Jose Zalaquett speaks about accountability for human rights abuses, drawing significantly on his own experiences in a wide range of countries, including Chile. October, 2010.
Transcript:
>> I'm Susan Collins, the Joan and Sanford Weill Dean here at the Gerald R. Ford School of Public Policy. Is this on? Can people hear me?
>> Yeah.
>> And it's a great pleasure to welcome all of you here on behalf of the Ford School, the International Policy Center and our co-host, the Center for International and Comparative Studies. And I'd like to extend a particularly warm welcome to our distinguished speaker, the International Human Rights lawyer and professor Jose "Pepe" Zalaquett. We're very honored to have you here. He'll get a proper introduction in just a few moments but I first wanted to acknowledge the vision and the hard work of my faculty colleague here at the Ford School, Professor Susan Wallace. She has been the driving force behind today's event. Susan herself has been extremely active in International Human Rights work for more than 25 years. Early in her career, she worked as an area expert in Human Rights Advocate to stop torture in political imprisonment in Morocco, Tunisia, Algeria and Libya. She has also--oops, she has also testified before the US Congress on Human Rights Practices in North Africa and testified as an expert witness for North African refugees in US Immigration Court. Susan was elected to the amnesty International USA Board of Directors in 2010. And here at the Ford School, she teaches courses in foreign policy, human rights and international poverty. And this winter, she will teach a 7-week graduate seminar for us followed by a study trip to Grenada. Thank you very much for your work in this regard and for organizing this very special event for us, Susan. And with that, I'll turn things over to you. Welcome.
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[ Applause ]
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>> It is a real pleasure to be able to introduce one of my heroes to you today. You know life, we never really know quite where it's going to take us and what kind of challenges it's going to put before us, what we're going to do when the challenges arise and what a single event might mean for us. And I'm quite certain that 9/11 changed the life of our speaker forever. But it's probably not the 9/11, the September 11 that you're thinking of. September 11th, 1973, was the day that Chilean military officials stormed the government offices and removed the democratically-elected government, the president of Chile, Salvador Allende which I should probably add as a very important footnote with the help of the US Central Intelligence Agency, but that day, at that time, our speaker was a professor at a law school, had not really considered himself to be a decedent, had actually ably served in the government of Salvador Allende in the previous years but was a part from much of the political activity. And, shortly after the new junta took power, with the blessing of the Catholic Church, the Cardinal of Santiago, he helped organize the legal office that began to document the abuses and the violent--Human Rights Violations that were rampant in Chile for many of the--the next years. Two years later, in 1976, he paid for his good works with exile. He was packed on a plane and sent out of the country where he then continued his work away from his family for the next 10 years. And during that time in exile, he began a career in human rights work that really took him on the path to the topic that he's going to talk about today. How does a society that has been wrecked by conflict rebuild itself, reconstruct its moral and its political framework, so that it can move on in time, over the last, what? 20 or 30 years, Jose Zalaquett has traveled around the world, invited by many different parties to come and talk with them and look at their own circumstances to see how truth can be told, must be told and justice must be done. And I'm very, very pleased to be able to introduce Jose "Pepe" Zalaquett to you today. And I'm very eager to hear what he has to say. Please join me in welcoming him.
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[ Applause ]
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>> Is this an open forum? Thank you. Good afternoon, thank you Dean Collins, thank you dear friend and colleague, Professor Susan Wallace. I've been asked to give this lecture on the topic of how to reconstruct a broken society after a return to democracy or to somehow better government, and following a period of civil war, dictatorship or other man-made disaster. And this issue has been termed in English and then borrowed from other languages as transition of justice which I consider to be not a felicitous style because it somehow emphasizes the idea that justice itself is in transition or temporary. And also puts the accent on justice to the detriment of acknowledgment, truth, reparations or many other measures. But, it's a short term. I mean facing a traumatic past to reconstruct a better society doesn't fit in the cover of a book or in a headline. So transition of justice has become a term of convenience. With that, having been said, we can explain the subtitle, building just, sustainable political system-imposed conflict societies. As I said, that doesn't fit in one line. Now, this issue emerged. There are some historical precedence. Actually, in your country, the precedent that didn't make for the whole current was the civil war. And if you remember the Gettysburg Address that we recite in English or in Spanish in our countries, those 250 words amazingly, eloquent. They are so fused with the concept of rebuilding. For, of course 7 years ago now, our founding fathers, now after this disaster, we are going rededicate the country to the values of the past, so nations go through a period of foundation, of troubled life but sustainable life, terminal crisis and rebirth. And some nations have never managed to, to really have a sustainable life on the day then reborn--being reborn every day or every year but for the most part, that is the case. And, for the first three periods of your life, of a nation or a regime, namely foundation of time, the troubled but sustainable normal "life" on crisis, we have had a lot of frameworks to go to, to resort to, but for the period of refoundation or reconstruction, only 27, 28 years ago, we began to fashion a whole framework that is still debatable and in the process of being perfected, and we will refer to that. So the historical precedents where, in the distant past, the civil war and these eloquent, rededication of the government of the people for the people and by the people, and in more recent times, post World War II, the first precedents were Greece, there was rather isolated, and the downfall of the military regime in Greece that incurred in gross violations in '74, Spain in '75, Portugal the following year, but it was not until the Argentinian transition. In 1883, that a whole seguidillas, we call it, a whole string--string of transitions occur, counting together with the process of the unfolding of the cold war structures, more than 30 or 40 countries that have faced these problems, what do you do with the past, not because the past is left behind, but it continues to, because it continues to haunt the present and it can mortgage the future. So it's not just looking backwards. It's a past that still is haunting us and it may affect the future if we don't deal with it properly. So the leading case was the Argentinian case from 1983 onward. Before that, the only memory of dealing with past atrocities in the international community was that of the post World War II, the Nuremberg trials and the Tokyo military tribunal. The first one, justice by the allied, the second one, by America in Japan. These cases had to deal with crimes against humanity or crime genocide, and what was instilled in the awareness of international community was, you have to go and do justice.
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Don't ask me how, just do it. The problem is that Hitler was dead. I mean that they need to surrender unconditionally and there were no standing army to face the ally. This didn't apply to Argentina. In Argentina, they had been defeated in the Falklands War in an island by the British. But in the mainland, they retained the monopoly on weapons. Nevertheless, the international community and particularly in the north, Europe and America said, "Go and do justice." I mean, we have again a situation, maybe not quantitatively as tragic but tragic enough of crime against humanity, perhaps akin to genocide, it's time to do justice again, particularly because the world is so much now aware of the importance of human rights. Here the situation was not the same. For sometime, it looked as if it could work more or less the same, but it wasn't the same because they were not unarmed, disarmed. They were still, they were demoralized, they were in disarray but not disarmed. Oops, sorry, the wrong key. After that, about 30 other cases have taken place in Latin America, Europe, Africa and the Far East. And I will go through them very quickly just naming them. The Latin America, Uruguay, Brazil, Argentine--after the Argentina case, Chile, later on Central America, Nicaragua, Guatemala, El Salvador, Peru later on, even a few years ago. In Europe, all the central European countries after the downfall of the Soviet system, that when I name these countries, I'm not saying that they dealt with the problem properly or rightly. Actually, out of 30 cases, maybe 7 can be counted as reasonably successful. Being a human endeavor in most case, if you have a flat car, it pretends with a facade. This is not to--then to despair about it, but to be realistic. In the, in South Africa of course, the leading case is that of South Africa precisely, but other cases of, in Africa, be in Uganda, Chad, Zimbabwe, Ethiopia, et cetera, Sierra Leone more recently. And in the Far East, you can count Sri Lanka, the Philippines. In Europe, apart from the cases that didn't make for a whole new trend that I already mentioned prior to the Argentina case, Greece, Spain, Portugal. You have then the efforts of the northern island to deal with the case. And the whole issue has expanded, sometimes, taken as a franchise. Like, do you have a problem with--throw there a truth commission, you know. Even for the bourgeois now, people are talking about the Gorbon [phonetic] massacre and so forth. Maybe it's a right solution, maybe not. But sometimes, their reaction is rather automatic. Is there a problem with the past? Well truth commission should be the answer or transition of justice. We have to be a bit more careful about that. Now, transition to democracy as I mentioned is refoundation of time, and refoundation of times, are just similar to the foundation of times, just as rebirth is similar to the time of birth. For the foundation of time, there are different times in political ethics. For the foundation of time, you have a period that is half historical, half mythical. The founding fathers are larger than life. They can do no wrong, and the figure of Jefferson and Madison and Washington is, of a symbolism that far exceeds the historical reality. And there's a time where the constitution is grafted, where the principles of the nation, particularly a nation that is dedicated to a proposition such as America, are fashioned and so forth. So these foundation of times are concentrated in time. In America, I would say from roughly 1776 to 1814, when you consolidated the institution of vis-a-vis, they attempt for recons--recompose from Britain and so forth. So it's not a fixed time but they're usually concentrated in time of great symbolic importance. And as I said, they set out, kind of the moral and political software for the nation. I know not much about softwares, but I know that if you misplaced a semicolon, all kind of funny things happen. So you have to do things right when you write a software, namely when you write the blueprint for what your country should be all about. You have to do things properly, all the best you can. Then the normal time is full of crises, economic crisis, contentious politics, union struggles, social division and so, so. But then somehow, the ship doesn't sink, it's of course made to--what do you say [inaudible]--where it goes to troubled waters on through the storm but it doesn't sink. You may use any other metaphor meanings. This, the system is able to sustain itself. But there are--for that time, we have several frameworks, constitutional law, rule of law, civil rights, accountability and so forth. Just like for the, foundation of time, you have the constitutional principles, the basic social contract theories from the 18th century onward. And the notion of a constitutional--shaped in a constitution, et cetera, et cetera. But there are also emergency times that may lead to the breakdown of a society on a--on a political system. And for those emergency times, we also have fashioned in the last 2 centuries principles, like the laws of war, or internal and conflict, it's called International Humanitarian Law, emergency rule, and some basic ethical principles of human rights that always stand in the background. In situations of war, you may apply first the humanitarian law, the laws of war. But where the, humanitarian law doesn't apply, you have the subsidy or the subsided rules or the background rules of human rights. There's no situation of you being kind of bereft of all protection, as was pretended once by the Bush Government. Like you are, you're not a regular combatant, therefore, you don't enjoy your protection that maybe the case of humanitarian law. But if not, you have to enjoy the protection of human rights, since now that you are bereft of all protection. So, for all these three times in the life of a nation, we have had since long, conceptual normative frameworks. A notion of what is all about, what should be the basic rules? Get for the time of re-foundation or reconstruction, we didn't have this principles really properly in place until the Argentinian case. And we are still somehow, sorting them out. The reason being there is like in geology, like a new volcano whatever, it doesn't settle down until many decades later or perhaps millennia in the case of the volcano. And this thing, the issue is still young, have been young, still more controversial the long settled issues. After having said that, what are the issues, or the transition of time? I will be very schematic in order to attempt to be clear about it. Namely, I will mention first the principles then the political restrictions, and then the criteria to harmonize both. It's easy to say we should be able to do this. But now, they should, we should be able means--now, down in reality, how do you do it? What are the real life situations? And how do you harmonize in political ethics, the 2 terms that conform the expression? Namely, the ethics, and the politics. Namely, the goals to be achieved, vis-a-vis, their real life constraints. I will begin by the political restrictions first. Now, the political restrictions, you may distinguish several factors that influence the restrictions. The type of crises, was this a conflict that meant a confrontation of polarization between rival ethnic groups or religious groups, thus more difficult with this than ideological crises. Because in your lifetime, you may change ideology, you don't change ethnic or religious allegiance, even if you're not a practitioner. So a conflict, say in the Balkans or, as we were discussing with an academic colleague over lunch in Sri Lanka, maybe more intractable than a, than a conflict that has ideological rules. The same can be said about Uganda or other countries where the ethnic element or religious element is a far stronger component than in other places.
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The type of violations where the massive violation was--was there a genocide, big massacres, practice of systematic force, disappearances of people of torture or--the scale of the violations and the nature of the violations. And the type of transition, how did it come about to be left behind the situation of crisis. Was that through a military victory? A complete victory? Was that's through a halfway victory, was it through a peace agreement? That makes a difference. So these are some of the elements to take into account when it comes to political restriction. And I will refer concerning the third one, the type of transition--oops sorry, here it is. Concerning the third one, the type of transition I would refer briefly to certain real life situations. First, military defeat, World War II are the international level, complete military defeat of the Nazi, some of the Japanese and the forces of the Axis, Nicaragua during the few years up to '79 before the contra war erupted, complete defeat of the Somoza forces by the Somonista forces. All international level again, before the resistance erupted again, Afghanistan after September 11, initially, controlled then a new, a new rekindling of the fire so to speak. In the situation of military defeat of the enemy, you have in theory, all the power you need to do things right. But you have so much power that they become a danger against doing things right. So there is a contradiction in terms, there's a paradox. When you need to do justice and choose and because of that, you now have all the power because the enemy is defeated, doesn't have any standing army or maybe hidden or other leaders are dead and so forth. You heave, in theory, all the rooms you need to act, but that becomes a danger against justice because there's no checks and balance. And, forget about the [inaudible] betrayals for a moment, but in France, and even in Norway, there were retributions and reprises that were far from fair. Maybe they weren't corpus, maybe they were not the collaborationist, but we will never know because there was a rampage of the victim's justice and revenge. So, this tells us that when you're dealing with this kind of issue, there's no perfect situation, only better or worse, because, in the ideally, conceptually, perfect situation, in which the perpetrators of massive atrocities are being completely defeated, therein lies the germ or the, or the, or the seed of injustice because there are no checks and balance. So you have to be wary of this problem, the--you need to have a lot of room to act, but not so much that you endanger justice. A second situation was that of the military humiliation without loss of control of the monopoly of force. In Greece '74, and Argentina '82, the ruling dictatorial forces of the military, highly military fiasco, Greece in the hand, by the hands of the Turks in Cyprus, the Argentinians by the hands of the Brits in the Falklands. That demoralized them and produced the downfall of the military regime, but it didn't disarm them. And after they recovered their morale to some extent, they put up a resistance. So initially, as I said, with the Argentinian case, the leading case, I remember from a Human Rights watcher in other groups, in perfect bona fide, wonderful group, saying, "Go and do justice." Don't ask me how, then this looks like new to me--this stuff make me remember. They're alive and they have the control, they were put--demoralized but they're not dead or disarmed. And then when they started putting up a resistance, the complexities of the situation became much more apparent. It's not the type of a situation--a political defeat, not a military defeat, like in Uruguay or in Chile, Uruguay '85, Chile '89-1990, meaning, the government calls to revoke the military government. The Poles' or the dictators never tell them the truth, "Boss who were doing great from the Poles." And so, they sometimes aspire to gain both power and credibility. And they feel cheated when they realized that they lost the election. That happened in Argentina and Chile. They ran a fair election, for the first time, they lost them. And that produced the downfall of the regime or confirmed that they have to follow an itinerary to return to democracy. But they put in place lots of restrictions before leaving power. And they didn't feel demoralized. Rather, they tried to articulate an explanation. See, we always wanted to return to democracy, grind your teeth--we always wanted to return to democracy [laughter] and now we're doing that. See, we hold to our promises. Anyway, [laughter] that cause--they don't lose a settled sense of cohesiveness in the military. They don't have a sense of military defeat which is more grievous for the military people. And therefore, the restrictions are, sometimes more severe. You have a situation of gradual political opening where the worst violations are left in the memory of the previous generation. So, the living memory is attenuated because the worst facts occurred 20 years ago, 15 years ago et cetera. So there is a greater disposition of moving forward. The problem comes back to haunt them many decades later both in Spain and Brazil, but initially, at the moment of transition to democracy or living behind the dictatorship, you have a sense that, while the situation has softened up a little, and let's move forward. You have a situation of military stalemate like both sides, the rebels and the government recognize they cannot defeat each other and they made peace. But both sides have something to reproach themselves. And although there are retrogrades all for truth and justice, in reality, they have their finger crossed before the, behind the back. They're not for truth of justice because it will rebound on them too. So there are many other situations like shifting alliances in an ongoing armed conflict like the Philippines under Corazon Aquino in the '80s. Her husband was a murdered politician, he was murdered, she was elected a widow, but she had to continue to face a military insurrection of the former allies in the left, the radical left, and to have to continue to fight them with the forces that were previously with Marcos dictatorship. So that creates a whole dilemma. You usually don't prosecute your fighting army while still fighting, you know. Anyway, these are all real case--life cases, it collapses totalitarian regimes in the central Europe. I'm talking about former Czechoslovakian Republic now, Czechoslovakia, former East Germany, now Unified Germany, Hungary Bulgaria, Romania, et cetera. In those cases, the problem is, the restriction is, you need the former people to continue to run the country. The decedents are a few hundred, very heroic people, but the policemen, the public servants, the judges, the professors of the schools, they're all from the former regime that they pretended they were all decedents, of course. But by--all the time, it's a normal situation. But it's hard to go for full truth and justice and keeping country functioning at the same time. So, I'm not saying that because of that, you should yield to the temptation of doing nothing or procrastinate, or so on. I'm talking about real life difficulties, is against these difficulties that you have to attempt to move forward towards the ethically-agreed principles. You have situation of ethnic or religious conflicts like in the Balkans or Uganda. In South--South Africa is a special case within this larger category. Namely, the new forces, political forces are from a different ethnic group than the ones that committed the atrocities. And, just like it happened with, Obote and Amin in Uganda, they belong to a particular ethnic group, most of any, they ruler into a different one. And if you go to do justice, you're going to be doing justice concerning the other group, because you surrender yourself with your loyal people, and that means a danger of re-igniting the conflict. You have a situation, also of former colonial power namely East Timor, after being submitted as small island with--and with some more fraction of an island with 600,000 people--population.
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The former Portuguese colonial power retreated, Indonesia, stopped seeing them where there are about 200 million people, a powerful neighborhood--neighbor. Then they gained independence after massive human rights violation, but you still have this former colonial power like a big presence nearby for all purposes. And, how do you go about prosecuting the people who have been their allies in the past? South Africa is a case in point. Mandela emerges from 25 years of imprisonment, and he knows that he has to build--unite the South Africa on the rubble of decades of [inaudible] apartheid policies. Now, you cannot fashion like pseudo-states within the state like this, South Africa did the white party of recognizing 4 states within the states of funny names that no one would recognize but them or their colonies in Southern Africa. You cannot put the--push the flag, white people to the sea, you have to live with them, but you cannot sleep under their rug, the dirt either. So, how to manage that is a real life dilemma that Mandela attempted to address through the means that we would examine in a moment. You have sometimes evolution within the same system. Morocco, the present king, Mohammed VI, established a truth commission to reveal the human rights violation by his father rather a difficult, the commissioner Hassan. Of course, it's a revolution of the regime, he is "more liberal" but the regime is the same kind. And that brings limitation. So they went for reparation and acknowledgment by lawful justice. Anyway, so these are some of the real life situations. Let's go now for the principles, and then refer on how to harmonize them both. I admit this is a rather schematic approach, but is, I believe, one that helps in a short period of time to clarify the issues. The general goal of a policy of transition of justice namely of facing the recent path of truth is when you're moving away from it. The general goal should be the democratic construction or refoundation namely, to build the democratic system, or to rebuild it, build it like in South Africa where one existed but only for 6 million people, the white people. And now, having 1 for 44 million people, build it or rebuild it like in Chile or Argentina where there existed democratic institution before they have been destroyed. Not that you have to fashion the same institutions, but you have the elements to rebuild, the demolition elements that served you to--for the reconstruction purpose. Now, the specific objectives concerning the past, because the general goal means the past, the present, and the future of course, you have to navigate the present, and design policies, long term policies to build a solid democratic system. But, the specific objective is concerning the atrocities of the past, are to prevent and to repair, namely, never again, how to react in such a way that you minimize or eradicate the possibility of sliding back into similar kinds of atrocities to the extent you can. And to repair what is repairable, you cannot return the dead back to life but you can compensate, you can rehabilitate, you can restitute stolen property and so forth. So, these are the specific objectives. And the means to achieve those objectives, this is an overview of the means. Some of them have been saying in truth telling. What does it mean by truth-telling? Truth-telling are one point in the past was criticized because it sounded like an Orwellian kind of approach. A big brother tells you what to believe, we're not talking about that. We're not talking about how it came about the second World War happened, many people might say, "Well, there are many factors, one of them, it was too harsh of inside treaty. And then that allowed for the front side ground to a crazy guy like Hitler to prosper and so forth." Well that's an explanation, but we are aware the not gas chambers is a fact. We are aware they're not, you know, holocaust measures of elimination of Jews and Gypsies and other minorities, that's a fact. So the truth-telling should about facts, not about interpretation, that's left to play writers, historian, oral history, journalist, and so forth. About facts that have a tremendous, ethical transcendence like was their right to life respected or they were sick of crimes by the state? That's a real fact, and which kind of facts? Particularly the facts that, at first grave and second, denied or concealed. Governments never accept that they have killed people in cold blood. They say none of these--this guy resisted and they had, he attacked us, we were better sharpshooters so, you know, we killed them first, but they had fight, and we kill him in a loyal fight. Of course, that's disproven when you proved that the person was killed point-blank, you know, with a shot in the nape--in the back of the head and so forth. But they pretend that it was--they never acknowledged the fact. They didn't acknowledge what is a subject of a total international prohibition, and this is killing a person that is not fighting, this is political imprisonment for reasons of a fair exercise of your rights. They pretend that you were a terrorist that--maybe you were, maybe you were not, but you would never know. These are torture, these things can never be justified, forced disappearances, extrajudicial killings, torture or political imprisonment for reasons of conscience. They may attempt to justify other measures like exile where our laws permit exile when there is an emergency and we had to exile them. Because there is no way you cannot recognize the exiles are running around the world, you know, for everyone to see, you cannot deny that reality. So you attempt to rationalize what you cannot deny. And to deny what you believe you can't deny, or hope you can deny. So truth-telling means putting the lie from under the table, on top of the table to use a biblical image. It means, for everyone in good faith to know what really happened. Because there's a mechanism called denial, and this mechanism of denial, the psychologists and the psychiatrists know it well. It's a mechanism that can happen in an individual level and collective level. Say you have a big conflict between an intense loyalty with a parent or a close relative and an atrocious act, say an abuse, you broke the atrocious act because you cannot live with a tension of the 2, the loyalty versus the atrocity. For countries, the same happen. They--give me the expression of S.O.B but it's my S.O.B. So this country, this government, saved me from communism. But it's telling people no, no it's not true, because if you admit the distruency, so what? But that has to be done to save me from communism, is to hold--too strong to hold. So you broke the truth, this didn't happen. It's not true. It's part of the propaganda. So the efforts of the Truth Commission that have been establish around the world and I was a member of the one in my own country, is to reveal the truth in a way that no person in good faith can deny it. There will always be the looney ones that would deny the holocaust or whatever. But, most people cannot really in good faith deny it. That's the purpose. And for that purpose, truth commissions have been established. Truth commissions are not courts of law. They are not created to deal with the innocence or guilt of individual. For that, they're the previously established courts of law because if you created ex post facto, a court of law, it would be a kind of kangaroo court. Truth commissions are there to establish a historical and morally relevant truth about what happened. And to do that in a manner and with rigor that everybody in the society can accept the truth sooner or later. Truth commissions have been established galore. Priscilla Jaena wrote a book about 15, 20 years ago, a comparative study of truth commissions, there were 21 at that time. Now, they--they've gone to 35 or 30 since. And except for 7 or 8, they were largely, either a feudal exercise or a [inaudible]. And these 7 or 8 are very important ones, and some of them are in Latin America. Also, the Truth Commission in South Africa has been recognized as an important and serious one.
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Second, the memory building or preservation of the memory. The Truth Commissions contribute to the memory, but they are all symbolisms of the memory preservation. Monuments, commemorations, gestures--symbolic gestures try to build even museums of memory. We would see that in a moment. Third, acknowledgment of the truth. These 2 friends present here in the first row were at the conference in 1988 where the philosopher Thomas Nagel from NYU, introduced the morally relevant distinction between knowledge and acknowledgment. And he put the following example if you people would remember. He said imagine the Court of Law in Britain presided by a judge in the high podium with blood robes and a white wig. And the barristers are wearing white wig from everyone you see is "My Lord." And all of the sudden the wig from the judge slips off and he will quickly puts it on back. Everybody knows that he's wig slipped off. He knows that everybody knows. Everybody knows that he knows and so on, but no one recognized, they continue "My Lord." [Laughter] So what he says that's it's knowledge but not acknowledgment and acknowledgment means putting a truth in the annals of the nation to exit in the memory in a way that is more efficient not in the sense Orwellian says but in the Agora, in the Plaza Publica, in a place where the civic rituals are conducted. Everybody knows everything about everybody else. We have 300 bytes of memory. This guy, he was married once to so and so but he--we know everything, but it's not necessarily recognized, acknowledged. And the acknowledgment is very important because then institutions in society can rectify their doctrine. For instance, the military that never did say so officially, "You can kill people in cold blood for the sake of National Security," they can say now publicly, "This was wrong and to kill people in cold blood when they are in your custody is wrong and which should never be done." So you rectify the implicit doctrine that you somehow disseminated when you were acting their way. Second in page, the way for reparations because if you acknowledge something, then the holocaust society is more prepared to pass a law to provide in reparation for the victims. The acknowledgment in Britain of the truth--sorry, in Germany of the truth on the holocaust provided for laws of reparations for the victims or their descendant that still are in force. So the acknowledgment is very important to recover the sense of these principles are serious. We didn't respect them. That's wrong, it would never happen again. I'm not talking about the acknowledgment of individuals which would be very important but you cannot some--for someone to self-incrimination. That will be against basic legal principles. I'm talking about the acknowledgment mostly of individuals if possible but mostly of the army, political parties, or even the whole nation as it happened with Germany at one point. The church, by the way, has been engaged in the Catholic Church in exercises that many people feel the halfway of acknowledgment, acknowledgment for imprisoning Galileo for believing that the earth revolved around the Sun and not the other way around, acknowledgment for forced evangelization and more recently, acknowledgment initially timid and gradually been more clear for the pedophilia. But this acknowledgment is very important in the sense that you say, "This is wrong." Now, we admit that we did it and we shouldn't have done it, it would never happen again, we will take the measures. That's the sense of acknowledgment. Then reparations, you can't repair the irreparable. You can't bring back the dead to life. But reparations may be, at the individual level, consisting restitution. You stole the property, you expelled faculty members because of their ideas from the law school or the medical school, and you return them to their position or you return their property that was stolen may consist on compensation namely a pension or a sum of money, usually a pension for life for the relatives, for the victims over the victims themselves. It may consist on rehabilitation namely helping to deal with the physical and psychology sequelae of the victimization. There are reparations also that are collective namely in certain towns to erect a monument or to put a plaque in a school where they kill the students or the professors or whatever, collective in nature, compensation or loans, lowing to loans, interest-free loans, to communities that have been victimized and so forth. And the reparation may be also symbolic namely monuments and acknowledgment and other measures like declaring a holiday, the commemoration of the massacre and so forth. So, all these measures have to do with the principle of preventing and repairing which is the purpose of dealing with the past, truth telling, memory building, preservation, and acknowledgment reparation. And finally, justice in the sense, not of material justice which will be reparations in a form of compensation, but criminal justice, making the guilty ones pay for their crimes. This is the most difficult aspects of the transition of process because when you haven't won an outright war against the forces which committed the atrocities, you have to--you have a force to be reckoned with. If you're going to be trying to attempt to do justice, they are going to put up a resistance and you have to figure out how to--how far to go and how to go about in the first place. First, the principles tell us that there are certain crimes regarding which there's no pardon, start on limitation or amnesty acceptable. These are the famous crimes fashion after World War II, crimes against humanity and war crimes. War crimes are the most grave--the gravest breaches of the laws of war. The laws of war are very detailed but they're less agree--breaches for instance, the laws of war tell you that a prisoner of war may write to his or her family every 2 months. If they don't allow a prisoner of war to write but every 4 months, it's a transgression of the law of war but you wouldn't call that a war crime. Evidently, it's not grave violation, but torturing prisoner and killing prisoners or forced deportation, these are grave violation or they are called war crimes. And crimes against humanity, finally defined in the 1998 Statute of Rome that created the International Criminal Court, and you need 3 elements to characterize a fact as a crime against humanity. One, there is a fact listed in the list of transgressions. They include murder, disappearance, torture, rape, forced deportation and so forth, ethnic cleansing. Second, that this fact is perpetrated as a part of a systematic or generalized attack against the civilian population, and third, that there is knowledge of that attack. I conclude that for someone to be guilty of a crime against humanity that is the gravest approach that you may have from a legal standpoint universally. Crime is already a felony, it's very serious, but crime against humanity, you need to be an active part, whether as an architect or the mastermind or an executor of a policy that has some intent of extermination against a particular group. That doesn't mean that--it means that not every human rights violation is a crime against humanity, but every crime against humanity of course is a human right violation. Now, crimes against humanity and war crimes can never been be forgiven. They should be brought to prosecution if possible. When I say if possible, it doesn't mean that you renounce to prosecution but you may not be in the position to prosecute them now or a year from now but maybe 5 years from now because somehow, they are resisting. Say Milosevic in Serbia, when he was in power, he was committing a lot of crimes against humanity, particularly systematic ethnic cleansing, killing people and mostly Sugubina and in other places. But he could not be brought to justice to the International Court of the Hague against for crimes against humanity in former Yugoslavia until he lost power and eventually was surrendered. That's what I mean if possible. When the guy is actively in power, someone has to catch him at the risk of blood and treasure.
^M00:50:00
There is now a standing order of detention against Bashir, the ruler of Sudan for crimes against humanity committed in Darfur, but then someone has to go and get him and they are--exposed yourself to the bullet that comes in the contrary side so that's why I'm saying if possible and when it is possible, in real life. Now other crimes, maybe forgiven if that is approved in a transparent way and if they contribute, the perpetrators to the truth-telling and they admit that distinction will happen again. It's not that you're asking for an open expression of repentance but a policy that forgives crime should never concern itself with crimes against humanity and war crimes. Even if you cannot do justice now maybe you can do justice tomorrow, in a few years time, but concerning other crimes is not illegitimate to provide for measures of clemency or leniency provided that there is a disposition of the perpetrators to admit to what they have done and contribute to truth. Now this is a very contentious issue in the human rights community. Some people don't admit to the distinction and putting forward and I should be very candid about that but they are not here to tell you their point of view. Is--what's the overall purpose of all these? For some countries, the overall purpose, expressly spelled out is national reconciliation. Actually in Chile, the Truth Commission was called the National Truth and Reconciliation Commission the same name received in South Africa, Truth and Reconciliation Commission, and in Peru. Now what is this idea of reconciliation as a kind of religious connotation to it? Unlike justice, truth-telling, acknowledgment or reparations is not a quantifiable measure. You may say, we produce to report a country for 3,000 people killed. We pass the law to make reparation for 10,000 people. 15 people are imprisoned whatever, but you cannot say it were 63 percent reconciled. It--it's not quantifiable, it's more like in Northern Star in an aim to go towards but what does it mean apart from the rhetoric of the idealistic aspiration? For some people and the--this is still being elaborated, it means something of political agreement. It's like a new social contract. We reemphasized the principles of, that every person has basic rights and they should be respected or we emphasize them for the first time. It isn't--means like putting together even in a religious sense, religious dash civic sense, an alliance that was broken. Like in the Old Testament, you have the alliance with God, it was broken and then somehow you put it together, a new covenant as they call it. For some other people, it means basically that those who in the past treated each other like enemies now treat each other like opponents but admitting to their entitlements. For instance in Chile, sitting side by side, there is a senator that orders the rest of the next seated senators. It's not that they're exactly exchanging family photograph in their breaks but they treat each other with acceptable respect for each other's right. In the times of acute human rights violation, they put forward a theory and the theory is that the enemy is less than human. If it's less than human, you're killing or torturing a humanoid rather than a human. And this idea, it was put forward by both sides, the military, these are extremists but the radical left-wing forces, these people are not the people. And there are no human rights or rights of the people. And there no particular [inaudible] rights--I mean rights, the rights, the rights of the people. And if you kill them, it means in Spanish is [foreign language] how would you say that? Like--pardon?
>> Bring them to justice.
>> Right, you brought them to justice. And if you steal their small business, it would be expropriation. So you have a whole language to somehow emphasize that some people don't have rights. And to commit wrongs against them is not crimes from both sides. So reconciliation would be admitting that the other is an opponent, not an enemy. And not subhuman and for other people from the psychological sciences, reconciliation means that a former victim can relate to the former aggressor from a position of security, of safety. Being what it may, it's an elusive concept stealing the--in the making, an approach from different angles and, but expressly formulated as a desire of a community, not to be divided between--a reconcile with enemies but somehow to be brought together in some kind of civilized way.
^M00:55:28
[ Pause ]
^M00:55:33
Means, the truth-telling is conducted mostly through truth commissions. There are about 30 national examples, as I said a few of them, successful. Regarding truth-telling, it's important, the composition, so that the members of the truth commissions are credible people. The mandate, what are they supposed to be doing? The methodology, how are they going to act publicly in a reserved way and then to make public their findings, what are going to be the investigative methods and so forth? The dissemination of the results and concerning truth commissions, as I said, there are nearly 40 examples and they are very varied. Some of them have been successful and I would name them to you, regarding the truth-telling, not regarding the overall transitional policies, only that aspect. The once considered serious are, for Latin America, Argentina, Chile, Peru, Salvador and Guatemala. From Africa, South Africa, second reports or processes like the East Timor one and even the report from Robben Island. But a few more are considered successful really, even from that aspect, from that standpoint. The memory building or preservation, the truths commissions have a role to create a memory but it's not the only means by building memory. There are sites, memorials, and museums. The precedent is of course, the memorial museums built to commemorate their holocaust. Oral history is very important and I will give you some examples here. This, the most effective memory buildings are not the ones that are rubbing up against your face, the extraordinary drama that cannot be really spelled out. But that gives a sense of absence of a mission, of disappearance, of void, like this empty gas chamber, or these shoes left by the victims of genocide. And even sometimes you have unusual methods to convey the message like mouse, this extraordinary successful comics of the holocaust. If you were an editor at a publishing house and someone came to you saying, "I have this idea of doing a comic on the holocaust," you would have thrown them out without major ado. But this was an incredibly successful white and black comics, probably if you know it, if you haven't known it, I encourage you to find a copy. Mouse, the Jews were mice, the Germans were cats and, you know, the Americans were dogs and so forth. But the whole thing is played in a manner that is very convincing and very respectful and very educative, I believe, educational. In Berlin, they--this plaza of the holocaust. To see the--to get an idea of the size, these are people, actual people. So it's a whole plaza of labyrinthic nature, going up and down and so forth. This is a painting by perhaps the most accomplished painter alive today, Anselm Kiefer from Germany. He has been accused of neo-fascism but he won several prices for humanism, contributions of humanism from Israel. Namely, he is looking at the history of Germany in the face with all his greatness and all his feelings and in these kinds of paintings, this is a field of battle and the memory is elicit by the mud raised by the tanks passing on. In some, it's a general feeling of absence of the past. The same, the same painter, this notion of the holocaust, the train to the concentration camp has gone already, right? This is an idea of not being over emphasizing but a sense of deprivation, absence, hopelessness.
^M01:00:07
The same painter and now Hitler's bunker after the bomb, the firefighters have done their work in putting out the fires. This is of course the Vietnam wall in a mall in Washington D.C. It was hotly contested when it was being built because it was felt there was two aspects to do honor to the memory of the dead. And as a compromise, they put three realistic figures, completely realistic, one White American, one Latino and one Black American. Then the women protested, and they put two nurses in the next but the visitors bypassed this and they go straight to the wall that has a sense of going down as you may see and then emerging from the depths then going up and all the names of 50,000 people are etched there. And people go there and do frottage, like they pass a pencil over the name or they put a little message with a flower and it has been extraordinarily successful as invocation of the memory of the fallen. Robben Island prison of course where Mandela spent 27 years in prison. This is a Peace Park that was built in Chile in the same place that was the headquarters of the torture center. So that was demolished and a Peace Park built with the name etched in flowers and trees, erected there. And this is also from my country, the recently built Museum of Memory to give you also a sense of the building, this is the size of a person. It's a huge museum, 4-storey high with the whole history of the repression and the efforts to fight it. So these are some examples of commemoration. The acknowledgments regarding the recent past, you have several examples of military people admitting to atrocities. In some other places, they seem to refuse to admit to anything. But concerning the distant past, there are many examples. Not only that of the church acknowledging the imprisonment of Galileo or the force of evangelization of people in America but also German firms acknowledging and making reparations for using slave force in World War II or the indigenous people from Australia, Canada, New Zealand or America claiming and finding some cases, forms of reparation. There's a book by Elazar Barkan called The Guilt of Nations that contains 10 case studies of long-term acknowledgment. Barkan, B-A-R-K-A-N. Reparations may consist as I say of execution, compensation or rehabilitation then maybe individual collective material or symbolic. And as I mentioned already, I'm just reiterating now, regarding injustice there's a legal imperative concerning crimes against humanity and war crimes and the possibility of pardon or clemency regarding lesser crimes if there's a contribution to the truth and acknowledgment. Reconciliation, questions mark. Now there are certain ventures between principles and restrictions. Distinctions mean that you may not achieve what is set out in the blueprint of principles in the short-term or immediately or sometimes in the medium term because there are political conditions that do not permit you to do so. Vis-a-vis, this kind of situation to just say go and do it, don't ask me how, you are at fault, I think is simplicity. If there maybe a will, an honest will to advance, but a real impossibility to move forward. For instance, if someone asked us during the Pinochet years, why don't you do justice against Pinochet? You say, "That's a bad joke. He's in power. He's killing people. How are you going to do just--" When this change occur, they act from the assumption [inaudible], 180 degrees, maybe a 120 degrees, a 160 degrees depending on the restrictions. So it's not as if now, as it's now, it's white and black. And now we're on the white side, where in the black side before or the other way around. So the restrictions are real and you have to try to reconcile the principles and the real-life situation. There are some ethical criteria, Max Weber's distinction between the ethics or responsibility versus the ethics of ultimate ends has come to the fore. He made the distinction in a famous lecture of 1918 and anticipating the obscure night of fascism in 1918, the revolutionary winter of Germany after the First World War. He was telling an audience of German students mind you, Paris 1680 is a picnic compared to Germans students in 1918, extremely earnest about everything. So he was telling them, if we pursue this path of asking for the impossible but you're going to find yourself in 10 years time, then many of you, they are the most flamboyant speakers, will have moved to the other side, will have withdrawn to a private life and so forth. He had the courage of telling that. The important thing is to keep an ethical blueprint in mind, but to act taking into account the real life considerations to maximize your possibilities, but not to jump in the other seat if you had flight some--flying without flight. That's--that criteria has come to [inaudible] the four new speeches by people as distance as a Vaclav Havel in a former, Czech group--Czechoslovakia or in Chile [inaudible]. They have evoked the distinction between ethics of responsibility and ethics of ultimate ends. I'm about to finish. The corollaries of this, the order and sequence of the public policy measures matters. Say, in Chile after the downfall of the military regime, they had passed an amnesty law for themselves, covering the period of worst crimes. So people demanded, we need to abrogate or repeal that law. But you didn't have the political votes to do that. And if you follow the ethics of convictions saying "I'm going to appear as doing the right thing, I ask for the repeal of this." And you get into an congressional struggle for 1 year, you waste your honeymoon political time and you end up with nothing. Instead of that, with the president dinner, it was very clever, was to establish a truth commission that created such a commotion in the country by the truth it revealed that that facilitated then the other measures or justice and reparations. So the order and sequencing of the measures matters, I always like to refer to the image of the ice-breaking ship in the Arctic or the Antarctic, sometimes you have a frozen ocean and an ice-breaking ship comes and with a steel prow crushes against the frozen ocean and somehow you make it break, it cracked and you navigate through the crack and you crush again, and you may grow for yourself step by step. So the important thing is to find the measures that open the way for further measures. That's easier said than done, but you got to learn from experience about that. At a minimum, not to condone, meaning by that, if you are a democratically-elected leader then have your hands half tight and you cannot do justice now, at least at the very least, don't condone the situation of impunity, conforminate. You may not be able to do something, but abstain from validating what is illegitimate. It's a price to Argentina where--because it didn't play the--his hand right, an honest president fell force than to condone measures of impunity. I think I will leave it here to allow for sufficient time for question and answer or comments. We have covered perhaps some more ground that is reasonable to cover in such a short period of time but it was an overview.
^M01:09:39
[ Pause ]
^M01:09:45
>> Well so, why don't you fill your own question, I think that--
>> Right, and the floor is open for any question or comments. Booing accepted [laughs]. Yes madam?
^M01:10:00
>> Yes, madam. I should warn you that I'm a bit hard of hearing and they ask me to repeat the question but first I have to listen to it properly.
>> Okay. I will be loud and I will be clear.
>> That's fair enough.
>> You've identified that there are certain Truth and Reconciliation Commissions in South America that have been successful and only one in Africa that's been successful, why--so why has South America has been more successful in this endeavor than the African States [inaudible]?
>> I wish I had--the question for the purpose of the record that they asked me is why it appear--would appear that the South American Truth and Commissions have been more numerous, the successful ones than the South Africa one? In South Africa, the examples are Ethiopia, Chad, Uganda and South Africa, the ones I know.
>> And Sierra Leone.
>> Sierra Leone is more, you know, apart from the Commission, there's a court in Sierra Leone, International Court handled by United Nations and part of the truce is coming or is suspected to come from the [inaudible] of the corp but you are right, Sierra Leone as well.
>> That's great. They did have TRC as well.
>> Right, right. Did they did have a TRC. And actually a person who is a member of the--was a member of the Truth and Commission in South Africa was a member also, Jasmine Suka of the Truth Commission in Sierra Leone and now is a member of the panel in Sri Lanka together with Professor Randall [phonetic] who was present here from your faculty. I don't know the reason really, I remember--I know personally the cases of Uganda that they asked me to advice them but the way they went about in Uganda was to establish a panel that felt that they had to go through quasi-judicial proceedings. So they have a full hearing, listening to a single case that went on for days. There was no way they could finish in a century with that kind of proceeding. Eventually they produced a report that was too late and too little. And by then, they hold contradiction within Uganda Society had re-ignited following the first initial relatively moderate period of Museveni had re-ignited. In the case of Chad and Ethiopia, you will say--what you call a window washing or whitewashing? Anyway, an attempt to--well, it pretense of Truth Commission, it was very--it was not really reliable. And the forces that support it respectively in Chad, Hissene Habre in Ethiopia, Mengistu is still where--to be [inaudible] that they wanted to pay for the things over. The South African Commission was more successful as a Truth Commission. I'm not talking about the old policies because in South Africa, there were some activist that pushed for a comparison of a transnational experiences so they call for two conferences in 1994, both of which I had the privilege to attend. One before the election, the election of Mandela as a president and went after the election to see what they could do and what they could learn from other countries. In Latin America, we had many famed experiences as well, Panama, Mexico, Paraguay and Brazil and Uruguay never went about a full Truth Commission but they were done good exercises but non governmental groups usually associated with the churches. But the example of the Southern Cone mainly Argentina that was the leading example was followed then by Chile and theses two examples somehow inspired United Unions that broken the examples of Salvador and Guatemala. It was United Nation that set up those commissions, really, that helped. And Peru came in the wake of that because of an enlightened interim government. But there was a mixture of circumstances. The fact is that these are generally considered more successful but I don't think that there is a single factor that can be spelled out. I had another hand. Yes sir.
>> I am from Liberia when one of the [inaudible] supervision happened to [inaudible]. I don't think you mentioned anything about the [inaudible]. My question, how can I meet you further for that discussion?
[Laughter]
Because the reason why that's important is I'm here to particularly look about the transition of Liberia from the [inaudible]--
>> I understand.
>> --through democracy.
>> I must confess my relative ignorance apart from being a general reader of the international news of the situation in Liberia but I certainly argue with this position.
>> Thank you. But that's an [inaudible].
>> Yes, yes.
[Laughter]
Yes, I have several hands there. Let me take this one and I move over there. Yes.
>> Thank you for coming to speak here. It's real privilege as [inaudible]. If you don't mind, I'd like to ask a little about your personal experience of returning in the extraordinary experience of having been exiled and coming back to your home country of Chile. As a part of--becoming a part of the Truth and Reconciliation Commission and suddenly now you are sitting in this room with all these people trying to decide in the face of this very damaged nation and populous, where do you start? And how--
>> Where do you start?
>> --did you come to some kind of place and knowing where to start?
>> Well first, I was--thank you for question. I will give some references. First I was a law instructor, very young law instructor at the Law School at the time of the coup d'etat in Chile. But soon I became a human rights lawyer although we didn't call each other human rights lawyer at that time. At one point on this international, two months after the coup was coming to the country and we said, [inaudible] who, we didn't have a clue it was on this international. But then we realized that they were very serious and after they return from their mission to Chile, they send us the draft. There was no e-mail at that time but they sent us the draft by means of a courier, personal courier of their report for us to check any mistakes. And there were some minor mistakes, law and such and such and so forth and we realized that there was a serious human rights community out there. And--well then they--we developed the more human rights language and so fort. But this church-protected institution, although we were not--I'm not a religious person, I was raised a Catholic but I'm agnostic. Anyway, they accepted everyone who wanted to work for human rights under that umbrella. Now where the church acted in Latin America, something happened where they [inaudible] nothing happened because the rest of the civil society or the institutions were destroyed. The Congress was closed, political parties outlawed, union disbanded, federation of students disbanded, et cetera. The only organization that stood up was the church because they had given even the coup in the name of Western Christian values, so they have this rhetoric and they had to respect the church although they consider some of them red priest and so forth but be gradually, they had to respect that. When the church didn't act at the level of the hierarchy like in Argentina, on Uruguay, you had nothing. What it did act, nothing but the courageous activity of individuals who are relatives of victims like Emilio Mignone or other people. In Brazil, you had the church acting in the main Archdiocese that were powerful, one of the largest Catholic Archdiocese of the world because they have like 20 million believers. And the Cardinal was active so that gave him protection. If you move to Central America, in El Salvador the Archbishop was established some protection. He was killed while he was in a mass, Archbishop Romero. In Guatemala the church was reluctant nothing happened, really, for some time, so this has a lot to do with that. And in Chile, we had because the church acted from the very beginning, some key people in the church, not everyone. We had a record--contemporary record of the repression and the killings from the time it occurred that was a very reliable record. Now when the Truth Commission came some of us that have been active in changed roles and the president established a commission of eight people, not seven. It's not cabalistic number seven or eight, but if you establish seven, they say, "Ah yeah, yeah. You have the majority, four out of three. If it's a free vote, you can win." By establishing eight, he put four people that had been supporters of the military regime, not of the human rights violation. But that failed that in the divisive situation of the country, it was justified to have a true agenda not to kill people and so fort. Of course, we disagree [inaudible] on those issues but we agreed to concentrate on killing, some torture. And the eight people came to unanimous conclusion that gave a lot of credibility to the report because people could identify with these four as [inaudible] big shot from the right wing and so on. So if all these eight people say something, it must be some situate that gave a lot of credibility. And how it was, first we gather all the information from the church activity during the 17 years of military rule that men hiring or buying 20 photocopy equipment and having people work around the clock photocopying the files and then incrementing that with all the new denunciations. Among the new denunciations there were like a thousand completely grounded denunciation because victims don't lie, but a lot of people lie to become victims.
^M01:20:05
It's reality. So many of this people wherein bona fide were acting like they said, "my husband died because of the Junta. When did he die? In 1980. When he was detained? 1973? How long he was in prison? One week. But he never recovered. His heart was weak, what--do you understand, you consoled but you can not consider that a case of human right violation, you know. Anyway we had about the thousand cases that were groundless but 3, 300 case that were solid. And we had to consider everyone with the evidence, because the government was now a constitutional government and they give the order, the executive order for every branch of the government to collaborate with us. We got all the Cornell's reports, all the international police report about travel, the ID report, the driver license report and do you have someone that--do you have a witness that the person was taken away? He was a family, head of family, than there's than--
[Laughter]
>> I must say, you keep [inaudible] for a long time.
>> I'm carried away, I'm carried away.
>> [Inaudible] and thank you, guys.
^M01:21:16
[ Applause ]
^M01:21:21
[Inaudible Remark]
>> It's fine.
[ Applause ]