I. ARGENTINA: 1983-2006 II. SOUTH KOREA: SETTLING AND RECONSTRUCTING THE PAST: 1945-2006 III. DELAYED JUSTICE: A MECHANISM FOR TRANSITIONAL JUSTICE IV. DUTY TO PROSECUTE V. LEGAL JUSTIFICATION FOR NONCOMPLIANCE WITH DUTY TO PROSECUTE VI. DELAYED JUSTICE AND THE STATUTE OF LIMITATIONS VII. RECONCILIATION VIII. RULE OF LAW IX. INSTITUTIONAL REFORM X. MEMORY XI. GUILT XII. CONCLUSION
Transitional Justice has been understood as a range of approaches to deal with widespread and systematic human rights abuses existing in a past regime as a new regime emerges in pursuit of peace and democracy. (1) With an increasing number of states experiencing these kinds of transitions in diverse ways, (2) the need for an innovative and flexible approach and an expansive conceptualization of Transitional Justice has inspired a range of research initiatives.
To date, one of the main debates in Transitional Justice has been whether a new regime ought to punish widespread and systematic human rights abusers from the past regime after a recent transition to a new democratic regime. (3) However, in some fundamental sense, this debate may be misplaced, because it is not so much whether one ought to punish but that one cannot punish in an overwhelming majority of cases, either in domestic or international judicial bodies. Hence, this Article seeks to present Delayed Justice as a useful mechanism of Transitional Justice. Notwithstanding the potential benefits emanating from bringing immediate legal prosecution and justice to past human rights abusers, it may be better to defer legal prosecution and remedy for a lengthy period while the new regime is established.
To promote this Delayed Justice approach, this Article seeks to support a broad assertion about the discourse of Transitional Justice: that Transitional Justice is a long-term project that ought to shift its focus beyond civil and political human rights. In the same vein, Delayed Justice is presented as an integrated, comprehensive, and localized approach to Transitional Justice.
There are a few clarifications to be made beforehand. First, since each transitional case is different and unique, Delayed Justice is presented merely as an available, useful approach to Transitional Justice--not a one-size-fits-all solution. This Article seeks to present an alternative view to the narrow dichotomic debate of prosecution versus forgetting and amnesty immediately after the transition to a new regime. Second, the narratives about Argentina and South Korea that follow in no way reveal all dimensions of the events and dilemmas involved in the respective countries. It inevitably presents a skewed image and story based on this subjective selection. Yet, hopefully readers may benefit by extracting at least sketchy descriptions. Third, these two countries are not chosen as case studies to compare one against the other. Rather, this Article seeks to provide some reflections on theoretical insight into a situation where justice strikes back after its absence for several decades, and these two countries may provide useful mirrors for such reflections to be cast.
This Article will briefly describe situations in Argentina and South Korea where criminal and civil justice are being pursued following several decades without legal accountability. The descriptions will be followed by an analysis of the benefits of Delayed Justice over immediate legal prosecution and recourse. Then, a series of issues ranging from international law to social consideration, such as guilt and memory, will be examined to deduce arguments for and against Delayed Justice as a useful mechanism of Transitional Justice.
I. ARGENTINA: 1983-2006
Argentina's guerra sucia, or Dirty War, which spanned from 1976 to 1983 under a military junta government, left a minimum of 8,961 persons dead or disappeared. (4) Furthermore, "tens of thousands of Argentines were detained without being charged with specific crimes." (5) In September 1983, after the Falkland Islands War, the junta decided to relinquish power by declaring a self-amnesty law (Ley de Pacificacion Nacional, the Law of National Pacification), "which granted immunity from prosecution to suspected terrorists and members of the armed forces for human rights violations committed between May 25, 1973 and June 17, 1982." (6) It was followed by Decree No. 2756/83, "which ordered the destruction of all documents relating to the 'Dirty War." (7) The free elections took place on October 29, 1983, and President Raul Alfonsin (Alfonsin), a civilian, was inaugurated two months later. (8)
Alfonsin then issued Decree No. 158/83 "ordering the arrest and prosecution of the nine military officers who comprised the three military juntas from 1976 to 1983." (9) In December 1983, the Argentine Congress, with subsequent approval by the court, passed Law No. 23040 nullifying the self-amnesty law passed by the military junta. (10) The slow process of investigation by the Supreme Council of the Armed Forces, who were facing 2,000 private party criminal complaints, prompted the federal appeals court to take over jurisdiction. (11) In 1985, "the Court convicted ... five of the former commanders and two former Presidents, Generals Jorge Videla and Roberta Viola," which the Argentine Supreme Court subsequently upheld. (12)
There were divisions between political parties as to the treatment of the military. (13) Among the public, there were groups who were against any judicial prosecution, (14) while the human rights groups wanted trials and convictions of all officers and enlisted men who participated in the repressive regime, as well as measures that banned officers from being promoted if they were suspected of committing human rights violations. (15)
Meanwhile, Alfonsin established the Truth Commission, Comision Nacional Sobre la Desaparicion de Personas (the National Commission on Disappeared Persons or CONADEP), which published a report in September 1984 with accounts of abductions, torture, and detentions. (16) It estimated that approximately 9,000 individuals disappeared during the Dirty War and revealed a list of over 300 secret detention camps. (17) The report recommended the initiation of judicial proceedings. (18) Alfonsin also ratified a series of international human rights treaties such as the International Covenant on Civil and Political Rights, (19) the UN Convention Against Torture, (20) and the American Convention on Human Rights. (21)
On January 3, 1986, after five convictions, the Federal Chamber of Appeal announced four officers would stand trial for over 250 human rights abuses and also ordered the Supreme Council to begin investigation of other mid-level suspects. (22) In the end, around 700 officers faced charges for the Dirty War. (23) It is alleged that Alfonsin wanted to have limited trials, but the judiciary followed its own logic and expanded the investigation to a full-blown examination of most military officials. (24) The first trial did not upset the military past the boiling point, because convicted generals had retired anyway, and the military perceived some convictions as inevitable. (25) But in addition to CONADEP's report, the ordering of this second wave of trials, which targeted officers who were at the heart of the command structure, caused the military to boil over. They felt the Armed Forces itself was on trial, not individuals. (26) Alfonsin tried to appease the military with promotions, military procurement, and salaries (27) to little avail.
Amid this military unrest, the Congress passed Law No. 23492, called the "Full Stop Law," (28) which "imposed a 60 day deadline on the filing of any complaints or charges against alleged torturers." (29) Despite its presumed intent of curbing further criminal proceedings against the military, the prosecution managed to file over 300 summonses before the February 22, 1987 deadline, (30) which effectively neutralized Alfonsin's strategy of reducing the number of trials. As a result, by March 1987, fifty-one military and police officers were arrested for human rights violations, but only twelve of them were convicted and sentenced. (31)
The military's unrest began to take shape with Major Ernesto Guillermo Barreiro's Easter Rebellion in April 1987. (32) Although Alfonsin managed to quell the rebellion through talks with the military, he bowed to pressure by passing the law of "Due Obedience" on June 4, 1987. (33) "This law created an irrebuttable presumption that military personnel accused of committing human rights abuses were acting under orders and also were unable to question the legitimacy of these orders." (34) In effect, the law "protected all military officers below the rank of Brigadier General." (35) "The law even barred the judiciary from undertaking any case-by-case analysis to determine if a defendant's actions were self motivated" or simply following orders. (36) "As a result, over 400 officers were effectively immunized." (37)
Two big factors seem to generally account for the failure to pursue prosecution in the period between 1983 and 1987. First, even though the military's power had dwindled by 1983, it was still strong enough to refuse to obey judicial orders. (38) The risk of another coup was looming, given the fact that by 1983, "the armed forces had 'ousted every president elected' in Argentina in the last fifty years." (39) Second, the Argentine economy was in serious trouble. (40) Its external debt in 1983 totaled U.S. $45 billion, (41) and "[h]aving declared a moratorium on debt repayment[,] ... [Alfonsin] had to contend with a 400% annual inflation rate that ... climbed to 658%" at one point. (42) An additional factor behind such a failure may have been a perceived inadequacy in the Argentine judiciary "to lead the assault on the military," (43) as legal orders and the rule of law were manipulated and ignored constantly since the 1950s. (44) Overall, however, the two laws successfully appeased the military, (45) and the government was able to concentrate on the rapidly declining economy.
By the time of Carlos Menem's election in 1989, the country's economic problems overshadowed the human rights issue. (46) Shortly after assuming office in October 1989, President Menem followed up Alfonsin's initiative by issuing a broad pardon covering nearly 280 people--those involved in the Easter Rebellion and those involved in human rights abuses during the Dirty War. (47) "A year later,... Menem pardoned and released the military junta leaders who directed the [dirty] war, including Jorge Videla, Roberta Viola, Emilio Massera and former army General Carlos Suarez-Mason." (48) Hence by the beginning of the 1990s, only ten convictions for human rights abuses accrued, all of whom had been pardoned or released anyway. (49) However, Menem did provide monetary reparations to victims who had filed complaints within two years of the post-junta government (i.e. by December 1985). (50)
A more than decade-long forgetting period was constantly confronted with shocking revelations of the past by military officers. (51) For example, Captain Adolfo Scilingo stated that about 1,700 detainees were "drugged, stripped, and thrown alive from planes into the Atlantic Ocean" between 1976 and 1977. (52) There were constant marches and protests by human rights groups such as the Mothers of the Plaza de Mayo seeking truth of the past. (53) The mood of change was further precipitated by a series of extraditions of former military officers by foreign countries in the early 2000s and the release of decades-old secret police archives by Argentine authorities. (54) Coinciding with the diminishing threat of the military and the improving economy, it was noted that the amnesty laws did not absolve the crime of kidnapping a minor, and the kidnapping charges were not included in the Menem pardons, which resulted in criminal charges against the relevant military officers. (55)
The floodgate was finally opened in March 2001 with the trials of "disappeared children" when Federal Judge Gabriel Cavallo declared the Full Stop and Due Obedience laws unconstitutional and void. (56) Judge Cavallo found the two amnesty laws in violation of the constitution, reasoning that there cannot be "amnesty for acts involving the usurpation of public power or state terrorism[,]" and such amnesty is an unconstitutional intervention of the judiciary's power to adjudicate and is in conflict with Argentina's obligation to bring to justice those responsible for crimes against humanity. (57) Also, Judge Cavallo claimed that declaring these laws unconstitutional had a retroactive effect, making it as if the laws never existed and were never passed by Congress. (58) The federal appeals court confirmed this holding in November 2001, and it was followed by "a series of decisions by federal and appeals courts declaring the invalidity and unconstitutionality of the amnesty laws." (59) "The executive followed suit when President Nestor Kirchner took office in May 2003; his government's proposal to annul the two laws was accepted by the legislature a few months later." (60) As a final step, in June 2005, the Argentine Supreme Court declared the two amnesty laws unconstitutional and void. (61) The decision confirmed the opening of the floodgates for the prosecutions of human rights abusers involved in the Dirty War. (62)
Menem's pardons did not escape the pursuit of Delayed Justice either. Federal judges held that pardons granted by President Menem exempting senior officers from punishment were unconstitutional, (63) and, in September 2006, Argentina's second highest court, the Criminal Appellate Chamber, annulled the pardon extended to General Santiago Riveros by then-President Menem in 1989-90 for crimes against humanity (killings and tortures that took place under his command) committed under the 1976-1983 military regime. (64)
The overturning of the pardon is interesting, because it is not a mere judicial intervention in legislative power due to unconstitutionality; it is judicial intervention in the exercise of executive prerogative power. (65) In U.S. constitutional jurisprudence, which Argentine constitutional jurisprudence draws from heavily, (66) a pardon is "an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed." (67) It extends to every offense known to the law, and this executive power is not subject to the legislature, (68) or any significant judicial check. (69) Pardon, as a part of the constitutional scheme, serves public policy ends. (70) It determines that the public welfare will be better served by providing relief from harshness in the criminal justice system. (71)
Given the exclusive nature of the executive pardon power, it raises a constitutional issue for the doctrine of separation of powers and internal checks and balances within the government structure. (72) The presidential pardoning power functions to check the judicial power, and there seems to be genuine agreement in the United States that the president's power to grant pardons must not be encroached upon by other branches of the government. (73) While the detailed analysis of this issue is outside the scope of this Article, the Argentine example highlights the flexible and creative paths available for transitional states to pursue Delayed Justice.
The passage of time and subsequent stability has undoubtedly caused many people to focus on their current private lives (as evidenced by dwindling internal and external support for the human rights movement in Argentina). (74) In light of the heavy reduction in military power, the number of officers who were involved in the Dirty War, (75) and the public outcry over expressions of nonrepentance by past human rights abusers, (76) Argentina's pursuit of Delayed Justice finally materialized in a form of criminal prosecution with seemingly popular public support. (77)
II. SOUTH KOREA: SETTLING AND RECONSTRUCTING THE PAST: 1945-2006
It has been more than sixty years since Korea gained independence from Japan's colonial rule. (78) Yet legacies of Japanese colonial past still haunt today's South Korean society, hedging divisions and conflicts in various ways. There were many Korean people who actively collaborated with Japanese authorities before and during the colonial period lasting from 1910 to 1945. (79) While these people have been commonly termed as "betrayers of nation," (80) the newly independent Korean government at the time failed to prosecute these pro-Japanese collaborators for political reasons. (81)
Despite the Korean government's initiative, the U.S. military administration, citing a lack of experienced officials to administer the country, kept the collaborators in office and preserved the pre-existing colonial structure to facilitate the establishment of a new, democratically-elected government in South Korea. (82) Reluctance on the part of the U.S. military administration, which sought to move forward rather than settle the past against rising Communism in the Korean Peninsula (83) and the presence …