Professor Méndez participated this month in the International Conference Truth, Trials and Memory. An Accounting of Transitional Justice in El Salvador and Guatemala at the University of Minnesota. After his panel on “Truth-seeking Lessons from the Guatemala Experience”, he shared more insights with Michael Soto (UMN Graduate Student, Sociology). Below, is the first part of their exchange on peace processes. You can read the second part on truth-telling here.
Juan E. Méndez, a native of Argentina, is a Professor of Human Rights Law in Residence at the American University – Washington College of Law, where he is Faculty Director of the Anti-Torture Initiative. In February 2017, he was named a member of the Selection Committee to appoint magistrates of the Special Jurisdiction for Peace and members of the Truth Commission set up as part of the Colombian Peace Accords. He has previously held positions as UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, an advisor on crime prevention to the Prosecutor, International Criminal Court, Co-Chair of the Human Rights Institute of the International Bar Association, President of the International Center for Transitional Justice, and the Special Advisor to UN Secretary General Kofi Annan on the Prevention of Genocide.
How have the peace processes in El Salvador and Guatemala informed subsequent ones?
In Latin America they were the first ones where the objectives of justice were part of the peace process and conflict resolution, so they incorporated some of the experiences that had happened a few years before, especially in the Southern cone. But they also included specific limitations that were not present in those other situations.
One thing that was very significant and positive about them was that the international community had a big stake in them. Because the United Nations was called upon to broker both peace agreements, at a time when victim’s groups were claiming a space for justice. So it was the brokerage by the United Nations that made it possible for the peace agreement, first in El Salvador and then in Guatemala, to incorporate truth telling, and also to close off the possibilities of blanket amnesties.
Unfortunately, it still happened in El Salvador but it didn’t happen in Guatemala only a few years later. Among other things because of the bad example of El Salvador with a blanket amnesty, which was unilateral by the government and after the report, of the Truth Commission was seen as more impunity. And therefore when the negotiations began in earnest in Guatemala that was avoided. The Amnesty law in Guatemala excluded certain crimes. Unfortunately this didn’t mean they were prosecuted as should have happened. But it is happening now. I consider myself a follower of these things, and I was surprised to hear here at the conference that there are around ten cases in Guatemala where there have been convictions and about 30 people convicted and facing prison sentences. I think that is remarkable. These things happen because Guatemalans want them to happen and the rest of the world should know more about.
Unfortunately, the whole debate around transitional justice when the international community is involved, now revolves around questions of peacemaking. And in peacemaking there is always a tendency to give away justice. And the early, good examples of El Salvador and Guatemala have not quite been incorporated by the international community. So you see peace negotiations going on in Afghanistan, in Northern Uganda, in Sri Lanka. The international community does not insist on justice. It is not pushing very hard even though we have instruments like the International Criminal Court (ICC).
So, I think going back to understand exactly what is going on in places like El Salvador and Guatemala could have a very good effect.
In your panel presentation you said, “Reconciliation has to imply transformation.” Could you elaborate on this point for us?
I was picking up on something that had been said before my panel, I believe by Doug Cassel. I belatedly linked it to the word “reconciliation.” I don’t use the word much but in some of the theories of transitional justice, reconciliation occupies a place. For example, Zalaquett says that the objective of the whole endeavor has to be reconciliation. And I don’t disagree with that but sometimes reconciliation has been used for the wrong purposes. For example, as excuses for impunity, as excuses for the state not doing these things that need to be done.
And so what I was saying is, if the objective is reconciliation then we have to understand reconciliation not just as oblivion, not just as letting bygones be bygones. But reconciliation means that the root causes of the tragedies of human rights violations are also understood, assessed and transformed. So that we can look forward to a society that doesn’t have discrimination, exclusion, class distinction, income distribution distinctions that are so harsh that in the past they gave rise to violence. And then violence itself bred human rights violations.
If we really think about reconciliation, we are not thinking of reconciliation between the torturer and the victim of torture. We are thinking of reconciliation among factions that used to fight each other violently and now they maintain their differences but they dispute them in the political process, in a democratic way. But it also means that we have to have in mind a society that doesn’t have the root causes that gave rise to the problems but that actually that those root causes are addressed.
Can you highlight a couple cases that illustrate this direction?
No, I don’t think there is any case in which all the different objectives of transitional justice have been achieved. And much less the one on reconciliation. And also in those cases where some significant progress has been made in one or two of these, there is also the risk of setbacks, back tracking, etc.
My conclusion is that such transformation is a labor for societies and generations that is achieved over time, and achieved with victories and defeats. The very process itself is a partial victory.
Again, we can point to Argentina and Chile having more prosecutions and convictions than any other country, and they are still going on. But even in those cases there have been limitations on truth telling. Particularly in Argentina, the debate about the number of the disappeared is a fruitless debate but it also highlights how these problems can backtrack. Things that we thought we had all agreed upon, or that a huge percentage of the population had agreed upon, are relegated over and over again.
Nevertheless even in a country like Argentina, the fact that the society reacts to attempts to cut off the process, including judicial decisions that limit punishment, the reaction is very swift, and majoritarian in its condemnation, or when they react to a single disappearance, in massive ways as well, I think those are signs of progress. I wouldn’t say final victories, but signs of progress.
You also mentioned the importance of memory in these processes. Part of what you have discussed relates to the building of narratives or competing narratives of what took place. Could you please elaborate on the role of memory?
I think memory becomes important the longer that the process takes. Although we call it transitional justice, sometimes this is a misnomer. First, the obligations of the state apply regardless of whether there is transition or not, it doesn’t really matter. A state has to investigate and prosecute torture, disappearances, and murder by its agents. The longer the time elapses between when the possibilities for prosecution arise and when the crimes took place, the more important it is to preserve memory. It is not only preserving evidence, and preserving the rights of people, but also making sure that future generations of the country do not give up on the fight for justice.
In fact, nowadays in many of these countries where the process of justice continues, they continue because new generations have picked up the fight. And they do so because they understand what really happened, and for them it is also intolerable that those things should go unpunished. Obviously, the direct victims are either now dead, or too old to carry the fight, but if you don’t transmit the legacy to further generations the process is interrupted at some point.
It is important to create the conditions for memory to be achieved and stored, and then to be used when the opportunity and conditions are ripe for it.