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Elin Skaar, Jemima García-Godos, Cath Collins (editors). Transitional Justice in Latin America – the Uneven Road from Impunity towards Accountability (London: Routledge, 2016), pp 344.

Reviewed by: Mariana S. Mendes (European University Institute)

This edited volume constitutes the most comprehensive attempt to cover transitional justice (TJ) practices in Latin America to date. Although plenty has been written on some of the countries covered, this volume provides an up to date story on the most recent developments in the region. Transitional justice, understood as the various means through which a society can address and deal with a period of human rights abuses, has been designated as such given the initial scholarly focus on transition periods, either from authoritarianism to democracy or from conflict to peace. TJ has, however, proven to be a long-lasting process. Pragmatic and accommodative strategies during transition periods can, over time, give way to the gradual development of accountability mechanisms for gross human rights abuses committed in the past. Recent criminal accountability procedures against former heads of states – such as Alberto Fujimori in Peru or Ríos Montt in Guatemala – were the most extraordinary manifestations of this.

UN Human Rights Chief Speaks on “Transitional Justice”. photo credit: UN Photo/Eskinder Debebe.

As Latin America has been a frontrunner in the implementation of TJ measures, the authors chose to focus on its rich regional experiences. Starting from the empirical observation that there has been an apparent move from impunity towards accountability over time, they ask why and how is this phenomenon occurring and what explains cross-country variation. Accountability is broadly defined as “an explicit acknowledgment by the state that grave human rights violations have taken place and that the state was involved in or responsible for them” (p. 4). TJ measures are therefore understood as means of accountability. They include trials, legal challenges to amnesty laws, truth-telling initiatives, and reparation programs. The more and the better TJ measures are, the closer a country is considered to be to the end of the ‘impunity-accountability spectrum’. Each of the thirteen authors – covering nine different country chapters – is then given the task of making a historical analysis of their respective country’s TJ trajectory, focusing not only on the implementation of TJ measures but also on their quality. This is where I think this volume makes the most valuable contribution. Rather than simply recording the presence or absence of TJ measures, the authors seek a more fine-grained qualitative evaluation of the justice, truth, and reparative dimensions.

Apart from the nine country-specific chapters – covering Argentina, Uruguay, Brazil, Chile, Paraguay, El Salvador, Guatemala, Peru, and Colombia –, the book is tied by an introductory analytical framework and a concluding section where the leading authors attempt to extract general findings. As in most edited volumes, however, the balance between in-depth country analysis and comparative lessons tilts heavily towards the former. In other words, the ambitious theoretical goals set up in the analytical chapter get lost along the rich ‘thick’ narratives of individual cases. Despite the effort to make cases comparable by wrapping up each country story with graphical representations of accountability trajectories, it is unfortunate that these are not computed in any systematic way. Instead, accountability scores are a reflection of each author’s subjective judgment on ‘general guiding questions’.

Nevertheless, the leading authors arrive at interesting conclusions. As far as descriptive findings are concerned, they confirm that accountability levels have indeed increased for all countries when comparing the initial transition period (first five years after the transition to democracy/ peace) with the post-transition period[1]. They also observe that, whilst there was a greater diversity of TJ choices during transition periods, there is more convergence in the post-transition periods in terms of the type of TJ measures implemented. By now, all of the nine countries surveyed have implemented reparations and truth commissions and most countries have initiated trials (with the exception of Brazil and El Salvador). This suggests that initial amnesty laws do not necessarily represent a definitive obstacle to the development of processes of criminal accountability at the later stages, as states can either repeal those laws or find legal strategies to bypass them.

Memorial commemorating the violation of human rights in Chile during the Pinochet regime. photo credit: Wikimedia Commons.

However, as the authors highlight, the presence of TJ measures says little to nothing about their depth and quality. There is still substantial cross-country variation once one zooms in on the specific features and examines the scope of such measures. Despite the apparent flaws in how accountability scores are estimated, the ranking of the nine countries in an ‘accountability spectrum’ seems to be quite in line with the country’s narratives. On a scale from 0 to 10, Argentina and Chile appear as the ones with high accountability scores (9.0 and 8.0, respectively); Uruguay, Peru and Colombia are given medium accountability scores (6.0 for the first two, 5.5 for Colombia); whereas, Guatemala (4.0), Paraguay (4.0), Brazil (3.5) and El Salvador (3) are at the bottom. Out of the three TJ dimensions, the justice component – trials and the capacity to overcome amnesty laws – is the one where countries tend to underperform. This is hardly surprising given that criminal accountability procedures are necessarily the most complex, controversial, and long-lasting TJ dimension. It is in this area, however, where most changes occurred in recent times. The authors trace this evolution back to the ‘Pinochet effect’ as Augusto Pinochet’s arrest in 1998 is said to have had repercussions beyond Chile. More favorable domestic conditions – namely in terms of changes in the constellation of power relations and consolidation of democracy and the rule of law – is the other inevitable (and perhaps more important) part of the story.

As for the potential reasons behind cross-country variation – the more tentative part of the cross-country comparison –, the authors choose to dismiss some possible explanatory factors while emphasizing others. They quickly rule out the type of political violence (authoritarian repression vs. internal armed conflict) along with the intensity and magnitude of violence as potentially important variables. The authors argue that the abovementioned ‘accountability rank’ presents a mix that does not allow them to extract any conclusions about cross-country variation since post-authoritarian countries are both at the top (Argentina, Chile) and at the bottom (Brazil, Paraguay), while cases with high levels of violence (Peru, El Salvador) also have different accountability scores. I am, however, of the opinion that these factors are dismissed all too swiftly based on the fallacious causal assumption that ‘if individual variables cannot explain everything, they cannot explain anything’. The authors overlook complex patters of causation, including conjectural causation[2] and causal asymmetry[3].

In fact, if one analyzes the type of violence and levels of violence together (conjunctural causation), it is probably no coincidence that authoritarian regimes with the highest levels of violence (Argentina and Chile) rank at the very top, while authoritarian regimes with the lowest levels of violence rank at the bottom (Paraguay and Brazil). Low levels of violence during authoritarian experiences – combined with continuous violent practices in post-transition periods – have made TJ measures a very low salience issue in Paraguay and Brazil. Without sufficient external pressure, institutions in Brazil and Paraguay have been slow to respond. The opposite is true for Argentina and Chile, where the high number of ‘disappeared people’ made this issue a salient one from the start, both at the societal and political level. The same cannot be said about civil war settings, where the generally high levels of violence will always have the potential for producing salience increasing effects. However, the implementation of TJ measures in these settings is more challenging than in post-authoritarian ones given the differences in the scale and direction of violence and the more complex process of identification of perpetrators and victims. This is certainly part of the reasons why no civil war setting has high levels of accountability.

The mothers and grandmothers of the Plaza de Mayo. photo credit: Wikimedia Commons: Archivo Hasenberg-Quaretti.

The same mistake is made when economic explanations are dismissed based on one outlier (Brazil, an economic giant with low TJ scores), downplaying the fact that, in general, poorer countries have less complete TJ experiences (El Salvador, Paraguay, Guatemala), while the richer ones are on top of the ranking (Argentina, Chile, Uruguay). While economic conditions are obviously not a sufficient factor to explain levels of accountability, they might nonetheless be important in fostering consolidated political and legal systems, which are in turn significant in shaping accountability trajectories. Instead, the authors choose to focus on proximate/immediate factors, emphasizing the importance of ‘political will’, that is, the government’s moral and political commitment to human rights principles; the pressures from perpetrators and their supporters, on the one hand, and pro-accountability groups, on the other hand; and the role of judicial actors in an independent/consolidated judicial system. They rightly notice that countries with well-established legal bureaucracies (Argentina, Chile, Uruguay) or a strong legalistic culture (Colombia) have been more active in the judicial domain than countries with weak or captured court systems (El Salvador, Guatemala, Paraguay).

All in all, this volume is of great value for those interested in getting acquainted with transitional justice trajectories in Latin America. It is also a good starting point for the comparative analysis of the implementation of TJ measures and the reasons behind it, although contributions have the potential for being further strengthened in this regard.

[1] With the obvious exception of Colombia, which had no post-transition period yet.

[2] An individual variable cannot explain an outcome alone, however in combination with other variables it can.

[3] A variable may be relevant for explaining the outcome in one case but irrelevant in explaining the absence of an outcome in a different case