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Lessons from Latin America

Above all, the Latin American experience emphasizes that, for a policy which will fix the level of responsibility for past abuses to have legitimacy, the first condition is that the truth must be known. Without knowledge, an informed decision cannot be made. Moreover, it is not sufficient for the facts to be merely available to well-informed or persistent citizens: the truth must be publicly investigated and officially proclaimed. Great importance is placed by the victims of abuse on the acknowledgment that abuses have occurred and are the responsibility of the government. The experience of testifying to an official body that takes abuses seriously contributes in itself to the healing process; hiding the truth prevents national reconciliation by denying the victims the chance to forgive in return for acknowledgment and repentance. In South Africa, where official history has been extremely partisan, perhaps the most important part of a state-sponsored but unbiased investigation would mean that all segments of the population would be exposed to the same knowledge of the past.

To have credibility, such an investigation must be carried out by an official body which is at the same time widely perceived to be impartial. In El Salvador the involvement of the U.N. has strengthened the position of the Truth Commission; while in Chile and Argentina civilian governments appointed commissions including members of all political persuasions in the belief - later confirmed - that the facts of the testimony heard would overcome partisan opinions. By contrast, in Uruguay, the failure to institute any independent investigation has led to widespread dissatisfaction with the aborted process of accounting for past abuse, and a continuing lack of confidence in the government.

In the South African context, this evidence suggests that a "truth commission" of similar stature in the public mind to those of Argentina, Chile or El Salvador would have to be appointed either by an interim government elected on the basis of universal suffrage, or upon the agreement of all parties to the negotiation process. Membership should be drawn from supporters of the existing government as well as its opponents, and the abuses of both sides should be subject to investigation.35 While giving a hearing and legitimacy to the largely black victims of abuse, such a commission could also have an important educational effect amongst the white population. Although commissions such as the one currently headed by Justice Richard Goldstone have carried out a useful function within the constraints of the existing regime, for a body to have real credibility amongst all South Africans it cannot be set up by the government according to existing procedures.

A "truth commission" of this type must respect international standards of due process. While it should have the widest powers of investigation - including the right to subpoena witnesses and to send personnel to any place without warning, unlimited access to government buildings and records, and a mandate to carry out independent investigation (not simply to gather information) - it is important that the right to a fair trial is not preempted. At the highest levels it may be appropriate for an investigatory commission to establish individual as well as institutional responsibility for policies that led to abuse; however, more junior personnel should not have been judged in advance in the event that their prosecution is undertaken. In practice this balance may be difficult to achieve, and will have to be decided by those charged with investigation, according to all the circumstances.

In the investigatory work of a commission the assistance of human rights monitoring and advocacy groups may be crucial in the collection of high-quality information, especially if a limited time period is set for the completion of a report. Even - or especially - where the terms on which an investigating body are set up are regarded as unsatisfactory, the cooperation of the human rights community may be extremely important in establishing a truthful and thorough account of the past. The experience of both Chile and Argentina demonstrates that little is to be gained by symbolic non-cooperation; the work of the Rettig Commission in Chile in particular shows how much may be achieved in establishing a truthful account of abuses even by a body with a disappointingly limited mandate. South Africa's extensive and sophisticated human rights community would be an invaluable asset to the attempt to achieve a comprehensive and truthful report.

Compensation for human rights abuses may also be appropriate, following the model of Chile's "Corporation on Reparation and Reconciliation," but should not be regarded as a substitute for the investigation of the facts. It is more important that a genuine attempt is made to reorganize the security services to ensure that similar abuses cannot recur. At the very least, the cases of individual officers should be examined - for example by the type of investigation into military and police records that has been carried out by El Salvador's Ad Hoc Commission - to enable offenders to be removed from active service. Similarly, an official apology for past crimes, such as was delivered by President Aylwin of Chile, may go some way to rebuilding confidence in government. In this context, President de Klerk's continuing failure to acknowledge the inherent wrongness of apartheid may be contrasted with the publication by the ANC of a report on brutality at its detention camps; and with the acceptance by Nelson Mandela that the acts were "inexcusable" and that the Congress leadership shared responsibility for them.36

The Latin American experience of policies of accountability also shows how much the positive impact of a report setting out an "official" account of human rights abuse is reinforced by the treatment of the same issues in a court of law, and by the allocation of individual responsibility that results. While it has been difficult to achieve a full legal accounting for violations, especially where there is a degree of continuity from the old regime to the new, such as exists in Chile and Uruguay, the prosecution of senior officers in Argentina and Paraguay shows that it is possible to achieve accountability at the highest levels for crimes that can be shown to have been ordered or condoned by the commanders of particular forces, if the political will is there. By bringing before a court of law those responsible at the highest level for policies and practices resulting in the abuse of rights, and subjecting them to legal scrutiny under all the conditions of due process guaranteed by international law, a dramatic step can be made towards the establishment of a culture of respect for the rule of law in which even the worst offenders may expect just treatment.

The history of Argentina suggests that steps to achieve accountability should be taken as soon as possible by a new regime, and within a set time-frame; before political commitment evaporates, those subject to investigation become too resentful, and current problems occupy all available time. By contrast, in Chile and Paraguay, where there has been much greater continuity in government, it seems that a more gradual approach may be more effective. Given the political realities in South Africa, where members of the current government are likely to retain a substantial degree of influence, it may therefore be that attempts to achieve accountability would be more successful if undertaken relatively slowly. However, there are important differences from Chile and Paraguay: a new government will be under much less threat of military intervention than the Latin American countries, since the armed forces do not have the same tradition of political involvement, nor have they been implicated to the same extent as the police in the abuse of rights.37 The investigation of police and army abuse should therefore carry less threat to the stability of the government (though obstruction may be expected). Moreover, South Africa may expect to continue to receive a disproportionate share of international attention, something which should support a new, majority, government. Finally, the physical infrastructure to prosecute violators is already in place: South Africa's judicial system remains intact, relatively well-staffed, and - despite some blatantly political decisions - less corrupted by state intervention than its Latin American counterparts. A tradition of criticism of abuses which has been maintained by a few judges throughout the implementation of apartheid can be drawn on to reestablish the legitimacy of the legal system.

Perhaps most importantly, the Latin American experience shows that general amnesties for the armed forces are hugely unpopular, divisive, and widely regarded as illegitimate. While it may be possible to justify, for political or practical reasons, a grant of immunity from prosecution to less serious offenders (especially in return for a contribution to the truth-telling process), this is not acceptable to the victims or to society in general if it is extended to the grossest abuses. This was most dramatically demonstrated by the campaign to gain signatures to demand a referendum on the amnesty law in Uruguay.

Finally, although there may be political reasons for trading the release of political prisoners against immunity from prosecution for members of the security forces, the situations of pro- and anti-government forces are not the same: something appreciated by the Argentine politcal prisoners who rejected the application to them of the amnesty decreed by the military government. If the government chooses to pardon and release political prisoners, including those who have committed serious crimes, this follows trial and punishment by the state which has in some senses atoned for the offense. Those who have been in exile have also suffered. Above all, the government is - even in the event of civilian casualties - the victim of crimes against the peace by opposition forces, and is therefore in the moral position to forgive those crimes. Where crimes have been committed by the existing government, in abuse of trust, it has no moral standing to forgive itself: this right belongs to the victims of that abuse.



35 The impression should be avoided that the abuses of one side excuse those of the other; and the special nature of crimes committed by the state - which has used its power to abuse and not uphold the law - must not be ignored.

36 Nevertheless, members of the ANC who have committed gross abuses should not be exempt from the same process of accounting for abuses as all others who have been responsible for similar acts.

37 However, this applies only to the regular army: Military Intelligence has a long tradition of conducting destabilization activities within the homelands and South Africa's neighbors; while the "special units" used extensively in township patrolling, such as the infamous 32 Battalion, have been amongst the worst offenders against human rights.


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October 23, 1992