The degree of criminal activity in Argentina’s “dirty war” was never really measured completely, but it’s clear the numbers of “disappeared” were absolutely shocking to the world. Although some justice was served when, after a scrupulously fair trial, five members of those juntas were sent to prison, the fact is that it scarred the country and the peoples’ faith in government forever.
Unfortunately, Alfonsin’s successor as President, Carlos Saul Menem, had pardoned most members of the military and expressed his intention to pardon all but one of the officers still facing punishment. (Gen. Carlos Guillermo Suarez Mason, whose command in Buenos Aires was marked by surpassing cruelty, is exempt from any pardon, having earned the contempt of his military colleagues by fleeing Argentina when Alfonsin took office. He was apprehended in California, which he had entered as an illegal alien, and is now in jail in Buenos Aires awaiting trial.) Yet with all the setbacks, Argentina achieved–in the words of my colleague Juan Mendez of Americas Watch, an Argentina lawyer who is himself a former prisoner of Suarez Mason–both “truth and partial justice.”
Last April 24, six weeks after he took office, President Patricio Aylwin of Chile established a Truth and Reconciliation Commission. As its name indicates, the commission does not consider the securing of justice to be within its power. Instead, the Chilean state’s inability to punish those responsible for the crimes of the Pinochet era, including Pinochet himself, is portrayed as the pursuit of a virtue: reconciliation. The architects of the commission derived the view that justice is beyond their means, partly from their close study of the Argentine experience and also that of Uruguay. In the latter case, a popular referendum in April 1989 upheld a law passed three years earlier under which the armed forces were granted amnesty for crimes committed during the years of military rule, 1973 to 1985. One factor in the voting–though it is impossible to know how heavily this weighed–was fear that a new coup might be launched if the law were overturned. The turmoil caused by the military uprisings against Alfonsin in neighboring Argentina no doubt contributed to that fear. As a consequence, in Uruguay there has been no official acknowledgment of the dictatorship’s crimes, which included the systematic torture of thousands, and no one has been brought to justice for those crimes. The Uruguayan experience also advances the unfortunate proposition that a popular referendum is an appropriate way to decide questions of justice.
In Chile, the difficulty of securing justice is exacerbated by the constitutional arrangement that Pinochet devised and that permitted a peaceful transition from his dictatorship to Aylwin’s elected civilian government. That arrangement denies Aylwin authority over the armed forces (Pinochet himself is guaranteed his post as commander of the army); it empowers the military to appoint certain members of the Senate; it maintains military court jurisdiction over many cases that belong in civilian court; and it forbids the overhaul of the Supreme Court. As a result, a 1978 amnesty law decreed by Pinochet and upheld by the Supreme Court remains in place. It bars prosecutions for the slaughter that commenced with the coup and continued throughout the years Pinochet was consolidating his power. (By contrast, after Alfonsin took office in Argentina the Supreme Court was reconstituted, and the law decreed by the generals to pardon their own crimes was invalidated by the courts and the Congress.) Finally, there is an extra-constitutional hurdle: Pinochet has publicly threatened that the state of law will end if any of his men are touched by the new government.
Chile’s Truth and Reconciliation Commission, which includes outstanding advocates of human rights among its members, such as Jaime Castillo and Jose Zalaquett, both forcibly exiled by Pinochet, must complete its work by January. Undoubtedly, it will fulfill the task assigned to it by President Aylwin: to present “the most complete possible picture of the most serious violations of human rights committed between 11 September 1973 and 11 March 1990 [the period of military dictatorship].” It can also be counted on to recommend reparations for the victims and legal and administrative steps to prevent a recurrence of gross violations of human rights. What its mandate does not permit, however, is any pronouncement of individual responsibility for those crimes. This is the line that cannot be crossed by Chile’s democratic government.
By now, a consensus has emerged in the human rights movement worldwide that while both truth and justice are needed to deal with past abuses of the magnitude of those that occurred in Chile, truth is the more important. That is, the government itself should acknowledge and fully disclose the crimes perpetrated by those who exercised power. Yet though justice ranks after truth, in Chile there should be no pretending that “reconciliation” at the point of Pinochet’s guns is a satisfactory substitute. The Truth and Reconciliation Commission will serve the cause of truth and justice if its report states clearly that justice cannot be done in Chile only because the civilian government lacks the power to see that it is done; and the commission should call on the government to make every effort to curb the power of the armed forces so that, at least in the future, justice can be done.