The Instruction of Great Catastrophe: Truth Commissions, National History, and State Formation in Argentina, Chile, and Guatemala

Truth commissions are curious, contradictory bodies.[1] They often raise hope of justice symbolized by the Nuremberg Trials yet operate within the impoverished political possibilities that exist throughout much of the post-Cold War world. They are rarely accompanied by prosecutions and often do not have the authority to subpoena or sanction. Rather than serving as instruments of justice, their value is seen, in the words of the South African Truth and Reconciliation Commission, in their ability to construct a “historic bridge” between “a deeply divided past of untold suffering” and a “future founded on the recognition of human rights.”[2] Over the last two decades, truth commissions have been established in, among other places, Ghana, Nigeria, Chad, East Germany, and East Timor, where, it is commonly asserted, they marked the border between what those societies were—intolerant, fevered, arbitrary—and what they hope they have become—peaceful, impartial, protective.

Yet before being adopted as a universal rite to solemnize the distinction between political liberalism and diverse forms of violent, unrepresentative regimes, official inquiries, what came to be generally known as “truth commissions,” into human rights abuses indexed a unique moment in Latin American history, as the decline of socialist movements crossed paths with ascendant efforts to consolidate liberal constitutional rule. Often portrayed as a “transition to democracy,” Latin America’s move away from military dictatorships in the 1980s was less a transition than it was a conversion to a particular definition of democracy. In the decades after World War II, there prevailed throughout the continent a social understanding of the term, described by Leslie Bethell and Ian Roxborough as entailing a “commitment to popular, more particularly working-class participation in politics, and social and economic improvements for the poorer sections of the population.”[3] By the 1960s, the violent suppression of the mass movements that stood behind this definition gave way to, on the one hand, militant, often armed, efforts, such as the Cuban Revolution, to restructure economic and social relations and, on the other, repressive anticommunist dictatorships that came to rule much of the continent. Beginning in the early 1980s and continuing over the next decade and a half, one country after another emerged from this cycle of crisis politics not only through a return to constitutionalism but also by abandoning social-democratic principles of development and welfare, opening up their economies to the world market, and narrowing their conception of democracy to focus more precisely on political and legal rights rather than on social ones.[4]

First instituted in Bolivia in 1982 with the modest Comisión Nacional de Desaparecidos and in Argentina in 1983 with the more extensive Comisión Nacional sobre la Desaparición de Personas, state-sanctioned investigations into past episodes of political terror were one part of this transition’s agenda to cultivate a notion of liberal citizenship that viewed the state not as a potential executor of social justice but as an arbiter of legal disputes and protector of individual rights. In their initial formulations in Bolivia and Argentina, truth commissions were to be supplemented with prosecutions of at least the worst atrocities. Yet in most countries, the military and its allies emerged victorious from the counterinsurgent wars of the 1970s and 1980s, disinclined to give up their self-assigned immunity. This intransigence brought about a shift in the logic that justified truth commissions, which moved their work out of the legal arena into the realms of ethics and emotions. Efforts to get at the “truth” of past episodes of political violence would have two functions, as José Zalaquett, a Chilean law professor who would go on to play an important role in Chile’s Comisión Nacional de Verdad y Reconciliación, argued in 1988. They would, first, repair the psychic damage caused by repression and, second, prevent such repression from occurring in the future. These two goals were said to be mutually dependent, in that officially sanctioned inquiries into the past, followed by public acceptance of the conclusions of those inquiries, would not only heal wounds but also help lay the foundation of liberal tolerance and thus prevent future transgressions. “The truth in itself is both reparation and prevention,” Zalaquett believed.[5]

Truth commissions therefore, while technically charged with examining the specifics of individual acts of violence according to accepted norms of national and international jurisprudence, came in fact to be concerned with the larger historical meaning of collective political repression.[6] Their final reports distill a violent past into a manageable, lucid story, one that portrays terror as an inversion of a democratic society, a nightmarish alternative of what lies ahead if it does not abide by constitutional rules. Yet the jurists who designed Latin America’s first truth commissions approached historical interpretation with ambivalence, overtly denying, covertly embracing its import. As political liberals, they were suspicious of any effort to impose, softly or severely, a universal conception of the common good or to use history to justify militancy. Their liberalism demanded an acceptance of plural interpretations of the past.[7] But they also argued that a dramatic affirmation of liberal values was needed in order to prevent recurrences of state violence or institutional breakdown and they often turned to the past in order to define these values. Truth commissions therefore had to deal with history, but, being largely run by lawyers, they were concerned that too close an attention to realms of human activity comfortably associated with historical inquiry—an examination, say, of economic interests and collective movements, or the unequal distribution of power in society—might grant moral pardons or inflame political passions.[8] In most truth commissions, history was not presented as a network of causal social and cultural relations but rather as a dark backdrop on which to contrast the light of tolerance and self-restraint.

In other words, truth commissions, by presenting an interpretation of history as parable rather than as politics, largely denied the conditions that brought them into being. In Latin America, this meant portraying terror not as an extension of a reactive campaign against social-democratic nationalist projects, nor as an essential element in the consolidation of a new neoliberal order, but as a breakdown of social relations, as but one more instance in a repetitive cycle of “interruptions in democratic rule” that had taken place since independence in the early nineteenth century.[9] As such, truth commissions serve as modern-day instruments in the creation of nationalism and embody what Benedict Anderson describes as nationalism’s enabling paradox: the need to forget acts of violence central to state formation that can never be forgotten. Among such acts, Anderson lists the Saint Bartholomew’s Day and Paris Commune massacres in France, and, in the United States, the Civil War and the annihilation of Native Americans. To this inventory could be added the hundreds of thousands of individuals murdered, “disappeared,” or tortured during Latin America’s “dirty wars” of the 1970s and 1980s, victims of campaigns that put to a provisional end political conflicts and ideological debates over how society should be organized, particularly those concerning the relationship of the citizen to the state.[10] While such violence is an essential component of state consolidation, in order to serve the purpose of nationalism, it needs to be ritualized, as Anderson puts it, “remembered/forgotten as ‘our own.'”[11] The jurists who designed Latin America’s transition to democracy drew ethical instruction from violence in toto, but they refused, despite the protests of victims and their families, to sanction the collective political projects that were defeated by the violence.

This essay examines the role truth commissions play in “remembering/forgetting” exemplary terror, focusing on three examples, Argentina, Chile, and Guatemala. The evolution in the way that each approached the past emerged from, and thus revealed, the limits of the assumptions that underwrote Latin America’s turn toward constitutional rule and free-market policies, particularly assumptions regarding the relationship of violence to nationalism, state formation, and democratic rule. In the first instance, the intellectuals who designed Argentina’s post dictatorship human rights policy, while understanding political violence to be rooted in psychological and cultural patterns deeply entrenched in national history, refrained from making any historical judgment in either the trials or in the final report of the Comisión Nacional sobre la Desaparición de Personas (CONADEP). Criminal proceedings, it was believed, would serve as an alternative to dealing directly with the past, as their transparency and impartiality would contrast with the darkness and arbitrariness of the dictatorship years. In Chile, the second case, where the power of the military foreclosed the possibility of prosecutions, the Comisión Nacional de Verdad y Reconciliación had to confront history more explicitly. Yet the burden of reconciliation, which was now understood as the commission’s primary mandate as reflected in its title, demands a conception of history that takes national cohesion as its starting premise and posits violence as resulting from the dissolution of that unity. The commission’s final report, therefore, narrated the conflict leading to the 1973 coup that ended Chilean democracy and initiated Augusto Pinochet’s seventeen-year reign as resulting from an unraveling of the institutional and normative protections that bind society together. While the institutional repression that followed the coup was subject to scrutiny, the coup itself was redeemed as a tragic but necessary intervention that prevented complete national collapse. Finally, in Guatemala, the Comisión para el Esclarecimiento Histórico (CEH), which released its final report in 1999, operated in an even more constricted political terrain than its predecessors. Deep social divisions destroyed the conceit that either the past could be healed or future abuses prevented by appeals to national reconciliation. The commission likewise found the procedures used by previous truth commissions insufficient to account for the intensity of the violence that took place during a more than three-decade long civil war, which included an acute two-year phase of violence against Mayans that the commission ruled to be genocidal. The commission turned more fully to causal history to break out of this impasse. While it did posit authoritarianism, expressed in a virulent strain of racism, as propelling the violence, it situated this variable within a larger political economic framework and examined its radicalization in light of the imperatives of civil war. In so doing, it produced an analysis that understood terror not as a result of state decomposition, a failure of the institutions and morals that guarantee rights and afford protection, but rather as a component of state formation, as the foundation of the military’s plan of national stabilization through a return to constitutional rule.[12]

Following its defeat by England in the Malvinas War of 1982, the disgraced Argentine military gave up power after six years of rule based on political terror.[13] Even before his 1983 election, Raúl Alfonsín, of the center-left Unión Cívica Radical, convened a human rights kitchen cabinet of intellectuals, drawn mostly from the law school and philosophy department of the University of Buenos Aires, to plan the policy he would follow to address the violence of the past regime.[14] After taking office, Alfonsín and his advisors, the most influential of whom were law professors Carlos Nino and Jaime Malamud-Goti, designed a legal strategy that attempted to reconcile a number of concerns: the need to respond to the demands, backed by large, vociferous street demonstrations, for justice; the desire not to provoke the still-powerful military high command; and their own understanding of the function of criminal jurisprudence in a liberal society.[15] In the first formulations of human rights policy by these politician-scholars, the establishment of a truth commission was part of a larger strategy that was to include prosecutions. They did not believe, as many later came to accept, that the quest for punishment had to be weighed against the search for truth. Although the new government insisted on the need to limit the scope of prosecutions, trials were nonetheless essential to their primary goal of preventing a return to military and repressive rule.[16] In setting their human rights agenda, Alfonsín and his advisors drew heavily from ethical social theory influenced by Emile Durkheim. Legal procedures, in their view, were more than agreed-upon rules to settle unavoidable conflicts. Rather, they formalized a common social cohesion, a cohesion that would strengthen and be strengthened by the application of liberal democratic procedures.[17] Nino argued that the prosecution of military officials was required “in order to inculcate in the collective conscience and in the consciences of the groups concerned that no sector of the population stands above the law.”[18] Trials would contrast the openness and fairness of liberalism with the secrecy and impunity of authoritarianism, thus building support for democracy. The establishment of a commission of inquiry was to be an important first step in the eliciting of public support for criminal prosecutions: it would establish the scope and institutional responsibility for atrocities, prepare preliminary cases for indictment, and help families of victims learn the fate of their disappeared relatives.

Alfonsín announced the formation of the Comisión Nacional sobre la Desaparición de Personas (CONADEP) within days of his inauguration. While indictments and trials were to be limited to those who either ordered the repression or conducted it with excessive cruelty—exempting lower level officers and soldiers who strictly obeyed orders—CONADEP was to provide a full as possible account of “disappearances,” the military’s preferred method of disposing of perceived enemies. Between December 1983 and September 1984, the commission collected thousands of testimonies and visited hundreds of detention and torture centers and clandestine graves. CONADEP presented its final report in November, documenting the disappearance of 8,960 Argentines but predicted that that number would rise with further investigation.[19] At the end of its work, the commission handed 1,086 cases to the judiciary and recommended that the government create a permanent office to continue filing cases in the courts.

While Nunca Más (Never Again), as the published version of CONADEP’s report was called, made no attempt to place political disappearances within a historical context, history was very much on the minds of the people who conceived the commission. In response to the spread, starting in the late 1960s, of military regimes throughout the continent, southern cone social scientists began to elaborate an analytical framework influenced by both Weberian sociology and Marxism to explain Latin America’s seemingly chronic resort to military dictatorships. Scholars such as Argentina’s Guillermo O’Donnell and Brazil’s Fernando Henrique Cardoso focused on the political and economic variables that contributed to patterns of bureaucratization along strongly authoritarian, militaristic lines.[20] Transitional-justice intellectuals borrowed from this framework yet departed from its institutional and economic focus to stress instead psychological disruptions supposedly caused by the modernization of social relations. Malamud-Goti, for example, argued that political violence erupted from a “dictatorial mind” chronic to Argentine history.[21] Nino, especially influenced by Durkheim and his concept of anomie to describe how the corrosion of social institutions by the forces of modernization led to a psychological tolerance of authoritarianism, identified a number of psychic or ideational factors to explain Argentina’s descent into terror: “ideological dualism” led to a clash between secular, universal liberalism and “closed, organic” conservatism; a tendency toward “corporatism” invested the Catholic Church, the armed forces, and business groups with an inordinate amount of power; “anomie” contributed to a “disregard for social norms, including the law.”[22] In his public pronouncements, Alfonsín invoked similarly tautological explanations to account for the violence that took place during the previous regime.[23]

The post-junta government designed a human rights policy aimed at breaking these historically rooted “insidious cultural patterns.”[24] Through trials and the commission, Alfonsín and his advisors hoped to summon images of a past gone awry both to establish a common set of social values and to provide a sober warning about what lay ahead if Argentines did not abide by institutional procedures. Yet they believed that to look to the past was dangerous, for while law may be adversarial in process, history is divisive in its conclusions.

“Great catastrophes are always instructive,” wrote CONADEP’s chairperson, the Argentine novelist Ernesto Sabato, who in a graceful prologue to the commission’s final report largely steered clear of history to extract from the sadism of the military the lesson that “only democracy can save people from such a horror, only democracy can protect the sacred, basic rights of man.” Argentina’s jurists saw themselves as mediating between dangerously volatile social groups that had competing yet equally passionate investments in assigning historical meaning to the “dirty war.” Grass-roots human rights organizations, such as the Madres de Plaza de Mayo, founded in 1979 by relatives of the “disappeared” to protest state terror, along with members and sympathizers of the insurgent Montoneros, an urban guerilla group operating in the 1970s made up of supporters of the late Juan Domingo Perón, insisted on interpreting the war as a struggle to achieve social justice in the context of a society that was deeply unjust. The military, for its part, demanded that human rights violations be understood as painful but necessary measures taken to defend the homeland against foreign subversion.[25] In response, the Alfonsín government adopted what eventually became known as the “doctrine of the two demons”: a refusal to attach historical importance to the repression conducted by the previous regime apart from the belief that political violence is a symptom of illiberal intolerance. The political extremism of both the military and the armed Left was held equally responsible for Argentina’s plunge into chaos. “During the 1970s,” goes the first sentence of the report, “Argentina was torn by terror from both the extreme right and the far left”—this despite the fact that the violence catalogued by Nunca Más was nearly exclusively committed by the military against, as Sabato’s prologue admits, “trade unionists fighting for better wages, members of student unions, journalists who did not support the regime, psychologists and sociologists simply for belonging to suspicious professions, young pacifists, nuns and priests who had taken the teachings of Christ to poor neighborhoods, the friends of these people, too, and the friends of friends.” Many have noted the influence of Max Weber’s “Politics as Vocation” essay, with its advice that politics above all else entailed a “responsibility towards the future,” on southern cone jurists.[26] In particular, Alfonsín’s refusal to be drawn into historical debate echoes Weber’s suggestion, made after World War I, that the best way to avoid future conflict was to avoid imposing a judgment on the causes of the war, which would then force contending parties to dissipate their passions arguing the war “ad absurdum.”[27] Weber’s rejection of attempts to justify political militancy through appeals to an “ethic of ultimate ends” reverberates in Nino’s condemnation of the Argentine insurgency as “the product of an epistemic elitism regarding facts and morality.” “Left-wing terrorism,” Nino writes, provoked “foreseeable consequences” that were “far worse than the evils it sought to eradicate.”[28]

Such a position expectedly angered those who suffered or committed acts of violence in the name of a higher ideal, either in pursuit of social justice or in defense of the nation. Julie Taylor has suggested that the legalistic procedures of CONADEP, which abstracted human rights violations from the dynamics of social power and conflict, reproduced the logic of a repression that was intended to break down networks of political solidarity. She writes that all “who passed through this process, then, accused and accusers—actors in highly political dramas where they had represented clashing world views and collective strategies for implementing them—were refigured as innocent or transgressing individuals with individual rights and obligations.” The truth commission’s “opposition of the order of law and the chaos of violence further led to the omission of collective motivation not only of victimizers … but of victims as well, who were defended as individuals whose human rights had been violated rather than as political activists.”[29]

That was exactly the point. During the first years of Argentina’s transition to democratic rule, the trials—which barred any reference to political ideals or collective identities from being introduced as testimony—were to serve as the primary theater of procedural conflict in the new liberal order. For Nino, prosecutions were needed to dilute the “corporatism” that he held responsible for Argentine authoritarianism, to “enable victims of human rights abuses to recover their self-respect as holders of legal rights”—not as members of social groups engaged in cooperative struggle.[30] To the degree that history was needed to evoke a brutal past to contrast with a dispassionate future, this contrast would be represented by the impartiality and transparency of the court procedures. Trials, Malamud-Goti writes, were to “provide a particular way, a means, to come to terms with the past, to instill individual responsibility, to establish the scope and depth of the truth, and, most of all, to write the country’s recent history in the language of moral responsibility.”[31]

The new government underestimated both the desire for retributive justice and the obstinacy of the armed forces. Alfonsín took office in December 1983. Within a year, victims and victims’ families had filed approximately 2,000 criminal complaints against the military.[32] In 1985, the “big trial,” as the prosecution of a number of high military officials was called, resulted in the conviction of General Jorge Videla and Admiral Emilio Massera, who both received life sentences. But by 1986, as criminal investigations continued, Alfonsín came under increasing pressure from the military. In the face of a series of failed but formidable coup attempts, he passed the “full stop” law, which imposed an absolute cut-off date for the trials. In 1987, Alfonsín called a halt to military prosecutions and signed the law of “due obedience,” which allowed military officers to argue in their defense that they “had acted under orders and thus were not punishable.”[33] Full capitulation came in 1990 when Carlos Menem, Alfonsín’s successor, pardoned in the name of “national reconciliation” all those either awaiting trial or already convicted, including Videla and Massera.[34]

In that same year that Menem pardoned the junta leaders, Chilean dictator Augusto Pinochet left office. In March, Patricio Aylwin was elected to the presidency under more constrained conditions than was Alfonsín, and made no effort to prosecute military officers for human rights violations committed during Pinochet’s seventeen-year dictatorship. Despite losing the plebiscite, which would have allowed him to continue in power, Pinochet, unlike the Argentine military, ended his tenure much on his own terms. An amnesty law protected those responsible for political repression, while Pinochet remained in charge of the military and a number of his associates became senators-for-life.

Aylwin convened the Comisión Nacional de Verdad y Reconciliación, known more commonly as the Rettig Commission from its president Raúl Rettig, in 1990 to investigate political disappearances and extrajudicial executions that occurred during Pinochet’s rule. As in Argentina, the commission was to mark the transition from dictatorial to procedural rule and to help reestablish political pluralism and liberal morals—reestablish in the sense that prior to Pinochet’s September 11, 1973 coup that resulted in the death of Salvador Allende, Chile was one of Latin America’s most stable democracies. José Zalaquett, a professor of ethics and human rights at the University of Chile and prominent member of the commission, writes that the commission was to “help to create a consensus concerning events about which the community is deeply divided … The purpose of truth is to lay the groundwork for a shared understanding of the recent crisis and how to overcome it.”[35] The Rettig Commission, however, unlike in Argentina, was not part of a larger policy of indictments and trials. Chile, in other words, retained the notion that official inquiries into past abuses were needed to reinforce social solidarity but jettisoned, due to political exigencies, the required mechanism that, according to Nino and others, bestowed those inquires with legitimacy: the ability to hold the worst abusers legally accountable.

The shift in emphasis from truth and justice to, in the words of President Aylwin, “truth, and justice as far as possible,” brought history to the fore.[36] Absent the possibility of using legal procedures to undermine historically derived “invidious cultural patterns,” recent Chilean history had to be confronted directly rather than through the proxy of trials. Zalaquett writes that “our report was basically about facts and their circumstances. Of course these are ethically relevant facts. They signify the transgression of fundamental societal values.” The commission, he continues, “was the cornerstone of a transitional policy aimed at the moral (and political) reconstruction of our society after a period of tragic breakdown … To that end we felt we had to refer not to human rights violations and acts of violence but also to the ideological/doctrinary basis which prescribed, directly lead to, or attempted to legitimate such deeds.”[37] The Rettig Report explicitly laid out, through a description of events leading up to the 1973 coup, a vision of the past similar to Nino’s and Malamud-Goti’s intentionally vague conjectures concerning the roots of political violence.[38] In the case of Chile, a lawyerly ambivalence toward historical conjecture augmented the opacity of such an approach, as manifested in the final report’s disclaimers that the commission is “aware that all events are subject to diverse and contradictory versions and interpretations” and that while it recognizes that the “crisis has deep roots, of a socioeconomic character, it would go beyond its mandate to explore them.”[39] Adding to this modesty was a concern that too close an attention to past conflicts could be used to excuse or justify political violence. The Rettig Report, Zalaquett states, is a “circumscribed historical approach. It is the history of doctrinary justification of ethically unacceptable means in political action.”[40]

The starting point of the commission’s historical section is the “extreme polarization” engendered by the Cold War. In Latin America, the 1959 Cuban Revolution “overflowed its borders” and pitted throughout the continent “Cuban-Soviet ‘insurgency’ against North American ‘counterinsurgency,'” with Chile being “no exception.”[41] The 1970 election of socialist Salvador Allende, who presided over a coalition government of left parties that pursued an agenda of nationalization and land reform, initiated what the commission described as the “final phase” of this polarization in Chile. The Rettig Report compellingly describes a breakdown of state sovereignty during Allende’s tenure, which contributed to the propulsion of ideas and actions toward an ever greater militancy. Centrist and rightist groups, fearing that Allende had betrayed the state’s very reason for existence—the protection of private property—applied tactics to make the country “ungovernable.” Left political parties, even those who rejected armed struggle and remained committed to electoral politics, became “seduced” by those who insisted on the “inevitability” of confrontation. Violence “was spurred on,” the report writes, “because, as a result of deep polarization, each individual believed that they were transgressing the law only in response to, and as a defense against, someone else who had already done so … The only defense (they thought) was self-defense, thus spreading the idea of irregular armed groups in both city and countryside to defend the ownership of properties and companies and personal security.”

Yet while the passions, particularly “fear” and “hatred,” are amply represented in this history of “ethically unacceptable means in political action,” absent is any discussion of interests and power. The final report captures well the contingent exigencies of political crisis, yet its refusal to analyze the “socioeconomic” roots of that crisis led it to present militancy in the passive tense, as latent in the body politic and called forth by forces beyond Chile’s borders: national political movements and parties became “ideologized” by global polarization and began to insist on “total models for society” unable to admit any but the “slightest modifications, postponements, or negotiations”; individuals and groups lost faith in democratic institutions and began to advocate violence and force as a means to power; “extreme groups of whatever political persuasion do not need a reason or pretext for becoming armed. And so the fever spread throughout Chile.”

Chilean historians have criticized the report for its insistence on the need to establish moral equivalency between the Left and the Right, and for ignoring Allende’s demonstrated commitment to political pluralism and willingness to compromise.[42] The report is evidently more sympathetic to the fears that motivated opposition to Allende in defense of private property than those of the “extreme left political groups” that spread an “ideology of armed struggle.” Yet the commission went further. A depiction of Chile as caught in the maelstrom of world politics and a reflexive rendition of ideological hardening led to the suggestion that the military’s overthrow of Allende prevented a larger catastrophe: military officers, divided between constitutionalists and those who opposed Allende, “had to consider the possibility that their failure to act might entail a greater evil: civil war, as a result of their own internal division.” History here fulfilled its exculpatory potential, for the forces that drove the military to intervene were inexorable: “Until their decisive intervention in September 1973, the armed forces and the police, notwithstanding the ideologies and debates stirring in their ranks, stayed out of the crisis and maintained their professionalism, discipline, obedience to the civilian power and political neutrality, as assigned to them by the Constitution. Nevertheless, the very exacerbation of the crisis—slowly but surely, continually and increasingly—drew them away from this role.”[43]

The historical sensibility that motivated the Rettig Commission approximates that of the Argentine jurists. In both, visions of the past were less historically specific than mythically timeless—touchstones of unacceptable worldviews and behavior by which to measure a democratic society. In the case of Chile, a refusal to examine ideological polarization as mediated by political interests and social power provides a no less psychologically determined account of a friend-enemy disassociation than that offered by Nino or Malamud-Goti. “The dictatorial mind,” writes Malamud-Goti, “sets itself up to generate this split: allies versus foes, conspiratorial accounts of political reality that turn themselves into a cause for further authoritarianism.”[44] In the case of Chile, absent the possibility of pursuing retributive justice that could fortify the rule of law, the Rettig Report emphasized the contrast between the dispassionate procedural liberalism of a restored democracy and the ideological rigidity and intolerance not only of the Pinochet regime but also of the events claimed to have necessitated that regime. In the process, the coup is revalued as a required moment of primal violence that both rescued the nation from dissolution, a “tragic breakdown,” as Zalaquett put it, and justified the constraints in which the new democracy operated.

Based on the collection of over 8,000 testimonies from victims and their relatives, Guatemala’s Comisión para el Esclarecimiento Histórico (CEH) concluded, in 1999, that over the course of a nearly four-decade civil war that pitted the state against a left insurgency, the military had committed 626 massacres and was responsible for 93 percent of human rights abuses, including roughly 200,000 political murders. The commission blamed the guerrillas for 3 percent of the violations and thirty-two massacres. Yet Guatemala Memoria del silencio, as the CEH’s final twelve-volume report is titled, goes well beyond divvying out responsibility for the violence to the state and the guerrillas. Starting with an introduction that displays little of the epistemological hesitation of similar bodies, the CEH provides statistical evidence of extreme social inequality—the country’s health, education, literacy, and nutritional indicators are among the most unjust in the world despite an abundance of national wealth—and spends the rest of its first volume chronicling the “causes and origins” of Guatemala’s armed conflict.

Administered by the United Nations, the CEH was staffed mostly by lawyers drawn from the transnational human rights community, many of whom were from or had previous advocacy experience in southern cone countries. They shared with their Argentine and Chilean counterparts a reluctance to contextualize human rights violations either in reference to social inequalities or historical struggles. Yet a number of factors pushed them in that direction.[45] The most important was the success of the counterinsurgency. Unlike in Argentina and Chile, Guatemala’s truth commission was not negotiated by civilian reformers hoping to broker a guided transition to democracy. In Guatemala, that “transition” took place a decade earlier, under the tight supervision of the military as the civil war continued. Rather, the one-page document that established the CEH was an afterthought, negotiated by an enervated guerrilla leadership and a triumphant army high command as part of peace talks that in 1996 finally drew the war to an official close. The commission did not have the power to subpoena witnesses or records, and its final report could not “individualize responsibility”—that is, name names—nor could it be used for prosecutions.[46] In a strategic avoidance of potential deal-breaking specifics, negotiators left vague other aspects of the commission’s work. Unlike the strict mandates of CONADEP and the Rettig Commission, the CEH’s instructions did not define the crimes to be examined, the period to be considered, or the commission’s methodology. This ambiguity, it turns out, allowed the commission to define its work broadly and to use social science and historical analysis to greater extent than did previous truth commissions. The diversity and composition of the CEH’s staff and three-member commissariat, comprised of both foreigners and nationals, likewise contributed to a more vital engagement with historical analysis. Confronted with ongoing social cleavages and an unrepentant military and oligarchy, foreigners, including head commissioner Christian Tomuschat, a German human rights jurist, and Marcie Mersky, who edited the final report, had little incentive to turn the CEH into an incurious promoter of nationalism. Guatemalan nationals, drawn from the country’s embattled human rights movement and shut out of the negotiations that brought the CEH into being, had little faith that an affirmation of shared social values would be sufficient to overcome the injustices of the past. In addition, an emerging pan-Mayan cultural rights movement—in many ways the most vibrant element of Guatemala’s postwar civil society—was beginning to interpret not just the war but all of national history through the prism of racism and demanding that the CEH do the same. The influence of this movement led to the appointment of Otilia Lux de Cotí, a Mayan educator, to the commission. Lux, along with Mayan rights groups, pushed for an investigation of genocidal intent to describe the military’s targeting of indigenous communities between 1981 and 1983, an investigation that likewise contributed to the CEH’s turn toward historical analysis.[47]

As did southern cone jurists, the CEH drew on theories that focus on the effects of skewed modernization to explain authoritarianism and political violence, tracing the roots of a “political culture where intolerance defined the totality of social interaction” back to the Spanish colonial period.[48] In Argentina and Chile, though, there was no attempt to think through the connection between intolerance and terror. Psychological variables allegedly responsible for political violence, such as, say, anomie, are simply deduced without any specific attention to how radicalization emerges from the interplay between ideas, social structures, and political interests. The CEH, in contrast, presented intolerance as the product of polarization and not its a priori cause. The prohibition against naming names led to vague phrasing and contorted sentence constructions, yet Memoria del silencio nonetheless insisted on examining the mediation between what it identifies as systemic causes of state violence—economic exploitation, racism, and political exclusion—and the ideas and actions associated with challenges and defenses of that system.

Since the end of the nineteenth century, according to the CEH, “the landed class,” particularly coffee planters, “imposed its economic interests on the state and society.”[49] Planters gobbled up vast amounts of land and relied on the state to ensure the cheap supply of labor, mostly Mayan Indians from highland communities. A series of forced labor laws combined with land loss to “increase the economic subordination” of Mayans and poor Ladinos (Guatemalans not considered Mayan). This model of coercive development intensified forms of colonial exploitation, racism, and authoritarianism and militarized the republican state, which devoted itself to enforcing labor servitude. The mainspring, according to the commission, of the Guatemalan crisis was the conflict between efforts to reform society and measures taken in its defense: “State violence has been fundamentally aimed against the excluded, the poor, and the Maya, as well as those who struggled in favor of a just and more equitable society … Thus a vicious circle was created in which social injustice led to protest and subsequently to political instability, to which there were always only two responses: repression or military coups.” Confronted with movements demanding “economic, political, social, or cultural change the state increasingly resorted to terror in order to maintain social control. Political violence was thus a direct expression of structural violence.”[50]

This dynamic eased and even reversed for a ten-year period starting in 1944, when two reformist administrations attempted to democratize Guatemala’s economy and polity by ending forced labor, legalizing unions, enacting workplace protections, establishing a social security and public health care system, expanding the vote, and passing a far-reaching land reform. The CEH’s analysis of the Central Intelligence Agency’s (CIA) 1954 coup that ended this democratic decade stands in opposition to the Rettig Commission, which blamed Allende’s 1973 ouster on Cold War polarization. Memoria del silencio, while careful to document the U.S. role in the coup, focused squarely on domestic political and class interests. Threatened by the rapid extension of rights to the country’s disenfranchised, the “defenders of the established order,” identified in the report as planters, the military, and the Catholic Church, joined with a middle class threatened by increased peasant and indigenous mobilization to oppose the government of Jacobo Arbenz, the reform period’s second president.[51] And while the Rettig Report salvaged the military’s assumption of power in Chile as a moment of nationalist sacrifice, the CEH presented the CIA’s 1954 intervention as a national “trauma” that had a “collective political effect” on a generation of young, reform-minded Guatemalans. “So drastic was the closing of channels of participation and so extensive was the recourse to violence” by those opposed to democracy, Memoria del silencio argued, that it is “considered one of causes of the guerilla insurgency” that roiled Guatemala for nearly four decades. The overthrow of Arbenz reinitiated Guatemala’s “exclusivist dynamic,” and the state once again put “itself at the bidding of a minority at the expense of the majority.”[52] Expectations raised and struggles fought during the ten years of democracy reverberated throughout Guatemala’s subsequent civil war, and the CEH traced a number of the human rights violations that it recounts in detail back to the 1954 coup.

The sharpest break between Memoria del silencio and its predecessors was not the CEH’s methodological description of unfolding crisis politics but its analysis of the relationship between terror and state formation. In most truth commissions, as well as in the commentaries that justify them, the morals that allow political terror to take hold are taken as the inverse of liberal pluralism. Tolerance is mirrored by intolerance, civic trust by anomie. Where there should be proceduralism and open-mindedness, there is arbitrariness and fanaticism. In many accounts of crisis, what makes possible the prevalence of these dark values is state and social decay, a weakening of the institutions that generate the norms that hold society together.

The CEH, in contrast, took a different approach in its understanding of Guatemala’s descent into terror, particularly in its analysis of an intense two-year phase of violence. Of the 626 massacres committed by the military or its allies documented by the CEH, nearly 600 occurred in rural Mayan communities between late 1981 and 1983. In the majority of massacres, the CEH found “evidence of multiple ferocious acts preceding, during, and after the killing of the victims. The assassination of children, often by beating them against the wall or by throwing them alive into graves to be later crushed by the bodies of dead adults; amputation of limbs; impaling victims; pouring gasoline on people and burning them alive; extraction of organs; removal of fetuses from pregnant women … the military destroyed ceremonial sites, sacred places, and cultural symbols. Indigenous language and dress were repressed.”[53] In some departments, soldiers drove upward of 80 percent of the population from their homes, breaking the highland’s agricultural cycle, leading to hunger and widespread deprivation. Memoria del silencio depicted this campaign, which it ruled to be genocidal, not as state decomposition but state formation, a carefully calibrated stage in the military’s plan to establish national stability through an incorporation of Mayan peasants into government institutions and a return to constitutional rule.[54]

A willingness to employ historical methodology and make historical judgments allowed the commission to examine the racist fury that underwrote this killing not as an unchanging value but as one element of a dominant, elastic ideology radicalized by the circumstances of war. The CEH was particularly interested in the strategic thinking of a group of young, modernizing military officers who, beginning in the late 1970s, increasingly identified the kind of chaos that plagued Guatemala as an obstacle to national security. The strength of the insurgency, the officers concluded, could not simply be blamed on communism but rather on social “problems that have very long and deep roots in the social system.”[55] They began to sketch out a doctrine that sought to achieve national security through nation building. Codified in a National Plan of Security and Development and executed through sequential campaign policy papers, the doctrine, which the CEH dubbed “strategic democracy,” represented a breakthrough for an army that had long served as the corrupt private gendarme of the landed oligarchy.[56] Its short-term goals included the temporary suspension of indiscriminate urban death squad violence, improvement in the administrative functions of the government, and an anti-corruption campaign—all designed to increase the legitimacy of the state. Long-term objectives (all achieved by the time the military agreed to negotiate an end to the war) entailed convening a constituent assembly, adopting a new constitution, presidential elections, demilitarization of certain state agencies, and normalization of diplomatic relations, which in many instances had been suspended in reaction to government repression.

The first step in implementing such a project was to destroy the insurgency. In late 1981, army detachments moved into the western highlands and initiated a campaign of massacres and executions in Mayan communities, identified by the army as the support base of the rebels. Campaign plans analyzed by the CEH identified the integration of indigenous communities into government institutions as a primary counterinsurgent objective. Military strategists focused on what they identified as the “closed,” caste-like isolation of Mayans as the reason for their supposed collective susceptibility to communism: “the existence of diverse ethnic groups, with different languages and dialects demonstrates the partial nature of national integration due to a lack of a common identity.” Mayans, said a 1982 military policy paper, “have joined the guerrilla due to a lack of communication with the state.”[57] The National Plan of Security and Development called for nationalism to be “disseminated in the countryside,” particularly through a literacy campaign that would make Indians more “susceptible” to “new ideas.”[58] Another 1982 action plan called for the establishment of a “spirit of nationalism and the creation of channels of participation and integration for the different ethnic groups that make up our nationality.”[59] To these strategic considerations, the CEH argued, officers added racialist fears, amplified by Guatemala’s apartheid-like social system, about Mayans: that they were susceptible to manipulation by outsiders, for example, or that their participation in the insurgency was driven by an “atavistic” desire to take revenge for centuries of abuse.

A historicized understanding of the relationship between ideas and actions led the CEH to rule that the military, between 1981 and 1983, had committed “acts of genocide.” Genocide is a notoriously difficult crime to prove. Its collective nature—the need to establish that perpetrators were driven by hatred of a targeted group and acted in concert to “destroy in whole or in part” that group—means, as legal theorist William Schabas writes, “evidence of hateful motive [is] an integral part of the proof of existence of a genocidal plan, and therefore of genocidal intent.” But the introduction of “motive” as a probative requirement is daunting, for where the “defence can raise a doubt about the existence of a motive, it will have cast a large shadow of uncertainty as to the existence of genocidal intent.”[60] Yet racism, or “hatred of the group” as Schabas puts it, is a historical category, and efforts to present it not as such but as a stable, isolated value open the door to exculpation based on historical justification. In Guatemala, for example, government officials refused to accept the CEH’s conclusion that the state committed genocide against Mayans, instead arguing that the military acted in defense of national security. Guatemalan president Alvaro Arzú Irigoyen dismissed the CEH’s ruling, stating that “genocide is the desire to exterminate an ethnic group, and this was not the cause of the conflict.”[61] The CEH’s turn to history allowed it to reject such a defense. Rather than arguing that racism is a certain manifestation of a determinative eliminationist ideology and psychology (an argument difficult, in any context, to sustain) the commission instead examined how racism came to be deeply embedded in state structures and discourses over time, in relation to land distribution, labor practices, and political struggles. The imperatives of war, both civil and class, accelerated nationalism, anticommunism, and racism into a murderous fusion: as a “contextual ideological element,” Memoria del silencio writes, racism allowed the army to equate Indians with the insurgents and generated the belief that they were “distinct, inferior, a little less than human and removed from the moral universe of the perpetrators, making their elimination less problematic.”[62]

Discussion about the efficacy of truth commissions often confuses the task of commissions to document and interpret acts of political violence with their function in promoting nationalism and consolidating state legitimacy.[63] Debates between critics and celebrants often turn on the proper balance between the pursuit of justice through prosecution of human rights violators and the need to establish national unity through a cathartic process of testimony, forgiveness, and reconciliation. Proponents of the latter position emphasize the therapeutic benefits of public confession, both for victims and perpetrators. “The chance to tell one’s story and be heard without interruption or skepticism is crucial to so many people, and nowhere more vital than for survivors of trauma,” writes legal theorist Martha Minow, as is the “commitment to produce a coherent, if complex, narrative about the entire nation’s trauma.”[64] Skeptics, however, either question the suitability of applying psychoanalytical concepts to political and social relations or argue that the best way to cultivate patience for proceduralism is through trials that hold perpetrators accountable.[65] This debate has been vigorous in South Africa, where the Truth and Reconciliation Commission (TRC), in contrast to the powerlessness of most other truth commissions, wielded both moral and legal authority yet often decided, in principle, to use the language of forgiveness and the practice of amnesty to advance national harmony. Commissioners Alex Boraine and Desmond Tutu have defended this approach, suggesting that it could serve as model for crisis regions around the globe.[66] But others describe the work of South Africa’s TRC as a lost opportunity. Richard Wilson argues that its interpretation of political violence through a narrative of struggle and liberation, tempered with a Christian ethos that demanded an abandonment of vengeance for the sake of reconciliation, undermined the establishment of liberal jurisprudence. An uncompromising language of compromise failed to take seriously popular demands for justice, to move a desire for revenge toward an acceptance of proportional retribution, thus greatly delegitimizing the concept of human rights in the eyes of many, often the most marginalized, South Africans and contributing to the pursuit of extralegal forms of rough justice.[67]

Such arguments, even those from the skeptical side of the aisle, avoid a more rigorous analysis of the role of truth commissions as an agent of nationalism. The merits of values such as national harmony and reconciliation are assumed rather than examined, reproducing the ideological work carried out by truth commissions and leaving that work unquestioned. Truth commissions, as we have seen in Argentina and Chile, perform an indispensable task in the establishment of polities. Since violence is always present in the founding and preservation of political societies, the trick of nationalism is to turn that violence into, as Hannah Arendt put it, “cogent metaphors or universally applicable tales.”[68] Truth commissions sequester the “violence of foundation”—transmuting the atrocities of military regimes into touchstones on which to affirm a new liberal order—while concealing the “violence of conservation” that maintains that order, which in the cases discussed here mean the ongoing power and impunity of the military.[69] In Chile, as we saw, the Comisión Nacional de Verdad y Reconciliación, forced to deal more directly with the past than its immediate Argentine predecessor, mythologized the coup that brought Pinochet to power as a regrettable yet necessary measure needed to prevent national ruin.

Carlos Nino and Jaime Malamud-Goti consciously offered a notion of political violence decontextualized from all but the most hazy history and social relations, with a valuation of liberal morals transcendent of those relations. Yet they knew that for those values to have force and legitimacy, they would have to be reinforced by some measure of retributive justice. The reality of political power in which subsequent truth commissions operated, not just in Chile and Guatemala but in Uruguay, El Salvador, and Peru as well, broke this link, leading to what Nino described as a “second-best” option: commissions and no trials.[70] Yet subsequent Argentine and Chilean history suggests that the fortification of liberal institutions and norms has indeed come about through the pursuit of criminal justice, both in national and international court systems, affirming Nino and Malamud-Goti’s original insight. Human rights groups in both countries, made up largely of victims and their relatives, have refused to allow truth commissions to put “paid” on the debate over the past. They have instead waged an ongoing battle for some degree of legal accountability, astutely appealing for international help in pressing their case. Pinochet’s 1998 arrest in London and subsequent attempts to extradite him to Spain—while occasioning a reaction on the right—has sparked a revitalization of Chile’s legal system. In the wake of the dictator’s capture, human rights advocates have creatively circumvented his amnesty law, arguing that, since no corpses have been recovered, political disappearances are ongoing crimes and hence not protected by the amnesty.[71] Courts have recently convicted a number of officers, while hundreds more face trial. In addition, some fourteen years after Chile’s transit to democracy, the state, in response to ongoing demands by the victims of torture during the dictatorship, has convened a Comisión Nacional sobre la Detención Política y la Tortura, which received testimony from more than 35,000 Chileans whose experiences, because they survived their detention, were not documented in the previous Truth and Reconciliation commission, which addressed only disappearances, political executions, and torture leading to death. It is anticipated that the new commission’s conclusions will offer a far more damning interpretation of the military’s actions than that provided by its predecessor.[72] In Argentina, the recent repeal of the “full stop” and other amnesty laws, likewise in response to pressure from political groups, has reopened legal investigations into rights violations committed during the “dirty war.”[73]

In Guatemala, state terror was so brutal, so successful in destroying political opposition, that it shattered the conceit that future social solidarity could be constructed from a description of past human rights transgressions or the supposed collective healing that comes from telling one’s story to an official body, leading the CEH to break with past commissions and present violence not just in descriptive or moral terms but in historical and social science ones as well. This methodological innovation, in turn, allowed the commission to rule that the military committed acts of genocide, for genocide is, by definition, a collective crime and, as such, demands social and historical analysis. This was particularly true in the case of Guatemala, where the imperatives of counterinsurgent state formation melded seamlessly with a racism politicized by anticommunism. Rather than dissolving moral or legal responsibility in a larger structural solution, as Argentine and Chilean jurists feared it would, the CEH’s historical interpretation both unearthed the racist premises that motivated the 1981–1983 scorched-earth campaign and provided support for the elaboration of a set of policy recommendations that sought to prevent the reoccurrence of political violence through the creation of a more equitable society. It called for the adoption of a progressive tax system, increased state spending on human needs, a dismantling of the repressive intelligence apparatus, along with the implementation of unfulfilled political, legal, and economic reforms agreed to, but not implemented, in the peace accords. Attention to structural analysis and causal history also allowed the CEH to avoid constituting itself as an unreflective instrument of nation building. Unlike commissions in Argentina and Chile, it acknowledged that the roots of the violence lay in the clash between those who fought for a more equitable society and those who defended, with increasing viciousness, the established order. It also refused to draw too clear a line between a past marred by unspecified intolerance and a contemporary polity based on pluralism and proceduralism. The implication, of course, is that the new constitutional order the CEH sought to fortify was an extension of the counterinsurgency.

Some would argue that this is too much knowledge, that in a country such as Guatemala, where democracy enjoys but a tenuous hold and the conflicts of the past continue into the present, to overexpose history is to court disaster. Memoria del silencio could be criticized for focusing too much on institutional and historical analysis, on not devoting enough of its energy in exploring the ethnographic or psychological dimensions of terror, or how violence was experienced by individuals and communities. Such an approach would have aligned the CEH more closely with what many say should be the primary task of truth commissions: the promotion of individual and collective healing to bring about national cohesion.[74]

Yet preliminary evidence suggests it was just the commission’s epistemological certainty that, even while exposing divisions, has reinforced those organizations that work to strengthen the rule and value of law. The CEH presented its findings in Guatemala’s National Theater in early 1999 to a front row of military and government officials and an overflowing crowd made up of victims, their relatives, and members of human rights and Mayan organizations, many of whom were survivors of political movements decimated by state repression. Chief Commissioner Christian Tomuschat summarized the CEH’s conclusions. While he condemned violations committed by the Left and criticized Cuba for supporting the rebels, his remarks, backed up by overwhelming statistical evidence, left little doubt as to responsibility: “the magnitude and irrational inhumanity of the violence … cannot be understood as a consequence of a confrontation between two armed parties” but rather of the “structure and nature” of Guatemalan society; the U.S. government and U.S. corporations acted to “maintain Guatemala’s archaic and unjust socio-economic system”; the army carried out a “blind anticommunist crusade, without regard to a single juridical principle or the most basic ethical or religious values, resulting in a loss of all human morality.”[75] The audience greeted the speech with tears and deafening applause.[76] The cathartic power of the event rested not in the elision of social division and political struggle through an avoidance of history and appeals to forgiveness but rather in their accentuation: Guatemala’s president refused to climb the stage to accept the report, sitting instead, along with government officials and military officers, in stunned silence. A few days later, the U.S. ambassador dismissed charges of Washington’s complicity; it was “better,” he said, “to focus on the future and not the past.”[77] Over the last four years, successive governments have ignored the CEH’s findings and recommendations while human rights groups, initially dismissive of the commission’s enabling mandate, have claimed its final report as their own. As in Argentina and Chile, these groups have helped strengthen the rule of law through rare legal victories in the country’s shaky criminal system, often citing Memoria del silencio as contextual evidence.[78]

Following other truth commissions, the Comisión para el Esclarecimiento Histórico used a variety of methods to approach the past, resulting in a twelve-volume report weighted with statistical charts and analyses, pages upon pages of victims’ names, typologies of violations, and lengthy and opaque discussions of national and international jurisprudence. But its influence and legacy resides in the confidence and lucidity of its historical conclusions. Such interpretive certainty has not, contrary to the fears of transitional-justice intellectuals, ended the debate over Guatemala’s past but rather reinforced, however tentatively, those fighting to define its future.[79]

I would like to thank the following people, either for their comments on successive drafts of this essay or for conversations on the topic: Liz Oglesby, Carlota McAllister, Arturo Taracena, Corey Robin, Steve Stern, Tom Klubock, Diane Nelson, Peter Winn, Manu Goswami, John French, Mark Healey, Paul Seils, Susie Kemp, Justin Wolfe, and Richard Wilson. In 1997–1998, I worked with the Guatemalan truth commission, the Comisión para el Esclarecimiento Histórico, and many of the observations made in this essay come from that experience.

Greg Grandin, a current recipient of a John Simon Guggenheim and Charles Ryskamp ACLS fellowship, is an associate professor of history at New York University. He is the author of The Blood of Guatemala: A History of Race and Nation (Duke 2000), which won the Latin American Studies Association Bryce Wood Prize, and of The Last Colonial Massacre: Latin America and the Cold War (Chicago 2004). He has written on human rights, political violence, social movements, and U.S.-Latin American relations, including a review essay in a recent Harper’s on the resurgence of neo-imperialist historiography. He is currently working on a book tentatively titled Empire’s Workshop: The Latin American Roots of the Bush Doctrine, to be published by Metropolitan Books.

 

Notes
1 For a summation of the history and work of truth commissions, see Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York, 2000). For legal and ethical debates surrounding their work, see Robert I. Rotberg and Dennis Thompson, Truth v. Justice: The Morality of Truth Commissions (Princeton, N.J., 2000).

2 South Africa. Truth and Reconciliation Commission, Truth and Reconciliation Commission of South Africa Report (Cape Town, 1998), 1, chap. 5, par. 1.

3 Leslie Bethell and Ian Roxborough, “Conclusion: The Postwar Conjuncture in Latin America and its Consequences,” in their edited Latin America between the Second World War and the Cold War, 1944–1948 (Cambridge, 1992), 327–28.

4 For the radicalization of postwar social democracy and its consequences, see Greg Grandin The Last Colonial Massacre: Latin America in the Cold War (Chicago, 2004).

5 In Lawrence Weschler, A Miracle, A Universe: Settling Accounts with Torturers (New York, 1990), 243–45.

6 Although methods and mandates differ from commission to commission, in general, commissions of inquiry into political violence in Latin America and elsewhere have gathered testimony from victims and witnesses in order to document the patterns by which state or non-state agents violated human rights recognized by either national or international law. Commissions then made individual decisions on each case, similar to a panel of voting judges. When the investigative period ended, the commissions issued final reports that quantified violations, generally with the aid of a statistical database, and assigned global institutional responsibility. For a discussion of procedural questions related to the work of truth commissions, see Sanford Levinson, “Trials, Commissions, and Investigating Committees: The Elusive Search for Norms of Due Process,” in Rotberg and Thompson, eds., Truth v. Justice.

7 See the discussion in Mark J. Osiel, “Ever Again: Legal Remembrance of Administrative Massacre,” University of Pennsylvania Law Review 144 (December 1995): 463–704, 501–520.

8 For example, of the forty-five individuals, not including secretaries and computer specialists, that staffed the Chilean National Commission on Truth and Reconciliation, thirty-nine were lawyers, law school graduates, or law students.

9 Carlos Nino, Radical Evil on Trial (New Haven, Conn., 1996), 32.

10 For a definition of the Latin American Cold War as a struggle to define the relationship of the individual to society, see Grandin, The Last Colonial Massacre, 191–98.

11 Benedict Anderson, Imagined Communities: Reflections on the Origins and Spread of Nationalism (London, 1991), 206.

12 The CEH’s historical analysis has implications for postmodern debates surrounding the validity of narrative as such, a debate this essay will not directly touch on but which was explicitly addressed by the South African Truth and Reconciliation Commission. See Deborah Posel, “The TRC Report: What Kind of History? What Kind of Truth?” in Commissioning the Past: Understanding South Africa’s Truth and Reconciliation Commission, Deborah Posel and Graeme Simpson, eds. (Johannesburg, 2001).

13 Alejandro Dabat and Luis Lorenzano, Argentina: The Malvinas and the End of Military Rule, Ralph Johnstone, trans. (London, 1984).

14 A group of moral and legal philosophers from the United States, including Ronald Dworkin, Thomas Nagel, and Owen Fiss, also became involved in the transition process, as observers and advisors. Nino, Radical Evil, 84.

15 Mark Osiel, “The Making of Human Rights Policy in Argentina: The Impact of Ideas and Interests on a Legal Conflict,” Journal of Latin American Studies 18 (May 1986): 135–80, 142. Both Carlos Nino and Jaime Malamud-Goti are the authors of a number of influential legal essays and books. See, for Nino, in addition to Radical Evil, Los límites de la responsabilidad penal: Una teoría liberal del delito (Buenos Aires, 1981); and Ética y Derechos Humanos (Buenos Aires, 1984) For Malamud-Goti: “Punishment and a Rights-Based Democracy,” Criminal Justice Ethics 10, no. 2 (Summer/Fall 1991): 3–13, and Game without End: State Terror and the Politics of Justice (Norman, Okla., 1996).

16 According to Nino, Alfonsín’s primary objective was the “reinstatement of the rule of law and the prevention of such human rights violations in the future. Impunity was incompatible with these principles. While the pursuit of truth would be unrestricted, the punishment would be limited, based on deterrent rather than retributive considerations.” Nino, Radical Evil, 68. By “retributive,” Nino is referring to an opinion that “the evil caused by the violations of human rights should be met by the closest possible equivalent.” It is a term that Alfonsín and his legal advisors generally used to describe what they felt was the absolutist position of human right groups that, “invok[ing] Kant,” asked “for the punishment of every last individual responsible for the atrocities, even if society were at the brink of dissolution.” Radical Evil, 136. Prior to their becoming advisors to Alfonsín, Nino and Eduardo Rabossi, a member of the CONADEP, both adhered to retributive views similar to human rights organizations; see Nino, Los límites de la responsabilidad penal, and Rabossi, La justificación moral del castigo (Buenos Aires, 1976).

17 Osiel, “Ever Again,” 478–89, describes Durkheim’s influence on the Argentine jurists.

18 Carlos Nino, “Transition to Democracy, Corporatism and Constitutional Reform in Latin America,” University of Miami Law Review 44 (1989–1990): 129–64, 136.

19 Argentina. Comisión Nacional Sobre la Desaparición de Personas, Nunca más: Informe de la Comisión Nacional Sobre la Desaparición de Personas (Buenos Aires, 1984).

20 See Guillermo O’Donnell, Modernization and Bureaucratic-Authoritarianism (Berkeley, Calif., 1973), and Fernando Henrique Cardoso, Autoritarismo e democratizaç� (Rio de Janeiro, 1975).

21 Malmud-Goti, Game without End, 183.

22 Nino, Radical Evil, 44–46. For “anomie,” see Emile Durkheim, Suicide (New York, 1951), 250–54. In Un país al margen de la ley: Estudio de la anomia como componente del subdesarrollo argentino (Buenos Aires, 1992), Nino lays out in detail his understanding of the historical relationship between institutions, values, authoritarianism, and violence, drawing directly from Durkheim as well as from subsequent modernization theorists, such as Samuel Huntington and Seymour Martin Lipset, and Latin American sociologists such as O’Donnell and Cardoso.

23 Osiel, “Ever Again,” 612.

24 Malamud-Goti, Game without End, 183.

25 Horacio Verbitsky, La posguerra sucia: Un análisis de la transición (Buenos Aires, 1985), 30.

26 For the influence of this essay on transitional justice jurists, see José Zalaquett, “Introduction to the English Edition,” in Chile. National Commission on Truth and Reconciliation, Report of the Chilean National Commission on Truth and Reconciliation, Phillip E. Berryman, trans., 2 vols. (Notre Dame, Ind., 1993), 1: xxx. For Weber’s influence on the South African Truth and Reconciliation Commission, see Posel, “The TRC Report,” 159; for his influence in Uruguay’s return to constitutionalism, see Weschler, A Miracle, A Universe, 186.

27 Max Weber, “Politics as Vocation,” in From Max Weber: Essays in Sociology, H. H. Gerth and C. Wright Mills, eds. and trans. (New York, 1946), 120.

28 Nino, Radical Evil, 170.

29 Julie Taylor, “Body Memories: Aide-Memoires and Collective Amnesia in the Wake of the Argentine Terror,” in Body Politics: Disease, Desire, and the Family, Michael Ryan and Avery Gordon, eds. (Boulder, Colo. 1994), 197.

30 Nino, Radical Evil, 147.

31 Malamud-Goti, Game without End, 183.

32 Alejandro M. Garro and Henry Dahl, “Legal Accountability for Human Rights Violations in Argentina: One Step Forward and Two Steps Backward,” Human Rights Law Journal 38 (1987): 283–344, 311, n. 115.

33 Nino, Radical Evil, 101. See Kathryn Lee Crawford, “Due Obedience and the Rights of the Victims: Argentina’s Transition to Democracy,” Human Rights Quarterly 12, no. 1 (1990): 17–52.

34 Mark Osiel, Mass Atrocity, Ordinary Evil, and Hannah Arendt: Criminal Consciousness in Argentina’s Dirty War (New Haven, 2001) 20.

35 José Zalaquett, “Truth Commissions: A Comparative Assessment,” Interdisciplinary Discussion, Harvard Law School (May 1996), at www.law.harvard.edu/programs/HRP/Publications/truth3.html (accessed November 3, 2004).

36 Militza García, “Patricio Aylwin: El Adversario Clave,” Qué Pasa (Santiago, Chile), September 5, 2003.

37 Zalaquett, Personal communication, February 2001.

38 The report does not cite any primary or secondary sources to indicate how its accounting of “some characteristics of the climate” that preceded the coup was compiled. It is commonly known that conservative Chilean historian and commission member Gonzalo Vial, who had previously served in Pinochet’s government, wrote the first draft of the section describing events leading to the coup.

39 Chile. Comisión Nacional de Verdade y Reconciliación, Informe de la Comisión Nacional de Verdad y Reconciliación, 3 vols. (Santiago, 1991) 1: 33, 38.

40 Zalaquett, Personal communication, February 2001.

41 The following quotations come from Informe de la Comisión, 1: 35, 36, 38.

42 Sergio Grez Toso and Gabriel Salazar Vergara, eds., Manifiesto de historiadores (Santiago, 1999).

43Informe de la Comisión, 1: 39–40. The report was obliquely referencing a plan by a left-wing group not formally part of the Popular Unity coalition to organize support for Allende within the military to forestall a coup. See John Dinges, The Condor Years: How Pinochet and his Allies brought Terrorism to Three (New York, 2004), 43–44. The report also lists other reasons the coup could be interpreted as a defense of national sovereignty, including the escalating disruptions of public order, the threat such disruptions posed to the country’s food supply, and the “whetting foreign appetites” eager to take advantage of political instability (a reference to territorial conflicts with Argentina and Peru).

44 Malamud-Goti, Game without End, 187.

45 Head commissioner Christian Tomuschat describes his interpretation of the CEH mandate in “Clarification Commission in Guatemala,” Human Rights Quarterly 23, no. 2 (2001): 233–58.

46 The accord is in the commission’s final report: Comisión para el Esclarecimiento Histórico, Guatemala: Memoria del silencio, 12 vols. (Guatemala City, 1999), 1: 23–26. (Hereafter, CEH, Memoria del silenció.)

47 From commencement of operations in August 1997 to the issuance of its final report in February 1999, the CEH drew on multiple resources to compile its historical section: individual testimonies; U.S. declassified documents; secondary sources; “context reports” from fourteen regional field offices; inputs by a group of Guatemalan social scientists convened by the commission to serve in an advisory capacity; “illustrative cases” described in detail (as opposed to the 8,000 “ordinary cases,” based on testimony and not investigated at great length). When the commission moved to the writing-up stage, four teams—corresponding to the four major sections of Memoria del silencio (1. an interpretation of the “causes and origins” of the armed conflict; 2. a description of the techniques of violence and the establishment of institutional responsibility; 3. an account of the social consequences of the violence; 4. the elaboration of a series of policy recommendations)—synthesized this voluminous information. A team of editors then produced the final report which, unlike the Rettig Report, is copiously cited. Reluctance on the part of the lawyers who ran the CEH to formulate preliminary working hypotheses, however, led to a certain degree of methodological incoherence and a figure-it-out-as-needed approach to data collection, as Marcie Mersky, the coordinator of the final report, describes in “Some Initial Thoughts on the Commission for Historical Clarification in Guatemala,” paper presented at Yale University (April 7, 1999).

48 CEH, Memoria del silencio, 1: 79.

49 CEH, Memoria del silencio, 1: 81.

50 CEH, Memoria del silencio, 5: 21–22.

51 CEH, Memoria del silencio, 1: 103–05.

52 CEH, Memoria del silencio, 1: 86, 107.

53 CEH, Memoria del silencio, 5: 43.

54 CEH, Memoria del silencio, 4: 75.

55 CEH, Memoria del silencio, 1: 198–99.

56 CEH, Memoria del silencio, 1: 188–201; 3: 321–25.

57 CEH, Memoria del silencio, 3: 322.

58 CEH, Memoria del silencio, 1: 98.

59 CEH, Memoria del silencio, 3: 323.

60 William A. Schabas, Genocide in International Law: The Crimes of Crimes (Cambridge, 2000), 254–55.

61El Periódico (Guatemala) July 1, 1999.

62 CEH, Memoria del silencio, 3: 325.

63 As such, they replicate what Manu Goswami has identified as an operating assumption that handicaps many studies of nationalism: they mistake categories of analysis with categories of practice. Goswami, “Rethinking the Modular Nation Form: Toward a Sociohistorical Conception of Nationalism,” Comparative Studies in Society and History 44, no. 4 (2002): 770–99.

64 Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston, 1998), 58.

65 Stephan Landsman, “Alternative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions,” Law and Contemporary Problems 59, no. 4 (1996): 81–92.\

66 Alex Boraine, A Country Unmasked (Oxford, 2000); Desmond Tutu, No Future without Forgiveness (New York, 1999).

67 Richard A. Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State (Cambridge, 2001).

68 Hannah Arendt, On Revolution (New York, 1963), 20.

69 Arno J. Mayer, The Furies: Violence and Terror in the French and Russian Revolutions (Princeton, N.J., 2000), 75.

70 Nino, Radical Evil, 146. Hayner, Unspeakable Truths, 38–40; 53–54, describes the work of commissions in Uruguay and El Salvador. For Peru, which presented its findings in August 2003 and in many ways is not comparable to the commissions here under examination due to the particular nature of insurgent and state violence, see http://www.cverdad.org.pe/.

71 Sebastian Brett, ed., When Tyrants Tremble: The Pinochet Case (New York, 1999); Roger Burbach, The Pinochet Affair: State Terrorism and Global Justice (New York, 2003).

72 “Documento de Cheyre se anticipa a duro informe sobre la tortura,” La Tercera, November 6, 2004.

73 Human Rights Watch, Monthly Update, “Argentina Faces its Past,” August 2003, http://hrw.org/update/2003/08/#1.

74 See Minow, Between Vengeance and Forgiveness, 61–90.

75 “Palabras del Sr. Christian Tomuschat, Coordinador de la CEH en ocasión de la entrega del informe de la Comisión para el Esclarecimiento Histórico,” Guatemala City, February 25, 1999.

76 Tomuschat, “Clarification Commission in Guatemala.”

77 CERIGUA News Wire, Weekly Briefs, March 4, 1999.

78 Charles Hale et al. “Democracy as Subterfuge: Researchers under Siege in Guatemala,” LASA Forum 33, no. 3 (Fall 2002): 6–10.

79 Elizabeth Oglesby’s study of the short and long-term impact of the CEH argues that the report did not “fix” a particular “version of history, but rather [established] some parameters within which future discussions can take place. In a context like Guatemala, where until recently it was extremely dangerous to raise the issue of human rights violations in public venue, this means establishing some firm ground, the Truth Commission report is out there with the imprimatur of the United Nations, it’s impossible now to deny certain realities.” Yet Oglesby points out that the interpretation of those realities are still debatable. For instance, the U.S. Agency of International Development-funded project to disseminate a summary of the report omits any mention of the United States’ role in the violence, including the CIA’s actions in 1954, and ignores the report’s structural analysis, instead portraying the violence as the byproduct of armed struggle—a clear contradiction of the CEH’s conclusions. Oglesby, “The Truth Commission and Teaching History in Guatemala,” paper presented at Carnegie Council History and the Politics of Reconciliation Workshop, University of British Columbia, Vancouver, November 8, 2003.

BY: GREG GRANDIN