Transitional Justice in the Asia-Pacific (8 page)

More recently,
the International Criminal Court (ICC) with its doctrine of complementarity has provided a powerful impetus for individual criminal accountability. Under complementarity, the ICC can take action against perpetrators of war crimes, genocide, or crimes against humanity if states are unwilling or unable to hold them accountable. But the ICC can act only if states have ratified the Rome Statute of the ICC, or if a case is referred to it by the UN Security Council. Of the current 121 States Parties to the ICC, 16 are from the Asia-Pacific region.
¹¹
While not an inconsiderable number of ratifications, the ICC can act only in the cases of gross violations of core human rights that occur after ratification, so most of the human rights episodes considered in this volume are not subject to ICC jurisdiction.

Research on the origins of transitional justice mechanisms suggests that early norm adoption is the result of domestic political struggle and norm entrepreneurs. Domestic human rights organizations with transnational linkages were especially important in promoting the adoption of human rights prosecutions as well as truth commissions. It is noteworthy that those Asia-Pacific countries that have adopted transitional justice mechanisms most fully, such as South Korea and Indonesia, are among the countries in the region with the most active civil society organizations (see Chapters
3
and
7
).

How countries respond to demands from civil society is also relevant to understanding when transitional justice mechanisms were adopted.
In order to pursue transitional justice in some counties, civil society groups first had to work to challenge amnesty laws that blocked prosecutions. Without political or judicial leadership to attempt to circumvent or displace amnesty laws, trials become less likely. Our database thus coded not only the existence of amnesty laws, but also legal challenges to those laws. We found 161 challenges to fifty-six amnesties from 1970 to 2011. In relative terms, Asian countries have had slightly more challenges to their amnesty laws than Europe and Africa: five (3 percent) of challenges in Asia compared to four (2 percent) in Europe and seven (4 percent) in Africa. None of the regions compare, however, with the high number of challenges in Latin America 145 or (90 percent), which have resulted in innovative mechanisms for bypassing or overturning amnesty laws and thus allowed for prosecutions. The high proportion of challenges reflects the degree to which social movements have effectively demanded accountability and the capacity of the legal system to respond to those demands. Civil society activity in the Asia-Pacific transitional countries is reflected in the legal challenges to amnesty laws in four countries: Bangladesh, Cambodia, South Korea, and Thailand. In addition, the challenges in Bangladesh led to the repeal of the 1976 amnesty law, making it one of only three countries in the world to do so.
¹²

Once practices of individual criminal accountability had emerged and were starting to spread, the most important predictor for adoption of prosecutions was the actions of neighboring countries.
Hun Joon Kim has found, for example, that the single most important determinant for whether a country will use a truth commission or human rights prosecutions is the number of other states in that region that have previously used a truth commission or prosecutions.
¹³
Early norm adoption is the result
of domestic political struggle and norm entrepreneurs, but later adoption is the result of a combination of internal demands and external diffusion of models. Norms emerge and diffuse first within regions and only later jump from one region to another and globally. For this reason, the spread of the justice norm has been, and will continue to be, regionally uneven. Regional diffusion patterns lead to a kind of snowball effect; regions in which transitional justice started early are likely to see rapid diffusion while regions with initially few early examples of transitional justice will lag behind.

In summary, because Asia experienced relatively fewer democratic transitions during the third wave and does not have a regional human rights law system or institution, we would have expected the process of accountability to be slower in Asia than in Europe, Latin America, and Africa. The level of transitional justice in the region, however, is somewhat higher than anticipated. The increase in the use of various forms of transitional justice mechanisms in the region as documented in this chapter and in the entire edited volume may be the result of the active role of civil society organizations in key countries and regional diffusion effects that have multiplied the use of transitional justice in the region.

We consider three approaches to explain the impact of transitional justice:
deterrence
,
normative socialization
, and
accountability-with-stability
. While these hypotheses could be competing, they could also be complementary. The deterrence
hypothesis derives from both the international relations compliance literature, involving a rationalist assumption that an increase in enforcement should lead to an increase in cooperation,
¹⁴
and the literature on deterrence in domestic legal systems
¹⁵
that an increase in
the likelihood or probability of arrest and punishment can deter crime.
¹⁶
The normative socialization hypothesis sees transitional justice mechanisms as high-profile symbolic and performative events that communicate and dramatize norms and socialize actors to accept those norms. These processes of communication and socialization in some cases can lead to behavioral change without the use of material sanctions or punishment.
¹⁷

Our previous research has produced some evidence for each of these hypotheses. Sikkink's book,
The Justice Cascade: How Human Rights Prosecutions are Changing World Politics
, in particular, stressed the importance of both deterrence and normative socialization as theories that help explain why trials have a positive impact on human rights practices. In addition,
Payne's research with Olsen and Reiter
¹⁸
and Sikkink and Kim
¹⁹
have found that the use of trials is associated with improvements in human rights, lending some support for the deterrence hypothesis that an increase in enforcement or punishment can lead to a decrease in crime. In addition, new research using the NSF/AHRC data on convictions also suggests that prosecutions that end in convictions have a more significant impact on human rights practices than prosecutions that do not
end in convictions.
²⁰
This provides support for the deterrence argument, in which an increased likelihood of retribution or punishment is the factor contributing to human rights improvements. At the same time, Kim and Sikkink (2010, 2012–2013) have found that truth commissions and prosecutions that do not result in convictions continue to be associated with improvements in human rights, providing some support also for the normative communication hypothesis. Olsen et al. (2010), on the other hand, have found that the use of truth commissions alone is not associated with improvements in human rights, but rather a deterioration of those scores, which calls into question the normative socialization hypothesis.

On the surface, the use of
amnesties does not appear to be consistent with either the deterrence or the norms and socialization explanation. However, our joint research project suggests that amnesty laws and accountability efforts set in motion dramatic and public debate, establishing a new justice norm to replace the prior culture of impunity. Payne's research with Olsen and Reiter has revealed a set of pathways used around the world to circumvent amnesties and allow for trials and improvements in human rights and democracy.
²¹
Indeed, some evidence suggests that where amnesties exist, mobilization to undermine them leads to trials, a pathway to accountability and deterrence that is less likely where no amnesty law exists to condemn domestically or internationally.
²²
Moreover, trials and truth commissions reveal the lack of legitimacy of amnesties, suggesting that normative socialization may contribute to undermining the effectiveness of amnesties in preventing accountability.

Payne's research with Olsen and Reiter in particular develops the
accountability-with-stability
approach. In their 2010 book,
Transitional Justice in Balance: Comparing Processes, Weighing Efficacy
, they tested the assumptions in the existing literature regarding the impact of transitional justice on human rights and democracy. They found that they could not confirm the theoretical approaches that assume that single mechanisms are likely to bring improvements in human rights or democracy. Neither trials nor truth commissions nor amnesties – by themselves – produced positive statistically significant findings for those outcomes.
²³
They found, however, that certain combinations of mechanisms produced positive and statistically significant results for human rights and democracy.

Two specific combinations produced those results:
(1) trials and amnesties or (2) trials, amnesties, and truth commissions. The “justice balance” approach that they derived from this analysis contends that trials and amnesties complement each other. Trials enhance the institutional strength and legitimacy of courts by showing that previously untouchable perpetrators of state violence can be held accountable. By punishing perpetrators, moreover, trials attach a cost to committing atrocity, thereby eroding the previously prevailing culture of impunity. Amnesties, on the other hand, allow for stability during the early vulnerable period of transition in which trials might catalyze former perpetrators and jeopardize the nascent democracy and its protections of human rights. Amnesties might also protect against “show” and “sham” trials that are likely to occur in the early transition period before the old regime's legal community is replaced with prosecutors and judges trained after the democratic opening. In addition, amnesties might offset the cost of expensive trials by first allocating scarce public funds to resolve economic crises in the early years of the transition before adopting trials during a more secure economic moment. The balance, hence, involves stability on one side and accountability on the other, together increasing the likelihood of
positive results for human rights and democracy. The assumption behind the justice balance is that accountability might not have a positive result without stability, enhanced by amnesties, and that amnesties will not likely advance human rights and democracy without accountability mechanisms. Truth commissions contribute to the balance by enhancing the stability-accountability function of transitional justice and addressing the specific needs of victims.

This approach draws on existing scholarship on transitional justice. It concurs, for example, with those who advocate trials as essential to human rights improvements.
²⁴
It also concurs with those who consider amnesties a “necessary evil,” an undesirable but often crucial ingredient to successfully ending violence and promoting democratic transitions.
²⁵
These approaches are often viewed as incompatible. Those advocating trials tend to consider amnesties a form of impunity that jeopardizes human rights advances. Those advocating amnesties tend to view trials
as undermining the transition process. Indeed, advocates of truth commissions see them as negotiating the space between the potentially destabilizing trial process and the impunity associated with amnesties and, therefore, a better alternative to both trials and amnesties. The justice balance approach suggests that these three sets of mechanisms are not trade-offs, or alternatives, to each other, but rather are complementary. Together they bring the stability and accountability that advances human rights improvements.

Olsen et al. draw the conclusion that the existing literature exaggerates the presumed trade-off between trials, amnesties, and truth commissions. This analysis suggests that human rights and democracy improvements depend on trials and amnesties, with or without truth commissions, suggesting that the mechanisms complement one another in a justice balance of accountability combined with stability.

Since the publication of their book, Olsen et al. have begun researching alternative explanations for their results. Some scholars argue that the coexistence of trials and amnesties may result from historical and sequenced outcomes, rather than a functional relationship. In particular, when trials and amnesties coexist to improve human rights, trials may have succeeded in overcoming the limitations on accountability that amnesties impose. Latin America provides the most compelling example of such a process. Thus, sequencing, timing, type of amnesty, context, and region may suggest that trials alone, without the need for amnesties, improve human rights. The researchers have considered these alternative explanations in their recent work.

Sequencing
.
Some scholars, including Payne's research team, assume that the positive outcome from combining trials and amnesty results from their adoption sequence. In some cases, however, scholars suggest that where trials follow amnesties, they render amnesties ineffective and irrelevant. Trials therefore drive the improvements in human rights – not amnesties or combinations. Payne's team contends, in contrast, that if trials were doing all of the work for improvements in human rights, then trials on their own would have produced positive outcomes for
human rights. Payne's research team suggests that amnesties play an important role in establishing stability. Thus sequencing trials after the initial vulnerable period of transition would allow for amnesties to play the stabilizing role that allows for the transition and subsequent trials allow for the accountability function of strengthening judicial institutions and raising the cost of committing human rights violations.