Prosecuting human rights violations from a previous regime: The East European experience

East European Quarterly

Volumn 31, Issue 1, 1997, Pages 93-110

  Gibney, Mark ^a  

^a PURDUE UNIVERSITY   (United States)

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EID: 0038925585     PISSN: 00128449     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (36)

1. For an overview of these historical examples, see Mark Gibney, "Decommunization: Human Rights Lessons From the Past and Present, and Prospects for the Future," Denver Journal of International Law & Politics, 23 (1994), pp. 87-133.
2. See generally, D. Orentlicher, "Settling Accounts: The Obligation Under International Law to Prosecute a Prior Regime's Human Rights Violations," The Yale Law Journal, 100 (1991), pp. 2537-2615;
3. L. Berat, "Prosecuting Human Rights Violations From a Predecessor Regime: Guidelines For a Transformed South Africa," Boston College Third World Law Journal, 13 (1993), pp. 199-231.
4. The military seized power in Brazil in 1964 after a successful coup against populist President Goulart, and it remained firmly in control until the election of civilian President Tancredo Neves in 1985. During much of this time, one of the constants of military rule was the brutality that was waged against segments of the civilian population, although the worst period of human rights abuses occurred under the rule of General Emilio Medici from 1969 to 1974. When the first scents of liberation became apparent, a blanket amnesty was passed to protect any security agent who might otherwise become liable to charges arising from human rights abuses. In fact, as Lawrence Weschler points out in his magnificent book, A Miracle, A Universe: Settling Accounts with Torturers (New York, 1990), the amnesty was drafted in such a way so as to foreclose even the possibility of any further official investigations into the behavior of the security forces. Apparently, this sordid chapter of Brazilian history was to be closed forever without any knowledge, never mind acknowledgment, of the terrors of military rule. What changed this result, to a certain degree, was the secretive and courageous publication of these state secrets in
5. Brazil: Nunca Mais, which is chronicled in Weschler's book.
6. In many ways, the terror that seized Uruguay in the late 1960s was even more horrific than that which occurred in Brazil. The military's tight grip on the population only began to ease following the rejection in 1980 of the regime's plebiscite for a new constitution. Still, it took four more years before presidential and legislative elections were held on November 25, 1984. President-elect Sanguinetti took office on March 1, 1985, and within a week he had signed into law a bill that constituted an amnesty for all remaining political prisoners, although torturers and other military violators of human rights were explicitly excluded. Soon thereafter, however, some victims of the political terror began filing lawsuits against specific individuals. As these cases made their way through the judicial system, Sanguinetti proposed a second amnesty, one that absolved military officials of any responsibility for the decades of political terror. This law, the Law Declaring an Expiration of the State's Punitive Authority, was passed on December 22, 1986, only a day before the first subpoena of a military official was due. At this point, the situation looked hopeless. However, in late February 1987, a group of human rights organizations under the banner of the Commission National Pro-Referendum began a campaign to overturn the impunidad law. In order to call a referendum, it was necessary to have a petition signed by at least a quarter of the number of people who had voted in the previous election. Overcoming a myriad of obstacles, the pro-referendum forces were somehow successful in obtaining the requisite number of signatures. Still, the ensuing referendum regarding the amnesty law was defeated, attributable in large part to the thinly veiled threats by the ruling government. The ultimate result in Uruguay, then, was not only that no prosecutions of those responsible for committing gross levels of human rights abuses ever took place, but unlike the situation in Brazil, the public has never been truly informed of the horrors that had taken place under military rule.
7. One of the most controversial legacies of the apartheid regime is the Indemnity Act which provides the State President with the authority to grant amnesty to those who "advised, directed, commanded, ordered or performed" any act with a political objective. The Act applies to activities that occurred prior to October 8,1990, although the President is also given the power to extend this period. The Act proscribes both civil and criminal proceedings, and those seeking amnesty must apply to the National Council of Indemnity which conducts its proceedings in secret. See Berat, supra, note 2.
8. In the spring of 1993, a United Nations Truth Commission issued its report, placing much of the blame for the commission of gross levels of human rights abuses squarely on right wing politicians and army officers, although rebel forces were not spared criticism either. The Truth Commission also suggested that because of the inadequacies of the country's judiciary, no attempt at prosecuting those responsible for war crimes should be pursued. Within days after publication of the U.N. report, these recommendations were passed into law when the national legislature enacted a blanket amnesty.
9. The situation in Argentina was much more complicated. The so-called "dirty war" against leftists and leftist sympathizers was conducted by the military between 1974 and 1983. In September 1983, a transitional military junta enacted the Law of National Pacification which granted immunity from prosecution to suspected terrorists and members of the armed forces for human rights abuses committed between May 25, 1973 and June 17, 1982. Despite the amnesty, one of the first acts of newly elected President Raul Alfonsin was to issue Decree No. 158/83 ordering the arrest and prosecution of the nine military officers who comprised the three military juntas from 1976 to 1983. The Decree provided that under new legislation that was to be submitted to Congress, such prosecutions were to be initiated before the Supreme Council, but were subject to review by the federal court of appeals. As this was going on, in December 1983, the Congress passed Law No. 23040 nullifying the amnesty provisions. This law was subsequently upheld by the federal court of appeals, which at the same time also declared the self-amnesty law unconstitutional. The prosecutions of former junta members languished before the Supreme Council, and in early 1985 the Federal Court of Appeals issued a resolution taking over the proceedings. Immediately following this action, the Court issued a series of indictments and placed several of the former leaders under preventive detention. The trials against former junta leaders began on April 22, 1985, and lasted eight months. Judgment and sentences were handed down on December 5, 1985. Soon after the completion of these trials, the state prosecutor's office began pursuing charges against other military officers. However, in the face of growing unrest in the military, the Congress passed Law No. 23492 or the "Full Stop" Law. Article 1 of the Law stated that the time had come for the armed forces "to take part in rebuilding a democratic society." Accordingly, Law No. 23492 imposed a sixty-day deadline on the filing of any complaints or charges against alleged torturers. After a number of prosecutions had been filed, notwithstanding the Full Stop Law, a military uprising known as the Easter Rebellion broke out. In response, on June 4, 1987, the Congress passed the "Law of Due Obedience," which created an irrebuttable presumption that military personnel accused of committing human rights abuses were acting under orders and also were unable to question the legitimacy of these orders. This irrebuttable presumption protected all military personnel below the rank of Brigadier General. The final acts of amnesty were granted by newly elected President Carlos Menem. In October 1989, almost immediately after assuming office, President Menem issued a broad pardon covering nearly 280 people, some of whom had taken part in various military rebellions, while others were exonerated for their part in carrying out the "dirty war." A year later Menem issued his final set of pardons. At present, none of those who carried out the dirty war are imprisoned. More recently, the conduct of military rule became the source of much public discussion when Adolfo Francisco Scillgo, a retired navy commander, publicly acknowledged participating in torture as well as dumping captives into the sea from airplanes. C. Sims, "Argentine Tells of Dumping 'Dirty War' Captives Into Sea," New York Times, March 13, 1995, p. A1.
10. But see also, C. Sims, "Argentine President Discourages New Revelations on 'Dirty War'," New York Times, March 30, 1995, p. A5.
11. The military assumed power in 1973, with the overthrow of President Salvador Allende. In 1980, President August Pinochet consolidated his hold on power when two-thirds of the electorate ostensibly supported a new Constitution drafted by the Pinochet regime. Under the provisions of the Constitution, Pinochet was to remain in office for eight years. In 1988, another plebiscite was called - attempting to allow Pinochet to run for re-election - however, this measure failed. In national elections that followed, Patricio Aylwin Azocar was elected President, although Pinochet maintained a firm grip on power in his capacity as the head of the military forces. Within a short time after assuming office in March 1990, Aylwin created a Truth and Reconciliation Commission which began to gather evidence from relatives of people believed to have disappeared during the years of military rule. In March 1991, President Aylwin addressed the nation on national television where he acknowledged that 2,043 people had been killed by military personnel. In his report, Aylwin described how the secret police had systematically killed those who were seen as politically dangerous. On behalf of the nation, Aylwin apologized to the families of the victims for the horrors described in the report, and announced plans to assist them with pensions, and health and housing care. In terms of prosecuting those responsible for these horrors, two obstacles remain. One is embodied in Pinochet who has long maintained that there will not be any prosecutions of any military personnel. The second problem is the amnesty law proclaimed by the Pinochet regime in 1978, and upheld as recently as 1990, by the Chilean Supreme Court. On the other hand, in 1993, the national legislature defeated the so-called Aylwin Law, which would have disposed of all pending cases (including more than 200 against military officials accused of killings, torture, rape and beating) through secret civilian proceedings.
12. P. Novick, The Resistance Versus Vichy: The Purge of Collaborators in Liberated France (New York, 1968), p. 71.
13. One of the most noteworthy developments in this area is the trials in Ethiopia against former dictator Colonel Mengistu (in absentia) and other officials charged with the commission of gross levels of human rights abuses. See D. Lorch, "Where Tyrants Ruled, Cry for Justice," New York Times, Nov. 11, 1994, p. A4.
14. See generally, I. Buruma, Wages of Guilt: Memories of War in Germany and Japan (New York, 1994).
15. Buruma, supra, note 11, p. 148.
16. Novick, supra, note 9, p. 146.
17. C. Givskov, "The Danish 'Purge Laws' and Criminology," Journal of Criminal Law, 39 (1948). p. 452.
18. P. Vermeylen, 'The Punishment of Collaborators," The Annals of The American Academy of Political and Social Science, 247 (1946), p. 77.
19. F. Engelmann. "How Austria Has Coped with Two Dictatorial Legacies." in John Herz, ed., From Dictatorship To Democracy: Coping with the Legacies of Authoritarianism and Totalitarianism (Westport, CT, 1982), p. 135.
20. Orentlicher, supra, note 2.
21. S. Holmes, "The End of Decommunization," East European Constitutional Review (Summer/Fall 1994), p. 33.
22. "2 Polish Generals Acquitted in Killing of Solidarity Priest," New York Times, Aug. 21, 1994, p. A6.
23. S. Kinzer, "What's to Pardon? the Ex-Boss Asks," New York Times, March 30, 1995, p. A4.
24. Holmes, supra, note 18, p. 33.
25. "Romania's 1989 Rebels Attack Politburo Pardons," Reuter Newswire, April 1, 1994.
26. "Albania's Persecuted Opposition," The Economist, April 9, 1994 (Westlaw News Service).
27. Andrzej Wasek. "Polish Criminal Law and Procedure," in Stanislaw Frankowski and Paul B. Stephan, III, eds., Legal Reforms in Post-Communist Europe (Dordrecht, the Netherlands, 1995), p. 297.
28. "Polish Security Policeman's Trial Touches Thorny Issues," Reuters Newswire, Jan. 26, 1994.
29. S. Kinzer, "3 Ex-East German Leaders Convicted," New York Times, Sept. 17, 1993, p. A3.
30. Kinzer, supra, note 26, p. A3.
31. Buruma, supra, note 11, p. 142.
32. Holmes, supra, note 18, p. 35.
33. T. Rosenberg, The Haunted Land: Facing Europe's Ghosts After Communism (New York, 1995), p. 351.
34. H. Psomiades, "Greece: From the Colonel's Rule to Democracy," in J. Herz, supra, note 16, p. 264.
35. I. Guest, Behind the Disappearances: Argentina's Dirty War Against Human Rights and the United Nations (Philadelphia, 1990), p. 1.
36. Guest, supra, note 32, p. 2.