Transitional Justice in the Asia-Pacific (5 page)

Certainly, this volume does not aim at collecting a comprehensive list of all transitional countries in the Asia-Pacific region. We chose a representative sample of cases from the Asia-Pacific region rather than aiming for comprehensiveness. The main reason for the choice is because, as many of the cases are relatively unknown, we believe that in-depth analysis of these cases is required to delve further into the historical contexts in which transitional justice have taken place and explain some detailed processes and practices that have been undertaken.

Chapter 1, by Kathryn Sikkink and Leigh Payne, serves two main purposes, the first empirical and the second theoretical. First, it serves to situate the study of transitional justice practices and processes implemented in the Asia-Pacific region in a global context. Drawing on transitional justice database projects undertaken at the Universities of Minnesota and Wisconsin, it presents global and regional transitional justice trends from 1980 to 2010 and compares transitional justice practices in the Asia-Pacific region to those of other regions. In doing so, the chapter seeks to highlight what is distinctive about the practice of transitional justice in the Asia-Pacific. Second, the chapter also considers the impact that trials, truth commissions, and amnesties have on human rights and democracy.
It demonstrates that when trials and amnesties are used together, with or without truth commissions, they have a positive impact on both human rights and democracy. In doing so, this chapter provides a further theoretical framework to be utilized in the case study chapters of the book.

The remainder of the book is devoted to the detailed analysis of the cases of Sri Lanka, Aceh, Cambodia, East Timor, South Korea, and the Solomon Islands. In Chapter 2, Chandra Lekha Sriram puts the current situation
in Sri Lanka in historical and comparative perspective. She discusses earlier commissions of inquiry and prosecutions that have taken place for human rights abuses in Sri Lanka before considering options for domestic and international accountability in the current domestic political climate. She notes that to date, the only proposed response to human rights abuses committed during Sri Lanka's civil conflict is a commission of inquiry created by the government to examine the crimes committed by the
Liberation Tigers of Tamil Eelam (LTTE), thus leaving the widespread human rights violations committed by government forces unaccounted for. From an international perspective, the possibilities for accountability are similarly limited. Although there is some international interest in potentially pursuing the case of Sri Lanka at the International Criminal Court, Sri Lanka is not a state party to the Rome Statute and thus this option seems unlikely. The case of Sri Lanka, it seems, it marked by the absence of serious transitional justice practices and appears likely to remain so for some time to come.

In the case of
Aceh, Indonesia, examined by Edward Aspinall and Fajran Zain in Chapter 3, transitional justice has taken a markedly different path although there too it has failed to meet the expectations of many. In this case, the
Memorandum of Understanding (MoU) for peace in Aceh provided for a wide range of transitional justice mechanisms, including the granting of amnesties to former combatants, the establishment of a Truth and Reconciliation Commission and the establishment of a Human Rights Court. As Aspinall and Zain argue, however, despite this promising start, transitional justice has stalled in Aceh with virtually no progress in any justice-related area. In particular, the proposed
establishment of a TRC for Aceh has faced stiff opposition and obstacles at every turn. They thus conclude that in the absence of strong political support for transitional justice it is likely that Aceh will become like several other post-conflict societies, such as Mozambique, where ongoing peace processes continue but without truth or reconciliation.

By contrast, the case
of East Timor, examined by Lia Kent in Chapter 5, has experienced a wide range of transitional justice mechanisms, from the establishment of the Serious Crimes Special Panels, a hybrid tribunal to prosecute human rights violations, to the
Commission for Reception, Truth, and Reconciliation (CAVR) and the joint East Timorese/Indonesian
Commission for Truth and Friendship (CTF), as well as various grass-roots initiatives. As Kent argues, however, despite implementing such a wide range of transitional justice mechanisms, ‘there remains a profound sense of community disappointment with the lack of justice in relation to the violence of the past.’ In particular, she notes that the failures to prosecute senior members of the Indonesian military, to provide material assistance to survivors, and to assist in the recovery of bodies, coupled with a disjuncture in local and international understandings of ‘justice’ have significantly limited the success of transitional justice in East Timor. However, the story she tells is not an entirely negative one. Rather, Kent demonstrates that ‘new and unforeseen possibilities are emerging from the CAVR and CTF’ processes and within local justice initiatives that are helping to redefine how justice is being pursued in East Timor.

In Chapter 4, Kirsten Ainley examines the other example of a hybrid domestic-international tribunal operating in the Asia-Pacific,
the Extra-ordinary Chambers in the Courts of Cambodia (ECCC). She argues that although the ECCC was ostensibly set up to help ‘heal’ the trauma inflicted by the Khmer Rouge, its establishment ‘represents less a victory for advocates of transitional justice than…a reflection of the interests of the Cambodian government.’ In particular, Ainley argues that the ECCC represents the coincidence of power and principle, where the power of the domestic government has come together with international principles
surrounding the pursuit of accountability for serious human rights violations. Thus, despite the efforts of its offices devoted to victim participation and outreach, the ECCC's activities have fallen well short of the expectations of the victims in whose name it was established.

In Chapter 6, Renée Jeffery turns to the case of the Solomon Islands, a case in which amnesties, domestic human rights trials, and a truth and reconciliation commission have operated. She notes that in the aftermath of the civil conflict in the Solomons, two dominant approaches to post-conflict justice emerged. The first, implemented by the Regional Assistance Mission to the Solomon Islands (RAMSI), favored a rule of law approach according to which large numbers of militants on both sides were arrested and processed through the criminal justice system resulting, in many cases, in the imposition of lengthy periods of imprisonment. The second, ‘reconciliation’ approach, favored local, grass-roots, traditional, and indigenous justice processes and were routinely implemented by community groups, women's organizations, and churches. Jeffery argues that in the absence of a formally planned transitional justice process, these two approaches to post-conflict justice have come into serious tension with proponents of each accusing the other of hampering their justice efforts. She examines those tensions and analyzes the extent to which the Solomon Islands’
Truth and Reconciliation Commission, designed in part to provide a bridge between the rule of law and reconciliation approaches, has been able to quell this new set of tensions.

In contrast to the negative or, at best, mixed, appraisals of the transitional justice mechanisms implemented in Sri Lanka, Cambodia, Aceh, East Timor, and the Solomon Islands, the story of South Korea Hun Joon Kim tells in Chapter 7 is one of success. He notes that since demo-cratization in 1987,
South Korea has adopted three types of transitional justice measures: criminal prosecutions, truth commissions and investigatory committees, and reparations. Focusing on three of South Korea's ten truth commissions, Kim argues that ‘truth commissions have had a positive impact on Korean society as a whole by improving human rights and enhancing democracy.’ He notes key changes in Korean society that
have followed the truth commissions, including the issuing of formal apologies, the revision of history textbooks and official histories, and the excavation and reburial of victims. Kim concludes that by pursuing this course of action, South Korea has served to strengthen the core values of democracy: justice, human rights, and the rule of law.

In the Conclusion, we turn to questions of
success and failure in implementing transitional justice mechanisms. We note that, with the exception of the case of South Korea, the assessments made of the pursuit for accountability for past human rights violations in the region make for sobering reading. Failures of design, capacity, and, in particular, political will, appear to mark efforts at transitional justice in the Asia-Pacific far more than stories of successful outcomes. We consider whether this is a fair assessment by providing a comparative overview of the successes and failures of transitional justice in the cases examined in the book. We argue that although there are grounds on which to be critical of the pursuit, or lack thereof, of accountability for human rights violations in the region, the Asia-Pacific has made significant efforts to address the wrongs of the past. These efforts have brought a measure of justice, however imperfect it may be, to bear on human rights violations committed in the region. We argue that this is a significant and positive outcome that provides the foundations on which further attempts at transitional justice might be built in the future.