Towards the reinterpretation of the classical theory of Transitional Justice in Latin America

Transitional Justice in Latin America: contexts and developments

According to Ruti Teitel (2002), transitional justice is understood as the process of creating responses in a given context of political repression and/or massive human rights violations, in order to achieve political change. It is a process in which the key is to address and discuss the trauma caused by the wrongdoings and understand the impact of repression on everyday life in order to create a bridge between the past and a plausible way forward for the present and future. Hence, the aims are not only at breaking with the past so to establish the rule of law, but also at moving towards a prosperous future of reconciliation and prevention of new human rights violations (UNSC, 2004).

By the end of the 20th century, transitional justice appeared in Latin America as an attempt to overcome the generalized situation of violation of human rights caused by the civil wars and repressive regimes. The root causes of such unlawful scenarios can be traced back to the Cuban Revolution, which had a pivotal influence in flaming the US foreign policy towards indirect control of Latin American countries, orchestrated by sponsoring the oligarchic regimes in Central America and the military governments in South America, all as part of a package of ideological alliance.

In all contexts the background of the Cold War and the Western fight against communism were prominent factors that led to the spread of a culture of violence. In the Southern Cone, the military juntas rising in power had the common goal of saving their respective countries from the subversion to communist values and reaffirming their commitment to the Western ideology, while the United States’ strategy would be of sponsoring counter-insurgency practices and offering specialized training to Latin military personnel at US-based educational centers to improve such techniques (US Department of State, 1958).

However, the result of these common efforts has proven to be the implementation of a system of repression and politics of terror managed by the armies and partially sponsored by the United States: only by the end of the century that the first pieces of evidence about a formal alliance of all military dictatorial regimes of the Southern Cone (Argentina, Bolivia, Brazil, Chile, Paraguay and Uruguay) for joint coordinated terror acts against subversion – known as Operation Condor – started to be unveiled (Lessa, 2021).

In Central America, the rise of guerrillas was not only stimulated by abstract Marxist ideals, but mostly fuelled by the concrete need of overthrowing the oligarchic regimes and rearranging the distribution of land and wealth. Although the leftist spirit had some connotation on the posture of the guerrilleros, Weeks (1986) warns that, contrary to the “saviors versus subversives” dichotomy found in South America, the Central American core aspect of dispute was more distant to mere ideology and much more related to the fight against the historically established despotic oligarchic regime. In this sense, contrary to the contexts of South America, many countries in Central America were marked by armed conflicts that eventually had escalated to civil wars during the second half of the XX century, for example in Guatemala, El Salvador and Nicaragua. 

The methods of political violence found in both Latin sub-regions – kidnappings, forced disappearance, torture, arbitrary detention – have installed the patterns of gross violation of human rights that eventually led to the need of transitional justice as the only possible tool to re-establish a well-functioning and human rights oriented democratic order in all countries analysed. 

Despite the special characteristics that led to the fall of the dictatorships and the end of the civil wars, it was not until the eradication of the communist threat that a transition to peace could be developed. Some countries had the ability to push for trials right in the first years of transition (ex.: Argentina) or later on with help of the Inter-American Court of Human Rights (ex.: Guatemala). Important legislative changes were adopted somehow by all countries, some with deeper consequences, such as the draft of a new Constitution (ex.: Brazil and Paraguay), and some with the implementation of a peace-agreement (ex.: El Salvador and Guatemala). In this light, all of the countries have managed to provide, to some extent and each one considering its own past, the institutional changes necessary to establish a new era for democratization and respect of human rights. Transitional justice, hence, has proven to be the accurate tool to re-organize a chaotic unlawful state of things so as to build the conditions for a prosperous future.

The (in)success of Transitional Justice in Latin America

According to Zinaida Miller (2008), one huge pitfall of the transitional justice paradigm is the lack of address to economic factors that generated the conflicts and violations of human rights in the first place, as well as little or no reference to it as part of the transitional process to democracy. Such omission is not related to a lack of ratification of international economic pacts nor the absence of new constitutional laws dealing with this aspect, but instead of a straight-to-the-point measure of financial reorganization of the country so as to eradicate poverty and social vulnerability.

This thematic is relevant because it constitutes a major blank space on transitional justice theory. As Rama Mani states (2008, p. 259), “we cannot divorce criminal violence from social injustice, from the rising inequality, discrimination and economic stagnation that breed despair on one side and stoke intolerance on the other”. That is to say, if the Latin American countries today are still suffering with high statistics of criminality, corruption and social vulnerability, this has much to do with the insufficient economically-wise transformative aspect of transitional justice, as populations will still resort to criminality and violence to escape the economic instability and poverty inherited by the previous regimes.

According to Professor Terry Lynn Karl (1995), the Latin American countries can be defined as “democraduras” (in English, the beginning of the word “democracy” mixed with the final syllable of “dictatorship”), since the post-transitional justice societies are still lacking equilibrium between the forces of the new democratic institutions and the elites from the past, and such tension is a major stalemate for the achievement of a tolerable power bargain at the political level. This situation is the crack in the post-transitional justice prospect that allowed the spread of corruption.

In this path, it seems that the classical theory of transitional justice has found itself into a dead end, which was already predicted by Huntington’s theory of the third wave of democratization. According to his findings (1991), four relevant reasons can explain why transitional justice would not thrive after democratization: the weakness of the new-born democratic ideals within the emerging elites; economic stagnation; political polarization promoted by leftist populist governments legitimized by the life-savior discourse, as approached in the previous chapter; as well as the rise of middle-class groups willing to counter such political expressions. 

Indeed, all of these four elements have triumphed in the Latin American selected scenarios, and therefore following Huntington’s predictions. Since the post-transitional governments did not consider the economic prospects for the new democratic society, the consequent economic crisis have pushed the Latin people to a crossroad: either to rely on the illusion of any sort of financial stability provided by adhering to criminal enterprises and gangs, whose assets prove to be much more immediate than the ordinary path of education and insertion in the licit labor market; or to rely on populist governments to provide for all their needs, despite the corruption and elite bargains long operated within them. While it is only rational that such a choice is being made on a daily basis by civilians, political polarization has achieved its highest peaks in Latin America, which can be illustrated by, for example, the last electoral disputes held in Argentina (2023), Brazil (2022) and El Salvador (2019).

Figure 1. The dead end of Transitional Justice

In countries which the immediate response to the economic crisis in the early post-authoritarian years was the rise of populist governments (e.g. Argentina, Paraguay, Brazil around 1990s and 2000s), the intermediate step of the growth of elites and corruption would create the illusion of violence being in the second plan, not a matter of strict preoccupation right after democratization. That is one precise factor that enabled the development and spread of criminal enterprises, as they were growing in the shadows of the corruption scandals that overtime had driven the population’s eyes off this concern. Different scenario is seen in the Northern Triangle, where the oppressive permanence of the gangs has always been prominent, and therefore rapidly leading the countries to a panorama of violence.

Even if considering the biggest institutional efforts of the countries to detain the spread of corruption and criminality, the gross reality of violence remains untouchable. That is why it is safe to say that the type of transitional justice that was operated in all six countries analyzed was not able to flourish in the long term, as it got caught in a maze that throughout time has led democratization to the fatal end of an alarming escalation of corruption and violence.

Rethinking Transitional Justice in Latin America

Considering the theoretical framework developed so far, it is safe to say that the most important venues of a reinterpreted version of transitional justice gravitate around tackling socio-economic justice. Since the traditional application of the theory did not consider this area of concern, the entire results were doomed to failure, as demonstrated with figure 1. In this sense, according to the argumentation constructed so far, a reinterpreted theory of Transitional Justice could be sketched as such:

Figure 2. Comparative diagram between the classic and the reinterpreted views of Transitional Justice

The strategy suggested is of elasticizing the classical target to include a holistic approach and also developing specific mechanisms that could tackle anticorruption and socioeconomic measures. By enlarging the main target of transitional justice to include a holistic approach, the theory would be able to tackle the roots of the conflict and therefore provide perhaps a more comprehensive set of results, one that would cover the socio-economic vulnerabilities that, as seen, are the main driving factor towards criminality. In addition, by reinterpreting the pre-existing mechanisms of truth commissions and reparations, as well as designing one specific to tackle economic issues and another specialized in anticorruption, transitional justice would gain strength to deliver more prosperous results. 

It is logical that, just like its original approach, the new interpretation could also drive the post-transitional community to hazardous scenarios, more prominently political polarization that could threaten the restoration of political violence. Nevertheless, one should not forget that the basic element of the theory is of action during a transition; meaning, it should be accompanied by other theories and action plans to ensure the duration of its achievements. That is why it is important to quote Kora Andrieu: “one should not give transitional justice quasi-magical powers to ‘transform’ or ‘regenerate’ societies” (2012, p. 553).

In this sense, this new sketch seems to be more comprehensive on the roots that have caused the political violence in the first place, as well as the legacies that would inevitably lead to the overshadow of the new institutions and the democratic rule by corruption and criminality. This reinterpretation would facilitate a broader brainstorm on the question of transition with both political and socioeconomic lenses, in an attempt to promote the structural changes needed at the bottom-up level to properly fill the post-transitional country with the human rights discourse. 

Conclusion

The six case studies studied in the research have proved that transitional justice alone was not enough to ensure the health of the democratic institutions and values, and the abovementioned patterns of limitations are the reason why. The unaddressed question of economy in the broader sense, which in the narrow sense means the lack of attention to social injustice and on the prospects of practical healing of the survivors of the previous regime are the limitations that in all six scenarios have driven transitional justice to a dead end. These were the cracks in the post-transition context that enabled criminality and corruption to grow and flourish. Transitional justice is indeed flawed and doomed to failure in the long term, and that is why the reinterpretation of such classical theory emerges in this context as a possible alternative.

Through these lenses, transitional justice should be reinterpreted because its classical approach is insufficient to promote the effective reconciliation, the idea of non-repetition and the prevalence of human rights. Even if from the standpoint of the peace as a mere cessation of hostilities, or from the standpoint of the “dirty stability” emerging from transitional justice, the conclusion is that, indeed, Latin America is stuck in a gray zone of weakness of institutions and poor prospects for the future. That is why, if considering the pessimist prospects of the Latin countries in terms of criminality and corruption, perhaps the idea of reinterpretation of transitional justice should be debated vigorously and warmly at the academic level in order to raise awareness of such possibility, since the future need of another round of transitional justice in those countries is yet to be seen.