Transitional Justice in the Asia-Pacific (4 page)

However well-intentioned, transitional justice needs to more deeply grapple with the messiness of global and transnational involvements and the local, on-the-ground realities with which they intersect,
complexities that are too often glossed over, due in part to the privileging of a cluster of liberal normative goods, such as the rule of law, peace, reconciliation, civil society, human rights, combating impunity, and justice.
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Thus international efforts are often referred to as transitional justice ‘from above’ and posed as being in opposition to the efforts made by ‘grass-roots actors.’
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Debate about the relative merits of top-down versus bottom-up or international and state-led versus civil society-led accountability processes resonates strongly with similar debates about liberal-international versus local peace-building approaches. In large part this is a function of the blurring of practical and, now scholarly, distinctions between transitional justice and peace building. In accordance with its antecedents in peace management and peacekeeping, the practice of peace building tends toward state-oriented, top-down processes.
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Perjoratively termed the ‘liberal peace’ by critics, this approach to peace building favors the promotion of democracy and the establishment of a liberal market economy as the means of attaining self-sustaining peace.
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Within this frame, the optimal functioning of the rule of law is conceived as a key component of democracy and, as such, a strengthened criminal justice system (or, failing that, an international criminal tribunal) is viewed as the best place to pursue accountability for human rights violations.

In recent years, however, scholars from within the critical theory tradition have, as is their modus operandi, criticized the ‘creeping neo-imperialist tendencies of peace promoted by hegemonic forces.’
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That is, they have opposed the imposition of Western liberal approaches to peace building on non-Western societies and the apparent marginalization of local, indigenous processes that have accompanied them. Embedded within these critiques is the assumption that marginalized local forms of justice are inherently ‘good’ and thus deserving of protection against the ‘bad’ imperialist justice imposed by intervening forces. However, just as MacGinty cautions us against the tendency to ‘romanticize’ indigenous and traditional approaches and to assume that they are ‘‘good’ or [of] higher normative value’, so too we must avoid automatically demonizing the liberal approach.
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Both have strengths, and both are susceptible to criticism, based not on ideology but on evidence of the justice outcomes they produce.

In recognition of this and in response to recent practice, some scholars have begun to discuss the emergence of ‘liberal-local hybrid’ forms of peace building. Also termed
‘post-liberal’ peace, liberal-local hybridity ‘represents a transmutation of both the liberal and the local’ whereby the two approaches ‘meet each other on the ground, react and modify each other.’
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Where justice is concerned the assumption inherent in the very notion of a ‘liberal-local hybrid’ approach is that both liberal international and local forms of justice will be transformed by their interactions with one another – that is, that a symbiotic relationship exists between state-led and civil society transitional justice projects.
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As hinted at in the discussion above, the dichotomous extremes that once defined the key debates have softened with far more nuanced accounts of transitional justice dominating contemporary thought. As a recent UN OHCHR report notes, ‘the assumed tension between justice and peace has gradually dissolved.’
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In its place is the widespread recognition that ‘[i]n reality the choice is seldom simply “justice” or “peace” but rather a complex mixture of both.’
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A new trend has thus emerged where a range of diverse transitional justice mechanisms are applied simultaneously or in sequence with one another, thus allowing transitional and post-conflict states to pursue prosecutions and amnesties, truth commissions and justice measures, and international, state, and local initiatives at the same time. In accordance with this development, the UN now endorses the pursuit of ‘comprehensive’ approaches to transitional justice, while the ICTJ, which initially focused on promoting the South African model of truth commissions, now favors holistic solutions to transitional justice.
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This approach has garnered some degree of support from scholars who have found empirical evidence that transitional justice approaches that combine trials and amnesties, or trials, amnesties, and truth commissions provide the best sets of outcomes for democracy, peace, and human rights.
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This approach was not entirely new; the ICTJ, the 2005 revision
of the
Principles to Combat Impunity by Diane Orentlicher,
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and the 2004 report of the UN Secretary-General upheld the holistic and comprehensive approach in principle.
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However, the application of these principles and promotions in the field and serious academic engagement came more recently.

It is within the Asia-Pacific, in particular, that many of these recent developments in transitional justice have occurred. We have to make it clear that this new development in transitional justice is not exclusively confined to the experience of the countries in the Asia Pacific. Certainly, many combined and holistic approaches have been taken in places such as Chile, Guatemala, Peru, Sierra Leone, Rwanda, and Uganda. However, as mentioned earlier, compared to these cases, the country cases in the Asia Pacific have not fully explored either by international practitioners and scholars so far. In this book we define the
Asia-Pacific as a contiguous region of the world that includes East Asia, Southeast Asia, South Asia, Melanesia, and Oceania (primarily Australia and New Zealand). In one sense this is a narrower understanding of the Asia-Pacific than that adopted by the
Asia-Pacific Economic Cooperation (APEC) which also includes states that reside on the Pacific Rim such as Russia, the United States, Chile, Peru, and Mexico. In another sense, by excluding the states of Central Asia and the Middle East, it also represents a narrowing of the normal geographical boundaries of Asia.
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Addressing the past wrongs is not a new theme for countries in the Asia-Pacific. Although much less mentioned compared to the Nuremberg counterpart, the
Tokyo international military tribunal was set up
immediately after the end of the World War II to address war crimes and crimes against humanity, and more than 5,000 Japanese nationals were brought to the court. Moreover, the legacy of Japanese colonialism left a deep chasm between Japan and its neighbors, especially China and two Koreas, over issues such as sex slavery and forced labor, apologies and reparations, territorial ownership, the content of Japanese history textbooks, and Japanese state officials’ visits to the Yasukuni Shrine.
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On the other side of the equator, human rights violations perpetrated by Western settlers in Australia and New Zealand have also left emotionally-charged tensions between new settlers and aborigines, issues that their respective governments continue to address.
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In the past decade or so, however, the Asia-Pacific region has experienced a significant increase in the use of transitional justice mechanisms to address past human rights violations. In this it has lagged behind Latin America, Eastern Europe, and Africa where the pursuit of transitional justice gained momentum in the 1980s and 1990s. Coming to transitional justice relatively late, however, the approaches pursued in the Asia-Pacific reflect the range of mechanisms available, both individually and in combination with one another and the contemporary challenges faced by transitional justice more broadly.

Table 1
illustrates the overall trend of adopting three main transitional justice mechanisms – trials, truth commissions, and amnesties – in the Asia-Pacific region. Although this data measures only the existence of these mechanisms in the country within a given year, it is still useful to get the bigger picture of the general trend. Notably, all the cases
of transitional justice in the Asia-Pacific since the 1980s have involved the granting of amnesties. Rather than simply choosing impunity over accountability, however, most have also instituted human rights trials at the domestic or international level. Significantly, it was in the Asia-Pacific case of
Cambodia that the idea of instituting hybrid international-domestic criminal tribunals to prosecute the perpetrators of human rights violations was first developed. Although it did not come into operation until 2006, the genesis of the Extraordinary Chambers in the Courts of Cambodia gave rise to what has become known as the ‘Cambodia model’, replicated in the East Timor Serious Crimes Special Panels, the Kosovo Courts’ ‘Panels 64’, and the Special Court for Sierra Leone.
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In addition, truth commissions have also found form in the Asia-Pacific, particularly from 2000 onward. Also significant about the implementation of transitional justice in the Asia-Pacific is that the vast majority of cases listed in
Table 1
have implemented more than one mechanism.

Table 1.
Transitional Justice Mechanisms in the Asia-Pacific, 1980–2010

Note
: The table is based primarily on Olsen, Payne, and Reiter,
Transitional Justice in Balance
, pp. 181–188, with some updates.

Of the nineteen cases of transitional justice in the region since 1980, only six have instituted just one mechanism and, in each case, this was an amnesty. More common has been the implementation of two or more mechanisms either simultaneously, as in the case of East Timor, or in sequence, as in the case of the Solomon Islands in which amnesties in 2000 and 2001 were followed by trials in 2005, and then a truth commission which began in 2009 and is still conducting its investigations. As such, the Asia-Pacific provides fertile ground for examining the practices, processes, and problems associated with the newly endorsed comprehensive or holistic approach to transitional justice. The cases examined in this book are highlighted in bold in
Table 1
and constitute a representative sample of the combinations of transitional justice mechanisms used in the region: amnesty only (Aceh, Indonesia); amnesty and trials (Cambodia);
amnesty, trials, and truth commissions in combination (East Timor); amnesty, trials, and truth commissions in sequence (Solomon Islands and South Korea); and truth commissions and amnesties (Sri Lanka).

Considered in political terms, the Asia-Pacific also brings together two major contexts in which transitional justice is instituted: transitions from authoritarian rule to democracy and from conflict to peace. Since 1980, twenty-eight states in the region have experienced some form of political transition. Of these, eleven have undergone at least one transition to democracy.
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During the same period, East Timor has gained independence from Indonesia while Aceh and Bougainville have been granted autonomy from Indonesia and Papua New Guinea, respectively. At the same time, some sixteen states in the region were engaged in violent civil or, less commonly, interstate conflicts.
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Of these, seven also involved a transition from authoritarian rule while two involved a transition to autonomous democratic rule within another state (Bougainville/Papua New Guinea, and Aceh/Indonesia).

Table 2
provides an overview of the political transitions that have taken place in the various sub-regions of the Asia-Pacific in which at least one of the transitional justice mechanisms included in
Table 1
(trials, truth commissions, and amnesties) have been used. This means that political transitions in which no transitional justice mechanisms were employed have not been included. Dividing the Asia-Pacific into its various sub-regions is also significant because it is within the sub-regions that the
greatest commonalities in historical, cultural, and linguistic terms lie and the influences of the great powers of the region are felt. Thus while China and Japan exert influence over Northeast Asia, India looms large over the politics of South Asia, China over Southeast Asia, and Australia over the small island states of Oceania.
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As we will see in the case studies to follow, these influences have in some instances had great bearing on the contexts in which transitional justice has been pursued in the region and the choice of mechanisms according to which it has been implemented. In order to provide a representative sample of cases across the sub-regions of the Asia-Pacific and the three major types of transition the cases highlighted in bold have been selected for individual consideration. Note that neither of the cases listed under the heading of ‘No Transition’ have
been included. This is because each of these is a case of an amnesty being instituted in isolation (as addressed in the case of Indonesia/Aceh).
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In addition, Fiji is something of an anomaly for in this case, an amnesty was granted to those engaged in a military coup in 2000 but was followed by another military coup in 2006, the leaders of which are still in power. Together the cases selected are emblematic of the contexts in and mechanisms by which transitional justice is pursued across the various sub-regions of the Asia-Pacific.