from other government projects to continue the war.15
The Bush administration began to send similar signals to the Salvadoran
government: Secretary of State James Baker said that the UCA case had become
the decisive issue in the history of El Salvador, and White House Chief of Staff
John Sununu told Cristiani that the handling of the UCA case would have a
significant impact on US aid. At this point, some argue, a new US policy was
developing, in conjunction with the recognition that ten years of war and billions
of dollars in US aid had not altered the correlation of forces enough to ensure a
FAES victory.16
This growing US pressure may have accelerated the shifting perspectives of the
FAES, whose rhetoric moved from assertions of the certainty of imminent
victory to recognition of the need to end the war by political means. This did not
mean it greeted FMLN proposals warmly: the FMLN insisted that for peace and
democratization to succeed, the armed forces would have to be reformed, a claim
rejected both by President Cristiani and Colonel Rene Emilio Ponce, who stated
flatly that the military would not be a subject of negotiations.17
While in July 1990, an important agreement was reached in Costa Rica
regarding human rights, the armed forces continued to be a key point of
contention in subsequent rounds. In the San Jose accords, protection of key
human rights such as liberty and bodily integrity, protection against reprisals for
exercise of legitimate political rights, and protection of the right to habeas
corpus, inter alia, were agreed to. The parties also agreed to the creation of a UN
mission to monitor the human rights agreement. However, the future status of the
armed forces was not resolved. The government advocated an amnesty for past
abuses, and that no one lose their positions of power or privilege for past acts.18
However, in this as in the August San Jose round, the FMLN rejected this
position. In the August round, the FMLN demanded that the Fuerzas Armadas as
well as the FMLN symmetrically disappear, giving way to a new, civilian public
security force. And, on the question of impunity, the FMLN argued that there
must be a process of depuración that would also establish the truth. These
demands, as well as the elimination of the Batallion Atlacatl, the national guard
and the treasury police, all notorious human rights violators, were part of an 18-
point FMLN proposal in this round.19
The government adamantly rejected these demands, pointing out that the
existence of the FAES was recognized in the constitution, and arguing that
86 EL SALVADOR

the best method of change was its professionalization, without traumatic ruptures.
It responded with its own 33-point proposal, which included, inter alia, a punto
final (full stop) law to halt human rights prosecutions, and transfer, rather than
elimination, of the treasury police, national guard and the national police to the
supervision of extant ministries, as well as the transfer, rather than elimination,
of the Dirección Nacional de Inteligencia (the National Intelligence Agency
known for abuses) to the authority of the Casa Presidencial (presidential house).
Similarly, rapid reaction battalions were to be transferred rather than eliminated.
Some important concessions, however, were the proposals to disarm the patrols
of the Defensa Civil (civil defense) and paramilitary forces, to end forcible
recruitment, and to open a military university.20 And shortly thereafter,
coinciding with the naming of Colonel Ponce as minister of defence, there were
signs that the armed forces might be retreating slightly, as several high-level
officials thought to be responsible for corruption or human rights abuses, or heads
of notorious institutions like the head of the treasury police, were transferred to
posts abroad.21
US pressure on the Salvadoran government increased when, on 19 October,
the US Senate adopted a military aid package that included the Dodd-Leahy
amendment to regulate it, with the same provisions regarding the El Salvador
war and peace process as the bill passed by the House of Representatives in
June.22 The military expressed fears that the cut in aid would undermine its
advantage over the FMLN. Military actions by both camps subsequently
increased dramatically, but the balance of forces did not alter despite a significant
FMLN offensive in late November. While the USA worried that the offensive
would give the FMLN increased power, the FMLN maintained that its actions
were merely meant to strengthen its hand at the negotiating table. Nonetheless,
on 7 December, Department of State spokeswoman Margaret Tutwiler
announced that the Bush administration planned to speed the delivery of the
fiscal year 1991 aid, as well as disburse the remaining 1990 aid, to help the
FAES replace lost equipment, in particular that lost to the FMLN’s anti-aircraft
missiles.23
The US policy on aid would change further following the FMLN shoot-down
of an American helicopter on 2 January 1991. The FMLN subsequently captured
the two American advisers that had been in the craft, and executed them,
prompting President Bush, on 7 January, to call for the Congress to unfreeze aid
to the Salvadoran government. On 16 January, President Bush announced that
the FMLN had violated the conditions of the appropriations act and that he
would unfreeze aid, but that he would wait 60 days for the completion of local
elections.24
Despite the serious setback to negotiations dealt by the FMLN actions, the
negotiations continued in Mexico in early February. Key differences now existed
between the parties with regard to, inter alia, impunity, constitutional reform and
the negotiation of a ceasefire. With regard to the proposed ad hoc commission to
carry out depuración of military officers, the FMLN argued that the UN should
 EL SALVADOR 87

generate a list of candidates for membership, with either party able to veto, while
the government wanted Cristiani to choose the members with FAES
participation. With regard to accountability for rights abuses, the FMLN argued
that the emphasis should be placed first on FAES actions, and later on FMLN
violations, while the government demanded parallel action. The issue of
constitutional reform was more complex, having to do with the timing and
structure of reforms to the constitution, which were somewhat hamstrung by the
constitution’s article 248. This article stipulated rather forbidding regulations for
constitutional reform, which also necessitated swift action.25
The FMLN perceived the government’s stance as increasingly intransigent, as
a result of several advantages: increased US hegemony after the Gulf War,
logistical problems faced by the FMLN with the political changes in Nicaragua,
the expectation that ARENA would be the big winner in upcoming local
elections, and the anticipation of a new military campaign by the government.
This last factor would be aided significantly by the recent receipt of half of the US
aid, the expected unfreezing of the other half, and a recent delivery by the USA
to the Fuerza Aerea of new combat planes and helicopters. And indeed, on 14
March, President Bush announced that, as the 60-day grace period had passed
and the FMLN had failed to negotiate in good faith, the other half of the aid
would be unfrozen.26
Serious disagreements continued with regard to the nature of any ceasefire as
well. While the FMLN envisioned it as an armed peace, with both sides ceasing
hostilities, but keeping their arms and territorial positions while awaiting
definitive accords, the government wanted the FMLN to concentrate its forces in
special zones and disarm before purification or restructuring of the armed forces
or constitutional reform.27 Despite these disputes, an accord was eventually
reached.
The Mexico accords, signed on 27 April 1991, contained significant advances
on several critical issues. First, with regard to the armed forces, the parties
agreed that there would be constitutional reforms aimed at: clarifying the
subordination of the FAES to civilian power, creating the Policía Nacional Civil
(PNC), which would expressly be independent of the FAES, creating an
intelligence unit independent of the FAES, and redefining military justice to
narrow its jurisdiction to strictly military matters. Agreement was also reached
on constitutional reforms to reorganize the supreme court, with new rules for
appointing judges, restructuring the Consejo Nacional de la Judicatura (CNJ) to
ensure its independence from state organs or political parties, and the creation of
the Procurador Nacional para la Defensa de los Derechos Humanos (the human
rights ombudsman). In the arena of electoral reform, the parties agreed to the
creation of the Tribunal Supremo Electoral (TSE), to replace the old electoral
council; the TSE was to have greater administrative authority. Finally, the parties
agreed to the creation of the Comisión de la Verdad (truth commission), to be
made up of three persons chosen by the UN secretary-general, with input from
the parties, to hear evidence of grave acts since 1980.28
88 EL SALVADOR

In the Mexico round, the parties also reached agreements regarding the
development of constitutional reform and the functioning of the truth
commission. The day after the Mexico accords were signed, President Cristiani
submitted a constitutional reform package to implement the agreements. Thus,
the Mexico accords would eventually be expressed in, inter alia, the reform of
article 212 of the Salvadoran constitution articulating the sole role of the FAES as
defence of territory and sovereignty.29
On 20 May 1991, in Resolution 693 the UN Security Council finally
established the mandate for the UN observer mission (ONUSAL) that had been
agreed in the San Jose accords. While the San Jose accords specified that the
mission not be established before a ceasefire, many national sectors, including
the government and the FMLN, requested that it be put in place before a
ceasefire. The mission would arrive on 26 July.30
As negotiations continued, the issue of US military aid continued to be salient.
On 26 May, via Radio Venceremos, the FMLN announced a new condition for a
ceasefire: the complete suspension of US aid to the FAES. A group of American
congresspersons, attempting to prevent Bush’s plans to unfreeze aid, sent a letter
to the US president arguing that such an act would take the pressure off the
government to make concessions in negotiations. In June, Cristiani visited the
USA, in part to lobby for the unfreezing of aid; Bush subsequently announced
the release of million, or about half of the frozen aid.31
The issue of ceasefire timing was bound up not only with the question of US
military aid, but also with the issue of future incorporation of FMLN members into
Salvadoran society and politics. The government argued that, so long as the
FMLN maintained an army it could not become a political party; the FMLN’s
political committee, meanwhile, entered into private talks in August with heads
of political parties and heads of business, hoping to clear the way for the
emergence of the FMLN as a political party. The key problem was that, while the
government simply hoped to turn the FMLN into an unarmed political party, the
FMLN wanted concessions like purification and, as the UN’s Alvaro de Soto
noted, guarantees would be needed before it would be reasonable to expect the
rebels to put down their arms. Furthermore, the FMLN continued to demand
incorporation into the military structure, a demand adamantly rejected by the
government.32
Thus, as the September date for negotiations in New York approached, a
number of thorny issues remained: purification, the conditions for a ceasefire, as
well as the UCA case and the question of amnesty. Cristiani, on a tour of the
Southern Cone, had allegedly said that he would provide amnesty to military
members implicated in the UCA case; under heavy political fire he denied this
charge, but said that he could offer amnesty as part of the peace process.33
When the New York negotiations opened, the parties remained deadlocked
over the incorporation of the FMLN into the military; however, on 19 September,
the FMLN dropped this demand and instead asked that its members have the
chance to join the new PNC, with a set quota to ensure its position.34 It also
 EL SALVADOR 89

asked that FMLN members of the PNC be the nucleus of forces in areas
traditionally under the FMLN’s control, and that the new director and officials of
the PNC be chosen by negotiation between the two parties. The government
rejected this proposal the next day, arguing that in order to maintain ‘verticality’
Cristiani alone must have the power to appoint such officials.
According to one account, it was the intervention of the ‘group of friends’ of
the secretary-general the following evening that forced the FMLN to recognize
that no government worried about institutionality could accept such stipulations
about the appointment of high officials. On 22 September, the secretary-general
proposed, inter alia, that ex-FMLN members could join the PNC in their
individual capacity, a proposal that the FMLN accepted but the government
rejected, the latter continuing to insist on the surrender of the FMLN in exchange
for a vague promise of future participation in the political process and an
amnesty for the FMLN.
On 24 September, the government finally agreed to give the FAES a limited
role in its own purification, and to grant the Comisión Nacional para la
Consolidación de la Paz (COPAZ) a fundamental role in selecting the new heads
of the police. Finally, on 25 September, the New York accords were signed, with
the government having agreed to most of the secretary-general’s proposals of 22
September, pertaining to purification, reduction, doctrine and education of the
FAES, as well as to the creation of COPAZ and the ad hoc commission to supervise
the purification of the military.
Several key features of the New York accords need to be elaborated. First,
they created COPAZ, which was to supervise compliance with the political
accords. Membership of COPAZ was to include equal numbers (two) of
representatives from the GOES and the FMLN, as well as one from the FAES
and one from each of the parties of coalitions in the Assembly. According to a
separate set of confidential understandings, COPAZ was to have a key role in
restructuring the doctrine and educational system of the FAES and in the
configuration of the new PNC.35
The accords also stipulated that the parties agreed to the purification of the
FAES on the basis of recommendations by the ad hoc commission, and that
military participation would be limited to two members, who would have limited
access to testimony. The parties also agreed to reach criteria for the reduction of
the armed forces, and to reach an accord on redefining the doctrine of the FAES.
The doctrine was to include the recognition that the FAES was subordinate to
constitutional authorities, that it was to respect human rights, that its duty was to
the nation, and that its role was to protect sovereignty. The parties agreed to give
full force to the April Mexico agreement to reform the educational system of the
FAES to emphasize democratic values, human dignity and the subordination of
military bodies to constitutional authority.36 Finally, and of key importance to the
FMLN, there was agreement on land transfer to campesinos, a government
promise to extend agrarian reform, and other measures to alleviate social and
economic problems.37
90 EL SALVADOR

In subsequent negotiations in Mexico, the participation of the FMLN in the

PNC, and the reduction of the FA, remained in dispute. Vice-minister of public
security, Colonel Inocente O.Montano, maintained that given the academic
levels required for entrance into the PNC, former FMLN members would be
barred from entry, adding that other aspects of the New York accords were ‘anti-
constitutional’. And, while the FMLN wanted to propose guidelines for the
reduction of the armed forces, Colonel Vargas of the government delegation
declared that demand unacceptable.38 The round concluded without the
resolution of either of these key issues, which carried over to the next Mexico
round.
In this round, the two issues remained unresolved. While Joaquim Villalobos
of the FMLN argued that participation by ex-rebels was a necessary condition
for peace, the government insisted that there would be no chairs reserved in the
PNC for ex-FMLN members. Similarly, while the government insisted that
reduction of the FAES should come as a natural result of the signing of a
definitive ceasefire, the FMLN proposed the establishment of a calendar of
reduction as part of the accords, to be linked to the reinsertion of the rebels into
civilian life.39
With the close of the year and the imminent departure of Secretary-General
Perez de Cuellar, pressure mounted for the completion of accords in El Salvador.
Shortly before midnight on New Year’s Eve in New York, the parties agreed to
resume negotiations in the new year and, if positive results weren’t seen by 10
January, they would accept the resolution of pending issues by the secretary-
general. This provision provided important leverage to force the parties into
agreement on the two main pending issues. In January, the parties agreed to
resolve the remaining issues in order to sign the peace accord in Mexico by 16
January.40 The New York Acts, I and II, thus did not resolve any substantive
issues, but cleared the way for the final accord to be signed at the Castle of
Chapultepec in Mexico.
Even at the Chapultepec meeting, the parties remained divided over the
reduction of the FAES and rapid reaction battalions. The FAES wanted a
reduction of 50.2 per cent over two years (to 31,000 from 63,175), but the FMLN
saw this proposal as a trick. However, because of the provision for the UN
secretary-general to resolve pending matters left unresolved after 10 January, the
issues were finally resolved.41 Under a plan proposed by the GOES and accepted
by the secretary-general, FAES personnel were to be reduced by 50 per cent, and
installations converted or eliminated. The Chapultepec accord further called for
the dissolution of the rapid reaction battalions, the paramilitary entity the
Defensa Civil, the treasury police and the national guard, and also called for the
regulation of the reserve forces of the FAES and private security forces. The
accord provided for the replacement of the notorious Dirección Nacional de
Inteligencia with the Organismo de Inteligencia de Estado (state intelligence
organ), which would be directly under the control of the executive, supervised by
the legislature and not linked to military power. The accord also provided for the
 EL SALVADOR 91

recommendation of purification of members of the armed forces involved in

grave human rights abuses by the ad hoc commission, to be made up of three
civilians chosen by the secretary-general in consultation with the parties. Finally,
the accord reiterated the new doctrine of the FAES, subordinate to civilian
power, and outlined a new educational system for the FAES based on doctrinal
changes.42
Agreement was also finally reached with regard to the PNC. Chapter II of the
Chapultepec accords provides for the creation of the new civilian police,
stipulating that it is to operate under democratic principles, be a professional
body, and be independent of the FAES or any political party. The accords further
provide that, in the exercise of their duties, PNC members are to respect human
dignity and human rights, and not to employ or tolerate the use of torture. The
accords also provide for the creation of the Academia Nacional de Seguridad
Pública (ANSP), whose director would be named by the president, and with a
civilian academic council. Perhaps most important, the parties agreed that ex-
combatants of the FMLN could be incorporated into the PNC provided they
complied with the criteria and procedures for entry; similarly ex-members of the
national police could join the PNC following evaluation and provided they met
criteria for joining the PNC. While no quotas were set in the public agreements,
it is widely known that membership of FMLN ex-combatants and ex-national
police members (properly screened) was set at 20 per cent each.43
The accords also reaffirmed and amplified previous commitments regarding
the creation of a Procurador Nacional para la Defensa de Derechos Humanos (a
human rights ombuds office), judicial and electoral reform, as well as land
transfer. The accords provided for the reinsertion of ex-combatants of the FMLN
into civilian and political life, including the right of the FMLN to participate as a
political party, with mediums of communication assured.44 Last but not least, the
accords provided for the cessation of conflict, the separation of forces and the
calendarization of the disarming of the FMLN and reduction of the FAES under
ONUSAL observation.45 The calendarization was structured so as to provide
reassurance to both sides regarding cheating: key actions were staggered and
thus linked. Cheating would be rapidly detectable in this way. For example, the
national guard and treasury police were to be eliminated before the
demobilization of the first 20 per cent of the FMLN, assuaging FMLN fears.46

Developments after the peace accords

The Salvadoran peace accords created two bodies to confront the legacy of
human rights violations and abuse of power by the government, armed forces and
FMLN: the UN-sponsored truth commission, and the internal ad hoc commission
to review the human rights records of military officers and recommend removal
of officers where necessary. I discuss the actions of these commissions and the
response of the government and military towards the consequent demands for
accountability.
92 EL SALVADOR

The ad hoc commission

While the ad hoc commission was expected to issue a relatively mild report, its
(non-public) report called for the removal of nearly all of the military high
command, and the removal or transfer of many more. Those whose removal was
recommended included Minister of Defence Rene Emilio Ponce and Vice-
Minister of Defence Juan Orlando Zepeda, prompting accusations by the military
that the report was part of a leftist plot and a refusal to comply with the
recommendations.47 President Alfredo Cristiani, attempting to avoid instability,
delayed implementation of the recommendations, retaining eight officers whose
removal had been recommended, and transferring seven more to posts abroad.48
And, in March 1992, when the treasury police and the national guard were to
have been abolished, the government secured passage of legislation that
prevented this. Further, counter to the provisions of the accord, some 1,000
members of these forces were transferred to the PNC. The implementation of the
recommendations of the ad hoc commission were repeatedly delayed but, by the
end of 1993, spurred by pressure from the USA, action was taken on the
recommendations for purge or removal.49
Just a week after the accords were signed, the law of national reconciliation
provided for an amnesty covering most political crimes, with the notable
exception of cases decided by jury trial and those in which the truth commission
might recommend prosecution. However, the law also provided that, six months
after the commission issued its report, the assembly could issue another amnesty.50

The truth commission

The truth commission itself was just that: its mandate was to uncover and
publicize the truth about atrocities committed during the civil war. Although the
commission had no power to force prosecutions or purges, it was hoped that the
uncovering of the truth would encourage the acceptance of responsibility and
reconciliation, and the commission was empowered to make recommendations.51
The truth commission began work in July 1992, soliciting testimony from
citizens all over the country. Its work was undermined, however, by a right-wing
campaign depicting it as ‘designed to destroy the armed forces’, and by partial
compliance by the government with requests for information. Ponce and
Minister of the Presidency Oscar Alfredo Santamaria began pressuring the
commission to leave the names of perpetrators out of the report, to propose a
‘full stop’ law that would prevent or limit prosecutions of state agents, and to
delay release of the report.52
The members of the commission resisted these pressures, and the report was
released as scheduled on 15 March 1993. In justifying its decision to name
names in the report, the commission emphasized that in the peace agreements,
the parties expressed their desires that the whole truth be known, and that this
could not be achieved without the naming of perpetrators of crimes.53
 EL SALVADOR 93

Even before the report’s release, it had an impact: it became known that Defence
Minister Ponce would be named in the report, and he made a pro forma offer of
resignation, which was declined by the president. One day before the release of
the report, President Cristiani requested a blanket amnesty, asking for an
‘immediate, general and total amnesty that will end the temptation to seek
revenge’.54
The wide-ranging report itself was built on the evidence of some 2,000
witnesses, with cases ascribed to both government and FMLN forces. The vast
majority were ascribed to government forces. The report discussed the work of
death squads run by the government, as well as some renowned cases of murder
and kidnapping by the FMLN. The report contained a number of important and
wide-ranging recommendations, of which I discuss only six here. First, it
recommended that those named in the report be removed from positions of
authority, and not allowed to hold public office for ten years. Second, it proposed
that all members of the supreme court should resign immediately. Third, it stated
that an investigation of private armed groups should be made to prevent the rise
of new death squads. Fourth, it argued that the peace accord provisions dealing
with reform of the armed forces and judiciary ought to be implemented. Fifth, it
recommended that judges be named by an independent council on the judiciary.
Sixth, it stated that a special fund should be created to compensate victims.55
It is noteworthy that the commission did not recommend prosecutions of those
responsible for atrocities. However, it did not consider prosecutions a viable
option, given the ‘glaring deficiencies of the judicial system’.56 The commission
did not decide that pardons were the best thing prudentially or ethically: it simply
lamented the impossibility of fair trials. It did advocate what it termed a more
universal pardon, not a formal sort, but what it referred to as a collective
determination that abuses would not recur. This ought, in an ideal situation, to
include punishment of the guilty. The truth commission, therefore, saw the road
to reconciliation not as built on forgiving and forgetting, but on the revelation of
the truth, (impracticable) punishment and reparations. While forgiveness was
thought to be indispensable, so was accountability.57
The executive, judicial and military responses to the report were swift and
negative. President Cristiani called for a full amnesty; General Ponce derided the
report as unjust; and members of the supreme court asserted that the report
lacked objectivity and refused to resign. Opponents of the report described it as
an attack by outsiders on Salvadoran sovereignty. The military released a
statement on the report that was reprinted in newspapers arguing that the
commission had exceeded the mandate granted to it under the peace accords,
asserting that the report was unjust, unethical, illegal and biased.58
Just five days after the release of the report, led by the ruling ARENA party,
the assembly passed the law of general amnesty for the consolidation of peace,
containing ‘broad, absolute and unconditional amnesty’ for crimes of a political
nature committed before 1 January 1992. Following the passage of the amnesty,
a number of individuals in jail for human rights violations were released.59
94 EL SALVADOR

The amnesty law was challenged with the aid of the Instituto de Derechos
Humanos (institute of human rights) of the UCA, but the Sala de lo
Constitucional (constitutional chamber) of the Corte Suprema de Justicia
(supreme court of justice), which hears challenges to the constitutionality of
laws, essentially refused to reach the merits of the case on the grounds that it
raised a non-justiciable political question. According to the logic of the decision,
the Sala is not empowered to hear purely political questions, which the case
raises because it deals with the question of amnesty or ‘grace’. The court argued
that this was a power attributable to sovereignty, and thus resided in the people,
and formed part of a social and political struggle that the court could not enter. It
finally observed that the legislature assembly, under article 131 of the
constitution, possesses the exclusive exercise of this political power, hence the
refusal of the court to reach the merits of the case.60

El Salvador today: ‘UN success story’

Despite the grim outlook after the release of the truth commission report, El
Salvador has become something of an unexpected UN success story. Despite
what many have seen as the sacrifice of justice to peace, and the failure of the
government to acknowledge culpability, many of the worst perpetrators have
been purged, former FMLN members are now members of the legislature, and
new supreme court justices have taken office. In March 1995, citing the
reduction in complaints of human rights violations, the UN Human Rights
Commission removed El Salvador from its list of countries subject to permanent
monitoring. In January 1996, COPAZ officially closed, affirming that the task of
overseeing the transition had diminished. El Salvador has ratified four of the six
international human rights treaties recommended by the truth commission.61
The success story is far from complete: accusations of fraud were raised in the
spring 1994 elections.62 Perhaps more ominously, a spate of assassinations in late
1993 widened the gulf between ARENA and the FMLN, and the pattern
suggested the resurgence of death squads. While political killings appeared to
wane, extrajudicial killings without political motives occurred. Nonetheless,
members of the PNC have been implicated in these killings. The PNC has been a
frequent subject of human rights complaints, approximately 1,800 in 1995,
largely dealing with excessive use of force against demonstrations.63
Furthermore, a former MINUSAL (UN Mission in El Salvador, the smaller
successor to the ONUSAL observer mission) director claimed that the PNC has
incorporated large numbers of former members of the security forces, and that
many of these former members have been given administrative posts, contrary to
the peace accords.64 In May 1993, an illegal arms dump linked to the FMLN was
found.65 An issue that the truth commission report and the peace accords
generally left untouched was that of children abducted by government forces
during the war, some of whom were killed, some of whom were adopted.66
 EL SALVADOR 95

It is yet too early to assess the long-term effects of the peace accords, the truth
commission investigations and the failure to prosecute perpetrators. Even if
peace has been achieved, anecdotal evidence attests to the degree to which
ordinary citizens are still haunted by the war. And, even if stability persists, such
citizens may have lost faith in the accords and in democratic reforms in light of
Cristiani’s flouting of the truth commission’s recommendations.67 At the very
least, however, the commission’s report probably served as an important first
step for, as UN Secretary-General Boutros-Ghali stated, ‘in order to put behind
them the trauma of the war, the Salvadorans have to go through the catharsis of
facing the truth… There can be no reconciliation without the public knowledge of
the truth.’68
Further signs of the greater entrenchment of democracy and peace and the
civilianization of the armed forces are the 1997 election results and the reactions
to them. On 16 March, in mayoral and legislative elections, the FMLN outpolled
the ruling party, ARENA. Notable were not only the great strides made by the
FMLN, but the 30 per cent drop in votes for ARENA since 1994.69 Equally
notable is the acceptance of the results by the FAES and ARENA.

Trade-offs of transition
As discussed earlier, an examination of the literature on civil-military relations
and intervention of militaries in politics may enable one to hypothesize about the
types of concerns that must be assuaged in order to coax militaries ‘back to the
barracks’. These are, of course, the treatment of members charged with serious
human rights violations, institutional integrity and autonomy, and budgetary
levels. The first has already been discussed in some detail; the other two require
further discussion.
First, however, a caveat. El Salvador does not, technically, provide us with a
case in which a new civilian regime coaxed the military back to the barracks;
rule in El Salvador has been formally civilian since 1982, and change was
instituted by an extant civilian regime. However, many of the issues are
analogous because of El Salvador’s history of military-led coups, and the high
degree of influence held by the military and security forces in the civilian
government, which I discuss further below.70

Accountability for rights abuses

El Salvador had something of a mixed record with regard to accountability for
past human rights violations. Prosecutions were not directly provided for in the
accords, and blanket amnesties ultimately protected those responsible for past
violations. However, the creation of the Truth Commission was not a bar to
potential prosecutions, though the commission itself suggested they would not be
ideal under the circumstances. Many were removed or transferred based upon the
recommendations of the ad hoc commission, and the truth commission
96 EL SALVADOR

recommended a temporary bar on government service by those named in its

report.

Budgetary concerns
Of course, the treatment of prior human rights violations was just one issue of
relevance to the Salvadoran military’s corporate interests. Also of concern was
its measure of the budget. In light of its traditional autonomy and influence over
politics, there was no tradition of subjecting the defence budget to public
scrutiny, making the task of bringing spending under control particularly
difficult.71 In 1993, the military’s budget was 1.7 per cent of the country’s GDP,
well below the 3.7 per cent level of 1989, but still well above prewar levels. By
1995, the budget sank still further, to just 1.2 per cent of GDP.72 And, what some
saw as artificially high military spending after the end of the war may have been
justifiable as part of the cost of demobilization. Nonetheless, the budget
remained surprisingly high given the drastic reduction of forces, the absence of
an external or internal enemy, and the plummeting of US military aid.73

Institutional reform
Finally, the concerns for institutional integrity, or fear of institutional reform, are
in part reflected in concerns for the fate of members accused of human rights
violations. Here, the record is clearly mixed, as amnesties were passed, but the
truth commission was able to name particular perpetrators. More generally, the
military’s role in public security was curtailed by the peace accords. Under the
terms of the accord, the PNC contained some members of the old military, but
contained an equal percentage of former FMLN members. Through various
ruses, the old security forces were able to place more of their members in the new
forces than permitted by the accords.74 Further, the failure to fully dissolve
repressive security forces enabled the military to retain autonomy despite
institutional change. And, despite a significant increase in civilian oversight, some
commentators have argued that not enough oversight was provided for in the
accords.75 On the other hand, in addition to the elimination of certain repressive
security forces, the accords provided for a drastic cut in the membership of the
armed forces, a reduction by half, which has been achieved.76
The institutional changes in the public security forces are worth discussing in
more detail, as they were some of the most highly contested aspects of the peace
accords, and appear to constitute the biggest sacrifices by the government. In
spite of problems of cheating discussed above, these changes, it is to be hoped, will
help form the foundation for lasting change.77
 EL SALVADOR 97

Police reform
A key sacrifice was the civilianization of the police force. While previously the
line between the police and the military had been somewhat blurred,
the constitutional and doctrinal reforms have attempted to de-link the two forces.
First, the reform of the constitution’s article 212 emphasizes the new role of the
armed forces: to defend the sovereignty of the nation. This is a significant shift
from prior perspectives on security, fostered by the so-called doctrine of national
security as well as the fact of civil war, that enemies were as likely to come from
within as without, and the military’s role was to stop internal subversion as well
as repel external invasion.
Further, the new doctrine of the PNC emphasized the importance of
democratic principles and respect for human rights: the institutional doctrine
states that the PNC is subordinated to democratic principles, setting aside
political, ideological or social considerations;78 the Ley Orgánica expressly
prohibits the infliction or toleration of human rights abuses, and bars the use of
superior orders as an excuse.
The changes to the police were not only in norms and doctrines; important
institutional changes were also made. The Ley Orgánica establishes an inspector-
general of the police, under the vice-minister of public security, whose job it is to
watch and control police officers’ behaviour with respect to human rights, and to
make reports every six months to the Procurador para la Defensa de Derechos
Humanos on the matter. It also dictates the organization within the PNC of a
consulting office made up of professionals specializing in, inter alia, security,
constitutional rights, human rights and politics. Furthermore, the director-general
of the PNC is to be named by the president every three years, and the legislature
can recommend that he or she be removed for grave violations of human rights.79
Naturally, such formal safeguards are necessary, but not sufficient, to effect a
change in police behaviour, hence the new Academia Nacional de Seguridad
Pública (ANSP), replacing the academy of the old national police. It was through
this academy that the ex-FMLN combatants and ex-national police members
would pass in order to become members of the new PNC; in this politicized
situation training would be particularly important.80 The curriculum of the ANSP
emphasizes respect for human rights and citizens in general, and has been aided
significantly by international support and participation: many of the instructors
are from other countries, and programmes like the US Department of Justice
International Criminal Investigative Training Program (ICITAP) as well as aid
from the EU have provided important resources.81 Finally, reforms articulated in
the peace accords have already been discussed: the inclusion of ex-FMLN
members in the PNC and the elimination of bodies like the treasury policy,
national guard and the DNI constitute important sacrifices that should not be
underestimated.
98 EL SALVADOR

Reform of the armed forces

In order to appreciate the magnitude of reforms made to the Salvadoran armed
forces, we must first recall the extent and depth of the military’s influence over
Salvadoran society, as well as the nature of military institutions and beliefs.
The FAES’s adherence to the doctrine of national security’ effectively eliminated
the common distinction between internal public security problems and external
military threats. As many scholars of Latin American militaries have noted,
many nations in both Central and South America faced relatively few external
military threats in the twentieth century, but had to cope with significant problems
with internal order. Thus, the role of the military in such nations was frequently
political, and oriented towards internal rather than external security. Scholars
disagree about the exact source and effect of the doctrine, but concur that
militaries in the region played central roles in state politics, whether as direct or
indirect rulers.82
Nations embraced this doctrine in response to internal instability: in the face
of economic crises, internal rebellions and civil wars, militaries were seen as the
only source of stability, and the mystique of the military as primary protector of
the national project became embedded in state politics. As a result, military
leaders undermined democracy and perpetrated severe human rights abuses
because they often failed to distinguish between legitimate threats to security,
such as terrorism and guerrillas, and legitimate opposition movements made up
of students, unions or opposition political parties.83 The traditional concept of a
professional military; one disengaged from politics and respectful of civilian rule,
did not apply; the ‘new professionalism’, in which militaries see their
professional role as that of protecting against internal enemies, allowed these
armies to intervene in politics. The doctrine was arguably reinforced by Cold
War pressures, with US concerns about the spread of communism affecting
military aid priorities.84 The doctrine and the role of US pressure and aid were
discussed in more detail in Chapter 2.
In El Salvador, the doctrine was particularly salient, especially as the volume
of US aid increased. By the 1970s, the Salvadoran armed forces held a strong
belief in the need to protect western values, a vision of the world as divided into
two irreconcilable blocs, a definition of democracy in terms of internal security
and anticommunism, a valorization of security defined as the status quo, and a
view of the military as the only guarantee of security. The doctrine had a
significant impact on the Salvadoran concept of security, as did the East/West
confrontation. Thus, in El Salvador, the threat to internal security, the FMLN,
was part of a larger geopolitical crisis.85
These beliefs were given form through direct and indirect intervention in
politics by the Salvadoran military. Even before the coup in October 1979, military
officers occupied important cabinet and bureaucratic posts, including many
unrelated to defence or security matters: for example, in 1977–79, the head of the
 EL SALVADOR 99

ministry of labour and the head of ANTEL, the telephone company, to name just
two, were military men.86
Even after the 1982 elections and the return to at least nominally civilian rule,
the Salvadoran military’s tendency towards intervention and non-democratic
behaviour was buttressed by a belief in the doctrine of national security and
increased US military aid and presence in the form of military advisers. These
tendencies were reinforced by the hierarchical structure of the military and
the tanda system, under which military officers of the same generation are
promoted as a bloc, taught blind loyalty to one another and the belief that the
dominant tanda represents the military and the nation. The dominance of the so-
called tandona, the largest group of graduating officers from the Escuela Militar
(Military School), the class of 1966, increased the tendency to hierarchy and non-
democratic structure within the military.87 The 47-officer tandona came to
dominate the military, including not just Defence Minister Ponce but 12 of the 15
most important military posts. It should perhaps come as no surprise that nearly
all members of the tandona could also be found on the ad hoc commission’s list
of officers to be removed or given early retirement.88
Given the traditional role of dominance of the military in Salvadoran society,
it becomes more apparent why reduction and reform of the military were both
difficult and significant. Reforms encompassed not just the military proper, but
the array of public security forces functionally, if not always formally, within its
ambit. Further, doctrinal and constitutional reform explicitly excluded the
participation by members of the armed forces, with specified objections, in
internal security matters. This marks a drastic departure from previous doctrine,
which gave the FAES a broad mandate in the rather vague domain of public
security.89 Thus, if one wishes to tally the victories and defeats meted out to the
FAES during the peace negotiations and subsequent political wrangling, they
might be arrayed as follows.
Losses for the armed forces included the radical cut in size and budget, and the
elimination of rapid reaction battalions, the treasury police, the Defensa Civil,
the DNI and various paramilitary forces. They also included doctrinal shifts
limiting the role of the armed forces to the defence of territorial integrity and the
creation of an academic council comprised of civilians as well as military
members for the Escuela Militar, and the civilianization of the police force and
the inclusion of ex-FMLN members within it. Finally, they included the naming
of names in the truth commission report and the possibility of lustration by the ad
hoc commission.
However, many of these formal losses were mitigated by real-world politics,
both embodied in the accords as well as represented by concessions by the
Cristiani government after the accords. These included, within the accords, the
lack of adjudicatory power possessed by the truth commission, and the resistance
to the FMLN’s demands for participation in the armed forces and for a wide
purge of those responsible for human rights violations. After the accords, the
armed forces and security forces regained yet more ground with the amnesty
100 EL SALVADOR

law, the failure of depuración, and the effective smuggling of members of

banned security forces into the new PNC and other new civilianized institutions.
Nonetheless, the structural and doctrinal changes should not be ignored, and
have been reinforced through educational reform. A portion of all courses given
in the Comando de Doctrina y Educación Militar (military doctrine and
education command) is devoted to the theme of human rights and their place in
wartime; at all levels, from basic training through the course required for
advancement from the rank of sergeant to sergeant-major, courses have
a significant number of hours devoted to the laws of war, international
humanitarian law and the role of the FAES under the constitution.90

The military and the transition

Following the theories discussed in Chapter 2, to ensure that militaries return to
and stay in the barracks, several sets of factors are relevant: international factors,
social/civilian factors, and corporate interest factors. For the purposes of this
analysis, the factor of interest is the military’s corporate interests, and the way
that transitional regimes do and do not cater for these interests. The corporate
interest is manifested in concern about three issues in particular: institutional
reform, budgetary allocations and the treatment of members in human rights
proceedings. In the case of El Salvador, the record seems to be mixed.
Institutional reform was pursued extensively: the peace accords promised to
purge officers responsible for grave human rights violations and two security
forces were to be abolished. The truth commission recommended that those
named in its report be barred from service for ten years. Furthermore, the new
security force, the PNC, incorporates former enemies of the military, ex-FMLN
members. Nonetheless, last-minute actions and blatant violations of the accords
have meant that the repressive old security forces remained intact, and that the
new PNC retained members from these forces. When the defence minister
offered to resign, the offer was declined. In essence, though the peace accords
themselves had the potential to significantly impinge on military autonomy, in
practice their effects were ameliorated.
A similarly mixed record can be seen in the treatment of human rights
violations, which posed the potentially most direct challenge to the military’s
corporate interest. The peace accords do not provide for prosecutions: both the ad
hoc and truth commissions were empowered to report information and make
recommendations, but little more. The creation of these bodies did not, however,
preclude the possibility of prosecutions. In some ways, however, the reports of
each commission can be seen as stronger than those envisioned by the accords (or
by the military). The amnesties passed subsequent to each report negated some
of the possible effects of these wide-ranging reports, meaning that the threat to
the military’s interest in preventing retribution against its members was more or
less removed. Finally, the relatively high level of spending on the military may
indicate a concession to the military, though the level has clearly declined, and
 EL SALVADOR 101

some of those allocations may be justified as part of the costs of transitional

demobilization.
Overall, the set of concerns I have articulated seem to match the concerns in
play in the Salvadoran case. While the peace accords impinged to a fair degree
on the corporate interests of the military, implementation by the transitional
regime has softened the effects on the military.

Discussion: key elements of political change

All three of my hypothesized factors played some role in the transition in El
Salvador, frequently in interaction with each other. Similarly, the trade-offs one
expects from the literature on civil-military relations occurred, leading to partial
measures of accountability and reform. I discuss each in turn, and draw out a few
preliminary lessons from the Salvadoran experience.

Duration of conflict
The conflict in El Salvador, having gone on a decade and costing 75,000 lives,
had reached a hurting stalemate. It had finally become clear that neither side
could win. It was this realization by key actors in the Salvadoran military, in
particular, which meant that a changed international context and pressure could
play catalytic roles.

International factors
The USA played a direct role in the transition through its withholding of aid and
application of pressure on the Salvadoran government to address human rights
abuses and negotiate in good faith. The USA and the so-called group of friends of
the secretary-general provided important pressure on both parties to continue
with the negotiations. International actors also act as guarantors of agreements:
the ONUSAL mission itself is an example of such a guarantee; also the USA
served as a guarantor of the agreements, in particular reassuring the FMLN that
it would keep its former client in line.
A key way that international actors may move negotiations forward is not
through pressure, but rather mediation. One negotiator in El Salvador has
emphasized this is a key contribution of the UN: the proposals of each side were
generally unacceptable to the other, but the UN was able to give form to middle
or third proposals.

Balance of forces/civil-military issues

In El Salvador, the balance of forces issue was a particularly salient one, as the
FMLN, by most accounts, while unable to defeat the FAES, could also not be
defeated by it. Thus, the FMLN had important leverage in the negotiations, as
102 EL SALVADOR

well as significant sacrifices to make. As one government negotiator put it, the
thrust of the negotiations was certainly to deconcentrate power held by the
military and remove it from the political sphere, but also, and equally
importantly, to convince the guerrillas to give up their arms and move them into
the political sphere.91

Trade-offs
As we have seen, political pressures and rapid passage of an amnesty law meant
that accountability could not be pursued in the form of prosecution, but only in
the lesser forms of the naming of names through the truth commission and the
partial purges resulting from the recommendations of the ad hoc commission.
Significant reforms to the security forces also took place, though budgets
remained artificially high.

Lessons
El Salvador provides an illuminating case on several fronts. First, it indicates the
importance of two factors (and the supporting role played by a third): without the
hurting stalemate that came from the forces being relatively well matched (and
the exhaustion produced by a long war), the parties would not have been so
prepared to negotiate; without the pressure applied by the USA at a key juncture
and the facilitative role played by the USA, the peace might never have been
achieved or maintained. Second, it shows us that countries will frequently find
themselves not at one extreme or the other of the accountability spectrum, but
rather achieve some airing of the truth and purges without judicial punishment.
Finally, it indicates the other goods that might be attained in the process of
transition: while full accountability may well be impossible, reforms might be
achieved that will make future abuses much more unlikely.

Notes

1 See generally Johnstone, Rights and Reconciliation: UN Strategies in El Salvador,

Thomas Buergenthal, ‘The United Nations truth commission for El Salvador’,
Vanderbilt Journal of Transnational Law, 27, 3 (October 1994), pp. 497–544;
Popkin and Roht-Arriaza, ‘Truth as Justice’, pp. 86–9 and Popkin, ‘El Salvador: A
Negotiated End to Impunity?’, pp. 198–217 in Roht-Arriaza (ed.), Impunity and
Human Rights; Americas Watch/Human Rights Watch, ‘El Salvador.
Accountability and Human Rights: The Report of the United Nations Commission
on the Truth for El Salvador’, News from Americas Watch, 5, 7 (10 August 1993);
Reed Brody, ‘The United Nations and Human Rights in El Salvador’s “Negotiated
Revolution”’, Harvard Human Rights Journal, 8 (Spring 1995), pp. 153–78.
2 According to many there was a conscious decision to focus on the political and
military issues and set aside economic concerns to avoid further divisiveness:
 EL SALVADOR 103

Author’s interview with Freddy Justiniano of the United Nations Development

Programme, (San Salvador, 18 November 1997). See Peace Agreement of 16
January 1992, between the Government of El Salvador and the FMLN, UN
Document A/46/864, annex.
3 See, for example, Herman Schwartz, ‘What Can We Do about Balkan Atrocities?’,
New York Times (9 April 1993), p. A27, suggesting that a truth commission would
be preferable to an international tribunal for the former Yugoslavia. On the
negotiations and the role of the UN generally, see T.S.Montgomery, ‘Getting to
Peace in El Salvador: The Roles of the United Nations Secretariat and ONUSAL’,
Journal of Interamerican Studies and World Affairs, 37, 4 (1995), at p. 139.
4 An early effort was the Arias plan and amnesty of 1987, which covered El
Salvador as well as Nicaragua: John J.Moore Jr, ‘Problems with Forgiveness:
Granting Amnesty under the Arias Plan in Nicaragua and El Salvador’, Stanford
Law Review, 43 (February 1991), pp. 733–77; David Holiday and William Stanley,
‘Building the Peace: Preliminary Lessons from El Salvador’, Journal of
International Affairs, 46 (Winter 1993), pp. 419–20.
5 See, for example, Antonio Martinez Uribe, ‘Un Proyecto de Nación Para El
Salvador’, Cuaderno de Trabajo No. 02–96 (San Salvador, El Salvador: Colegio de
Altos Estudios Estratégicos, May 1996), pp. 1–4; Instituto de Derechos Humanos
de la Universidad Centroamericana (IDHUCA), ‘José Simeón Cañas’, ‘Radiografia
de Un Proceso de Paz: Borrón y Cuenta Nueva?’ (San Salvador, El Salvador:
IDHUCA, 1995), pp. 1–10; ‘Las Tensiones de la Guerra’, El Salvador Proceso,’
10, 417 (14 February 1990), p. 5; ‘Balance Militar’, El Salvador Proceso, 11, 457,
extraordinario (December 1990), p. 16. On the conduct of the conflict more
generally, see Max G.Mainwaring and Court Prisk, ‘A Strategic View of
Insurgencies: Insights from El Salvador’, Small Wars and Insurgencies, 4, 1
(Spring/Summer 1993), pp. 53–72.
6 However, the USA recognized the stalemate before the Salvadoran government:
while the latter continued that the FMLN was weakening, US Southcom General
Maxwell Thurman argued that the FMLN was learning to expand operations
beyond the zones of its traditional strengths: ‘Las Tensiónes de la Guerra’, p. 6.
Also, as one analyst notes, until this point negotiations were seen as part of
manoeuvres to legitimate their own military strategies, rather than an end in
themselves, but this was to change: Ricardo Ribera, ‘El Salvador: La Negociacion
del Acuerdo de Paz: Un modelo para el Mundo?’, Realidad: Revista de Ciencias
Sociales y Humanidades, 37, (January-February 1993), p. 90. However, others in
retrospect date the government’s shift in viewpoint to 1989 and the offensive. It has
also been claimed that the election of the right-wing ARENA party reassured
rightist elements, enabling negotiations to go forward: author’s interview with
David Escobar Galindo, member of the government negotiating team (San
Salvador, 1 July 1998). On the influence of Congress on US policy towards El
Salvador even in the early 1980s, see Mark Peceny, ‘Culture, Congress, and the
Promotion of Democracy in Reagan Policy toward El Salvador: 1981–1984’, Low
Intensity Conflict and Law Enforcement, 3, 1 (Summer 1994), pp. 80–103;
‘Vicisitudes Recientes del Proceso de Diálogo’, El Salvador Proceso, 10, 419
(February 28 1990), p. 6.
7 ‘Trayectoria del Batallón Atlacatl’, El Salvador Proceso, 10, 415 (31 January
1990), pp. 11–16. Many have argued that it was the UCA massacre that forced the
104 EL SALVADOR

USA to recognize that its goal of professionalizing the FAES was not succeeding:
‘La Guerra Permanente’, El Salvador Proceso, 11, 432 (13 June 1990), p. 5. See
generally Johnstone, Rights and Reconciliation: UN Strategies in El Salvador,
Buergenthal, ‘The United Nations truth commission for El Salvador’; Americas
Watch/Human Rights Watch, ‘El Salvador: Accountability and Human Rights’.
8 In the admittedly biased opinion of one ex-commandant of the FMLN, it was not
strictly the case that the fall of the Soviet Union directly brought about peace, but
that it aided the advance of negotiations because, with the end of communism as a
threat in the region, the USA no longer had a basis to continue opposing
negotiations: ‘Entrevista Ex Commandante Jorge Melendez “Jonas”,’ Cuadernos
del Instituto de Estudios Jurídicos de El Salvador, 7 (March 1993), p. 174. As
David Escobar Galindo put it, the shift in international politics meant that the
situation in El Salvador and Central America was in some sense removed from the
international agenda and was returned to the sphere of regional and domestic
politics: author’s interview with David Escobar Galindo (San Salvador, 1 July
1998).
9 ‘Balance Politico’, El Salvador Proceso, 11, 457, extraordinario (December 1990),
p. 11; ‘Más Guerra’, El Salvador Proceso, 10, 420 (7 March 1990), p. 5.
10 Elisabeth J.Wood, ‘The Peace Accords and Postwar Reconstruction’, in James K.
Boyce (ed.), Economic Policy for Building Peace: The Lessons of El Salvador
(Boulder, CO: Lynne Rienner, 1996), p. 76.
11 Juan Jose Dalton, ‘Los Cambios de la Política: Grietas en ARENA’, Revista
Tendencias, 65 (October/November 1997), p. 32. In particular there was a desire to
halt the economic harm caused by FMLN sabotage actions: David Holiday and
William Stanley, ‘En la Mejor de las Circunstancias: ONUSAL y los Desafíos de la
Verificación y el Fortalecimiento Institucional en El Salvador’, Estudios
Centroamericanos, 584 (June 1997), p. 554.
12 Uribe, ‘Un Proyecto Para La Nación’, pp. 1–4. And the FMLN seems to concur
with this analysis. In May 1990 FMLN commandant Jorge Melindez cited the
FMLN offensive as a key factor in reopening dialogue, and also noted the
importance in the change in US behaviour with the end of the Cold War:
‘Convergencia de Diálogos’, El Salvador Proceso, 10, 430 (30 May 1990), pp. 6–
7. Another thesis is that the negotiations themselves had a dynamic of their own
that helped push the parties to alter their perceptions and accept new compromises.
See, for example, Enrique Baloyra, ‘Salvaging El Salvador’, Journal of
Democracy, 3, 2 (April 1992), pp. 60–71; author’s interview with David Escobar
Galindo (San Salvador, El Salvador, 1 July 1998).
13 Naciones Unidas, Acuerdos de El Salvador: En El Camino de La Paz (New York
and San Salvador: United Nations, 1992), pp. 1–3; ‘Escalada Bélica’, El Salvador
Proceso, 10, 422 (28 March 1990), p. 7; ‘Balance Militar’, El Salvador Proceso,
11, 457, extraordinario (December 1990), pp. 18–19.
14 ‘Editorial: El Informe de la Comisión Moakley’, El Salvador Proceso, 10,426 (2 May
1990), p. 2.
15 Aid was to be cut off entirely if these terms were not complied with, or reinstated if
the FMLN did not cooperate in talks: ‘Otro Mes de Guerra’, El Salvador Proceso,
10, 426 (2 May), pp. 5–6. In 1991, this 50 per cent cut amounted to million. One
editorial noted that while it would not alter the military balance decisively, it could
act as a serious spur to negotiations: ‘Editorial: La Ayuda en Suspenso’, El
 EL SALVADOR 105

Salvador Proceso, 10, 429 (23 May 1990), p. 2. Many have argued that it was the
UCA massacre that forced the USA to recognize that its goal of professionalizing
the FAES was not succeeding: ‘La Guerra Permanente’, El Salvador Proceso, 11,
432 (13 June 1990), p. 5. The GOES initially denied military acknowledged the
participation of nine military members in the attack on 13 January 1990.
Nonetheless, the failure to actively pursue those responsible meant that the case
remained a high-profile judicial and political issue: ‘Los Derechos Humanos Durante
1990’, El Salvador Proceso, 11, 457, extraordinario (December 1990), p. 41;
‘Preparativos Belicos’, El Salvador Proceso, 10, 427 (9 May 1990), p. 4.
16 ‘Sospechoso Extravío de Pruebas en el Caso de la UCA’, El Salvador Proceso, 10,
428 (16 May), p. 6. ‘Balance Militar’, El Salvador Proceso, 11, 457, extraordinario
(December 1991), pp. 19–20, states that total aid was billion for the period; a
United States General Accounting Office report states that the USA provided
billion in military aid, million in military credits and million in training programmes:
‘GAO’, El Salvador Proceso, 12, 482 (24 July 1991), p. 13.
17 ‘Confrontaciónes Bélicas’, El Salvador Proceso, 11, 433 (27 June 1990), p. 6;
‘Convergencia de Diálogos’, pp. 5–6; ‘La Fuerza Armada Ante la Cuestion de la
Impunidad’, El Salvador Proceso, 11, 435 (11 July 1990), p. 10. Ponce would be
named defence minister in September 1990.
18 ‘Acuerdo de San Jose Sobre Derechos Humanos,’ in Naciones Unidas, Acuerdos de
El Salvador, pp. 7–12; ‘Editorial: Los Escollos del Proceso de DiálogoNegociación’,
El Salvador Proceso, 11, 438 (8 August 1990), p. 2. It is worth noting that one
source suggests that the GOES itself was initially more open to discussing the
status of the armed forces, but caved in when faced with military
pressure: ‘Balance Político’, El Salvador Proceso, 11, 457, extraordinario
(December 1990), p. 8.
19 ‘Impunidad y Depúración (1)’, El Salvador Proceso, 11, 440 (22 August 1990), p.
9, and, in the same issue, ‘Posición del FMLN para Desmontan el Militarismo,
Alcanzan el Cese de Fuego y Avanzar a la Democracia sin Armas’, pp. 13–14,
which also demanded that the intellectual and material authors of the UCA
massacre be punished as an example.
20 ‘Editorial: La Fuerza Armada en la Encrucijada’, El Salvador Proceso, 11, 441 (29
August 1990), p. 2; ‘Impunidad y Depuración (2)’, El Salvador Proceso, 11, 441
(29 August 1990), pp. 6–8. In response to FMLN demands for accountability in
several notorious cases, the government proposed parallel investigations into four
cases where victims were presumed to have been killed by the FMLN.
21 ‘Auto-depuración de la Fuerza Armada?’, El Salvador Proceso, 11, 443 (12
September 1990), p. 6.
22 ‘La Ayuda Militar Norteamericana y la Guerra’, El Salvador Proceso, 11, 450 (30
October 1990), p. 6. The military expressed fears that this would undermine its
advantage over the FMLN. Military actions by both camps subsequently increased
dramatically, but the balance of forces did not alter despite a significant FMLN
offensive in late November.
23 ‘La Negociación de la Guerra’, El Salvador Proceso, 11, 456 (12 December 1990),
p. 2, and, in the same issue, ‘Nueva Ayuda Militar Norteamericana a la Fuerza
Armada’, pp. 5–6.
24 ‘La Rutina de la Guerra’, El Salvador Proceso, 11, 459 (23 January 1991), p. 4.
Following the announcement, several serious right-wing acts of violence took
106 EL SALVADOR

place, including the destruction of the Diario Latino offices and the massacre at El
Zapote, which some observers took to be a direct result of the American ‘signal’ of
plans to unfreeze aid: ‘Las Paradojas del “Proceso Democrático”’, El Salvador
Proceso, 11, 463 (20 February l991), p. 2.
25 ‘El Diálogo Otra Vez en Dificultades’, El Salvador Proceso, 11, 464 (27 February
1991), pp. 5–7. Article 248 dictated that the initiative for reform must be brought to
the Organo Legislativo (legislative organ) by at least ten legislators, and that it
must be approved by two consecutive legislatures, one that approves the measure
by an absolute majority, and the next by a vote of two-thirds of the representatives.
With looming legislative elections, the speed of completing reform proposals
became critical. For an analysis of this article, see Franco Eliseo Ortiz Ruiz, ‘El
Procidimiento de Reforma Constitucional en la Constitución Political de 1983: Un
Análisis Jurídico-Político’, Cuadernos del Instituto de Estudios Jurídicos de El
Salvador, 2 (August 1993), p. 109.
26 ‘El Diálogo Otra Vez en Dificultades’, pp. 7–8; ‘El Proceso Negociador, a
Contrapelo de la Guerra’, El Salvador Proceso, 11, 467 (20 March 1991), p. 6.
27 ‘La Marcha de la Guerra en el Contexto Diálogo’, El Salvador Proceso, 11, 470
(24 April 1991), p. 5. This issue was a serious stumbling block in negotiations in
the run-up to the May Mexico accords.
28 ‘Acuerdos de Mexico’, in Acuerdos de El Salvador, pp. 13–19, parts I-IV. The
limitation of military jurisdiction can be found in the Salvadoran constitution,
article 216. Also provided for was oversight by the CNJ of the judicial school, to
ensure professional judges. Article 187 of the Salvadoran constitution articulates
these reforms.
29 These agreements somewhat amplify details of the Mexico accords. See ‘Acuerdos
Políticos para el Desarollo de la Reforma Constitutional’ and ‘Comisión de la
Verdad’, in Acuerdos de El Salvador, pp. 28–33; ‘Anteproyecto de Reformas
Constitutionales’, El Salvador Proceso, 11, 471 (1 May 1991), pp. 8–12. The
FMLN, however, expressed its dissatisfaction with the agreements, arguing that the
hegemony of the army over society had been implicitly retained: ‘Posición de
la Comisión Negociadora del FMLN’, El Salvador Proceso, 11, 471 (1 May 1991),
pp. 15–16. The FMLN objected, in particular, to the continued description of the
FAES as a ‘permanent’ institution: Acuerdos de Mexico, Part VI.
30 ‘Luz Verde para ONUSAL’, El Salvador Proceso, 11, 474 (22 May 1991); ‘Los
Derechos Humanos en El Salvador durante el Trimestre Junio-Agosto de 1991’, El
Salvador Proceso, 12, 493, supp. (6 November 1991), p. 3.
31 ‘Más Guerra en Perspectiva’, El Salvador Proceso, 12, 476 (5 June 1991), p. 5;
‘Mociónes a Propósito de la Ayuda Militar Norteamericana’, El Salvador Proceso,
12, 476 (5 June 1991), p. 15; ‘Visita de Cristiani a Washington’, El Salvador
Proceso, 12, 477 (12 June 1991), p. 9; ‘La Marcha de la Guerra’, El Salvador
Proceso, 12, 479 (26 June 1991), p. 8.
32 ‘Hacia la Incorporación Política del FMLN’, El Salvador Proceso, 12, 483 (14
August 1991), pp. 4–5; ‘La Negociación Bordea el Abismo’, El Salvador Proceso,
12, 485 (28 August 1991), p. 3; ‘Momento Crucial de la Negociación’, El Salvador
Proceso, 12, 487 (11 September 1991), pp. 2–3.
33 ‘Momento Crucial de la Negociación’, p. 4. Two court cases raised these issues in
other ways: one sought indemnification against the state for UCA and the victims’
families; the other challenged the constitutionality of a 1987 amnesty law: ‘Caso
 EL SALVADOR 107

Jesuitas: La Acción Civil’, El Salvador Proceso, 12, 486 (4 September 1991), pp.
10–11, and ‘Caso Jesuitas: La Vista Pública y la Posibilitad de Amnistía’, El
Salvador Proceso, 12, 487 (11 September 1991), pp. 10–11.
34 See ‘Radiografía Cronológica de las Negociaciónes de Nueva York’, El Salvador
Proceso, 12, 489 (2 October 1991), pp. 5–8.
35 ‘Acuerdo de Nueva York’, in Acuerdos de El Salvador, pp. 34–40; ‘Radiografía
Cronológica de las Negociaciónes de Nueva York’, p. 8.
36 Acuerdo de Nueva York, Articles II–V; the new doctrine, with its emphasis on the
protection against internal threats, was in contrast to the doctrine of national
security prevalent in the region in the 1980s.
37 Acuerdo de Nueva York, Article VII. Other issues, such as the membership of, and
FMLN participation in, the new PNC, were unresolved.
38 ‘El Permanente Escollo de la Fuerza Armada’, El Salvador Proceso, 12, 494 (13
November 1991), p. 5. General Vargas takes a more positive stance on police
reform than he and his colleagues did in 1991: he now argues that the separation of
the police from the military was good for the FAES, preventing it from being
pulled into cyclical crises along with the police. He further argues that, while the
entry of ex-FMLN combatants into the PNC was risky, it was necessary and the
results have been acceptable: interview of General Mauricio Vargas by the author
(San Salvador, 3 December 1997).
39 ‘La Marcha de la Negociación: Otra Vez a Nueva York’, El Salvador Proceso, 12,
498 (11 December 1991), pp. 7–10.
40 ‘Acta de Nueva York’, in Acuerdos de El Salvador, pp. 45–46; ‘Acta de Nueva
York IF, in Acuerdos de El Salvador, p. 47; ‘El Fin de la Guerra’, El Salvador
Proceso, 12, 501 (31 January 1992), p. 15. See also ‘Central America: Efforts
Towards Peace’, UN Doc. S/23402 (10 January 1992).
41 ‘El Fin de la Guerra’, p. 15.
42 ‘Acuerdo de Paz de El Salvador’ (Chapultepec Accord), ch. I, in Acuerdos de El
Salvador, pp. 53–5; ‘El Fin de la Guerra’, p. 16.
43 Chapultepec Accord, ch. II; Elisabeth Wood, in ‘The Peace Accords’, p. 81, states
that these percentages were established in a secret annex to the September 1991
New York accords.
44 Chapultepec Accord, ch. VI.
45 Chapultepec Accord, ch. VII. ONUSAL was to have 1,100 members for the task:
‘El Fin de la Guerra’, p. 18.
46 See Wood, ‘The Peace Accords’, on this linkage.
47 Americas Watch, ‘El Salvador: Accountability and Human Rights’, pp. 8–9.
48 Tina Rosenberg, ‘Terror, Tribunals, and Truth: El Salvador, Not The Balkans, Is
the First Place to Seek Justice’, Washington Post (14 March 1993), p. C1; David
Holiday and William Stanley, ‘Building the Peace’, Journal of International
Affairs, 46 (Winter 1993), p. 425; Human Rights Watch, Human Rights Watch World
Report 1993, Events of 1992 (New York: Human Rights Watch 1993), p. 109.
49 The military also attempted to move these units wholesale into the army and simply
rename them rather than dissolve them. See Gino Costa, ‘The United Nations and
Reform of the Police in El Salvador’, International Peacekeeping, 2, 3 (Autumn
1995), p. 370; Human Rights Watch World Report 1993, p. 109. Wood, ‘The Peace
Accords’, p. 92 says that the visit of several US high-level military officers
emphasizing US concern about compliance in this matter played an important role.
108 EL SALVADOR

This included the 15 officers mentioned before: see ‘Letter dated 2 April 1993 from
the Secretary-General addressed to the President of the Security Council’, UN Doc.
S/25516 (2 April 1993), and ‘Letter dated 7 July 1993 from the Secretary-General
addressed to the President of the Security Council’, UN Doc. S/26502 (8 July
1993); Walter and Williams, Militarization and Demilitarization in El Salvador’s
Transition to Democracy, pp. 156–7.
50 Human Rights Watch World Report 1993, p. 106; ‘Consideraciónes Sobre la Ley de
Amnistía’, El Salvador Proceso, 12, 501 (31 January 1992), p. 9.
51 Holiday and Stanley, ‘Building the Peace’, p. 430; From Madness to Hope: The 12-
year War in El Salvador, Report of the United Nations Commission on the Truth
for El Salvador, UN Doc. S/25500, annex (1 April 1993), p. 11 on the mandate, and
p. 22 explicitly emphasizing the non-judicial nature of the commission.
52 Americas Watch, ‘El Salvador: Accountability and Human Rights’, pp. 10–13;
Cynthia Arnson, ‘Unburying El Salvador’s Skeletons’, New York Times (13 March
1993), p. 21.
53 UN Commission on the Truth, From Madness to Hope, p. 25.
54 Americas Watch, ‘El Salvador: Accountability and Human Rights’, pp. 13–14.
55 ‘75,000 Deaths’, Washington Post (18 March 1993), p. A26; UN Commission on
the Truth, From Madness to Hope, pp. 176–86; Americas Watch, ‘El Salvador:
Accountability and Human Rights’, pp. 19–20, provides a helpful summary.
56 UN Commission on the Truth, From Madness to Hope, p. 185.
57 UN Commission on the Truth, From Madness to Hope, p. 185; Stanley Meisler and
Tracy Wilkinson, ‘Salvador Urged to Bar All Rights Abusers from Public Life’,
Los Angeles Times (16 March 1995), p. A6.
58 Americas Watch, ‘El Salvador: Accountability and Human Rights’, pp. 21–2;
Douglas Farah, ‘Salvadoran Ruling Party Seeks Civil War Amnesties’, Washington
Post (17 March 1993), p. A28; ‘Posición de la Fuerza Armada de El Salvador ante
el Informe de la Comisión de la Verdad’, Diario Latino (24 March 1993), p. 11. The
statement repeatedly refers to the ‘communist attack’ that the FAES confronted in
the 1980s, arguing that the commission failed to take into account the nature of the
threat posed to the country by the FMLN. The statement further asserts that the
commission was not impartial, and had failed to investigate some 695 cases of
FMLN atrocities submitted to it by the FAES.
59 Americas Watch, ‘El Salvador: Accountability and Human Rights’, pp. 23–4;
Tracy Wilkinson, ‘El Salvador Frees 2 Officers Convicted in Priest Killings’, Los
Angeles Times (2 April 1993), P. A9.
60 Sala de lo Constitucional de la Corte Suprema de Justicia, ‘Resolución de la
Demanda de Inconstitucionalidad para los Señores José Benjamin Cuellar Martinez
y Ana Mercedes Valladares’, No. 11–93 (20 May 1993), found in the computer
database of the Corte Suprema de Justicia in San Salvador, printout on file with
author.
61 Robert J.White, ‘In El Salvador, UN Exits to Applause’, Star Tribune (7
May 1995), p. 27 A; but see Martha Doggett (Lawyers Committee for Human
Rights), letter to the editor, ‘El Salvador Hasn’t Purged Itself of War Crimes’, New
York Times (15 August 1994), p. A14; ‘National Peace Commission Closes as its
Work Comes to an End’, BBC Summary of World Broadcasts, EE/D2509/L, part 5
(14 January 1996); US Department of State, ‘El Salvador Human Rights Practices,
1995’, Department of State Dispatch, 7 (March 1996).
 EL SALVADOR 109

62 Dan Alder, ‘UN Faulted on Vote in El Salvador’, Chicago Tribune (24 April
1994), p. 12.
63 Howard W.French, ‘As the Elections Near, Killings Shake El Salvador’, New York
Times (15 December 1993), p. A3; Pamela Constable, ‘Salvadoran Deaths Spur
New Worries; Election, Peace Seem at Risk’, Boston Globe (19 December 1993), p.
1. Some 26 rebels were slain in the wave of assassinations, including two military
commanders, three security guards with their intelligence operations, and two
members of a logistical team. For this reason, a joint group to investigate politically
motivated killings was created: see ‘Letter dated 11 August 1994 from the
Secretary-General addressed to the President of the Security Council’, UN Doc. S/
1994/989 (22 October 1994). US Department of State, ‘El Salvador Human Rights
Practices, 1995’; see also ‘El Salvador: UN Extends Observer Mission for Six
Months’, NotiSur-Latin American Political Affairs (10 November 1995). US
Department of State, ‘El Salvador Human Rights Practices, 1995’ puts the number
of complaints at 1,844; the report of then Procuradora Victoria Marina Velasquez de
Aviles, La Seguridad Ciudadana, la Policía Nacional Civil, y los Derechos
Humanos (San Salvador, El Salvador: Procuraduría para la Defensa de los
Derechos Humanos, 1997), pp. 13–14, puts the figure at 1,791, including 89
dealing with the violation of the right to life.
64 See William Stanley, ‘Protectors or Perpetrators? The Institutional Crisis of the
Salvadoran Civilian Police’ (Washington, DC: Washington Office on Latin
America, January 1996); ‘El Salvador’, in NotiSur.
65 ‘Letter dated 8 June 1993 from the Secretary-General addressed to the President of
the Security Council’, UN Doc. S/25901 (8 June 1993).
66 Physicians for Human Rights, ‘Physicians launch DNA testing to reunite
“disappeared” Salvadoran children with parents’ (13 September 1994), at http://
www. phrusa.org/research/forensics/el_salvador/fordnal.html.
67 Nathaniel Sheppard Jr, ‘War-scarred Salvadorans find real enemy is inside us’,
Chicago Tribune (16 June 1993), p. 1; Douglass W.Cassel Jr, ‘Wielding the Truth
in El Salvador’, Chicago Tribune (29 March 1993), p. 11.
68 Meisler and Wilkinson, ‘Salvador Urged to Bar all Rights Abusers’.
69 Centro Universitario de Información, Documentación, y Apoyo a la Investigación,
‘Las Elecciónes del 16 de Marzo de 1997: Quiebre de la Hegemonía de ARENA’,
Estudios Centroamericanos, 581–2 (March-April 1997), p. 221.
70 As Williams and Walter rightly point out, the military retained broad autonomy
from civilian control and were unwilling to give up the networks of social control
that they retained in the countryside: see Militarization and Demilitarization, pp. 9–
11, p. 116 ff.
71 Walter and Williams, ‘The Military and Democratization in El Salvador’, p. 68.
72 James K.Boyce, ‘External Assistance and the Peace Process in El Salvador’, World
Development, 23, 12 (1995), p. 2110; IISS, The Military Balance: 1995–1996, p.
216.
73 Author’s interview with participants in ICITAP at the US Department of State,
John Feeley and Fay Armstrong (Washington, DC, 10 June 1997); Williams and
Walter, Militarization and Demilitarization, p. 171.
74 On the general history of military corporatism and penetration in politics in El
Salvador, see Erich G.Frankland, ‘Under the Gun in El Salvador: The Evolving
Relationship between the Military and Democracy’, Low Intensity Conflict and Law
110 EL SALVADOR

Enforcement, 3, 1 (Summer 1994), pp. 104–31; see also Walter and Williams,
‘The Military and Democratization in El Salvador’; Thomas K.Adams, ‘Disengage,
Disarm, Demobilize: The Success of ONUSAL in Implementing the 1992 El
Salvador Peace Accords’, Low Intensity Conflict and Law Enforcement, 3, 2
(Autumn 1994), p. 292. The percentages were to be: 60 per cent persons with no
involvement in the prior conflict, and 20 per cent each screened former PN
members and former FMLN members: Brody, ‘The United Nations and Human
Rights in El Salvador’s “Negotiated Revolution”’, p. 174.
75 Walter and Williams, ‘The Military and Democratization in El Salvador’, p. 67.
76 Morgan Rose, ‘El Salvador: Abuse of Human Rights and the Process of Peace’, Guild
Practitioner, 50, 4 (Fall 1993), p. 121; Washington Office on Latin America,
‘Reluctant Reforms: The Cristiani Government and the International Community in
the Process of Salvadoran post-War Reconstruction’ (Washington, DC:
Washington Office on Latin America, 1993), pp. 33–4.
77 Author’s interview with Escobar Galindo, who emphasized these changes as
evidence of a change at the base, in the allocation of power, as opposed to mere
cosmetic changes.
78 Reglamento Disciplinario de la PNC, Article 67, reprinted in ONUSAL/
Procuraduría para la Defensa de los Derechos Humanos, Guía Sobre las Normas y
Procidimientos de la Policía Nacional Civil (San Salvador, El Salvador:
ONUSAL, 1994), p. 163.
79 Ley Organica de la Policía Nacional Civil, Articles 25(4) and 27(2) reprinted in
ONUSAL; Guía Sobre las Normas.
80 Stanley, ‘Protectors or Perpetrators’, p. 6, emphasizes the potentially thorny
political situation. Santiago Fernandez Quezada, the secretary-general of the ANSP,
says that he saw relatively little conflict engendered by the incorporation of the
FMLN when he arrived in 1993, and suggests that a reason for success was that the
Consejo Academico (academic council) conditioned the treatment of incoming
students based on their origin and presumed capacities and shortcomings: author’s
interview with Santiago Fernandez Quezada, Secretario General, Academia
Nacional de Seguridad Pública (Santa Tecla, 19 November 1997).
81 Author’s interview with ICITAP participants at the US Department of State, John
Feeley and Fay Armstrong (Washington, DC, 10 June 1997); Stanley, ‘Protectors
or Perpetrators?’, pp. 5–6; author’s interview with Santiago Fernandez Quezada;
‘Strengthening of the Coordination of Humanitarian and Disaster Relief Assistance
of the United Nations, including Special Economic Assistance to Individual
Countries or Regions’, UN Doc. A/52/433 (8 October 1997), paras 66–72; Gabriel
Siri and Jenny Malmquist, ‘Evaluacion del Apoyo de Suecia al Proceso de Paz y
Democratización en El Salvador’ (Informe de la consultoria preparado para la
Autoridad Suecia para el Desarollo Internacional, December 1994). See generally
also Costa, ‘The United Nations and Reform’, pp. 373–9 on the curriculum of the
ANSP and the role of international assistance.
82 On other social and historical forces, see Raul Benitez Manaut, ‘Los Militares:
Viejos Caudillos, Nuevos Democratas?’, in Francisco Barahona Riera and Manuel
Carballo Quintana, Reconversion Militar en Centroamerica (San Jose, Costa Rica:
Fundación Friedrich Ebert, 1995), pp. 24–5; Edelberto Torres-Rivas and Dirk
Kruijt, ‘Presentacion’, in Kruijt and Torres-Rivas (eds), America Latina: Militares
y Sociedad—I (San Jose, Costa Rica: FLACSO, 1991), p. 9; Kees Koonings, ‘La
 EL SALVADOR 111

Sociología de la Intervención Militar en la Política Latinoamerica’, in Kruijt and

Torres-Rivas (eds), America Latina, pp. 19–61. Alain Rouquie, while not disputing
the role of ideology, does not see the doctrine as decisive: see Rouquie, The
Military and the State in Latin America, trans. Paul Sigmund (Berkeley, CA:
University of California Press, 1987), p. 8.
83 Kruijt, ‘Politicians in Uniform: Dilemmas about the Latin American Military’,
European Review of Latin American and Caribbean Studies, 61 (December
1996), pp. 7–19. See Coronel Prudencio Garcia, (ONUSAL human rights division
chief of cooperation with the FA), ‘Fuerzas Armadas y Consolidación Democrática
en America Latina’, in Barahona Riera and Carballo Quintana (eds), Reconversión
Militar, p. 48.
84 Stepan, The Military in Politics; Koonings, ‘La Sociología de la Intervención
Militar’, pp. 46–50. Benitez Manaut, ‘Los Militares: Viejos Caudillos’, p. 30. On
the Argentine case, see Colonels H.P.Ballester, J.L.Garcia, C.M.Gazcon and
A.B.Rattenbach, ‘Fuerzas Armadas Argentinas: El Cambio Necesario, Bases
Políticas, y Tecnicas Para Una Reforma Militar’, in Fuerza Armada de El Salvador,
Doctrina Militar y Relaciones Ejército/Sociedad, p. 199. See also Raul Benitez
Manaut, La Teoría Militar y la Guerra Civil en El Salvador (San Salvador, El
Salvador: Universidad Centroamericana, 1989).
85 Hector Samour, ‘Las Fuerzas Armadas Salvadorenas’, Realidad: Revista de
Ciencias Sociales y Humanidades (September-October 1994), pp. 765–6; Oscar
Alfredo Santamaria, ‘Relación de la Seguridad Nacional Salvadoreña con el
Contexto Internacional’, in Centro de Estudios Democraticos (CEDEM), El Nuevo
Concepto de la Seguridad Nacional Salvadoreña (San Salvador: CEDEM, 1994), p.
14; Coronel Omar Arturo Vaquerano, ‘Efectos de la Terminación del Conflicto
Este-Oeste con la Seguridad Nacional Salvadoreña’, in CEDEM, El Nuevo
Concepto de la Seguridad, pp. 28–31.
86 Samour, ‘Las Fuerzas Armadas Salvadorenas’, pp. 766–77.
87 Samour, ‘Las Fuerzas Armadas Salvadorenas’, pp. 774–5. It is worth noting that,
despite the reforms to be discussed shortly, the tanda system has not been altered:
ibid., p. 777; Williams and Walter, Militarization and Demilitarization, p. 150.
88 ‘El Fin del Militarismo: Dictadores en Busca de Escuela’, Cuadernos del Instituto
de Estudios Jurídicos de El Salvador, 7 (March 1993), pp. 135–42.
89 Author’s interview with Escobar Galindo, who emphasized in particular the fact
that, until the initiation of negotiations, the political power in the nation had
become increasingly concentrated in the FAES, thus the key thrust of the
negotiations, reinforced by domestic and international pressure, was the de-
concentration of this power. See ‘Nuevas Percepciones de Seguridad Nacional,’ El
Salvador Boletín de Análisis e Información, 13 (June-July 1992), p. 14.
90 Colonel Prudencio Garcia, ‘Ineludible Incorporación de los Derechos Humanos a la
Moral Militar Democrática y a la Nueva Relacion Ejército/Sociedad’, in Barahona
Riera and Carballo Quintana, Reconversion Militar, p. 96.
91 All the foregoing points were raised in the author’s interview with David Escobar
Galindo.
 4
Argentina
Struggle for accountability

Introduction
Argentina provides another rich case, illustrating the role of external factors in
helping to engender transition, as well as the complex set of trade-offs states
must face. The central catalyst for change in Argentina is commonly agreed to
have been the debacle in the Falklands/Malvinas, which weakened and
embarrassed the military and encouraged it to step down. Domestic opposition
was strong, but had previously posed no particular threat to the regime; the
military loss seems to have been most important. Despite its weakened status,
however, the military did not surrender all control over the political situation. At
the same time, in contrast to other transitional experiences, external actors did not
play a particularly significant role when the transition was underway. Although
important and even high-level prosecutions went forward, as did a thorough
report by a commission of inquiry, rebellions by the military helped force a
series of procedural limitations and amnesties that largely reversed the effects of
prosecutions. Some important constitutional institutional reforms were made,
though they too were limited. The result was a set of compromises that partially
addressed the legacy of the past and partly reformed the security forces to prevent
future abuses. As with the other cases here, the outcome on the accountability/
stability continuum was not an either/or trade-off: measures of both were sought
and achieved.

A brief history
In March 1976, the Argentine military staged a coup and seized power in
response to both political violence and the faltering economy of the country. It
came to power seeking also to eliminate the threat posed by two guerrilla groups:
the Montoneros and the Ejercito Revolucionario del Pueblo. During the period
1976–83, the country underwent the Proceso de Reorganización Nacional, or
what is now referred to as the ‘dirty war’, ostensibly in response to terrorism and
subversion but with a repressive reach far beyond the relatively small numbers of
 ARGENTINA 113

rebels and supporters. Tens of thousands of people disappeared, and almost 10,
000 more were held as political prisoners by the military dictatorship.1
In Argentina, unlike many other countries where gross human rights abuses
have occurred, the subsequent democratic regime attempted to prosecute the
perpetrators, albeit with unsatisfactory results. As we shall see, despite the
weakened status of the military following the Falklands/Malvinas defeat and
economic crises that pushed it to initiate democratization, the military to a large
degree set the terms for its own departure and continued to play a significant role
in the democratizing polity.2

The human rights movement

I now consider the demands of the indigenous human rights movement in
Argentina, and the ways in which they were translated (or not) into government
policy in the face of a strong military. The most notable group pressing for
human rights reform was the Madres de la Plaza de Mayo, who were mothers of
‘disappeared’ Argentines. This group, along with other, pressed for the
accountability of the government for human rights violations, in particular
demanding that the truth be told and that there be ‘no impunity’, that is no amnesty,
for the perpetrators.3

Democratization: the Alfonsín regime

Human rights activists played a role in Argentina’s transition to democracy,
although the weakened status of the Argentine military following the Falklands/
Malvinas war played a significant, perhaps decisive role. Even before the
Falklands/Malvinas debacle, cracks in the military’s unity were developing in
part due to the strains and failures of their management of the economy. The
surrender in June 1982 perhaps only sealed the fate of the junta: it undermined a
nascently expansionist foreign policy, crushed the Argentine war machine, posed
an embarrassment for the military in terms of both its morale and battle-
readiness, destroyed the junta’s plan to generate unity by whipping up
nationalism, and unleashed a wave of social frustration from diverse quarters.4
Thus, following the rout in the Falklands/Malvinas, the ruling General Galtieri was
replaced with General Bignone, who was tasked with returning the nation to
constitutional government.5
Nonetheless, democratization has been hampered by the privileged status of the
military, which has also limited the government’s capacity to respond to the
demands of the human rights movement. There were at least four military
uprisings during the period of democratization, often in response to attempts to
hold members of the military accountable for human rights violations.6 Despite
these limitations, however, the government did attempt prosecutions and other
forms of accountability under President Raúl Alfonsín.
114 ARGENTINA

The human rights movement had demanded government accountability for

human rights violations, and demanded that the truth be exposed and that there
be no impunity. Rhetorically, Alfonsín responded to these demands while
campaigning for the presidency, promising responses to human rights abuses that
included prosecuting those who had given or exceeded orders during the
dictatorship. After the election, human rights groups maintained pressure on
Alfonsín through mass demonstrations.7

The legacy of the past: Alfonsín’s policies

Once in office, Alfonsín sent a bill to congress that included an annulment of the
amnesty the military had granted itself, reform of the military code of justice, and
a mandate for the trials of members of the first three military juntas.8 It also
sought to lay bare the legacy of the dirty war through a variant on the truth
commission, the Comisión Nacional sobre Desaparición de Personas
(CONADEP).

Revealing the truth: CONADEP

The commission collected testimony of survivors of mass executions and other
atrocities, documenting some 9,000 disappearances. In September 1984, after
280 days work, CONADEP presented a report, Nunca Más, which presented the
names and fates of victims; it did not name perpetrators. The report also
investigated and articulated some of the underpinnings of the repression, in
particular the obsessive concern with fighting subversives derived from the
doctrine of national security (DNS).9
The report provoked a crisis in the military: it named not only some of the
disappeared, but gave sensitive details such as the extent of torture and location
of what some have called concentration camps, provoking the army chief of staff
Arguindegui to assert that there was a plot to undermine his authority within the
military.10 Furthermore, while the report itself did not explicitly name
perpetrators, the commission gave the president a list of names in a sealed
envelope, which was promptly leaked to a Buenos Aires newspaper.11
Nonetheless, the president of the Madres de la Plaza de Mayo condemned
CONADEP as failing to truly bring the military to justice.12
The trials of the mid-1980s are discussed below, but it is worth turning briefly
to other reforms that Alfonsín sought to effect. He obtained the resignations of
59 admirals and generals. Further, he proposed reforms in the command structure
and doctrine of the military, in particular the deleterious doctrine of national
security.13
 ARGENTINA 115

Pursuit of accountability: the trials and their consequences

The trials of high-level officers for the excesses of the dirty war did not begin in
civilian courts, but rather in the supreme military council. Under the reformed
military justice code, with the support of Alfonsín, the council was given
jurisdiction over offences that were committed by the armed forces or security
forces, police or workers in the penitentiary system operated by the armed
forces. However, the reformed code also stipulated that, should there be
undue delays, the federal chamber would take over the cases. The supreme
council delayed making decisions throughout 1984, and ultimately released a
report stating that it was unable to judge the defendants because the orders given
and followed were ‘unobjectionable’ in the context of a ‘war against
subversion’. The Buenos Aires appeals court then assumed jurisdiction over the
cases, which took place through 1985. The trials were open to the public and
press, and excerpts were shown on television, allowing a wide range of views
and personal stories of the victims to be heard.14
During the trials, evidence was destroyed, a coup plot against Alfonsín was
discovered, witnesses were threatened and harassed, and a bomb was found at
the home of the president of the appeals court.15 Ultimately, five of the nine
defendants were convicted: General-Presidents Jorge Videla and Robert Viola,
Admirals Emilio Massera and Armando Lambruschini, and Air Force Brigadier
Orlando Agosti. Despite defences by these high-level officers that their actions
were a response to terrorism and that therefore their acts were of necessity, self-
defence or war, the appeals court (whose judgement was affirmed by the
supreme court) ultimately rejected all defences and found that these defendants
were guilty of crimes ranging from aggravated homicide and torture to
robbery.16
The Alfonsín administration also ordered a number of exemplary trials, but
victims and their families pressed for much larger-scale prosecutions. The
military courts which were to hear more cases, however, were given orders by
the ministry of defence constructed so that massive acquittals or immunity from
prosecution would result, and in 1986 the civilian courts took up the cases.17
Proceedings were also initiated against high-level police officials at the same
time as the trials against former junta members, and the federal appeals court
assumed jurisdiction, much as it had in those earlier cases. The trials led to the
conviction of two former police chiefs, Ramon Camps and Ovidio Riccheri, as well
as the former Buenos Aires chief inspector in December 1986, on torture charges.
However, under the due obedience legislation, passed while these cases were
being processed, the sentences were reduced or eliminated altogether.18
Even as these trials were progressing, the Alfonsín administration sought to
mediate between increasingly activist courts and a restive military. First, the
judiciary was to apply a set of instructions developed by the minister of defence
for judgement in the supreme council, a strategy made public in April of 1996.
These instructions were seen by many as both a hidden amnesty effectively
116 ARGENTINA

limiting the responsibility of subordinates and an overreaching by the executive

power into judicial matters. Resignation threats by members of the judiciary and
the general prosecutor in the trial of members of the junta, as well as vocal
opposition by human rights groups and opposition political parties prompted
Alfonsín to backpedal, announcing new instructions constricting the concept of
due obedience.19
Second, Alfonsín introduced the punto final legislation, which was to limit trials
procedurally. This legislation meant that, after 60 days, no further charges could
be brought against any defendant, which was expected to severely limit any
future trials. Although the human rights movement flooded the courts with cases,
getting some 400 cases processed before the deadline, another 1,300–1,500
perpetrators identifiable from extant testimony could not be prosecuted.
Nonetheless, the cases were significant, with some 30 per cent of the cases filed
against active duty officers. Further, the courts worked in active cooperation to
speed the process, suspending their holidays to clear out cases before the punto
final law came into force.20
Even with these limitations on trials, the relations between the democratic
government and the military remained tense. This situation was compounded by
internal rifts within the military caused by the human rights trials. The rifts were
based on differences of opinion among different levels of the hierarchy regarding
the dirty war and the trials, and may have been a result of the tiered strategy of
prosecution, which sought to punish the junta members who designed the
repression and the officers who actually carried it out; those lower-ranking
officers felt abandoned by their generals; they felt that those who were neither
designers or direct implementers of the dirty war were, unfairly, going
unpunished. The lower-ranking officers who had largely carried out the war
against the guerrillas and later in the Falklands developed a strong sense of
solidarity, and believed strongly that they had fought honourably for their
country. These officers, now promoted to the middle ranks of major and
lieutenant-colonel, felt they had become scapegoats when the trials began, and
saw themselves as victims of collusion between higher-ranking generals and
Alfonsin.21
In April 1987, a widespread military rebellion was sparked in a military
complex outside Buenos Aires, Campo de Mayo. This Easter rebellion began
when Major Ernesto Barreiro, an officer accused of torture, sought refuge in an
airborne infantry unit in Cordoba. A few days later, Lieutenant-Colonel Aldo
Rico took over the Campo de Mayo in Buenos Aires in solidarity with Barreiro,
demanding the replacement of certain top officers in the army including the chief
of staff, and a political solution to the human rights trials. The chief of staff,
General Rios Erenu, ordered troops to put the rebellion down, and resigned when
they refused, further demonstrating the divisions within the military. Meanwhile,
the response of the populace was one of outrage: there were large demonstrations
in the Plaza de Mayo as well as outside the Campo de Mayo regiment; legislators
 ARGENTINA 117

signed an act articulating their commitment to democracy, and labour leaders

called for a strike.22
Alfonsin negotiated directly with the leaders of the rebellion, resolving the
crisis, but shortly thereafter introduced further legislation to mitigate the
prosecutions. This legislation, the Obediencia Debida (due obedience) law,
introduced the presumption that all but a few high-ranking officers were ‘just
following orders’; the legislature reportedly passed it under fear of renewed
military repression. The result, as briefly discussed above, was to reverse a
number of high-profile cases and release many other officers whose cases were
pending.23 The goal of the legislation was to mitigate the sense of injustice and
scapegoating felt by the middle-level officers; the timing of the legislation
and the fact that Alfonsín did negotiate with the rebels has led many to assume
that the legislation was a direct concession in exchange for the end of the Easter
rebellion.
However, others argue that the timing of the Obediencia Debida legislation
should not be too heavily weighted: the core of Alfonsín’s policy towards the
armed forces had already been outlined in his campaign. He had, early on,
articulated the three-tiered approach that would treat differently those who
planned the dirty war, those responsible for its excesses and those who had only
obeyed orders. In fact, the key facets of the due obedience concept had been
included in the 1984 reform of the military justice code, which included a
presumption that individuals who acted under orders of high-level officers of the
military or the junta had held the mistaken belief that their actions were
legitimate.24
The Obediencia Debida legislation did not, however, bring military restiveness
to an end. Two more rebellions must be noted. Lieutenant-Colonel Aldo Rico
was the cause of a second rebellion in January 1988. In the face of punishment
for his role in the previous rebellion, Rico occupied an infantry regiment,
claiming that the demands of the Easter rebellion had not been met. The rebellion
was eventually put down, but Rico’s support weakened because he had been
acting in defiance of a military tribunal rather than a civilian court.25
The third military rebellion of note took place in late November and early
December 1988, instigated by Colonel Mohamed Ali Seineldín, a key figure
among the rebel military officers. A unit took over the infantry school at the
Campo de Mayo, claiming to be under the orders of Colonel Seineldín, who was
in Panama at the time but returned to lead the rebellion. The putative causes of
the rebellion were several: the refusal to promote Seineldín, seen as a snub to this
sect of officers, the perception that Alfonsín’s administration was soiling the
honour of the armed forces, and a desire that amnesty be granted for those
involved in previous rebellions.26
Alfonsín refused to grant the amnesty, and ordered the suppression of the
rebellion. Furthermore, civilian outrage went beyond demonstrations: crowds
surrounded the barracks to hurl both stones and insults. Labour and business
118 ARGENTINA

groups called for a strike, and congress went into an emergency session to
demonstrate support for democracy.27
Seineldín announced the officers’ demands, which ranged from an amnesty to
budget increases. The general in charge of suppressing the rebellion entered the
base to speak to the rebels, and compromises were made, which according to the
rebels included the replacement of a key general, wage increases, the sparing of
the rebels from trials, a general amnesty in the next government change and a
public depiction of the dirty war as a positive thing. However, not all of these
demands were realized: the general in question was replaced and wages were
increased, but Seineldín was arrested and accountability for the rebellion was
limited to officers, rather than eliminated. The commitment made to ‘restore the
army’s dignity’ was sufficiently vague as to have no real meaning. Seineldín
survived to lead one last mutiny, in December 1990, but surrendered without
negotiation, and was excluded from subsequent pardons.28
While Alfonsín entered office with a strong commitment to prosecute human
rights violations, political tension and, more importantly, military rebellions set
practical limits on the level of accountability that could be achieved. Between the
punto final and the Obediencia Debida legislation, the number of pending cases
was drastically reduced, and many convicted murderers and torturers were
released. No further trials began under Alfonsin’s administration, and in July
1989 President Carlos Menem assumed office.

Democratization: the Menem regime

Despite ongoing attempts to reform and democratize the military, it remained an
autonomous corporate force prone to rebellion when Menem came to power.
Though Menem had himself been persecuted during the dirty war and spoken
out against the Obediencia Debida legislation, his defence minister favoured
amnesty and Menem quickly moved to pardon military figures convicted of
human rights abuses.29
In September 1989, Menem pardoned 18 Argentine generals and admirals
facing trial, and announced the review of the convictions of six convicted earlier,
including two ex-presidents. In October, Menem pardoned over 200 more
officers, accused of human rights abuses or aiding military rebellions, in the
name of national reconciliation. In response to those arguing that there should be
no impunity, he said that, with the economy in crisis, the country could not
afford the bitter social divisions fomented by the imprisonment of the military
figures.30 Although many believed that Menem felt compelled to pardon the
officers in the light of the three military rebellions that had taken place in the last
two years in protest against the trials, many were outraged at the act.31 Only a small
majority of Argentines agreed with Menem that such an action was necessary for
reconciliation; many others feared that pardons would make the officers feel
vindicated, and could perhaps encourage them to return to their repressive
routines. The critics objected that the officers felt no responsibility for their
 ARGENTINA 119

crimes, and that families of the victims did not feel that justice had been done.
They protested that pardons delegitimated the justice system, and would only
exacerbate the conflicts between the civilians and the military. Despite both
domestic and international objections, in December 1990 Menem also pardoned
the former rulers convicted of human rights violations.32

The mixed legacy of human rights in Argentina

While the prosecutions of key perpetrators of human rights violations appear to
have failed, the period of democratization witnessed an explosion of truth-
telling. Newspapers, television and film featured the stories of victims, and
public opinion indicates the delegitimation of the military and support for human
rights. Nonetheless, the national reconciliation hoped for has failed
to materialize, in part because of the continuing demands for justice by victims
and their families. While the Madres have continued to demand information
about their disappeared children, their status has sunk dramatically, suggesting a
national desire to leave the past behind.33 Furthermore, as democracy was
defined by the human rights movement and Alfonsín as including government
accountability, pardons mark the weakness of the nascent democratic state.34
The lack of reconciliation is made clear by the ongoing protests of the Madres,
but perhaps more importantly by the recent spate of confessions by military
figures involved in disappearances and killings. In early 1995, a former navy
captain confessed to taking part in flights in which prisoners were thrown out of
planes into the sea; this provided the country with a chance to revisit human
rights issues, but was met almost immediately with nationalist rhetoric about the
need to fight the left-wing insurgents. Many human rights activists interpreted
this response and the dearth of other opinions as indicative of the degree to
which the military still acts with impunity. Menem himself, after first
encouraging people to speak out, suggested that they confess their sins to a priest
rather than the public, saying that such confessions merely reopened old wounds
that needed to heal.35 Victims responded that society would be stained until
justice was done.
The issue was not laid to rest as Menem had hoped. In April 1995, a first
sergeant in the army came forward and discussed his role in the flights also. This
ultimately sparked an apology from the army chief of staff, General Martin
Balza, who stated that ‘[w]e must no longer deny the horror we lived through’,
and promised that the military would not repeat the mistakes of the past. This
apology was followed by similar remarks by the heads of the navy and air
force.36 Some believed that this apology would have a cathartic effect on society,
and Menem, switching positions, announced that he would look into the
possibility of rescinding some Alfonsín-era laws pardoning perpetrators.37 The
revelations and apology have had an uncertain effect thus far on the victims and
Argentine society in general. For some they merely spark new anger and reopen
old wounds, while others feel relief at the opportunity to speak out. Few expect
120 ARGENTINA

new prosecutions to result, but public debate on the issue has resumed, and
Menem has reopened some cases.38 For the victims and the families of victims,
the past looms large and reconciliation is not complete. Many of the Madres say
that they cannot rest until the truth is out, and until they know that their children
did not die in vain. The desire for retaliation remains, as evidenced by repeated
public physical attacks by survivors and family members of victims on retired
Captain Alfredo Astiz, a renowned torturer during the dirty war.39
Finally, in 1998, the question of accountability arose again, in connection with
the apparent kidnappings of children from detained mothers. These children were
allegedly then adopted by couples who were part of the military or the police.
Two former rulers, Admiral Emilio E.Massera and General Jorge Rafael Videla,
have been detained in relation to these abductions. In addition, a Spanish judge is
investigating abuses under Massera. These developments are noteworthy, since
Massera was pardoned by Menem, but that pardon did not cover the kidnapping
of babies born in prison camps.40 This issue returned to prominence in late 1998
with the arrests of a number of military officers for past kidnappings of the
babies of women killed in detention centres.41

Strategies of transition in the face of a recalcitrant military

A key obstacle that nascent democracies frequently face is the recalcitrant old
guard, whose most powerful elements are often military officers. Whether the
military previously ruled directly, or through obedient civilian governments, its
members will feel insecure in a new democratic environment, having lost the
protection that comes with power. I build upon claims in the literature that the
key concerns they have are to do with the following three factors: treatment of
their members in the face of calls for accountability for human rights violations,
institutional reform and budgetary levels. An examination of the Argentine case
suggests all three issues were of concern to the military, though perhaps to
varying degrees.

Human rights accountability: a promise largely deferred

As can be seen from the tortured history of the trials in Argentina, in relation to
this element that the military was most recalcitrant. The various coup attempts
can be interpreted as responses to specific events in the judicial and political
process, rather than as part of greater aspirations to bring down the nascent
democratic regime.42 While trials achieved convictions of high-level junta
members and others, amnesties and procedural limitations undermined much of
the impact of these judicial proceedings.
 ARGENTINA 121

Institutional reform
Alfonsín was able to implement some substantive change in the structure and
control of the military: the president was established as the commander in chief
of the armed forces, the ministry of defence was re-established with a civilian at
its head, and would control the joint general staff, the military planning wing,
who would in turn control the heads of each of the branches of the armed forces.
The Commandantes en Jefe (commanders in chief) were eliminated, the number
of high-level posts in the military was reduced, and the elimination, fusion or
transfer of some military units was achieved. In addition, some modification of
doctrines, regulations and training was achieved, and is discussed below.43 A key
intelligence unit was also placed under civilian control. Nonetheless, Alfonsín’s
initiatives were met with passive resistance. Further, even when budget cuts
began to take effect, most of the old military units were still intact.44 In addition
to budget and staff cuts, Alfonsín attempted to restructure the military. He
transferred some military institutes and corps from the capital to the provinces,
introduced new, civilian-taught courses at military institutes on the role of the
military in democracy, and limited to some degree the role of the military in
internal state matters.45
Alfonsín was also able to push through a change in the military doctrine, one
that was meant to fit the military’s new role in a democratic society. As in many
Latin American countries, in Argentina the line between internal and external
security had been so thoroughly blurred as to be nearly erased. Thus it was an
important facet of the new doctrine, introduced in 1985, that the distinction
between internal and external security was explicitly established in the new law
of national defence. This doctrine thus specifically limited the role of the armed
forces to the defence of territory and sovereignty from external attacks.46 Two
additional laws were passed in this arena: the law of national defence of 1988
and the law of internal security of 1991. Military reform is far from complete,
however; in recognition of that, in 1995, congress initiated hearings on
restructuring the defence system, in response to which the ministry of defence
set up its own commission on restructuring.47
It is worth noting that the entrenchment of those reforms that have been
achieved may be aided by the shift in the foreign policy of the state and thus the
military: from a tradition of isolationism to engagement in regional and
international security actions. Some argue that many in the military now
recognize that isolationism created misperceptions that enabled the Falklands/
Malvinas debacle; thus there was a desire by some within the military to
professionalize. Specifically, members of the military believed that the failure
was due in part to the diffusion of military control and resources over too many
aspects of the country, and began to express the desire to withdraw from politics
and professionalize.48 In addition, cooperation with other armed forces in UN
actions calls for not only coordination of weapons systems and troops but
doctrines.49
122 ARGENTINA

Further, advances in reform were often simultaneously undermined by back-

door political compromises. In 1985, the nascent separation of the military from
intelligence and other covert internal activities was undermined by decrees
allowing intelligence agencies to conduct secret business activities, that
consolidated military and non-military intelligence bodies, and that actually
called on the military to acquire intelligence dealing with ‘probable adversaries’.
This last decree gave the president the right to authorize the military to resolve
internal conflicts, in direct opposition to the nascent principle of excluding the
military from internal security matters. The law of national defence’s exclusion
of military participation in internal conflicts was undermined in 1986 by the so-
called firepower clause, giving it the power to act where the police or security
forces were unable to control internal conflicts. And, in 1989, Alfonsín continued
this trend by creating a new national security council to advise on the threat of
internal subversion that included as members the chiefs of staff of the armed
forces.50
This trend continued under Menem, who even before he took office stated that
he wanted to change the defence law to give the armed forces an explicit role in
internal security, which he partially accomplished by decree; a law in 1992
abolished the ban on military action in internal situations, though limited such
action to that of last resort where the security forces were overwhelmed.51 In
addition, one observer has argued that the military also retained a significant
degree of autonomy in the definition of its mission, doctrine and education.52

Budgetary concerns
Part of the platform that Alfonsín’s party ran on was the promise to cut the
military budget. As in El Salvador, the military budget in Argentina remained
high after the transition to civilian rule. While estimates of military spending are
unreliable and vary from source to source, the 1984 level of 3.3 per cent of GDP
is in fact higher than at many points during the proceso. By 1986, the budget had
been cut in half, but, as mentioned above, military units were intact. In 1995, the
military budget’s percentage of GDP was 1.7 per cent, and had increased slightly
for several years. Argentina was remarkably successful in reducing the size of its
armed forces overall: between 1983 and 1987, they shrank by 49 per cent.53

Factors enabling or inhibiting accountability

I now discuss the nature of several salient factors that may affect the level of
accountability that a regime may achieve: civil-military relations, international
factors and the duration and intensity of the conflict.
 ARGENTINA 123

Civil-military relations/balance of forces

Argentina has a long history of military intervention in politics, including coups
in 1966 and 1976 establishing military dictatorships in response to state crises.
Thus, the 1983 transitional civilian regime faced a tough challenge: reinforcing
democracy while responding to economic crises and addressing calls for
accountability for past human rights abuses. The legitimate fear was that, should
the new democratic regime find itself unable to address these challenges, the armed
forces would impose order themselves.54
Even in the absence of the doctrine of national security, outlined in Chapter 1
and discussed in the Argentine context below, the armed forces would likely
have been prone to intervention in politics. From their perspective, they held
several advantages over other actors in politics: they were better organized, more
efficient and had professional solidarity, all of which were buttressed by their
monopoly of arms. As other scholars have discussed, the legacy of praetorianism
is extensive in Argentina, and the nation was imbued with militarist values that
held that the military was a legitimate actor in politics. The result was that
democracy was shaky at best: between 1955 and 1976, no electorally empowered
president completed the legally prescribed six-year term.55 As we shall see, this
organizational perspective was soon bolstered by an ideological one.56
Like many other countries in Latin America, Argentina was heavily influenced
by the doctrine of national security. As mentioned above, the emphasis on
counterinsurgency was discussed by the CONADEP report as a precursor to
coups and repression by the military. For example, in 1964, in a speech at West
Point, the commander in chief of the Argentine army, General Ongania, stated
that the duty of the military to subordinate itself to civilians ceases when there is
a threat to authority and the basic system of republican government. Under the
influence of the doctrine, the military came to see itself as the last moral barrier
protecting the nation.57
The DNS made its way into the collective psyche of the Argentine military
largely through American, but also French, influence.58 The USA trained a
significant number of Argentine officers; this training focused heavily on anti-
subversive activities. The DNS found fertile soil in the Argentine military, which
was a coup-prone one in a country with a weak democracy at best. The coup-
makers that broke with Peron in 1955 used the DNS to carve out a new mission
for the armed forces: to defend the nation against internal and external
aggression or subversion. The period between 1959 and 1961 saw the creation of
a post-graduate course of conferences for officers on counter-subversive war and
the adaptation of the organization and procedures of the army to this mode of
warfare.59 The gestation of the DNS in the military could be said to have been
complete with General Ongania’s speech. Theorists have seen the dirty war as
merely an elaboration and actualization of the themes present in the DNS.60
Even prior to the coup, the military’s role in internal affairs had been steadily
increasing: in 1975, the government concluded that the internal security forces
124 ARGENTINA

were incapable of combating subversion adequately, and passed legislation

assigning this function to the armed forces.61 Thus, the legislation that gave the
period its name, the law of the Proceso de Reorganización Nacional, which
emphasized the role of the military in reordering the state, did not represent a
drastic break with the past. The military justified the coup by pointing to the
inability of the government to wage the battle against subversion, and held itself
up as the saviour of the nation, offering to restore values and promote efficiency,
development and security.62 The governing junta propagated what has been since
termed the myth of the dirty war: the claim that such drastic measures were
needed because of an imminent guerrilla threat. Subsequent scholarship has
suggested that, contrary to the military’s claim that insurgents numbered 15,000
combatants with an equal additional number of active supporters, insurgents
never rose above 2,000, in marked contrast to the military’s numbers, which
reached 200,000. Nonetheless, members of the military expressed the view that
Argentina was involved in a serious war against subversion; that if the threat
were not actively combated the Soviet Union would gain another toehold in
Latin America. The ‘enemy’ was demonized as leftist, not Argentinian. The
military argued that the police were unable to face this threat; hence there was a
need to work outside the normal republican institutions. To fight such an
insidious enemy, secrecy was essential and it was even acknowledged that
torture might be necessary.63
Several Argentine officers, writing in recent years, have acknowledged the
power of the doctrine in the military, arguing that it turned the Argentine military
against its own people and undermined its professionalism. The doctrine, meant
only to be used within the nation’s borders, is identified by these authors as the
source of the Proceso de Reorganización Nacional, which they claim turned the
military into an internal occupation force.64 Professionalism was further
undermined, according to these authors, because military careers began early,
before men had matured as citizens, and these young men were easily
indoctrinated with military propaganda.
The Falklands/Malvinas debacle profoundly shook the confidence of the
military regime, signalling as it did a need for restructuring and reconsidering
virtually every aspect of doctrine and practice that the DNS had enshrined. The
new government in 1983 then faced a weakened military, but one with highly
elaborated corporate interests and widely dispersed influence, as the military had
taken control of various economic bodies and become skilled at media and
information manipulation. The penetration of society and economy was so
complete that the army had taken over not only the state apparatus, but
institutions ranging from telecommunications to the Institute of Cinematography.
The Falklands/Malvinas conflict did, however, generate a rift between the
military and some of their traditional business/financial allies.65
While there was no significant military opposition force, there was strong
domestic pressure in favour of human rights prosecutions, as discussed above.
This pressure came not only from the Madres but also from support for the trials
 ARGENTINA 125

by people from all walks of life.66 While the human rights lobby may not have
been vast, two groups were linked to political parties and had great public
legitimacy and dissemination of their ideas despite a lack of real direct political
power. They posed a constant challenge to Alfonsín’s strategy of pursuing
limited accountability, issuing calls for more direct challenges to the military and
for retribution based on the wrongness of past acts, not the more limited
deterrent-based approach chosen by the regime.67

External factors
The most salient external factor in the Argentine transition appears to have been
the defeat at the hands of the British in the Falklands/Malvinas. Otherwise, in
contrast to many other countries that have undergone such transitions, neither the
USA nor the UN was actively engaged in the transition. The implications of this
relative absence during the transition of external peacebuilding actors is
discussed below.

Nature/extent of abuses and conflict

The extent of abuses appears to have had a perverse effect on the strategy of
prosecutions: that is to say, the number of those implicated in the abuses meant
that prosecution of all those implicated in past abuses was not feasible and posed
a threat to stability, such that a more limited strategy must necessarily be
employed.

Absence of external actors: can peacekeepers and

peacebuilders learn from Argentina?
At first sight, the relative absence of external peacebuilding actors, and the
complete absence of peacekeeping actors, during the Argentine transition would
seem to imply that relatively little can be learned from Argentina’s experience by
today’s external actors. Certainly, Argentina’s transition, in contrast to the others
examined in detail here, began nearly a decade prior to the publication of UN
Secretary-General Boutros-Boutros-Ghali’s Agenda for Peace, a seminal
document as the UN engaged in new approaches to peacekeeping and
peacebuilding. However, what is of interest about the Argentine case, as with a
number of the nutshell cases that also occurred before 1992, is precisely how
similar it appears to transitions during the 1990s.
Specifically, not only did attempts to impose accountability meet similar
challenges, but similar tools were deployed, and similar trade-offs engaged in,
despite the absence of external actors. This would suggest, not that external
actors are irrelevant, but that the shape of challenges remains similar.
Comparison of cases where they were present and absent allows us to control for
the possible bias of external actors towards particular approaches to the putative
126 ARGENTINA

peace/justice divide. We should, in fact, be very concerned if we detect a radical

difference in approaches to the dilemma given the presence or absence of such
actors.
The value of external actors in such situations is not necessarily that they can
or ought to make choices that are better or different to those that internal actors
would make, but that they can bring resources to bear to support the advancement
of peace and justice in a fashion consistent with local needs.

Lessons
Argentina demonstrates the nature of the accountability continuum as well as
what makes it more or less feasible. While a unique historical moment that also
briefly weakened the armed forces made transition and efforts at accountability
possible, the corporatism of the armed forces would eventually place sharp limits
on efforts at prosecution. The result was a virtual reversal of the successful
prosecutions, as well as a halt to further proceedings. Nonetheless, an accounting
of abuses was also provided by the commission of inquiry, and some important,
if incomplete, steps towards restructuring the security forces were taken. What we
learn again is that accountability and stability and reform in their fully elaborated
forms may not be possible simultaneously, but that partial measures may well be
implemented.

Notes

1 See Alejandro M.Garro and Henry Dahl, ‘Legal Accountability for Human Rights
Violations in Argentina: One Step Forward and Two Steps Back’, Human Rights
Law Journal, 8 (1987), pp. 287–94; Alison Brysk, The Politics of Human Rights in
Argentina: Protest, Change, and Democratization (Stanford, CA: Stanford
University Press, 1994), p. 1; compare Pion-Berlin, ‘To Prosecute or to Pardon?’, p.
108.
2 Garro and Dahl, ‘Legal Accountability’, pp. 300–1. See also J.Patrice McSherry,
Incomplete Transition: Military Power and Democracy in Argentina (New York:
St Martin’s Press, 1997), p. 2. But see Munck, Authoritarianism and
Democratization, p. 147 and passim.
3 Brysk, The Politics of Human Rights, pp. 12–16, 63–4.
4 Pion-Berlin, ‘To Prosecute or to Pardon?’, p. 113. See Mark Osiel, ‘The Making of
Human Rights Policy in Argentina: The Impact of Ideas and Interests on a Legal
Conflict’, Journal of Latin American Studies, 18 (1986), p. 142; Gary W.Wynia,
‘Democracy in Argentina’, Current History, 498 (February 1985), p. 53; Alejandro
Dabat and Luis Lorenzano, Argentina: The Malvinas and the End of Military Rule,
trans. Ralph Johnstone (London: Verso, 1984); David Pion-Berlin, ‘The Fall of
Military Rule in Argentina, 1976–1983’ Journal of Interamerican Studies and
World Affairs, 27, 2 (1985), pp. 55–76. See also McSherry, Incomplete Transition,
p. 6, and Munck, Authoritarianism and Democratization.
 ARGENTINA 127

5 Ronaldo Munck, Latin America: The Transition to Democracy (London: Zed

Books, 1989), p. 103. The junta dissolved between July and September,
reconstituting itself and beginning to seek reassurances regarding accountability in
November 1982, in a document that was roundly rejected: see Munck,
Authoritarianism and Democratization, pp. 147–55.
6 Brysk, The Politics of Human Rights, pp. 19–20; Pion-Berlin, ‘To Prosecute or to
Pardon?’, p. 112; Alejandro M.Garro, ‘Nine Years of Transition to Democracy in
Argentina: Partial Failure or Qualified Success?’, Columbia Journal of
Transnational Law, 31, 1 (1993), pp. 1–102.
7 Brysk, The Politics of Human Rights, pp. 65–7. Compare Osiel, ‘The Making of
Human Rights Policy’, pp. 142–3. On various political parties’ stances on military
reform, see Walter Little, ‘Civil—Military Relations in Contemporary Argentina’,
Government and Opposition, 19, 2 (1984), pp. 207–24.
8 Brysk, The Politics of Human Rights, pp. 67–8; Jaime Malamud-Goti, ‘Punishing
Human Rights Abuses in Fledgling Democracies: The Case of Argentina’, in Roht-
Arriaza (ed.), Impunity and Human Rights, p. 161. The bill passed by Congress
voiding the self-amnesty law was subsequently upheld in court: see Garro and
Dahl, ‘Legal Accountability’, pp. 305–6.
9 CONADEP was created by Decree No. 157 of 15 December 1983, Anuario de
Legislación de Jurisprudencia Argentina, 1983-B-1944. Osiel, ‘The Making of
Human Rights Policy’, p. 136; Comisión Nacional Sobre la Desaparición de
Personas, Nunca Más: Informe de la Comisión Nacional Sobre la Desaparición de
Personas (Buenos Aires: EUDEBA, 1984), pp. 473–5; Malamud-Goti, Game
Without End, p. 59.
10 CONADEP, Nunca Más; Laura Tedesco, ‘The Argentine Armed Forces under
President Alfonsín’, European Review of Latin American and Caribbean Studies,
61 (December 1996).
11 Jose Luis Diaz Coludrero and Monica Abella, Punto Final Amnistía o Voluntad
Popular (Buenos Aires: Puntosur Editores, 1987), p. 88.
12 Diaz Coludrero and Abella, Punto Final, pp. 90–3.
13 Osiel, ‘The Making of Human Rights Policy’, p. 149.
14 Diaz Coludrero and Abella, Punto Final, p. 94, discusses this law, number 23.
049; Tedesco, ‘The Argentine Armed Forces under President Alfonsin’, p. 26. See
also Kathryn Lee Crawford, ‘Due Obedience and the Rights of Victims:
Argentina’s Transition to Democracy’, Human Rights Quarterly, 12 (1990), pp. 21–
3; and Garro and Dahl, ‘Legal Accountability’, pp. 306–10; Brysk, The Politics of
Human Rights, p. 76.
15 Brysk, The Politics of Human Rights, p. 77.
16 See generally ‘Argentina: National Appeals Court (Criminal Division), Judgment
on Human Rights Violations by Former Military Leaders’, International Legal
Materials, 26 (1987), p. 317 (judgement of 9 December 1985, affirmed by the
Supreme Court, 30 December 1986). See also ‘Human Rights: Conviction of
Former Argentine Military Commanders for Human Rights Abuses Committed by
Subordinates’, Harvard International Law Journal, 27 (1986), pp. 688, 691–8.
17 Brysk, The Politics of Human Rights, pp. 79–81; Osiel, ‘The Making of Human
Rights Policy’, pp. 154–6.
18 Camps, the military commander of the Buenos Aires police, was found guilty of
600 counts of homicide and sentenced to 25 years in prison: Brysk, The Politics of
128 ARGENTINA

Human Rights, pp. 80–1; Malamud-Goti, ‘Punishing Human Rights Abuses’, p.

162. Camps and Riccheri’s sentences were reduced, while those of the inspector
and others were eliminated altogether: Crawford, ‘Due Obedience’, pp. 28–31.
19 Tedesco, ‘The Argentine Armed Forces’, pp. 28–9; Garro and Dahl, ‘Legal
Accountability’, pp. 333–4. In February 1987, a similar set of instructions was
issued to federal, non-military prosecutors, again with the ostensible aim of
speeding the process but with the effect of limiting the number of cases that could
be pursued ibid., at pp. 336–7.
20 Pion-Berlin, ‘To Prosecute or to Pardon?’, p. 124; Brysk, The Politics of Human
Rights, pp. 80–1; Tedesco, ‘The Argentine Armed Forces’, p. 29. Compare
Crawford, ‘Due Obedience’, p. 25.
21 Malamud-Goti, Game Without End, pp. 60–2, 66; Tedesco, ‘The Argentine Armed
Forces’, p. 30. The initial prosecution strategy was to pursue superiors who had
created the repression and low-level officials who exceeded their orders: see Osiel,
‘The Making of Human Rights Policy’, p. 147.
22 Malamud-Goti, Game Without End, p. 65; Tedesco, ‘The Argentine Armed
Forces’, pp. 30–31.
23 The Obediencia Debida legislation is law 23.521 of 4 June 1987; an English
translation of the relevant portions can be found in Garro and Dahl, ‘Legal
Accountability for Human Rights Violations in Argentina, pp. 337–9. Malamud-
Goti, ‘Punishing Human Rights Abuses’, p. 162; Brysk, The Politics of Human
Rights, pp. 82–3. The Supreme Court upheld the constitutionality of this law a few
weeks later; see Crawford, ‘Due Obedience’, pp. 17–18, and Garro and Dahl,
‘Legal Accountability’, pp. 339–42.
24 Tedesco, ‘The Argentine Armed Forces’, pp. 25–7. The final law included an
amendment that excepted from such an excuse those who committed atrocious
acts.
25 Tedesco, ‘The Argentine Armed Forces’, p. 32; Malamud-Goti, Game Without End,
pp. 5–6, 169–70.
26 Tedesco, ‘The Argentine Armed Forces’, p. 32; Malamud-Goti, Game Without End,
pp. 67–8.
27 Tedesco, ‘The Argentine Armed Forces’, pp 23, 32; Malamud-Goti, Game Without
End, p. 68, suggests that the officers involved in the rebellion interpreted these
civilian actions as evidence of armed subversion.
28 Tedesco, ‘The Argentine Armed Forces’, p. 33; Malamud-Goti, Game Without End,
pp. 69–70.
29 Brysk, The Politics of Human Rights, pp. 92–106. Menem was held without charge
for five years during this time. ‘New Argentine Leader Won’t Pardon Military’, St
Louis Post-Dispatch (16 June 1989), p. 15A; ‘200 Military Officers are
Pardoned in Argentina’, New York Times (8 October 1989), p. 12; Garro, ‘Nine
Years of Transition’, p. 17; James Brooke, ‘Aide to New Argentine Chief Wants
Military Trials to End’, New York Times (12 June 1989), p. A13. Citing the need
for ‘unity’, the defence minister to be, Italo Luder, expressed his support for
amnesty.
30 ‘Argentines to be Pardoned’, Los Angeles Times (19 September 1989), pt 1, p. 2.
This was despite Menem’s earlier announcement, largely viewed as an attempt to
embarrass outgoing President Alfonsín, that the latter had asked him to co-sign an
amnesty for convicted officers. James F.Smith, ‘Alfonsín Reported Seeking
 ARGENTINA 129

Amnesty Deal’, Los Angeles Times (16 June 1989), pt 1, p. 21; ‘New Argentine
Leader Won’t Pardon Military’, St Louis Post-Dispatch (16 June 1989), p. 15A;
Brysk, The Politics of Human Rights, p. 84; ‘200 Military Officers are Pardoned in
Argentina’, New York Times (8 October 1989), p. 12.
31 George de Lama, ‘Pardons Fuel the Bitterness in Argentina’, Chicago Tribune (9
October 1989), p. 1.
32 Cesar A.Chelala, ‘Has Argentina’s President Granted a Privilege to Kill?’, Chicago
Tribune (17 October 1989), p. 21. ‘The Ghost at Freedom’s Party: Giving Amnesty
to Terrorists and Torturers’, New York Times (2 April 1990), p. A16; Brysk, The
Politics of Human Rights, p. 84.
33 Brysk, The Politics of Human Rights, pp. 127–33; Andrea Malin, ‘Mother Who
Won’t Disappear’, Human Rights Quarterly, 16, 1 (February 1994), p. 211.
34 Brysk, The Politics of Human Rights, pp. 161–6.
35 Gabriel Escobar, ‘Argentines Forgo Inquest on War: Confession by Participant in
“Disappearances” Revived Issue’, Washington Post (3 April 1995), p. A14.
36 Gabriel Escobar, ‘Ex-Sergeant Details Role in Killings: Argentine Describes Army
Abuses in ’70s’, Washington Post (25 April 1995), A13; ‘Argentine Army
Apologizes for “Dirty War”’, Washington Post (26 April 1995), p. A26; Calvin
Sims, ‘Army Chief’s Admission of “Dirty War” Rips Veil From Dark Era’, New
York Times (27 April 1995), p. A5. For the text of the interview, see FBIS-LAT-95–
081 (27 April 1995) ‘Army Chief Interviewed on Dirty War’. This apology was
followed by an acknowledgement by the commander of the navy, Admiral Enrique
Molina Pico, that mistaken methods were used during the dirty war: FBIS-LAT-95–
086 (4 May 1995), ‘Navy Chief Acknowledges “Mistaken Methods” During Dirty
War’. The air force chief of staff, Brigadier Juan Paulik, made a similar statement:
FBIS-LAT-95–086 (4 May 1995), ‘Air Force Commander Regrets Dirty War
“Horrors”’. However, the joint chiefs of staff head General Mario Candido Diaz
said the confessors should not have spoken, and that ‘We have brought up
something that should have been forgotten’: FBIS-LAT-95–096 (18 May 1995),
‘Armed Forces Joint Staff Head Declines Dirty War Mea Culpa’.
37 Sims, ‘Argentine Chief’s Admission’. Just after Menem indicated that it was
possible that the Obediencia Debida legislation would be reviewed, his defence
minister announced that neither that law nor the amnesty laws were under review:
FBIS-LAT-95–082 (28 April 1995), ‘Menem May Review Abrogation of “Due
Obedience Law”’; FBIS-LAT-95–082 (28 April 1995), ‘Camilion: Annulling of
Amnesty Laws Not Being Considered’. Menem apparently authorized this and
subsequent ‘mea culpas’: FBIS-LAT-95–06 (4 May 1995), ‘Menem on Ex-
Montonero Leader’s Self-Criticism, Elections’. See also FBIS-LAT-95–085 (3
May 1995), ‘Menem: Navy, Air Force to Follow Suit in Self-Criticism’.
38 Pamela Constable, ‘Revisiting the Horrors of Their Past: Survivors Deal with Old
Pain as Argentina Comes Clean on “Dirty War”’, Washington Post (22 May 1995),
p. B1. An editorial in La Nación lauded the apology and argued that it would
enable real reconciliation to go forward: FBIS-LAT-95–084 (2 May 1995),
‘Editorial Views Value of Army Self-Criticism’; FBIS-LAT 95–112 (12 June
1995), ‘Menem on Challenges, Dirty War, Economic Crisis’; FBIS-LAT-95–080
(26 April 1995), ‘Menem: Charges of Atrocities in “Dirty War” to be Probed’.
Indeed, the reopening of debate may help generate a deeper consensus about the
past; when former Admiral Massera, who had been convicted for human rights
130 ARGENTINA

violations and pardoned by Menem, attempted to defend the military’s past

practices, he was rebuked by the army: FBIS-LAT-95–147 (1 August 1995), ‘Former
Junta Commander Massera on Repression, Dirty War’, pp. 19–20; FBIS-LAT-95–
147 (1 August 1995), ‘Army Harshly Criticizes Admiral Massera’s Remarks’, p.
20.
39 Malin, ‘Mother Who Won’t Disappear’, p. 212; Calvin Sims, ‘Retired Torturer
Now Lives a Tortured Existence’, New York Times, (12 August 1997), p. A4.
40 ‘Argentina: Ex-ruler Held in Kidnappings’, New York Times (26 November 1998),
p. A10; Clifford Krauss, ‘Spanish Judge Investigating Rights Abuses in
Argentina’, New York Times (29 November 1998), p. 4.
41 ‘Baby Theft: Argentine Hunted’, New York Times (16 December 1998), p. A17.
42 Pion-Berlin and Lopez, ‘Una Casa Dividida: Crisis, Fractura, y Conflicto en el
Ejército Argentino’, in Ernesto Lopez and David Pion-Berlin, Democracia y
Cuestión Militar (Buenos Aires: Universidad Nacional de Quilmes, 1996), pp. 92–
3.
43 David Pion-Berlin, ‘Entre la Controntación y la Adaptación: Los Militares y la
Politica Gubernamental en la Argentina Democrática’, in Lopez and Pion-Berlin,
Democracia y Cuestión Militar, p. 67. This effectively demoted the status of the
heads of each force by making them accountable to the joint chiefs. The president
assumed commander-in-chief functions under law 22.520; law 23.023 effected the
general subordination of the heads of the forces and strengthened the role of the
joint chiefs in doctrine, planning and training; see Carlos Alfredo Orgaz, La Difícil
Convivencia: Fuerzas Armadas y Sociedad Civil en la Argentina (Buenos Aires:
Nuevohacer, 1996), pp. 99–101. Moneta, ‘Fuerzas Armadas’, pp. 70–1, in Moneta
et al., 1985.
44 Stepan, Rethinking Military Politics, pp. 88–9.
45 Tedesco, ‘The Argentine Armed Forces’, p. 25.
46 ‘Mensaje del Presidente Raul Alfonsín al Congreso Argentino del 17 de Abril de
1985 Presentando el Proyecto de Ley de Defensa Nacional, in Carlos J.Moneta,
Ernest Lopez and Anibal Romero, La Reforma Militar (Buenos Aires: Editorial
Legasa, 1985), pp. 175–206 contains the proposal of the president, much of which
was eventually adopted. Marcela Donadio, ‘La Construcción de una Nueva Política
de Defensa en Argentina’, Fuerzas Armadas y Sociedad (Chile), 11, 2 (April-June
1996), p. 5.
47 Donadio, ‘La Construcción de una Nueva Política’, p. 6. Proposals for reform that
were never implemented include reform of military college curricula, and that all
officials of the rank of captain or higher take civilian postgraduate courses. See
David Pion-Berlin, ‘Autonomía Militar y Democracias Emergentes en America del
Sur’, in Lopez and Pion-Berlin, Democracia y Cuestión Militar, p. 35; however, he
simultaneously suggests that Argentina has been successful in reorienting the basic
mission of the FA, pp. 45–8.
48 Horacio Salduna, Cuadernos para la Democracia 12: La Reforma Militar (Buenos
Aires: El Cid Editor, 1985), p. 35. Deborah L.Norden, ‘Democratic Consolidation
and Military Professionalism: Argentina in the 1980s’, Journal of Interamerican
Studies and World Affairs, 32, 3 (1990), pp. 157–61, discusses the internal military
recognition of its failings: in managing the economy, in managing counter-
subversion, and in preparing for other types of war.
 ARGENTINA 131

49 Donadio, ‘La Construccion de una Nueva Politica’, p. 7; Juan A.Ferreira Pinho,

‘Evolución del Sistema de Defensa Argentino’, Fuerzas Armadas y Sociedad
(Chile), 11, 2 (April-June 1996), pp. 9–10.
50 This was despite a 1988 law exluding the military from internal security and
intelligence activities: McSherry, Incomplete Transition, pp. 139–40, 166, 223–4
and 225.
51 McSherry, Incomplete Transition, pp. 235–7, 247–8.
52 McSherry, Incomplete Transition, p. 273, does not elaborate on this, although
obviously with regard to mission a significant degree of autonomy did remain.
53 Stepan, Rethinking Military Politics, p. 77. However, it is worth noting that it may
be roughly equivalent to pre-Proceso allocations: Norden, ‘Democratic
Consolidation’, p. 165 (discussing the military budget as a percentage of GNP).
Estimates of such spending fluctuate; Pion Berlin says that spending fell 40 per cent
between 1983 and 1986; see ‘Autonomia Militar’, pp. 37–9. Such figures can vary,
of course. Further, the relevant figure may be the proportion of the national budget
devoted to the military: McSherry places that figure at 4.39, 3.23 and 2.84 per cent
for the years 1983, 1983 and 1985 respectively, a steady decline. Further, while the
number of members of the military were cut, this was achieved by slashing
conscripts, not officers, whose numbers remained steady: Incomplete Transition,
pp. 119 and 150.
54 Tedesco, ‘The Argentine Armed Forces’, pp. 21–2.
55 Lázara, Poder Militar, p. 230, also notes that in the 25 years before this period only
two had completed their terms.
56 Alain Rouquie, ‘El Poder Militar en la Argentina de Hoy: Cambio y Continuidad’,
in Peter Waldmann and Ernesto Garzon Valdez (eds), El Poder Militar en la
Argentina (1976–81) (Frankfurt: Verveurt, 1982), pp. 67–8. Like many other
militaries, the Argentine one was isolated from most of society, mixing only with
civilian elites: McSherry, Incomplete Transition, pp. 35–6; Orgaz, La Difícil
Convivencia, pp. 26–8. Other scholars note that there was a national history of
scapegoating, including that of communism, dating to at least the 1930s: Lázara,
Poder militar.
57 CONADEP, Nunca Más, p. 475. McSherry, Incomplete Transition, p. 53.
58 General Camps argued in a newspaper article in 1981 that the USA and France
were the key propagators of the doctrine: see CONADEP, Nunca Más, pp. 473–4.
See also Carlos J.Moneta, ‘Fuerzas Armadas y Gobierno Constitucional despues de
Malvinas: Hacia una Nueva Relacion Civil-Militar?’, in Moneta et al., La Reforma
Militar, pp. 20–2.
59 Lopez, Seguridad Nacional, pp. 62–3, says that between 1950 and 1965, for example,
1,375 officers were trained in the USA, and another 256 at extraterritorial bases out
of a military totalling 132,000 By 1979, some 4,017 members of the military had
attended specialized US military schools through American programmes of military
assistance: Lázara, Poder Militar, p. 172. The doctrine derived not just from the
USA, but also from the French experience in Indochina: the first inter-American
course on counter-revolutionary war was given in Buenos Aires with the
participation of two French instructors in 1961: ibid., p. 118.
60 Lopez, Seguridad Nacional, pp. 174–81.
61 Garro and Dahl, ‘Legal Accountability’, pp. 288–9.
132 ARGENTINA

62 Lopez, ‘Doctrinas Militares en Argentina: 1932–1980’, in Moneta et al, La

Reforma Militar, p. 136. The agenda indeed extended well beyond security to the
reform of education and the imbuing of Catholic doctrine. See Arnold Spitta, ‘El
“Proceso de Reorganización Nacional” de 1976 a 1981: Los Objectivos Basicos y
su Realización Practica’, in Waldmann and Valdes, El Poder Militar, pp. 79–80.
63 Daniel Frontalini and Maria Cristina Caiati, El Mito de la Guerra Sucia (Buenos
Aires: CELS, 1984), pp. 6–7, 11–36. The exaggeration of the guerrilla threat was
particularly ironic as the miltiary had proclaimed victory over them but a few years
previously: Spitta, ‘El “Proceso”’, p. 80.
64 Colonels H.P.Ballester, J.L.Garcia, C.M.Gazcon and A.B.Rattenbach, excerpts
from ‘Fuerzas Armadas Argentinas: El Cambio Necesario. Bases Políticas y
Técnicas para una Reforma Militar’, reprinted in ONUSAL and Fuerza Armada de
El Salvador (eds), Doctrina Militar y Relaciones Ejército/Sociedad (San Salvador:
ONUSAL and Fuerza Armada de El Salvador, 1994), pp. 197–201. See also Osiel,
‘The Making of Human Rights Policy’, p. 174.
65 Moneta, ‘Fuerzas Armadas’, pp. 14,20–2, 51. See also Virgilio R.Beltrán, ‘Political
Transition in Argentina: 1982 to 1985’, Armed Forces and Society, 13, 2 (Winter
1987), p. 217; Salduna, Cuadernos para la Democracia 12, p. 38.
66 Malamud-Goti, Game Without End, p. 26 and passim, although he argues that the
trials were ultimately counterproductive. On the weakness of the guerrillas, see
Osiel, ‘The Making of Human Rights Policy’, p. 167. See also Beltran, ‘Political
Transition’, p. 215.
67 Osiel, ‘The Making of Human Rights Policy’, pp. 159, 166.
 5
Honduras
Justice in semi-transition

Introduction
Honduras presents a sort of transition which is different from some of the other
cases examined here: transition from a military regime to a civilian regime,
followed by attempts at accountability, began in the absence of a strong
opposition force, civilian or military. There have been attempts to pursue
domestic prosecutions of human rights violations; attempts that have thus far
been slowed, but not completely thwarted, by amnesties and significant military
intransigence. At the same time, the regime created the office of the national
commissioner for human rights, which issued a scathing report addressing past
abuses. The military’s strength and political clout remained a significant limiting
factor affecting efforts at accountability, but the changing international
environment meant that it lost outside support and was subject to external
pressure. The results of these myriad pressures were partially successful
prosecutions, the report, the separation of the military and the police and the
creation of a new civilian police force.

A brief history
On 3 October 1963, the military of Honduras staged a coup, making it the centre
of power and only real route for political, social and even economic activity. The
first change of regime came only in 1975; it was effected solely by the high
command of the military, and substituted one officer for another. 1978 marked
the last change of military government, when a military junta was named to rule.
From then on, pressures mounted for a return to constitutionality, which was
achieved with the elections of 1980. It should be noted, however, that the
election was won by the Liberal Party, which was headed by a member of the
previous junta, General Policarpo Paz Garcia. The 1982 elections were also won
by the Liberal Party, and a formal transition to democracy took place in 1982.1
Until 1963, the police had been under civilian control. With the coup came the
repression of the civil guard and the creation of the Cuerpo Especial de
Seguridad (CES) which in 1975 became the fourth branch of the military
134 HONDURAS

and was renamed the Fuerza de Seguridad Pública (FSP). The unity of the police
and the military continued into the new ‘democratic’ era, and in fact one branch
of the police, the Dirección Nacional de Investigaciones (DNI) became one of
the more notorious human rights abusers, routinely using unorthodox means such
as torture and illegal detention to obtain information.2
The hope had been that with a politically spent military the installation of
democracy would go smoothly. These hopes were undermined by the growing
crisis in Central America and the dissemination of the doctrine of national
security, which, as has been discussed above, branded as subversive the sort of
opposition normal in democracies.3From 1980 onwards, Honduras saw a vast
increase in human rights violations, many of them perpetrated by the CIA-trained
Battalion 3–16. Some 184 people ‘disappeared’ over the course of a decade, and
numerous others, largely members of the opposition—peasant organizers, trade
unionists, teachers, students and Catholic clergy—were detained and tortured.
From 1981 to 1984, it is undisputed that Battalion 3–16 was engaged in a
systematic programme of disappearances and political murder: the Inter-
American Court of Human Rights attributed the actions of plainclothes death
squads, which executed 100–150 teachers, students, unionists and travellers, to
this battalion.4 Nonetheless, until recently, no domestic action had been taken to
confront the legacy of human rights abuses.

Tentative civilianization
Like many other nations in the region, Honduras has experienced long periods of
authoritarianism under both military and civilian governments. Under the
influence of the doctrine of national security as well as heavy external
interference because of the strategic importance of Honduras in the Nicaraguan
conflict, the country experienced thoroughgoing militarization.5 Military
domination was pervasive following the 1963 coup, even extending to control
over the police: the FSP were structurally part of the military. This meant that,
even after relinquishing formal political power, the military retained significant
control over Honduran society. While the military handed over power formally
in 1980–82, its domination over society continued even under civilian rule.
Recently former president Roberto Suazo Cordova has strongly asserted that he
had no control over the military during his presidency of 1982–86, that military
control was total.6
Further, two amnesties passed in 1987 and 1991 continue to pose significant
obstacles to the pursuit of justice against military members responsible for
human rights abuses and disappearances. The first amnesty was one-sided,
benefiting only agents and officials of the military tied to the repression and
disappearances in the 1980s, and is not generally raised as a defence. The second
amnesty, passed in July of 1991, was a wider more unconditional amnesty,
benefiting members of the military involved in human rights violations as well as
leftist political exiles seeking guarantees before returning to the country. A
 HONDURAS 135

prominent criticism of this amnesty is that it was the result largely

of negotiations between governments involved in the regional and domestic
crisis —Honduras, Cuba and Nicaragua—and left out important groups such as
human rights NGOs.7
In June 1992, the government created the office of the Comisionado Nacional
Para la Protección de los Derechos Humanos (CNDH). In December 1993, Dr
Leo Valladares Lanza issued a report, Los Hechos Hablan por Sí Mismos (The
Facts Speak for Themselves), detailing human rights abuses and in particular
disappearances perpetrated by the military. The report gives a list of the
disappeared, as well as discussing some representative cases. It provides some of
the testimony of the victims or their families in their own words. The report also
attempts to place the domestic crisis in the context of external involvement,
including the staging of contras by the USA from Honduran soil, the US
involvement in the training of Battalion 3–16, and the role of the Argentinean
Batallón de Inteligencia (Intelligence battalion) 601 in training Honduran
officers in what is ominously referred to as the ‘Argentinian method’ of
repression.8 The report finally seeks to identify the units within the security
forces responsible for the disappearances, concluding that they were largely the
DNI and special intelligence units such as Battalion 3–16.
The new president inaugurated in 1994, Carlos Robert Reina, pledged a
‘moral revolution’ and an end of the armed forces’ impunity from prosecution
for human rights violations. He pledged to abolish the draft and to transfer
authority for the police force to a civilian ministry. And, in July 1994, the first
military officer was convicted for human rights violations.9

The tentative beginnings of transition: the Reina regime

As in many countries when periods of military domination come to a close, the
question of accountability is not the only thorny, political question. Also of key
significance is the future role, structure and budget of the armed forces. In
Honduras, even as prosecutions of a few key figures responsible for
disappearances and other abuses have gone forward, the issue of separating the
police from the armed forces has been a controversial political issue.
In January 1994, when President Reina was inaugurated, the audience booed
the armed forces chief, General Luis Alonso Discua. The demand for human rights
is relatively new in Honduras: the public has been vocal only since the end of the
Cold War, but their demands have seen some results. One of Reina’s first acts
was to initiate steps to fulfil his promise to end the practice of forced military
recruitment, no easy task as the legislature feared military power.10 Reina also
had to face the demands of civilian pressure groups, in particular those
advocating human rights, that the police be separated from the military and
placed under civilian control. This process, like the prosecutions, has gone
forward slowly. In May 1994, the government created the office of the special
prosecutor for human rights.11 In late 1994, General Discua acknowledged that
136 HONDURAS

the military bore some responsibility for the disappearances, but pointed to the
Cold War in its defence.12
The new government also created the Comisión de Alto Nivel para la
Prevención y Lucha contra la Violencia y la Delincuencia (or ad hoc
commission). The commission presented its final report and recommendations
after two months of work to President Reina in May 1995. Its recommendations
included, inter alia, that the police be transferred to civilian control, that the
penal code be reformed to include crimes such as kidnapping, torture and forced
disappearance, and that the country ratify various international human rights
conventions.13
From the beginning, the process of accountability was impeded by military
intransigence. In June 1995, the special prosecutor for human rights, Sonia
Marlina Dubon, publicly denounced the military, stating that it had burned files
pertaining to the 184 disappearances of the 1980s. Dubon reported that the military
claimed that the material had been burned five years before by unknown persons.14
Public pressure, domestic and international, on the issue of the disappearances
increased with the publication of a series of articles in the USA on the
clandestine actions of Battalion 3–16. In response, the military adamantly denied
involvement in the disappearances, insisting that it did not possess any files
pertaining to disappearances. The head of the armed forces, General Discua,
acknowledged that he had been the first commander of Battalion 3–16, and stated
that during that time there had existed two contenders or sides in what he
referred to as a war, adding that decisions were not taken unilaterally, but with
the approval of all of the authorities.15
In July 1995, ten military officers were indicted on charges of kidnapping and
torturing six university students in April 1982, but there were delays while
judges reviewed the government’s evidence. General Discua declared the
support of the institution of the military for those charged, while refusing to
guarantee that those charged would appear in court. Meanwhile, the human
rights commissioner participated in an investigation of a residence adjacent to
the police academy that had reportedly served as the centre of operations of
Battalion 3–16, finding evidence that files of the death squad had been
removed.16
On 1 August, the government human rights commissioner, consistent with the
expressed wishes of President Reina, asked the USA for information on the role
of Honduran army officers in the disappearances of the 1980s.17 Because of the
role of the CIA in training the notorious Battalion 3–16, as well as the American
role in working with the Honduran military and in training Nicaraguan contras in
Honduras, the declassification and release of documents by both governments
have been requested. However, their release has been slow and frequently
unhelpful because of the blacking out of information deemed sensitive in those
documents that have been released.18
In response to this highly publicized request for information, the military went
on alert and planned a secret meeting that resulted in a campaign of intimidation.
 HONDURAS 137

On 2 and 4 August, the army sent tanks into the streets of the capital in protest,
and General Discua warned of retaliation if his men were treated unfairly. The
tanks returned to their bases later, having reminded the populace and
government of the army’s power. The army then resorted to other means to
influence politics: it sponsored a television advertisement justifying its actions in
the 1980s.19 Death threats have forced the head of the human rights commission
to send his children into exile, and have been used to intimidate other human
rights activists and even members of the Honduran judiciary.20 While the army’s
power is undisputable, so is the increased stability of democracy, and the legal
institutions for prosecution of rights abusers. Some former victims of torture
have even returned to testify. Nonetheless, many Hondurans, including former
president, Rafael Leonardo Callejas, expect the trials to ‘create big conflicts in
Honduran society’.21 One sign of the impact of the military’s pressure may be
President Reina’s subsequent statement that the officers charged in the
disappearances would be granted amnesty if their crimes were considered
‘political’.22
These hesitant steps towards accountability were further impeded by death
threats made against the judge handling the case of the ten officers in late 1995.23
Nonetheless, judicial attempts to air the truth went forward. In a case attempting
to reveal the truth regarding a disappearance and murder, the ex-chief of military
intelligence for the military was called to testify for 18 hours. In the same case,
the judge announced his intent to call as a witness the current inspector of the
FSP, Colonel Alexander Hernandez, whom the officer had named as the second
head of Battalion 3–16. Unfortunately, that would prove impossible, as
Hernandez was already a fugitive from justice in the case pertaining to the six
students. The judge in the latter case issued orders for the capture of Hernandez
and two other fugitives in October. The deputy director of the FSP claimed that
Hernandez was on vacation and that he was unsure whether he (Hernandez)
could be found in the country.24 In February 1996, eight members of the military
and 11 civilians were indicted for the murder of two persons who disappeared in
1982: they included former chief of the FSP, Castillo, as well as other high-level
officers of the FSP, including Hernandez. This indictment was based on evidence
recently exhumed by an Argentine forensics team.25 A further sign of continued
impunity may be the election in October 1995 of the new commander in chief of
the armed forces, Colonel Mario Raul Hung Pacheco, who was implicated in
human rights abuses that took place in 1993 when he headed the FSP.26 In this
selection, in keeping with tradition, the legislature chose from a trio of
candidates put forth by the military.
Some small steps towards accountability were taken in November 1995, when
Discua and the former president of the congress, Efrain Bu Giron, were
questioned in relation to the disappearances of the 1980s, and in particular
regarding the three fugitives. Discua, in speaking of Hernandez, said only that
the fugitive was at the disposal of his defence lawyers. Bu Giron blamed past
state security policies on the former head of the military, General Alvarez
138 HONDURAS

Martinez, whom he said had a phobia about communism.27 Hernandez, still the
salary-drawing inspector-general of the FSP while fugitive from an
arrest warrant, was finally officially relieved of his post in November. The FSP
and the military continue to plead ignorance regarding the whereabouts of the
fugitive officers.28
As the question of past abuses has been discussed, so has the future role and
structure of the security forces. Human rights advocates have been concerned
both with the elimination of abusive units, whether of the police or military, but
also with the permanent separation of the police and military to aid the
prevention of future abuses. While the famously abusive DNI was closed in June
1994, there have been reports that some of its ex-agents have since gone to work
for the police.29 Human rights advocates have strongly advocated the separation
of the FSP from the military as a crucial step towards strengthening civilian
control. Beginning in 1995, progress towards that separation was made, though it
has yet to be completed.
In September 1995, constitutional reforms were approved creating a new
police body, and an executive decree was issued approving the transfer of funds,
personnel and so on from the FSP to the new police organ. The reforms to
articles 272, 273, 291 and 293 replace military domination of the police with
cooperation by two autonomous bodies.30 The reforms also establish that the
police are to be professional, purely civilian and apolitical. The congress also set
up commissions to draft the new ley orgánica of the police and the police code.
While not directly objecting to the civilianization of the police, the
inspectorgeneral of the FSP, Colonel Hernandez, not yet a fugitive, announced
that he would resign if the transfer to civilian hands didn’t ‘respect the hierarchy’
of the institution, making clear his desire to head the new police.31
While various drafts of a new ley orgánica for this body were circulated,
approving one was a time-consuming process. The main point of contention in
the debate over the ley organica was whether the new investigative unit, the
Dirección de Investigación Criminal (DIC) should be part of the police or not.
The DIC was created to replace the notoriously abusive Dirección Nacional de
Investigaciónes (DNI), and some have argued that uniting it with the police
would be a dangerous step backwards, replicating a military, vertical hierarchy.
They claimed further that, while the role of the new police is to serve and protect
members of society from crime, the role of the DIC is to look for evidence for
the sake of prosecution. The military, in particular, was an outspoken advocate
of a unified police.32 Thus, while the creation of a new civilian police has been
agreed upon and even begun, important features of the new institution were hotly
disputed.
At the same time, hesitant steps were being taken in the human rights trials to
bring the ten officers charged to accountability. In September, the judge handling
the cases announced the end of the summary phase of the process, remitting files
on the cases to the supreme court. In October, the judge handling the cases
ordered the detention of three of the accused, who would promptly become
 HONDURAS 139

fugitives.33 In response, defence lawyers reiterated their claim that the two
previous amnesties protected their clients, General Discua announced that
members of the armed forces would not come before the tribunal, and
the inspector-general of the FSP threatened to sue for defamation anyone linking
him with the disappearances.34
In January 1996, the supreme court issued a historic ruling. It reversed the
decision of the appellate court that the amnesty of 1991 protected the officers,
instead returning the case to the lower court for further inquiry. The supreme court
found that the lower court judge, Roy Medina, had the power to find and analyse
the facts and then determine whether the amnesty applied. Thus, rather than the
amnesty becoming a bar to prosecution, the judge would have the discretion to
determine how broad it was.35 The incoming head of the military, General Mario
Hung Pacheco, commenting on the trials and the fugitives, followed in the
footsteps of his predecessor, claiming that he didn’t know the whereabouts of the
fugitives but also adding that he was not seeking to find them.36
Meanwhile, one of the fugitive officers held a television interview in which he
acknowledged having commanded the unit that captured the six students, though
denied knowing what happened to them. Further, he defiantly declared that he
had nothing to regret, pointing as have many other members of the military to the
existence of a two-sided war, and calling for the reconciliation of the ‘Honduran
family’. He named as groups with links to subversives agricultural and workers’
organizations.37 In April, despite the six-month evasion of the courtroom by the
fugitive officers, another step was taken in the quest for accountability: a plan
was laid out for Canadian judges to hear and authenticate the statements of ex-
members of Battalion 3–16 who resided in Canada.38
In June 1996, Judge Celino Aguilera issued an order for the capture of 13
more officers, in addition to the already fugitive Hernandez: nine military
members and five former DNI officers. These orders arose in connection with
the exhumation the previous November of the bodies of two men detained by the
DNI in June 1982 and found dead five days later.39 While one officer,
Lieutenant-Colonel Aben Claros Mendez, voluntarily turned himself in, others
remain fugitives from justice. In a separate human rights development, a
journalist announced that he would sue the state of Honduras, alleging an attack,
torture, false imprisonment and forced exile perpetrated upon him by the military
in 1982.40
In July, a plan was effected whereby military members under indictment could
be detained while awaiting trial in military installations rather than prisons. This
plan was subsequently upheld by the supreme court. Various observers,
including the human rights commissioner, saw this decree as a concession
brought about by the supreme court’s fear of the military. It should not be
forgotten, however, that in January the supreme court had demonstrated a new
level of independence in declaring that the lower court did have the competency
to proceed in trials against the officers accused of the kidnapping and attempted
murder of the six students.41
140 HONDURAS

The arrival of General Hung at the beginning of 1996 as the new head of the
military brought restructuring and new appointments with ambiguous import for
human rights and civilianization. On the positive side, Hung nominated a police
officer to head the FSP, a move that would lead to the first police officer, rather
than military man, as head of the police in 32 years. On the other hand, Hung
nominated a former head of Battalion 3–16 as his proxy for head of the army. In
response to Hung’s announcements of restructuring, heads of human rights
organizations were dubious, pointing out that most high-level posts had been
given to former members of Battalion 3–16.42 Similarly, Hung rejected the
president’s claim to the right to name the minister of defence and pressed ahead
with his own selection, though this was a battle that he did not ultimately win.43
Nonetheless, a positive note was struck when Hung promised to reach agreement
on the transfer of the police to civilian control by the end of the year.44
In a significant step backwards, the outgoing head of the armed forces, General
Discua, was named as Honduras’ alternate delegate at the UN Security Council.
Human rights organizations protested this choice vigorously, pointing to
Discua’s role in the founding of Battalion 3–16 and thus his implication in the
perpetration of severe human rights abuses. In response to criticism, in May the
president observed that there had been no proof that Discua had committed any
crime.45 Impunity would continue in other ways into 1997: as late as June the
fugitive officials continued to draw salaries from the armed forces.46
There were other advances against the traditional prerogatives of the military
in 1996. In February, President Reina bucked tradition by ignoring the three
candidates proposed by the military in his selection of the new minister of
defence. In response to questions about this unprecedented step, President Reina
responded simply that the president could not be obligated by subordinates.47
Nonetheless, the military would continue to reject proposals that the chief of the
armed forces be replaced by the minister of defence: Reina had announced that
after Hung Pacheco’s departure there would be no successor.48 Another key step
was the subordination of the budget of the military to the congress, where in the
past it had been set by decree. In the past, the military had not had to submit to
the treasury ministry an account of expenses or of funds received; it presented only
a general budget proposal. The hope was that this change would increase the
transparency of the military.49
The civilianization of the police continued to be a key political issue in 1996.
While the September 1995 constitutional reforms had raised hopes on this front,
the question of the relation of the investigative unit to the rest of the police soon
became salient. Shortly after the approved reforms, the military circulated a
proposal that suggested, among other things, that the police be led by military
officials (though those trained as police), that there be a system of social security
for the police subsidized by the state, and that the new body be called the national
police, not the national civilian police (PNC). Further military proposals were
that the new police be under a public security secretariat rather than under the
Ministerio Público (public ministry), and that members of the existing police
 HONDURAS 141

should not be evaluated when they applied to become members of the new
police. Last but not least, the military proposal called for the unification of the
police with the investigative unit, the DIC, as well as other units such as the anti-
drug and forest guard bodies. These proposals represented a significant step back
from full civilianization, one the military would have a difficult time
promoting.50 Not only was the military suggesting maintaining as head of the
police a non-civilian, it was advocating the unification of police and investigative
roles, which given the disreputable history of the DNI raised strong objections
from human rights advocates. As the national ombudsman for human rights, Leo
Valladares Lanza, put it, the unification would be a total regression because the
DIC should look for evidence in the name of society and the police should
protect society from crime.51
Despite the absence at this point of a new ley orgánica for the police, the board
handling the transfer of goods, budget and personnel to the new police began
work in May 1996.52 The military lost a key goal on its agenda in June with the
creation of a new anti-drug police body to be placed under civilian control,
despite the vehement objections of General Hung.53
The shape of the new police continued to be a matter of dispute in 1997. While
the formal transfer to civilian control was made in October 1997, true
civilianization could not occur until foundational legislation was in place, and
this legislation remained a matter of heated debate. In April, the FSP submitted a
proposal for the ley orgánica of the PNC to the legislature. Under this proposal,
the PNC would be under the auspices of a ministry of public security, headed by
a civilian. While the police were to be united with various other police units such
as the border police under this proposal, it would fall to the legislature to
determine the location of the DIC.54
In the legislature the leading parties, the National Party and the Liberal Party,
both advocated variants on the unified police proposal, but various minority
parties banded together to prevent the approval of any law without due
consideration of the opinions of all political elements. The human rights group
representing the families of the disappeared was particularly outspoken in
opposition to a unified police.55 In August 1997, legislation was drafted to enable
a Junta Interventora (advisory board) to oversee the transfer of the police, with
the mandate to direct, evaluate and purify the corps.56
The debate over the ley orgánica of the new police dragged on into 1998. In
February, the designated drafters delivered a proposal that would create a unified
police under a ministry of security. Within that ministry would be established
two subsecretariats, one for investigation and one for the police. The draft law
further established that the head of the DIC would be a civilian. The law also
authorized the ministry of security to create special police bodies in areas such as
drugs and transit. Additionally, the law provided for a new academy for the
police, to be under the auspices of the police subsecretariat, which would be
responsible for the technical and professional formation of the new police.57
142 HONDURAS

This proposal was strongly denounced by the commissioner for human rights,
as well as a consultative group to the president, the Foro Ciudadano de Seguridad
Pública (citizen forum on public security). The Foro Ciudadano denounced the
plan for a unified police as the brainchild of the military, claiming that it sought
to replicate the vertical, centralized nature of the military in the police, which
ought to be civilian and democratic. It argued that the investigative function
should remain in the Ministerio Público, rather than being transferred to that of
security, and pointed to other Central American states as exemplary.58
The Foro further objected that the police have not been properly ‘purified’,
and that individuals with questionable ethics were aspiring to top posts in the new
police.59 The body created to effect purification, the Junta Interventora, has,
according to many, carried out only a superficial cleansing, in part as a result of
its limited powers; even some officials of the FSP have suggested the need for
stronger mechanisms. In March 1998, however, the Junta was to present a list of
names of corrupt officials and human rights violators to the president, Carlos
Flores. It remains to be seen whether an effective purification can be carried
out.60 While objections to the new law were strenuous, positive features included
making the head of the new ministry of security a civilian, and the police
officially a civilian, professional, apolitical body. And although the police and
DIC were placed in the same ministry, they were to be headed by separate
subsecretariats. The law also created a national police council which is to include
representatives from, inter alia, the supreme court, the commissioner for human
rights, and ‘civil society’.61
In late 1997, another significant step was taken with the imprisonment of
Colonel Suarez Benavides for two 1982 disappearances.62 Further, in 1998
several key events occurred in the trials of the military officers charged with
kidnapping and torturing six university students. In February, in the case of Juan
Blas Salazar, the amnesty was applied in his favour. On the positive side,
however, rather than being a bar to the progress of the case and the outing of the
truth, the amnesty was applied only after the facts had been established.
Nonetheless, the application of the amnesty was a blow to attempts at
accountability; one that the commissioner for human rights intimated might not
be constitutional.63
Accountability through the legal process is not the only way that a
government might seek to compensate victims of human rights abuses. The
government of Honduras also began setting up an inter-institutional commission
to provide indemnification for relatives of the disappeared of the 1980s. The
commission would be made up, inter alia, of representatives of the ministries of
foreign relations and justice, and of the commissioner for human rights.64
Victims were also given access to greater information regarding the abuses of the
past, with the release in late 1998 of a declassified, though heavily redacted,
report regarding the extent of knowledge that the CIA had regarding the abuses of
the Honduran military.65
 HONDURAS 143

In late 1998, the legislature also finally passed the ley organica for the new
police. The final version of the law remained largely unchanged from the version
of the spring, with its virtues and drawbacks. The legislation clearly established
the professional, apolitical, impartial nature of the police, and the requirement
that they demonstrate respect for human rights and the rule of law. A national
advisory council was established to supervise and advise the police, and an
internal affairs division was created to investigate allegations of police
misconduct. The DIC is part of the police but, while hierarchically and
administratively under the secretary of state for security, it is to function under
the public ministry. Education will be handled by an education section, an
academic council and two police academies. The police, already constitutionally
separated from the military, should request help from the latter only under certain
emergency circumstances, and ex-military members were barred from top police
positions.66 Even before the passage of the law, efforts at transferring the police
authority had begun, as discussed above. These were further aided by the US
ICITAP project, which trained DIC instructors and made plans to aid the new
police in the selection of officers and interpretation of police law.67

Trade-offs of transition
In this section I briefly assess the degree to which change has occurred in any of
the three issue areas of primary concern to security forces: budgetary levels,
institutional reform and accountability for human rights abuses.

Budget
The FSP budget rose significantly in 1995 and 1996. It was increased by 12
million and 25 million lempiras, respectively. The purpose of the increase was to
raise salaries and pay for equipment, to help combat a rising level of crime.68 A
significant step towards civilian control of the military budget occurred in 1996
when it was made subject to the approval of the legislature. In a public demand
for a higher budget in April 1996, the military’s director of civilian affairs
complained that it received only 0.6 per cent of the national budget, in particular
calling for greater funds to feed recruits; it should be noted that his claim of the
percentage of the budget the military commands appears to be a gross
underestimate. In 1997, the national legislature approved an increase of 118
million lempiras for the budget of the armed forces, an increase of 36 per cent
for the following year. However, it should be noted that part of the increase was
due to an increase in educative voluntary military service. The 1998 budget
allocated around one-third the amount spent in the previous year; however, that
is no guarantee that spending would not exceed allocations.69
144 HONDURAS

Institutional reform
The biggest blow, at least in theory, to the armed forces in Honduras, has been
their constitutional separation from the police and civilian attempts to reassert
control over military budgets. However, the military continued to dominate the
selection process for their own leader. In addition, concerns have been raised
that the new civilian police body has not been properly purified as
yet. Nonetheless, not only did President Reina make good his promise to
eliminate forced military recruitment, the realm of activities that volunteers can
engage in may become remarkably broad: according to a new proposal, they
would include service in aid of health, literacy or forest protection.70 In late 1998,
the legislation establishing the new civilian police was finally established,
institutionalizing its separation from the military, its apolitical nature, and so on.

Accountability
In this arena, too, there have been successes and setbacks. While numerous
indictments have been handed down and trials have gone forward against high-
ranking members of the security forces and former members of Battalion 3–16,
some key individuals have remained fugitives, apparently with the collusion of
the security forces. In 1996, a story in the Washington Post alleged that the
Honduran military officers, along with other officers of the region, had accepted
the loss of political power in exchange for impunity in the matter of human
rights and silence regarding both personal and institutional finances. General
Hung denied these charges.71

Relevant factors: analysis

Balance of forces
Honduras has a long history of military rule and military intervention in politics.
As in other countries in the region, the doctrine of national security was
disseminated in military training, although some observers argue that it did not
take hold very strongly.72 Nonetheless, the military ruled directly following the
1963 coup, and continued to have a hold on society through its own power and
that of the FSP.
The effects of the doctrine and of military dominance were compounded by
US aid to the armed forces, which included the training of Battalion 3–16,
according to recently declassified documents. The full extent of US involvement
in training may not be revealed with a fuller disclosure of documents, demanded
not just by the national commissioner for human rights but by the president as
well.73
Furthermore, not only did the military have a strong hold over politics, the
challenge it faced from guerrilla groups was quite minimal. Reports of guerrilla
 HONDURAS 145

activities have been of small-scale activities involving only tens of combatants at

a time, and these groups have been easily quelled by the armed forces.74
Whatever the underlying source of the nature of civil-military relations in
Honduras, it cannot be denied that the military dominated over a weak state and
weak civil society.75 This continued autonomy and influence in the political sphere
has meant that, even where change either initiated by or tolerated by the military
may occasionally exceed its expectations, the reality or wide perception is that the
military may rein in reform when it wishes.
It is worth noting that the Honduran military modernized relatively late: the
professional military school was founded only in 1952.76 As one observer has
pointed out, the military developed institutionally during the Cold War, and was
deeply affected by the fear of the spread of communism. This was fostered in
particular by the Cuban revolution in 1959 and the subsequent declaration of
communism there in 1961. This fear of ideological threat from within meant that
those who simply questioned or criticized were viewed as enemies of the state,
blurring the line between internal and external security. Such blurring of roles
was undoubtedly exacerbated by the militarization of the police force beginning
with the 1963 coup. Since the founding of the FSP in 1975, the police have been
headed by a military officer, despite the availability of experienced police
officers for the post.77 The military continues to have a great deal of autonomy;
further, despite formal steps to civilianize the police, no such transfer has as yet
been achieved and many important details remain unresolved. Thus the
distinction between internal and external security continues to be blurred.

International involvement
The US involvement in training the notorious Battalion 3–16 was only one of the
ways that the USA influenced the shape of the Honduran military: aid and
dissemination of the aforementioned doctrine of national security also played a
role in forming its ideology. The USA has played less of a role in the transition
to greater civilian authority and accountability, although undoubtedly the waning
of the Cold War that inspired American interest in the region opened up the
space for civilians to encroach on military authority. The USA has not, however,
taken a very proactive role; until recently it was instead a passive party that did
not advocate or aid the transition. It has only recently begun to facilitate police
reform via ICITAP. Other international actors, too, have played virtually no role,
beyond the early judgement of the Inter-American Court of Human Rights and
pressure from NGOs (but not, notably, from international organizations).

Length and intensity of conflict

While Honduras laboured first under direct military rule and then under violence
and repression despite a formally civilian constitution, for more than 30 years, its
history differs otherwise from many nations in the region. Repression was
146 HONDURAS

widespread and military prerogatives broad, but there were ‘only’ 184
disappearances in that country. This may actually have made the pursuit of
prosecutions easier: the narrower scope of possible prosecutions meant fewer
members of the security forces were threatened and thus there was possibly a
smaller threat to stability. This should not be overstated: as we have seen, the
military has been fairly outspoken in defence of its own.

Conclusion
In Honduras, as in the other countries examined here, we see the divergent
effects of the factors I emphasize. Military strength and intransigence posed a
significant threat to attempts at accountability. However, the changing
international environment and the relatively small number of disappearances may
have facilitated attempts at accountability. The regime seems to have engaged in
a delicate set of trade-offs, pursuing accountability and revelation of past abuses
as well as police reform, but accepting a significant increase in the military
budget.

Notes

1 Leticia Salomon, La Violencia en Honduras 1980–1993 (Tegucigalpa, Honduras:

Centro de Documentación de Honduras, 1993), pp. 35–6. The text of the 1982
constitution sets forth a democratic form of government, at least grants nominal
control over the size of the armed forces to the congress, and articulates a set of
rights that is broad, but also sets forth conditions under which these rights may be
suspended. See ‘Constitución de la República de Honduras’, available at: http://
www.georgetown.edu/LatAmerPolitical/Constitutions/Honduras/honduras. html.
2 Salomon, La Violencia, pp. 39–41.
3 Salomon, La Violencia, p. 36.
4 Amnesty International, Honduras: Civilian Authority-Military Power; Human
Rights Violations in the 1980s (London: Amnesty International, 1988), pp. 4–5;
‘President to Ask U.S. to Open Files on CIA “Operations”, FBIS-LAT-95–116 (16
June 1995), p. 23; Anne Manuel, ‘Death Squad Debris: Honduras Struggles with
the Legacy of CIA-trained Rights Abusers’, Washington Post (28 November
1993). Argentina also played a key role in the training of Honduran security forces
that may have contributed to human rights abuses. See ‘Siguen Demandas de
Desclasificación de Documentos’, Los Hechos Hablan por sí Mismos (hereafter
Los Hechos), 19 (August 1996), p. 5. On recently declassified documents on this
matter, see ‘Pentagon Entrenó a Oficiales del 3–16’, Los Hechos, 27 (May 1997), p.
7. While the numbers of disappeared are fairly small compared to the vast abuses in
El Salvador and elsewhere, they made a strong impression on this tiny nation of 5
million people. The government of Honduras was found to be accountable for the
involuntary disappearance of a student, Manfredo Velasquez. See Inter-American
Court of Human Rights, Judgement in Velasquez-Rodriguez case, International
Legal Materials, 28 (1989), p. 291; Manuel, ‘Death Squad Debris’.
 HONDURAS 147

5 Comisionado Nacional de los Derechos Humanos (CNDH), El Difícil Tránsito

Hacía la Democracia (Tegucigalpa, Honduras: Comisionado Nacional de los
Derechos Humanos, 1996), p. 11.
6 The ex-president’s assertion should not be taken entirely at face value, taken in the
context of a public race by all parties to evade responsibility for the disappearances
of the 1980s. Nonetheless, Cordova, arguing that he had been little more than a
figurehead, displayed a number of letters to officials of the military and FSP
regarding complaints of human rights abuses which were apparently never
answered: ‘Ni Civiles ni Militares Admiten Cuota de Responsabilidad en
Desapariciónes’, Los Hechos, 8 (September 1995), p. 10.
7 The text of the amnesty of 1991 can be found in executive decree No. 87–91’, at
http://www/us.net/cip/cdh/amnistia.htm. Decree 87–91 granted amnesty to those in
prison for political crimes: CODEHUCA, Informe Trimestral Sobre la Situación de
los Derechos Humanos en Centroamerica (September 1995), p. 62; ‘El Laberinto
de la Amnistía’, Los Hechos, 10 (November 1995), pp. 1–2.
8 The commission was established by executive decree No. 26–92 of 8 June 1992,
and reformed by executive decree No. 51–92 of 8 September 1992. The office was
formally incorporated into the constitution and implementing legislation enacted in
February and October of 1995, respectively. See CNDH, El Díficil Tránsito, pp. 85–
9; Comisionado Nacional de los Derechos Humanos, Los Hechos Hablan por Sí
Mismos (Tegucigalpa, Honduras: Editorial Guaymuras, 1994).
9 John Otis, ‘New Civilian President has Honduran Military on the Run’, San
Francisco Chronicle (1 April 1994), p. A17.
10 Reina’s election and successful inauguration is itself important, as he was a lawyer
with a background in human rights, and to the left of centre. In response to Reina’s
plans to abolish forced recruitment, Discua suggested sarcastically that the
president must have been ‘without advisers’ when he decided to take that action.
The change in the constitution’s article 276 was perhaps aided by his electoral
mandate and massive demonstrations against forced recruitment: Otis, ‘New
Civilian President has Honduran Military on the Run’.
11 Otis, ‘New Civilian President has Honduran Military on the Run’; Manuel
Gamero, ‘Honduras:¿ Despertó La Sociedad Civil?’, Tendencias, 36 (December
1994-January 1995), p. 18; Comité de Familiares de Detenidos Desaparecidos en
Honduras (COFADEH), ‘Vision General de la Situación de los Derechos Humanos
en Honduras’, in Comisionado para la Defensa de los Derechos Humanos
(CODEHUCA), Informe Trimestral Sobre la Situación de los Derechos Humanos
en Centroamerica (December 1996), p. 43.
12 CODEHUCA, ‘Destellos Bajo las Sombras’ (San Jose, Costa Rica: CODEHUCA,
May 1995), p. 19. In December, General Discua stated in regard to the
disappearances of the 1980s: ‘Fue nada más un resultado, un producto de la guerra
fría, un producto de la aplicación de la política de seguridad nacional que se aplicó
en los anos 80.’ This defence would be repeated by his successor, General Mario
Hung Pacheco, who asserted that the disappearances were part of the past, and
pointed to the Cold War as a defence: ‘Jefe Electo de FFAA: Desapareciónes
Forman Parte del Pasado’, Los Hechos, 10 (November 1995), p. 5.
13 ‘Comisión AD-HOC Presenta Recomendaciónes al Presidente’, Los Hechos, 4
(May 1995), p. 8.
148 HONDURAS

14 ‘Denuncia Fiscalia: Militares Quemaron sus Archivos’, Los Hechos, 5 (June 1995),
p. 5.
15 ‘Reacciónes Públicas: Militares’, Los Hechos, 5 (June 1995), pp. 8–9. These
somewhat contradictory statements suggest that Discua perhaps sought to lay the
foundation for a superior orders defence. Rumours circulated of an internal military
report on past abuses drafted by an indicted and fugitive officer but it was not
released; the military denied the official nature of the document. See ‘Esperan que
Informe Arroje luz Sobre Abusos de Militares’, in La Nación (Costa Rica) (15
February 1996) at http://www.nacion.co.cr/CentroAmerica/Archivo/1996/ febrero/
15/honduras.html# 1.
16 Ginger Thompson, ‘Trial of 10 Military Officers may be at least a Month Away’,
Baltimore Sun (13 August 1995), p. 9A. The special prosecutor has gone ahead
with these cases despite a decision by a commission named by the supreme court
that forced disappearance was not formally a crime and the officers should be
punished for other crimes: COFADEH, ‘Vision General’, p. 49. The text of the
indictment can be found in ‘Acusaciónes y Denuncias Presentadas por la Fiscalia
General de la República de Honduras, en los Casos de Violaciónes a los Derechos
Humanos’, at http://www.us.net/cip/cdh/Acusacio. ‘Armed Forces Chief to Support
Accused Military Officers’, FBIS-LAT-95–148 (2 August 1995), pp. 15–16;
Reina, however, articulated his confidence that the military would not rebel: see
‘Reaffirms Loyalty of Military’, FBIS-LAT-95–150 (4 August 1995), p. 16;
‘Ministerio Público Sienta a Diez Oficiales en el Banquillo’, Los Hechos, 6 (July
1995), pp. 8–9.
17 Honduras requested information not only on the activities of Battalion 3–16, but on
CIA covert operations more generally: ‘President to Ask U.S. to Open Files on CIA
“Operations’”, FBIS-LAT-95–116 (16 June 1995), p. 23.
18 For an account of the requests and resultant release of information, see Leo
Valladares Lanza and Susan C.Peacock, In Search of Hidden Truths: An Interim
Report on Declassification by the National Commissioner for Human Rights in
Honduras (Tegucigalpa, Honduras: Comisionado Nacional de los Derechos
Humanos, 1996), pp. 3–5.
19 ‘Honduras Tanks in Streets’, Houston Chronicle (3 August 1995), p. 29; Tim
Johnson, ‘Trials May Lay Bare a Dark Time of Terror in Honduras’, Houston
Chronicle (17 August 1995), p. 25; ‘Tank Mobilization in Capital Viewed as
Threat’, FBIS-LAT-95–150 (4 August 1995), p. 15. The request for information
relating to the acts of Battalion 3–16 would be particularly disturbing to the
military because, according to human rights advocates, members of that battalion
now occupy 30 per cent of key posts in the military: see COFADEH, ‘Vision
General’, pp. 48, 50. Discua denied that the military intended to intimidate anyone
by sending tanks into the streets: see ‘Gen. Discua on Charges Against Officers’,
FBIS-LAT-95–150 (4 August 1995), pp. 17–18. Other alleged acts of intimidation
include threats against judges and attempts to influence victims: CODEHUCA,
Informe Trimestral (September 1995), p. 62; Ginger Thompson, ‘Tainted Honduran
Army Turns to TV Ads’, Baltimore Sun (9 August 1995), p. 1A.
20 ‘Amenazas Contra Funcionarios’, Los Hechos, 4 (May 1995), p. 6. Human rights
advocates claim that the campaign of intimidation and propaganda is ongoing: see
COFADEH, ‘Vision General’, pp. 43, 46–7. See also COFADEH, ‘Informe Sobre
la Situación de los Derechos Humanos en Honduras’, in CODEHUCA, Informe
 HONDURAS 149

Cuatrimestal Sobre la Situación de los Derechos Humanos en Centroamerica (May

1997), pp. 48–50. According to Bertha Oliva de Nativi, the head of COFADEH, the
group of relatives of the detained or disappeared, the campaign of intimidation
against NGOs and non-military government organizations continues even as the
military is slowly relinquishing control. Author’s interview with Ms Oliva de Nativi,
(Tegucigalpa, 24 November 1997).
21 Most recently, a reported coup plot may or may not have been linked to objections
of military members to prosecution. See ‘Honduras Derails Army Plot’, Sun
Sentinel (Fort Lauderdale) (30 July 1996), p. 6A; Johnson, ‘Trials May Lay Bare a
Dark Time of Terror in Honduras’. Indeed, General Discua, while voicing support
for accused officers, has promised to follow the law, though he was ambiguous
about whether some accused officers would appear for trials: ‘Armed Forces Chief
on Support to Accused Military Officers’, FBIS-LAT-95–148 (2 August 1995), pp.
15–16. ‘Gen. Discua on Charges Against Officers’, FBIS-LAT-95–150 (4 August
1995), pp. 17–18. The possibility of military uprisings has repeatedly been raised,
despite President Reina’s attempts to calm fears abut them: ‘Reaffirms Loyalty of
Military’, FBIS-LAT-95–150 (4 August 1995), pp. 16–17.
22 ‘President Comments on Amnesty, Praises Prosecutor’, FBIS-LAT-95–156 (14
August 1995), pp. 18–19.
23 ‘Amenazan de Muerte a Juez Roy Medina’, Los Hechos, 9 (October 1995), p. 6.
24 COFADEH, ‘Exhumaciónes en Honduras: Sus Efectos Practicos’ (COFADEH
publication, 1996), p. 2 (case of Nelson McKay). ‘Ex-jefe de Inteligencia Militar
Comparece ante Juez’, Los Hechos, 9 (October 1995), p. 11. Despite being a
fugitive from justice, Hernandez would retain his post and continue to draw a
salary for some time: ‘Profugos de la Justicia Tres Oficiales de las FFAA’, Los
Hechos, 9 (October 1995), p. 12. General Discua denied that the military was
rebelling against civilian authority in reaction to the arrest orders, but reiterated
that the judiciary should address the applicability of the amnesty decrees soon. In
separate statements, Discua declared that the defence of these officers was their
own concern, not that of the military, which some officers felt to be unfair,
observing that those being prosecuted had been following orders: ‘Oficiales
Presionan a su Jefe por Defensa de Procesados’, Los Hechos, 9 (October 1995), p.
13.
25 ‘Militares y Civiles Acusados de Muertes’, in La Nación (Costa Rica) (15 February
1996), at http://www.nacion.co.cr/CentroAmerica/Archivo/1996/febrero/15/
honduras.html#1; ‘Juicio a Militares por Violaciónes a los Derechos Humanos’, at
http://www.codeh.hondunet.net/juicio.htm.
26 ‘Congreso Nacional Ratifica al Jefe de las Fuerzas Armadas’, Los Hechos, 9
(October 1995), pp. 4–5.
27 ‘Autoridades Declaran Sobre Caso de los Desaparecidos’, Los Hechos, 10
(November 1995), p. 10.
28 ‘Policía Destituye a Inspector Profugo’, Los Hechos, 10 (November 1995), p. 11.
While the DIC has made some attempts to locate the fugitives, Hernandez’s lawyer
threatened to seek the criminal prosecution of the heads of the DIC should they
seek to execute the orders of capture. Oliva de Nativi, like many human rights
activists, is sceptical of this claim, asserting that the FSP has closed ranks to help
the fugitives evade capture, and that the DIC doesn’t pursue the fugitives in earnest
out of fear. Author’s interview with Oliva de Nativi.
150 HONDURAS

29 ‘Policía Reforzo Filas con ex Agentes de la DNI’, Los Hechos, 6 (July 1995), p.
13.
30 ‘Septiembre: Los Contradictorios Pasos para la Democracia’, Los Hechos, 8
(September 1995) pp. 1–2.
31 ‘Congreso Nacional Aprobo Traspaso de Policía a Civiles’, Los Hechos, 8
(September 1995), pp. 8–9.
32 Comisionado, El Difícil Tránsito, pp. 65, 105. While this might seem to be an
arcane distinction, much has been made of this distinction because of the abusive
history of the police; many human rights groups and others seem to fear that a
unified police would enable a back door remilitarization of a new civilian police.
33 Larry Rohter, ‘Honduras Confronts Military Atrocities of the 80’s’, New York
Times (21 December 1995), p. A10.
34 ‘Caso de los Desaparecidos: Oficiales no se Presentan a Tribunales, Pero la
Demanda Prosigue’, Los Hechos, 8 (September 1995), p. 12.
35 ‘Corte Suprema de Justicia Emite Historico Fallo’, Los Hechos, 12 (January 1996),
p. 4. The defendants claimed the court had been influenced by a leftist bias; the
military had warmly greeted the earlier ruling, arguing that it would provide for
reconciliation and unity: ibid., p. 5.
36 ‘Cambios al Interior de las Fuerzas Armadas bajo una Nueva Jefatura’, Los Hechos,
12 (January 1996), p. 12.
37 ‘Capitan Prófugo se Presenta ante Medios de Comunicación’, Los Hechos, 13
(February 1996), pp. 8–9. The captain alleged the occurrence of a number of
terrorist acts, and a larger number of bank assaults that formed their financial
support.
38 ‘Oficiales Prófugos Cumplen seis Meses de Evadir la Justicia’, Los Hechos, 15
(April 1996), p. 9. In May of 1997, information including statements made by ex-
3–16 members was provided to Honduras by Canada: ‘Canada Envia Información
Sobre Ex-miembros del 3–16’, Los Hechos, 27 (May 1997), p. 8.
39 ‘Ordenan Captura contra 13 Oficiales Mas de las FFAA’, Los Hechos, 17 (June
1996), pp. 8–9. See also ‘Juicio a Militares por Violaciónes a los Derechos
Humanos’.
40 ‘Anuncian Nueva Demanda contra Estado Hondureño’, Los Hechos, 17 (June
1996), p. 10.
41 Comisionado, El Dificil Tránsito, pp. 71–2, 101, 108; ‘Juicio a Militares por
Violaciónes a los Derechos Humanos’; ‘Corte Ratifica auto Acordado que
Beneficia a Militares,’ Boletín Informativo del Comisionado Nacional de Derechos
Humanos de Honduras (hereafter Boletín Informativo) (30 September 1997), at
http://www. us.net/cip/cdh/970930.htm. Further judicial independence was
demonstrated in late 1997 when the president of the supreme court rejected the
thesis that the fugitive military officers were afraid of judicial instability, stating
that it was simply because they did not want to present themselves: ‘Corte Suprema
Garantiza Seguridad Juridica a los Militares Profugos’, but compare the critique of
administrative inefficiency in the judiciary in Poder Judicial es Deficiente y
Precaria su Administración’, in Boletín Informativo, 3, 709 (17 December 1997),
available at http://www.us.net/cip/cdh/971217.htm.
42 ‘Cambios al Interior de las Fuerzas Armadas’, p. 13. Shortly thereafter, in July
1996, four officers were arrested, accused of plotting to oust Hung Pacheco: see
‘Honduras Derails Army Plot’, Sun Sentinel (30 July 1996), p. 6A. ‘Cupula Militar
 HONDURAS 151

Señalado como Responsable Desapariciónes Forzadas’, Los Hechos, 13 (February

1996), pp. 6–7, gives a list of new appointees and their history with the notorious
battalion. For example, in 1996, the head of the FSP was alleged to have been
involved in a variety of killings in 1988 when leading the 7th infantry battalion.
43 ‘Presidente Desmiente Falta de Autoridad’, La Nación (Costa Rica) (15 February
1998), at http://www.nacion.co.cr/CentroAmerica/Archivo/1996/febrero/15/
honduras.html#1.
44 ‘Cambios al Interior de las Fuerzas Armadas’, p. 13.
45 ‘Ex Jefe de las Fuerzas Armadas al Consejo de Seguridad de la ONU’, Los Hechos,
12 (January 1996), p. 16; ‘COFADEH Reitera Protesta por Nombramiento de Ex-
jefe de las FFAA en ONU’, Los Hechos, 16 (May 1996), p. 6.
46 ‘Fuerzas Armadas Siguen Pagando Sueldos a Oficiales Profugos Denuncia Fiscal
General’, Boletín Informativo, 3, 577 (10 June 1997), at http://www.us.net/cip/ cdh/
970610.htm.
47 Comisionado Nacional, El Difícil Tránsito, p. 28; ‘Por Primera Vez el Titular del
Ejecutivo Nombra a su Ministro de Defensa’, Los Hechos, 13 (February 1996), p. 3.
48 “‘Despues de Hung Pacheco no Seguira Nadie: Reina”, and Cargo de Jefe de las
FF.AA. no sera Sustituido por Ministro de Defensa’, Boletín Informativo, 3, 637
and 639 (4 and 8 September 1997), available at http://www.us.net/cip/cdh/
970904.htm and /970908.htm.
49 Comisionado Nacional, El Difícil Tránsito, pp. 27–8.
50 ‘¿Traspaso o Reciclaje de la Nueva Policía?’, Los Hechos, 16 (May 1996), pp. 1–2;
‘Se Reaviva Discusion Sobre Traspaso de la Policía a Civiles’, Los Hechos, 16
(May 1996), pp. 4–5; ‘Inician Proceso de Traspaso de Policía’, Los Hechos, 16
(May 1996), p. 3.
51 ‘Se Reaviva Discusion Sobre Traspaso’, p. 5.
52 ‘Inician Proceso de Traspaso de Policía’, p. 3.
53 ‘Civiles Dirigiran Policía Antinarcóticos’, Los Hechos, 17 (June 1996), p. 3. In a
move not likely to increase his credibility, General Hung, in response to a proposal
for conditioning lending on military reduction, accused the USA of wanting to
eliminate the militaries of Honduras and other developing countries: ‘Militares
Temen Eliminación de las FFAA’, Los Hechos, 17 (June 1996), p. 3.
54 ‘FFAA Traspasará la Policía al Sector Civil el 21 de Octubre’, Boletín Informativo
(8 October 1997), at http://www/us/net/cip/cdh/971008.htm; ‘Policía Militar
Presenta su Propio Proyecto de Policía Civil’, Los Hechos, 26 (April 1997), p. 13.
55 The head of the organization, Bertha Oliva de Nativi, argued that the goal of a
unified police was to control the investigative process and protect the rest of the
armed forces: ‘Inician Concertación de la Ley Organica de la Policía’, Los Hechos,
28 (June 1998), p. 9.
56 ‘Junta Interventora Hará el Traspaso de la Policía’, Boletín Informativo, 3, 623 (15
August 1997), at http://www.us.net/cip/cdh/970815.htm.
57 ‘Una Sola Policía Establece el Proyecto del Congreso’, Tiempo (25 February
1998), p. 8. An outline of the key points of the proposal can be found in ‘La Tesis
Sobre Policía del Congresa Nacional’, El Heraldo (4 March 1998), p. 16.
58 Eduardo Lopez, ‘Congreso Intenta Acatar Voluntad de FF.AA. de una Policía
Vertical’, Tiempo (25 February 1998), p. 6.
152 HONDURAS

59 Leonarda Andino, ‘Junta Interventora no ha Depurado la Policía’, El Heraldo (5

March 1998), p. 15; ‘Foro Ciudadano Analizará Proyecto de Ley de Policía para
Proponer Reformas’, La Tribuna (6 March 1998), p. 10.
60 Thelma Mejia, ‘Depuración, la Otra Espina en la “Nueva” Policía’, El Heraldo (8
March 1998), pp. 28–9. It was the junta that finally put a stop to the continued
drawing of salaries by the three fugitives: ibid., p. 29.
61 Dagoberto Rodriguez, ‘DIC Formará Parte de la Policía Nacional’, La Prensa (25
February 1998), p. 11A. In a fine splitting of hairs, the proposal stipulates that both
the police and the DIC will belong ‘administratively’ to the ministry of security,
but that ‘operationally’ the DIC will be an auxiliary organ of the Ministerio
Público. For the text of the part of the proposal relating to the DIC, see ‘La
Dirección de Investigación Acatará Ordenes de la Fiscalia’, El Heraldo (26
February 1998), p. 4.
62 Benavides, as director of migration at the time, was charged with responsibility in
the disappearances of a Nicaraguan and a Honduran near the border following their
detention: “‘FFAA me Dejaron Solo, soy Inocente” declara Suarez Benavides’, and
‘Coronel Suarez Benavides en la PC’, Boletín Informativo, 3, 632 and 634 (27
August and 1 September 1997), at http://www.us.net/cip/chd/ 970827.htm and
970901.htm.
63 Eduardo Lopez, ‘Delitos de les Humanidad son Imprescriptibles’, Tiempo (4
February 1998), p. 4.
64 ‘Gobierno de Honduras Indemnizará a Familiares de los Desaparecidos’, Los
Hechos, 27 (May 1997), p. 8.
65 Tim Golden, ‘Honduran Army’s Abuses were Known to C.I.A.’, York Times, (24
October 1998), p. A3.
66 Congreso Nacional, ‘Ley Orgánica de La Policía’, Decreto No. 156–98 (on file
with current author), articles 2, 4–8, 10–11, 16, 22, 25, 31 and 44–8.
67 US Department of State, ‘ICITAP Honduras Program Overview for Fiscal Year
1998’, on file with current author.
68 ‘Amplian Presupuesto de la Fuerza de Seguridad Pública’, Los Hechos, 8
(September 1995), p. 9.
69 ‘Militares Siguen Demandando mas Presupuesto’, Los Hechos, 15 (April 1996), p.
12. The officer further complained that there was a lack of recruits in this new era
of a volunteer military, suggesting a minimum wage that would be appealing. The
claim cannot be accurate as the military appears to command 1.6–2 per cent of the
total GDP: International Institute of Strategic Studies (IISS), The Military Balance
1998 (London: IISS, 1998), p. 225; ‘Más de 100 millones Aumenta Presupuesto de
las Fuerzas Armadas’, Boletín Informativo, 3, 710 (18 December 1997), available at
http://www.us.net/cip/cdh/97128.htm.
70 ‘Servicio Militar Sigue en Proceso de Definirse’, Los Hechos, 19 (August 1996), p.
10.
71 ‘Denuncia Washington Post: Militares Hondurenos Negocian su Influencia
Política’, Los Hechos, 17 (June 1996), p. 7. There is now a dispute over the
ownership of a military investment fund worth some million, as well as allegations
of excessively high salaries in some businesses belonging to the military.
72 Gabriel Aguilera, El Fusil y El Olivo: La Cuestión Militar en Centroamerica (San
Jose, Costa Rica: Departamento Ecumenico de Investigaciónes, 1989), p. 30.
 HONDURAS 153

73 ‘Pentagono Reconoce que Entrenó al Batallón Hondureño 3–16, Responsable de

Asesinatos en Decada de los 80’, La Prensa (23 May 1997), at http://
www. laprensahn.com/natarc/9705/n23001.htm. Further information was made
publicly available in congressional hearings in May 1998, which dealt with access
to government information as well as the specific facts of the Honduran
experience. See United States House of Representatives, Subcommittee on
Government Management Information and Technology, hearing, ‘Access to
Government Information and H.R. 2635, the “Human Rights Information Act’” (11
May 1998), available at http://www.fas.org/sgp/congress/hr051198/index.html and
linked sites containing text of testimony by individuals ranging from Valladares to
experts at the CIA and national archives.
74 Amnesty International, Honduras: Civilian Authority—Military Power pp. 10–11.
75 Aguilera argues that in fact the doctrine of national security did not take hold; that
the 1969 war with El Salvador led the military to question the doctrine and the role
of counterinsurgency, as they were thus underprepared for a conventional external
conflict, but that the result was nonetheless the expansion of military power
domestically, including its role in the social sphere: El Fusil y El Olivo, pp. 30–4.
76 Aguilera, El Fusil y El Olivo, p. 29.
77 Salomon, La Violencia, pp. 37–39.
 6
South Africa
The exchange of truth for justice

Introduction
South Africa presents an interesting case where the exchange of truth for justice
is made explicit, in the structure of the commission of inquiry and the provision
for amnesty in the interim constitution. As with other countries, both enabling
and limiting factors were at work. International condemnation of apartheid may
have slowly pushed the regime towards change, and the change in the
international environment with the fall of communism may also have affected
the regime’s threat perceptions. International observers from the UN and
elsewhere played a role, but a much more limited one than elsewhere. Domestic
opposition in the form of, inter alia, the African National Congress (ANC) and
the Inkatha Freedom Party (IFP) formed a perennial threat to the legitimacy,
though not the survival, of the apartheid regime. Also, many have suggested that
the duration of the repression and rebellion produced exhaustion and war-
weariness that made the situation ripe for transformation. While the outgoing
regime negotiated its own obsolescence, it made sure to protect many of its civil
servants, and of course the famous amnesty that meant prosecutions could
proceed only against those who didn’t confess. On the other hand, advances
would be made on other fronts such as the reform of the doctrine and institutions
of the security forces, as well as the alteration of the racial content of the military
and police. Like most other countries in transition, South Africa found itself
somewhere in the middle of the accountability spectrum, able to achieve some
measures of justice (with the outing of the truth and the much rarer prosecution)
and some measures of reform.

A brief history
In South Africa, as in the other nations discussed in this book, the task of coming
to terms with the legacy of the past has been a difficult and highly politicized
one, perhaps all the more so because of the length of white rule and apartheid,
and the ways that apartheid discrimination and repression penetrated South
African society. The political transition and new multiracial government
 SOUTH AFRICA 155

provided for amnesties as well as the revelation of the truth and reparations
to victims, but did so in rather unique ways: with individual rather than blanket
amnesty, given only in exchange for admissions of guilt.
In this chapter, I discuss briefly the history of repression and resistance under
apartheid before turning to the transition initiated by the white government. I
then discuss the arrangements for amnesty and truth-telling in the context of the
politics of transition. Finally, as I have done in my analyses of other cases, I
discuss the internal and external considerations that appear to affect the feasible
political outcomes.

Forty-plus years of apartheid

While racially discriminatory laws had existed in South Africa even before the
National Party (NP) came to power in 1948, under that government the
legislation extended, becoming more systematic and severe. Security forces were
given broad powers of arrest and to detain political opponents without trial. The
regime’s dependence on the security forces and granting of wide latitude to them
only increased with time and the vigour of the opposition.1 Laws were passed
outlawing marriage between whites and non-whites, and barring extra-marital
intercourse between whites and other racial groups. Opposition anti-apartheid
groups such as the African National Congress were outlawed in 1960 under the
Unlawful Organizations Act, shortly after the Sharpeville massacre, which
resulted in increased anti-apartheid activism. This act caused many groups to
leave the country or go underground.2
Activism was renewed in the late 1970s and early 1980s, following an uprising
in 1976 in Soweto after police shot schoolchildren who were peacefully
demonstrating, and bolstered by the creation of an umbrella anti-apartheid
organization, the United Democratic Front (UDF). Increased protests prompted
President P.W.Botha to give the security forces greater authority and declare
successive states of emergency between 1985 and 1989 imposing strict security
laws; domestic opposition was viewed as terrorism.3 Troops were placed in black
townships, and violence escalated with both wide-scale detentions and torture as
well as assassinations of anti-apartheid activists commonly attributed to the
government. Hundreds of organizations were banned, as were some newspapers;
the ‘consolidated list’ gagged some 500 people, who could not be quoted. The
political transition began when Botha was replaced by F.W.de Klerk.4

The politics of transition

In February 1990, de Klerk announced the end of the ban on anti-apartheid
parties such as the ANC; he also lifted a variety of other restrictions, and
announced the limiting of detentions to six months and a halt to hangings.
Perhaps of greatest political and symbolic importance, de Klerk freed Nelson
Mandela, the ANC head who had been imprisoned for 27 years. In June, the four-
156 SOUTH AFRICA

year state of emergency was ended, and the ANC announced the end of its
struggle to defeat apartheid via arms. While these events took the world by storm,
they were based on a series of secret talks begun in 1985 with Mandela while he
was still imprisoned: the talks covered a range of issues, from the renunciation
by the ANC of violence to the release of political prisoners and the shape of
future political arrangements.5
There are various interpretations for de Klerk’s actions leading to negotiations
with the ANC and other opposition groups. Some argue that the internal political
stalemate, combined with economic problems brought on by sanctions and
domestic instability, forced a recognition of the need for reform. A second
possibility is that something of a normative sea change had taken place within
the South African elite, generated by greater contact with liberal ideals in the
international sphere, that led its members to conclude that apartheid was not
morally defensible. Still another possibility is that the NP was manipulated into
unplanned compromises by the dynamics of the negotiations. A final
interpretation would argue that de Klerk’s actions were strategic ones based upon
his understanding of the political realities: that is, he initiated reform out of a
recognition that it was inevitable, and in order to maintain some control over its
shape.6
Meetings between the ANC and the government in May and August led to
pledges for the release of political prisoners, though the government was slow to
fulfil this pledge.7 In February 1991, de Klerk initiated the elimination of key
apartheid legislation. Negotiations continued through 1991, and in September the
government, the ANC and the IFP signed the national peace accord, though this
marked the beginning rather than the end of the negotiation process. The major
players then agreed to participate in a negotiating forum, the Convention for a
Democratic South Africa (CODESA). While the ANC, Inkatha and the NP did
participate, along with 15 other parties, many other South African parties did
not, and many that did take part in the negotiations were not representative but
rather government creations.8
The CODESA meetings led to the signing on 20 December of the declaration
of intent, in which the parties agreed that CODESA would initiate the process of
drafting a non-discriminatory constitution, and agreed to the principles of
universal suffrage and respect for fundamental human rights and civil liberties, to
be protected by a bill of rights and impartial judiciary. Nonetheless, the parties
remained far apart on the question of whether a new constitution would arise
largely from negotiations or from a more representative process.9
While de Klerk initially suggested that a transitional government might rapidly
be installed, he then retreated and instead called for a referendum among white
voters regarding his policies of transition. Of the 87.6 per cent of voters who
participated in the March 1992 referendum, 68.7 per cent approved, which at
least theoretically gave de Klerk a mandate to continue on his path in negotiations.
A significant governmental attempt at investigating abuses10 came as the
negotiations were taking place, in response to black-on-black violence in
 SOUTH AFRICA 157

townships that many attributed to a so-called third force controlled by

the government and aimed at discrediting the ANC and IFR. The government
established a commission, headed by respected jurist Richard Goldstone, then the
head of South Africa’s highest court, and later the chief prosecutor at the
International War Crimes Tribunal for the former Yugoslavia. The commission
had few resources, but was generally respected as objective. The Goldstone
commission report was released in May 1992, finding no evidence of government
involvement in the township violence and pinning the blame on the ANC and
IFP; the commission held investigations between 1992 and 1995.
Negotiations in May 1992 (CODESA 2) stalled again over de Klerk’s
insistence that certain clauses of the constitution be approved by 75 per cent of
the constituent assembly, which would have ensured that the NP could retain
some control over outcomes. In response, the ANC launched what it called a
mass action campaign.11 A massacre of ANC supporters by IFP members in
Boipatong on 17 June 1992, provoked the ANC to withdraw from the negotiating
process and assign partial blame to government agents who allegedly aided the
IFP killers. The Goldstone commission agreed to investigate this incident as
well. In the context of rising ANC-IFP violence, the government and ANC
agreed to a meeting in October, giving rise to the belief that both parties were
interested in a negotiation process and political outcome that excluded other
actors such as the IFP.
The October 1992 summit was repeatedly delayed over disputes about power-
sharing and federalism. The historical overcentralization of power led to calls for
decentralization via federalism; there was also a desire to enhance minority
rights and self-determination, which some thought could be enhanced by
federalism as well. However, the latter link would appear to hold only in a region
like KwaZulu-Natal, a majority Zulu region. Naturally, the IFP, enjoying the
strong support of Zulus in the region, advocated strong federalism in the hopes
of achieving self-determination for Zulus, a goal the ANC opposed. The
resultant provisional constitution would contain federal features, albeit limited
ones. According to some, a key shift in the ANC’s thinking regarding the
allocation of power may have been effected by an August article by Joe Slovo
advocating a ‘sunset clause’ enforcing power-sharing for a fixed period of
time.12
In response to the continued violence and stalled negotiations, Mandela
proposed UN involvement, requesting that the UN Security Council send a
special envoy to investigate the sources of the violence. Former US Secretary of
State Cyrus Vance was sent as that envoy; the result was that UN observers were
sent to monitor and support the national peace accord. By September, some 50
UN monitors were sent. Other sources of observers and support included the
World Council of Churches, the European Community, the Organization of
African Unity (OAU) and the Commonwealth. The Goldstone commission
helped the observers as well as using them as sources for its own
investigations.13 The secretary-general of the UN commended the commission’s
158 SOUTH AFRICA

work and recommended that it look into other specific incidents and be given
greater powers by the government; his report in August also recommended that
an amnesty be granted for political offences.14
This recommendation came in the context of a wider debate about amnesty.
Goldstone welcomed the suggestion, stating that such an amnesty would enable
the revelation of greater information because people would not fear prosecution
if they came forward. The ANC sought the release of all anti-apartheid activists;
the government sought a blanket amnesty for all members of the security forces
who had acted against the ANC. The NP attempted to link tightly the treatment of
the two sides. While the NP had initially refused to release prisoners who had
committed common crimes such as arson or murder for anti-apartheid groups, a
change in the law altered its stance: the new regulations defined political crimes
as ones in support, as well as opposition, of apartheid.15 Thus the NP became
eager to advance a blanket amnesty to protect its own with the benefit of the new
classification, and offered to release political prisoners as a trade. On 13 August
1992, the ANC rejected this proposal, arguing that such an amnesty could be
granted only by an interim government, and with the support of the people. The
ANC argued that with any amnesty there must also be a full revelation of the
abuses by security forces.16 The ANC also rejected the linkage of the question of
amnesty with the status of political prisoners.
On 16 October de Klerk introduced a bill that would give the executive broad
powers to grant amnesty, though he continued to claim that the government had
not, to his knowledge, engaged in crimes or fomented the township violence. He
claimed, instead, that the goal of the bill was to level the playing field between
the government and opposition groups. The bill, however, was defeated in the
South African parliament: the White and Coloured houses passed the bill, but the
Indian house would not. However, de Klerk then turned to the president’s
council, a body to resolve disputes among the three segregated houses of
parliament, and which was dominated by the NP. It was through this rarely used
body that de Klerk achieved the passage of the Further Indemnity Act on 9
November 1992.17 The act empowered the president to grant amnesty to those
who ‘advised, directed, commanded, ordered or performed any act with a
political object’18 before 8 October 1990, though the president was given
discretion to expand the time period. The law did not formally create a blanket
amnesty, but rather created a national council on indemnity, which heard
individual applications for amnesty in complete secrecy. Those granted amnesty
would be immune from criminal or civil action, and their names would be
published, though not information pertaining to the nature of their crimes or their
victims.
The ANC adamantly opposed what it perceived to be a self-pardon by the
government and stated that, should the party come to power, it would not execute
the legislation. However, in a subsequent November document, Strategic
Perspectives, which discussed the possibility of power-sharing with the NP, the
party acknowledged that some sort of a general amnesty for security force
 SOUTH AFRICA 159

members and civil servants would probably be necessary lest they disrupt the
transition. Under the amnesty law, de Klerk commuted nearly 100 sentences and
amnestied a number of former security officials.
During the debate over the amnesty bill, the ANC released a report by its own
commission into abuses committed by the ANC itself in refugee camps in
neighbouring countries. The report, released in August 1992, confirmed that
there had been widespread torture and other abuses, and recommended that the
ANC cleanse itself of the perpetrators. The commission further suggested that, as
its own membership was majority-ANC, a more independent commission ought
to be appointed. Further, the commission recommended that the victims receive
compensation as well as psychological and other types of assistance. Mandela’s
response was to pledge to examine the recommendations and take action where
needed, and to affirm that the ultimate responsibility lay with the leaders and
their failure to monitor the situation better.19 In January 1993, the ANC created a
new commission to examine alleged abuses in its detention centres in exile. The
report in August found that two senior ANC officials had violated the human
rights of detainees: Joe Modise, the commander of the ANC military force, and
Jacob Zuma, a former intelligence chief. Other security officials were found to
be involved in serious violations including torture, execution and arbitrary
detention. The commission recommended that the ANC not only apologize to
victims of these abuses, but create a compensation agency for victims of abuse
and the families of those who died. Further, it recommended keeping relatives of
those who went missing in the camps informed of the investigations into their
whereabouts, and granting former detainees the right to rejoin the ANC. Mandela
promised to take the recommendations seriously, and many saw this as an
important act of disclosure. The NP argued that it was proof of the organization’s
inability to run the nation itself, and argued that the ANC should hand over these
cases to the judiciary, though it did not offer to do the same for NP agents
accused of serious human rights violations. Further, in August there were reports
that the state security council had ordered the destruction of classified documents
in order to hide past abuses.20
In late 1992, as the negotiations seemed to stall, a new position was reportedly
floated within the ANC camp by Joe Slovo, one which would allow for
temporary concessions to whites during the transitional period. In February
1993, the national executive committee of the ANC approved a five-year
transitional government with representation of sufficiently small parties that the
ANC would effectively end up in a temporary power-sharing arrangement with
the NP. This shift arguably helped pave the way for a return to the negotiating
table in March and April. CODESA was replaced by the Multi-Party Negotiating
Process (MPNP) in March 1993: this body consisted of a plenary body and
various committees to address issues ranging from the protection of rights during
the transition to the creation of a transitional executive council (TEC).21 In
September, the TEC was established to create conditions conducive to a free
election, to be held the following April.22 The TEC was made up of subcouncils
160 SOUTH AFRICA

to handle various issues and institutions, including one to oversee the security
bodies by creating an inspectorate and an independent complaints body, and one
to oversee defence and create a binding code of conduct for the military.23
On 26 November 1993, de Klerk announced his desire for a government of
national unity that would be completely representative by the first half of 1994. A
few days later, the chief of the KwaZulu homeland and head of ANC rival
Inkatha Freedom Party, Mangosuthu Buthelezi, announced plans for a new
constitution that would lead to the secession of the Natal province which
included KwaZulu. The political situation was further destabilized by the
declaration of war on all white South Africa by the military wing of the Pan-
Africanist Conference (PAC), which carried out attacks on a steakhouse and a golf
club. In response, the government cut off talks with the PAC. Tensions were
exacerbated in the right wing of the South African political spectrum as well
when, on 19 December, de Klerk suspended or sacked 23 military officials, six
of whom were generals, who had allegedly perpetrated acts aimed at thwarting
the peace and reconciliation process. This act may well have been a concession
to the ANC, which had called for a purge in the military, but it also risked
driving whites into the arms of extremists. Despite the heightened political
tensions, the negotiations moved tentatively forward. In October, Mandela and
de Klerk were jointly awarded the Nobel Peace Prize for their work towards a
negotiated transition.
On 18 November 1993, the negotiations finally produced a new constitution
that all but one of the parties still participating in the negotiations endorsed; the
IFP and several right-wing parties did not endorse it. The interim constitution,
which provides for majority rule but also provides protection for minority
rights,24 was to remain in force until a new parliament, to be elected in April
1994, could draft a new one. Several key issues are addressed in this interim
constitution. The constitution provides protection for the jobs of white civil
servants and military staff. However, it should be noted that this does not mean
that they cannot be legally fired, but rather protects them as a group. This
decision was apparently advocated by Joe Slovo of the Communist Party as part
of a compromise over the thorny issue of power-sharing. In particular, the status
of the Public Service Commission was enshrined in the transitional constitution:
its actions in reviewing appointments were seen as protection of the old
bureaucratic order.25
The constitution also enshrined a set of fundamental rights and created a
constitutional court to interpret these rights. The court has the power to
invalidate as inconsistent with the constitution legislative and executive acts.
Greater rights were specifically articulated for persons who are arrested and
detained. Other rights must be further interpreted by the court, which was
immediately called upon to determine whether the death penalty was consistent
with the right to life.26
 SOUTH AFRICA 161

The question of amnesty

During the negotiations, the question of amnesty was one of the most
controversial. As is well-known, the ANC frequently voiced opposition to any sort
of blanket amnesty. However, the stakes may have been raised when the police
commissioner and the ex-head of intelligence approached the ANC, offering the
promise that the security forces would ‘guarantee stability’ throughout the
transition in exchange for an amnesty.27 The interim constitution addresses the
issue of past abuses of human rights, in particular the question of amnesty. The
text states:

These [violations] can now be addressed on the basis that there is a need for
understanding but not for vengeance, a need for reparation but not for
retaliation. In order to advance such reconciliation and reconstruction
amnesty shall be granted in respect of acts, omissions and offenses
associated with political objectives and committed in the course of the
conflicts of the past.28

Parliament is further directed to enact a law setting a cut-off date and creating the
mechanisms, which may include tribunals, to deal with amnesty. This provision
created a constitutional commitment that would bind the successor regime. This
promise was exacted by the security chiefs from the ANC in exchange for a
promise of stability and the establishment of a truth commission.29 The
subsequent regime had to acknowledge some form of amnesty, but in order to
‘restore the honour and dignity of the victims’ this was not a blanket amnesty for
perpetrators but contingent on their admissions.30
In the April 1994 elections, Mandela and the ANC rose to power, and created
a government of national unity that included de Klerk and Buthelezi as cabinet
members. The UN, in response, terminated the mandate of the observer mission
a few days later. The Further Indemnity Act had been the prior regime’s attempt
to address the issue of past abuses, but was viewed by many as nothing more
than an attempt by that regime to cover up, rather than reveal, the truth in pursuit
of reconciliation. The newly elected ANC was bound by the provision in the
interim constitution promising some form of amnesty, but claimed to want to
seek reconciliation without obscuring the past. This intention would appear to be
illustrated by the structure and procedure of the Truth and Reconciliation
Commission (TRC).
The commission was established after a year of debate in 1995 by the
Promotion of National Unity and Reconciliation Act. It was created to
investigate and report on events between 1 March 1960 and 6 December 1993.
The commission has three committees: one that deals with amnesty, one with
human rights violations, and one with compensation and rehabilitation. In
addition to its role in examining, revealing and where appropriate making
reparations for the legacy of the past, the commission was also charged with
162 SOUTH AFRICA

making recommendations to ensure that such abuses do not recur.31 All three
committees have important implications for South African society but, because
amnesty was particularly hotly disputed and is central to this investigation, I
focus largely on the amnesty committee.
The TRC’s amnesty provisions were unique among truth commissions. Those
involved in political crimes, whether for the government, anti-apartheid groups
or others, could apply for amnesty and indemnity, but these were only to be
granted if the applicant made a full disclosure and the action taken had a political
object that could feasibly be realized. The commission could only recommend
the granting of amnesty—President Mandela was given the final say. The
commission’s proceedings were, with exceptions in the interest of justice or to
avoid personal injury, open to the public. Further, the commission had an unusual
amount of power in comparison to other bodies of its type in that it had the
power of subpoena and of search and seizure.32 Thus, what was created was not a
blanket amnesty: evaluations were made on a case-by-case basis. Further, there
were structural incentives for persons to come forward and apply for amnesty:
those that did not do so by the cut-off date33 were still subject to prosecution.
Those who applied for amnesty were required not only to reveal their own
involvement in abuses of the past but also to reveal information about those
responsible for ordering these acts as well as what happened to victims. A series
of criteria was then applied to determine whether the application would be
successful.34
The constitutionality of the amnesty was challenged by the widow of Steve
Biko. His killers had applied for amnesty from the commission. The
constitutional court refused to invalidate the procedure, finding it consistent with
the amnesty provision of the interim constitution, and pointing out that without
this procedure there would be no incentive at all for perpetrators to admit to the
truth. The court also pointed out that without the amnesty provision a negotiated
settlement and the new constitution itself might not have come into being.35

The work of the Truth and Reconciliation Committee

The TRC members appointed by President Mandela came from various
professions and ethnic backgrounds; they were chosen, inter alia, to comply with
the requirement that they be ‘fit and proper persons who are impartial and who
do not have a high political profile’.36 Before the cut-off date the TRC received
approximately 8,000 petitions for amnesty; it then had the time-consuming task
of sifting through them all; the report took longer than expected, but was finally
issued in October 1998.
In addition to reviewing individual amnesty applications, analysing human
rights violations and making recommendations with regard to reparations and
rehabilitation, the commission also received reports from the two major players,
the ANC and the NP, with regard to the legacy of the past. In August 1996, the
ANC submitted a 90-page report to the TRC, which, while incomplete, was more
 SOUTH AFRICA 163

thorough and honest than the 35-page NP report which largely articulated a
justification of the government’s actions. Only late in the NP report, in one
paragraph, was there an apology by de Klerk for abuses under apartheid. De
Klerk was to refer to his initial apology of April 1993 and those in the
submissions to the TRC whenever critics suggested that he had failed to
apologize for apartheid.37 Both parties subsequently submitted further, more
extensive statements to the TRC.

Amnesty
The commission has heard testimony from prominent figures from the anti-and
pro-apartheid factions, as well as important testimony regarding the fates of
powerful and well-known victims. As might have been expected, it was members
of the NP and former regime, responsible for wide-scale atrocities, and members
of the IFP, more recently found to have colluded with the NP to undermine the
ANC during the run-up to the elections, who were particularly resistant to the
process. De Klerk, in particular, was vocal about his fears that the commission
could become a witch-hunt against himself and his party.38
High-level former political and military leaders stonewalled the commission
for months, a pattern broken only in October 1996, when the former chief of
police, General Johan van der Merwe, admitted his role in several notorious
incidents, and laid the blame on the ministers of law and public order, adding
that he believed the actions had been approved by then-president P.W.Botha.
Some observers viewed this testimony as evidence that the procedural approach
of the commission was finally working: van der Merwe was slated to be named
before the commission by five police officers seeking amnesty, and thus needed
to come forward to obtain amnesty for himself.39 Mixed signals were
simultaneously being sent by the judiciary: one high-level official was acquitted,
and another convicted in late 1996 (see detailed discussion of the court cases
below). Certainly, potential defendants could not fail to recognize that jail was a
real possibility, making testimony before the TRC appealing.40
In another high-profile case, in December, the TRC freed a police officer
already jailed for life in a massacre of civilians. Some observers suggested that
this step was taken in the hope of generating more applications: up to that point
few applications for truly political crimes had been received. Shortly thereafter,
in January 1997, five police officers came forward with confessions in the killing
of anti-apartheid activist Steve Biko, requesting amnesty. In April, former
defence minister Magnus Malan, who had already been acquitted in connection
with a set of politically motivated killings, came forward with an offer of
testimony before the TRC. However, when he testified, he adamantly defended his
past actions, in particular cross-border raids into neighbouring countries, and said
that he would not seek amnesty in relation to operations that he authorized
because he considered them ‘legal acts of state’. Even while arguing eloquently
164 SOUTH AFRICA

for the need for the various peoples of South Africa to reconcile, Malan went on
to warn that too much probing into the past would generate a reaction.41
After a slow start, then, the TRC began to receive testimony of greater political
import, as well as a greater volume of applications. By the time the extended
deadline for amnesty applications had passed, on 10 May 1997, 8,000
applications had been received, though former presidents de Klerk and Botha,
and President Mandela, did not apply. However, other high-level members of the
ANC and Mandela’s government, including cabinet ministers and the deputy
president, did apply for amnesty, owning up to sabotage and other political
violence, partly in the hope of pushing white people to come clean as well.42
Former President de Klerk finally testified before the commission in May
1997. De Klerk appeared resistant, explaining that he had not applied for
amnesty because he had not committed any criminal acts. He denied having
knowledge of, much less having authorized, a wide range of politically motivated
abuses, such as beatings, killings and kidnappings. He insisted that any violence
had been committed by a ‘few bad eggs’. De Klerk’s testimony before the
commission was strongly criticized by commission members, who questioned
the former president’s truthfulness. In response, de Klerk accused members of
the commission of political bias and violation of its own regulations, and
withdrew his party from the proceedings, stating that the National Party would
not return until commission members played by the rules. Shortly thereafter, de
Klerk went further, demanding an apology from TRC chair Tutu for his remarks
and the resignation of deputy chair Alex Boraine, threatening to sue the TRC if his
demands were not complied with. With the withdrawal of the largest opposition
party from the TRC process, justice minister, Dullah Omar, publicly expressed
concern about the threat to the future of the country. Tutu refused to comply, and
de Klerk refused a counter-offer of a meeting with the full commission to resolve
their disagreements.43
De Klerk has repeatedly acknowledged that apartheid was wrong, and offered
a public apology to its victims.44 However, despite evidence gathered by the TRC
and available in the press to the contrary, he steadfastly denied that he or other
high-level officials authorized or knew of assassinations. Rather, in his written
submission, he referred to them as ‘the criminal actions of a handful of
operatives of which the National Party was not aware and which it could never
have condoned’.45 He offered the defence commonly heard not only in South
Africa but many other nations where the legacy of the past is confronted, that the
country faced a revolutionary threat requiring extraordinary actions, while
affirming that murder and assassination were not justifiable.

Other cases at the TRC

Another prominent case for the TRC dealt with the fate of two men already
convicted of the killing of a popular black leader, Chris Hani. Hani had been the
head of the armed wing of the ANC, and subsequently became the head of the
 SOUTH AFRICA 165

South African Communist Party. The two men convicted for respectively
shooting and planning the assassination, Janusz Walusz and Clive Derby-Lewis,
applied for amnesty. The Hani family strongly opposed the application, arguing
that the two men had failed to disclose all information in their applications and
were thus not eligible for amnesty. The TRC’s amnesty committee eventually
denied the killers amnesty on the grounds that they had failed to make a full
disclosure and lacked a relevant political motivation as a defence.46 In June
1997, President Mandela’s ex-wife, Winnie, was subpoenaed to testify before the
commission regarding her role in the political violence perpetrated by
her bodyguards, who had applied for amnesty.47 While many significant figures
testified before the commission, there have been some important holdouts. There
were accusations that the TRC has a pro-ANC bias. The IFP, alleging such a
bias, largely refused to work with the commission. Following the commission’s
criticisms of de Klerk, the National Party said it would suspend cooperation with
the TRC, demanding an apology from Archbishop Desmond Tutu and the
resignation of Alex Boraine.
Former president P.W.Botha defied the commission’s subpoena to testify
before it three times. The TRC wanted Botha to provide information regarding
the old State Security Council and its crackdown on anti-apartheid groups during
the 1980s. In January 1998, Botha received a summons to answer a contempt
charge for ignoring the commission’s subpoenas, a charge that carries a sentence
of up to two years. In August 1998, a court found Botha in contempt for his
refusals to testify before the TRC, and sentenced him to a fine of or a year in
prison. However, the contempt conviction was ultimately reversed in mid-1999
on a technicality.48
While high-level police officials submitted applications to the TRC, members
and former members of the military high command have refused to do so.49 In an
unusual step, the TRC denied the amnesty application of an officer who took
part in the abuse leading to the death of Steve Biko on the grounds that he had
not admitted to a crime.50

Prosecutions and the legacy of the past

An attempt was made to prosecute the former minister of defence, Magnus
Malan, in 1996, for the atrocities of the past. Malan was charged with murder in
relation to a 1987 attack on the home of an ANC supporter. However, in October,
a court found Malan and all of his 15 co-defendants not guilty in this incident.
Mandela moved to quell anger by announcing his acceptance of the ruling, but
the victim’s family was still outraged, and Tutu stated that the TRC might
conduct its own investigation into the case.51
Shortly thereafter, on 30 October, another court found a police colonel, the
former head of an assassination squad, guilty of a series of political killings.
Colonel de Kock was given the most severe penalty allowed by South African
law, two life sentences plus 200 years in prison. Immediately after the
166 SOUTH AFRICA

sentencing, some suggested that this outcome would reverse the sense of
impunity many may have felt after the Malan case, and perhaps result in more
applications to the TRC. De Kock himself has since submitted a detailed amnesty
application to the TRC that runs to 4,000 pages.52
In an unusual and important case, a former police officer, Dirk Coetzee, was
found guilty of a 1981 killing. The case is unique, however, in that he had
voluntarily come forward in the 1980s to expose the abuses of apartheid, fled the
country, and joined the ANC in 1989, later working for Mandela’s government
in the intelligence agency. Coetzee and his co-defendants applied for and
received amnesty from the TRC.53

Reparation and rehabilitation

The reparation and rehabilitation committee of the TRC was set up to provide
compensation to victims and families of victims. It is as yet unclear what the
level of these reparations will be. The commission has, however, issued a
statement of the criteria on which reparations and rehabilitation will be given.
The commission chose to award rehabilitation and compensation rights not to all
victims, some of whom could not be identified, but to a finite list that could be
identified through specified means.54

The report
On 29 October 1998, the TRC released its final report. Comprising 3,500 pages,
the report contained accounts that displeased all the major political players; even
before its release it was controversial. Former president de Klerk threatened to go
to court to stop the release of the report, which was said to have named him as an
accessory after the fact for a 1986 church headquarters bombing. The TRC,
facing the threat of this legal action, agreed to withhold its findings on de Klerk
at least temporarily, until the matter could be judicially resolved. At the same time,
the ANC, facing the threat of similarly unflattering disclosures, threatened to go
to court to block the release of findings regarding its abuses, but would not be as
successful.55
Not surprisingly, the report itself was highly critical of the apartheid era
governments of South Africa, but also discussed the abuses committed by
opposition movements and leaders. However, the report refused to equate the
acts of the state with those of the opposition anti-apartheid groups, arguing that
such groups were fighting a just war with a just cause. However, this did not
mean that all anti-apartheid actions were therefore justified, and the report took
the position that human rights violations could have been committed by both
state and non-state actors like the ANC.56
The report ascribed responsibility to the state for the predominant part of the
abuses, seeing a pattern of human rights violations committed largely by state
security forces. The state then sought to cover these abuses, in particular its use
 SOUTH AFRICA 167

of extrajudicial killings and its collusion with the Inkatha Freedom Party.
Nonetheless, the ANC was held responsible for gross violations of human rights
by its security forces, both in the course of armed struggle and in retaliation
against defectors and informants. Finally, the IFP was found to be in collusion
with the South African defence forces from the mid-1980s on, perpetrating gross
violations of human rights against individuals perceived as the enemies of the state
and the IFP.57
Prominent individuals were also named in the TRC report. Former president
P.W.Botha presided over the state and security forces at a time when abuses
were rampant and covert assistance was given to anti-ANC groups, according to
the report. The former wife of Nelson Mandela, Winnie Madikizela-Mandela,
was said to have been central to the formation of a vigilante group responsible
for gross violations of human rights, to have been herself responsible for such
violations. For the actions taken by Inkatha in collusion with the South African
Defence Force (SADF), the commission held responsible, inter alia, P.W.Botha,
Magnus Malan and ANC head Chief Mangosuthu Buthelezi. The report, in a
noteworthy step, chose not to recommend lustration, or the disqualification of
those implicated in human rights violations from holding public office.58
Reaction to the report was largely negative, as the commission had found fault
with the three major players in the apartheid struggle as well as major post-peace
political parties. President Mandela accepted the report, but noted that ‘many of
us’ would have reservations about the report, whose release his party failed to
block.59 Shortly thereafter, talk of a general amnesty circulated: several major
political parties called for one, and the ANC, while calling such talk premature,
did not rule out an amnesty.60

Trade-offs of transition

Accountability
The question of accountability has been discussed at length above, so I recap
briefly here. The TRC represented a significant jettisoning of accountability for
an outing of the truth, but not a complete one. The stick that encouraged
violators to take advantage of the carrot of amnesty and confession was the
threat that a failure to apply for amnesty left one open to prosecution.

Institutional reform
Important changes in the security apparatus of South Africa are now being
effected. There were several main strands of reform to be effected, which also
ran directly counter to the self-image held by many in the previous regime and
its military: these pertained to the composition of the armed forces, control of
them and their mission. This was bound to be complicated because, as the head of
168 SOUTH AFRICA

the SADF said in his submission to the TRC, the old SADF members had strong
ties, and care should be taken with reference to the old members.61
First, ex-ANC and PAC guerrillas as well as the armed forces of the four
homelands are being incorporated into the National Defence Force. In the interim,
a temporary National Peacekeeping Force was set up under the auspices of the
TEC; while some hoped that this force, made up of contributions by negotiating
parties, would form the basis for the new defence forces, but this was not to be.62
A plan largely initiated by the senior officials of the various forces in early 1994
stipulated that each force was to present a registry of its personnel by 26 April
1994. After this, ex-guerrillas were to report in segments of 1,500 for training
and review with the assistance of a British military assistance training team.
Nonetheless, this process has not run perfectly: some guerrillas have not reported,
and demobilization of large numbers of troops and guerrillas may pose a serious
threat to stability.63
Second, officers from the apartheid era are being retired. While the armed
forces do not yet represent the ethnic makeup of the nation, the number of black
officers has increased dramatically, to 29 per cent in 1998, including the top
posts in the South African National Defence Force (SANDF) and in the army.64
In an attempt to gain international acceptance, the military has turned its
attention to preparation for participation in peacekeeping operations.65 However,
the more general force structure has become increasingly top-heavy, with
unusually few privates, which has also increased the proportion of the military
budget devoted to personnel. At the same time, the military sought to both
incorporate members from other security forces and reduce the overall number
of personnel, reducing the force from a potential high of 135,000 to 90,000.66
This reduced force would, however, be supplemented with voluntary part-time
forces of up to 100,000.67
It is not just the composition of the armed forces that has begun to change,
however; a sea change in the nature of oversight over the forces also took place.
The Ministry of Defence is accountable directly to the president, and a civilian
secretary of defence as well as the heads of the various branches of the armed
forces advise the minister.68 Civilian oversight has also become more salient in
the arena of doctrine and mission definition, with a tussle between the SANDF
and the defence minister exemplifying the gap between old and new approaches
to both the process and content of doctrine definition. The role of the SANDF, as
defined in the constitution, is defence of territorial integrity and sovereignty, and
only secondarily as support for the police; the proposed code of conduct
emphasizes, inter alia, respect for human rights, the rule of law and international
law and civilian supremacy.69
The police were traditionally quasi-military, with their primary concern the
protection of the apartheid system and taking part in covert operations and even
battles outside the nation’s borders. Thus institutional reform was a high priority.70
It was initiated by the South African Police (SAP) themselves in 1990–91, out of
a concern to maintain their legitimacy and buffer themselves from radical
 SOUTH AFRICA 169

restructuring, and they maintained a high degree of control over the process for
several years.71 The peace accord mandated important doctrinal and structural
changes that were implemented in 1993. These included the creation of a police
board for oversight with civilian members, the creation of a code of conduct for
the police, and local committees to hear complaints against the police.72 Police
reform has led to a merging of the country’s various police forces and removal of
military ranks. Under the auspices of the July 1995 police service bill, 11 forces
were amalgamated into one force, though vetting appears to have been limited.73
An attempt at democratizing the police through community policing, begun under
de Klerk, continued, though with limited success.74 Rights of citizens such as
access to courts were enshrined in the bill of rights in the 1996 constitution;
however, the constraints these rights placed on police may have been limited by
the police powers contained in the Emergency Act of 1995.75 Similarly, the
Regulation of Gatherings Act enshrined the right to peaceful public expression;
though passed in 1993 it was enacted after the change of regime.76 A civilian
oversight body was also set up to investigate complaints against the police, as
well as keep tabs on deaths in police custody. Another institutional reform was a
new organization structure that replaced military ranks with more common
police titles. In another symbolic move, the ministry at the head of the police was
renamed. At the same time these changes took place, however, President
Mandela and the new head of the SAP took great pains to reassure the old guard
that change would be gradual, not radical.77
President de Klerk asserted that, even before the transition, he had begun
reviewing a number of covert operations, some of which were terminated, and
that his regime also terminated the national security management system and
reduced the role of the State Security Council. He also abolished the political
branch of the police known as the security branch. Further restructuring took
place with the 1992 creation of the internal stability division to replace the riot
squads.78
Reform has also led to increased participation by persons of all ethnicities, in
part through the incorporation of members of the ANC and other liberation
movements into the new SAP. In particular, ex-fighters were incorporated as
members of the VIP bodyguard service. The discredited intelligence organ for
the police was also staffed by some ANC intelligence agents.79 However, the
white hierarchy has not been eliminated; instead a second tier of black, Indian
and other non-white people has been established. Further, from March 1997, 47,
000 of 50,000 white officers remained on the force. While a 1992 purge of
conservatives in the military and SAP as well as early retirements by some of the
old guard partially changed the face of the force, the vast majority of the officer
corps (95 per cent) remained white.80
The police, once famous for abuse in support of apartheid, are now branded as
inept and corrupt in the face of post-peace rising waves of crime. In addition, the
separation from the military is not perfect: the police are still heavily reliant on
the SANDF for support.81 The police have, however, begun to pay more
170 SOUTH AFRICA

attention to respect for human rights, with training programmes on this issue
supported by aid from, inter alia, some EU nations, the UN Commission for
Human Rights and the International Committee of the Red Cross.82 Police
prerogatives were further limited by constitutional changes that clarified the
fundamental rights that citizens cannot be stripped of in a state of emergency.83

Budgetary reductions
Another arena of importance to military establishments (and, by extension, elites
that are closely linked to them) is budgetary levels. While the budget for defence
rose slightly in 1994–95, that increase was due to the costs of transition such as
demobilization and integration: on one analyst’s account, the budget fell by 13
per cent when these costs were excluded. Further, there is some concern in
military circles that readiness may be harmed because of the reductions
combined with the increased proportion of spending devoted to personnel.84

Factors enabling or hindering accountability

International
The South African transition has been used by supporters of sanctions and
international pressure generally as evidence that these devices can have an impact
on the domestic behaviour of even a recalcitrant regime. Many international
sceptics as well as many white people in South Africa deny that sanctions caused
the reforms: they point instead to internal shifts in self-perception and definition.
However, some have argued that these shifts were themselves provoked not only
by internal unrest but also by international isolation.85 Both the perception of risk
by international lenders and investors sparked by domestic strife and the
imposition of sanctions hurt the country severely.86
Audie Klotz examines this thesis further and comes to the conclusion that
sanctions did have some effect, but that the impact on the South African elite
was not merely direct economic or security harm. Klotz argues that, while it may
be the case that some key economic industries were at least temporarily harmed,
and the defence industry suffered setbacks, as a result of sanctions, most of these
obstacles could eventually be circumvented, if at a somewhat high cost.87 Instead,
the argument is that the sanctions had effects that have been noted less, though
ones that constructivist theory would predict. Klotz argues that sanctions had an
important effect on legitimation processes and construction of self-identity
within South African elites. Klotz points in particular to the deleterious effects that
the country’s reputation had on its international standing: it was pushed out of
the Commonwealth in 1961, and excluded from the founding of the OAU in
1963.88 Thus the sanctions promoted new norms of racial equality. Klotz
suggests that the link between sanctions and reform is proven by the fact that the
 SOUTH AFRICA 171

five main areas of concern put forth by sanctioners were addressed over time by
the reforming elite: the repeal of the state of emergency, the release of political
prisoners, the unbanning of the ANC and other political parties, the elimination
of apartheid laws, and good-faith negotiations for a new political system.
Finally, Klotz argues that the quest for international legitimation affected the
behaviour of all three main parties to the peace negotiations.89
As with many of the transitions studied here, the sea change in the
international environment with the end of the Cold War should not be
underestimated. Like many other countries in regions of bipolar contention, the
South African elite had an image of the Soviet Union as a menace that sought to
destroy it. The white government and the security forces pointed to the threat,
real and perceived, posed by, inter alia, the South African Communist Party and
the ANC, bolstered by the extremity of some of their tactics. That image
began to crumble with Soviet-American cooperation during the 1989 Namibia
and Angola negotiations.90

Civil-military relations and the balance of forces generally

The NP was clearly pushed to the bargaining table by a variety of factors, not the
least of which was the real threat to stability posed by the ANC and other
opposition forces, both political and military. While the ANC may not have been
in a position to bring apartheid down militarily, its actions as well as grass-roots
opposition to the regime posed serious economic threats and threats to order and
stability more generally. There was recognition that the continuing war was too
costly for all sides.91

Nature/extent of abuses or struggle

It is less clear what impact the protracted nature of the apartheid regime and the
struggle against it had on the outcomes in South Africa. Certainly it is plausible
that exhaustion in the regime and the population and a recognition that rebel
groups could not be eliminated played a role in the decision to reform, though it
is unclear what role was played.

Lessons
South Africa provides us with yet a different instance of a country following a
third path between pure accountability and pure amnesty. The balance of forces
seems to have had only moderate importance in the decision to reform; more
important were the effects of international pressure and the permissive effects of
a changed international environment. The result, however, was that the new
regime was not free to take any actions it desired; it was constrained by the
interim constitution and the degree to which certain status quo forces remained
entrenched. Nonetheless, despite the amnesty, a commission of inquiry with
172 SOUTH AFRICA

broad powers was created, and the security forces underwent a radical overhaul
in structure and doctrine. Thus, as we have learned from other countries, an
amount of accountability may be achieved though compromises are made, and
other goods such as reform of the security forces might simultaneously be
achieved.

Notes

1 For a chronology of apartheid legislation, see the text of the South African Truth
and Reconciliation Report (TRC Report), vol. 1, ch. 13, available at http://www.
polity.org.za/govdocs/commissions/1998/trc/. On conscription and the role of the
armed forces in the state generally, see Lynn Berat, ‘Conscientious Objection in
South Africa: Governmental Paranoia and the Law of Conscription’, Vanderbilt
Journal of Transnational Law, 22 (1989), pp. 127–86.
2 Act no. 34 of 1960 is discussed in the TRC Report, vol. 1, ch. 13. The massacre
was followed by the Indemnity Act, no. 61 of 1961, which indemnifies the
government and its agents for actions done in the suppression of internal disorder.
3 TRC Report, vol. 1, ch. 13, lists laws pertaining to internal security such as the
regulations following on the declaration of a state of emergency on 12 June 1986.
See also Janine Rauch, ‘The Policing of Public Gatherings and Demonstrations in
South Africa 1960–1994’ (unpublished manuscript, on file with current author), on
the major uses of violence against public demonstrations and the legislation that
legitimated these actions.
4 Lynn Berat, ‘South Africa: Negotiating Change?’, in Roht-Arriaza (ed.), Impunity
and Human Rights, pp. 267–8; Berat and Shain, ‘Retribution or Truth-telling?’, p.
164.
5 For a general narrative of these secret talks, see Allister Sparks, Tomorrow is
Another Country: The Inside Story of South Africa’s Road to Change (New York:
Hill & Wang, 1995).
6 See, for example, Alex Callinicos, ‘South Africa: End of Apartheid and After’,
Economic and Political Weekly (New Delhi) (3 September 1994), p. 2357–8.
Whether or not international sanctions and the threat of greater ones played a role
is also a point of contention: Michael MacDonald, ‘Power Politics in the New
South Africa’, Journal of Southern African Studies, 22 (1996), pp. 221–3.
7 Berat, ‘South Africa: Negotiating Change?’, p. 268.
8 Berat, ‘South Africa: Negotiating Change?’, p. 269.
9 Callinicos, ‘South Africa’, p. 2359.
10 In 1990, the so-called Harms commission released evidence of government-
sponsored hit squads and recommended judicial action, but none was taken.
11 Callinicos, ‘South Africa’, p. 2359.
12 Bede Harris, ‘The New South African Constitution’, New Zealand Law Journal
(January 1995), pp. 20–1; Joe Slovo, ‘Negotiations: What Room for
Compromise?’, African Communist, Third Quarter (1992), pp. 36–40, quoted in
Bronwyn Leebaw, ‘Theory out of Practice: An Intellectual History of the South
African TRC’, paper presented at the American Political Science Association’s
 SOUTH AFRICA 173

Annual Conference (Atlanta, GA, September 1999); Sparks, Tomorrow is Another

Country, pp. 181–2.
13 For a brief summary of the work of the Commission of Inquiry regarding the
Prevention of Public Violence and Intimidation, see the TRC Report, vol. 1, ch. 13.
14 UN Doc. S/24389.
15 Guidelines for Defining Political Offenses.
16 Berat and Shain, ‘Retribution or Truth-telling in South Africa?’, pp. 176–7.
17 Act no. 151 of 1992, repealed by the Promotion of National Unity and
Reconciliation Act, no. 34 of 1995.
18 Quoted in Berat, ‘South Africa: Negotiating Change?’, p. 273.
19 Berat, ‘South Africa: Negotiating Change?’, p. 274.
20 Berat, ‘South Africa: Negotiating Change?’, pp. 275–6.
21 Callinicos, ‘South Africa’, p. 2360; John Hatchard, ‘Towards Majority Rule in
South Africa: The Transitional Executive Council Act 1993’, Journal of African
Law, 37, 2 (1994), p. 207.
22 Hatchard, ‘Towards Majority Rule in South Africa’, p. 208.
23 Hatchard, ‘Towards Majority Rule in South Africa’, p. 210.
24 The constitution attempts to strike this delicate balance through a complex method
of selecting the membership in the bicameral parliament. In the house of assembly,
members are elected on a purely representative basis, though half are elected from
national lists and half from lists by province. The senate, on the other hand, is made
up of members nominated by the provincial legislatures. Harris, ‘The New South
African Constitution’, p. 19.
25 MacDonald, ‘Power Politics in the New South Africa’, pp. 228–30. The Public
Service Commission was to continue under the 1996 constitution until abolished
by its specific terms, see Constitution of the Republic of South Africa (adopted 8
May 1996, amended 11 October 1996), Schedule 6, Sec. 24(2), available at: http://
www. constitution.org.za/b34/b34b_con.htm.
26 Harris, ‘The New South African Constitution’, pp. 17–18. The court agreed
unaimously to abolish capital punishment: John Forsyth, ‘Mental Somersaults in
the New South Africa’, SCOLAG: The Bulletin of the Scottish Legal Action Group,
228 (31 October 1995), p. 150 (interview with Albie Sachs, a member of the
constitutional court).
27 Berat and Shain, ‘Retribution or Truth-telling?’, pp. 182–3. On the question of
whether to approve an amnesty and the genesis of the Truth and Reconciliation
Commission generally, see Alex Boraine, ‘Truth and Reconciliation in South
Africa: The Third Way’ (paper presented 20 October 1998, at Columbia Seminar
on Justice in Transitions, on file with current author). At least briefly, the security
forces may have believed that they were protected: subsequently, in January 1995,
it was revealed that de Klerk had promised ‘administrative indemnity’ to these and
other law enforcement issues, a step Mandela’s cabinet reversed. See Neier, War
Crimes, p. 41.
28 South African Constitution, available online at http://www.truth.org.za.
29 Garton Ash, ‘True Confessions’, p. 33; Berat and Shain, ‘Retribution or Truth-
telling?’, p. 183.
30 For this justification, see the article by the minister of justice, Dullah Omar,
‘Justice in Transition’, available at http://www.polity.org.za/govdoc.
174 SOUTH AFRICA

31 Promotion of National Unity and Reconciliation Act 1995, no. 34 (26 July 1995)
and the acts expanding its membership and extending its mandate are available at
http://www.truth.org.za/. The three committees of the TRC are created by Chapters
3–5 of the Promotion of National Unity and Reconciliation Act of 1995. See also
Boraine, ‘Truth and Reconciliation Commission’, p. 8. On the functions of the
TRC, see the Act, Chapter 2, sec. 4.
32 See the Act, Chapter 4, sections 18–22, regulating applications for amnesty and the
Act, Chapter 6, secs 31–3. See also Boraine, ‘Truth and Reconciliation
Commission’, p. 9.
33 After being extended, the deadline finally expired on 10 May 1997. The TRC was
then to complete its work on the last day of July 1998, and release a report within
the next three months. See Portfolio Committee Amendments to Promotion of
National Unity and Reconciliation Amendment Bill, B 48A-98, available at http://
www.truth.org.za/. See also Garton Ash, ‘True Confessions’, p. 34.
34 These include the motives of the applicant, the context of the act, the legal nature
of the act, whether it was in compliance of higher orders, etc. See the Act, Chapter
4. See also Boraine, ‘Truth and Reconciliation Commission’, pp. 12–13.
35 See Azanian Peoples Organization (AZAPO) and Others v The President of the
Republic of South Africa, CCT 17/96 (25 July 1996), available at http://www.
truth.org.za/reading. See also Garton Ash, ‘True Confessions’, p. 36; Suzanne
Daley, ‘In South Africa, Confessions to Dark Era’s Worst Crimes’, New York
Times (29 January 1997), pp. A1, A4.
36 Quoted in Garton Ash, ‘True Confessions’, p. 34.
37 Eddie Koch and Marion Edmunds, ‘More Reconciliation than Truth’, Mail and
Guardian (23–9 August 1996), pp. 6–7. For a text of the submissions, see http: //
www.mg.co.za/mg/ or http://www.truth.org.za/submit/anctruth.htm and submit/np-
truth.htm. For an analysis of the ANC’s claims that it was engaged in a just and
relatively clean war, see Tom Lodge, ‘Taking Great Pains to Justify a “Clean
War”’, Mail and Guardian (23–9 August 1996), p. 7. See also the transcript of the
ANC’s political party recall of May 1997, further discussing the ANC’s actions
during the conflict, and that of the NP’s political party recall doing the same,
available at http://www.truth.org.za/hrvtrans/party2/anc2.htm and party 2/np2.htm.
38 Suzanne Daley, ‘Panel to Investigate Atrocities of the Apartheid Era’, New York
Times (27 August 1995), p. 3.
39 This was of course because, given the terms of the commission, only those who
come forward can receive amnesty; otherwise one is still vulnerable to prosecution.
Suzanne Daley, ‘Former South Africa Police Chief Admits Role in Terrorizing
Blacks’, New York Times (22 October 1996), pp. A1, A16. Van der Merwe’s
testimony carries additional importance because he was also a member of what has
been referred to as a ‘shadow government’, the State Security Council. Donald G.
McNeil, ‘A “Shadow Government” with a Shadowy History’, New York Times (22
October 1996), p. A16; Suzanne Daley, ‘Settling for Truth in Place of Justice’, New
York Times (27 October 1996), sec. 4, pp. 1, 6. He was eventually granted an
amnesty: see Daley, ‘South Africa Commission Grants Amnesty for 2 Apartheid
Cases’, New York Times (6 August 1999), p. A6.
40 Suzanne Daley, ‘South African Police Colonel Jailed for Life in Apartheid
Killings’, New York Times (31 October 1996), p. A11. The case was still
 SOUTH AFRICA 175

outstanding in June 1998, see the TRC database at http://www.truth.org.za/ scripts/

database.pl?
41 Suzanne Daley, ‘South Africa Frees Apartheid Killer, Hinting at Broad Amnesty’,
New York Times (11 December 1996), p. A15; John F.Burns, ‘Biko’s Case Now
Offers Justice From a Travesty’, New York Times (2 February 1997), sec. 4, p. 4;
‘South African Ex-official to Aid Inquiry’, New York Times (24 April 24, 1997), p.
A4; Suzanne Daley, ‘Apartheid-era Defense Chief Defends Role in Ordering Raids
on Neighboring Countries’, New York Times (8 May 1997), p. A16; Jillian
Edelstein and Mark Gevisser, ‘The Witnesses’ (photo essay) New York Times
Magazine (22 June 1997), p. 38.
42 ‘8,000 South Africans Apply for Amnesty’, New York Times (12 May 1997), p.
A11; Suzanne Daley, ‘Party Led by Mandela Now Owns Up to Atrocities’, New
York Times (13 May 1997), p. A7.
43 Suzanne Daley, ‘de Klerk Denies Authorizing Killings During Apartheid’, New
York Times (15 May 1997), p. A8. De Klerk was responding to the comments of
Alex Boraine and Archbishop Desmond Tutu, who made critical remarks, leading
de Klerk to accuse them of reaching their own findings outside the commission
process. Suzanne Daley, ‘De Klerk Pulls Party Out of Inquiry into Apartheid Era’,
New York Times (17 May 1997), p. 3. For the text of the NP’s second submission,
accusing the TRC of at least the appearance of bias, see Second Submission of the
National Party to the TRC, available at http://www.truth.org.za/submit/np2. htm.
Suzanne Daley, ‘Divisions Deepen on Apartheid Inquiry’, New York Times (8 June
1997) p. 6; Suzanne Daley, ‘Tutu, Head of Apartheid Inquiry, Refuses to
Apologize to de Klerk’, New York Times (20 June 1997), p. A3.
44 See, for example, the NP’s submissions to the TRC as well as the NP party
political recall.
45 Quoted in Garton Ash, ‘True Confessions’, p. 36. The same stance was taken by de
Klerk and General Magnus Malan: that apartheid was wrong, but also that they had
no knowledge of or responsibility for many ‘dastardly deeds’. See the NP’s political
party recall.
46 Suzanne Daley, ‘Apartheid Inquiry Takes Up the Killing of Mandela Associate’,
New York Times (12 August 1997), p. A7. The case was still outstanding in March
1998, see the database of the TRC, available at http://www.truth.org.za/scripts/
database.pl?; ‘Amnesty Denied to Hani Killers’, (7 April 1999), available through
[email protected].
47 Suzanne Daley, ‘Panel to Call Former Wife of Mandela’, New York Times (25 June
1997), p. A3.
48 ‘Botha to Face Charges over Apartheid Inquiry’, New York Times (8 January
1998), p. A6; Suzanne Daley, ‘Ex-South Africa Leader Guilty of Contempt for
Refusing to Testify before Truth Panel’, New York Times (22 August 1998), p. A8;
Donald G.McNeil, ‘Appeals Court Reverses Botha’s Apartheid Panel Conviction’,
New York Times (2 June 1999), p. A6.
49 Garton Ash, ‘True Confessions’, p. 36.
50 Suzanne Daley, ‘Officer is Denied Amnesty in the Killing of Steve Biko’, New
York Times (11 January 1999), A4.
51 Suzanne Daley, ‘Former Officials Cleared by Court in South Africa’, New York
Times (12 October 1996), pp. 1, 7.
176 SOUTH AFRICA

52 Daley, ‘South African Police Colonel Jailed for Life’; Neier, War Crimes, p. 42;
Suzanne Daley, ‘South Africa Confronts Brutalities of One Man’, New York Times
(19 July 1999), p. A3.
53 Dirk Coetzee (Application No. 0063/96) et al., available at http://www.truth.org.
za/amnesty/32.htm. Suzanne Daley, ‘Ex-policeman Who Told of Apartheid Crimes
is Guilty of Killing’, New York Times (16 May 1997), p. A5.
54 One report suggests that the reparations offered might be as high as about a person
for perhaps some 20,000 victims. Garton Ash, ‘True Confessions’, p. 38; ‘Policy
Framework for Urgent Interim Reparation Measures’, available at http://
www.truth.org.za/reports/policy.htm; TRC Report, vol. 1, ch. 4, secs 133–6.
55 Suzanne Daley, ‘South Africa Braces Itself for Report by Truth Panel’, New York
Times (27 October 1998), p. A8; Suzanne Daley, ‘Truth Commission to Withhold
its Findings on de Klerk’, New York Times (29 October 1998), p. A3; Suzanne
Daley, ‘South African Panel’s Report Arrives in a Swirl of Bitterness’, New York
Times (30 October 1998), pp. A1, A14.
56 Suzanne Daley, ‘South African Panel’s Report Arrives in a Swirl of Bitterness’,
pp. A1, A14. See TRC Report, vol. 1, ch. 4, esp. secs 70, 74, and 77.
57 ‘Pretoria’s Words: “Extrajudicial Killing’”, New York Times (30 October 1998), p.
A14.
58 ‘Foreword by Chairperson’, TRC Report; Daley, ‘South African Panel’s Report’.
59 Daley, ‘South African Panel’s Report’.
60 Suzanne Daley, ‘Next Up for Amnesty: The Unrepentant’, New York Times (8
November 1998), p. 1. Such an amnesty would benefit figures such as Botha and
many IFP members who have not applied for amnesty.
61 Robert J.Griffiths, ‘South African Civil-Military Relations in Transition: Issues and
Influences’, Armed Forces and Society, 21, 3 (Spring 1995), p. 396. This
somewhat opaque statement falls short of articulating the possible consequences of
harsh treatment of old SADF members. See the TRC Armed Forces Hearing:
SADF available at http://www.truth.org.za/hrvtrans/forces/sadf.htm. The same
statement goes on to refer to an assessment by the National Assessment Service
asserting that the SADF could stage a coup if the negotiations went the wrong way,
but rejects this claim. For a further statement by the same individual, now head of
the new SANDF, see ‘Panel Discussion between Gen. G.Meiring of SANDF and
TRC Panel’, available at http://www.truth.org.za/hrvtrans/forces/sandfpan. htm. On
the belief by some members of the security forces that the TRC was pursuing a
witch hunt, see TRC Armed Forces Hearing: South African Police (9 October 1997),
available at http://www.truth.org.za/hrvtrans/forces/sap.htm.
62 Griffiths, ‘South African Civil-Military Relations in Transition’, pp. 399–400.
63 Jakkie Cilliers, ‘Security and Transition in South Africa’, in Diamond and Plattner,
Civil-Military Relations, pp. 92–3, says that the optimal size for the new South
African National Defence Force is 90,000, but that there are 95,000 former SADF,
11,000 members of homeland armies and 34,000 guerrillas to be either
incorporated into the new force or demobilized. The service corps’ plan to offer
vocational training and ease the strain of demobilization has also been lagging.
64 Ronnie Kasrils, ‘Progress in Transformation’, Continuity in Change: The SA Army
in Transition, monograph 26 (August 1998), available at http://www.iss.co.za/
Pubs/MONOGRAPHS/No. per cent2026/Kasrils.html.
 SOUTH AFRICA 177

65 Donald G.McNeil Jr, ‘South Africa’s New Army is All Soft and Cuddly’, New
York Times (28 March 1997), p. A4. A small purge was carried out under de Klerk
in 1992; issues of civilian control are still salient even with the removal of some
officers involved in past repression: Griffiths, ‘South African Civil-Military
Relations in Transition’, p. 400.
66 Jakkie Cilliers, ‘Rethinking South African Security Architecture’, African Defence
Review, 20 (December 1994), p. 25; ‘The SANDF’, available at www.southafrica.
net/government/safety/sandf.html. For more on ‘rationalisation’, the process of
reduction through both natural attrition and voluntary or compulsory severance, see
L.B. von Stade, ‘Rationalisation in the SANDF: The Next Challenge’, African
Security Review, 6, 2 (1997), available at http://www.iss.co.za/Pubs/ASR/6.2/ van
per cent20Stade.html.
67 ‘The SANDF’; ‘The South African Army’, available at www.southafrica.net/
government/safety/army.html.
68 Dr Martin Edmonds, ‘South African Defence: In Transition’, available at
www.cdiss.org/safrical .htm.
69 Edmonds, ‘South African Defence Policy’; ‘The SANDF’; Kasrils, ‘Progress in
Transformation’.
70 Nadia Levin, Kindiza Ngubeni and Graeme Simpson, ‘Meeting the Challenge of
Change? Notes on Policing and Transition in South Africa’, Centre for the Study of
Violence and Reconciliation, available at http://www.wits.ac.za/csvh/papnk
&gs.html.
71 Janine Rauch, ‘State, Civil Society and Police Reform in South Africa’, Centre for
the Study of Violence and Reconciliation, available at http://www.wits.ac.za/ csvr/
papstate.html; Janine Rauch, ‘Police Reform and South Africa’s Transition’ (paper
presented at the June 1999 meeting of the Academic Council on the United Nations
System, on file with current author), p. 2.
72 Rauch, ‘State, Civil Society, and Police Reform in South Africa’. These included a
new code of conduct, bodies to receive and investigate complaints about police,
and attempts to improve relations with local communities: Rauch, ‘Police Reform’,
p. 3.
73 Cilliers, ‘Rethinking South African Security Architecture’, p. 17; ‘The South
African Police Service’, available at www.southafrica.net/government/safety/
police.html.
74 Jeffrey Lever and Elrena van der Spuy, ‘Challenges Facing Democratic Policing in
South Africa’ (unpublished manuscript, on file with current author), pp. 2, 4–5.
75 Lever and van der Spuy, ‘Challenges Facing Democratic Policing’, pp. 6, 8.
76 Rauch, ‘The Policing of Public Gatherings’, p. 29.
77 Lever and van der Spuy, ‘Challenges Facing Democratic Policing’, p. 7; ‘The
South African Police Service’. The law and order ministry became the ministry for
safety and security: Rauch, ‘Police Reform’, p. 4–7.
78 Submission to the TRC by Mr F.W. de Klerk for the NP, available at http://
www.truth.org.za/submit/np-truth.htm. Lever and van der Spuy, ‘Challenges
Facing Democratic Policing’, p. 18.
79 Rauch, ‘Police Reform’, p. 10.
80 Rauch, ‘State, Civil Society and Police Reform in South Africa’; Rauch, ‘Police
Reform’, p. 9.
178 SOUTH AFRICA

81 Suzanne Daley, ‘Apartheid’s Feared Police Prove Inept and Corrupt’, New York
Times (25 March 1997), pp. A1, A13. On current police priorities and strategies,
see South African Police Service, ‘Policing Priorities and Objectives 1998/ 1999’,
available at www.saps.co.za/17_policy/priority/. Cilliers, ‘Security and Transition’,
pp. 90–1. US Department of State, ‘South Africa Country Report on Human Rights
Practices for 1998’(26 February 1999), available at http://www. state.gov/www/
global/human_rights/1998_hrp_report/southafr.htm.
82 See generally Elrena van der Spuy, ‘Foreign Donor Assistance and Policing Reform
in South Africa’ (unpublished manuscript, presented at the Sociology Association
Conference, 6–9 July 1999, University of Stellenbosch, on file with current
author). See ‘Human Rights and Policing,’ available at www.saps.co.za/17_policy/
19_ humanrights/index.html or /detained.html, an educational poster listing the
rights of detained persons, for an example of these materials. See also Lever and
van der Spuy, ‘Challenges Facing Democratic Policing’, pp. 15, 18 on attempts to
imbue a new sense of professionalism.
83 Donald G.McNeil Jr, ‘New Charter Passed’, New York Times (12 October 1996), p.
7.
84 Cilliers, ‘Rethinking South African Security Architecture’, p. 24.
85 Heribert Adam and Kogila Moodley, The Negotiated Revolution: Society and
Politics in Post-Apartheid South Africa (Johannesburg: Jonathan Ball, 1993), pp.
52–8.
86 Adam and Moodley, The Negotiated Revolution, pp. 57–8.
87 Audie Klotz, Norms in International Relations: The Struggle Against Apartheid
(Ithaca, NY: Cornell University Press, 1995).
88 Klotz, Norms in International Relations, pp. 9–10, 30–1.
89 Klotz, Norms in International Relations, p. 159.
90 See, for example, the comments of General Johan van der Merwe in the TRC
Armed Forces Hearing: South African Police (9 October 1997), available at http://
www.truth.org.za/hrvtrans/forces/sap.htm. On the same perception held by the
white government, see the submission to the Truth and Reconciliation Commission
by Mr F.W. de Klerk for the NP, at http://www.truth.org.za/ submit/np-truth.htm,
on the relationship of the ANC to the South African Communist Party and the aid it
received from the Soviet Union and other eastern bloc countries. See also
Submission IRO the Former SADF, available at http://www.truth.org.za/submit/
sadf.htm. For the justification proffered by former SADF head General Magnus
Malan, see General M.A. de M.Malan, submission to the Truth and Reconciliation
Commission, available at http://www. truth.org.za/submit/malan.htm. Adam and
Moodley, The Negotiated Revolution, pp. 48, 166–7.
91 MacDonald, ‘Power Politics’, p. 224; Adam and Moodley, The Negotiated
Revolution, p. 47.
 7
Sri Lanka
Justice in the midst of war

Introduction
Although Sri Lanka diverges in significant ways from the other cases examined
here, many of the lessons we can learn from its experience remain the same. In a
very different context it has had to face the same balancing act as other, clearly
transitional states, and it has made similar compromises. In Sri Lanka, the key
international player has been India, rather than the USA or the UN; India even
sent a peacekeeping force into the civil war in 1987. However, in recent times it
has maintained a rather studied silence with respect to events on the small island
to its south. As with many other cases, while the military is numerically much
larger than the rebels, and has made great gains, it has been unable to eradicate a
guerrilla force skilled in terrorist attacks. It also appears that a different tradition
of civil-military relations has made action on past abuses more feasible. Finally,
the protracted and bloody nature of the conflict may finally be pushing those on
both sides of the ethnic divide towards compromise: the results of the 1994
election are seen in part as a result of war-weariness, and the population seeking
a separate state is said to have waned in its fervour for the rebels.
Nonetheless, the war goes on and negotiations have repeatedly stalled. At the
same time, the government has taken some steps to address past abuses, creating
commissions of inquiry to investigate them and proceeding with several high-
profile prosecutions. It has not, beyond some minimal human rights training
sessions, impinged at all on the domain of the security forces, perhaps for the
usual reasons, but also because they are still needed to prosecute the war. As we
shall see, then, while conflict continues, Sri Lanka has begun to face some of the
hard choices of postwar societies, making greater strides on accountability but
lesser ones on reform. But, as recent events, including the rebels’ July 2001 raid
on the international airport and adjacent military base in Colombo have shown,
the fighting continues in virulent fashion, and has the power to derail peace
initiatives and constitutional reforms.
180 SRI LANKA

Overview
Sri Lanka, like most of the other cases I have already discussed, has suffered a
protracted civil war that has resulted in significant military and civilian losses as
well as disappearances and other human rights atrocities. Sri Lanka is unique,
however, in that it has had a functioning democracy since independence
(technically, adult suffrage and democratic procedures were introduced 17 years
before independence) with relatively peaceful transfers of power from one ruling
party to another.1 It is an important case because it differs from the other
countries I examine in this book: it illustrates the limits faced even by democratic
governments, and the types of compromises that they are likely to make with
respect to accountability and reform. It also provides a very different type of
limitation placed on the government: in Sri Lanka there has been relatively little
concern that the military was coup-prone; instead the concern has been that the
security forces must remain strong and with a high morale in order to pursue the
war against a domestic rebel group. It helps to demonstrate, then, that the claims
regarding the compromises of transition are not tautological, that is, that
governments make concessions even when they do not fear a coup. In the
absence of a coup threat in Sri Lanka, we still see the basic trade-offs at work.
Despite the protracted struggle between government forces and Tamil rebels
calling for independence in the north and the east of the country, as well as
intermittent conflicts between the government and Sinhalese extremists in the
south, as well as widened powers for the armed forces, the military has not
sought to seize political control. In addition, Sri Lanka differs from the Latin
American countries and South Africa in that the key external power influencing
domestic politics is not the USA or the UN but a regional great power, India,
which even sent its own troops into the north of Sri Lanka in 1987 as a
peacekeeping force to quell the conflict. Indian troops not only failed in this goal
but committed atrocities themselves and earned the enmity not only of Tamils but
of Sinhalese nationalists who accused the Sri Lankan government of being little
more than the puppet of India.
Thus Sri Lanka comes to the central dilemma that my research addresses with
a different history that may well be enlightening. While the military continues to
enjoy broad power, it has not intervened directly in electoral politics. That it has
failed to do so is interesting in light of new governmental policies, following the
election of the party of Chandrika Kumaratunga (now president) in 1994, which
led to the creation of three regional truth commissions, scattered prosecutions for
past abuses, and renewed negotiations in earnest with the Tamil rebels.

History of the conflict

As has already been mentioned, Sri Lanka poses an intriguing case of a new
regime seeking to address old abuses because it is not an instance of a new
democracy investigating the crimes of an authoritarian predecessor, but rather a
 SRI LANKA 181

newly elected government in a country that has been a continuously functioning

democracy instigating such an investigation.2 The situation is yet more unusual
because of the tense ethnic relations in the country that have spawned the
separatist Liberation Tigers of Tamil Eelam (LTTE) in the north and east, who
seek an independent Tamil homeland, as well as the Sinhalese extremists of the
Janata Vimukthi Peramuna (JVP), both of whom have carried out terrorist acts.
It is therefore worth briefly reviewing the country’s postcolonial history before
addressing the war that began in the 1980s.
While Sri Lanka did not gain independence from British rule until 1948, the
colonizers granted adult suffrage 17 years earlier. The result was a longer
tradition of democratic structures than other post-colonial south Asian countries.
However, as some analysts have noted, there was no large anti-colonialist
movement in what was then known as Ceylon as there was in India: the British
transferred power to a political and administrative elite, largely Sinhalese, who
were loyal to their rulers in the colonial era.3 A number of deleterious effects to
national unity have been observed to result from this history. First, the absence
of a strong anti-colonial movement, like that in India and elsewhere, has been
blamed in part for the failure to generate a general concept of the nation,
enabling the ethnic splintering that has occurred subsequently.4 Second, the
transfer to a dominant elite (Sinhalese) that also represented a significant
majority of the population (approximately three-quarters) invited further fissures
among ethnic and linguistic groups.5 While ethnic tensions existed prior to the
early 1970s, resulting in a significant anti-Tamil ethnic riot in 1958, it was only
at the later time that the fissures truly became salient.6 At this point it is worth
detailing the features of the constitution that deal with fundamental rights and
their limitations.

The constitution, emergency and restrictions on fundamental

rights
Sri Lanka has a constitution that recognizes many human rights as fundamental
rights, and has become a signatory to important international human rights
instruments. However, that is only half of the story, as legislation for emergencies
and to prevent terrorism have progressively infringed on those freedoms. The
constitution’s chapter III deals with fundamental rights, enshrining freedom of
thought, conscience, religion and freedom from cruel, inhuman or degrading
punishment. It also provides for equality before the law, non-discrimination,
protection for arrestees or detainees and the presumption of innocence.7
However, the constitution goes on, in article 15, to provide for restrictions on
many of these rights in the interest of national security, public order and ‘the
protection of public health and morality’. As we shall see, such restrictions have
not only turned out to be rather extensive, but have facilitated abuses of rights.
The Public Security Ordinance (PSO) was passed in 1947, just before the
independence of Sri Lanka, but has remained in force through post-independence
182 SRI LANKA

constitutions and provides the basis for the emergency regulations that are
discussed below. Under the PSO, the president can proclaim that the ordinance will
come into operation, and this declaration cannot be challenged in a court of law.
Once the PSO is in operation, the president can make emergency regulations as
necessary for public security and order; these regulations can override existing
law but not the constitution.8
In 1979, the Prevention of Terrorism Act was passed, legislation that gave the
police and armed forces broad powers and essentially put the northern territory
under martial law. The act defined as unlawful the speaking or writing of words
meant to cause religious, social or communal disharmony, reversed a previous rule
that no confession in police custody is valid unless made in the presence of a
magistrate, was retrospective, permitted arrest without a warrant and stop and
search of anyone, and allowed for holding suspects incommunicado without trial
for long periods of time. In 1983, regulation 15A was introduced: terrorism
suspects could be held up to 18 months without trial; search without a warrant
was acceptable, as were confessions obtained through torture. In August 1983,
the 6th amendment to the constitution was passed, which deprived of their seats
all members of parliament who refused to take an oath of loyalty renouncing
secessionist beliefs, thus depriving Tamil United Liberation Front (TULF)
legislators of their seats.9
The new Kumaratunga regime moved quickly to pass legislation to give effect
to the UN Convention against Torture, which the previous regime had signed,
but some provisions of the convention were undermined by the continuance in
force of emergency regulations dealing with arrest and detention. Similarly,
though the country had acceded to the International Convention on Civil and
Political Rights (ICCPR), the lack of, inter alia, a guarantee of a right to life
undermined that action. Proposed constitutional drafts presented from 1995
onwards added the right to life, but with the limitation that it could not be
arbitrarily deprived.10
The two main parties that have traded positions in power in the post-
independence period are the United National Party (UNP) and the Sri Lankan
Freedom Party (SLFP): the former was originally more diverse and tolerant,
while the latter had a wider labour base and tended to make both socialist and
Buddhist chauvinist appeals. However, it was an SLFP prime minister,
Bandaranaike, who would reach an agreement with the Tamils over language, only
to be assassinated in 1959, apparently by radical Buddhist monks. The pact he
reached with the Tamil leader, known as the Bandaranaike-Chelvanayagam pact,
would have allowed for some use of Tamil and created regional councils;
although it was abrogated under duress, it is still a common reference point in
current discussions over the Tamils’ claims. It was in 1962, in this environment
of heightened ethnic tensions, that military officers launched a coup attempt that
ultimately failed; however, it appears not to have been a result of ethnic
divisions, but rather of a sense that the government was wrongly emphasizing
such divisions and contributing to a national crisis.11
 SRI LANKA 183

In 1971, the SLFP returned to power: it had strengthened its ties to marxist and
Tamil groups, and faced an uprising by leftist Sinhalese youth who had also
supported the party. Under the auspices of the JVP, there was a significant
revolt, put down militarily by the government with foreign aid. As a result some
5,000 died, 16,000 were arrested, and a two-year state of emergency was
imposed that would eventually stretch to six years during which thousands of
suspects were detained without trial. While some have pointed out that the
motivations for the uprising were as much economic as ethnic (if not more so),
the actions came at a time of increasingly aggressive Buddhist nationalism.12
During the 1970–77 period, governmental policies towards Tamils became
increasingly restrictive and discriminatory, pushing Tamils to define themselves
ethnically and increasingly stridently, eventually leading to a call for an
independent Tamil homeland. In particular, Tamil access to higher education
was progressively restricted, and debates over textbooks intensified controversies
over language. The result was a 1977 call by the Tamil United Liberation Front
for a separate eelam (or homeland) for Tamils.13 1977 also saw the return of the
UNP to power, this time headed by J.R.Jayewardene, a political pragmatist who
promised some economic privatization but also promoted a Buddhist revival and
demonstrated little concern for the status of the Tamil minority.14 The UNP
would hold power until 1994, during which time inter-ethnic relations
deteriorated significantly. Meanwhile, the LTTE gained power. It was formed in
1972 as the student wing of the TULF, but eventually broke away. Following
anti-Tamil riots in 1977, the LTTE escalated military activity and moved further
away from the TULF, which failed to push for a homeland. In 1978, the LTTE was
officially banned, but continued to draw ever-greater numbers of Tamil youth.15
Also in 1978, the centralization of power was increased with a new
constitution. An executive presidency was created that was able to bypass
parliamentary objections. Even the 1980 introduction of the so-called district
development councils, intended to help only development but which could have
aided in a slow process of devolution, were to be controlled by the president and
were ultimately ineffective.16
In 1979, the Prevention of Terrorism Act (PTA) was passed, legislation that,
as has already been discussed, gave the police and armed forces broad powers
and essentially put the northern territory under martial law and facilitated the
suppression of fundamental rights enshrined in the constitution. In 1983,
emergency regulation 15A was passed under the auspices of the PSO and PTA,
further limiting the rights of arrestees. In August 1983, the 6th amendment to the
constitution was passed, which not only appeared to be a suppression of freedom
of speech but also had the effect of depriving TULF legislators of their seats.17
Despite formal democracy, the UNP government tightened its grip on
government with the December 1982 referendum on the extension of the
president’s term. The measure was passed following a campaign in which the
populace was flooded with pro-government propaganda while
184 SRI LANKA

opposition activities were curtailed or even broken up violently by pro-

government groups, and many opposition papers were closed.18
These actions set the stage for the anti-Tamil riots in Colombo in 1983. The
short-term cause of the riots was ostensibly the killing of 13 Sinhalese soldiers
by the LTTE near Jaffna in July. The bodies were brought to the capital by fellow
soldiers, sparking an outburst against Tamils by both local civilians and the
soldiers themselves. The result was widespread and systematic destruction of
Tamil-owned homes, businesses and factories. While accurate estimates of
fatalities are difficult to obtain, the government estimate was about 470, while
others place the number at between 2,000 and 3,000. In addition, between 80,000
to 100,000 Tamils were displaced to refugee camps in the Colombo area alone;
other estimates place the number of Tamils made homeless at 150,000.19
Simultaneously, there was a rise in JVP-perpetrated terror in the south, as the
group accused the government of being India’s pawn and of failing to deal firmly
enough with Tamils.20 A disturbing feature of the riots was the apparent failure of
the military and police to even attempt to halt them; in some cases they actively
encouraged these criminal acts, as President Jayewardene subsequently admitted.
In the eastern territory, near Trincomalee harbour, civilians and members of the
military rioted. On 25 and 27 July, some 53 Tamil ‘terrorists’ were killed in
Colombo jail, presumably with at least the collusion of their jailers. According to
S.J.Tambiah, many Tamils perceive a significant shift in the response of the
security forces to rioting over time: from 1958, when some apparently saved
Tamils, to 1977, when they evinced indifference, to the riots of 1981 and 1983,
when at least some members took part in the anti-Tamil violence.21
India, not surprisingly, has taken a great interest in events affecting its tiny
neighbour to the south for a number of reasons. In particular, India’s
southernmost state of Tamil Nadu shares at least broadly the same ethnicity as
the Tamils in Sri Lanka, and the riots in Colombo generated an influx of refugees
into Tamil Nadu. Even before this crisis, however, India had apparently trained
and supplied a different Tamil guerrilla group, the Tamil Eelam Liberation
Organization, and apparently trained some LTTE guerrillas.22 India was then
heavily involved in pushing for negotiations. In February 1987, however, it
withdrew its good offices as the talks broke down. India became increasingly
identified with the Tamil camp in the negotiations; this culminated in the dispute
between the nations over India’s shipment of food and medicine to the Jaffna
peninsula in early June. India announced its intent to send such goods on
unarmed ships; the prime minister of Sri Lanka called these moves provocative,
and stated that the military would protect the island and its territorial waters.
After 20 supply ships were turned back by the Sri Lanka navy, India delivered
the goods by airdrop. In a move that further allied it with the Tamils, the Indian
government, while pursuing negotiations with the Sri Lankan government,
allegedly made a number of key promises to the LTTE leader, including, inter
alia, that an interim government would be formed with the LTTE playing a
 SRI LANKA 185

prominent role and that the government of India would pay compensation to the
LTTE to keep up the organization once the rebels ceased to collect taxes.23
However, the agreement that was finally reached between India’s Prime
Minister Rajiv Gandhi and Jayewardene, the ‘Indo-Sri Lanka Agreement to
Establish Peace and Normalcy in Sri Lanka’, was rejected by the LTTE because
it was not consulted as well as for substantive reasons. The agreement, signed on
29 July 1987, provided for an Indian peacekeeping force (IPKF) in the north and
east; the plan was for the force to remain until elections could be held for a
regional council through which some power would be devolved to the Tamils.
The accord also called for the shift to a federal state structure through the 13th
amendment and a merger (temporarily at least) of the northern and eastern
provinces, as well as a recognition of Tamil as one of the official languages of
the nation.24
The Tamils objected that the pact would not entail any real autonomy for the
region.25 The LTTE was therefore uncooperative, handing over only a small
number of weapons to the IPKF. Further, the IPKF engaged in battles with the
rebels, and the populace at large was alienated by the excesses of the force,
which engaged in human rights abuses, indiscriminate shootings, rapes and
massacres. By the time the force left in March 1990, 1,155 Indian soldiers and
711 Tamil rebels had died, and India’s intervention had earned it the enmity of
both main ethnic groups. When India pulled out its forces, the LTTE quickly
destroyed the rival rebel militias that it had set up.26 On the other side, the accord
sparked Sinhalese rioting in the capital; the majority arguing that the government
had given too much to the Tamils. It is noteworthy that prominent among the
initially peaceful protesters were leaders of the SLFP, as well as members of the
JVP. These riots resulted in significant police crackdowns. The insurrection
between 1987 and 1989 resulted in killing by the military and related unofficial
armed groups of an estimated 40,000 Sinhalese suspects. In the environment of
growing political violence, President Premadasa was assassinated in May 1993.
Disappearances also took place outside the heart of the JVP uprising in the
south.27

Nascent attempts at reform

The question of devolution

Not surprisingly, the question of devolution of power to any degree to the Tamils
has been a thorny political issue. The question is increasingly polarized, with the
LTTE generally, though not all Tamils, insisting that only full autonomy will do,
while the government meanwhile fears a Sinhalese backlash in response to any
appearance of concessions to the Tamils. This has meant that not only is the war
a salient political issue, but so are devolution measures and questions of
constitutional reform such as weakening the executive presidency. As we discuss
186 SRI LANKA

below, questions of accountability for past abuses and curtailing future abuses
have recently been thrown into this already volatile political mix.
In late 1991, a parliamentary select committee began work on potential
solutions to the so-called national question, largely seeking to craft institutions to
enable a degree of devolution.28 These attempts were stalled by Tamil insistence
on a single merged unit in the northern and eastern provinces where they
dominated. An alternate Tamil proposal was that the constitution, defined by
‘unity’, become a ‘federal’ document. While this term is loaded in the Sri Lankan
context, frequently seen as a euphemism for secession, the shift in focus has
apparently helped spark more productive discussions; in late 1992, there was
provisional agreement within the parliamentary select committee on an Indian-
style federal system, though it remains to be seen to what degree this concept can
be implemented, given continued suspicion by many Tamil politicians.29
Following the May 1993 assassination of President Ranasinghe Premadasa,
the successor government moved away from some of the excesses of its
predecessor, disbanding a quasi-official police group that had been used to
terrorize opponents. Scheduled provincial elections held shortly after the
assassination were generally fair and resulted in a split between the UNP and the
SLFP with the former dominating.30 The military high command was somewhat
revamped, with a new head that many expected to have fewer political ties.
Local elections in early 1994 passed fairly peacefully, even in LTTE strongholds
where a boycott was declared, which many took as a positive sign.31
On 16 August 1994, parliamentary elections took place following an election
campaign marred by serious violence, fraud and actions by the police
demonstrating their partiality towards the ruling UNP.32 Nonetheless, the
People’s Alliance (PA), of which the SLFP was a member, replaced the UNP
government. Chandrika Kumaratunga became the new prime minister, with the
PA as part of a larger ruling coalition in a campaign that saw some violence as
usual, but was relatively more open than those in recent years. The PA ran on a
platform of negotiating an end to the conflict, dealing with human rights abuses
and corruption and strengthening democracy, and more generally depicted itself
as the party of change; it probably benefited from a general war-weariness in the
population.33 Another key feature of the PA’s campaign was that the executive
presidency was too strong and undermined democracy; while it seeks to abolish
the presidency and return to a parliamentary system, it lacks the two-thirds
majority to pass such a measure at this time.34 The ceasefire and peace
negotiations called in 2002 continued through mid-2003, but the final shape of
any post-accord state remained to be determined.
The PA under Kumaratunga had progressively modified its stance on ethnic
questions, coming to support the modification of local provincial councils to
allow for more Tamil autonomy and possibly the Tamil call for a unit in the
north-east. Kumaratunga had also criticized military excesses in the war in the
north, winning further minority support, as well as building coalitions with
Muslims and liberal Sinhalese. Shortly after the parliamentary elections, the new
 SRI LANKA 187

government announced plans to limit the emergency powers that the military and
police had possessed with regard to search, arrest and detention since the early
1970s. The new government also suspended a million arms contract with Russia,
and began easing the embargo against Jaffna.35
Despite UNP attempts to characterize the PA as the party that would lead the
country to a division, and the PA’s pledge in its platform to create new
administrative units to aid devolution, the PA won a clear majority among
Sinhalese voters, suggesting that they were willing to look for new solutions to
the problems in the north and east; in addition, the UNP crackdown on the JVP
and the PA’s emphasis on human rights probably aided the latter among some
JVP sympathizers. Nonetheless, the new government’s options would be limited:
while it sincerely sought a solution to the ethnic strife, it could not count on the
support of all Sinhalese, many of whom may have wanted to oust the UNP more
than they actually supported PA ethnic policies.36
The parliamentary elections were followed by presidential elections on 9
November. Mrs Kumaratunga became president and appointed her mother (a
former prime minister) as prime minister, decisively ending the UNP’s 17-year
rule, and giving the government an apparent mandate to negotiate with the LTTE.
The PA’s victory was interpreted as a sign that the populace sought an end to the
protracted conflict, and that the PA was the most likely to achieve that, not least
because Kumaratunga’s late husband ‘was the only leader of a major Sinhalese
party to have ever visited the north-east and shown a genuine interest in
reconciliation’.37 Kumaratunga came to office with at least perceived support for
her negotiation platform; similarly, the LTTE may have had incentives to
negotiate because of economic weakness, the costs of continued war, and the
lack of international recognition for their claims. The rebels began to suggest
that they would accept devolution in place of a homeland.38 Kumaratunga would
still be somewhat hamstrung by the political influence of the armed forces, who
formed a strong lobby not least because of their integral role in the maintenance
of public order. The military was particularly vocal in its refusal to agree to rebel
demands like the closure of a key base or to a formal ceasefire before the start of
peace talks. According to some, the military had an interest in perpetuating the war
because of the increased status and economic benefits that accrued to it. On the
other side, there remained the risk that the LTTE could always return to guerrilla
warfare, and that it would be unwilling to lay down its arms in the absence of
significant government demilitarization. Nonetheless, Kumaratunga negotiated
with the LTTE, reaching a ceasefire and agreement on development for the north
and east in early 1995; and talks generated hope for a confederate state.39
However, the peace process that began optimistically soon foundered. The
LTTE demanded substantive concessions before further discussions; in
particular, it sought the dismantling of a major army camp, an end to the
embargo on food and other supplies to the north, allowing Tamil fishermen to
fish certain waters, and permission for the LTTE to carry guns for self-protection
in the government-controlled eastern territory. When Kumaratunga refused to
188 SRI LANKA

dismantle the base, and rejected the request to carry guns, the Tigers questioned
her commitment. The food embargo was lifted but this step was difficult to
implement.40 In mid-April, the LTTE broke the truce and returned to the
battlefield, taking advantage of the government being off guard. As a result, the
government was embarrassed, and found it more difficult to advocate a
negotiated solution. The attempted counter-offensive was huge, but was widely
considered an unmitigated disaster.41 Unlike in 1987, when the Indian
government took an active part in the conflict by sending in the IPKF, there was
little official Indian response to the escalation in the conflict.42
These developments scuttled the government’s plan to propose a new
devolution package in negotiations, but it was officially announced in August.
The plan proposed a union of regions in which much power would devolve to
regional authorities, with powers like defence, foreign affairs and currency
reserved for the centre. In essence, the plan was federalism under the less loaded
name of devolution. One analyst has suggested that this relatively concessional
plan was a government attempt to bypass the LTTE and appeal directly to the war-
weary Tamil people. The plan faced some serious opposition from the Sinhalese,
in particular the Buddhist clergy, which was compounded by a simultaneous
government proposal to abolish the executive presidency; any such constitutional
reforms would require an approval by two-thirds of parliament. Further, the
reservation of defence and national security powers to the centre was of concern
to Tamils who feared a Sinhalese-dominated military. A further critique was that
the emphasis was on decentralization rather than reform of central institutions to
reflect the political and ethnic realities. Other Tamils objected that it was
insensitive of the government to propose the package while carrying out the
military offensive; the government presented the offensive as a war to achieve
peace, that is, to convince the LTTE that a resolution could not be reached
through force.43
Even as initiatives took place both on the battlefield and in the negotiations,
the government was fulfilling another campaign promise by creating three
regional investigative commissions into deaths and human rights abuses. The
commissions, set up largely to investigate complaints of rights abuses resulting
from the JVP revolt and widespread government crackdown in the 1988–90
period, heard tens of thousands of complaints; some 60,000 ‘disappeared’ may
have died at the hands of the government during this period; the JVP also
perpetrated human rights abuses. While these commissions may represent a step
forward, there were limits to the steps that the government could take against the
security forces on which it depended to wage war; indeed, some police officials
implicated in disappearances continued to hold high-level posts. The
commissions’ activities and reports are discussed in more detail below.44
In January 1996, a modified version of the peace and devolution plan, which
gave the central government some authority to remove regional governments
that seek to split, was proposed to parliament. This formulation was modified to
appease the Sinhalese, adding the word ‘indissoluble’ before the formulation
 SRI LANKA 189

‘union of regions’ to describe a future state structure. The proposal would give
regional councils greater power than the extant provincial ones, thus giving
ethnic groups greater control over issues like land, law and order, and taxation. It
did not, however, address the Tamil demand that the north and east be merged; in
addition, some Tamil parties charged that this proposal on devolution would
leave more power with the centre than others had.45 Contemporaneous with these
political overtures, in a two-track approach, the government launched offensives
that had significant success in taking Jaffna city and other LTTE strongholds. It
is worth noting that there have been reports that these advances were aided by
the help of US and western military advisers.46 Developing constitutional reform
packages dealt with the question of devolution, the question of the fate of the
executive presidency, and that of fundamental rights.47 We have discussed the
fundamental rights chapter of the constitution, inroads made into it through
various acts and regulations, and the obligations of the government under
international law; let us turn now to the development of the new draft
constitution.
By mid-1997, some analysts saw a significant decline in support for the PA
government: it still won in regional elections in March, but by a narrowed
margin. Negotiations over constitutional reform continued to stall because of
disagreements between the government and the opposition UNP over federalism,
the degree of authority to be granted to regional councils, and the combining of
the north and east into one body.48 The government continued, in conference
with the opposition, its attempts to craft a new draft constitution that would
address the issues of devolution, the executive presidency and fundamental
rights. Following a public relations debacle in March 1997 when the government
proudly unveiled a draft that was promptly disavowed by the opposition UNP,
the government retreated, and in October-November 1997 unveiled another draft
constitution for which it took sole responsibility.49
The new draft contained several innovations. First, it sought to democratize
state institutions by abolishing the executive presidency and establishing a
constitutional council for key appointments; second, the fundamental rights
chapter was strengthened; finally, further mechanisms were developed to
devolve power to regions.50 Under the 1978 constitution, Sri Lanka had moved
from a parliamentary system to one where the president was dominant: the
presidential system, with concomitant centralization of power and diminution of
the power of other institutions. The president could not only appoint and remove
the cabinet and heads of the armed forces, she could dissolve parliament with
relatively few impediments and possessed the vast powers given under the Public
Security Ordinance. The hope of many is that by abolishing the executive
presidency, allocating some of the president’s functions to other bodies and
creating greater checks on the president, the tendency towards authoritarian rule
by the president could be curbed. Under the draft, the prime minister is made the
head of the cabinet, the president’s wide immunity is removed, and the
president’s power of appointment to a range of offices must be done in
190 SRI LANKA

consultation with a constitutional council. However, she retains the power to

dissolve parliament and the powers under the Public Security Ordinance; and if
she wishes to dissolve a regional council she needs only the support of a simple
simple parliamentary majority.51
The addition of a right to life, which cannot be arbitrarily denied, is a key
innovation in fundamental rights in the 1997 draft, but not the only one. The
right to privacy was also enshrined, as well as expansion of freedom of
expression and freedom from arbitrary arrest or detention.52 In addition, under
the current constitution one can only challenge a bill on the grounds that it
violates fundamental rights within a week of its introduction to parliament; once
it becomes a law no challenge can be made. The new constitution would allow
for such challenges to bills within two weeks of introduction, and laws that
contravene the fundamental rights chapter of the constitution can be challenged
for up to two years after passage.53
Devolution is the thorniest political issue in the country and the constitutional
package, with many arguing that it is but a precursor to the dissolution of the
state through the secession of the north and east. This has led one commentator
to argue that there is an ‘almost morbid fear in Sri Lanka, of any arrangement which
even remotely resembles a federal structure’; this fear will make it difficult to
achieve the support of two-thirds of parliament and a simple majority of the
people that constitutional reform requires.54 The devolution in the proposed
constitution is symmetrical: the same set of powers would be handed over to
each regional council, which takes the place of the provisional councils
established after the 1987 Indo-Sri Lankan accord and the 13th amendment. The
difficult issue of whether to merge the northern and eastern regions was to be
resolved by a referendum in those areas. While detractors objected that the centre
still held too much power, a key advance was the protection against arbitrary
dissolution of local government; in the new constitution a tribunal would have to
approve the dissolution.55
This constitution took its share of criticism as well, from both ends of the
political spectrum. The UNP was concerned that the extent of devolution was too
far-reaching, and drafted counter-proposals that emphasized the need for a
unitary state. It would limit devolution, and the scope of powers of local
government. It would instead establish a second parliamentary chamber that would
ensure that ‘the minority communities would be adequately represented’;
representation for minorities in the cabinet; and a president and two vice-
presidents to represent the three main communities (Sinhalese, Tamil and
Muslim).56 On the other side, human rights groups have expressed concern about
the way in which the fundamental rights chapter of the draft constitution
continues to fall short of the guarantees provided in the ICCPR. They have
expressed concern that there are not attempts to curb the wide powers granted by
emergency regulations, nor are there specific provisions to guarantee minority
rights.57 In any event, the proposal continued to be stalled; there was some hope
 SRI LANKA 191

of its revival in September 199958 but, in early 2003 it had not been passed,
though current peace negotiations may give cause for hope.

The question of accountability

Kumaratunga’s government moved quickly to carry out the campaign promise of
investigating disappearances and killings, though the small regional commissions
encountered resistance from the military and police who denied knowledge of
abuses.59 Other steps towards protection of human rights included plans to have
senior military officers investigate claims of disappearances in the north and
east, and the government’s creation of a human rights commission under the
president’s direct supervision to monitor complaints that the military, police and
other state bodies have violated human rights.60 In September 1997, the final
reports of the three commissions of inquiry were handed over to the president,
and it was announced that their contents would be made public. In September
1997, the government publicly acknowledged that between 16,000 and 17,000
had disappeared during the crackdown on the JVP, and promised to prosecute the
perpetrators. Even a military commander in Jaffna made an unusual public
promise to guard against future abuses.61
The reports were released in September 1997; they addressed political
violence by both sides around the country dating back to 1988. The commissions
apparently inherited 5,000 complaints from a 1991 commission of inquiry into
‘involuntary removal’ of persons.62 A key concern of human rights advocates was
that they did not inquire into violence before 1988 or (according to them) after
the Kumaratunga administration came into power. In July, the government
appointed a unified nationwide commission to address 12,000 complaints not
addressed by the previous reports, but its mandate did not include these
previously excluded events.63 The reports were extensive, although the degree of
investigation varied significantly by region.64 The creation of three commissions
rather than one was, in fact, the source of considerable criticism by human rights
groups. While the mandates were the same, some commissions appear to have
undertaken to extend their inquiries to later dates, or even name names, while
others have not. Thus, for example, the commission investigating disappearances
in the north and east had considerably less information, largely because of the
security situation at the time in which it began its work. In particular, in Jaffna,
the LTTE stronghold, the situation was such that the commission could not go to
the region and investigate complaints, but instead invited Tamils residing outside
the region to come to the capital and file with the commission at the ministry of
justice.65 Another obstacle to reporting was that military uniforms do not contain
the name or rank of the person wearing them, making definitive identification of
perpetrators difficult save in those exceptional cases of particularly notorious
perpetrators. Further, even in instances where the name of the perpetrator was
known, the army was less than forthcoming with information.66
192 SRI LANKA

There was no consistency among reports regarding identification of

perpetrators. While the report for the northern and eastern provinces provided a
list of victims and individuals alleged to be perpetrators, the two other reports did
not; the report for the western and southern region explicitly ruled out such a list
citing the need for confidentiality pending further investigations.67 There was
also no consistency with regard to methodology or marshalling of information. All
three commissions used the same form to solicit information from relations of
the disappeared, but only one commission utilized extensive statistical analysis to
identify those hardest hit. It was this commission, then, that went the furthest in
attempting to identify not just the victims (and perpetrators) of disappearances,
but the pattern of violence in general, an important key to addressing the
foundations of such crimes.68 The commissions also did not all address the same
period of time. While the mandates for all referred to the investigation of
disappearances ‘at any time after 1 January 1988’,69 one report addressed
disappearances up to 1991, another up to 1996, and one was less clear about its
cut-off.70 Nonetheless, the initial accusations by human rights advocates that the
commissions would be loath to examine any abuses under the Kumaratunga
administration appear to have been somewhat excessive, although the record after
1994 is spotty.
The reports made suggestions (again with varying degrees of thoroughness)
regarding steps to be taken to redress past abuses and prevent future ones. These
included punishment of perpetrators, an overhaul of the emergency regulations
that facilitated the abuses, education of the police and armed forces in human
rights and humanitarian norms, and compensation to victims and their families.71
On 30 April 1998, the president established a new, nationwide commission,
whose mandate was investigate those reports of disappearances that the previous
three commissions had been unable to address or resolve.72 Again, the
commission faced heavy criticism for its limited mandate. While it did not
address complaints before January 1988, it would investigate complaints that
continued to be received until shortly before the previous commissions
completed work in September 1997.73
A small step was taken with regard to the disappearances in Jaffna following
the government’s recovery of it in 1996. In November 1996, the government
established a board of investigation at the ministry of defence; by November
1997, only 180 of 760 complaints were traced. The Ministry of Foreign Affairs
subsequently stated that the newly established human rights commission,
discussed below, was investigating 274 cases of disappearances in Jaffna. The
US Department of State states that there were 350 confirmed disappearances in
Jaffna in 1996. Nonetheless, the unified commission has yet to follow up on the
disappearances in Jaffna, cancelling a trip there in late 1998 on the grounds that
it could not trace many complaints.74
The commissions of inquiry into disappearances were not the only attempts to
address human rights that the government initiated. A complaint mechanism was
set up in the form of the office of the ombudsman as early as 1981, though that
 SRI LANKA 193

proved to be woefully ineffective, not least because of a forbidding procedure for

registering complaints. Even prior to the Kumaratunga regime, there had existed
within the ministry of defence a committee to monitor detention centres.75
In 1996, the parliament passed a bill establishing the human rights
commission, which was empowered to inquire into complaints regarding
procedures of government bodies with a view to ensuring their compliance with
the constitution; to inquire into complaints regarding infringements or imminent
infringements of human rights, and to provide for resolution via conciliation and
mediation; to advise the government in formulating legislation to further human
rights; to make recommendations to the government regarding human rights
treaties; and to promote awareness and education with regard to human rights. If
conciliation fails, the commission can recommend to the state that redress be
offered to the victim and the practice in question modified, but it cannot impose
binding orders.76
The commission bill and ultimate act drew fire from human rights advocates,
who viewed it as too weak. A key concern was that the commission covered only
the fundamental rights enshrined in the Sri Lankan constitution, not the wider
rights of the International Convention on Civil and Political Rights to which the
country was a party. Other objections were that the human rights commission
would take over the duty of its predecessor, the human rights task force, in
monitoring the welfare of detainees, but that the regulations surrounding
detention would be weakened; and that the commission would be limited to
addressing individual allegations, and would be unable to look into larger
situations, incidents and administrative practices. Finally commentators pointed
to the large number of human rights bodies extant and expressed concern that
there would be a proliferation of bodies that were not particularly effective.77 In
defence of the commission, it was a more efficient and less expensive way of
having fundamental and human rights complaints addressed than bringing a case
to the supreme court. In addition, fundamental rights cases had to be brought
before the supreme court within one month of the violation; complaints brought
to the commission first could be brought before the court up to one year later.78
The human rights commission began operating on 17 March 1997; a key
feature of the new rules pertaining to human rights is that the police and army
must report all arrests to it within 48 hours, including arrests under the
Prevention of Terrorism Act. However, it has faced the criticism that it has failed
to take any significant action. It has yet to exercise its power to initiate and
intervene in legislation, and according to one commentator failed to take any
drastic actions in its first year of operations. Most of its work has been devoted to
monitoring the treatment of those placed in custody under the PTA and
emergency regulations.79
Finally, in response to complaints regarding abuses occurring through the use
of checkpoints and late-night sweeps, in 1998 the president set up the president’s
committee on unlawful arrests and harassments, to which arrestees or their
proxies could bring complaints regarding mistreatment in such circumstances,
194 SRI LANKA

and which could recommend disciplinary action for police officers or military
members responsible for abuses.80

Accountability and prosecution

Initial steps to curb human rights abuses by the security forces took place in
1995, with the arrests of 18 members of the security forces and seven civilian
informants; ten of those arrested were members of the special task force, a
security body in the police that performed military functions and had acted with
particular impunity. A total of 22 members of the special task force were arrested
in 1995, but were released on bail and soon resumed police duties; the case has
been delayed several times by the failure of the prosecution to appear at court
proceedings.81
Prosecutions for abuses in the north against Tamils took place in mid-1998.
While the government admits that some 500 Tamil civilians have disappeared
since the retaking of LTTE territory in mid-1996, a key case dealt with the
killings of four Tamils. In it, six soldiers and a reserve police officer were
convicted and sentenced to be executed in the September 1996 killings. A soldier
convicted in the case claimed to know the location of a mass grave containing
400 victims; while the government ordered a police investigation little progress
was made.82 In other cases of abuse involving the security forces, however, those
charged remained free and even on the job. On a more positive note, in August
1998, five senior police officers were suspended in connection with charges of
torture and extrajudicial execution at a government detention centre at the
Batalanda housing estate.83 In February 1999, another landmark case was
concluded. In the case involving the disappearance of 32 schoolboys in
Embilipitiya, seven of the nine persons accused, all but one security personnel,
were convicted and sentenced to about ten years in prison.84

Reactions of the security forces to commissions and

prosecutions
Unlike many other countries examined in this book, the police and armed forces
have not publicly expressed significant opposition to the commissions of inquiry
or prosecutions, though, as has already been discussed, they were frequently
intransigent in refusing to aid such investigations. What threats there were
appear to have been posed by individual members of the police to witnesses in
judicial cases and even to members of a commission, but not posed by the
branches of service themselves.85 As I discuss below, this may result from the
traditional separation of the military from politics in Sri Lanka; unlike many
countries in Latin America, there is in doctrine and practice, civilian control over
the military. Additional pressure was put on the government, and the security
forces by extension, in mid-1998 by a scathing report by the UN Human Rights
Commission’s special rapporteur, which stated that ‘extrajudicial, summary, or
 SRI LANKA 195

arbitrary executions amongst the civilian population have become an almost

ubiquitous feature of daily life in Sri Lanka’.86
Even as the government sought to reveal and punish past abuses, there was a
crackdown on civil liberties in the country. The arrest and detention of Tamils
based solely on ethnicity escalated, political assassinations continued
and restrictions on journalism tightened. On 4 August 1998, the government
imposed a state of emergency and cancelled elections scheduled for 28 August.
This continued the trend of 1997, when emergency rule was progressively
applied across the country and strictures on publishing increased, most notably
with a large number of defamation actions brought by the government (including
the president) against the press.87

Trade-offs: the security forces, reform and accountability

Accountability
Surprising advances in the area of accountability have been made, with the
conclusion of a number of notorious cases. However, the prosecution of high-
profile cases should not be confused with a broader attempt at accountability:
many more instances of abuse and even massacre remain unaddressed.
Nonetheless, it is significant not only that the commissions of inquiry proceeded
but that the prosecutions did as well with a minimum of backlash by those
targeted.

Institutional reform: context and progress

To understand the impediments to reform of the security forces one must
understand the nature of the military in Sri Lanka: security forces completely
lack minority representation, facilitating impunity. This is the case even though,
at independence, minorities were in fact overrepresented in the armed forces,
comprising three-fifths in 1949. This would change, however, because of
amendments to the recruitment system, which resulted in the overrepresentation
of Sinhalese: by 1960, they comprised 100 per cent of the armed forces. As
important as the makeup of the military, however, is its conception of its role and
mission: it has never fought a foreign power, so it is conceptualized entirely as an
internal security force. While it exists formally to deter external aggression, the
conflict with the LTTE provides it with its true raison d’être. The military thus
views its mission as internal security, viewing itself as the key player in conflict
resolution. It is worth noting that it was not only the LTTE threat that created
this internal emphasis; most of the senior military officers were mid-level
officers during the JVP uprising, so their embattled mentality will be slow to
change.88
196 SRI LANKA

In addition, not only do makeup and mission lead to a biased and overly
politicized military; the military’s war in the north and east commands a huge
budget, which one might expect them to be loath to give up. Civilian control has
also been progressively limited; until the 1980s, the secretary of defence was a
civilian; now the post is held by military officers. Further, the need to prosecute
the war has limited even civilian oversight and knowledge: parliament cannot
scrutinize the military budget or planned acquisitions.89
Nonetheless, the difference between the Sri Lankan military and some of the
Latin American militaries already discussed should be emphasized. As one
observer put it, the Sri Lankan military inherited from the British the Sandhurst
tradition, through which they were imbued with professionalism and
subordination to civilian rule, unlike the Latin American cases, in which
militaries were never properly subordinated to civilian rule. In fact, the problem
was the reverse: that the security forces were used as political tools by cunning
civilian politicians.90 Excesses occurred, according to one observer, as a result of
overreactions from above. Fighting an insurrection, first in the south and later in
the north and east, the government demanded results on a significant scale: as a
result, police and military netted large numbers of ‘suspects’ in an attempt to
catch real rebels. On this account, the civilian government developed something
of a dictatorship mentality, facilitated by the executive presidency. The military
and the civil service were heavily influenced by this environment, with few
institutional limitations placed on the abuses that proliferated.91 The reason,
then, that high-level military officers have not been prosecuted in Sri Lanka is not
that there is a fear that they will stage a coup or otherwise disrupt civilian rule,
but that the civilian rulers are dependent upon the military to prosecute the war
against the LTTE rebels.92
The police, also in a significant divergence from the Latin American pattern,
were initially purely peace officers; their role changed drastically after the 1971
JVP uprising, when the police suddenly found themselves in the role of
defending national security and granted extraordinary powers under the
emergency regulations. In the process they became increasingly militarized and
politicized, taking direct orders from politicians.93 The police need not only to be
disengaged from military activities, but made more sensitive to human rights
issues: efforts are being made to educate police that are parallel to those efforts
to educate the military and, according to the trainers, at least, some headway has
been made.94 In addition, some analysts have argued that the police need to be
restructured internally as well: they currently have responsibility for information/
intelligence, investigation and prosecution, and the claim is that the prosecution
role needs to be placed in separate hands. This is the case because otherwise
there is a perverse incentive for the police not to investigate, but simply to seek a
conviction.95
Fewer advances have been made in the area of reform of the security forces:
attempts have been made only at the margins in the arena of education about
human rights. A nascent attempt at curbing human rights abuses has begun with
 SRI LANKA 197

a joint effort between the centre for the study of human rights and the Kotalawela
defence academy. Training seeks to teach both cadets and their teachers to be
more respectful of human rights. The first efforts were made in a pilot programme
in 1993 for armed forces and police; these have continued to the present date in
altered forms despite the fact that many in the armed forces are suspicious of
human rights rhetoric, seeing it as driven by partisan interests. In fact, some
organizers argue that the response of the participants has demonstrated that
learning and attitudinal changes are taking place.96

Military budgets
In 1998, the budget allocated to defence reached 45 billion rupees, more than the
combined budget for the final seven years of UNP rule, apparently part of the
government’s push to retake large chunks of Jaffna. The projected budget for
1999 was yet higher, 47 billion rupees, continuing a spike in the defence budget,
which stood at 24 billion in 1995.97

Discussion: key elements of political change

International factors
The role of India in the conflict should not be underestimated, both for its role as
mediator and intervener. Because some 60 million Tamils live in India, the
majority in Tamil Nadu, India’s politicians cannot afford to ignore the crisis in
Sri Lanka on purely domestic political grounds. Others have argued that India’s
interest in the conflict is also socio-cultural because of the historic links between
the nations; at the very least India is concerned not only with politics in the state
of Tamil Nadu but also the fate of the Tamils in Sri Lanka who are of Indian origin.
Finally, India’s security perception, according to some, necessitates that such
regional conflicts be kept under control; its leaders feel that, as a major regional
power, it must act.98 However, while India played a central role in the conflict in
the past, it has maintained a studied silence with regard to the conflict of late.
K.M.de Silva argues that India’s involvement had significant impact, as sponsor
and supplier of one side. More importantly, de Silva notes that international
involvement can cause a hardening or softening of positions, a lengthening or
shortening of conflicts.99 This case is unusual in that the presence of the USA
does not loom large either in the war or prospects for peace. However, there may
yet be some role to play: one analyst notes that the USA has traditionally had
close ties to UNP governments, and might be able to use its influence upon the
opposition UNP to compromise.100
198 SRI LANKA

Duration of conflict
While the ‘hurting stalemate’ may not be as apparent to the relevant political
actors in Sri Lanka as it was in, say, El Salvador, there can be no question that
after a decade and a half of war and 55,000 deaths many are questioning the
utility of fighting, on both sides. Some analysts would argue that this sentiment
was behind the election of Kumaratunga and her platform of negotiation,
accountability and reform. Nonetheless, the war continues as negotiations have
failed to produce lasting agreements.

Balance of forces/civil-military issues

While the military’s offensive in 1995 eventually led to the recapture of the
LTTE’s de facto seat of government, Jaffna City, after five years, it has proven
less easy for the military to defeat the rebels. The assassinations, bombings and
battles are thought to have led to 55,000 deaths over the years; while the Tigers
have been pushed out of Jaffna and many civilians have begun to return, the
LTTE is not defeated militarily, and it continues to carry out terrorist
bombings.101
Between 1978 and 1982, the government had an army of about 13,000, though
it was inexperienced and initially ill-disciplined. The country also had 14,000
police. While the Tamils appeared to be overmatched, they learned guerrilla
warfare skills and soon posed a real threat to government control over the north
and east. By 1987, it was estimated that there were 5,000 Tamil activists with
another 8,000 reserves. On some accounts, these guerrillas were able to inflict a
hurting stalemate, both through direct attacks and creating an environment
harming aid, investment and tourism.102 The security forces in 1997 comprised a
police force of 50,000, which has been used not only for internal security but
also in anti-LTTE military operations, and military bodies comprising an army of
118,000, navy of 12,500 and an air force of 10,000. In addition, there existed the
special task force to battle the LTTE, 5,000 ‘home guards’ of local communities
that gave security to Muslim and Sinhalese villages near the war zone, and the
government-armed Tamil militias opposed to the LTTE. This represented a
steady increase from the 1995 and 1996 numbers of 50,000 police and 80,000
army; it was in 1995 that the home guards were increased from 1,000 to 5,000.103

Lessons
Sri Lanka is an unusual case in several respects: it is a case of a continuing
democracy facing an ongoing civil war that has sought to come to terms with past
and ongoing abuses through the creation of commissions of inquiry, a human
rights commission and some prosecutions. Nonetheless, as this chapter has
shown, even a democratic country without a coup-prone military will have some
difficulty in addressing the legacy of the past. Even war-exhaustion has not been
 SRI LANKA 199

sufficient to end the conflict and generate true reform, and international factors
have not aided reform. Here, concerns about continuing to support the
institutions necessary to prosecute the war in the north were more prominent than
fears of a coup; as a result, as in many other countries, some compromises were
necessary. While advances have been made in addressing the legacy of the past
through a significant, if incomplete, outing of the truth and some high-profile
prosecutions, institutional and constitutional reform has been much more
difficult to achieve, as has a negotiated solution to the situation in the north and
east.

Notes

1 K.M.de Silva, ‘Sri Lanka: Surviving Ethnic Strife’, Journal of Democracy, 8, 1

(January 1997), p. 97.
2 As becomes clear below, the fact that there has been enfranchisement and voting
does not mean that there has not been intimidation and manipulation of the polity
through propaganda, but the formal structures have remained.
3 Sumantra Bose, States, Nations, Sovereignty: Sri Lanka, India, and the Tamil
Eelam Movement (New Delhi: Sage, 1994), p. 45; Dennis Austin, Democracy and
Violence in India and Sri Lanka (London: Pinter, 1994), p. xvii; for a general
journalistic view, see William McGowan, Only Man is Vile: The Tragedy of Sri
Lanka (New York: Farrar, Straus & Giroux, 1992).
4 Jonathan Spencer, A Sinhala Village in a Time of Trouble: Politics and Change in
Rural Sri Lanka (Delhi: Oxford University Press, 1990), p. 18; Spencer,
‘Introduction: The Power of the Past’, in Spencer (ed.), Sri Lanka: History and the
Roots of Conflict (London: Routledge, 1990), p. 9; Howard Wriggins, ‘Sri Lanka:
Negotiations in a Secessionist Conflict’, in Zartman (ed.), Elusive Peace, p. 36.
5 Austin, Democracy and Violence, p. 62. The Sinhalese, who speak Sinhalese and
are largely Buddhist, comprise approximately 74 per cent of the population, while
the Tamils, who speak Tamil and are largely Hindu, comprise about 18 per cent of
the population, largely concentrated in the north and east, though with a significant
minority in the capital. For a general overview of the religious/ethnic divisions and
their relationships to conflict, see Douglas M.Johnston, ‘Religion and Conflict
Resolution’, Fletcher Forum of World Affairs, 20, 1 (Winter/Spring 1996), pp. 53–
61.
6 Stanley J.Tambiah, Sri Lanka: Ethnic Fratricide and the Dismantling of
Democracy (Chicago, IL: University of Chicago Press, 1986), p. 13; Tambiah,
Leveling Crowds: Ethnonationalist Conflicts and Collective Violence in South Asia
(Berkeley, CA: University of California Press, 1996), pp. 15–16. On the rise of
Tamil identity assertion, see Ambalavanar Sivaraja, Politics of Tamil Nationalism
in Sri Lanka (New Delhi: South Asian Publishers, 1996).
7 Constitution of the Democratic Socialist Republic of Sri Lanka, Articles 10, 11, 12
and 13.
8 Nadesan Centre, Emergency Law, Docinform 41 (1992), pp. 3–4. The most salient
of these regulations for our purposes are those pertaining to the repression of
subversion and maintenance of public order, though the regulations are used in
200 SRI LANKA

myriad ways, encompassing the creation of universities and validation of drivers’

licences. See also the update of the regulations, Docinform 65 (1994); and see
further regulations in emergency regulations No. 4 of 1994, The Gazette of the
Democratic Socialist Republic of Sri Lanka, Extraordinary (4 November 1994).
9 Bose, States, Nations, Sovereignty, pp. 74, 79; Tambiah, Sri Lanka, pp. 42–5,
argues that the Act has progressively generated the very militancy and separatist
sentiments it was meant to repress.
10 Amnesty International, ‘Security Measures Violate Human Rights’ (July 1995), AI
Index ASA 37/12/95, p. 3; Ministry of Justice, Constitutional Affairs and National
Integration, The Government’s Proposals for Constitutional Reform (Colombo:
Department of Government Printing, 1997); Amnesty International, ‘Sri Lanka:
Security Measures’, p. 17; for more on the relation of new draft rights to extant law,
see Nayana, ‘New Rights Clash with Existing Laws’, The Island (4 May 1997), p.
16. Legal analysts have concluded that there is a general failure to incorporate
international human rights instruments by legislation or judicial precedent, see
Asian Legal Resource Centre Limited, Human Rights Related Legal Reforms in Sri
Lanka: The Final Document (Hong Kong: ALCRL, 1996), p. 3.
11 Robert A.Denemark, ‘Democracy and the World System: The Political Economy
of Sri Lanka’s Vicious Electoral Cycle’, in Chronis Polychroniou (ed.), Issues and
Perspectives in International Political Economy (Westport, CT: Praeger, 1992),
pp. 194–6. On the assassination more generally, see A.C.Alles, The Assassination
of a Prime Minister (New York: Vantage Press, 1986); Donald L.Horowitz, Coup
Theories and Officers’ Motives: Sri Lanka in Comparative Prespective (Princeton,
NJ: Princeton University Press, 1980) passim and pp. 146, 208.
12 Denemark, ‘Democracy and the World System’, pp. 203–4; Tambiah, Sri Lanka,
pp. 13–14.
13 Bose, States, Nations, Sovereignty, pp. 46, 68–72; Bruce Matthews, ‘Devolution of
Power in Sri Lanka’, The Round Table, 330 (1994), p. 233.
14 Steven Kemper, ‘J.R.Jayewardene, Righteousness, and Realpolitik’, in Spencer
(ed.), Sri Lanka, pp. 191, 200–1.
15 Bose, States, Nations, Sovereignty, pp. 74, 94.
16 Matthews, ‘Devolution of Power in Sri Lanka’, p. 234; de Silva, ‘Sri Lanka’, p.
103.
17 Prevention of Terrorism Act, Gazette (1979), no. 48, and Prevention of Terrorism,
Amendment to the Prevention of Terrorism Act, Gazette (19 March 1982), pt II,
supp.; Bose, States, Nations, Sovereignty, pp. 74, 79; Tambiah, Sri Lanka, pp. 42–5,
argues that the act has progressively generated the very militancy and separatist
sentiments it was meant to repress.
18 Tambiah, Leveling Crowds, pp. 226–9.
19 Bose, States, Nations, Sovereignty, p. 73; Tambiah, Sri Lanka, pp. 15, 22;
Tambiah, Leveling Crowds, pp. 94–100; Denemark, ‘Democracy and the World
System’, p. 206; Marshall R.Singer, ‘Sri Lanka’s Ethnic Conflict: Have Bombs
Shattered Hopes for Peace?’, Asian Survey, 36, 11 (November 1996), p. 1149.
20 Austin, Democracy and Violence, p. 74.
21 Tambiah, Sri Lanka, pp. 16, 25 and 26.
22 Bose, States, Nations, Sovereignty, pp. 139–41; S.D.Muni, Pangs of Proximity:
India and Sri Lanka’s Ethnic Crisis (New Delhi: Sage, 1993), pp. 74–5; see
 SRI LANKA 201

Ponmoni Sahadevan, India and Overseas Indians: The Case of Sri Lanka (New
Delhi: Kalinga Publications, 1995).
23 Muni, Pangs of Proximity, pp. 94–5, 102–3 and 201.
24 Bose, States, Nations, Sovereignty, pp. 131, 153–6. For the text of the accord, see
Austin, Democracy and Violence, pp. 87–92; Partha S.Ghosh, ‘Sinhala-Tamil
Ethnic Conflict and India’, Economic and Political Weekly (24 June 1995), p.
1486; Muni, Pangs of Proximity, p. 105, points out that pride of place is still given
to the Sinhalese language. Under the amendment, the president can dissolve the
administration of a province: see International Centre for Ethnic Studies, Sri
Lanka: The Devolution Debate (Colombo: International Centre for Ethnic Studies,
1996), p. 232.
25 These provincial councils, while ostensibly meant to begin the devolution of power
to Tamils, were instead used to aid decentralization of government in general.
Matthews, ‘Devolution of Power in Sri Lanka’, p. 235. Other regional councils, set
up in other legislation that year, the Pradeshiya Sabhas, have shown somewhat
more promise: ibid., pp. 235–6.
26 See Barnett R.Rubin, Cycles of Violence: Human Rights in Sri Lanka since the
Indo-Sri Lanka Agreement (Washington, DC: Asia Watch, December 1987); Bose,
States, Nations, Sovereignty, pp. 131–4, 157–8, 166. On the other side, the JVP was
angered by the presence of a foreign force on its soil, believing it another sign that
the government was too soft towards the Tamils and a pawn of India: Austin,
Democracy and Violence, pp. 74–5.
27 Tambiah, Leveling Crowds, p. 271; Mick Moore, “‘Guided Democracy” in Sri
Lanka: The Electoral Dimension’, Journal of Commonwealth and
Comparative Politics, 32, 1 (March 1994), p. 1; S.Guhan, ‘Indo-Sri Lanka
Discord’, Economic and Political Weekly (7 January 1995), p. 35.
28 Matthews, ‘Devolution of Power in Sri Lanka’, p. 237.
29 Matthews, ‘Devolution of Power in Sri Lanka’, pp. 238–40.
30 Moore, “‘Guided Democracy’”, pp. 1–2.
31 ‘Sri Lanka: In the Tigers’ Den’, The Economist (5 March 1994), pp. 38–9,
discusses the appointment as commander of Gerry de Silva, a Roman Catholic
married to a Tamil, as a positive signal; see also Manik de Silva, ‘Silent Tigers’,
Far Eastern Economic Review (17 March 1994), p. 28. See also John-Thor
Dahlburg, ‘Sri Lankans got to Polls in East Despite Tamil Boycott’, Los Angeles
Times (2 March 1994), p. A9. These elections also showed a surprising surge in
support for the People’s Alliance in the south: see Manik de Silva, ‘Southern
Surprise’, Far Eastern Economic Review (7 April 1994), p. 20.
32 Inform, ‘Parliamentary Elections 1994: Special Report 1: Polls Related Violence’
(Colombo: Inform/Movement for Free and Fair Elections photocopy, July 1994), p.
13; Movement for Free and Fair Elections, ‘Interim Report on the Sri Lanka
Parliamentary Elections of August 16th 1994’ (Rajaginya, Sri Lanka: Movement for
Free and Fair Elections photocopy, October 1994), pp. 2–19; International Human
Rights Law Group, ‘Report of the International NGO Observer Mission to the Sri
Lanka Parliamentary Elections’ (Washington, DC: International Human Rights Law
Group, 1994), pp. 1–6.
33 Mrs Kumaratunga, the daughter of two former prime ministers, had left the country
for a few years following the assassination of her husband in 1988, apparently by
the JVP: S.W.R.de A.Samarasinghe, ‘The 1994 Parliamentary Elections in Sri
202 SRI LANKA

Lanka: A Vote for Good Governance’, Asian Survey, 34, 12 (December 1994), pp.
1019, 1021–2, 1024–6. See also, from the perspective of an election monitor,
Richard Bourne, ‘Observing Sri Lanka’s Parliamentary Election’, The Round Table,
333 (1995), pp. 67, 69–71; Mervyn de Silva, ‘New Broom’, Far Eastern Economic
Review (1 September 1994), p. 16. She also took a big symbolic step by publicizing
the mass grave of students killed by security forces during the 1989 crackdown: see
Gamini Keerawella and Rohan Samarajiva, ‘Sri Lanka in 1993’, Asian Survey, 34,
2 (February 1994), p. 171; Singer, ‘Sri Lanka’s Ethnic Conflict’, p. 1150; Hu
Guangyao, ‘Why the Sri Lankan People’s Alliance Won’, Beijing Review (5–11
September), p. 21; John F.Burns, ‘Long-ruling Sri Lanka Party Makes Way for 3rd
in Dynasty’, New York Times (19 August 1994), p. A8.
34 Samarasinghe, ‘The 1994 Parliamentary Elections’, p. 1031; Bourne, ‘Observing
Sri Lanka’s’, p. 67; de Silva, ‘Sri Lanka’, p. 104.
35 Chandra R.De Silva, ‘The Elections of 1994 in Sri Lanka: Background and
Analysis’ The Round Table, 34 (1995), pp. 211–12; John F.Burns, ‘Sri Lankan
Rebels and New Government Agree to Talks’, New York Times (5 September
1994), sec. 1, p. 5.
36 Samarasinghe, ‘The 1994 Parliamentary Elections’, pp. 1027, 1032.
37 De Silva, ‘The Elections of 1994’, pp. 207, 212; de Silva, ‘Sri Lanka’, p. 109; ‘Sri
Lanka: Vote for Reconciliation’, Economic and Political Weekly (20 August 1994).
38 Sumantra Bose, ‘Tamil Self-determination in Sri Lanka: Challenges and
Prospects’, Economic and Political Weekly (24 September 1994), p. 2537; A.G.
Noorani, ‘Challenge of Power-sharing in Sri Lanka’, Economic and Political
Weekly (25 March 1995), p. 622.
39 Mervyn de Silva, ‘War and Peace: Army Halts Offensive as Peace Process Gets
Under Way’, Far Eastern Economic Review (13 October 1994), p. 32; Bose,
‘Tamil Self-determination’, pp. 2537–9. This was a concern also raised by the
military in objection to peace talks: see Mervyn de Silva, ‘The Lady’s Mandate:
Kumaratunga Sees Her Win as a Vote for Peace’, Far Eastern Economic
Review (24 November 1994), p. 24; De Silva, ‘The Elections of 1994’, p. 214;
John-Thor Dahlburg, ‘Sri Lanka Truce Raises Peace Hopes’, Los Angeles Times (7
January 1995), p. A12. In addition to the ceasefire, the parties agreed on a plan to
rebuild the north worth some million.
40 Howard B.Schaffer, ‘Sri Lanka in 1995: A Difficult and Disappointing Year’,
Asian Survey, 36, 2 (February 1996), p. 217; Singer, ‘Sri Lanka’s Ethnic Conflict’,
pp. 1150–1; ‘Darkness Visible’, The Economist (4 March 1995), p. 37.
41 Schaffer, ‘Sri Lanka in 1995’, pp. 217–18; Manik de Silva, ‘Back to War: Tamil
Rebels Break Truce with Major Attacks’, Far Eastern Economic Review (25 May
1995), p. 21; Singer, ‘Sri Lanka’s Ethnic Conflict’, p. 1151; Sumantra Bose, ‘War
and Peace in Sri Lanka: Government’s Reform Proposals and Beyond’, Economic
and Political Weekly (30 September 1995), p. 2426.
42 Meanwhile, India had apparently intercepted arms shipments bound for the Tamils
in Jaffna and prevented rebels from coming into India: see ‘This Time, Delhi is
Keeping Quiet’, Asiaweek (17 November 1995), p. 34.
43 Singer, ‘Sri Lanka’s Ethnic Conflict’, pp. 1151–2. On the offensive in Jaffna, see
Suzanne Goldenberg, ‘Retreat for the Tigers of Jaffna’, The Guardian (7
November 1995), p. T6; Schaffer, ‘Sri Lanka in 1995’, pp. 219–1; Lakshman
Marasinghe, ‘Some Thoughts on the Devolution Package’, in International Centre
 SRI LANKA 203

for Ethnic Studies, Sri Lanka: The Devolution Debate, p. 16. Rumours have
circulated that, to that end, Kumaratunga ‘informally agreed to the formation of a
Tamil “regiment” or “brigade” in the army’: Sumantra Bose, ‘War and Peace in Sri
Lanka: Government’s Reform Proposals and Beyond’, Economic and Political
Weekly (30 September 1995), pp. 2424–5; G.G.Ponnambalam (General Secretary,
All-Ceylon Tamil Congress), ‘Package Not a Matter to Laugh at’, Sunday Times
(10 September 1995); Jayadeva Uyangoda, ‘Extremism Pays Not; Moderation
Does’, Sunday Times (3 September 1995); Reggie Fernando, ‘War to Persuade
LTTE to Talk Peace’, Sunday Observer (11 June 1995), p. 3.
44 ‘Voices of the Dead’, The Economist (15 April 1995), p. 37; Molly Moore, ‘Sri
Lanka: A Nation Divided’, Washington Post (9 May 1993), p. A25. For a
journalistic account of the so-called death squads, see Steve Coll, ‘Silence in the
Killing Zone’, Washington Post Magazine (16 January 1994), p. W16; John F.
Burns, ‘Sri Lankans Hear Details of Decade of Slaughter’, New York Times (21
May 1995), sec. l, p. 10.
45 For the text of this proposal, see International Centre for Ethnic Studies, Sri Lanka:
The Devolution Debate, Appendix C. See also ‘An Indissoluble Solution?’, The
Economist (20 January 1996), p. 34; Neelan Tiruchelvam, ‘Rough Edges’, Far
Eastern Economic Review (15 February 1996), p. 28; Neelan Tiruchelvam,
‘Devolution of Power, the Problems and Challenges’, in International Centre for
Ethnic Studies, Sri Lanka: The Devolution Debate, pp. 40–1. See also Manik de
Silva, ‘Carrot and Stick: Colombo Proposes to Give Tamils Greater Autonomy’,
Far Eastern Economic Review (1 February 1996), p. 21.
46 Singer, ‘Sri Lanka’s Ethnic Conflict’, pp. 1152–3. In an apparent response to the
government advances in Jaffna, a bomb was placed in Colombo, killing 80. See
Manik de Silva, ‘Cornered in Colombo’, Far Eastern Economic Review (15 February
1996), pp. 14–15. Uli Schmetzer, ‘Tide Runs Against Sri Lanka Rebels; US
Advisers Help Government in Drive to Defeat Tamils’, Chicago Tribune (8 August
1996), p. 10.
47 For a cogent analysis of the politics and the jurisprudence surrounding the existing
constitution, see Radhika Coomaraswamy, Ideology and the Constitution: Essays
on Constitutional Jurisprudence (Colombo: International Centre for Ethnic
Studies, 1997).
48 ‘Sri Lanka: Uneasy Calm’, Economic and Political Weekly (14 June 1997), p. 1388;
‘Sri Lanka: Movement without Progress’, Economic and Political Weekly (21
June 1997), p. 1434. On the 1997 draft and negotiations with the opposition, see
G.L. Peiris, minister of justice and constitutional affairs, ‘Constitutional Reforms:
A New Point of Departure for Sri Lanka’, available at www.slt.lk:80/news/GLrele.
html.
49 The Government’s Proposals for Constitutional Reform.
50 See Dinusha Panditaratne and Pradeep Ratnam (eds), The Draft Constitution of Sri
Lanka: Critical Aspects (Colombo: Law and Society Trust, 1998), p. vi.
51 Pradeep Ratnam, ‘The Question of Executive Presidency in Sri Lanka’, in
Panditaratne and Ratnam, The Draft Constitution, pp. 41–4. On the experience and
relative merits of presidential and parliamentary systems in Sri Lanka, see Radhika
Coomaraswamy, ‘Parliamentary Democracy v. the Presidential System: A Realist
Approach’, Law and Society Trust Fortnightly Review, 3, 42 (August 1992), pp. 2–
6, and H.L. de Silva, ‘Some Comments on Dr (Ms) R Coomaraswamy’s Paper on
204 SRI LANKA

Parliamentary Democracy v. Presidential System’, in the same issue, pp. 14–15.

Rohan Edrisinha, ‘Critical Overview: Constitutionalism, Conflict Resolution and
the Limits of the Draft Constitution’, and C. S.Dattatreya, ‘The Proposal for a
Constitutional Council’, in Panditaratne and Ratnam, The Draft Constitution,
Ratnam, ‘The Question of Executive Presidency’, pp. 47–53. See generally The
Government’s Proposals for Constitutional Reform, chapters VII and XXIII; Leo
Fernando, ‘Position of Ministry Secretaries under the New Constitutional
Proposals’, Daily News (17 February 1999), p. 8.
52 Deepika Udagama, ‘Fundamental Rights: The Need for a Futuristic Vision’, in
Panditaratne and Ratnam (eds), The Draft Constitution, pp. 119–20. See also The
Government’s Proposals for Constitutional Reforms, chapter III, as well as the
limitations on those rights for national security, public order, etc.
53 G.L.Peiris, ‘Introductory Overview: Constitutional Reform and Devolution of
Power’, in Panditaratne and Ratnam, The Draft Constitution, p. 6. See also
Edrisinha, ‘Critical Overview’, pp. 19–21. However, another provision validates
existing laws even if they are inconsistent with fundamental rights provisions; this
was an attempt to preserve ‘traditional’ Muslim, Tamil, and Kandyan law; see The
Government’s Proposals for Constitutional Reform, Arts 165 and 168.
54 Tressie Leitan, ‘Regional Councils and the Devolution of Power’, Daily News (9
September 1995); ‘Graduating to Mediation’, The Island (23 August 1998), p. 11.
In a recent interview, President Kumaratunga, while refusing to give details, stated
that she had found a way to circumvent UNP opposition without violating the
constitution: see Nalin de Silva, ‘Deviousness and the Package’, The Island (12
August 1998), p. 15. On the positive side, a recent poll by the University of
Colombo found that 77 per cent of those polled and a majority of Sinhalese
favoured a peaceful end to the conflict and rejected a military solution: ‘Business
Offer Peace Plan’, Sri Lanka Monitor (October 1998); and Jehan Perera, ‘Is Sri
Lanka Ready for Peace Talks Again?’, Tamil Times, 17, 12 (15 December 1998),
p. 11.
55 The Government’s Proposals for Constitutional Reform, chapter XV; Edrisinha,
‘Critical Overview’, pp. 27–30.
56 UNP constitutional proposals (photocopy, 1997, on file with current author),
section on ‘National Power Sharing’; see also ‘UNP Seeks New Political Culture’
(photocopy, 1997, on file with current author). The UNP draft, unlike the PA draft,
includes provisions for a police ombudsman and human rights experts on an
independent police commission. Compare Government’s Proposals, chapter XXII,
with ‘UNP Seeks New Political Culture’, section on ‘An Independent National
Police Commission and Provincial Police Commissions’; see also ‘[Text of the]
Proposals to the Parliamentary Select Committee on Constitutional Reform by the
United National Party, 29th January 1998’, in Panditaratne and Ratnam, The Draft
Constitution, p. 344.
57 Sumudu Atapattu, ‘A Commentary on the Draft Fundamental Rights Chapter’, in
Law and Society Trust, Sri Lanka: State of Human Rights 1998 (Colombo, Sri
Lanka: Law and Society Trust, 1998), pp. 174–5; Mario Gomez, ‘Sri Lanka’s
Proposed Bill of Rights: Lacking in Imagination and Vision’, Law and Society
Trust Fortnightly Review, 7, 113 (March 1997), p. 24.
 SRI LANKA 205

58 This following the killing by a suicide bomber of one of its drafters and key
supporters, an MP of the TULF, Dr Neelan Tiruchelvam: ‘A Leading Sri Lankan
Moderate is Killed’, New York Times (30 July 1999), p. A10.
59 Burns, ‘Sri Lankans Hear Details of Decade of Slaughter’. For the text of the
relevant law, see Special Commissions of Inquiry, Gazette of the Democratic
Socialist Republic of Sri Lanka (23 September 1994), pt II, supplement; the
underlying legal basis for the commissions can be found in the Commissions of
Inquiry Act, Gazette (1948), law no. 17 and Special Presidential Commissions of
Inquiry Act, Gazette (1978), law no. 7, amended by Act, Gazette (1978), law no. 4.
60 Gaston de Rosayro and Matthew Chance, ‘Military Officers to Probe Cases of
“Disappearances”’, South China Morning Post (16 December 1996), p. 15.
61 ‘Sri Lanka: Amnesty International Welcomes News that Reports of Commissions
will be Made Public’ (4 September 1997), available at http://humanrights.tqn. com/
b1AIasa372397.htm; ‘News in Brief: Sri Lanka’s Disappeared’, The Guardian (4
September 1997), p. 12; John F.Burns, ‘Unable to Beat Rebels, Sri Lanka Eases
Stance’, New York Times (5 November 1997), p. A3.
62 ‘Sri Lanka: Human Rights Developments’, Human Rights Watch World Report
1999, available at http:www.hrw.org/hrw/worldreport99/asia/srilanka.html.
Amnesty International, ‘Sri Lanka: Time for Truth and Justice’, (April 1995), AI
Index 37/04/95, pp. 13–14. This earlier commission spanned the period between
January 1991 and January 1993: see Permanent Mission of Sri Lanka, ‘Situation
Report’ (Colombo/Geneva: Permanent Mission, 1993), p. 8, a statement of the
human rights situation to the UN HRC.
63 In particular, human rights advocates were concerned about the exclusion of
disappearances of Tamils from the east in 1984–8 and disappearances after the
government retook Jaffna in mid-1996: ‘Sri Lanka: Human Rights Developments’,
available at http://www.hrw.org/hrw/worldreport99/asia/ srilanka.html. See also
Inform, ‘Lobby Document: UN Commission on Human Rights, 1995’ (Colombo:
Inform, 1995), p. 3. The civil rights movement argued that the commissions should
examine incidents since 1984; Inform argues that events since 1979, the year that
the Prevention of Terrorism Act entered into force, should be examined; Civil Rights
Movement, ‘The Investigation of “Disappearances” in Sri Lanka’ (Colombo: Civil
Rights Movement, 1998); see also Imran Vittachi, ‘That Time of Terror’, Sunday
Times (15 March 1998), pp. 1, 10. Author’s interview with the chair of the southern
commission and the new island-wide commission, Mrs Manouri Muttetuwegama,
15 February 1999, Colombo.
64 The reports of the three commissions into disappearances are: Final Report of the
Commission of Inquiry into the Involuntary Removal of Persons in the Central,
Northwestern and Uva Provinces, Sessional Paper No. VI (Colombo, Sri Lanka:
Department of Government Printing, 1997); Final Report of the Commission of
Inquiry into the Involuntary Removal or Disappearance of Persons in the Northern
and Eastern Provinces, Sessional Paper No. VII (Colombo, Sri Lanka: Department
of Government Printing, 1997); and Final Report of the Commission of Inquiry into
Involuntary Removal or Disappearance of Persons in the Western, Southern, and
Sabaragamuwa Provinces, Sessional Paper No. V (Colombo, Sri Lanka:
Department of Government Printing, 1997). Additional reports addressed a number
of high-profile political killings, including that of the president’s husband. See
Report of the Presidential Commission of Inquiry into the Assassination of Mr
206 SRI LANKA

Vijaya Kumaratunga (Colombo, Sri Lanka: Department of Government Printing,

1996) and Report of the Special Presidential Commission of Inquiry Regarding the
Assassination of the late Lalith Athulathmudali PC and Connected Events
(Colombo, Sri Lanka: Department of Government Publications, 1997). One
observer has said that the manner of setting up the commissions was ‘clumsy’ and
that not enough human rights experts were consulted; in addition many complainants
felt let down because before some of the commissions they were not treated with
compassion. Author’s interview, not for attribution (Colombo, 9 February 1999).
65 Final Report in the Northern and Eastern Provinces, p. 57. Thus, while the
commission received 537 complaints it investigated only around 100, of which half
were of disappearances of soldiers. To be sure, a significant number of Tamils have
left Jaffna, in addition to being ‘disappeared’: the population dropped from 850,000
to 500,000 between 1981 and 1997, see University Teachers for Human Rights
(Jaffna), Information Bulletin (24 August 1997), p. 1.
66 Final Report in the Northern and Eastern Provinces, pp. 3–4.
67 Final Report in the Northern and Eastern Provinces, pp. 94–7; Final Report in the
Western, Southern, and Sabaragamuwa Provinces, pp. 12, 29. The latter
commission submitted a list of those implicated under separate cover to the
president. On the question of due process and justiciability of the findings of such
commissions, see Mario Gomez, Emerging Trends in Public Law (Colombo:
Vijitha Yapa Bookshop, 1998). pp. 246–7 and 257–8.
68 This was the Final Report in the Western, Southern, and Sabaragawuma Provinces,
pp. 5–97. The other reports offered some rudimentary figures by year, ethnic group
and marital status, but this report addressed, inter alia, occupation, the mode of
disappearance/death, and evidence of the political nature of the disappearance. The
chair of this commission is now the chair of the consolidated island-wide
commission.
69 The mandate is reprinted in Final Report in the Western, Southern, and
Sabaragumawa Provinces, pp. 179–81.
70 These are, respectively, Final Report in the Western, Southern and Sabaragawuma
Provinces; Final Report in the Northern and Eastern Provinces; and Final Report
in the Central, Northwestern, North Central and Uva Provinces. The logical
explanation for this disparity is, in part, that in the west and south the JVP rebellion
and attendant government crackdown had subsided, and therefore disappearances
did as well.
71 Final Report in the Western, Southern, and Sabaragamuwa Provinces, pp. 75–97;
and Final Report in the Central, Northwestern, North Central and Uva Provinces,
pp. 2–3.
72 ‘By Her Excellency Chandrika Bandaranaike Kumaratunga, President of the
Democratic Socialist Republic of Sri Lanka’, Ref. No. SP/6/N/214/97 (photocopy
on file with current author).
73 Author’s interview with Manouri Muttetuwegama, chair of the new island-wide
commission and of the previous southern commission (Colombo, 15 February
1999).
74 Amnesty International, ‘Sri Lanka: Government’s Response to Widespread
“disappearances” in Jaffna’ (27 November 1997), AI Index ASA 37/24/97, pp. 1–
2. The numbers vary: the US Department of State puts the number of complaints at
2,500: see Sri Lanka Country Report on Human Rights Practices for 1997,
 SRI LANKA 207

available at http://www.state.gov/www/global/human_rights/1997_ hrp_ report/

srilanka.htm, p. 5. According to one lobby group, the president met with relatives
of the disappeared in late 1997 and promised to appoint a commission to inquire
into the disappearances; this group views the Board of Investigation as insufficient.
Civil Rights Movement of Sri Lanka, ‘The Investigation of “Disappearances” in
Sri Lanka: A Review at Mid-July 1998’ (1998), CRM photocopy; ‘News Review’,
Tamil Times, 17, 12 (15 December 1998), p. 7. The commission received another
500 names of disappeared persons more recently, but it is unclear whether that falls
within its mandate: see ‘SLMC Submits List of 500 Missing Persons to
Presidential Disappearances Commission, Daily News (23 February 1999), p. 1.
75 Citizens could not petition the ombudsman directly until 1994; before that they had
to petition through their member of parliament: Deepika Udagama, ‘A Case Study
of the Office of the Ombudsman’, in Law and Society Trust, Sri Lanka: State of
Human Rights 1997 (Colombo: Law and Society Trust, 1997), pp. 113–37;
author’s interview with Justice Jayalath and assistant legal secretary to the Minister
of Defence Jinasena (Colombo, 18 February 1999), both of whom had been part of
this effort; the latter continues in this capacity.
76 Parliament of the Democratic Socialist Republic of Sri Lanka, ‘Human Rights
Commission of Sri Lanka Act, No. 21 of 1996’, Gazette, pt 2 (23 August 1996), p.
4, Art. 10. For a brief history of the bill, see Mario Gomez, ‘Sri Lanka’s New
Human Rights Commission’, Rights Link, 1, 1 (1997), p. 5; Gomez, ‘The Sri
Lankan Human Rights Commission’, Law and Society Trust Review, 9, 13
(September 1998), p. 31; Gomez, ‘Sri Lanka’s New Human Rights Commission’,
Human Rights Quarterly, 20 (1998), pp. 281–302.
77 Neelan Tiruchelvam, ‘A Perspective on the Human Rights Commission Bill’, Sri
Lanka Express (21 July 1996); Deepika Udagama, ‘Human Rights Commission
Bill (1995)’, Law and Society Trust Review (October 1995), pp. 13–17; Suriya
Wickremasinghe, ‘A National Human Rights Commission for Sri Lanka?’, Tamil
Times (April 1996), pp. 16–18; Wickremasinghe, ‘A National Human Rights
Commission for Sri Lanka?’, Law and Society Trust Fortnightly Review, 6, 100
(February 1996), p. 7; see also Deepika Udagama, ‘Human Rights Commission
Bill (1995)’, 6, 96 (October 1995), p. 13; Amnesty International, ‘Sri Lanka: The
Human Rights Commission Bill’ (December 1995), AI Index ASA 37/25/95, p. 3;
see the Constitution of the Democratic Socialist Republic of Sri Lanka, chapter III,
the fundamental rights chapter, which does not articulate a right to life. The human
rights task force had covered a significant number of complaints into illegal
detention and torture: see, for example, Human Rights Task Force, Annual Report
(Colombo: HRTF, 1994) for incident accounts, cases before the supreme court, and
response by military and police personnel (obstructive, but not threatening). The
task force visited detention centres around the country; its former head said it did
face some obstructionism from the military and police masters of these centres:
author’s interview with Justice JSA Soza (retired) (Colombo, 19 February 1999).
78 Author’s interview with M.D.R.A.M.Senanayake, formerly of the HRC, 22
February 1999, Colombo.
79 T.Abaratham, ‘Human Rights Commission in Operation’, Daily News (18 March
1997), pp. 1, 20; Gomez, ‘Sri Lanka’s New Human Rights Commission’, p. 295;
Gomez, ‘The Sri Lankan Human Rights Commission’, pp. 31–2. Author’s
discussion with Sri Lankan politicians, human rights activists and others involved
208 SRI LANKA

with the commission, not for attribution, confirm that there is a widespread
impression that the commission has been relatively ineffectual, in part because of a
dearth of resources, but also in part because of the calibre of the staff; others have
suggested that the chair of the commission is particularly unmotivated: author’s
interviews in Colombo, February 1999.
80 That committee is composed of five cabinet members and three members of
parliament, and can inspect detention centres, demand information regarding
detainees, and make recommendations with respect to particular cases. Of the 181
complaints received to date, all but thirteen have been resolved, frequently through
a prompt release of the detainee. Five police officers and one member of the army
face disciplinary action for abuse of power over detainees: author’s interview with
MP and Minister of Science and Technology Batty Weerakoon, (Colombo, 18
February 1999), and KMM Sherriff, senior assistant secretary, ministry of justice,
constitutional affairs, ethnic affairs and national integration (Colombo, 23 February
1999). See also ‘Performance Report—July 12, 1998 to December 31, 1998:
President’s Committee on Unlawful Arrests and Harassments’ (photocopy on file
with current author); see also ‘President’s Committee on Unlawful Arrests and
Harassments—Meeting No. 31’ (Colombo: Ministry of Justice, Constitutional
Affairs, Ethnic Affairs and National Integration, 1999) (photocopy on file with
current author) for examples of complaints and actions taken.
81 Amnesty International, ‘Sri Lanka: Amnesty International Welcomes Government
Action to Stop Death Squad Activities’ (1 September 1995), AI Index ASA 37/17/
95, reporting that the head of the STF was rumoured to have been suspended by the
president; US Department of State, Sri Lanka Country Report on Human Rights
Practices for 1997, available at http://www.state.gov/ www/global/ human_rights/
1997_hrp_report/srilanka.htm, p. 4.
82 A ‘Misstatement’ led observers to believe that the grave would be excavated
beginning 5 March 1999, but the foreign ministry quickly retracted that statement:
‘Foreign Ministry Corrects Information on Chemmani’, Daily News (19 February
1999), p. 18. The investigation was delayed again in March due to the mysterious
‘absence’ of the judge that was to hear the case: ‘Judge’s Absence Aborts
Chemmani Hearing’ (26 March 1999), available at http://www. tamilnet.com/.
83 Civil Rights Movement of Sri Lanka, ‘The Alleged Mass Burials at Chemmany in
the North’ (Colombo: Civil Rights Movement, July 1998); ‘Executions Ordered for
Rights Abuses’, Chicago Tribune (4 July 1998), p. 4. This was the disappearance
of a schoolgirl, Krishanthy Kumaraswamy, and family members and a neighbour
who sought to find her. ‘Sri Lanka: Human Rights Developments’, available at http://
www.hrw.org/hrw/worldreport99/asia/srilanka. html. It should be noted that reports
are inconsistent regarding the number of indicted and convicted: see
V.Varathasuntharam, ‘Nine Soldiers Indicted on Abduction and Murder Charges’,
The Island (3 July 1997), and Sharmini Fernando, ‘Bitter Victory: Krishanthi
Kumaraswamy, The Women’s Vigil, and the Verdict’, Options, 14 (1998), p. 17
(says that five were given the death sentence and one released due to lack of
evidence).
84 P.D.A.S.Gunasekera, ‘Ten Years RI for Seven Accused, Two Acquitted’, Daily
News (11 February 1999), pp. 1, 20; J.Antony, ‘Seven Accused Including Ex-
principal Sentenced to 10 years’, The Island(11 February 1999), p. 1. See also
Gunasekera, ‘Witness Describes how Torture Instrument was Used’, Daily News
 SRI LANKA 209

(11 June 1996); and Gunasekera, ‘First Accused Told Her that a Few Children
should be Kidnapped, Witness Says’, Daily News (26 February 1996); ‘Tragedy,
Trauma and Finally Justice at Embilitpitiya’, Daily News (17 February 1999), p. 3.
85 Jhalapandithagedera Jayaratne et al. v.Chandrananda de Silva et al., Supreme
Court of the Democratic Socialist Republic of Sri Lanka, no. 609/96 (21 September
1998) (11 police officers arrested based on allegations that they had threatened a
commission of inquiry); ‘S.Dooriyakande: Evidence Postponed after Attorney
Pleads Threats’, and ‘Widow gets Death Threat after Evidence’, Daily News (18
January 1994); P.D.A.S.Gunasekera, ‘Army men in Plain Clothes Hovering around
Witnesses’, Daily News (28 February 1996).
86 P.S.Suryanarayana, ‘UN Agency Flays Killings in Sri Lanka’, The Hindu (14 June
1998); ‘Sri Lanka: The Role of the International Community’, Human Rights
Watch World Report 1999, available at http://www.hrw.org/hrw/world report99/
asia/srilanka3.html.
87 These can be found in Nadesan Centre, Emergency Law, Docinform 103, 104, 108,
110, and 112 (1988). See also ‘Sri Lanka: Human Rights Developments’, available
at http://www.hrw.org/hrw/worldreport99/asia/srilanka.html; see also ‘Balancing
Security Interests with Rights of Citizens’, Sunday Observer (12 April 1998), an
interview with Attorney-General Sarath Silva, who sought to justify the mass
arrests; Kumar Wethasinghe, ‘Sunday Times Defamation Case: Date Given to
Consider Judge’s Order’, Daily News (10 June 1996); Suriya Wickremasinghe,
‘Emergency Rule’, pp. 42–3, and Lakshman Gunesekera, ‘Freedom of Expression
and Media Freedom’, pp. 113–14, in Law and Society Trust, Sri Lanka 1998;
Elizabeth Nissan, ‘Reform at Risk? Continuing Censorship in Sri Lanka (March
1997)’, Law and Society Trust Fortnightly Review, 7, 114 (April 1997), pp. 1–2.
Not only were there limitations on reporting regarding the war, some newspaper
operations were harassed by police raids as well as the defamation charges already
mentioned. The defamation case brought by the president should not be
overemphasized, however, as many support the claim that the newspaper wilfully
misrepresented the facts of the case, playing on the president’s gender. Author’s
conversations with human rights activists, feminists and academics (Colombo,
February 1999).
88 Imtiaz Ahmed, ‘Rebuilding Sri Lankan Security’, Peace Review, 8, 2 (1996), pp.
275–6; Wriggins, ‘Sri Lanka: Secessionist Conflict’, p. 39; US Department of State,
Sri Lanka Country Report 1997, p. 3.
89 Author’s interview with Batty Weerakoon (Colombo, 18 February 1999).
According to one analyst, military spending has been as much as 40 per cent of
total governmental spending: Ahmed, ‘Rebuilding Sri Lankan Security’, p. 277; de
Silva, ‘War and Peace’.
90 Author’s interview with Deepika Udagama, (Colombo, 17 February 1999), and
other interviews, not for attribution (Colombo, February 1999).
91 Author’s interview with retired military officer, not for attribution (Colombo,
February 1999).
92 Author’s interviews with Sri Lankan politicians and human rights experts, not for
attribution (Colombo, February 1999).
93 I am grateful to Deepika Udagama for this point. She points out that members of
the police prosecuted for human rights violations have found themselves in
something of a catch-22: while they were frequently acting under the direction of
210 SRI LANKA

politicians, now that the courts have begun to come down on them, the [new]
government refuses to bail them out. Author’s interview (Colombo, 17 February
1999).
94 Sri Lanka Foundation Institute, ‘Training Programme for Law Enforcement (Police)
Officers on Human Rights and Gender Awareness: Progress Report: January
1999’, (Colombo: SLFI, 1999) (photocopy on file with current author); for the
proposal for the training, see ‘Training of Law Enforcement (Police) Officers on
Law, Society, and Human Rights’ (Colombo: SLFI, 1997) (photocopy on file with
current author), emphasizing the role of police in a democratic society, human
rights and gender issues. For the text of presentations made to the participants, who
are officers-in-charge, not cadets, see photocopies from the training binder
(Colombo: SLFI, 1999, on file with current author). See also Sri Lanka
Foundation, Seminar on Law Enforcement Agencies and their Role in the
Implementation of the International Bill of Human Rights (Colombo: Sri Lanka
Foundation, 1987); and Sri Lanka Foundation, The Role of the Law Enforcement
Officer in the Protection of Human Rights (Colombo: Sri Lanka Foundation,
1987); author’s interview with Deepika Udagama (Colombo, 17 February 1999).
95 Asian Legal Resource Centre Limited, Human Rights Related Legal Reforms, pp.
20–2.
96 Centre for the Study of Human Rights, ‘Human Rights and Wrongs: A Human
Rights Awareness Programme: For Passing Out to Cadets at Kotalawela Defence
Academy 28th November 1998’ (Colombo: Centre for the Study of Human Rights,
1998), photocopy on file with current author. See Centre for the Study of Human
Rights, Annual Report 1994 (Colombo: University of Colombo, 1994), p. 3, as well
as the reports for 1995, p. 7, and 1997, p. 10, detailing the training efforts; author’s
interviews with Somasiri Devendra, coordinating the training from the CSHR
(Colombo, 8 February 1999 and 19 February 1999).
97 Dayan Jayatilleka, ‘The Tamil National Question Revisited: The Package and
Globalisation’, The Island (24 February 1998). In addition, actual spending
consistently outpaced allocated spending: see K.T.Rajasingham, ‘Government
Should Grab LTTE’s Offer to Negotiate’, Tamil Times, 17, 12 (15 December
1998), p. 17.
98 Muni, Pangs of Proximity, pp. 13, 21–46, also emphasizes an ideological affinity
that the Indian government claims with democracies, but fails to flesh this point
out.
99 De Silva, ‘Sri Lanka’, p. 106.
100 Ruth Wedgwood, ‘South Africa’s Peaceful Transition a Model for Sri Lanka?’ (11
January 1999), available at http://www.csmonitor.com/durable/1999/01/11 /
p9s2.htm.
101 Burns, ‘Unable to Beat Rebels, Sri Lanka Eases Stance’.
102 Wriggins, ‘Sri Lanka: Secessionist Conflict’, pp. 39–41, 49.
103 US Department of State, Sri Lanka Country Report 1996 (Washington, DC: US
Government Printing Office, 1996), and Country Report 1995, same data; US
Department of State, Sri Lanka Country Report 1997, available at http://www.
state.gov/www/global/human_rights/1997_hrp_report/srilanka.htm.
 Conclusion
Compromises of transition

Introduction
I began this inquiry with two questions: ‘What makes accountability for past
abuses more or less possible for transitional regimes that still face serious
resistance from elements of the old regime?’ and ‘Against what other goals is
accountability likely to be balanced?’ I have reached two key conclusions, each
of which challenges and/or contributes to the literature on transitional justice.
First, there are two and possibly three key factors that affect the range of
accountability that a nation might hope to achieve. Second, there are certain
strategies that a nation might pursue to achieve more or less accountability, but
these necessarily involve trade-offs and compromises with elements that may
help create future stability.
I turned to studies of civil-military relations, transitions and the shift of the
military ‘back to the barracks’ to inform hypotheses about what conditions make
accountability more or less feasible. This investigation, as well as lessons from
the subsequent case studies, generated further hypotheses regarding the trade-
offs and strategies of transition that brought me full circle to the issue of alternate
goods. Lessons from the cases about trade-offs may enrich the literature
regarding what goods exactly might be obtained in compromising somewhat
with accountability.
It is important to note that while external environmental changes, or changes
in the behaviour of certain key actors, contributed to the possibility of transition
significantly in every case except that of Sri Lanka, external actors themselves
did not play an extensive role in every case. In particular, they did not play a
significant role in Argentina’s transition. However, the balancing act seems to
apply whether it is engaged in by domestic actors alone, or with the support of
external actors: Argentina’s choices are not dissimilar from those of the other
four cases examined closely here, or from those of the countries examined in
Chapter 2. Its experiences, as with those of the other countries examined, can
help to guide policy for countries that choose to go it alone, but also for the UN,
bilateral donors, the World Bank, NGOs and myriad other actors that are
involved in transitions.
212 CONCLUSION

Beyond peace vs. justice: a continuum

The key finding of this study is that, contrary to popular belief and many
scholarly debates about transitional justice, transitional regimes do not face a
simple either/or decision whereby they can have justice or peace, but not both
simultaneously. Instead they have a wide range of options to choose from,
ranging from pure amnesty to extensive prosecution. While this fact should be
obvious, given the experience of recent transitions, debates about transitional
justice have often continued to dissolve into simple oppositions of peace and
justice, without taking account of the rich range of choices that regimes face.1
What does it mean to argue that justice and peace are not as dichotomously
opposed in times of transition as many have alleged? Even where they have been
severed, where injustice has been a cause of conflict, and conflict a cause of
injustice, there is a need to relink the peace and justice that exist in tandem, to
greater or lesser degrees, in stable societies. This is difficult, though not
impossible if we acknowledge not that one must be given up for the other, but
rather that each may be somewhat compromised. The result is that partial justice
may be sought in order to simultaneously ensure that partial stability can begin to
obtain. Of course, neither partial peace nor partial justice is an ideal long-term
solution. However, in the short-to-medium term pursuit of both should help them
to develop in tandem, in a mutually reinforcing relationship, such that in the
longer term there is greater peace and justice. Transitional situations, and their
aftermath, are dynamic, and there is no reason to assume that compromises made
at the outset ought to endure permanently, but rather that they serve interim
purposes. A range of choices can thus be made about accountability, in the hope
of ultimately sacrificing neither too much peace nor too much justice.
However, even given that this range of choices exists, that does not mean that
they are all (or all equally) morally defensible. I have argued elsewhere that there
is a range of morally defensible policy choices relating to transitional justice;
here I argue that there is a wide range of what is possible in a given country. I
have articulated factors that make accountability more or less possible and
strategies that regimes can and do engage in to achieve more of a desired good,
whether that be accountability or the kind of reforms that can engender future
stability. I turn now to a more detailed account of my findings.

Choices of transition: the ethical dilemma

In the Introduction I set out the common dilemma facing transitional regimes: the
previous regime has engaged in serious violations of human rights, sometimes
but not always in the context of a civil war. The new regime must steer between
calls for it to prosecute violators to the full extent and resistance by elements of
the old guard, frequently the military or security forces more generally. Those
who favour punishment base their arguments on claims about deterrence,
retribution, concern for victims or pedagogic effects. Those who favour amnesty
 CONCLUSION 213

make reference to social peace and national reconciliation. Some ethicists

suggest that commissions of inquiry, while still entailing moral sacrifice, achieve
at least some justice.

Choices of transition: pragmatic practice

Naturally, the fact that a wide range of options exists for transitional regimes in
general does not mean that each country is in a position to choose any of these
options. Governments will be constrained by their country’s history and context,
as will external peacekeepers and peacebuilders, so it is important to examine
what factors affect the degree of accountability that a country might reasonably
hope to attain. However, it is not preordained that a regime can only attain x
level of accountability. There are choices leaders might make to achieve more
accountability, or to build the foundation for another coveted goal for many
states that have never known reliable governments: stability.
In Chapter 1, I hypothesize that there are three factors that affect the level of
accountability that a new regime might hope to achieve: the international context,
the balance of forces, and the nature of past abuses, which is largely a function
of the duration and intensity of the conflict or repression. As we have seen
through the examination of the case studies, the first two factors appear to have
been considerably more important than the third, which has some anecdotal
evidence to support it.

International factors
International factors seem to have worked to encourage transitions and
frequently some measure of accountability. The international context may create
a permissive space for political change. Such a historical moment may be said to
have occurred at the end of the Cold War, with the waning of the bipolar rivalry
having a profound effect on states in the orbit of both superpowers. States in the
US sphere of influence, many of whom had dogmatically followed the
anticommunist doctrine of national security suddenly lacked an external
bogeyman/conspiracy to justify internal repression. At the same time the USA
became less supportive in economic and military terms of some of its abusive
client regimes. The same can be said of states in the former Soviet bloc, only to
an even greater extent. States that had become virtual puppets of the Soviet
Union were suddenly no longer under its sway and the repressive regimes it put
in place or fostered fell. International factors also may play more active roles: for
example, the US A began to push its former clients to change their behaviour,
threatening to withhold crucial military aid if necessary. Finally, international
organizations (and some NGOs) played a role, from embarrassing regimes for
their human rights records to playing rather active roles in negotiations of peace
accords and monitoring of their implementation.
214 CONCLUSION

The balance of forces

This factor, too, played much the role expected. First, it seems obvious that
where a military remains strong and has no serious opposition, guerrilla or
military, it will be in a stronger position to set the terms of its withdrawal from
power. Clearly this control would extend to the matter of accountability, which is
why we see self-amnesties by outgoing military dictatorships. This may not yet
bar all prosecutions, as inventive courts will occasionally find loopholes to
enable them to pursue some measures of accountability. Attempts at such
accountability, however, will likely be threatened by a military that refuses to
stay in the barracks, so what matters is not only the balance of forces prior to and
at the moment of transition but shortly thereafter when such crucial decisions are
being taken.

The nature and extent of past abuses and repression

It has been suggested, based on anecdotal evidence, that the extent of a conflict or
severity of repression may have some impact on the degree of accountability that
is ultimately attained. However, the logic of these arguments frequently points in
contrary directions. Some argue that having few violations makes prosecution
easier, while numerous violations that beget numerous prosecutions tend to
generate instability and fail. Others suggest that the very fact of extensive abuses
generates a societal demand for action and forces accountability. However, upon
examination of the detailed case studies as well as the nutshell cases, support for
these claims remains anecdotal at best.

Strategies of transition
Claims about the ways that extant factors drive near-term outcomes run the risk
of being not only static, but overly deterministic. Further, they do not reflect the
full nature of the choices that regimes actually confront. Instead, regimes and those
who seek to assist them have some options with regard to transitional policies. I
examine these options in Chapter 1 with the aid of insights from civil-military
relations scholarship. I follow these theories in suggesting that, not surprisingly,
militaries (though by analogy any status quo force is liable to have similar
concerns) will be concerned not only with whether or not their members
(especially officers) face punishment, but also with the continued maintenance of
high military budgets and retaining control over doctrine, institutional structure
and education. Not surprisingly, these areas of corporate concern to the military
are all areas where transitional regimes will try to take action. While the virtues
of achieving justice are obvious, we have also seen that there are perils both
practical and normative. Further, other goods such as entrenchment of stability
and democracy might be furthered with measures such as the reduction of
military forces and budgets and educational and doctrinal reform that emphasize
 CONCLUSION 215

the purely defensive role of the military, the subordination of the military to
civilian leaders and human rights norms. This is not to say that accountability
ought to be abandoned in pursuit of these other goods, but that regimes often
rightly strike a delicate balance among several goods, seeking accountability and
reform simultaneously. Lowered levels of one good will generally be necessary
to achieve elevated (or any) levels of another good.

The wider array of cases

This study examines only a small subset of five cases, far fewer than the number
of regimes that have confronted questions of transitional justice. Thus Chapter 2
examines the larger set of cases in nutshell form. Nearly 30 countries are
discussed in terms of the history of the conflict or repression they experienced,
the form that the transition took, the factors affecting accountability, and the
outcomes resulting. One can see from these brief examinations that certain
factors such as the balance of forces and international involvement continue to be
salient. One can also see that regimes find themselves at various points on the
accountability spectrum in terms of what is feasible. And outcomes vary
significantly based on these extant conditions and strategies deployed by the
regimes.
The balance of forces was the most commonly salient factor in the wider array
of transitions. Not surprisingly, the relative strengths of government and
opposition, military and guerrillas affected the degree to which new (and
frequently newly civilian) rulers could pursue accountability and reform.
However, international factors nearly as frequently played a role, and appear to
have been slightly more important when they did so. In particular, the end of the
Cold War was frequently a (and sometimes the most important) factor enabling
transitions, particularly in the former Soviet bloc. International intervention in
the form of peacekeeping missions, direct intervention and even aid and the
threat to withhold it played important roles in the transitions and peace
negotiations in many countries. By contrast, the nature of past abuses was only
raised as potentially important in the level of accountability in a few cases, and
the case was not strongly made. This factor may deserve further investigation,
however, because it only appeared to be salient in cases that had been examined
in further depth, as opposed to simply as nutshell cases.
A somewhat surprising discovery arises from an examination of the outcomes
in the nutshell cases. Prosecution occurs much more frequently than the ‘punish
vs. pardon’ debate would lead us to believe. It also occurs in tandem with other
measures such as commissions of inquiry or lustration. However, this does not
mean that prosecution is both widespread and successful: many countries saw
prosecutions curtailed by amnesties and other political and procedural
roadblocks.
Finally, in the realm of transition, we see that all three of the issues
traditionally of corporate concern to militaries were subjects of action or
216 CONCLUSION

significant debate by new regimes. In particular, reforms of the institutions

dealing with security were common, as was accountability, if only at the lowest
level in the form of naming names. Budgetary levels appear to have been less
salient, both in terms of actual change or salient governmental debate about them,
although they were not completely insignificant.
The nutshell case studies do not, as I also make clear with regard to the in-
depth case studies, provide us with strict causal logic, such as ‘greater
international involvement yields greater accountability’.2 They can only point
out salient factors, as the substantive content of each affects the outcome: for
example, you must know not only that international actors are involved, but what
their goals are. Causal arguments would be further muddled by the presence of
an important intervening variable: the strategies that the regime (and international
actors who seek to assist it) deploy with regard to the security forces. I turn now
to the in-depth case studies, which illustrate the findings of the nutshell cases in
greater detail.

The case studies

Chapters 3–7 examine five countries in detail, three in Latin America
(Argentina, Honduras and El Salvador) and South Africa and Sri Lanka. I
provide detailed narrative accounts of the experience of each with civil war,
domestic repression or military rule. Sri Lanka is an unusual case in some
senses, in that the war has not been concluded and that it is an established
democracy, but is still pursuing commissions of inquiry, prosecutions and very
limited reform. The countries were chosen from the larger set for a number of
reasons. Certainly, they had undergone serious civil strife, suffered extensive
human rights violations, undergone a transition of some sort and faced serious
demands for accountability. Any of the countries in Chapter 2 fit those criteria.
However, I did not pursue the eastern European cases in greater detail both
because the unique nature of many of the transitions meant that a serious threat
to accountability virtually dropped away, and because the more commonly heard
objection to prosecutions was based on rule of law considerations. I did seek to
achieve some level of geographic balance: while the majority of my cases are in
Latin America, so are the majority of (non-east-European) cases that have arisen
in recent decades. Further, the countries chosen varied across my independent
variables: while international factors were salient in El Salvador, for example,
they were less relevant in Sri Lanka. There was also variance across the other
two factors. Not surprisingly, then, the countries display different strategies and
outcomes in the face of their dilemmas, helping to provide an illustrative
microcosm, if not a purely representative sample, of the experiences of transitional
states more generally.
 CONCLUSION 217

El Salvador
El Salvador provides one of the classic and most-cited examples of the use of a
commission of inquiry rather than prosecutions to address the legacy of the past.
The most salient factors were the balance of forces and protracted nature of the
conflict, which led to the so-called hurting stalemate, and international factors
such as a changed environment and active pressure as well as the facilitative role
of the UN. Following a decade-long war that resulted in around 75,000
casualties, the realization emerged that neither side could definitively defeat the
other. The negotiations that ensued were enabled by the end of the Cold War,
active US pressure and UN mediation and observer missions.
Despite these factors enabling the transition, pure accountability was not
politically feasible. The military remained politically strong during and after the
transition, as it had reached a stalemate, but not been defeated, on the battlefield.
As a result, compromise would be necessary on several fronts. The new regime
simultaneously pursued a commission of inquiry, a commission to enable
lustration, and institutional reform and force reduction. Thus it balanced the
same set of issues that many transitional regimes must: it sought to pursue
stability and accountability while faced with a recalcitrant military that was
concerned to protect its sphere of influence over budgetary matters, but more
importantly institutional reform and the treatment of its members for their past
actions.

Argentina
Argentina experienced extended periods of military rule and abuses, but the
period of the dirty war was particularly brutal. A salient factor in the transition was
the defeat of the ruling junta in the Falklands/Malvinas, which temporarily
weakened its status. The transition to democracy that ensued was still heavily
controlled by the military, which staged several serious coup attempts. As a
result, while landmark prosecutions went forward and garnered convictions, even
of former junta members, military rebelliousness soon forced procedural
limitations on prosecutions. Subsequent pardons further reversed accountability
efforts. The state also created a commission of inquiry that reported on past
abuses, and pursued some military reform and serious force reduction. Budgets
remained artificially high for some time, in part due to the costs of
demobilization.
Argentina, then, reached its transition for somewhat different reasons than El
Salvador, with different salient factors enabling or inhibiting transition. External
defeat affected the balance of forces temporarily, but otherwise external factors
played little role. On the other hand, the balance between a restive military and a
reformist civilian regime was a delicate one, and the latter was ultimately forced
into numerous compromises after the initial prosecutions. The result, then, was a
somewhat different set of trade-offs as Argentina pursued both stability and
218 CONCLUSION

accountability simultaneously, with relatively little involvement by external

actors. It is noteworthy that, while external actors were not actively involved in
aiding the Argentinian transition, the balancing act engaged in by domestic
actors does not appear significantly different from that engaged in by local and
international actors in the Salvadoran transition.

Honduras
Honduras experienced significant repression, but relatively few casualties
compared to its neighbours undergoing civil war, with ‘only’ 184 disappearances.
While the regime was formally civilian, the military retained significant political
power, which placed limits on accountability and reform. While the balance of
forces placed limits on accountability, some have argued that the very limited
nature of the disappearances made accountability more possible. Limited abuses
meant limited numbers of perpetrators, and hopefully less disruption both in
society and in the security forces should accountability be sought. While the
latter hope was clearly misplaced, it may have made the decision to go forward
with prosecutions somewhat easier. The international or external factors are
somewhat harder to identify. While the USA was a significant power in pre-
transition Honduras, it does not appear to have actively lobbied the government
for reform, nor has the UN been actively involved in the ways it was in El
Salvador. The USA became actively involved in reform only quite recently
through its assistance to police reform programmes. The main international
factor may have been a permissive one, the end of the Cold War that brought the
doctrine of national security and attendant local and US policies into question.
The government was able to create a commission of inquiry into past abuses
as well as institute prosecutions and reform. However, the prosecutions have
been hamstrung by difficulties in gaining custody of fugitive indicted officers.
The security forces have not only made clear their continued power with a showy
parade through the capital, but have apparently destroyed records and hidden
some of the fugitives. Reform efforts stalled for some time, but the separation of
the forces was finally enshrined in the constitution and a reform law passed.
Budgets have actually increased, though perhaps for justifiable reasons.
Thus, while Honduran transition has developed out of a different context, its
government too has been forced to make the familiar trade-offs among goods of
reform and accountability though, because of different enabling and inhibiting
factors and different political choices, the outcomes there have been different.
The middle ground of compromise is a wide one, and encompasses a variety of
experiences.

South Africa
South Africa experienced over 40 years of apartheid, which included severe
repression and violent rebellion. Extensive international condemnation may have
 CONCLUSION 219

played a role in pushing the white regime to initiate reform, both because
sanctions took economic aim (though their impact remains hotly disputed) and
because the challenges led the white rulers to question their own legitimacy. The
protractedness of repression and rebellion may also have led to exhaustion and
self-doubt among the white ruling elite. Nonetheless, the regime remained firmly
in control of most of the transition, resulting in limits to accountability.
An amnesty written into the transitional constitution ensured that prosecutions
would be difficult if not impossible, and some guarantees were made for the
continuance of civil servants in their posts. However, prosecution for past abuses
was not entirely impossible. Through the mechanism of the commission of
inquiry, the legacy of the past has been revealed in extensive detail, but the
commission also served another purpose. It placed leverage on abusers to
confess, lest they be prosecuted, and some prosecutions have successfully gone
forward. There were also reforms of the doctrine and institutions of the security
forces. Some advances have also been made with regard to the racial balance,
although these have made the least inroads at the upper echelons. Budget
reductions have yet to be seen, but that has at least partially been a result of the
costs of demobilization.
Again, what we see is that historically specific circumstances constrain a new
regime in particular (but identifiable) ways. The negotiated transition and the
strength of the old regime meant that many compromises were built into the
accords and the transitional constitution. South Africa played yet a different
balancing game from its fellow transitional states in Latin America, with unique
compromises.

Sri Lanka
Sri Lanka is of course in a very different situation from the other regimes
examined here. A civil war continues, and the nation has not had a transition in
the traditional sense because it is a democracy of long standing. However, since
the 1994 electoral regime change a series of important steps have been taken to
address past abuses and limit current ones.
The factors affecting accountability also differ significantly from those in
other contexts. The only major international player is India, but, while it was
actively involved with its peacekeeping force in 1987, it has maintained its
distance in recent years. Other international players such as the USA and the UN
have also played minimal roles. At the same time, the balance of forces and civil-
military relations play a role, though somewhat different. The military may be able
to capture and hold strategic territory, but it cannot completely eliminate the rebels,
so a stalemate of sorts exists. However, the military, while prone to abuses, does
not, for historical reasons, appear particularly prone to intervene in politics. The
security forces may often be handled delicately, but this is more because of their
importance in the prosecution of the war than fears of a coup. Finally, the
220 CONCLUSION

duration of the conflict may have had some effect on the election of a president
and a party with a platform emphasizing peace negotiations.
Thus Sri Lanka has taken some unusual measures in an unusual situation,
creating commissions of inquiry to investigate past disappearances and a human
rights commission, and pursuing prosecutions in several high-level
disappearance cases. Reform has lagged far behind, with the most notable
measures being efforts to educate the military and police about human rights and
to monitor and report abuses. The military budget has risen dramatically, the
force sizes less so, but in the context of an ongoing civil war military expansion
should not be surprising.
Sri Lanka provides us with a final instance of a country facing tough decisions
about how to treat past violations, but, given its unique circumstances,
responding in its own fashion. Again we see certain limiting and enabling factors,
here war-weariness (a function of perhaps both the balance of forces and the
nature and extent of abuses) helping spark the transition, but limiting factors such
as the continuing need for the armed forces. These force the regime to
compromise as it acts to pursue accountability and very limited reform, and to
pursue a war simultaneously.

Lessons
Each of these cases is unique. There is no typical transitional regime, but rather
regimes make decisions after armed conflict, during armed conflict, after formal
regime change, and in the absence of formal complete regime change. Each of
these cases represents one of these possibilities, leading to the suggestion that
perhaps ‘transitional regime’ is an incorrect term for most of the countries
lumped under this rubric. Nonetheless, the choices faced by these regimes, and
the balances struck by them and by those who have sought to assist them, are
interestingly similar.
The key general lesson that we might take from this examination of the
dilemmas that transitional regimes face is that there is a continuum of options
with no definitive one ‘right’ answer. At first blush this may seem a hopelessly
vague lesson, and the details of the study are devoted to fleshing out the meaning
of this statement for particular cases. There is a continuum of options from which
transitional regimes and those who work with them might choose. While their
options may well be constrained by their particular circumstances, they are
generally not completely without choices. The factors that I have discussed—
international/external factors, the nature and extent of the abuses, and the balance
of forces—all play a role, but need not completely determine a country’s fate.
Instead, a government or those who seek to assist it may make strategic
choices about what values it wishes or needs most to pursue. Extensive legal
justice may not be accomplished, but only lesser measures of accountability like
truth-telling or lustration/purification. However, at the same time a regime may
pursue measures that will help entrench the new democracy, provide for future
 CONCLUSION 221

stability and safeguard human rights, through the reduction and reform of the
security forces, so often the source of the most heinous abuses.
We cannot generalize with any certainty much less predict with lawlike
regularity what ‘type’ of transitional situation results in what ‘level’ of
accountability, because each nation has a distinct history, culture and set of
political problems. However, we can identify issues, factors and strategies of
particular salience for transitional regimes, from which we can deduce likely
policy choices. As I have shown, we can identify a set of salient normative
concerns that are likely to partly drive a regime’s choices. We can also identify
salient factors that are permissive factors or barriers to greater accountability: the
most important of these being international factors and the balance of forces, a
less clear one being the nature of past abuses. These factors may be permissive
or inhibitive, so we may not simply assume that because, say, international
players are involved in a transition that more accountability will result: instead we
must look not just to the fact that particular factors are salient but the content of
these factors (for example, what are international actors advocating? what are
they contributing?). Similarly, we see that there are a number of ‘goods’ that
regimes may wish to pursue, but that they may need to strike a delicate balance
among their pursuits. Again, we cannot predict exactly what balance a state will
or should strike but rather claim that some balance will have to be struck and
identify the sorts of goods that will be exchanged in trade-offs (accountability,
reform, budgetary levels).
In closing, this book has sought to challenge the common treatment in the
transitional justice literature of the peace/justice trade-off as overly simplistic, if
not a false dichotomy. I have sought to illustrate the more nuanced set of choices
that regimes face, and describe the contexts and strategic choices that make
accountability more or less possible. In this way I hope to enrich the literature
that describes as well as prescribes what transitional regimes concerned with past
abuses can or should do by providing richer descriptions of the variety of paths
they may pursue. What we find through this examination of the cases is that
there is a real continuum of options that dichotomies obscure. Regimes may have
to make certain strategic trade-offs to achieve more or less accountability or
stability, but this does not mean that one must be completely jettisoned in favour
of another.

Notes

1 A very recent exception to this artificial divide is Mani, Beyond Retribution.

2 Again the case of Argentina is illustrative—external factors played a role in
enabling transition, but external actors were virtually absent from the transition
itself. Nonetheless, some significant measures of accountability were pursued.
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Baltimore Sun (Baltimore, USA)
Boston Globe (Boston, USA)
 BIBLIOGRAPHY 233

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234 BIBLIOGRAPHY

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Washington Post (Washington, USA)
 Index

accountability 7, 25; in South Africa 151, 153–5, 156–7;

in Chile 46; in Uruguay 11, 43
and civil-military relations 13, 21, 23, Amnesty International 7, 8
24, 27–9; ANC see African National Congress
continuum 5, 14, 203; apologies 114, 155, 157
in El Salvador 91–2, 96; Aquino, Corazon 67, 68
feasibility of 5, 13, 20; Argentina 5, 40–1, 202, 208;
in Honduras 130, 131–2, 133, 136, ‘dirty war’ 2, 40, 118;
138; CONADEP 109;
and international involvement 23–4, doctrine of national security 118;
26–7; effect of Falklands/Malvinas conflict
and nature and extent of conflict 22–3; 41, 119, 208;
25; law of national defence 116;
nature of transition and 21–2, 29; military budgets 117;
in South Africa 160; military in power 107, 117, 178;
in Sri Lanka 71, 183–6, 187 military rebellions 111, 112;
Africa 65–6 military reform 40–1, 109–10, 112,
African National Congress (ANC) 147, 115–17;
148–9, 150, 164; Proceso de Reorganizacion Nacional
and amnesty 151, 154, 155; 118, 119;
human rights abuses 152, 159; prosecutions in 2, 7, 11, 25, 41, 107,
negotiations with government 65–6 108, 109–11, 119–20, 208
agreements, monitoring 26 Aristide, Jean-Bertrand 48, 49
aid, conditions for 26, 206 Asia 66–71
Albania 58–9 Aylwin, Patricio 45, 46
Alfonsin, Raul 2, 41, 108–9, 110–13, 115–
16 balance of forces
amnesty 43, 49, 51, 58, 204, 210; (see also civil-military relations) 23, 24,
in Argentina 113; 27–8, 205, 206, 208, 210;
in Brazil 47; in Argentina 117–19;
in Chile 45, 46; in El Salvador 97;
in El Salvador 40, 81, 88, 89–90, 96; in Honduras 138–9;
in Guatemala 11; in South Africa 164
in Honduras 128–9, 132–3, 136; Bandaranaike, Sirimavo 174, 179
practical and moral grounds for 10–12; Biko, Steve, murder of 155, 156, 158
in Romania 61;

235
236 INDEX

Bolivia 47–8; communist threat 27–8, 139;

Operation Condor 48; end of 163–4
prosecutions in 47–8 communists, treatment of 54, 56, 58, 59,
Boraine, Alex 157, 158 60, 61–2, 63, 64–5
Botha, P.W. 148, 156, 158, 159 compromise
Boutros-Ghali, Boutros 91, 120 (see also trade-offs) 25, 26, 29, 172,
Brazil 46–7 209
Bu Giron, Efrain 131 confessions 114
Bulgaria 57–8 Conventions for a Democratic South Africa
Bush, George, and El Salvador 82, 83 (CODESA) 149, 150
Buthelezi, Mangosuthu 153, 154, 160 Cordova, Roberto Suazo 128
Costa Rica agreement 81
Cambodia 69–70; Cristiani, Alfredo 80, 81, 84, 88, 89
Khmer Rouge 69, 70 Cuba 27–8
Ceaucescu, Nicolae 61, 62 Cyprus 49, 50
Cedras, Raoul 49 Czech Republic 53–4
children, kidnappings of 41, 98, 114–15 Czechoslovakia 53
Chile 6, 45–6;
amnesty in 45, 46; de Silva, K.M. 189
National Commission on Truth and democracy 3, 8;
Reconciliation 46 destabilization of 10, 42, 48, 90, 108,
Chun Doo Hwan 67 111;
civil-military relations in Sri Lanka 172, 173, 181–2, 210
(see also balance of forces): democratization 5, 31;
in Argentina 41, 111, 117–19; in Argentina 108–9, 113;
in Brazil 46; in Honduras 128;
in Chile 45; Huntington and 21–2
in El Salvador 40, 84, 85–6, 87, 91, 97; deterrence 6, 7, 8–9, 203
and feasibility of accountability 13, 21, disappearances 25;
23, 24, 27–9; in Argentina 40, 41, 107;
in Greece 50; in Bolivia 47;
in Guatemala 43–4; in Guatemala 43;
in Honduras 138–9; in Honduras 128, 130, 136;
in South Africa 164; in Sri Lanka 177, 180, 183–4, 186
in Uruguay 42, 43 Discua, General 129, 130, 131, 134
civil war: doctrine of national security 27–8, 40, 68;
El Salvador 38, 40, 78; Argentina and 118;
Sri Lanka 70, 172–3 Honduras and 128, 138
Coetzee, Dirk 158 Dubon, Sonia M. 130
Cold War, effect of ending of 23–4, 26,
79–80, 163, 204, 206, 209 East Germany 54–6;
commissions of inquiry reunification 55–6;
(see also human rights commissions; Stasi 54–5;
truth commissions) 204, 207, 208, 209, trials of border guards 55, 56
210 Eastern Europe 52–65
Communist Party, in Eastern Europe 53, El Salvador 2–3, 13, 25, 38–40, 78, 207–8;
56, 57, 59, 60–1, 63
 INDEX 237

Academia Nacional de Seguridad truth commission 12, 44, 45;

Publica 87; UN in 44, 45;
ad hoc commission 88, 91; URNG 43, 44–5
amnesty in 40, 88, 89–90, 96; guerrilla groups
ARENA 89, 90, 91; (see also El Salvador, FMLN) 28, 42,
balance of forces 97; 43, 44, 107, 138
civil-military relations 40, 84, 85–6,
87, 91, 97; Haiti 48–9;
constitutional reform 83, 84; human rights commission 48;
COPAZ 26, 79, 85, 90; military reform 49;
FAES (Fuerzas Armadas) 79, 84, 86, Tonton Macoutes 48
95 Hani, Chris 157
(peace proposal 81–2, 85, 88; Havel, V. 53
FMLM (Farabundo Marti National Hernandez, Col. Alexander 131, 132
Liberation Front) 78, 90, 91 Honduras 3, 41–2, 127, 209;
(members of in police force 84–5, 86, ad hoc commission 130;
93; amnesties 128–9, 132–3, 136;
negotiations with government 79, 80, balance of forces 138–9;
81–7); Battalion 3–16 128, 129, 130, 134,
human rights bodies 87; 138, 139;
military budget 40, 92; CNDH 129;
military reform 40, 85, 86, 93–6; democratization 128;
ONUSAL 79, 84; Direccion de Investigacion Criminal
peace accords 79–87, 96; 132, 134–5, 137;
police in 78, 84–5, 87, 90, 92–3, 96; disappearances 130, 136, 139;
purification of members of armed human rights commission 42, 129;
forces 85, 86, 87; Junta Interventora 135, 136;
truth commission 9, 40, 78, 83, 88–90, military in 127, 128, 131, 134, 138, 209
91–2, 96 military budget 42, 134, 137;
Ethiopia 65 military reform 41, 42, 139;
European Convention on Human Rights 53 prosecutions 42, 129, 130, 132–3, 209
exhaustion 22, 25, 147, 164, 171, 189, 211 Honecker, Erich 55
Hoxha, Enver 58
forgiveness 11, 89 human rights 24;
Franco, General 51 in Argentina 113–14;
effect of nature of on accountability 22–
Garcia Meza, Gen. Luis 47, 48 3, 25, 205, 206, 209;
Geneva accords, 1990 80–1 reform of in Sri Lanka 178–9, 182, 183
genocide 61, 65, 69 human rights commissions
Goldstone, Richard l50 (see also truth commissions) 42, 48,
Gorbachev, Mikhail 63, 64 90, 129, 186;
Greece, 49–50 in Sri Lanka 180, 183–4, 185
Guatemala 43–5; Human Rights Watch 7, 8
amnesty in 11; Hung, General 133–4
civil-military relations 43–4; Hungary 56–7
military budget 45; Huntington, Samuel 21–2
military reform 44, 45;
238 INDEX

India, involvement in Sri Lanka 26, 71, negotiations with government 178–80
171, 172, 176–7, 189, 210 Lithuania 64–5;
Indo-Sri Lanka Agreement to Establish nationalism in 64–5;
Peace and Normalcy in Sri Lanka 177 political persecutions 64
Inkatha Freedom Party (IFP) 147, 149, lustration 31–2, 53–4, 57, 58, 60
150, 153, 156, 159
International Convention on Civil and Madikizela-Mandela, Winnie 157, 159–60
Political Rights (ICCPR) 174, 185 Madres de la Plaza de Mayo 7, 108, 114
international involvement in transition 24, Malan, Magnus 156, 158
26–7, 31; Mandela, Nelson 148–9, 152, 153, 154,
and accountability 23–4, 204, 206, 208, 162;
209; and Truth and Reconciliation
in Cambodia 70; Commission 155, 156
in El Salvador 97; Marcos, Ferdinand 67
in Haiti 49; martial law 174, 175
in Honduras 139; Massera, Emilio 41
in South Africa 150, 163–4; Menem, Carlos 10, 113, 114, 116–17
in Sri Lanka 171, 176, 189 Mexico accords, 1991 82, 83, 85–6, 86–7
intervention 22 military 13, 27;
in Argentina 40–1, 108, 111–12, 280;
Jayewardene, J.R. 175, 176 autonomy of 13, 92, 138, 139;
justice: destabilization of democracy 42, 48,
internationalization of 6; 108, 111;
peace and 1–6, 203 in El Salvador 93–4, 95–6;
(choosing between 6–14) in Honduras 41, 127, 128, 134, 209
JVP (Janata Vimukthi Peramuna) 173, (and disappearances 129, 130, 136;
175, 176, 179 intervention in politics 131, 138);
intervention in politics 29, 30, 31, 91,
Kadar, Janos 56 117–18;
Karamanlis, Constantine 49, 50 in Philippines 67–8;
Khmer Rouge 69, 70 political power of 40, 41, 42, 45–6, 68,
killings 23, 25, 44, 90 78, 94, 95–6, 131, 138, 209;
Klerk, F.W.de 148, 149, 150, 151, 153, professionalism of 30, 94, 119;
155; prosecutions of 43, 47, 48, 50, 68, 135,
testimony to Truth and Reconciliation 138;
Commission 157; protection of interests 23, 24, 28–9, 31,
TRC report 159 32, 46, 92, 96, 119;
Klotz, A. 163 recalcitrance of 115–17;
Kock, Col. de 158 role in transition 42, 46, 47, 48, 49, 50;
Krenz, Egon 55 separated from police 44, 92–3, 132,
Kumaratunga, Chandrika 172, 174, 178–9 134–5, 137–8;
in South Africa 148;
Latin America 38–49; in Sri Lanka 172, 179, 185, 186–7,
US involvement in 27–8 188, 190, 210
legitimacy 12, 21 (powers of 174, 175, 178;
Liberation Tigers of Tamil Eelam (LTTE) responses to rioting 176);
173, 175, 176–7, 190;
 INDEX 239

subordination to civilian control 3, 13, committee on human rights 68, 69;

32, 91, 92–3, 134–5, 161, 188; prosecutions 68, 69;
withdrawal from politics 27, 29, 30–1, release of political prisoners 68
205 Pinochet, Gen. Augusto 6, 45–6
military budgets 47, 67, 70, 205, 207; Pol Pot 69, 70
Argentina 117, 208; Poland 59–60
El Salvador 40, 92, 96; police:
Greece 50; civilianization of 134–5;
Guatemala 45; in El Salvador 78, 84–5, 87, 90, 92–3,
Honduras 42, 134, 137; 96;
Portugal 51; in Guatemala 44;
South Africa 162–3, 210; in Honduras 127–8, 129, 130, 134–5,
Spain 52; 137
Sri Lanka 189, 211; (ley organica 135, 136);
Uruguay 43 separated from military 44, 92–3, 132,
military corporatism 29–31, 46 134–5, 137–8;
military coups 43, 45, 46, 48, 49, 50; in South Africa 161–2;
in Argentina 107–8, 118 in Sri Lanka 188, 190
military reform 23, 28, 205, 206–7; political prisoners 40, 42, 43, 53, 57, 107,
Argentina 40-l, 109–10, 112, 115–17; 158;
El Salvador 40, 85, 86, 95–6, 208; amnesty for 43, 49, 51, 53, 58;
Guatemala 44, 45; compensation for 62, 63, 64;
Haiti 49; release of 59, 68, 149
Honduras 41, 42, 139; political repression 2, 25, 43, 54, 55, 57,
South Africa 160–2; 139;
Sri Lanka 178–9, 187–8, 211; Bulgaria 58, 59;
trade-off with pursuit of justice 23, 31– Cambodia 69;
3, 40, 49 Russia 63;
Milosevic Slobodan 7 Spain 51
Moakley Commission, on human rights Ponce, Rene Emilio 88, 89
abuses in El Salvador 80–1 Portugal 50–1
Modrow, Hans 55 Premadasa, Ranasinghe, assassination of
177, 178
Nagy, Imre 56 prosecutions 8, 10, 88, 89, 91, 98, 206;
naming of names 9, 88–9, 95, 98, 109 in Argentina 2, 107, 108, 109–11, 119–
New York accords 85, 86 20, 208;
NGOs, proliferation of 24 destabilizing effects 8, 10, 42, 108,
Nicaragua 80 110, 115, 130–1;
in El Salvador 89, 96;
opposition in Honduras 42, 129, 130, 132–3, 209;
(see also guerrilla groups) 42, 43; in Philippines 68, 69;
civilian 23, 28, 41, 51, 52, 60, 61; selective 7, 8, 10, 11, 25, 41, 109–11,
strength of and accountability 23, 28 119–20;
Osiel, M. 4 in Sri Lanka 186
public security
pardons 89, 113, 208 (see also doctrine of national security)
Philippines 67–9; 92, 94, 116, 131
punishment
240 INDEX

(see also prosecutions) 2, 203; reform 161–2;

practical and ethical bases for 7–10 Regulation of Gatherings Act 162;
purges 31–2, 51, 52, 65; security forces 148, 160–2;
of civilians 50, 57, 58; South African National Defence Force
in El Salvador 78, 88, 96 161, 612;
transitional executive council 152, 160;
reconciliation: truth commission 9, 12, 65–6, 154, 155–
national 10, 11, 12, 20, 204; 60
social 11, 12, 204 South Korea 66–7
regional changes, in El Salvador 79–80 Soviet Union
rehabilitation, in Russia 63 (see also Russia) 206;
Reina, Carlos Robert 129, 131, 134, 138 break-up of 64, 204;
reparations 46 effect of lessening influence 52, 79–80
replacement 22, 51 Spain 41–2
restitution 54, 56, 57, 58, 59 Sri Lanka 26, 70–1, 207;
retribution 6, 7–10, 203 abolition of executive presidency 181;
revelation of the truth 8, 9, 11, 12, 89, 131 anti-Tamil riots 176;
Rico, Lt.-Col. Aldo 111, 112 constitution 173, 175, 180, 181–2;
Roh Tae Woo 67 democratic government 172, 173, 181–
Romania, 60–2; 2, 210;
trial of Ceaucescu 61, 62 government relations with Tamils 174–
rule of law 8, 9–10, 12 6, 177–85;
Russia 63–4 human rights commission 180, 183–4,
Rwanda 65 185;
inter-ethnic relations 173, 174, 175;
San Jose accords, 1990 81–2, 84 military in 172, 175, 176, 178, 179,
sanctions 49, 66, 163 185, 186, 190, 210;
Sanguinetti, Julio 43 military budget 189;
secret police 53, 54–5; military reform 178–9, 187–8;
access to files of 55, 57, 58, 60 People’s Alliance 178–9;
Seineldin, Col. Mohammed Ali 112–13 Prevention of Terrorism Act 174, 175;
Sierra Leone 65 Public Security Ordinance 173–4, 181;
Slovakia 53–4 Sri Lankan Freedom Party 174, 175;
Slovo, Joe 150, 152, 153 state of emergency 175, 187;
Solidarity 59–60 truth commissions 172, 180, 183–4;
South Africa United National Party 174, 175–6, 182
(see also African National Congress) stability, trade-off with prosecutions 2, 4,
209–10; 10, 12, 80, 205
amnesties 151, 153–5, 156–7; stalemate 25, 80, 189, 208, 210;
balance of forces 164; in El Salvador 97, 98
constitution 153; Stalin, Joseph 63
Further Indemnity Act 151; statute of limitations 54, 56, 63
Goldstone Commission 66, 150, 210; Stepan, A. 32
government of national unity 154;
military reform 160–1; Tamils 174–5, 186, 189, 190;
National Defence Force 160; anti-Tamil riots 176;
police
 INDEX 241

question of devolution of power to 177– security policy 27–8, 40;

81, 182 training of local militaries 27, 47, 118,
Tonton Macoutes 48 129, 138
torture 22, 42, 46, 49, 55, 128 Uruguay 42–3;
trade-offs of transition 14, 23, 31–3, 40, amnesty in 11, 43;
49, 208, 209, 212; military budget 43;
in El Salvador 91–6, 98; Naval Club Pact 43;
in Honduras 137–8, 140; private prosecutions 43;
in South Africa 160–3 Tupamaros 42
transformation 22, 45, 47, 50, 52, 58, 66
transition 24; Van der Merwe, Gen. Johan 156
ethical dilemmas 203–4; victims 9, 129, 203;
strategies for 14, 24, 29–31, 205–12 compensation for 58, 152, 159;
transplacement 22, 40, 41, 42, 43, 45, 54 desire for retaliation 25, 114;
truth see revelation of the truth information for 136;
Truth and Reconciliation Commission 9, participation in proceedings 9
12, 66, 154–5, 155–60 Videla. Jorge Rafael 41
truth commissions 4, 9, 32, 46;
in El Salvador 9, 40, 78, 83, 88–90, 91– Yeltsin, Boris 63, 64
2, 96;
in Guatemala 12, 44, 45; Zepeda, Juan Orlando 88
in Sri Lanka 172, 180, 183–4 Zhivkov, Todor 58
Tupamaros 42
Tutu, Desmond 157, 158

Uganda 65
United Nations 24, 26;
in Cambodia 69–70;
in Guatemala 44, 45;
in Haiti 49;
mission in El Salvador 79, 84, 90, 97;
monitoring human rights agreements
81;
observers in South Africa 150, 154;
in Sri Lanka 186
United Nations Convention against Torture
174
United Nations Human Rights Commission
90, 186
United States of America 24, 26, 204;
anger at human rights abuses in El
Salvador 80–1;
involvement in El Salvador 40, 79, 82,
84, 97, 98;
and Honduras 41, 42, 138, 139, 209;
in Latin America 27–8, 47;
and Philippines 68;