Transitional Justice in the Asia-Pacific (3 page)

In the early years of scholarship concerned with transitional justice, a fault line emerged between international lawyers and social scientists over questions of the morality, legality, and efficacy of pursuing criminal proceedings against former state officials. At their core, these ‘major debates’ concerned whether or not new democracies should ‘prosecute or punish…[or] forgive and forget’ crimes committed by members and supporters of past authoritarian regimes.
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In the main, the lawyers who engaged this question endorsed the criminal prosecution of the perpetrators of human rights violations on both deontological and utilitarian grounds.
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They argued that criminal prosecutions were either necessary moral and legal responses to criminal offenses or were useful means of endorsing the criminal justice system, upholding the rule of law, and preventing future abuses through the effects of deterrence, or both. These scholars explicitly opposed the main alternative to prosecutions – amnesties – and questioned their ability to serve the instrumental function of bringing peace and stability to transitional countries with which they had been readily associated.
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By contrast, scholars of democratization viewed the rising demand for accountability that had accompanied the Latin American transitions as a fad that would pass with the passage of
time. For example, in
accordance with his view that transitional justice is ‘shaped exclusively by politics’, Huntington observed that no effective criminal prosecution and punishment occurred in most transitional countries before concluding that ‘[i]n new democratic regimes, justice comes quickly or it does not come at all.’
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His guidelines for democratizers thus advised that only when it is both ‘morally
and
politically desirable’ should the leaders of past authoritarian regimes be prosecuted.’
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Similarly
, O’Donnell and Schmitter predicted that such prosecutions would become less likely as ‘the bitterness of memories attenuated with the passage of time’ in transitional societies.
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These scholars openly supported the positive function of amnesties in bringing democratization and raised concerns that pushing new democracies to prosecute still-powerful members of former regimes might derail transitions and precipitate renewed violence.

The punishment versus pardon debate came to a head in 1993 with the creation of
the International Criminal Tribunal for the Former Yugoslavia (ICTY). In this instance, the ‘Security Council voted to create’ an ad hoc international tribunal ‘while the fighting and atrocities still raged.’
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Skeptics of criminal prosecutions vehemently criticized the tribunal for obstructing the ongoing peace process and thus prolonging a war that brought great human suffering.
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As one anonymous analyst famously wrote, one of the lessons of the former Yugoslavia was that the ‘quest for justice for yesterday's victims should not be pursued in such a manner that it makes today's living the dead of tomorrow.’
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Lawyers and human rights activists responded to these criticisms and supported the
tribunal by arguing that the ‘enforcement of international law’ was ‘an immediate priority, subordinate to neither political nor military imperatives.
’
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With the signing of the
Rome Statute in July 1998 and the arrest of the former Chilean
president Augusto Pinochet in October of the same year, the prosecution versus pardon debate continued and intensified.
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Both events instigated debate over the legitimacy and efficacy of invoking the principle of universal jurisdiction and raised questions about the international status of amnesties granted at the domestic level.
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While proponents of trials heralded their ability to deter future human rights violations,
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others voiced concerns that pursuing international prosecutions through bodies such as the ICC ‘could initiate prosecutions that aggravate bloody political conflicts and prolong political instability in
the affected regions.’
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For example,
Snyder and Vinjamuri presented a strong argument based on empirical data that human rights trials can actually increase the likelihood of future atrocities, exacerbate conflict, and undermine efforts to establish democracy.
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In particular, they argued that insurgents engaged in civil conflicts will not sign peace agreements if they fear they will be held accountable for past abuses, even going so far as to accuse ‘[p]roponents of legalistic justice who underrate the centrality of…political considerations’ of causing ‘more abuses than they prevent.’
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In response, proponents of prosecutions have increasingly turned to large-scale empirical studies to determine whether prosecutions or pardons produce the most favorable sets of outcomes for peace, democracy, and human rights.
Sikkink and Booth Walling thus conducted a comprehensive study of the impact of human rights trials in Latin America and found that in these cases prosecutions did not ‘undermine democracy and lead to military coups’, lead to more atrocities, or extend or exacerbate conflict.
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More recently, in a study involving 100 cases from around the world,
Kim and Sikkink have confirmed not only that human rights trials have a deterrent effect on human rights violations in the country in which they are held, but ‘have a deterrence impact beyond the confines of the single country.’
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In
contrast Meernik, Nichols, and King argue that ‘while human rights trials and international tribunals do not exercise
any negative effects, they do not appear to contribute to reducing the recurrence of civil war or improvements in human rights practices.’
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The debate thus continues.

At the same time as scholars were initially debating the relative merits of prosecuting and pardoning the perpetrators of human rights violations, a new and potentially powerful alternative to criminal prosecutions began to emerge in the form of the truth commission. As early as 1988, an international group of experts unanimously agreed on ‘the central importance of establishing and acknowledging the truth about past violations.’
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As
Alice Henkin noted, ‘There was common agreement that the successor government has an obligation to investigate and establish the facts so that the truth be known and be made part of the nation's history. Even in situations where pardon or clemency might be appropriate there should be no compromising of the obligation to discover and acknowledge the truth.’
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Over time, truth commissions became a frequently used feature of post-transitional states in Latin America and, with this, scholars began to assess their efficacy, recording some encouraging results.
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This new demand for the establishment and acknowledgment of the truth precipitated a further scholarly divide characterized in terms of
truth versus justice. Its emergence coincided with debate over how
South Africa ought to address its violent past as part of its transition to democracy. The course of action chosen in the end for South Africa was posed as a deliberate ‘“third way”, a compromise between the extreme of Nuremberg trials and blanket amnesty or national amnesia’ that came in the form of the
South African Truth and Reconciliation Commission before which individual perpetrators could tell the truth about their actions in exchange for amnesty.
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By criticizing criminal prosecutions and eschewing wholesale impunity, the South African model added another dimension to the prosecution versus pardon debate. In particular, it helped to shift the focus of debate away from the simple peace versus justice and truth versus justice dichotomies to concentrate on the question of the particular types of justice that ought to be prioritized. As truth became acknowledged as an instrument of justice, what was initially framed as the ‘truth versus justice’ debate gave way to debates over retributive versus restorative justice.
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As noted above, retributive and restorative justice are not wholly opposed but characterized by overlapping goals and common practices. They can, nonetheless, be distinguished by their different understandings of who the subjects of crimes are and who constitutes the focus of justice.
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Retributive justice conceives crime as a ‘violation of the law’ of which the state or the international community is the victim. The aim of justice, by this view, is therefore ‘to establish blame’ and administer punishment.
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Critics of punitive justice thus point out that criminal prosecution is ‘a struggle
against perpetrators,
rather than an effort
on behalf
of victims.
’
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By contrast, restorative justice conceives crime as ‘a violation or harm to people and relationships.’
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That is, crime is primarily viewed as ‘a conflict between individuals that results in injuries to victims, communities and the offenders themselves, and only secondarily as a violation against the state.’
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Justice conceived in this way thus focuses on repairing injuries and reconciling communities and draws on a range of mechanisms including truth telling, apologies, forgiveness, compensation, reparations, and participation in traditional dispute resolution practices. Proponents of restorative forms of justice thus argue that victim-centered justice and the forward-looking restoration of social relationships ought to take precedence over backward-looking measures that focus on the perpetrators of human rights violations.
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However, there is a still unresolved issue of whether
amnesties could be constituted as a justice or accountability mechanism. Amnesties are ‘official state declarations that individuals or groups accused or convicted of committing human rights violations will not be prosecuted or further prosecuted or will be pardoned for their crimes and released from prison.’
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Amnesties can take different forms depending on beneficiaries.
Olsen, Payne, and Reiter divide the amnesty according to the four sets of beneficiaries: armed non-state actors; state forces in armed conflicts;
domestic political opposition for crimes against state; and state agents for actions committed against non-state agents (i.e. state repression).
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Here, the first and last categories are most controversial because it is difficult to discern these types of amnesties from either impunity or blanket amnesty. Some scholars further note that even these kinds of amnesties have an element or a hint of accountability by ‘acknowledging the past human rights violations’ and ‘generating a larger discussion of transitional justice’ but these arguments are still highly controversial.
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With the global expansion of transitional justice marked, most notably, by the establishment of the ICC in 2002, came a further set of debates about whether transitional justice ought to be directed or imposed from above, or whether it should be encouraged to emerge from the grass-roots. As more and more countries have come to adopt transitional justice mechanisms, so too have international organizations increasingly adopted and promoted transitional justice as one of their policy goals. For example, new international nongovernmental organizations, such as
the International Center for Transitional Justice (ICTJ), have emerged, while older NGOs, such as
Amnesty International and Human Rights Watch, have begun to frame much of their work in terms of transitional justice. In 2004, the United Nations secretary general issued a report on the rule of law and transitional justice in conflict and post-conflict societies, thus officially launching transitional justice as a policy tool to promote and protect human rights.
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Although the UN clearly states that it tries to avoid imposing a ‘one-size-fits-all’ approach, the UN
Office of the High
Commissioner for Human Rights (OHCHR) and the United Nations Development Program
have, in conjunction with the ICC and donor states, started to standardize the practice and demand the acceptance of fixed norms and practices in transitional and post-conflict countries.
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Transitional justice has thus become something that is ‘normal, institutionalized, and mainstreamed’, and transitional and post-conflict states are now ‘expected, encouraged, or even coerced’ to adopt transitional justice by ‘the international justice industry.’
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As recent works suggest, the impact of the top-down imposition of criminal tribunals and truth commission is already beginning to be felt in places such as Sierra Leone, Rwanda, East Timor, and Cambodia.
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At the same time, in places like East Timor, Rwanda, and Northern Uganda, local leaders, often supported by international activists, began to promote the use of traditional, customary, and indigenous justice measures to address past atrocities.
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Proponents of these types of bottom-up approaches have argued: