Transitional Justice in the Asia-Pacific (39 page)

The cases of the Asia-Pacific we have examined in this book contribute to our understanding of the adoption and diffusion of transitional justice practices and processes in two main ways. First, our in-depth case studies allow us to evaluate the particular contexts in which states adopt multiple transitional justice mechanisms and the means and combinations by which they do so. Second, our cases also provide insights into the ways in which innovation drives both the development of new transitional justice practices and the reinvention and modification of past traditional practices.

Where the first contribution is concerned, the Solomon Islands provides a good example of the sequential adoption of multiple transitional justice measures. Here an amnesty was used in an attempt to procure a peace-settlement, followed by trials and, finally, a truth commission. The use of multiple measures in this case was less the result of a planned, integrated transitional justice process, than of trial and error. Trials were implemented to address the impunity afforded by amnesties, and the truth commission has sought to mitigate the negative effects of the trials. That is, dysfunctional outcomes produced by previous measures led to the adoption of the next mechanism in what became the sequenced process.
³
The practice of sequencing transitional justice mechanisms in response to the failings of past measures also took place in the cases of Sri Lanka and South Korea. Here, however, the same measure was adopted multiple times as part of repeated attempts to achieve the same
end. Thus, in South Korea and Sri Lanka, new truth commissions and commissions of inquiry were established in these country's attempts to overcome the limitations of their past truth-seeking efforts.
⁴

By contrast, although the case of East Timor saw the same set of transitional justice mechanisms implemented as were employed in the Solomon Islands, here they were used almost all at once. Trials and truth commissions were thus employed at the same time and used in conjunction with traditional and customary practices. Combining both the sequenced and concurrent adoption of accountability measures, alongside its reiterated truth commissions, South Korea also saw the prosecutions of two former presidents and the award of a pardon.

What the cases of the Asia-Pacific examined in this book thus demonstrate is that different patterns of adopting multiple transitional justice measures lead to different emphases being placed on particular practices and mechanisms. For example, in the case of the Solomon Islands, the establishment of a truth commission has been prioritised over and above pursuing further trials or, indeed, granting new amnesties. Similarly, although South Korea has used both mechanisms, truth commissions have been far more central to its transitional justice efforts than trials have been. In both these cases, as well as the case of East Timor, dissatisfaction with retributive measures has been a significant factor in determining the relative weight of importance placed on prosecutions and truth commissions. Thus, while previous studies of holistic approaches to transitional justice have cogently elucidated the preliminary fact that different measures are often adopted within one transitional or post-transitional country, our study goes one step further to demonstrate that differing weights of importance can be applied to different accountability measures for different reasons. What is more, while previous studies of the holistic approach have tended to emphasise which combinations of transitional justice measures are most prolific and, indeed, effective, the cases of the Asia-Pacific demonstrate that considerable variation
exists even among states that implement the same combination of mechanisms. Indeed, as
Kent observed with relation to the case of East Timor, the precise combination of mechanisms chosen is not always informed by a desire to see the best possible anticipated outcomes. Rather, she wrote:

The establishment and operation of East Timor's transitional justice process…was not a balanced, coordinated and locally responsive attempt to combine prosecutions, reconciliations, and truth-seeking…it involved a fraught process of negotiation between and among an array of international and national actors which brought to the fore specific interests and multiple views about the best way to deal with the past.
⁵

Until recently, the various justice measures available to transitional and post-transitional societies have been largely conceived as constituting a menu from which states can choose the options that best fit their intended ends. However, the experience of the Asia-Pacific suggests that this is not quite accurate or, indeed appropriate, for two main reasons. First, it is not necessarily the case that all transitional justice options are available to states in any given situation. Rather, the mechanisms available and the choices states make are informed by contextual particularities and practical constraints. As we have seen, sometimes a ‘decision’ to adopt a certain accountability measure is not so much a matter of choice as of needing to deal with political pressures and limitations. What is more, as the experiences of many of the Asia-Pacific cases examined in this volume reveal, choice of mechanism often represents a compromise between ideals and reality, or between ethics and politics.

The role
that politics and, in particular, power plays in processes of transitional justice is not a new concern for scholars or practitioners interested in the pursuit of accountability in the aftermath of human rights violations. Many scholars have pointed out that the balance of power between old and new elites is an important factor for explaining the
adoption of amnesties, trials and truth commissions.
⁶
At the same time, scholars have also drawn attention to the roles played by international actors in transitional justice contexts and debated whether it is appropriate for international organisations and regional and international powers to demand that transitional and post-transitional states adopt certain accountability measures. Our contributors observed that, in the cases of Sri Lanka, Cambodia, the Solomon Islands and East Timor, donors exerted significant pressure on the transitional justice processes in which they were involved. In some cases this pressure has been manifested in the adoption of the idea of human rights as a global norm by civil society groups and domestic populations and resulted in further pressure for accountability measures being brought to bear on transitional states.

A close examination of the Asia-Pacific cases, however, suggests that two other forms of power have been at play. The first is a form of structural power which shapes the conditions of war and peace and influences or even determines the behaviour of states. In the Asia-Pacific, the international power structures of the Cold War, particularly when coupled with the process of decolonisation, saw the ruthless suppression of communist movements. Supported covertly and, at times, overtly, by the United States, several military and authoritarian rulers responsible for brutal crackdowns found themselves sustained under the international order of the Cold War. For example, human rights violations during the period of effective U.S. military control in South Korea left thousands of civilians dead.
⁷
Similarly, as Ainley has pointed out, the Khmer Rouge's atrocities were made possible in part by the United States’ global strategy in the region, and in part by the protection Khmer Rouge was afforded by China.
⁸
With the end of the Cold War the dissolution of this set of power arrangements thus allowed for a new era of democratic uprisings
and a move towards holding individuals accountable for human rights violations.

However, as the case studies examined in this book reveal, the impact of international power structures has not been uniform throughout the region. Rather, it has interacted with and been filtered through particular regional and sub-regional power structures. Indeed, the role that regional powers play in influencing the adoption and choice, or obstruction of accountability measures, remains an underdeveloped area of transitional justice research. As the cases of the Solomon Islands, Aceh, East Timor and Sri Lanka demonstrate, however, regional powers may play significant roles in enabling and constraining transitional justice processes. As Ainley notes in Chapter
4
, regional political relations between Cambodia, Vietnam, Thailand and China affected both the ability of the Khmer Rouge to perpetrate its atrocities and, after its defeat, the transitional justice process.
⁹
Similarly, in Chapter
2
, Sriram explains the role that India has played in obstructing the accountability process in Sri Lanka, and Kent notes in Chapter
5
the interplay between international and regional power structures in the case of East Timor.
¹⁰
In this case, as Kent explains, the transitional justice process was complicated by the international status of Indonesia and, in particular, the support it received from the United States under the umbrella of the ‘War on Terror.’
¹¹

Second, the case studies examined in this volume also provide interesting insights into the role that
innovation plays in developing transitional justice processes and practices. Innovation, in this context, may entail the invention of new transitional justice mechanisms or the reinvention or adaptation of existing, traditional or customary practices. The practices of
nahe biti
in East Timor,
sayam
and
suloeh
in Aceh and reconciliation in accordance with
kastom
in the Solomon Islands all constitute forms of customary practice modified to suit the demands of contemporary transitional justice processes. Two interesting and, indeed, important questions
arise from our observations of these practices. First, what drives and produces these types of innovations in transitional and post-transitional contexts? And second, how do new and customary accountability measures interact with other mechanisms more typically associated with transitional justice, such as criminal prosecutions and truth commissions?

Although further research is required to answer these questions, the case studies examined in this volume have provided some possible explanations for the use of innovative measures in the Asia-Pacific. First, as several of the cases suggest, innovation was driven, at least in part, by dissatisfaction or frustration with typical accountability measures. In the case of East Timor, delays and debates over the seriousness of particular crimes led to the development of customary measures designed to facilitate societal restoration and reconciliation.
¹²
Similarly, in the Solomon Islands, the perceived limitations of the adversarial criminal justice system inspired the adaptation and development of customary inter-personal and communal reconciliation ceremonies.
¹³
Second, the cases examined in this volume also reveal that in most cases local actors, victims, activists and sometimes religious leaders were primarily responsible for coming up with new ideas about how to address the wrongs of the past. In the cases of Aceh, East Timor and the Solomon Islands, their passion and fervent activism led to new customary developments and, in the case of the Solomon Islands, the institution of an official transitional justice mechanism, the truth commission. In the case of East Timor, NGOs and local victims’ groups were the main drivers of innovation.
¹⁴
At the same time, the roles played by religious organisations and leaders have also been noteworthy in several cases in the region. In this vein, Jeffery pointed out the role played by Christianity and Christian groups in the Solomon Islands, Kent highlighted the role of traditional religion in East Timor, and Aspinall and Zain noted the role played by religious leaders
in
peusijeuk
ceremonies.
¹⁵
Third, and finally, one of the key features of these types of innovations is their flexibility. For example, in the Solomon Islands,
kastom
is not fixed or static but has been remoulded, redefined and redesigned to deal with ‘new and unfamiliar circumstances.’
¹⁶
The flexibility and malleability of traditions such as this appears to have played a role in their adoption, in isolation and in combination with other measures, in post-conflict societies.

Drawing on cross-national analyses, in their chapter,
Payne and Sikkink present three arguments concerning the impact of transitional justice measures. First, both Payne and Sikkink argue that transitional justice measures, especially the criminal prosecution of former state officials for human rights violations, are associated with improvements in respect for human rights. This, they argue, provides some evidence supporting the deterrence and normative socialisation approaches. Second, however, while Payne agrees with Sikkink that human rights trials are associated with positive outcomes for human rights, she adds a caveat to her argument: prosecutions have a positive impact on human rights when they are combined with amnesties. In what she and her co-authors have termed the ‘justice balance’, the most positive outcomes for human rights, democracy and peace are produced by two particular combinations of transitional justice mechanisms: trials and amnesties; and trials, amnesties and truth commissions. Third, and finally, Sikkink and Payne reach different conclusions concerning the independent effects of truth commissions. While Sikkink, in her collaboration with
Kim, has found that truth commissions are associated with improvements in human rights, Payne and her co-authors have found that they are not.