1 For the most exhaustive list and description to date of truth commissions, see Priscilla B. Hayner, “Fifteen Truth Commissions—1974 to 1994, A Comparative Study,” 16 Hum. Res. Q. 597 (Nov. 1994).CrossRefGoogle Scholar

2 It is difficult to assess the “success” of an investigatory commission in meeting these goals, at least in the short term. Its impact on a society and even its success on its own terms may well depend on the passage of time and the accretion of historical memory. Thus the impact of a commission's work may be perceived far differently now than 20 years hence. Moreover, the same constraints and possibilities that arise from the social context and political culture and influence the choices made in setting up a Commission are likely to determine the extent of follow-up to it—and may also dictate the limits to its success. Thus it becomes virtually impossible to disentangle these “background” effects from the choices made by the commissions. Still, perhaps a measure of how well the commission met its goals is the extent to which its work ameliorated, or at least altered, these same background conditions.Google Scholar

On the other hand, a “successful” commission may be more a reflection of favorable background conditions than of anything the commission does. In any case, while we recognize that the choices made about the content and method of the work of such a commission are not unconstrained, we believe that such choices exist and that different designs may produce different outcomes even within a similar set of constraints. We hope, therefore, that our exploration may prove useful to those in other countries who are beginning to grapple with the issues of truth and justice in the context of successor regimes or negotiated settlements.Google Scholar

3 Argentina, not discussed here, also fits into this type of situation. The Argentine truth commission (the Sabato Commission) is discussed in, e.g., Hayner, 16 Hum. Rts. Q., and in International Commission of Jurists, “Human Rights in the World: Argentina, the Truth about the Disappeared,” 33 Rev. Inr'l Commission of jurists 1–8 (Dec. 1984).Google Scholar

4 See, e.g., Walter LaFeber, Inevitable Revolutions: The United States in Central America (New York: Norton, 1983).Google Scholar

5 See, e.g., Ricardo Falla, Massacres in the Jungle, Ixcán, Guatemala, 1975–1982 (Boulder, Col.: Westview Press, 1994) (“Falla, Massacres in the Jungle”); Mark Danner, The Massacre at El Mozote: A Parable of the Cold War (New York: Vintage Books, 1994) (“Danner, Massacre at El Mozote”); United Nations, From Madness to Hope: The 12-Year War in El Salvador (Report of the Commission on the Truth for El Salvador) (U.N. Doc. S/25500; New York: United Nations, March 1993) (“UN, From Madness to Hope”).Google Scholar

6 In Central America, for example, most killings were of peasants. The El Mozote massacre in El Salvador was a case in point: as many as 1,000 people, mostly children, were killed in December 1981. Contemporaneous eyewitness accounts were rejected by policymakers and much of the news media, who attributed the reports to FMLN propaganda. See Danner, Massacre at El Mozote In Guatemala, thousands of Indian peasants killed by the armed forces spoke no Spanish and followed indigenous traditions. See Falla, Massacres in the Jungle. Throughout Latin America, governments consistently dismissed reports of gross human rights violations as communist propaganda aimed at discrediting them in international opinion.Google Scholar

7 For a description of the effects of these kinds of terror on society, see Jaime Malamud-Goti, “Transitional Governments in the Breach—Why Punish State Criminals?” 12 Hum. Rts. Q. 1 (1990); id., “Punishing Human Rights Abuses in Fledgling Democracies: The Case of Argentina,”in Naomi Roht-Arriaza. ed., Impunity and Human Rights in International Law and Practice (New York Oxford University Press, forthcoming 1995) (“Roht-Arriaza, impunity and Human Rights”).CrossRefGoogle Scholar

8 Wimesses are often reluctant to testify in courts because they fear reprisals. When state institutions have been notoriously unreliable and unable to protect the victims of human rights violations, far more than a state change in policy will be needed to overcome legitimate fears. See UN, From Madness to Hope 23–24.Google Scholar

9 Under international law, the successor government is responsible for the acts of the prior regime, even though it in fact had no control over them and often those now in power were victims of the prior government. The law makes no provision for situations where one part of the state, i.e., the military, is not within the effective control of another part. In addition, there is increasing international recognition that states have a duty to investigate, prosecute, and provide some kind of redress for certain grave human rights violations, including disappearances, widespread and systematic summary executions (or other crimes against humanity), and torture. As a corollary, while political crimes are amnestiable under international law, this subset of crimes that must be prosecuted cannot be subject to a blanket pre-investigation amnesty. See, e.g., Diane Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,” 100 Yale LJ. 2537 (1991); Naomi Roht-Arriaza, “State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law,” 78 Cal. L. Rev. 449 (1990); Inter-American Commission on Human Rights, Commission u. Uruguay, report No. 29/92, 82d Sess., OEA/Ser. L/V/II.82, Doc. 24 (2 Oct. 1992); id., Report on the Situation of Human Rights in EL Salvador, OEA/Ser.L/V/11.85, doc. 28 rev., 11 Feb. 1994, at 69–77 (“IACHR, Report on Human rights in EI Salvador); Velasquez Rodriguez case, Inter-Am. Ct. H.R. (ser. C), No. 4 (1988) (judgment).Google Scholar

10 The commission was created by Ministry of the Interior Decree No. 355 of 25 April 1990, published in the Diario Oficial (9 May 1990). The Commission was established by presidential decree after opposition parties in the legislature indicated they would oppose a legislative commission.Google Scholar

11 Report of the Chilean National Commission for Truth and Reconciliation 7, trans. Phillip Berryman (Notre Dame, Ind.: Notre Dame Press, 1993) (“Report of the Chilean National Commission”). Several accounts of the commission's work have appeared in English. In addition to the introduction to the English version of the report by Jose Zalaquett, see Jose Zalaquett, “Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations,” 43 Hastings L.J. 1425 (1992); Jorge Correa S., “Dealing with Past Human Rights Violations: The Chilean Case after Dictatorship,” 67 Notre Dame L.R. 1455 (1992); David Weissbrodt & Paul Fraser, “The Report of the Chilean National Commission on Truth and Reconciliation,” 14 Hum. Rts. Q. 601 (1992); Robert Quinn, “Will the Rule of Law End? Challenging Grants of Amnesty for the Human Rights Violations of a Prior Regime: Chile's New Model,” 62 Fordham L. Rev. 905 (1994).Google Scholar

12 See Correa, 67 Notre Dame L. Rev. at 1473; Weissbrodt & Fraser, 14 Hum. Rts. Q. at 616.Google Scholar

13 See Weissbrodt & Fraser, 14 Hum. Rts. Q. at 622; A. Trushin, “Left-Wing Terrorist Faces Trial in Chilean Court,”Tas News Service, 10 Jan. 1994.Google Scholar

14 Decreto-Ley 19.123 (8 Feb. 1992).Google Scholar

15 See UN Secretary General Bounos-Ghali, Agenda for Peace, UN Doc. A/47/277, 17 June 1992.Google Scholar

16 Venezuelan jurist Dr. Pedro Nikken was the UN's advisor on human rights during the peace negotiations and is now the UN's Independent Expert on the Situation of Human Rights in El Salvador. He was a member of the Inter-American Human Rights Court which heard and decided the Velasquez-Rodriguez case. Truth Commission member Thomas Buergenthal was president of the Inter-American Human Rights Court during that period. The 1987–88 decision of the Inter-American Human Rights Court was crucial in defining the state's obligation to guarantee human rights, including preventing, investigating, and prosecuting violations.Google Scholar

17 The exact number of officers involved only became known when the UN published a letter from the UN Secretary General to the Security Council. UN Doc. S/25078, 9 Jan. 1993.Google Scholar

18 Chapultepec Agreements between the Government of El Salvador and the FMLN, ch. 1, “Armed Forces,” sec. 5, “End to Impunity,” in United Nations, El Salvador Agreements: The Path to Peace (San Salvador: United Nations Department of Public Information No. 1208-92614, July 1992) (“UN, Path to Peace”).Google Scholar

19 UN, Path to Peace, Truth Commission Agreement, Undertaking by the Parties, at 31.Google Scholar

20 See Douglas W. Cassel, Jt., “International Truth Commissions and Justice,” 5 Aspen Inst. Q. 69 (Summer 1993).Google Scholar

21 UN, From Madness to Hope, annex (1 April 1993), at 185–98 (cited in note 5). These reforms included creation of a new civilian police force incorporating a limited number of former FMLN combatants, reduction in the size of the army, dismantling militarized security forces, dismissal or retirement of the worst human rights offenders, and reforms aimed at ensuring greater judicial independence.Google Scholar

22 Hayner, 16 Hum. Rts. Q. n. 9 (cited in note l), does not include it in her list of 15 truth commissions, noting that it calls on the government to establish a truth commission with greater access to restricted information to investigate the full truth. Nonetheless, because the Honduran effort suggests another model for investigating past violations, we include it here.Google Scholar

23 The commissioner's office was established by Decree-Law 26–92 of 8 June 1992, and its independence was further guaranteed by Executive Decree 6/51–92 of 8 Sept. 1992. The office is responsible for overseeing acts and measures necessary to ensure respect for human rights, investigate violations, and oversee Honduras's compliance with international human rights norms. See Comisionado Nacional de Proteccion de los Derechos Humanos, Los Hechos Hablan por Si Mismos (Tegucigalpa, Honduras: Ed. Guaymuras, 1994) (“Valladares Report”). The report has been translated into English as National Commissioner for Protection of Human Rights, Honduras: The Facts Speak for Themselves (New York: Human Rights Watch/ Americas and Center for Justice and International Law, 1994) (“Honduras”). Google Scholar

24 See Velasquez-Rodriguez case (cited in note 9) (establishing a state's duty to investigate disappearances); Inter-American Commission on Human Rights, Reports No. 29/92 (Uruguay), and No. 24/92 (Argentina), 82d Sess., OEA/Ser.L/V/11.82, Docs. 24, 25 (2 Oct. 1992) (the commission, of which Valladares is a member, holds that there are international law limits to posttransition amnesties).Google Scholar

25 Valladares Report at 9.Google Scholar

26 Global Accord on Human Rights between the Government of the Republic of Guatemala and the Guatemalan National Revolutionary Unity (URNG), Mexico City, 29 March 1994, UN Doc. A/48/928-S/1994/448, 8 April 1994, reprinted in 1 Verdad y Vida xxv (Jan.-Mar. 1994).Google Scholar

27 As of late 1994, topics relating to the role of the military and constitutional reform remained to be negotiated; however, there was little expectation that these kinds of agreements would be reached. Unlike the Salvadoran military, which while not defeated found itself unable to defeat the FMLN, the Guatemalan military considers itself victorious and has shown little disposition to make concessions.Google Scholar

28 Accord on the Establishment of the Commission to Clarify Past Human Rights Violations and Acts of Violence That Have Caused the Guatemalan Population to Suffer, signed in Oslo, Norway, 23 June 1994, UN doc. A/48/954-S/1994/751, 1 July 1994 (“Accord on the Establishment of the Commission”).Google Scholar

29 For example, critics noted that the report did not name the names of perpetrators, did not recommend prosecutions, and did not single out the armed forces as having qualitatively different responsibility for human rights violations, as compared with the political parties, the church, and other actors in Chilean society. See Jorge Mera, “Truth and Justice in the Democratic Government,” in Roht-Arriaza, Impunity and Human Rights ch. 12 (cited in note 7) (“Mera, ‘Truth and Justice’”).Google Scholar

30 The indictment of Truth Commission member Figueredo by Venezuelan courts on charges of corruption related to the government of Carlos Andres Perez gave ammunition to those in Salvadoran society who disagreed with the report's findings. The Venezuelan charges first appeared in the Salvadoran press as the commission's report was about to be published.Google Scholar

31 Thomas Buergenthal, “The United Nations Truth Commission for El Salvador,” 27 Vanderbilt J. Transnat'l L. 497, 542 (1994).Google Scholar

32 The poll, carried out by the Public Opinion Institute of the Central American University (UCA), found that 45% of Salvadorans questioned were satisfied with the Truth Commission's report, while 27% were dissatisfied. Three-fourths of those polled favored the removal from office of officials found to have violated human rights. Universidad Centroamericana José Simeón Cañas, Instituto Universitario de Opinion Publica, Boletin de Prensa, Año VIII, No. 2, “La Opinión de los Salvadoreños sobre la Comisión de la Verdad” (1993).Google Scholar

33 National commissions, unless they have strong international backing, may be more problematic in cases of settlement of civil conflicts. For example, the Ad Hoc Commission in El Salvador, created at the same time as the truth commission, was composed of three Salvadorans who reviewed the human rights records of military officers and recommended the transfer or discharge of 102 officers, including most of the high command. Implementation of their key recommendations only occurred after the UN Secretary General stepped in to demand compliance. Without the UN's involvement, they might well have engaged in a futile—and dangerous—exercise. The joint group to examine ongoing death squad activities in El Salvador, formed as a result of one of the truth commission's recommendations, was a combined effort of Salvadorans and UN personnel. Because of the Salvadorans' involvement, a number of organizations and individuals considered it less trustworthy than the truth commission and chose not to share their information with it.Google Scholar

34 Several countries where truth commissions operated, including Chile, continue to experience periodic reports of torture of prisoners. On Chile, see Amnesty International, 1993 Report (London: Amnesty International, 1993) (torture and mistreatment of suspects in police custody); on Argentina, see Americas Watch and Centro de Estudios Legales y Sociales, Police Violence in Argentina: Torture and Killing in Buenos Aires 20 (New York: Americas Watch, 1991). On El Salvador, see UN Observer Mission Report of the Director of the Human Rights Division of ONUSAL covering the period 1 March-30 June 1994, UN Doc. A/49/281, 28 July 1994, at para. 66.Google Scholar

35 See Carlos Chipoco, “El Derecho a la Verdad: Un Anáisis Comparativo” (presented at 18th Latin American Studies Association Congress, March 1994, Atlanta).Google Scholar

36 See Alexandra Huneeus, “Chile Still Divided over Rights Trials,” S.F. Chronicle, 10 Sept. 1993, at A14.Google Scholar

37 Accord on the Establishment of the Commission (cited in note 28).Google Scholar

38 Report of the Chilean National Commission 6 (cited in note 11).Google Scholar

39 UN, From Madness to Hope 175 (cited in note 22).Google Scholar

40 See Mera, “Truth and Justice” (cited in note 29). Mera argues that the designation of human rights violations should be reserved for the state, and that to characterize terrorist or criminal acts of nonstate actors this way is misleading and undermines the educational role of a truth commission's report.Google Scholar

41 See Americas Watch, El Salvador, Accountability and Human Rights: The Report of the United Nations Commission on the Truth for El Salvador 25–27 (New York: Americas Watch, 10 Aug. 1993) (“Americas Watch, El Salvador”).Google Scholar

42 See Ignacio Martin-Baro, S.J., “Reparations: Attention Must Be Paid,” 186 Commonweal (23 March 1990). Martin-Baro was one of the Jesuit priests later assassinated in El Salvador.Google Scholar

43 See Jaime Malamud-Goti, “Punishment and a Rights-Based Democracy,”Crim. Just. Ethics, SummerFall, at 7; S. Salimovich, E. Lira, & E. Weinstein, “Victims of Fear: The Social Psychology of Repression,” in Juan E. Corradi, P. W. Fagen, & M. A. Garreton, eds., Fear at the Edge: State Terror and Resistance in Latin America 72–89 (Berkeley: University of California Press, 1992).Google Scholar

44 In the proposal for a South African truth commission, one of the official objectives listed is to provide victims with a platform on which they can “express their plight and tell their story.” This is the clearest recognition to date of the value of storytelling in coming to terms with the past. The bill establishing the truth commission is reprinted in Oxfam South Africa, 43 South Africa Watch (9 Sept. 1994).Google Scholar

45 See Zalaquett, 43 Hastings L.J. at 1437 (cited in note 11).Google Scholar

46 Buergenthal, 27 Vanderbilt J. Transnat'l L., at 504 (cited in note 31).Google Scholar

47 See, e.g., Alice Henkin, “Conclusions,” in State Crimes: Punishment or Pardon? (Wye, Md.: Aspen Institute, 1989). Thomas Nagel, a participant in the seminar that gave rise to this book, distinguishes between knowledge, which existed, and acknowledgment, which was the necessary, and missing, factor.Google Scholar

48 See David Pion-Berlin, “To Prosecute or to Pardon? Human Rights Decisions in the Latin American Southern Cone,” 16 Hum. Rts. Q. 105 (1994). Pion-Berlin argues that the presidents' political background and will was a decisive factor explaining differences in policy among Chile, Argentina, and Uruguay. We believe structural issues were probably more salient but that these personal differences were nonetheless a factor.Google Scholar

49 See Margaret Popkin, “El Salvador: A Negotiated End to Impunity?” in Roht-Arriaza, ed., Impuniry and Human Rights ch. 15 (cited in note 7).Google Scholar

50 See ONUSAL, Report of the Director of the Human Rights Division for the period 1 March-30June 1994, UN Doc. A/49/281-S/1994/886, 28 July 1994.Google Scholar

51 Amnesty International and Human Rights Watch have issued strong statements demanding individual accountability for serious human rights violations. The UN General Assembly has done the same in the case of disappearances and summary executions. See Declaration on the Protection of All Persons from Enforced Disappearance, G.A. Res. 47/133 (18 Dec. 1992), UN Doc. A/RES/47/133, 12 Feb. 1993; Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, ECOSOC Res. 1989/65 of 24 May 1989, Annex, ECOSOC Off. Rec. 1989, Supp. No. 1 (1990), endorsed by G.A. Res. 44/ 162 of 15 Dec. 1989, GAOR 44th Sess, Supp. No. 49 (1990). See also Inter-American Commission cases and scholarly articles cited supra in note 9.Google Scholar

52 The Argentine investigatory commission declined to publicly name those identified as perpetrators but passed the information along to the relevant courts. The list of those named was leaked to the press, however, and soon became public knowledge. Most of those named were never tried.Google Scholar

53 The commission's mandate specifically precluded it from exercising judicial functions. Report of the Chilean National Commission 7 (cited in note 11).Google Scholar

54 UN, From Madness to Hope 4 4 (cited in note 21).Google Scholar

55 Id. at 25.Google Scholar

56 Americas Watch, El Salvador 12–13 (cited in note 41); Buergenthal, 27 Vanderbilt. Transnat'l L., at 520–22 (cited in note 31).Google Scholar

57 Some critics maintain that the commission's recommendations barring people from holding office are penal sanctions that affect legal rights. This recommendation in particular proved so controversial—and of questionable constitutionality—that it was explicitly rejected by Salvadoran political parties.Google Scholar

58 Truth Commission Agreement, Powers, in UN, Path to Peace 30 (cited in note 18).Google Scholar

59 UN, From Madness to Hope at 24 (cited in note 5).Google Scholar

60 Buergenthal, 27 Vandrzbilt J. Transnat'l L, at 518–19, 531–32.Google Scholar

61 On the legal difficulties of prosecutions, see Roht-Arriaza, Impunity and Human Rights chs. 3–5, 21 (cited in note 7). On the political aspects, see, e.g., Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman: University of Oklahoma Press, 1991); John Hen, ed., From Dictatorship to Democracy (Westport, Conn.: Greenwood Press, 1982).Google Scholar

62 See Mexico Agreements of 27 April 1991, in UN, Path to Peace 29 (cited in note 18).Google Scholar

63 The Accords state: The parties recognize the need to clarify and put an end to any indication of impunity on the part of officers of the armed forces particularly in cases where respect for human rights is jeopardized…. All of this shall be without prejudice to the principle, which the Parties also recognize, that acts of this nature, regardless of the sector to which their perpetrators belong, must be the object of exemplary action by the law courts so that the punishment prescribed by law is meted out to those found responsible. Chapultepec Agreements, ch. 1, “Armed Forces,” sec. 5, “End to Impunity,” in UN, Path to Peace 53.Google Scholar

64 In contrast, the question of amnesty for the perpetrators of human rights violations was not directly addressed in the peace accords. The two amnesties granted in the wake of the accords are discussed infra at note 66.Google Scholar

65 The Inter-American Commission on Human Rights, on the other hand, has stressed that neither the peace accords nor Protocol II of the Geneva Conventions excuse El Salvador from its obligations under international law, notably the American Convention on Human Rights. See IACHR, Report on Human Rights in El Salvador (cited in note 9).Google Scholar

66 Legislative Decree 486, 20 March 1993, published in Diario Ofical vol. 318, No. 56, 22 March 1993. The 1993 amnesty followed an earlier 1992 law. Because of the immediate need to legalize the situation of FMLN leaders who were returning to the country and would be involved in implementing the peace accords, on 23 Jan. 1992, the political parties rushed through a National Reconciliation Law. Legislative Decree 147, Diario Oficial vol. 314, No. 14. The agreement amounted to a delayed general amnesty. It excluded from its benefits: (1) persons convicted by juries, to prevent the release of the two officers convicted four months earlier for the killing of six Jesuit priests, their housekeeper, and her daughter; (2) those named in the Truth Commission report as being responsible for serious human rights violations, to allow the Truth Commission to carry out its work before the application of amnesty in all cases. The amnesty law was passed on 23 Jan. 1992; the Truth Commission report was not made public until 15 March 1993.Google Scholar

The same article that provided for these exceptions established that the Legislative Assembly could overrule them six months after the truth commission issued its report. Human rights groups expressed reservations about the law, which permitted amnesty for crimes that cannot be amnestied under international law.Google Scholar

67 The exceptions to the 1992 amnesty were explicitly overruled by the 1993 law and the six-month waiting period for legislative action was eliminated.Google Scholar

68 United Nations, Report of the Secretary General on the United Nations Observer Mission in El Salvador, UN Doc. S/25812/Add. 1, 24 May 1993.CrossRefGoogle Scholar

69 See IACHR, Report on Humn Rights in El Salvador 69–77 (cited in note 9). The commission concluded that “regardless of any necessity that the peace negotiations might pose and irrespective of purely political considerations, the very sweeping General Amnesty Law passed by El Salvador's Legislative Assembly constitutes a violation of the international obligations it undertook when it ratified the American Convention on Human Rights, because it makes possible a ‘reciprocal amnesty’ without first acknowledging responsibility (despite the recommendations of the truth commission); because it applies to crimes against humanity, and because it eliminates any possibility of obtaining adequate pecuniary compensation, primarily for victims.”Id. at 77.Google Scholar

70 The nongovernmental Human Rights Commission of El Salvador filed a petition with the Supreme Court on 21 April 1993; Socorro Juridico Cristiano “Archbishop Oscar A. Romero” and the Human Rights Institute of the Central American University filed another petition on 11 May 1993. Both petitions were denied, and the Court ruled that the constitutionality of the amnesty presented a nonjusticiable political question. Resolution of the Petition for Unconstitutionality (“Demanda de lnconstitucionalidad”) presented by Joaquin Antonio Caceres Hernández, Sala de lo Constitucional de la Corte Suprema de Justicia, Inconstitucionalidad No. 10–93, 20 May 1993.Google Scholar

71 Instituto Universitario de Opinión Púlica, Universidad Centroamericana José Simeón Cañas, Boletín de Prensa, Año VII, No. 2, 14 July 1993.Google Scholar

72 Decreto-Ley No. 2191 (1978), Diario Oficial, No. 30.042, 19 April 1978. The amnesty applied to all persons who committed criminal offenses between 11 Sept. 1973 (the date of the coup) and 10 March 1978. It excepted individuals currently on trial or convicted, which meant that most government opponents accused of crimes did not benefit. Murder, disappearance, torture, kidnapping, and assault were covered by the amnesty, although other common crimes were not. U.S. political pressure resulted in a specific exemption for anyone involved in the killing of former Ambassador Orlando Letelier and a colleague.Google Scholar

73 Report of the Chilean National Commission at 7 (cited in note 11).Google Scholar

74 Id. at 885.Google Scholar

75 See, e.g., Julia Meehan, “Former Secret Police Chief to Appeal Jail Sentence,”Reuters, 13 Nov. 1993.Google Scholar

76 See, e.g., La Nacion (Santiago, Chile), 1 Aug 1993, at 8.Google Scholar

77 Corte Suprema, 24 Aug. 1990, case of Insunza Buscunan, Ivan Sergio (recurso de inaplicabilidad), 87 (No. 2) Rev. de Derecho y Jurisprudencia y Gaceta de los Tribunales, May-Aug. 1990, at 64–86. The Court rejected arguments based on equal protection, on the right to life and on international law, including the 1949 Geneva Conventions and the Genocide Convention.Google Scholar

78 See “Chile Court Raises ‘Cut-Throat’ Sentences to Life,”Reuters, 30 Sept. 1994; “Chile: Police Chief Cleared of Charges, Reassumes Post,”Inter-Press Service, 17 June 1994.Google Scholar

79 See Gustavo Gonzalez, “Chile: Another Trial Pits Civilian Courts against Military,”inter-Press Service, 12 July 1994; “Chilean Ex-Colonel Arrested in Human Rights Case,”Reuters North American Wire, 10 July 1994. Two active-duty army officers were also charged in the case.Google Scholar

80 See “Court Punches Hole in 1978 Amnesty: ‘State of War’ Argument Backfires on Its Authors,”Latin American Newsletters, Ltd 465, 13 Oct. 1994.Google Scholar

81 Honduras 407-8 (cited in note 23). The report refers specifically to Honduras's obligations under the International Covenant on Civil and Political Rights and the American Convention on Human Rights, which include the right to a fair trial and to judicial protection. See supra notes 9, 24.Google Scholar

82 Global Accord on Human Rights sec. 3.1 (cited in note 26).Google Scholar

83 See Trish OKane, “Guatemala: ‘Moderates’ Retain Upper Hand in the Military, Enabling Peace Negotiations to Slowly Move Forward,”Notisur—Latin American Political Affairs, 23 Sept. 1994.Google Scholar

84 The Argentine case, which we did not examine, might be considered a counterexample. There, a truth commission (the Sabato commission) produced exhaustive information on some 8,000 disappeared persons. Trials of the commanders of the military juntas followed, with a number of convictions. However, those convicted were eventually pardoned by President Menem after serving little jail time; most of the accused were never tried because of laws limiting prosecutions (the “full stop” law) and creating a conclusive presumption that almost all subordinates were not guilty because they were following orders (the “due obedience” law). Thus, while the truth commission served many useful ends, it is unclear whether an end to impunity can be counted among its achievements. For a thorough analysis, see Alejandro Garro, “Nine Years of Transition to Democracy in Argentina: Partial Failure or Qualified Success?” 31 Colum. J. Trans. L. 1 (1993); Malamud-Goti, in Roht-Arriaza, Impunity and Human Rights ch. 12 (cited in note 7).Google Scholar

85 Thus, a group like the African National Congress (ANC) in South Africa will be more willing to undertake a process that would lead to the identification of those responsible for past violations, including those in its own ranks, than would a former guerrilla force that will have little control over the fate of those identified. In fact, the ANC-led government has proposed creation of a truth commission, which will, in addition to compiling a historical record of crimes committed under apartheid and recommending changes to avoid further abuses, have the power to recommend indemnity from prosecution for individuals who come forward and confess to such crimes. The final decision on whether to grant these pardons will be left for President Mandela. Those members of the security forces or other organized groups who choose not to present themselves to the commission, confess, and seek indemnification will be subject to prosecution. See, e.g., “Mandela Will Grant Amnesty to Some: Waivers for Political Crimes Will Depend on Full Confessions,”Chicago Tribune, 8 June 1994, at A6; Lynn Berat, “South Africa: Negotiating Change?” in Roht-Arriaza, Impunity and Human Rights ch. 20 (cited in note 7).Google Scholar