Transitional Justice in the Asia-Pacific (2 page)

The question of how the human rights violations of previous regimes and past periods of conflict ought to be addressed is one of the most pressing concerns facing governments and policy makers today.
New democracies and states in the fragile post-conflict peace-settlement phase are confronted by the need to make crucial decisions about whether to hold perpetrators of human rights violations accountable for their actions and, if so, the mechanisms they ought to employ to best achieve that end. Since the 1980s, post-transitional states have increasingly opted in favour of accountability for human rights violations and have used a wide range of measures from prosecutions and punishment to truth telling, lustration of police and security forces, reparations, and judicial reforms, to reconciliation processes, apologies, forgiveness ceremonies, exhumations and reburials, memorialization projects, traditional and indigenous justice practices, and other guarantees of non-repetition.
¹
In doing so, they have contributed to the emergence of what has variously been termed ‘the justice cascade’ or as a ‘revolution in accountability.’
²

The purpose of this book is to provide an in-depth analysis of the practices, processes, and problems of transitional justice in the Asia-Pacific region. Although the practice of transitional justice is global in its reach,
scholarship concerned with theorizing and analyzing the practice has focused on cases in Latin America, Africa, and Eastern Europe. The reasons for this are largely historical. During the 1980s and 1990s large numbers of states in Latin America, Africa, and Eastern Europe experienced transitions to democracy and, in doing so, pioneered efforts to hold state officials accountable for past human rights violations. For example, exemplary truth commissions were established in the 1980s and 1990s in Argentina and South Africa, and foreign and international criminal prosecutions were carried out in response to human rights violations that occurred in Chile, the former Yugoslavia, and Rwanda throughout the 1990s. Although the use of transitional justice mechanisms to address past human rights violations has been similarly prevalent in the Asia-Pacific, however, this region has attracted decidedly less scholarly attention than Latin America, Africa, and Eastern Europe.

A simple comparison of the number of publications reveals this unbalance. As the
Transitional Justice Database Project reveals, of the 1,520 country-specific studies of transitional justice published in recent years, only seventy-eight (5 percent) are on countries of the Asia-Pacific region. By contrast, 629 studies (41 percent) have appeared on transitional justice in Africa, 474 (31 percent) on Europe, and 336 (23 percent) on Latin American cases.
³
The imbalance is not caused by the number of new democracies in the region because the Asia-Pacific region, with twenty-four new democracies since 1980, ranks second, following Africa (twenty-nine countries), and followed by Europe (twenty-one countries) and Latin America (seventeen countries). More strikingly, studies of
Japan, Cambodia, and East Timor make up almost 90 percent of all regional research
. This suggests a lack of interest in those cases which do not get much attention from the international media. This is a significant oversight. The Asia-Pacific, as the region that has most recently embraced the practice of transitional justice, following, developing, and modifying practices employed in the rest of the world, has shaped many of the most innovative, dynamic and, at times problematic, processes. Examining the practices and processes of transitional justice in the Asia-Pacific will thus provide not only sorely lacking regional analysis but also broader insights into the theory and practice of transitional
justice.

The remainder of this introductory chapter thus explains our understanding of transitional justice in the twenty-first century. By expanding the conceptual horizons of what constitutes a ‘transition’ and what the term ‘justice’ means, we provide a broad understanding of transitional justice that encompasses the range of contexts within which states and other actors pursue accountability for past human rights violations as well as the various means by which they seek that end. In order to situate our work within the development of transitional justice scholarship over the past three decades, we then provide an overview of the three key debates that have shaped the sub-field: prosecution versus pardon, retributive versus restorative justice, and bottom-up versus top-down approaches. In doing so, we suggest that a new trend in transitional justice is emerging and consolidating in the Asia-Pacific, where previous dichotomous divides are no longer relevant and synthetic and holistic approaches that combine different transitional justice mechanisms and notions of justice have taken hold. This provides the basis on which we explain the selection of cases included in this book before outlining its structure and content.

Transitional justice has traditionally been defined as ‘the conception of justice associated with periods of political change, characterized by
legal responses to confront the wrongdoings of repressive predecessor regimes.’
⁴
In this book, however, we adopt a broader understanding of transitional justice that extends both the constitutive elements of transition and justice beyond their original conceptualizations. By redefining its parameters, we hope to reflect developments in both the practice and study of transitional justice that have seen its contours significantly expanded over the past three decades.

Although transitional justice has been practiced since at least the time of the ancient Greeks and found form in the aftermath of World War II with the Nuremberg and Tokyo Trials, the origins of the contemporary study and practice of transitional justice are most commonly associated with the ‘third wave’ of democratic transitions from authoritarian rule in the 1980s in
Latin America.
⁵
Democratization in this context commonly referred to the movement from a repressive and closed regime, such as military, authoritarian, and one-party dictatorships, or communist regimes, to more open and decentralized government marked by free, fair, secret, and direct national elections for major government offices including head of state.
⁶
Reflecting this, transitional justice was primarily focused on ‘justice associated with periods of political change’, specifically the ‘movement from repressive regimes to democratic societies.’
⁷
Justice, in this context, was generally conceived in terms of the establishment of trials and truth commissions to address past human rights violations.

Starting from the mid-1990s, however, the parameters of the ‘transitions’ included within the scope of transitional justice began to expand into areas that had traditionally been demarcated in scholarly terms as the concerns of conflict resolution and peace building. With
this, movements from conflict to peace (or some other sort of post-conflict state) associated with the end of civil wars and periods of violent instability came to also be viewed as transitions. In these types of contexts, political transitions were primarily brought about by one party to a conflict inflicting a decisive victory over their adversaries or by the signing of a peace accord, often mediated by international actors. Significantly, these types of transition have not always accompanied movements from authoritarian rule to democracy, but also occurred within established democracies like Northern Ireland. In
large part, this spillover of the study of transitional justice into conflict resolution and peace building reflected changing practices in world politics. In particular, in the face of new ethnic and civil conflicts in Yugoslavia and Rwanda, diplomats, peace negotiators and international organizations considered and actually adopted trials and truth commissions before, during, and after conflict resolution. In scholarly terms, what followed was not simply the encroachment of transitional justice into conflict resolution and peace building, but the simultaneous redefinition of peace building to include the pursuit of justice as a key priority.
⁸
The result was the establishment of this second type of transition from conflict to peace as a key concern of transitional justice along with justice associated with transitions from authoritarian rule.

At the same time, the concept of justice embedded in traditional understandings of transitional justice has also been expanded beyond its original focus on ‘legal responses…to the wrongdoings of repressive predecessor regimes’ to reflect broader notions of justice.
⁹
Although some
scholars and practitioners hold firm to the view that criminal prosecutions remain the ‘unrivaled’ means of addressing past human rights violations, a dramatic increase in other formal and official responses such as truth commissions, reparations, vetting procedures, and amnesties, as well as in informal and customary practices, has taken place.
¹⁰
What unites these different approaches to transitional justice, however, is that each seeks to achieve
accountability for serious crimes, including human rights violations, committed in the past. Accountability, in this sense, denotes being held responsible or blameworthy for an action or set of actions. In minimal terms, accountability requires ‘actors to accept’ whether forcibly or through their own volition, ‘responsibility for the impact of their action or inaction on human rights.’
¹¹
Accountability thus means that ‘some actors have the right to hold other actors to a set of standards, then judge whether they have fulfilled their responsibility and to impose sanctions if they determine these responsibilities have not been met.’
¹²
Accountability may be pursued through trials and punishments or through the provision of compensation or restitution, the issuing of apologies, truth telling, expressions of guilt and repentance, and requests for forgiveness.
¹³

However, these different approaches to transitional justice are not only united in their common pursuit of accountability but in their attempts to right the wrongs of the past. They do this in different ways by pursuing retribution, restoration, reinterpretation, rectification or reparation. Retribution, which is often understood as the most traditional notion of justice – ‘an eye for an eye’ – seeks to establish blame for wrongs committed and administer punishment.
¹⁴
It is primarily, although not exclusively,
manifested in judicial activities such as criminal and civil proceedings and the punishments, which exact certain costs on the perpetrator that followed them.
¹⁵
Transitional justice may also attempt to right the wrongs of the past by reinterpreting that past, re-establishing suppressed facts, reconceiving distorted ideas, and rewriting official narratives in sanctioned documents and history textbooks. At its most basic, reparative justice seeks to repair damage or harm that has been unjustly inflicted on an individual, group, or state. In its ideal extreme it is ‘designed to re-establish the situation prior to…[a] wrongful act or omission’ and, in doing so, ‘wipe out all consequences of the illegal’ or, indeed, immoral act.
¹⁶
Reparative justice may be administered through a formal legal system with current efforts concentrated on recovering stolen assets from former dictators for redistribution to victims, or through informal community or grass-roots processes.
¹⁷
Similarly, restorative justice aims to ‘create peace in communities by reconciling the parties and repairing the injuries caused by the dispute.’
¹⁸
It commonly does so through truth telling, reconciliation processes, apologies, forgiveness ceremonies, the payment of compensation, and participation in traditional dispute reconciliation practices. Finally, rectification is the restoration of the prior social and political status of the victims of human rights violations and their family members. It seeks to specifically address the injustice of ‘direct physical violence suffered by people during conflict’ by providing
restitution or rehabilitation.
¹⁹
Of course, these represent ideal types of justice that, in reality, are often pursued in combination with one another. Nonetheless, all, in their different ways, seek to address the wrongs of the past and attempt, as far as is possible, to put those wrongs right.

With this we arrive at our broad understanding of transitional justice as the pursuit of accountability for, and attempts to make right, the wrongs of human rights violations committed in the past associated with major political shifts, including movements from authoritarian rule to democracy, or ruptures, such as those that mark the end of violent conflicts. This understanding, as we will see, not only reflects the changing nature of transitional justice over the past thirty years or so, but provides a starting point for examining the actual dynamics of transitional justice as it is practiced in the Asia-Pacific region
.

Developments in the theory and practice of transitional justice have also been reflected in three main debates that have preoccupied scholars and practitioners since the 1980s. The historical development of these debates is important for our purposes for it serves to further underpin our broad understanding of transitional justice and helps to further establish the context in which new developments in transitional justice have taken place in the Asia-Pacific. The three key debates in question emerged around three sets of dichotomous extremes: