Transitional Justice: When Justice Strikes Back - Case Studies of Delayed Justice in Argentina and South Korea

Article excerpt

   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. …

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