Past and future. New Ways of Dealing with Past Conflicts and Past Autocracies Versus Traditional Criminal Prosecution

Past and future. New Ways of Dealing with Past Conflicts and Past Autocracies Versus Traditional Criminal Prosecution

Elisabeth Käsemann Foundation, Law Faculty of the University of Buenos Aires
Buenos Aires
Vom - Bis
30.09.2019 - 02.10.2019
Dorothee Weitbrecht, Elisabeth Käsemann Foundation

Within the frame of the 3rd Symposium of the Elisabeth Käsemann Foundation experts from Germany, Argentina and Colombia reported and discussed in a critical analysis and comparative perspective, forms and ways of coming to terms with crimes against humanity in their countries.

MARIANO BORINSKY (Buenos Aires), federal judge at the "Cámara Federal de Casación Penal" and president of the "Comisión para la reforma del Código Penal" stated that in the new Criminal Law crimes enshrined in international jurisprudence, such as genocide and enforced disappearances, would be taken into account. The reform aims to transform the previous repressive jurisprudence into a positive right accepted by society as a whole. He pointed out that not only international legal principles were included. Rather, representatives of politics, state institutions and civil society in Argentina had also been asked for statements in order to ensure that the new penal code would present Argentine society in a "federal and pluralistic" way.

Using as example the application of the 1968 UN Convention, which provides for the non-applicability of statutory limitations to war crimes and crimes against humanity, NATALIA LUTERSTEIN (Buenos Aires), lawyer at the Office of the Federal Public Defender, analyzed the prosecution of crimes, which are codified by the United Nations, by national Argentine courts. A prerequisite for the application of international law on Argentine jurisprudence was that the offences committed during the Argentine dictatorship (1976-1983) were defined as crimes against humanity. Another relevant factor for the application was the extradition requests of European countries in the case of Nazi criminals in the 1990s. In the 2000s, the national Supreme Court finally applied international law. The Argentine example would show that the consistent application of national and international law leads to a mutual strengthening of both legal systems.

CORNELIUS NESTLER (Cologne), counsel for holocaust survivors in cases of National Socialist crimes overviewed the development regarding the legal evaluation of lower-ranking perpetrators, who participated in the Holocaust. Until the mid-1960s, it was considered that Holocaust perpetrators belonged to a "natural unity of action" and were convicted for being part of it. Subsequently this jurisdiction was no longer applied. Since that time, the individual act of murder had to be proven. As consequence, practically from the 1970s, no lower-ranking SS members were prosecuted. In addition, criminal responsibility was judged according to position and function. For decades, defendants were also able to evade prosecution by invoking "obedience to superior orders". A resumption of jurisdiction before 1965 would have taken place with the proceedings against Oscar Gröning in 2014.

JENS ROMMEL (Ludwigsburg), head of the "Central Office for the Investigation of National Socialist Crimes" described the different factors aggravating the criminal prosecution of National Socialist crimes. Among them the lack of a legal basis, the wall of silence among the perpetrators, the challenge to identify direct perpetrators and the limited access to crime scenes on the territory of the former Soviet Union during the Cold War. He pointed out the importance of the “Central Office” as an independent investigative authority exclusively responsible for NS crimes.

DANIEL RAFECAS (Buenos Aires), federal judge, concluded that the legal concept of genocide as defined by the United Nations cannot be applied to the crimes of the Argentine dictatorship. Following the definition of the UN victims of a genocide need to belong to a national, ethnic, racial nor a religious group, which was not the case in the crimes committed by the Argentine military. The first goal of the military dictatorship was the annihilation of the political opposition, a group of victims whose composition was ultimately heterogeneous and volatile.

VALERIA THUS (Buenos Aires), coordinator of the program “Memoria y Justicia” assessed the significance of the Argentine human rights organizations regarding legal processing. Argentine Human Rights organizations would reject the models of transitional justice, fearing that demands of reconciliation would lead to the occurrences being forgotten. They would think that traditional prosecution and the active role of the state are necessary in coming to terms with the past in Argentina, in order to strengthen democratic structures. Also, the judicial logic in demanding to prove and hence the construction of the evidence was an important contribution to the truth commission from 1985. The example of Argentina would show that truth commission and traditional criminal prosecution do not have to be dichotomous.

JÖRG EISELE (Tübingen) focused on whether leniency programs are suitable for dealing with serious human rights violations committed by authoritarian regimes and civil wars. The legislator provided leniency programs to uncover conspiratorial backgrounds of crimes. Therefore, leniency programs are not only an appropriate means in the case of terrorism and organized crime, but also in the case of state-organized crimes. Both show a comparable hierarchical structure with corps spirit, which had to be broken up by the investigating authorities. Also, a testimony not only aims to identify the perpetrator, but also to establish factual justice. A reduction in punishment in exchange for information could make an important contribution to uncovering crimes. The standardization of a leniency program for coping with state crimes should therefore be viewed positively in principle.

In her contribution, NATALIA BARBERO (Buenos Aires) focused on the victims' perspective on amnesties. After the Argentine dictatorship ended, courts initially convicted the main perpetrators, but shortly afterwards perpetrators benefited from amnesty laws. The Argentine society, however, rejected the "laws of impunity". Barbero asked critically whether the absence of punishment did not restrict the rights of victims. According to the Inter-American Court of Human Rights, amnesty, statutory limitations and other exemptions from arrest for serious human rights violations are inadmissible. In the case of Argentina, no leniency was granted after the resumption of proceedings that followed the annulment of the amnesty laws.

BERND HEINRICH (Tübingen) pointed out that, leniency programs had no tradition in Germany. The application of leniency program had been discussed regarding the terrorism of the "Red Army Faction" in Germany in the 1970s. But the regulation only found its way into legal practice within the Narcotics Law, which came into force in 1982. In 1989, the Bundestag adopted a leniency program in the frame of the so-called "Article Act".

In Colombia in contrary leniencies have a 40-year tradition in order to face organized crime and politically motivated acts of violence as FABIÁN MARTÍNEZ (Bogotá) explained. Today leniency programs would be widely used as a general legal remedy to shorten or suspend proceedings, to avoid the risk of overburdening the courts. Martínez sees a deficit in the Colombian practice with the leniency program in the lack of a coherent concept regarding its application in the ordinary criminal jurisdiction of Colombia.

ALEJANDRO RAMELLI ARTEAGA (Bogotá), federal judge at the "Jurisdicción Especial para la Paz" reported on his work at the Special Court. Colombia has created an innovative form of transitional justice, consisting of judicial and extrajudicial instruments. Within the framework of an "Integrated System of Truth, Justice, Reparation and Non-Repetition", measures for regeneration and conditional amnesties would be issued. The latter shall be only applied if there was comprehensive truth about the crimes committed, a request for forgiveness and reparation to the victim.

SANTIAGO ALEJANDRO CANTON (Buenos Aires), Secretary of Human Rights for the province of Buenos Aires stated that Argentina is the only country in the world to have used various forms of transitional justice since the early 1980s. Moreover, at the time of the amnesty laws, Argentine plaintiffs and organizations had taken on a pioneering role in the strategy of trying to initiate a prosecution of Argentine perpetrators from abroad. The "right to truth", would be also a demand which originates from civil society organizations in Argentina. Canton concluded that based on the Argentine experience there was no other practicable way to the current constitutional prosecution in Argentina.

With three African countries HARTMUT HAMANN (Berlin) illustrated the extent to which truth commissions differ in terms of their track record. South Africa's Truth Commission, which was based on the Truth Commission set up in Argentina in 1985 is regarded as a success. It is resulting from the acceptance and participation of society and a functioning legal framework based on a new constitution and transparency regarding all results. In Burundi, the Commission didn’t succeed as the political will was lacking and the judiciary in the country was too weak. Moreover, the African Union did not signal further interest in prosecuting human rights violations. Gambia, on the other hand, is currently showing a positive development. Factors for successful truth commissions would be the participation of civil society, the existence of strong domestic actors and a high degree of transparency.

FRIEDERIKE MIETH (Berlin) advocated a combination of truth commission and traditional criminal justice. But it would depend on the goals that a society strives for after conflicts. It had been shown that the circumstances under which crimes against humanity were committed had a great influence on the impact of the chosen instrument. It should also be considered that measures experience a change in meaning and a society evaluates the once positive effect oppositely in the course of time.

GABRIEL PÉREZ BARBERÁ (Buenos Aires) approached the question under which circumstances factual truth and justice could be established after authoritarian rule. He compared the methods used in truth commissions and criminal proceedings. Both have as their central concern to determine the truth as historical events. Some with the aim of reconciling society, others in order to be able to impose a justified punishment. The essential difference is that in criminal proceedings, evidence must be produced from different sources and statements of different groups and actors involved in the processes are examined according to strict regulations.

ALBERTO YEPES PALACIO (Bogotá) elucidated that with the peace agreement in Colombia, the government and guerrillas of the FARC-EP agreed on a comprehensive system of truth, justice, reparation and non-repetition guarantees, in which all those responsible for crimes against humanity and international humanitarian law are held accountable in three institutions: the Truth Clarification Commission, the Disappeared Persons Search Unit and the Special Jurisdiction for Peace. But he pointed out that the perpetrators of the past are those in power today, which would lead to an imbalance in the judiciary. Given the unwillingness of the Colombian government and judiciary it would be needed to apply ordinary justice to use international legal instruments, to establish mechanisms to prevent impunity for those responsible for state crimes.

The exchange on the assessment of traditional criminal prosecution compared to new means of transitional justice as truth commissions and leniency programs based on different national experiences is from relevant importance in achieving international agreements on coming to terms with the past in legal as well as social aspects. While the Argentinian perspective tended to support criminal prosecution, the German position presented a critical view balancing the legal processing of National Socialist crimes and showing it’s limits. Colombia though, that has elaborated a complex system for transitional justice, faces severe obstacles of different reasons in the realization of their objectives. While the Argentine participants presented the position, that in the case of Argentina only criminal prosecution would serve for a pacification of society, other experts advocated a transitional justice process that integrates criminal prosecution as well as truth commissions.

Conference overview:

Panel I: Traditional legal instruments

Mariano Borinsky (Buenos Aires): The Criminal Code Reform in Argentina.

Natalia Luterstein (Buenos Aires): The prosecution of international crimes by domestic courts in Argentina and the passing of time: The non-applicability of statutory limitations as an international tool in a national context.

Cornelius Nestler (Cologne): Crimes committed by a state and culpability – can the perpetrators “at the bottom” of the organization be held culpable?

Jens Rommel (Ludwigsburg): Germany and the Prosecution of National Socialist Crimes.

Daniel Rafecas (Buenos Aires): Incompatibility of the legal definition of genocide with the Argentine case.

Valeria Thus (Buenos Aires): Trials for crimes against humanity in Argentina: Contributions of Criminal Proceedings to the Construction of Remembrance and Truth.

Panel II: Leniency programs

Jörg Eisele (Tübingen): Leniency - A model for coming to terms with the past.

Natalia Barbero (Buenos Aires): Transitional justice, international duty to punish and leniency programs. The experience of Argentina.

Bernd Heinrich (Tübingen): Historical Development of the Leniency Program in Germany.

Fabián Martínez (Bogotá): Leniency Instruments in the Colombian Criminal Procedure.

Alejandro Ramelli Arteaga (Bogotá): Conditioned Leniency Instruments in the Special Jurisdiction for Peace in Colombia.

Panel III: Truth Commissions and Reconciliation

Santiago Alejandro Canton (Buenos Aires): The argentine transitional justice model.

Hartmut Hamann (Berlin): Experience with Truth Commissions in Africa.

Friederike Mieth (Berlin): What makes the mechanisms of transitional justice meaningful?

Gabriel Pérez Barberá (Buenos Aires): Remembrance, Truth and Justice: Criminal Proceedings or Truth Commissions.

Alberto Yepes Palacio (Bogotá): The truth commissions as a mechanism for repair societies traversed by mass violence.

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