IN RECENT YEARS, THE THEORY AND PRACTICE OF HUMAN RIGHTS PROTECTION HAS BEEN largely shaped by the struggle of organizations in civil society to overcome the recurring cycle of impunity for the most egregious crimes committed in the exercise and abuse of authority. The detention of General Augusto Pinochet in London, for purposes of extradition to Spain, was a veritable leap forward in the development of tools for human rights protection. This stunning development forces jurists everywhere to rethink the proper balance between notions of sovereignty and nonintervention in internal affairs and effective ways to implement fundamental principles of humanity. It also greatly expands the debate over what states and the international community owe to victims of egregious abuse beyond the limited circles of the international human rights movement.
Before the Pinochet case, though, there were important developments in the struggle to overcome impunity, often inextricably linked to the transitions from authoritarian rule to democracy. In each society undergoing such a transition, the issue of how to deal with the legacy of past abuses has been high on the agenda of emerging democracies. As similar problems arise in other communities, experiments put in practice to date have been examined with great interest. In the few countries that have attempted to prosecute such crimes, heavy pressure from entrenched military elites has often been brought to bear. Even when such pressure is absent, invocations to a false "reconciliation" thinly disguise a business-as-usual attitude that serves to evade the course of justice. In the many countries where truth commissions have been appointed, a profound ethical and political debate has arisen over the value of criminal prosecutions -- often, though not necessarily always -- as opposed to truth-telling.
This essay focuses on efforts at accountability in Latin America, and specifically on the contributions of the Inter-American Commission and the Inter-American Court of Human Rights -- the bodies that implement international human rights law in the region -- to that struggle. The picture is complex. Undoubtedly, the most ingenious and promising initiatives to restore truth and justice and to overcome impunity are grounded on national realities and emanate from domestic organizations of civil society or from the will of national democratic leaders. Yet pioneering decisions by inter-American bodies have also inspired and given a solid legal footing to some of those enterprises. As described below, the presence of inter-American bodies is at times clearly discernible and even precedent setting, whereas in other areas they have been silent or clearly lag behind national institutions in the development of progressive legal principles.
The Phenomenon of Impunity and the Present Status of the Struggle to Overcome It
We refer here to impunity for the most egregious human rights crimes, such as extrajudicial execution, torture, and disappearances, when committed systematically or on a wide scale. Of course, many other crimes also go unpunished for one reason or another. In addition, many Latin Americans rightly decry the pervasiveness of impunity for other illegal actions committed by high officials, particularly acts of corruption. Our views apply only to impunity for the most serious human rights crimes because, in their regard, emerging principles of international law require their effective prosecution and punishment, disclosure of the facts, reparations to the victims, and an effort to cleanse the security forces of their perpetrators (Mendez, 1997a: 255 et seq.).
Our analysis refers to impunity for such crimes whether they result from de facto or de jure impunity. The former occurs when crimes are not investigated thoroughly, or are not prosecuted, simply because of a lack of will to do so by the officials in charge of institutions with specific duties in that regard. It can also result from the multiple interferences, overt and covert, with the discharge of those duties by others with more power or influence. In contrast, de jure impunity applies when states resort to manipulations of the domestic legal order to establish rules that effectively preclude investigation or punishment, or stand as obstacles to discovery and disclosure of the facts surrounding those crimes. We refer here to amnesty and pseudo-amnesty laws, to presidential pardons, and other forms of clemency. However, we do not mean to imply that all amnesties or pardons violate an international law obligation. In fact, some forms of amnesties are required by international law.1 Blanket amnesties, however, the effect of which is to prohibit any serious inquiry into the facts o r punishment of those responsible, are a breach of international law if they cover the most severe human rights violations, those that can be characterized as crimes against humanity. It follows that amnesties and pardons are valid if they do not result in a general atmosphere of impunity.
Some mechanisms of impunity straddle the line between de facto and de jure impunity. The application of military court jurisdiction to these kinds of crimes is often an example. In principle, military jurisdiction is a legitimate forum for hearing offenses of a specifically military nature, such as disobedience to orders, cowardice, and so on. Military tribunals are, however, inherently neither independent nor impartial, since they act wholly within a sphere of administrative law; for that reason, their very use for criminal cases may violate a cardinal provision of human rights law, namely, the due process clause requiring an independent and impartial adjudicator. In fact, turning to the actual Latin American experience, military court jurisdiction is used very expansively, covering every possible matter in which a member of the armed forces may be involved. Worse yet, military courts are often put into motion only to prevent investigation and action by other courts or prosecutors. In that sense, military c ourts are the "black hole" where all serious inquiries are lost and become a major mechanism of impunity of both a de facto and a de jure nature.
Amnesty laws are, in any event, the preferred form of de jure impunity. Military dictatorships have almost always enacted by decree a self-amnesty law by which they tried to prevent any future inquiry. Though there is little disagreement in international law that such laws are unacceptable, succeeding democratic governments have generally allowed them to stand, as in the cases of Pinochet's Decree 2191 of 1978 and the Guatemalan amnesties of 1982 and 1986. Brazil had a negotiated amnesty law in 1979, years before the military government started the carefully controlled abertura process toward democracy.
The Guatemalan example is particularly egregious. The military government decreed the 1986 law only a few days before handing over power to an elected president and Congress. There was an attempt in Congress to declare it null and void, but President Vinicio Cerezo effectively blocked the effort. In Argentina, the military rulers attempted to do the same in 1983, only a few days before the elections that marked the return to democracy. The military, however, was too weak after the Falklands-Malvinas defeat to impose too many conditions on the transition. As a result, judges refused to apply the decree law and the newly elected Congress declared it null and void.
Unfortunately, newly democratic regimes have been too inclined to yield to military pressure and enact further amnesties, this time with the intervention of freely elected representatives of the people. Guatemala passed anew amnesty law in 1987. In El Salvador, there was an amnesty law in the same year and a subsequent one in 1993, days after the Truth Commission issued its report. There were also blanket, comprehensive amnesty laws in Nicaragua in 1990 and in Honduras in 1981, 1987, and 1991. Most recently, in 1995, the Fujimori regime in Peru enacted an amnesty law  just in time to release members of an army death squad from prison and to prevent their convictions.
As for "pseudo-amnesty" laws (which purport to have the same effect by not using the word amnesty), we cite the Uruguayan Law of 1986, named with the untranslatable title of Ley de Caducidad de la Pretension Punitiva del Estado. Argentina under Raul Alfonsin enacted two laws, Punto Final (Full Stop) in 1986 and Due Obedience in 1987 (the pardon decrees of current President Carlos Menem in 1989 and 1990 closed the circle of impunity and finally reversed many of the gains of the accountability process started in 1983). 
The struggle against impunity may finally be yielding results, however. The most recent amnesty law was enacted in Guatemala in December 1996 to facilitate the return of guerrilla leaders from exile and to sign a comprehensive peace agreement brokered by the United Nations. It is the first amnesty law in Latin America that specifically exempts the most egregious crimes from its coverage. Its terms are in line with the emerging principles mentioned earlier. Of course, it is too early to announce the end of impunity in Guatemala, but it is encouraging that the principle of accountability for human rights crimes has been preserved.
Affirmative Obligations on the State
As a result of these struggles, international law is rapidly developing in this field. We refer to "emerging principles" because they are not to be found in the letter of the law of human rights instruments, but rather in authoritative interpretations of otherwise binding norms. There may be some discussion as to how firmly "settled" in international law these emerging principles are. Yet there seems to be remarkable unanimity of opinion among scholars and organs as to their existence, and certainly no opinion juris going in the contrary direction. 
These emerging principles apply to human rights crimes of a particularly severe nature, such as extrajudicial executions, disappearances, and torture, when they take place as part of a deliberate, systematic, or widespread pattern. Under these circumstances, these human rights violations acquire the status of crimes against humanity and they are susceptible to being committed primarily by governments, but also by insurgent or other groups exercising a high degree of de facto authority. When committed in the course of war, these actions (and an array of similarly condemnable acts) are war crimes or grave breaches of the laws of war. It is worth noting that an isolated war crime gives rise to an obligation to prosecute and punish, whereas a single act of torture in a nonconflict situation is insufficient to trigger this obligation. When either war crimes or crimes against humanity are committed with the intent to destroy, in whole or in part, an ethnic, religious, or national community, they constitute genocid e. Genocide, war crimes, and crimes against humanity give rise to an obligation on the part of the primary state, as well as of the international community. The latter obligation may be satisfied by creating an international criminal court, or by allowing the courts of other nations to exercise the principle of universal jurisdiction.
These affirmative obligations include, first and foremost, an obligation to investigate, prosecute, and punish. This obligation on the part of the state is a right to justice when viewed from the perspective of the victims and their families. Second, there is an obligation to disclose to the victims and to society all that can be reliably known about the circumstances of the crime, including the identity of the perpetrators and instigators. We call this a right to truth. Third, the state is obliged to offer to the victims or their kin some measure of reparation, which should not be limited to monetary compensation. Finally, whether or not perpetrators are punished, the state has a duty to eliminate from the ranks of the security forces those agents who are known to have participated in such crimes. All four obligations are independent of each other, and all must be executed in good faith. It follows that if one of them is rendered impossible to execute (say, by a defective amnesty law), the state must still strive to comply with the other three to the best of its ability.
The Inter-American Commission and the Inter-American Court of Human Rights have had occasion to deal with these issues and have made significant contributions to the development of these emerging principles. The following section describes those contributions (or lack of them) for each of the four independent obligations.
The Right to Justice
The Velasquez Rodriguez decision by the Inter-American Court was the first case in which an international organ of protection had to confront the phenomenon of forced disappearances.  Angel Manfredo Velasquez was a Honduran student leader who was apprehended by a unit of the Honduran army and subsequently disappeared. The case was the first fully tried "contentious case" brought before the Inter-American Court. Though the matter of amnesty was not directly at issue, the court declared that forced disappearance of persons was a crime against humanity, citing -- among others -- declarations to that effect by the most representative political bodies of the international community.  The court also clarified the legal effects of such a categorization. 
In subsequent motions, the Inter-American Commission (acting as a prosecuting body under the American Convention) and the representatives of the Velasquez family asked the court to issue an order to the Honduran government to investigate Angel Manfredo's disappearance. The court refused to issue such an order, but stated that all parts of its decision, including the obiter dictum, were equally binding on the defendant state.  The court's phrase within the Velasquez decision regarding disappearances as a crime against humanity and the legal effect thereof has been cited profusely since then for the proposition that, when it comes to crimes against humanity, the state is obligated to take affirmative steps to avoid impunity.
At about the same time, the Inter-American Commission was receiving complaints about the effect of amnesty and pseudo-amnesty laws on the rights of victims to pursue criminal action before the courts of their own countries. The Commission had already had occasion to condemn "self-amnesty" laws passed by military dictatorships in previous years.  In fact, by the mid-1980s the matter was considered by the Commission to be one of great institutional gravity, meriting an important place in that body's annual reports to the General Assembly of the Organization of American States.  In Argentina and Uruguay, relatives of victims who had pursued criminal actions in domestic courts had seen their cases dismissed by application of the pseudo-amnesty laws passed in those countries by newly democratic governments (see above). After lengthy deliberations and hearings between the complainants and the diplomatic representatives of those states, the Commission issued Reports 28/92 and 29/92 on Uruguay and Argentina r espectively.  Citing, among other authorities, the court's decision in Velasquez, the Commission declared that the Ley de Caducidad in Uruguay and the Argentine laws of Punto Final and Obediencia Debida, plus Menem's pardons, were all incompatible with the obligations imposed on the state by the American Convention.
The argument against the validity of such blanket amnesties lies in the nature of the offenses themselves, when they reach the level of severity of crimes against humanity. It is also based on the fact that murder, torture, and disappearance are violations of rights so fundamental that the Conventions specifically make them non-derogable, meaning that they cannot be suspended even during a state of emergency. It follows that an amnesty that covered such violations would be an ex post facto derogation that is equally impermissible. The obligation to investigate, prosecute, and punish is also a right of the victim and his or her families, based on the Convention's clause instituting a "right to a remedy" (Articles 8 and 25). When it comes to these kinds of crimes, the remedy cannot consist simply of payment of an amount of money, but must include reparations also of a nonmonetary nature. Among the latter, the victims have a right to see justice done. They are not entitled to a specific form of penalty, but the y are definitely entitled to a process that restores justice by criminally prosecuting those who may be responsible. 
Since the Inter-American Court and Commission issued these landmark judgments, other international bodies have followed in the same path. The U.N. Human Rights Committee, which is the organ of authoritative interpretation of the International Covenant on Civil and Political Rights (ICCPR), has consistently taken strong positions on accountability for grave human rights violations. It has done so in the context of applying its case complaint mechanism, as well as when issuing its comments on some countries' periodic review of implementation of the ICCPR.  The HRC objects to amnesties that create an "atmosphere of impunity," meaning that an amnesty law may be valid under some circumstances, but not if the net result is a legal impossibility to investigate and prosecute this kind of crimes. The HRC has also based its objection to blanket amnesties and pardons on the fact that, as applied, they preclude the exercise by the victim to his or her right to a remedy. 
The European Court of Human Rights has also recently dealt with the question of what is an appropriate response by the state to a human rights violation of this seriousness. In a decision against Turkey, it stated specifically that violations of the right to life and to physical and moral integrity of the person cannot be satisfied merely by the payment of monetary damages. The victims and their families have a right to a serious investigation, to prosecution and punishment of those found to be responsible for such crimes. 
Theo Van Boven and Louis Joinet, Special Rapporteurs appointed by the United Nations to deal with these questions, have persuasively established this right to justice. In their authoritative reports on reparations and impunity, respectively, they cite and compile the authorities mentioned above. Both conclude that victims have a right to demand prosecution for crimes against humanity. 
The Right to Truth
The Inter-American Court clearly established the implications of the right to truth when it stated:
the duty to investigate facts of this type continues as long as there is any uncertainty about the fate of a person who has disappeared. Even in the hypothetical case that those individually responsible for crimes of this type cannot be legally punished under certain circumstances, the State is obligated to use all means at its disposal to inform the relatives of the fate of victims and, if they have been killed, the whereabouts of their remains. 
Likewise, the Commission has said that:
society has the inalienable right to know the truth of what has occurred, and also the reasons and circumstances under which aberrant crimes were committed, so that such acts do not reoccur in the future. At the same time, nothing can prevent the relatives of the victims from discovering what happened to their next of kin.... 
In this hemisphere, the truth has become known through truth commissions and the complaints presented by the victims' families to the judiciary. Chronologically, the first truth commission setup to deal comprehensively with a pattern of widespread violations, and in the context of transitions to democracy, was the Argentine National Commission on the Disappeared (CONADEP) or Sabato Commission, which produced the report entitled Nunca Mas (Never Again), one of the most important legacies of the Argentine experience in the indictment of past injustices. Chile followed a similar path with the Rettig Commission,  which acted in 1990 and 1991. Although it was not empowered to establish responsibilities, the decree creating it made it clear that the Commission's work would not obstruct "the judicial procedures that could result from" the facts it investigated. However, it was well known that most of the crimes would not be submitted to criminal action because of the 1978 military self-amnesty; its application to many cases was considered res judicata, and the new democratic government of Chile felt it could not be modified. Unlike CONADEP, the Chilean Commission established a detailed truth for each of the victims. This individualized truth, which is one important contribution of the Chilean experience, is an obligation of the state and society toward each victim and each family of a disappeared person; it is an obligation that, as the Inter-American Court affirmed, remains in effect while there is any uncertainty about the fate and whereabouts of a victim of injustice on the part of the state. 
El Salvador also had a truth commission that discovered and revealed a limited truth. It included excellent information on some cases, but said little or nothing about others, such as the structure of the death squads, a phenomenon that particularly affected that country. Furthermore, the report included cases attributable to the armed opposition, but only to one of the factions of the Frente Farabundo Marti para la Liberacion Nacional. This and other limitations reduced the impact and effectiveness of the experience; nevertheless, the result of the effort was positive if we take into account the constraints that the Commission faced.  The lesson from the Salvadoran experience is that the truth discovered should be comprehensive and represent the reality that it tries to reveal, but even a limited truth is valid, on the condition that it has been obtained impartially and without deliberately hiding any significant aspect.
The experience of Haiti was unsuccessful because the Commission did not obtain any significant information that was not previously known and it committed the very grave error of keeping its report secret for several months.  After months of deliberation, it resolved not to publish its report and to release only a few pages of inane "recommendations." Six months later the Commission did release its full report, but printed and distributed only a small number of copies. A truth commission that withholds publication of its own findings is at the very least a contradiction in terms. The Commission had at its disposal the support of many international and domestic human rights organizations. Its chair, however, a woman who was a close ally of President Aristide, ignored their recommendations and managed to alienate its natural base of support. Before the end of its mandate, the Commission had entered into a public confrontation with the Haitian human rights movement (Brody, 1996: 1).
The Guatemalan Commission for Historical Clarification is the most recent experience in our hemisphere. It was created with the intention of clarifying the historical truth, in contrast to the individualized truth of the Chilean experience. As in the cases of El Salvador and Haiti, this Commission was created under the sponsorship of the United Nations and was subject to the agreement signed by the government and the Unidad Revolucionaria Nacional Guatemalteca to end the 37-year-old civil war. Its mission was to clarify with complete objectivity the human rights violations and violence that caused great suffering to the population, to prepare a report on the results of its investigations, and to make recommendations to promote peace and harmony. Moreover, it was to recommend measures to preserve the memory of the victims and promote a culture of mutual respect, observance of human rights, and a strengthening of the democratic process. However, under the agreement, the Commission could not individualize respo nsibilities and could not have judicial purposes or effects. This comment may seem superfluous, since a truth commission that had judicial effects over a person would violate the principle of juge naturel (the right of every defendant to be tried only by courts having jurisdiction over the case at the time the crime was committed). As to identifying individuals and including them in the report, it has already been said that the legitimacy of one or the other solution depends on the specific case (Mendez, 1997a).
If there are limitations to establishing the truth in eventual judicial proceedings, it is evident that keeping secret the names of those found to be responsible will not contribute to either clarification or reconciliation and will detract from the credibility of a report that, while claiming to tell the truth, hides significant facts and information. To the contrary, if there is a significant possibility that there will be a criminal justice action, it would appear prudent not to reveal names until a criminal action, with all due guarantees, determines the guilt or innocence of each individual. In either case, it must be recognized that "naming names" entails a severe stigma. Consequently, if there is no possibility of a criminal action, the Commission should study the information it receives very closely and envisage mechanisms that would allow a minimum right of defense for those who may be implicated before it.
Independent of these considerations, the parties to the agreement tried to limit the investigative effort of the Guatemalan Commission so that it did not reveal specific facts or establish institutional or personal responsibilities. This, in itself, constitutes an important obstacle to any serious intent to discover and publish the truth. As we finished this article, the CEH published a very strong and well-documented report. The report boldly characterizes the successive campaigns against "subversion" among indigenous communities as genocide. Consequently, its recommendations are meant to force the government and Guatemalan society to confront the need to reestablish justice. Now the discussion centers on whether the government will follow them up. At this early stage, it is worrisome that just a few days later the government issued a reparations program that does not meet the recommendations of the CEH.
The common denominator of all these commissions is their mission: to tell the truth. Although this may seem obvious, it is not if we consider the context in which they have to perform their work and the provisos to which the truth is submitted. The commissions have to work in societies that operate under almost impenetrable mechanisms of denial, accustomed to hearing a single, reassuring, and definitive version of the facts -- societies that, in general, are not very open to changing their way of thinking about past events. Furthermore, commissions operate in times of extreme institutional and political complexity and major social instability, which make it very difficult to discover and, above all, to tell the truth. Their task is not easy: they are responsible for overcoming barriers to the discovery of the facts and for redeeming society from the reign of lies and oblivion. In spite of these difficulties, the commissions, together with the judicial proceedings, are effective instruments for establishing a n indisputable factual basis, above and beyond the differing interpretations.
On many occasions -- based either on an application of Max Weber's s ethics of responsibility or on the false argument that criminal cases are inspired by the desire for revenge -- influential Latin American and North American intellectuals have maintained that to ensure governance of the transition to democracy, those responsible for massive human rights violations should not be submitted to judicial proceedings. They have also declared their preference for the exclusive action of the truth commissions. The statement that truth promotes reconciliation while judicial proceedings are vindictive is conceptually and historically incorrect. In our view, it also cannot be proved empirically. The criminal action arose expressly to take the conflict out of the hands of the parties involved ("expropiacion del conflicto") so as to avoid revenge. Its institution is the result of the long road that humanity has traveled to process social conflicts rationally. Consequently, justice is not private revenge and criminal ju stice excludes revenge (Maier, 1996: 259; Osiel, 1995). We believe that the process whereby victims and their families are invited to be heard before a truth commission is fundamental to healing the wounds and changing the relationship that the state and society had with them before that time (Mendez, 1997a: 529). However, state responsibility obviously does not end there. Although knowledge and recognition of the truth are fundamental steps, they are insufficient. When revealed responsibly and impartially, the truth is an important step toward justice, provided it forms part of a global, comprehensive policy to overcome impunity and is not merely an attempt to exchange the right to justice for a report on what happened.
Although the Inter-American Commission has said that the truth should be discovered and revealed by "creating investigative commissions, whose integration and competence shall be determined in accordance with the corresponding domestic law of each country, or by granting the necessary means so that the Judiciary itself can undertake the necessary investigations,"  over 10 years passed before the judiciaries of the states of the Americas assumed their obligations regarding the right to truth. Although the actions of the courts have still not been completely satisfactory, today the right to truth is one of the most important issues in Latin America and significant steps have been taken, such as the discovery of the files of Stroessner's secret police in Paraguay or, in the case of Uruguay, the denunciation presented by Senator Rafael Michelini regarding the alleged clandestine burial of those who disappeared, following their execution. 
Argentina began to follow this route as of March 1995. Just when the discussion of what had happened during the anos de plomo finally seemed to have been buried under the laws of impunity and a presidential pardon, Argentine Navy Captain Adolfo Scilingo revealed, among other matters, how people were thrown alive into the sea from planes, giving new impetus to the discussion (Verbitsky, 1996). The former soldier's confession rekindled the climate of the early years of the return to democracy. This reopened discussion and prompted social indignation, accompanied by extensive mass media coverage. However, following the revelations, time passed and no official or institutional response was forthcoming.  Consequently, human rights organizations and victims, almost in reflex, resorted to the judiciary as the natural place to seek answers within the state structure. This also happened because, historically, the fight for human rights and against state terrorism in Argentina was closely linked to the behavior of the judiciary. Before it fell into apathy and ceased questioning the "political" decisions of the legislative and executive branches, the judiciary had been a protagonist in the prosecution and conviction of those who had violated human rights during the Argentine military dictatorship.
The relatives of the victims appeared before criminal courts on many occasions, invoking the right to truth of the families and of society, as well as the right to mourn.  During these appearances, they asserted that although it was not possible to file criminal charges against the military, this did not stand in the way of the right of the family to know the final whereabouts of their loved ones or of society to know the details of the state's methodology and structure for assassinating thousands of people. Unfortunately, the judiciary's initial reaction was very ambiguous, considering the significance of the issue.  Following some powerful decisions -- even though they were adopted by narrow majorities -- or opinions such as that of the Attorney General of the Nation in the Lapaco case  came decisions revealing an alarming juridical poverty that used vulgar court jargon to try to hide the scant inclination or fear of the officials to assume their responsibilities. 
The issue of the right to truth reached the Supreme Court of Justice and, in August 1998, by a majority of five votes to four, in two paragraphs, it rejected a mother's possibility of seeking information -- through the regular criminal process -- about her daughter, who had disappeared after having been detained and kept in a clandestine detention center belonging to the army.  Because of this poorly argued and erroneous decision, the Tribunal was harshly criticized by almost all sectors of society. Two months later, in October, the same Court surprisingly and unanimously established the right of families to know the truth and, with the aid of the courts, to seek information from any state agency about the circumstances surrounding the death of those who had disappeared and the whereabouts of their remains.  In this case, the recognition of the right to an individualized truth, which would seem to follow from this decision, was the consequence of bringing an action of habeas data under administrative law before the courts. However, a minority of four judges declared themselves in favor of the merits of the application for amparo (protection) as the most suitable way to achieve the same objective.
In brief, the present status of the issue in Argentina may be summarized as follows: all the judges of the Supreme Court of Justice have recognized that the relatives' right to truth is a right protected by the national constitution and international human rights conventions and that such a right is enforceable by the courts. Five of the judges indicated that habeas data was the suitable procedure and stood against the use of a criminal action in relation to the right to the truth. A minority of four judges declared themselves in favor of all types of procedures, including criminal actions, but also applications for amparo. The chosen procedure could be criticized because both amparo and habeas data are very restrictive, although, admittedly, the Urteaga ruling makes it plain that both instruments shall be interpreted very broadly. In any case, it is certain that the Supreme Court's decision recognizing the right to truth settles the discussion that started three years ago. The state has accepted that it owe s both the general population and the victims information on what happened in the past and that it has the chief responsibility for telling the truth. It is significant that, in reaching this landmark ruling, both the Supreme Court and lower appellate tribunals have profusely cited precedents from the Inter-American Commission and the Inter-American Court. From now on, when it comes to serious human rights crimes, the state must respond to five basic questions that society asks: who, where, when, how, and why.
The Right to Reparation
Just as domestic law recognizes the legal principle that any damage must be remedied, it is a principle of international law that any violation of an international obligation that results in harm creates a duty to make adequate reparation.  This principle is contained in the American Convention, which establishes that if there has been a violation, the state responsible must guarantee that the injured party is ensured the enjoyment of his or her right or freedom that was violated, remedy the consequences, and provide fair compensation. 
Mr. Theo Van Boven, the United Nations Special Rapporteur for Restitution, Compensation, and Rehabilitation for Victims of Gross Violations of Human Rights, of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, has stated that there are different forms of reparation. Restitution must reestablish the victim's situation before the violation, insofar as is possible; this is effected by the recovery of freedom, employment, possessions, and so forth. Compensation is granted in relation to any damages caused by the violation that can be evaluated in monetary terms (physical or mental injury, pain, psychological suffering, loss of opportunities, loss of income, medical expenses, loss of profits, expenses and fees for legal assistance, etc.). Rehabilitation consists in the integral legal, medical, and psychological attention and any other measure to reestablish the dignity and reputation of the victim. Last, the satisfaction and guarantee of nonrepetition, the fourth form of remedy, inc ludes, among other measures, the cessation of current violations, verification of the facts and the complete public revelation of the truth, an apology, public recognition of the facts and acceptance of responsibility, prosecution of those responsible, tributes and memorial ceremonies for the victims, limitation of the competence of the military courts, and a guarantee of the independence of the judiciary (Van Boven, 1993).
The integral and full remedy that the American Convention requires evidently encompasses components of these four forms and cannot be reduced merely to compensation. The practical consequence of the latter would be highly disadvantageous for the effective exercise of human rights, as states could maintain their impunity in exchange for money; the text of the San Jose Convention expressly eliminated this. It is precisely the form of reparation that constitutes a distinctive characteristic of our system with respect to its European equivalent. If the latter verifies that a violation can be attributed to a state party, it establishes the opportunity and scope of the reparation in a much more restricted way by stating that "... if the party's domestic law does not allow the consequences of the decision or measure to be entirely eliminated, the Tribunal's decision will grant, if applicable, reasonable satisfaction to the injured party." The European Court interprets this provision as allowing it to exercise its d iscretion as to whether to impose damages. 
Likewise, the Inter-American Court has repeatedly said that all aspects of the obligation to make reparations required by international tribunals are governed by international law, including the scope, nature, method, and determination of the beneficiaries, and cannot be modified by the state invoking the provisions of domestic law.  In accordance with these principles, in some cases the Inter-American Court fully understood the content that a remedy should have in light of the American Convention and international law and was creative. In Aloboetoe v. Surinam, the court required that compensation should be paid to the families of the victims who were members of an indigenous community, without taking into account national laws on family and inheritance. It also required that a foundation be created to administer funds for remedies that would benefit the whole community, not merely the most direct victims: open a school and reequip a clinic that had been destroyed in the army's suppression of dissent in that community.
However, much needs to be done regarding the court's decisions on reparation. First, it has not developed consistent jurisprudence on nonmonetary remedies. In particular, the court has been neither very courageous nor receptive to the Commission's petitions, as regards measures for rehabilitation and satisfaction and guarantee of nonrepetition. Among other measures, the Commission has requested that the State concerned should be required to revise its domestic legislation, take all measures necessary to locate the bodies of victims, grant special attention and economic support to various institutions, create foundations to promote and provide information on human rights in the zone where the violations occurred, develop programs for promoting and providing information on human rights, accept responsibility and present apologies publicly to the relatives of the victims, and so on.  Thus, an issue of considerable importance for the hemisphere and one that, despite the Commission's petitions, has not receiv ed a conclusive reply from the court, is the conscientious and in-depth revision of military legislation establishing military jurisdiction and its compatibility with the purpose and aim of the American Convention. 
Second, a discouraging trend has arisen from some of the court's decisions in cases when states do not dispute the facts and accept their international responsibility. The San Jose court appears to "reward" the state, rejecting the nonmonetary measures of remedy requested by the Commission, because it considers that the guilty verdict pronounced by the court and the state's recognition "constitute adequate reparation and it would not be in order to decide further reparation."  Evidently, this is a dogmatic affirmation that dangerously fails to comply with the main intention of a guilty verdict, which is to bind the state, by all means within its reach, not to repeat a similar violation, as acceptance of responsibility and payment of a sum of money is insufficient to prevent new violations. Although we believe that the judgment itself is an essential contribution to rehabilitation, it is insufficient and represents a partial measure, so that decisions such as those mentioned do not comply with the princip le of integral remedy required by the Convention.
To conclude this overview, and concerning adequate compensation, the meager amounts recognized for the victims in some of the most recent decisions of the court are a matter of some concern.  The practice regarding court costs is also disturbing; the court has maintained a constant position on this aspect, deciding not to impose costs on convicted states. The only explanation provided for the court's refusal to recognize the costs of the proceedings is the repetition of the phrase "Member States pay for the operation of the bodies of the Inter-American system with their annual quota." This might be valid for the Commission when it acts as a party in a contested case, but even then it is not very persuasive. Representatives of the victims are not supported by the OAS and almost invariably they contribute not only the work and travel costs of the attorneys, but also those of most witnesses. It would seem that the court should establish its refusal to impose costs on the losing party on more solid grounds, a s it departs from an essential legal principle: the party who loses should pay the costs of the proceedings.  If a state causes a damage to a person, it is logical that the expenses that the injured person must incur to reestablish his right or freedom that has been violated should be paid by it or come out of its treasury. Apparently, the court proceeds politically by not imposing costs on the states. If the fear of imposing costs is that this would alienate states from the system, it would appear to be unfounded. This reasoning falls into an error of logic: it is presumed that sentences and, in particular, compensation orders would alienate states from the system, and this has not occurred.  Evidently, this position greatly limits the victims' access to the inter-American system for the protection of human rights, as very few have the economic resources needed to assume the expenses of international proceedings or can rely on the free support of organizations specializing in litigating before the bo dies of the system. The victims and their representatives must cover all their costs and this is a formidable obstacle to the effective protection of human rights and the fight against impunity. 
The Obligation to Purge the Armed and Security Forces of Undesirable Elements
Last, but not least, the state has the obligation to purge its police and military forces, and other organizations, of those who have taken part in human rights violations.  Although it is a basic principle that the state should not protect or maintain in its service the perpetrators of atrocious crimes, it is not easy to put this into practice in our hemisphere. Thus, Latin America is plagued with cases in which members of the police or armed forces charged with terrible human rights violations not only continue to exercise their functions, but also are rewarded and promoted within their respective institutions. Even today, at the end of the century, this situation persists with amazing regularity. For example, in Peru a soldier found responsible for the Accomarca violations and assassinations was promoted to a higher military rank. This also happened in the case of several of the principal suspects of the assassination of 20 workers in the Department of Uraba, Colombia; besides being promoted, one of t hem was sent on a training course to the United States. In Argentina, the Center for Social and Legal Studies (Centro de Estudios Legales y Sociales, CELS) continually contests the list of promotions proposed by the executive to the Senate for officers reaching the rank of colonel or its equivalents. 
Unlike the three obligations noted above, the state's obligation to purge its police and armed forces and subject them to the rule of law benefits society almost exclusively, and then the victim (Mendez, 1997a). Moreover, this obligation is closely related to the right to justice, which requires the state to pursue and punish those responsible for human rights violations; if criminal conviction and punishment were enforced, purging would be the natural consequence. Despite this close linkage and the fact that the obligation to purge acquires special relevance when there is an absence of punishment, we should not forget that it is an autonomous obligation. In other words, even when it is impossible to punish those responsible for human rights violations, due to amnesties or pardons or for any other motive, the state still has the obligation to dismiss them from its service.
Although from some points of view this dismissal can be considered a punishment, the punitive element is not the essential factor; rather, the reason for purging is to be found in the state's obligation to prevent and avoid new human rights violations. This justification is clearly explained in the words of the Inter-American Court:
The duty of prevention encompasses all measures of a legal, political, administrative, and cultural nature that promote the protection of human rights.... It is not possible to make a detailed list of these measures, which vary according to the right referred to and according to the specific circumstances of each State party.... But, on the other hand, it is evident that submitting people who have been detained to official repressive forces who practice torture and assassination with impunity, is, in itself, an infraction of the duty of prevention of violations of rights to physical integrity and to life, even assuming that any given individual may not have suffered tortures or may not have been assassinated.... 
If we interpret what the court has said literally and logically, we can conclude that states parties incur international responsibility for infringement of the right of prevention if they submit people who have been detained to institutions that maintain agents who carry out or have carried out torture and assassination with impunity in their ranks. 
The United Nations Commission on Human Rights' Special Rapporteur on Impunity has reached a similar conclusion, emphasizing the preventive effect, and has specifically mentioned purging as a guarantee that violations would not be repeated:
Given that the same causes produce the same effects, three measures are needed to avoid victims again being the object of violations that harm their dignity.... (c) dismissal of the senior officials involved in the serious violations that have been committed. This should be considered an administrative rather than a repressive measure, because it is of a preventive nature and the official must be able to benefit from guarantees (Joinet, 1997).
These documents leave no doubt about the state's obligation in this area. Furthermore, consolidating this responsibility, the U.N. Human Rights Committee has consistently urged the states parties to purge their different agencies, stating forcibly and repeatedly that a major motive for concern is the continuing presence of state agents implicated in human rights violations in active duty in those forces. Among other cases, it made such declarations regarding Argentina, Paraguay, Haiti, and, more recently, Bolivia:
The Committee declares its concern about the continuation of torture and mistreatment of prisoners, even after the reestablishment of democracy in 1989. In this respect, the Committee is concerned about the permanence of officials linked to and engaged in the authoritarian practices of the former regime. 
The case of Argentina illustrates what we have said about perpetrators who not only are not excluded, but also about the civilian authorities who nominate them and insist on promoting them within the military ranks: 
the Committee regrets that even though, in some cases, the proof presented to the Senate against members of the armed forces showing that they have taken part in out-of-court executions, forced disappearances, torture, and other human rights violations can impede the promotion of those accused, it is not in itself cause for their dismissal. 
Furthermore, the Committee rightly extended the obligation to purge to additional spheres, such as the judiciary and other public organizations whose officials have been implicated in injustices:
the Committee is concerned that the transition to safety and democracy may be considerably weakened if the violators of human rights are not investigated in order to exclude them from the military, the police force, and the judiciary.
Consequently, in this case (Haiti), the U.N. Human Rights Committee earnestly recommended that the Commission for Truth and Justice initiate its work as soon as possible and that other mechanisms be established and empowered to investigate the human rights violations carried out by the members of the police, the armed forces and other security services, and also by the judiciary to guarantee that those people who were closely linked to human rights abuses should not work for these institutions. 
Likewise, and generalizing the duty to purge in the case of Bolivia, the Committee:
...also observes that the members of the armed forces and other public officials who took part in the most serious human rights violations have not always been dismissed and continue in their positions, which reinforces impunity within the State Party.... 
As we have shown with these cases, and also with the decisions of the Committee on Human Rights, Latin American states unfortunately cannot be considered examples in regard to purging their agents who have been implicated in human rights violations. Fear or a lack of conviction by democratic leaders, together with a misunderstood esprit de corps within the institutions involved, have proved insurmountable obstacles to accomplishing this task. Thus, until now there have been no systematic, institutionalized experiences, with preestablished procedures and standards (including, evidently, regulation of the official's guarantees, subject to the administrative procedure). To the contrary, exceptional cases of dismissal have been in response exclusively to the reactions of human rights organizations and the pressure of public opinion.
A highly notable exception was the purge of more than one hundred army officers in El Salvador, many of the highest ranks, that took place after the Peace Accords brokered by the U.N. instituted an "Ad Hoc Commission" of three Salvadoran citizens who examined their records. Except for this and a few other cases, however, the Latin American record in this regard is so poor that we need to outline a legal procedure for the administrative dismissal of agents who are implicated in human rights violations, if criminal sanctions are not available.  If not, the state's international liability will be at stake.
The preceding pages convey a sense of a rapidly expanding spectrum of norms in international law, applicable to the response by states to legacies of gross violations of human rights. As our summary review indicates, there are areas that have not yet been appropriately treated by international treaty bodies. Since the question of accountability is demonstrably a very live issue in our region, it is to be expected that the Commission and the court will have to hear cases and arguments about it in the near future. We hope that some of the vacuums mentioned above will be filled, and that some of the unfortunate decisions (especially by the court on the matter of reparations) will be corrected. For that to happen, the Latin American human rights movement will have to make a concerted effort to continue to bring cases of this sort to the organs of the inter-American system of protection.
JUAN MIENDEZ, a lawyer and professor of Law born in Argentina, is Executive Director of the Inter-American Institute on Human Rights in San Jose, Costa Rica and is currently at the Center for Human Rights (145 Notre Dame Law School, University of Notre Dame, Notre Dame, IN 46556). In June 1999, Mendez was elected a member of the Inter-American Commission of Human Rights of the Organization of American States. JAVIER MARIEZCURRENA, also an Argentine lawyer, is Staff Attorney of the Inter-American Institute on Human Rights (IIDH, A.P. 10.081--1000, San Jose, Costa Rica, e-mail:email@example.com) and has served as a consultant for the U.N. mission MINUGUA in Guatemala.
(1.) Article 6.5, Protocol II Additional to the Geneva Conventions of 1949 (1977), in regard to conflicts not of an international character.
(2.) Decree Law 26.479, June 14, 1995.
(3.) For details of amnesty and pseudo amnesty laws in Latin America, see Norris (1992).
(4.) Mendez (1997a); see also Orentlicher (n.d., 1994), Roht-Arriaza (1995), and Joinet (1997).
(5.) Inter-American Court on Human Rights, Velasquez Rodriguez, Judgment on the Merits, July 29, 1988.
(6.) Declarations of the General Assembly of the United Nations and of the Organization of American States, cited at par. 151, 152, and 153.
(7.) See Velasquez Rodriguez, par. 158 et seq.
(8.) Obiter dictum: words of an opinion entirely unnecessary for the decision of the case (Noels v. Olds. 78, USA App. D.C. 155, 138, F. 2d. 581, 586). A remark made, or opinion expressed, by a judge, in his decision upon a cause, "by the way," that is, incidentally or collaterally, and not directly upon the question before him, or upon a point not necessarily involved in the determination of the case, or introduced by way of illustration or analogy or argument. In U.S. law, such statements are not binding as precedent (Black's Law Dictionary, 6th edition, West Publishing Co., 1992).
(9.) Report 36/96 in Annual Report of the Inter-American Commission on Human Rights, 1996 (1997: 162 of the Spanish version).
(10.) Annual Report of the Inter-American Commission on Human Rights, 1985-1986(1987:205 of the Spanish version).
(11.) Annual Report of the Inter American Commission on Human Rights, 1992 (1993:42 and 162 of the Spanish version).
(12.) Van Boven (1993); see also Joinet (1997).
(13.) UNHRC, Case 107/1981, Elena Quinteros Almeida v. Uruguay. Also, Report of the Committee on Human Rights, Volume I, General Assembly, Official Documents, Fiftieth Session, Supplement No.40 (A/50/40) Argentina, par. 153; Paraguay par. 200; Haiti, par. 230. Also, Report of the Committee on Human Rights, Volume I, General Assembly, Official Documents, Fifty-first Session, Supplement No. 40 (A/51/40), Peru, par. 347.
(14.) CCPR/C/79/Add.46, adopted at Meeting No. 1411, Fifty-third Session, April 5, 1995, Item 10.
(15.) ECHR, Aksoy v. Turkey, Judgment of December 18, 1996.
(16.) See Note 10.
(17.) Velasquez Rodriguez case, cit. par. 181; in the same sense, the Castillo Paez case, judgment of November 3, 1997, par. 90. In this case, the Commission invoked specifically that the state violated the right to truth. Nevertheless, the court said:
the second argument refers to the formulation of a right that does not exist in the American Convention, although it may correspond to a concept that is being developed in doctrine and case law, which has already been disposed of in this Case through the Court's decision to establish Peru's obligation to investigate the events that produced the violations of the American Convention (par. 86).
(18.) Annual Report of the Inter-American Commission on Human Rights, 1985-1986(1987:205 of the Spanish version).
(19.) Rettig Report (1991). This Commission was set up almost as an alternative to discovering the truth, which the courts were deemed not empowered to do:
...it was not possible to expect that the global truth of what happened as regards human rights violations could be discovered within a reasonable period of time, due to the nature of the judicial proceedings, which, of necessity, were confined to the specific situation of each trial and frequently too slow. Convinced that the delay in clarifying this truth would contribute to perturbing the internal situation, we wished to find an alternative that, without bringing each specific case to trial, would allow the national community to form a collective, reliable, and well-founded idea of what happened as regards the grave human rights violations committed during the dictatorship (Aylwin, 1996: 40).
(20.) Velasquez Rodriguez case.
(21.) For details of the problems faced by this Commission, see Buergenthal (1996).
(22.) Uruguay, which still cannot be said to have established a real truth commission, followed the same route. The only Uruguayan experiences in this matter consists of the fairly fruitless work of the two parliamentary commissions that reported on 164 cases of Uruguayan citizens who had disappeared and on the assassination of two former legislators. Neither case came to "a decisive conclusion," according to Michelini (1996: 160).
(23.) Annual Report, 1985-1986 (1987: 205).
(24.) In this case, Judge Reyes has allowed the petition based on the Inter-American Convention on Forced Disappearance of Fersons, together with Uruguayan domestic law, which prohibits invoking exceptional circumstances to violate commitments assumed under the Convention.
(25.) Judicial officials were not alone in remaining silent. With few exceptions, it was extremely noticeable that the political class preferred silence. Considerable time passed before, in April of that year, the head of the Argentine army, General MartinBalza, gave his famous speech in which, on behalf of the army, he asked the nation's forgiveness for the atrocities committed during the illegal repression.
(26.) For further details of these presentations, see Abregu (1996).
(27.) Due to its importance, Human Rights Watch/Americas and the Center for Justice and International Law (CEJIL) appeared in the proceedings as amid curiae. See Case 761, Hechos ocurridos en el ambito de Ia Escuela de Mecdnica de la Armada -- ESMA -- known as the Esma case or Mignone case.
(28.) Aguiar de Lapaco, Carmen, s/Recurso Extraordinario (case No.450) Dictamen S.C.S. 1085, L.XXXI, of May 8, 1997. The original filing of Carmen Aguiar de Lapaco was made as an incident at a proceeding within the so-called Sudrez Mason case (No. 450, "Suarez Mason, Carlos Guillerino: homicide, illegal arrest, etc.") that covered all "dirty war" crimes in the city of Buenos Aires, Buenos Aires Province, and La Pampa Province.
(29.) Among the clearest examples are the majority decisions of the Federal Criminal and Correctional Court of Appeals for Buenos Aires in both the Mignone and Lapaco cases. Following contradictory arguments, these decisions establish "prosigan los autos segun su estado" (the process should continue according to its status), an unprecedented and meaningless legal formula (see Abregd, 1996: 34).
(30.) Lapaco case, Supreme Court of Argentina, judgment of August 13, 1998.
(31.) Urteaga case, Supreme Court of Argentina, judgment of October 15, 1998.
(32.) Veldsquez Rodriguez case, compensatory damages, Judgment of July 21,1989, page 25; Barcelona Traction case, I.C.J. Reports 1970, Factory at Chorzow, Jurisdiction, Judgment No. 8, 1927, P.C.I.J. Series A, No.9, page 2l; Factory at Chorzow, Merits, Judgment No. 13,1928, P.I.C.J. Series A, No. 17, page 29; Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, LC.J. Reports (1949: 184).
(33.) American Convention on Human Rights, Article 63.1.
(34.) European Convention, Article 50. In McCann v. United Kingdom, by 10 votes to 9, the European Court found that British agents had killed three unarmed members of the Irish Republican Army (IRA) in Gibraltar in an excessive use of force, but refused to impose a remedy, apparently because the IRA militants were undoubtedly in Gibraltar to prepare violent acts. In our opinion, the wording of the American Convention is clear in this respect and, consequently, the Inter-American Court does not have discretion in this regard (American Convention on Human Rights, Article 63.1).
(35.) Inter-American Court, Caballero Delgado and Santana case, Reparations, Judgment of January 29, 1997, Aloebo etoe and others case, Reparations, par. 44; El Amparo, Reparations, par. 15, among others.
(36.) Caballero Delgado and Santana case, cit. par. 20 and 21.
(37.) El Amparo, cit. par. 52 and Genie Lacayo cases, Judgment of January 29, 1997 (the Commission's petitions on military legislation are set forth in par. 11 and 53, among other places, while the position of the court appears in par. 82 and following).
(38.) Caballero Delgado and Santana, Reparations, par. 58 and, in the same sense, El Amparo, Reparations, par. 62 "as for the other nonmonetary remedies that the Commission requested, the Court believes that Venezuela's recognition of responsibility, the judgment on the merit of the case...and this judgment pronounced by this Court, constitute, per se, adequate reparation."
(39.) For example, in Veladsquez and Godinez, Honduras was ordered to pay the equivtilent of $300,000 for each desaparecido. In contrast, in El Amparo, Venezuela had to pay around $45,000 to $50,000 for each fisherman killed by the army; in Neira Alegria, Peru paid around $50,000 for each inmate killed; in Caballero Delgado, Colombia paid $70,000 to his family. In Genie Lacayo, Nicaragua paid $20,000 to the family of the young man killed by the army.
(40.) Likewise, in general, all legislation recognizes the possibility of departing from this principle and attributing half the expenses to each party costs "por su orden" (to each according to his costs), or "por el orden causado  (to each according to the costs he has occasioned), or different percentages for each party, taking into account their procedural actions and behavior. Consequently, court costs would also contribute to regulating the procedural conduct of the parties to the proceedings.
(41.) On the contrary, governments that wish to leave the inter-American system of protection or that do not wish to recognize the legal competence of the court(such as Peru, Guatemala, and the United States) have done so for ideological reasons; for example, they favor a broad application of the death penalty.
(42.) Recently this practice seems to have changed. From the Garrido and Baigorria case (judgment of August27, 1998), the court has established that the states involved should pay expenses that victims incur when presenting a case before the organs of the inter-American system.
(43.) We use the extensive concept of participation, as used in criminal law, which includes any type of participation as mediate authorship, material, primary, and secondary complicity, and instigation (Stratenwerth, 1982).
(44.) More cases and further details are in Ambos (1997:49); for Argentina, see CELS Bulletins.
(45.) Inter-American Court on Human Rights, Velasquez Rodriguez case, par. 175 (emphasis added).
(46.) Furthermore, we should remember that the state is obliged to ensure the free and full exercise of all human rights and to this end should organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. Because of this obligation, states must prevent, investigate, and punish any violation of the rights recognized by the Convention and, moreover, if possible, attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation. "These, evidently, include the police and armed forces. As the Court has pointed out, this obligation is not exhausted by the existence of a regulation, but includes the need for government conduct that ensures the actual existence of an effective guarantee for the free and full exercise of human rights" ( Velasquez Rodrigues, par. 166 and 167).
(47.) Report of the Committee on Human Rights, Volume I, General Assembly, Official Documents, Fiftieth Session, Supplement No. 40 (A150/40), Paraguay, par. 206 (page 40 of the Spanish version).
(48.) President Menem firmly promoted the appointment of perpetrators of human rights violations, using the argument that he had been a victim of the military dictatorship and had forgiven them, as if his individual feelings should be relevant at an institutional level. On the lack of legal or logical validity of this type of argument and the serious ethical error that is implied by believing that one has the right to replace the victim's decision to forgive, see Mendez (1997b); see also Adam Michnik, as quoted in Neier (1998: 61).
(49.) Report of the Committee of Human Rights, Argentina, par. 154 of the Spanish version.
(50.) Report, Haiti, par. 232 and 236.
(51.) Report, par. 205, 38.
(52) An excellent basis on which to begin this discussion of procedure could be Principles 40, 41, and 42 of the Special Rapporteur's report on impunity mentioned above.
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