 I'm Susan Collins, the Joan and Sanford Weill Dean here at the Gerald R. Ford School of Public Policy. Is this on? Can people hear me? Yes. And it's a great pleasure to welcome all of you here on behalf of the Ford School, the International Policy Center, and our co-hosts, the Center for International and Comparative Studies. And I'd like to extend a particularly warm welcome to our distinguished speaker, the International Human Rights Lawyer and Professor Jose Pepe Zalicat. We're very honored to have you here. You'll get a proper introduction in just a few moments, but I first wanted to acknowledge the vision and the hard work of my faculty colleague here at the Ford School, Professor Susan Walts. She has been the driving force behind today's event. Susan herself has been extremely active in international human rights work for more than 25 years. Early in her career, she worked as an area expert and human rights advocate to stop torture and political imprisonment in Morocco, Tunisia, Algeria, and Libya. She has also testified before the U.S. Congress on human rights practices in North Africa and testified as an expert witness for North African refugees in U.S. immigration courts. Susan was elected to the Amnesty International USA Board of Directors in 2010, and here at the Ford School, she teaches courses in foreign policy, human rights, and international poverty. And this winter, she will teach a seven-week graduate seminar for us, followed by a study trip to Grenada. Thank you very much for your work in this regard and for organizing this very special event for us, Susan. And with that, I'll turn things over to you. Welcome. It is a real pleasure to be able to introduce one of my heroes to you today. You know, life, we never really know quite where it's going to take us and what kind of challenges it's going to put before us, what we're going to do when the challenges arise, and what a single event might mean for us. And I'm quite certain that 9-11 changed the life of our speaker forever. But it's probably not the 9-11, the September 11th that you're thinking of. September 11th, 1973 was the day that Chilean military officials stormed the government offices and removed the democratically elected government, a president of Chile, Salvador Allende, with, I should probably add, as a very important footnote with the help of the US Central Intelligence Agency. But that day, at that time, our speaker was a professor at the law school, had not really considered himself to be a dissident, had actually, I believe, served in the government of Salvador Allende in the previous years, but was apart from much of the political activity. And shortly after the new junta took power, with the blessing of the Catholic Church, the Cardinal of Santiago, he helped organize the legal office that began to document the abuses and the human rights violations that were rampant in Chile for many of the next years. Two years later, in 1976, he paid for his good works with exile. He was packed on a plane and sent out of the country, where he then continued his work away from his family for the next 10 years. And during that time in exile, he began a career in human rights work that really took him on the path to the topic that he's going to talk about today. How does a society that has been wracked by conflict rebuild itself, reconstruct its moral and its political framework so that it can move on in time? Over the last, what, 20 or 30 years, José Zalacat has traveled around the world, invited by many different parties to come and talk with them and look at their own circumstances to see how truth can be told, must be told, and justice must be done. And I'm very, very pleased to be able to introduce José Pepe Zalacat to you today, and I'm very eager to hear what he has to say. Join me in welcoming him. Is this open, Tom? Thank you. Good afternoon. Thank you, Dean Collins. Thank you, dear friend and colleague, Professor Susan Walts. I've been asked to give this lecture on the topic of how to reconstruct a broken society after a return to democracy or to somehow better government and following a period of civil war, dictatorship, or other man-made disaster. And this issue has been termed in English and then borrowed from other languages as transitional justice, which I consider to be not a felicitous term because it somehow emphasizes the idea that justice itself is in transition or temporary and also puts the accent on justice to the detriment of acknowledgement, truth, reparations, or many other measures. But it's a short term. I mean, facing a traumatic past to reconstruct a better society doesn't fit in the cover of a book or in a headline. So transitional justice has become a term of convenience. With that having been said, we can explain the subtitle Building Just Sustainable Political System in Post-Conflict Societies. As I said, that doesn't fit in one line. This issue emerged. There are some historical precedents. Actually, in your country, the precedent that didn't make for a whole current was the Civil War. And if you remember the Gettysburg address that we recite in English, not in Spanish in our countries, those 250 words amazingly eloquent, they are suffused with the concept of rebuilding. Four scores and seven years ago. Our founding fathers did this. Now, after this disaster, we are going to re-dedicate the country to the values of the past. So nations go through a period of foundation, of troubled life, but sustainable life, terminal crisis, and rebirth. And some nations have never managed to really have a sustainable life and they're dying and being reborn every day or every year. But for the most part, that is the case. And for the first three periods of your life of a nation or a regime, namely foundation of time, the troubled but sustainable normal quote unquote life and crisis, we have had a lot of frameworks to go to resort to. But for the period of re-foundation or reconstruction, only 27, 28 years ago, we began to fashion a whole framework that's still debatable and in the process of being perfected. And we will refer to that. So the historical presidents were in the distant past, the Civil War and this eloquent, the re-dedication of the government of the people for the people by the people. And in more recent times, post-World War II, the first presidents were Greece that was rather isolated and the downfall of the military regime in Greece that incurred gross violations in 74, Spain in 75, Portugal the following year. But it was not until the Argentinian transition in 1883 that a whole segdilia as we call it, a whole stream of transitions occurred. Counting together with the process of the unfolding of the Cold War structures, more than 30 or 40 countries that have faced these problems. What do you do with the past? Not because the past is left behind, but because it continues to haunt the present and it can mortgage the future. So it's not just looking backwards. It's a past that still is haunting us and it may affect the future if we don't deal with it properly. So the leading case was the Argentinian case from 1983 onward. Before that, the only memory of dealing with past atrocities in the international community was that of the post-World War II. The Nuremberg trials and the Tokyo military tribunal, the first one just by the Allied, the second one by America in Japan. These cases had to deal with crimes against humanity, war, crimes, genocide. And what was instilled in the awareness of the international community was you have to go and do justice. Don't ask me how, just do it. The problem is that Hitler was dead. Armistice surrendered unconditionally and there was no standing army to face the Allied. This didn't apply to Argentina. In Argentina, they had been defeated in the Falklands War in an island by the Brits. But in the main line, they retained the monopoly on weapons. Nevertheless, the international community and particularly in the north, Europe and America said, go and do justice. I mean, we have again a situation, maybe not quantitatively as tragic, but tragic enough of crime against humanity. Perhaps akin to genocide, it's time to do justice again. Particularly because the world is so much now aware of the importance of human rights. Yet the situation was not the same. For some time it looked as if it could work more or less the same, but it wasn't the same because they were not unarmed, disarmed. They were still, they were demoralized, they were in disarray, but not disarmed. Oops, sorry, the wrong key. After that about 30 other cases have taken place in Latin America, Europe, Africa and the Far East. And I will go through them very quickly just naming them. In Latin America, Uruguay, Brazil, Argentina, after the Argentina case, Chile, later on Central America, Nicaragua, Guatemala, El Salvador, Peru later on, even a few years ago. In Europe, all the central European countries after the downfall of the Soviet system, that when I'm naming these countries, I'm not saying that they dealt with the problem properly or rightly. Actually out of 30 cases, maybe seven can be counted as reasonably successful. Being a human endeavor, in most cases, you have a fracas, a pretence or a facade. This is not to then to despair about it, but to be realistic. In South Africa, of course, the leading case is that of South Africa precisely, but other cases in Africa being Uganda, Chad, Zimbabwe, Ethiopia, et cetera, Sierra Leone more recently. And in the Far East, you can count Sri Lanka, the Philippines, in Europe apart from the cases that didn't make for a whole new trend that I already mentioned prior to the Argentina case, Greece, Spain, Portugal, you had then the efforts of Northern Ireland to deal with the case. And the whole issue has expanded, sometimes taken as franchise. Like, you have a problem, well, throw them through this commission, you know. Even for the Bush years now, people are talking about the Goldborn massacre and so forth. Maybe it's a right solution, maybe not. But sometimes the reaction is rather automatic. Is there a problem with the past? Well, truth commission should be the answer of transitional justice. You have to be a bit more careful about that. Now, transition to democracy, as I mentioned, is a re-foundational time. And re-foundational times are similar to the foundational times, just as rebirth is similar to the time of birth. For the foundational time, there are different times in political ethics. For the foundational time, you have a period that is half historical, half mythical. The founding fathers are larger than life, they can do no wrong. And the figure of a Jefferson, a Madison, a Washingtonist of a symbolism that far exceeds their historical reality. And there's a time where the Constitution is crafted, where the principles of the nation, particularly a nation that is dedicated to a proposition such as America, are fashion and so forth. So these foundational times are concentrated in time. In America, I would say from roughly 1776 to 1814, when you consolidated the institutions vis-a-vis the attempt for reconquest from Britain and so forth. So it's not a fixed time, but they're usually concentrated in time of great symbolic importance. And as I said, they set out kind of the moral and political software for the nation. I know not much about softwares, but I know that if you misplace a semi-colon, all kind of funny things happen. So you have to do things right when you write a software, namely when you write the blueprint for what your country should be all about. You have to do things properly, or the best you can. Then the normal time is full of crisis. Economic crisis, contentious politics, union struggles, social divisionness and so on. But somehow the ship doesn't sink. It's, of course, made to, what are you saying? It goes through troubled waters and through the storm, but it doesn't sink. You may use any other metaphor, meaning the system is able to sustain itself. But for that time, we have several frameworks, constitutional law, rule of law, civil rights, accountability and so forth. Just like for the foundation of time, you have the constitutional principles, the basic social contract theories from the 18th century onward, and the notion of shape of the constitution, et cetera, et cetera. But there are also emergency times that may lead to the breakdown of society and a political system. And for those emergency times, we also have fashion in the last two centuries principles, like the laws of war or internal armed conflict, called international humanitarian law, emergency rule, and some basic ethical principles of human rights that always stand in the background. In situations of war, you may apply first humanitarian law, the laws of war, but where the humanitarian law doesn't apply, you have the subsidy or the subsidiary rules or the background rules of human rights. There's no situation of you being kind of bereft of all protection, as was pretended once by the Bush government. Like you are not a regular combatant, therefore you don't enjoy the protection. That may be the case of humanitarian law, but if not, you have to enjoy the protection of human rights. It's not that you are bereft of all protection. So for all these three times in the life of a nation, we have had, since long, conceptual normative frameworks. A notion of what is all about and what should be the basic rules. Yet for the time of re-foundation or reconstruction, we didn't have these principles really properly in place until the Argentinian case. And we are still somehow sorting them out. The reason being that it's like in geology, like a new volcano or whatever, it doesn't settle down until many decades later, or perhaps millennia in the case of the volcano. And the issue is still young. Being young is still more controversial than long settled issues. After having said that, what are the issues of this transition of time? I will be very schematic in order to attempt to be clear about it. Namely, I will mention first the principles, then the political restrictions, and then the criteria to harmonize both. It's easy to say we should be able to do this. Now, we should be able means, now down in reality, how do you do it? What are the real-life situations? And how do you harmonize in political ethics the two terms that conform the expression? Namely, the ethics and the politics. Namely, the goals to be achieved vis-a-vis the real-life constraints. I will begin by the political restrictions first. Now, the political restrictions, you may distinguish several factors that influence the restrictions. The type of crisis, was this a conflict that meant a confrontation, a polarization between rival ethnic groups or religious groups? That's more difficult to address than ideological crisis. Because in your lifetime you may change ideology, you don't change ethnic or religious allegiance, even if you're not a practitioner. So a conflict, say in the Balkans or as we were discussing with an academic colleague over lunch in Sri Lanka, may be more intractable than a conflict that has ideological rules. The same can be said about Uganda or other countries where the ethnic element or religious element is far stronger components than in other places. The type of violations, where the massive violations was their genocide, big massacres, practice of systematic force, disappearances of people of torture, the scale of the violations and the nature of the violations. And the type of transition, how did it come about to be left behind the situation of crisis? Was that through a military victory, a complete victory? Was that through a halfway victory? Was it through a peace agreement? That makes a difference. So these are some of the elements to take into account when it comes to political restriction. And I will refer, concerning the third one, the type of transition, oops, sorry, here it is. Concerning the third one, the type of transition, I will refer briefly to certain real-life situations. First, military defeat, World War II at the international level, complete military defeat of the Nazis and the Japanese and the forces of the Axis. Nicaragua during a few years after 79, before the Contra war erupted, complete defeat of the Somoza forces by the Sandinista forces, or the international level again before the resistance erupted again, Afghanistan, after September 11. Initially controlled then a new rekindling of the fire, so to speak. In the situation of military defeat of the enemy, you have in theory all the power you need to do things right. But you have so much power that they become a danger against doing things right. So there is a contradiction in terms, there's a paradox. When you need to do justice and choose, and because of that you know how all the power, because the enemy is defeated, doesn't have any standing army, or maybe Hitler or other leaders are dead and so forth, you have in theory all the room you need to act. But that becomes a danger against justice because there's no checks and balance. And forget about the nuclear material for a moment, but in France and even in Norway, there were retributions and reprisals that were far from fair. Maybe they were culprits, maybe they were not the collaborationists, but we would never know because there was a rampage of the victors justice and revenge. So this tells us that when you're dealing with this kind of issue, there's no perfect situation, only better or worse, because in the ideally conceptually perfect situation in which the perpetrators of massive atrocities are being completely defeated, therein lies the germ or the seed of injustice because there are no checks and balance. So you have to be wary of this problem. You need to have a lot of room to act, but not so much that you endanger justice. A second situation was that of the military humiliation without loss of control of the monopoly of force. In Greece, 74, and Argentina, 82, the ruling dictatorial forces of the military had a military fiasco, Greece by the hands of the Turks in Cyprus, the Argentinians by the hands of the Brits in the Falklands. That demoralized them and produced the downfall of the military regime, but it didn't disarm them. And after they recovered their morale to some extent, they put up a resistance. So initially, as I said with the Argentinian case, the leading case, I remember from Human Rights Watch and other groups, imperfect bona fide, wonderful groups, saying, go and do justice. Don't ask me how. I mean, this looks like Nuremberg. It's not like Nuremberg. They're alive and they have the control of their weapons. They're demoralized, but they're not dead or disarmed. And then when they started putting up a resistance, the complexities of the situation became much more apparent. A third type of situation is a political defeat, not a military defeat, like in Uruguay or in Chile. Uruguay, 85, Chile, 89, 1990, meaning the government calls for a vote, the military government. The pollsters or the dictators never tell them the truth. Both of them are doing great for the polls. And so they sometimes aspire to gain both power and credibility. And they feel cheated when they realize that they lost the election. That happened in Argentina and Chile. They ran fair elections for the first time. They lost them. And that produced the downfall of the regime or confirmed that they have to follow an itinerary to return to democracy. But they put in place lots of restrictions before leaving power. And they didn't feel demoralized. Rather, they tried to articulate an explanation. See, we always wanted to return to democracy, grind the artistic. We always wanted to return to democracy. Now we're doing that. See, we hold to our promises. Anyway, that calls, they don't lose a certain sense of cohesiveness in the military. They don't have a sense of military defeat, which is more grievous for the military people. And therefore the restrictions are sometimes more severe. You have a situation of gradual political openness where the worst violations are left in the memory of the previous generation. So the living memory is attenuated because the worst facts occurred 20 years ago, 15 years ago, etc. So there is a greater disposition of moving forward. The problem comes back to haunt them many decades later, both in Spain and Brazil. But initially at the moment of transition to democracy or leaving behind the dictatorship, you have a sense that, well, the situation has softened up a little. And let's move forward. You have a situation of militarily stalemate, like both sides, the rebels and the government, recognize they cannot defeat each other and they make peace. But both sides have something to reproach themselves. And although their rhetoric is all for truth and justice, in reality they have their finger crossed behind their backs. They are not for to suggest it because it will rebound on them too. So there are many other situations like shiftist alliances in an ongoing armed conflict, like the Philippines and the Corazon Aquino in the 80s. Her husband was a moderate politician. He was murdered. She was elected a widow. But she had to continue to face a military insurrection of the former allies in the left, the radical left, and to have to continue to fight them with the forces that were previously with Marcos's dictatorship. So that creates a whole dilemma. You usually don't prosecute your fighting army while you're still fighting, you know. Anyway, these are all real life cases. A collapse of totalitarian regimes in central Europe. I'm talking about former Czechoslovakian republic now Czechoslovakia, former East Germany, now unified Germany, Hungary, Bulgaria, Romania, etc. In those cases, the problem is, the restriction is, you need the former people to continue to run the country. The dissidents are a few hundred, very heroic people. But the policemen, the public servants, the judges, the professors of their schools, they're all from the former regime. They pretended that they were all dissidents, of course, but all the time. It's a normal situation. But it's hard to go for full tools and justice and keeping the country functioning at the same time. So I'm not saying that because of that you should yield to the temptation of doing nothing or procrastinate or so on. I'm talking about real life difficulties. It's against these difficulties that you have to attempt to move forward towards the ethically agreed principles. You have situations of ethnic or religious conflicts like in the Balkans or Uganda. South Africa is a special case within this larger category. Namely, the new forces, political forces, are from a different ethnic group than the ones that committed atrocities. And just like it happened with Obote and Amin in Uganda, they belong to a particular ethnic group and Museveni, the ruler, to a different one. And if you go to do justice, you are going to be doing justice concerning the other group because you surround yourself with your loyal people. And that means a danger of reigniting the conflict. You have a situation also of former colonial power, namely East Timor, after being submitted a small island with a small fraction of an island with 600,000 people population. The former Portuguese colonial power retreated Indonesia, steps in and we're talking about 200 million people, the powerful neighborhood. Then they gained independence after massive human rights violation, but you still have this former colonial power like a big presence nearby for all purposes. And how do you go about prosecuting the people who have been their allies in the past? South Africa is a case in point. Mandela emerges from 25 years of imprisonment and he knows that he has to build a united South Africa on the rubble of decades of all use apartheid policies. Now, you cannot fashion pseudo-states within the state like this. South Africans did the white party of recognizing four states within the state, funny names, and no one would recognize them or their cronies in Southern Africa. You cannot push the black white people to the sea. You have to live with them, but you cannot sweep under the rug the dirt either. So how to manage that is a real-life dilemma that Mandela attempted to address through the means that we will examine in a moment. You have sometimes evolution within the same system. Morocco, the present king, Mohammed VI, established a tooth commission to reveal the human rights violation by his father, rather a difficult commission, Hassan. Of course, it's an evolution of the regime. He is, quote-unquote, more liberal, but the regime is the same kind. And that brings limitations. So they went for reparation and acknowledgment, but not for justice. Anyway, so these are some of the real-life situations. Let's go now for the principles and then refer on how to harmonize them both. I admit this is a rather schematic approach, but it's, I believe, one that helps in a short period of time to clarify the issues. The general goal of a policy of transitional justice, namely, of facing the recent past of atrocities when you're moving away from it, the general goal should be the democratic construction or refondation, namely, to build a democratic system or to rebuild it. Build it like in South Africa where one existed but only for six million people, the white people, and now having one for 44 million people, build it or rebuild it like in Chile or Argentina where there existed democratic institutions before they have been destroyed. Not that you have to fashion the same institutions, but you have the elements to rebuild. The demolition elements serve you for the reconstruction purpose. Now, the specific objectives concerning the past, because the general goal means the past, the present, and the future, of course. You have to navigate the present and design policies, long-term policies to build a solid democratic system. But the specific objectives concerning the atrocities of the past are to prevent and to repair, namely, never again, how to react in such a way that you minimize and eradicate the possibility of sliding back into similar kinds of atrocities to the extent you can. And to repair what is repairable, you cannot return the debt back to life, but you can compensate, you can rehabilitate, you can restitute stolen property and so forth. So these are the specific objectives. And the means to achieve those objectives, this is another view of the means. Some of them have been signaled. Truth-telling. What does it mean, truth-telling? Truth-telling, at one point in the past, was criticized because it sounded like an Orwellian kind of approach. A big brother tells you what to believe. We're not talking about that. We're not talking about how it came about that the Second World War happened. Many people may say, well, there are many factors. One of them, it was too harsh, a Versailles treaty, and then that allowed for the fertile ground to a crazy guy like Hitler to prosper and so forth. Well, that's an explanation. But where or whether or not gas chambers is a fact. Where or whether or not holocaust measures of elimination of Jews and Gypsies and other minorities, that's a fact. So the truth-telling should be about facts, not about interpretation. That's left to playwriters, historian, oral history, journalist, and so forth. About facts that have a tremendous ethical transcendence, like was the right to life respected or there were secret crimes by the state. That's a real fact. And which kind of facts, particularly the facts that are first grave and second denied or concealed. Governments never accept that they have killed people in cold blood. They say, no, no, this guy resisted. And he attacked us. We were better sharpshooters and we killed them first. But he died fighting. We killed him in a loyal fight. Of course, that's disproven when you prove that the person was killed, pouring blank, with a shot in the back of the head and so forth. But they pretend that they never acknowledged the fact. They never acknowledged what is the subject of a total international prohibition. And this is killing a person that is not fighting. This is political imprisonment for reasons of fair exercise of your rights. They pretend that you were terrorists. Maybe you were, maybe you were not, but you would never know. These are torture. These things can never be justified. Force, disappearances, extradition, killing, torture or political imprisonment for reasons of conscience. They may attempt to justify other measures like excite. Well, our laws permit excite when there is an emergency and we had to excite them. Because there is no way you can not recognize the excites are running around the world for everyone to see. You cannot deny that reality. So you attempt to rationalize what you cannot deny and to deny what you believe you can deny or hope you can deny. So two-stelling means putting the light from under the table on top of the table to use a biblical image. It means for everyone in good faith to know what really happened. Because there is a mechanism called denial and this mechanism of denial, the psychologist and the psychiatrist know it well. It's a mechanism that can happen at individual level and collective level. Say you have a big conflict between an intense loyalty with a parent or a closely relative and an atrocious fact, say an abuse. You block the atrocious fact because you cannot live with the tension of the two, the loyalty versus the atrocity. For countries, the same happened. They give me the expression it's an SOB but it's my SOB. So this country, this government saved me from communism but it's killing people. No, no, it's not true. Because if you admit that it's true and say so what but that has to be done to save me from communism, it's too strong to hold. So you block the truth. This didn't happen. It's not true. It's part of the propaganda. So the effort of the truth commission that had been established around the world and I was a member of the one in my own country is to reveal the truth in a way that no person in good faith can deny it. There will always be the loony ones that would deny the Holocaust or whatever but that most people cannot really in good faith deny it. That's the purpose. And for that purpose, truth commissions have been established. Truth commissions are not courts of law. They're not created to deal with the innocence or guilt of individuals. For that, they're previously established called courts of law. Because if you created Expo's facto, a court of law, it would be a kind of kangaroo court. Truth commissions are there to establish a historical and morally relevant truth about what happened. And to do that in a manner and with a rigor that everybody in the society can accept the truth sooner or later. Truth commissions have been established galore. Priscilla Hayner wrote a book about 15, 20 years ago, a comparative study of truth commissions that were 21 at the time. Now they have gone to 35 or 30 scenes. And except for seven or eight, they were largely either a futile exercise or a fracah. But these seven or eight are very important ones. And some of them are in Latin America. Also, the Truth Commission in South Africa has been recognized as an important and serious one. Second, the memory building or preservation of the memory. The Truth Commission continues to the memory, but there are all those symbolisms of the memory preservation. Monuments, commemorations, gestures, symbolic gestures, trying to build even museums of memory. We will see that in a moment. Third, acknowledgement of the truth. At least two friends present here in the first row were at the conference in 1988 where the philosopher Thomas Nagel from NYU introduced the morally relevant distinction between knowledge and acknowledgement. And he put the following example if you people would remember. He said, imagine a court of law in Britain presided by a judge in the high podium with black robes and a white wig. And the barristers are wearing white wigs and everybody sees very solemn, my lord. And all of a sudden, the wig from the judge slips off and he quickly puts it on back. Everybody knows that his wig slipped off. He knows that everybody knows. Everybody knows that he knows and so on. But no one recognized. They continue, my lord. So what he says, that is knowledge but not acknowledgement. And acknowledgement means putting a truth in the annals of the nation to exit in the memory in a way that is more official, not in the sense, or will in the sense, but in the agora, in the plaza publica, in the place where the civic rituals are conducted. Everybody knows everything about everybody else. We have 300 bytes of memory. This guy, yeah, he was married once or so and so, but we know everything. But it's not necessarily recognized, acknowledged. And the acknowledgement is very important because then institutions in society can rectify their doctrine. For instance, the military that never did say so officially, you can kill people in cold blood for the sake of national security. They can say now publicly this was wrong and to kill people in cold blood when they are in your custody is wrong, which will never be done. So you rectify the implicit doctrine that you somehow disseminated when you were acting that way. Second, it paves the way for reparations because if you acknowledge something, then the whole society is more prepared to pass a law to providing reparations for the victims. The acknowledgement in Britain of the truth, sorry, in Germany of the truth of the Holocaust provided for laws of reparations for the victims of their descendants that still are in force. So the acknowledgement is very important to recover the sense of these principles are serious. We didn't respect them. That's wrong. It will never happen again. I'm not talking about the acknowledgement of individuals which would be very important but you cannot force someone to self-incrimination. That would be against basic legal principles. I'm talking about the acknowledgement mostly of individuals if possible but mostly of the army, political parties or even the whole nation as it happened with Germany at one point. The Church, by the way, has been engaged in the Catholic Church in exercises that many people feel the halfway of acknowledgement. Acknowledgement for imprisoning Galileo for believing that the Earth revolved around the sound and not the other way around. Acknowledgement for forced evangelization and more recently acknowledgement initially timid and gradually a bit more clear for the pedophilia. But this acknowledgement is very important in the sense that you say this is wrong and now we admit that we did it and we shouldn't have done it. It will never happen again. We will take measures. That's the sense of acknowledgement. Then reparations. You can't repair the irreparable. You can't bring back the debt to life but reparations may be at the individual level consisting of restitution. You stole the property. You expelled faculty members because of their ideas from the law school or the medical school and you returned them to their position or you returned their property that was stolen. It may consist on compensation, namely a pension or a sum of money, usually a pension for life for the relatives of the victims or for the victims themselves. It may consist on rehabilitation, namely helping to deal with the physical and psychological sequela of the victimization. There are reparations also that are collective. Namely, in certain towns to erect a monument or to put a plague in a school where they kill students and the professors or whatever, collective in nature, compensation or loans, low interest loans or interest-free loans to communities that have been victimized and so forth. And the reparation may be also symbolic, namely monuments and acknowledgment and other measures like declaring a holiday, the commemoration of the massacre and so forth. So all these measures have to do with the principle of preventing and repairing, which is the purpose of dealing with the past. Truth-telling, memory-building preservation and only reparation. And finally justice in the sense not of material justice which would be reparations in the form of compensation, but criminal justice, making the guilty ones pay for their crimes. This is the most difficult aspect of the transitional process because when you haven't won an outright war against the forces which committed the atrocities, you have a force to be reckoned with. If you're going to be trying to attempt to do justice, they're going to put up a resistance and you have to figure out how far to go and how to go about it in the first place. First, the principles tell us that there are certain crimes regarding which there's no pardon, statute of limitation or amnesty acceptable. These are the famous crimes fashioned after World War II, crimes against humanity and war crimes. War crimes are the most grave, the gravest breaches of the laws of war. The laws of war are very detailed but there are lesser breaches for instance. The laws of war tell you that a prisoner of war may write to his or her family every two months. If they don't allow a prisoner of war to write but every four months, it's a transgression of the law of war but you wouldn't call that a war crime. Evidently it's not a grave violation but torturing prisoners, killing prisoners or forced deportation. These are grave violations of their call war crimes and crimes against humanity are finally defined in the 1998 Statute of Rome that created the International Criminal Court and you need three elements to characterize a fact as a crime against humanity. Once there is a fact listed in the list of transgressions, they include murder, disappearance, torture, rape, forced deportation and so forth, ethnic cleansing. Second, that this fact is perpetrated as a part of a systematic or generalized attack against the civilian population. And third, that there is no wish of that attack. I conclude that for someone to be guilty of a crime against humanity that is the gravest reproach that you may have from a legal standpoint universally. Crime is already a felony, it's very serious but crime against humanity, you need to be an active part whether as an architect or a mastermind or an executor of a policy that has an intent of extermination against a particular group. That doesn't mean that it means that not every human rights violation is a crime against humanity but every crime against humanity, of course, is a human rights violation. But crimes against humanity and war crimes can never be forgiven, they should be brought to prosecution if possible. When I say if possible, it doesn't mean that you renounce to prosecution but you may not be in a position to prosecute them now or a year from now but maybe five years from now because somehow they are resisting. Say Milosevic in Serbia, when he was in power, he was committing a lot of crimes against humanity, particularly systematic ethnic cleansing, killing people in Bosnia-Herzegovina and in other places. But he could not be brought to justice to the international court of the Hague for crimes against humanity in former Yugoslavia until he lost power and eventually was surrendered. That's what I mean if possible, when the guy is actively in power someone has to catch him at the risk of blood and treasure. There is now a standing order of detention against Bachir, the ruler of Sudan for crimes against humanity committed in Darfur but someone has to go and get him and expose yourself to the bullet that comes in the contrary side. So that's what I'm saying if possible and when it is possible in real life. Now other crimes may be forgiven if that is approved in a transparent way and if they contribute the perpetrators to the two-stelling and they admit that this thing should not happen again. It's not that you are asking for an open expression of repentance but a policy that forgives crimes should never concern itself with crimes against humanity and war crimes even if you cannot do justice now maybe you can do justice tomorrow in a few years time. But concerning other crimes it's not illegitimate to provide for measures of clemency or leniency provided that there is a disposition of the perpetrators to admit to what they have done and contribute to truth. Now this is a very contentious issue in the human rights community. Some people don't admit to the distinction I'm putting forward and I should be very candid about that but they are not here to tell you their point of view. What's the overall purpose of all this? For some countries the overall purpose expressly spelled out is national reconciliation. Actually in Chile the Truth Commission was called the National Truth and Reconciliation Commission the same name received in South Africa Truth and Reconciliation Commission and in Peru. Now what is this idea of reconciliation as a kind of religious connotation to it? Unlike justice to telling acknowledgement and reparations it's not a quantifiable measure. You may say we produced a report accounting for 3,000 people killed we passed the law to make reparations for 10,000 people 15 people are imprisoned whatever but you cannot say we are 63% reconciled. It's not quantifiable it's more like a northern star an aim to go towards but what does it mean apart from the rhetoric of the idealistic aspiration? For some people and this is still being elaborated it means something of a political agreement it's like a new social contract. We re-emphasize the principles of that every person has basic rights and they should be respected or we emphasize them for the first time. It means like putting together even in a religious sense religious, civic sense an alliance that was broken like in the Old Testament you have the alliance with God was broken and then somehow you put it together a new covenant as they call it. For some other people it means basically that those who in the past treated each other like enemies now treat each other like opponents but admitting to their entitlements for instance in Chile sitting side by side there is a senator that ordered the rest of the next seat senator it's not that they are exactly exchanging family photograph in the breaks but they treat each other with acceptable respect for each other right. In the times of acute human rights violation they put forward a theory and the theory is that the enemy is less than human if it's less than human you're killing or torturing a humanoid rather than a human and this idea it was put forward by both sides the military these are extremists but the radical left wing forces these people are not the people and there are no human rights the rights of the people and there are no particular dual rights the rights are the rights of the people and if you kill them it means in Spanish it's a justicamiento how would you say that? Pardon? Right you brought them to justice and if you steal their small business it would be expropriation so you have a whole language to somehow emphasize that some people don't have rights and to commit wrongs against them is not crimes from both sides so reconciliation would be admitting that the other is an opponent not an enemy and not subhuman and for other people from the psychological sciences reconciliation means that a former victim can relate to the former aggressor from a position of security of safety being what it may is an elusive concept still in the making an approach from different angles and but expressly formulated as a desire of a community not to be divided between irreconcilable enemies but somehow to be brought together in some kind of civilized way means the truth-telling is conducted mostly through truth commissions there are about 30 national examples as I said few of them successful regarding truth-telling is important the composition so that the members of the truth commissions are credible people the mandate what are they supposed to be doing the methodology how are they going to act publicly in a reserved way and then to make public their fundings what are going to be the investigative methods and so forth the dissemination of the results and concerning truth commissions as I said there are nearly 40 examples and they are very varied some of them have been successful and I will name them to you regarding the truth-telling not regarding the overall transitional policies only that aspect the ones considered serious are from Latin America, Argentina Chile, Peru, Salvador and Guatemala from Africa, South Africa certain reports or processes like the East Timor one and even the reports from Northern Ireland but few more are considered successful really even from that aspect from that standpoint the memory building or preservation the truth commissioners have a role to create the memory but it's not the only means by building memory there are sites memorials and museums the president is of course the memorial museums build to commemorate the holocaust oral history is very important and I will give you some examples here these the most effective memory buildings are not the ones that are rubbing up against your face the extraordinary drama that cannot be really spelled out but that give a sense of absence of a mission of disappearance of void like this empty gas chamber or these shoes left by the victims of genocide and even sometimes you have unusual methods to convey the message like mouse this extraordinary successful comics of the holocaust now if you were an editor at a publishing house and someone came to you saying I have this idea about doing a comic on the holocaust you would have thrown them out without major ado but this was an incredibly successful white and black comic probably many of you know it if you haven't known it I encourage you to find a copy mouse the Jews were mice the Germans were cats and the Americans were dogs and so forth but the whole thing is played in a manner that is very convincing and very respectful and very educative I believe educational in Berlin this plaza of the holocaust to see the to get an idea of the size these are people actual people so it's a whole plaza of labyrinthic nature going up and down and so forth this is a painting by perhaps the most accomplished painter alive today Anselm Kiefer from Germany he has been accused of neo-fascism but he won several prizes for humanism contribution to humanism from Israel namely he is looking at the history of Germany in the face with all its greatness and all its failings and in this kind of paintings this is a field of battle and the memory is elicited by the mud raised by the tanks passing only it's a general feeling of absence of the past the same painter this notion of the holocaust the train to the concentration camp has gone already this is an idea of not being overemphasizing but a sense of deprivation, absence hopelessness the same painter and now Hitler's bunker after the fire fighters have done their work putting out the fires this is of course the Vietnam wall in the mall in Washington DC it was hotly contested when it was being built because it was felt it was too abstract to do honor to the memory of the dead it was a compromise they put three realistic figures completely realistic one white American one Latino and one black American then the women protest and they put two nurses in the next but the visitors bypass this and they go straight to the wall that has a sense of going down as you may see and then emerging from the depths and going up and people are at there and people go there and do frottage like they pass a pencil over the name or they put a little message or a flower and has been extraordinarily successful as an evocation of the memory of the fallen Robin Island prison of course where Mandela spent 27 years in prison this is a peace park that was built in Chile in the same place that was the headquarters center so that was demolished and a peace park built with the names Etcher and flowers and trees erected there and this is also from my country the recently built museum of memory to give you also a sense of the building this is the size of a person it's a huge museum four story high with a whole history of the repression so these are some examples of commemoration the acknowledgments regarding the recent past you have several examples of military people admitting to atrocities in some other places they still refuse to admit to anything but concerning the distant past there are many examples not only that of the church acknowledging the imprisonment of Galileo or the forced evangelization of people in America but also German firms acknowledging and making reparations for using slave force in World War II or the indigenous people from Australia Canada New Zealand or America claiming and finding in some cases forms of reparation there's a book by Eliasa Barkan called guilt of nations that contains 10 case studies of long-term acknowledgement Barkan B.A. R.K.A.M reparations may consist as I said of restitution, compensation or rehabilitation then maybe individual or collective material or symbolic and as I mentioned already I'm just reiterating now regarding justice there's a legal imperative concerning crimes against humanity and war crimes and the possibility of pardon or clemency regarding lesser crimes if there's a contribution to the truth and acknowledgement reconciliation question mark now there are certain tensions between principles and restrictions these tensions mean that you may not achieve what is set out in the blueprint of principles in the short term or immediately or sometimes in the medium term because there are political conditions that do not permit you to do so vis-a-vis this kind of situation to just say go and do it don't ask me how you are at fault I think it's simplistic there may be a will an honest will to advance but a real impossibility to move forward for instance if someone asked us during the Pinochet years why don't you do justice against Pinochet you say that's a bad joke he's in power he's killing people why are you going to do justice when the change occurred they act on the assumption that the change is 180 degrees maybe 120 degrees 160 degrees depending on the restrictions so it's not as it is now it's white and black and now we're on the white side where we're in the black side before or the other way around the restrictions are real and you have to try to reconcile the principles and the real life situations there are some ethical criteria max Weber's distinction between the ethics or responsibility versus the ethics of ultimate ends has come to the fore he made the distinction in the famous lecture of 1919 and anticipating the obscure of fascism in 1918 in the revolutionary winter of Germany after the First World War he was telling an audience of German students mind you Paris 68 is a picnic compared to German students in 1919 extremely earnest about everything so he was telling them if we pursue this path of asking for the impossible but you're going to find yourselves in ten years time that many of you that are the most flamboyant speakers will have moved to the other side will have withdrawn to a private life and so forth he had the courage of telling them the important thing is to keep an ethical blueprint in mind but to act taking it to account the real life considerations to maximize your possibilities but not to jump in the air as if you had flights flying without flights that criteria has come to the fore in speeches by people as distanced as the Baclac Havel in the former Czechoslovakia or in Chile President Eilwin they have evoked the distinction between ethics of responsibility and ethics of ultimate ends I'm about to finish the corollaries of this the order and sequence of the public policy measures matters say in Chile after the downfall of the military regime they had passed an amnesty law for themselves covering the period of worst crimes so people demanded we need to obligate or repeal that law but you didn't have the political votes to do that and if you follow the ethics of conviction saying I'm going to appear as doing the right thing I ask for the repeal of this and you get into a congressional struggle for one year you waste your honeymoon political time and you end up with nothing instead of that what the president did and it was very clever was to establish a truth commission that created such a commotion in the country by the truth it revealed that that facilitated then the other measures of justice and reparations so the order and sequence of the measures matters I always like to refer to the image of the ice breaking ship in the Arctic or the Antarctic sometimes you have a frozen ocean and an ice breaking ship comes and with the steel pro crushes against the frozen ocean and somehow you make a crack and you navigate through the crack and you crush again and you make room for yourself step by step so the important thing is to find the measures that open the way for further measures that's easier said than done but you can learn from experience about that at a minimum not to condone meaning by that if you are a democratically elected leader that have your hands half tight and you cannot do justice now at least at least at the very least don't condone the situation of impunity confirming it you may not be able to do something but abstain from validating what is illegitimate this applies to Argentina where because he didn't play his hand right an honest president he forced them to condone measures of impunity I think I will leave it here to allow for sufficient time for question and answer or comments we have covered perhaps more ground that is reasonable to cover in such a short period of time but it was an overview right and the floor is open for any questions or comments Buin accepted yes madam I should warn you that I am a bit hard of hearing and they asked me to repeat the question but first I have to listen to it properly that's fair enough I wish I had the question for the purpose of the record as they asked me is why it would appear that the South American trust commissions have been more numerous the successful ones than the South African one in South Africa the examples are Ethiopia Chad Uganda and South Africa the ones I know Sierra Leone more apart from the commission there's a court in Sierra Leone international court handled by United Nations and part of the truth is coming or is expected to come from the cities of the court but you are right Sierra Leone as well right they did have a TRC it's a member of the it was a member of the trust commission in South Africa it was a member also of the trust commission in Sierra Leone and now it's a member of the panel in Sri Lanka together with Professor Radner who was present here from your faculty I don't know the reason really I remember I know personally the cases of Uganda that they asked me to advise them but the way they went about it in Uganda was to establish a panel that felt that they had to go through quasi-judicial proceedings so they have a full hearing listening to a single case that went on for days there was no way they could finish in a century with that kind of procedure eventually they produced a report that was too late and too little and by then the whole contradiction within Ugandan society had reignited following the first initial relatively moderate period of Museveni had reignited in the case of Chad and Ethiopia it was what do you call it window washing or wide washing anyway an attempt to pretense of trust commission it was very it was not really reliable and the forces that supported respectively in Chad Hisenabre in Ethiopia still were to be reckoned with and they wanted to paper the things over the South African commission was more successful as a trust commission I'm not talking about overall policies because in South Africa there were some activists that pushed for a comparison of transnational experiences so they called for two conferences in 1994 both of which I had the privilege to attend one before the election that led to the election of Mandela as the president and one after the election to see what they could do and what they could learn from other countries in Latin America we had many failed experiences as well Panama, Mexico, Paraguay and Brazil and Uruguay never went about a full trust commission but they were done good exercises but non-governmental groups usually associated with the churches but the example of the southern cone namely Argentina that was the leading example was followed then by Chile and these two examples somehow inspired United Nations that brokered the examples of Salvador and Guatemala it was United Nations that set up those commissions that helped in the wake of that because of an enlightened interim government but there was a mixture of circumstances the fact is that these are generally considered more successful but I don't think there is a single factor that can be spelled out I had another hand yes sir, I understand I must confess to be my relatively interest ignorance apart from being a general reader of the international news of the situation in Liberia yes sir yes I have some hands there let me take this one and I move on over there yes first I was thank you for your question I will give some references first I was a low instructor very young low instructor at the law school at the time of the coup d'etat in Chile became a human rights lawyer although we didn't call each other human rights lawyers at the time at one point Amnesty International two months after the coup was coming to the country and we said Amnesty who, we didn't have a clue what it was Amnesty International but then we realized that they were very serious and after they returned from their mission to Chile they sent us the draft there was no email at the time but they sent us the draft by means of a courier, personal courier of their report for us to check any mistakes there were some minor mistakes law such and such and so forth and we realized that there was a serious human rights community out there and well then we developed a more human rights language and so forth but this church protected institution although we were not I'm not a religious person I was raised a Catholic but I'm Agnostic anyway they accepted everyone who wanted to work for human rights under that umbrella now where the church acted in America something happened where it didn't act and nothing happened because the rest of the civil society or the institutions were destroyed the congress was closed political parties outlawed union disbanded federation of students disbanded etc the only organization that stood up was the church because they had given even the coup in the name of western Christian values so they had this rhetoric they didn't respect the church although they considered some of them red priests and so forth but begrudgingly they had to respect that where the church didn't act at the level of the hierarchy like in Argentina or Uruguay where it did act nothing but the courageous activity of individuals who were relatives of victims like Emilio Mignone or other people in Brazil you had the church acting in the main process that was Sao Paulo the largest catholic archdiocese of the world because they had like 20 million believers and the cardinal was active so that gave you protection you moved to Central America in El Salvador the Archbishop was establishing some protection he was killed while he was saying mass Archbishop Romero in Guatemala the church was reluctant nothing happened really for some time and in Chile we had because the church acted from the very beginning some key people in the church not everyone we had a record contemporary record of the repression and the killings from the time it occurred there was a very reliable record now when the truth commission came some of us that have been active in changed roles and the president established a commission of 8 people not 7 but if you establish 7 they say ah, you have the majority 4 or 3 if there is a split vote you can win by establishing 8 he put 4 people that have been supporters of the military regime not of the human rights violation but that felt that in the divisive situation of the country it was justified to overthrow agenda not to kill people and so forth of course we disagreed sharply on those issues but we agreed to concentrate on killings and torture and the 8 people came to a unanimous conclusion that gave a lot of credibility to the report because people could identify with these 4 they say well this is a big shot from the right wing and so on so if all these 8 people say something it must be something to it that gave a lot of credibility and how it was first we gathered all the information from the church activity during the 17 years of military rule that meant hiring or buying 20 photo copy equipment and having people work around the clock photocopying the files and then it meant augmenting that with all the new denunciations among the new denunciations there were like a thousand completely groundless denunciation because victims don't lie but a lot of people lie to become victims it's a reality and many of these people were in bona fide acting like they said my husband died because of the junta when did he die in 1980 how long he was in prison one week but he never recovered his heart was weak you understand, you console but you cannot consider that a case of human rights violation anyway we had about a thousand cases that were groundless but 3,300 cases that were solid and we had to consider everyone with the evidence because the government was now the constitutional government and they gave the order, the executive order for every branch of the government to collaborate with us we got all the colonel's reports all the international police report about travel the ID report the driving license report you have someone that you have witnessed that the person was taken away he was a family a head of family I'm carried away I'm carried away I'm carried away oh I realised that we went over over the board