Introduction by Michael D. Kennedy, director, International Institute, vice provost for international affairs: Juan Mendez is professor of law and director of the Center for Civil and Human Rights at the Notre Dame Law School, where he has been since 1999. He has been a courageous and prominent defender of human rights in many different circumstances for many years. He is a native of Argentina and began his career in the defense of labor rights, but shortly thereafter he turned to the defense of political prisoners against the military dictatorship of his country. That same dictatorship later arrested him, tortured him and detained him for one and a half years during which time Amnesty International adopted him as a prisoner of conscience. Upon his release, he moved to the United States and began his work with Human Rights Watch. He became general counsel of Human Rights Watch in 1994 and later also served as executive director of the Inter-American Institute of Human Rights, a body of the Organization of American States.

    Juan Mendez came to the U-M February 12 as a guest of the International Institute's Advanced Study Center and offered these remarks as part of the ASC series, "Globalization's Critical Connections."

    Twenty years ago we were content with just trying to stop torture, trying to stop human rights violations, and we didn't even involve ourselves with what comes after. In fact, Amnesty at that time, for example, had a rule of not observing trials for human rights violations—I'm talking about more than 20 years ago now—because they thought that their mandate did not allow for observing how societies and states dealt with human rights violations. It stopped right at the moment they were able to stop the government from committing those violations. That has changed of course, and Amnesty does have a very strong position on fighting against impunity.

    How did it happen? Well, it happened because we experienced a historic transition to democracy in many parts of the world at different moments, starting perhaps in Latin America, and even in Latin America going in steps and in stages. Then the experience of Latin American societies reckoning with the recent past became entangled with how societies in eastern Europe dealt with their own very recent past after 1989. And in a third stage, the example of South Africa, its creation of a Truth and Reconciliation Commission and its particular arrangement on how to satisfy the needs of justice and truth became a model to be followed in other societies in transition. The obvious need for reconciliation and for looking forward also added a different dimension and a new dimension to experiences that had happened before.

    Now that reckoning with the past continues to have new incarnations. Fortunately, it is never—not in a single country—something that happens once in the history of the nation, takes place for a couple of years and then we go on to the next step and can afford to forget about what we did and how we did it. And I say fortunately because if it were a momentary, though intense moment in the history of a nation, it would fall too easily to patchwork solutions that are not real solutions. It would fall too easily to proclaiming the society reconciled. It would fall too easily to saying that, well, we've convened a Truth Commission and that's an apt substitute for justice, so you don't have to ask us for anything more. It would fall too easily to pretensions by people who would say, "I was elected president of this country and nobody knows better than me the demands of justice and of reconciliation and nobody else has to tell me what we have to do."

    All of that is still part of the equation, obviously. But the good thing is that even in countries that went through a very intense period of truth-seeking, truth-telling, some justice-making and some efforts at reconciliation, there is a new reincarnation of the need to fully explore the recent past and not to let it die. In my country, Argentina, for example, even though democracy is now more than 20 years old, the civil society is still very active in preserving memory. There are many organizations that archive the past. They have just succeeded in persuading President Kirchner to turn the most important concentration and extermination camp, the Navy Mechanics School in Buenos Aires, into a museum so that the society will never forget what happened there. Developments about truth and justice are never uniform; in each country and at each stage there are always different alternatives. There was certainly backtracking in Argentina with the Due Obedience and Punto Final laws passed under pressure from the military during the Alfonsin government. And there was backtracking when President Menem pardoned all those who had been convicted or who were still under investigation for human rights violations. But to its credit the human rights movement of Argentina—and now I would say a high percentage, perhaps 70 to 80 percent of the society of Argentina agrees that the past can't be buried and that the past has to live on to tell us what to avoid in the future.

    I credit that kind of relationship with justice and the rule of law with the fact that Argentina, although it has experienced incredibly catastrophic problems with its economy and even with its institutions of democracy, somehow has sailed through those, or is still sailing through those difficulties, without an attempt to go back to the interruptions of democracy and the crimes of the past. It may be the only saving grace that we can mention for the state of democracy in Argentina, but I don't think it's a small achievement that we are able to go through these difficulties without falling into the trap of political violence. And I think, quite frankly, that it has to do with the fact that we did something about the past, and also that we didn't content ourselves with the little something that we did. We still insist there's more to be done.

    But there are new incarnations of this process also in new countries. There are always new countries coming out of the nightmare of repression, there are always new situations in which the problems of how to reckon with the recent past comes to the surface. Mostly the new countries, the new societies that have had that experience, are coming out of armed conflict. And here we have to recognize that reckoning with a past of repression that's more or less unilateral, that's more one-sided from the government against the citizenry, is different than reckoning with the past when you're trying to put an end to conflict.

    In Latin America, this took place in El Salvador and Guatemala relatively early on, in the early 90s. But now most of the situations in which the international community and the human rights movement have to deal with reckoning with the past, take place in situations of conflict. And there's no question that the challenge is much higher, because it's difficult to persuade an insurgent movement to give up their arms and join the democratic process if their leaders are going to be threatened with prosecution and punishment.

    If you fall too quickly for an amnesty in order for them to give up their fight and to give up their weapons, the pressure for having a symmetrical amnesty for the people who fought them, for the military of officialdom, for the police, is very strong. That is what happened in El Salvador, for example. Fortunately, it's not exactly what happened in Guatemala, because by then, with the intervention of the United Nations, the international community and the domestic human rights movement of Guatemala were able to press hard enough so that the amnesty law, which was the last amnesty—the last measure in the peace process in 1996 in order to achieve an end to the conflict that had lasted over 30 years—was the first of its type in Latin America in the sense that it generally complied with international law standards about what crimes cannot be amnestied. Specifically, crimes that we call crimes against humanity, or genocide in the case of Guatemala, cannot be amnestied, according to emerging rules of a binding nature in international law.

    Now the experience of these societies overcoming their recent past has yielded for the international community and the international human rights movement some principles that I call "emerging rules." They are emerging in the sense that you won't see them written in black and white in a treaty. But they are authoritative and common sense interpretations of norms that are obligatory. So in that sense, there's a consensus among human rights organizations, among international tribunals and international organs of protection, among scholars, that the proper interpretation of human rights obligations by states, with regard to crimes against humanity, war crimes and genocide, is that those crimes cannot go unpunished. And, therefore, those amnesties that have the effect of burying those events into the fog of oblivion and of impunity are contrary to obligations of the state under international law.

    Now that's a normative question, and it's important. But I won't stand before you and proclaim as a lawyer that that's all we need to know. That is not all that is needed, because it doesn't move us very much ahead in the business of putting an end to conflict and it doesn't even move us very far toward providing each victim with the redress he or she deserves. It does, however, give us a floor or a ceiling, if you will, as to what states can and should do.

    First, the truth has to be investigated and told publicly, to the victims and to society at large. Second, justice has to be done. And justice in this sense is criminal justice. It's not justice in a philosophical sense. It's moving the wheels of justice through the courts in a way in which culprits, both small fish and the ultimate culprits, face the music and are actually investigated, prosecuted and punished for these crimes. Third, the country is obligated to offer reparations to the victims. And fourth, the country is obligated to cleanse its security forces: even if they are not punished for whatever reason, the known perpetrators of these crimes have no place in the reconstituted security forces of a democratic regime.

    Those four obligations are obligations of means and not of results. You cannot say that a country is at fault if it does not jail everybody that had anything to do with repression. But each obligation has to be conducted in good faith. It's also not possible for a state to say, "Well, we pick from these four, we'll do truth, but we won't do any of the other three." Much less is it acceptable for a country to say, "We'll pay reparations, but on the condition of silence, on the condition of lack of justice," et cetera. It follows, therefore, that all four obligations must be performed separately and that each obligation must be conducted in good faith.

    Soon we're going to have Saddam Hussein on trial. And all our ideas about how to reckon with past abuses are going to be tested, because there's no question that Saddam Hussein has to be tried and prosecuted and punished for those crimes. The only thing that has been said is that they intend to impose the death penalty, which is part of Iraqi legal traditions anyway. And understandably, most of the human rights organizations are saying "we will support you only if you decide not to impose the death penalty, that's our condition." They are also demanding to know exactly how the process is going to proceed so the international community can be satisfied that it is going to be a fair trial. Regardless of what we already know about Saddam Hussein, he still, even if he doesn't deserve it, is entitled to a fair trial. And we can't support anything but a fair trial.

    Because of those considerations, the human rights organizations are urging something different. They are basically urging something more akin to the hybrid tribunals that we have created for Sierra Leone and for Liberia, and possibly soon for Cambodia and East Timor. A hybrid tribunal is a tribunal that uses domestic law and domestic procedure, as adapted to international standards, if necessary, is formed by a combination of domestic judges with some contribution by international judges, and has staff, investigators, prosecutors, and maybe junior prosecutors from the international community. In that way, the international community is able to make sure that its support is a condition of maintaining high standards.

    I generally tend to agree that this would be a better solution. Although the dilemma here is that it is very important for Iraqis to see justice done, not for the international community to see justice done. It is less important that we satisfy ourselves that Saddam Hussein gets a fair trial; what is important is for Iraqis to recognize that his crimes do not go unpunished and that he is punished through a fair process.


    To read a full transcript of "Achieving Justice While Seeking Peace: Human Rights Violations and Social Change" please contact the Advanced Study Center at 734.764.2268 or asc.info@umich.edu.