Transitional Justice

Contending with the Past

Michael Newman

• Publisher: Polity
• Year: 2019
• Print ISBN: 9781509521166, 9781509521159
• eBook ISBN: 9781509521197
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

What should be done after the end of a repressive regime or a civil war? How can bitter divisions be resolved in a way that combines reconciliation with accountability?

In this book, Michael Newman accessibly introduces these debates, outlining the key ideas and giving an overview of the vast literature by reference to case studies in such places as South Africa, Cambodia and Sierra Leone. While recognising that every situation is different, he argues that is vital to contend fully with the past and address the fundamental causes of mass human rights abuses.

A readable overview for those coming to the subject of transitional justice for the first time, and food for thought for those already familiar with it, this book is invaluable in areas ranging from politics and international relations to peace and conflict studies, law, human rights and philosophy.

1
Introducing Transitional Justice

Transitional justice (TJ) appeared as a term and arguably also as a concept only very recently, but its pace of development has been remarkable. In academic terms, this has been demonstrated by the proliferation of research institutes and university courses devoted to the topic, with a sample of 150 academic institutions in 2015 (half in the US and half across the world) revealing that almost 50 per cent taught a TJ-related course (Reiter and Surian 2015). However, it is obviously not solely an academic field, and there has been an equally rapid growth in TJ as a set of practices. As a reflection of both academic and practitioner involvement, in 2007 a new specialist journal, the International Journal for Transitional Justice, was launched, followed five years later by a second, Transitional Justice Review. Yet there are many debates and disputes about the ways in which TJ should be defined, theorised and practised.

This chapter begins by examining the emergence and development of TJ and then considers questions of definition and conceptualisation. It highlights differing strands of opinion within the field and raises many questions and points of contention that will be discussed more fully in later parts of the book. The second chapter turns to a consideration of some of the principal mechanisms through which TJ has been put into practice.

Origins and Development

The term itself may be extremely recent, but this does not tell us whether it is also a new concept or whether it can be traced back historically. Some scholars have argued that ancient Athens might provide an early example (Elster 2004; Lanni 2014). Following the defeat of Athens in the Peloponnesian War in 404 bce, a pro-Spartan regime, known as the rule of the Thirty Tyrants, maintained power for eight months and instituted highly repressive measures, including mass executions, murder and forced exile. The subsequent restoration of Athenian democracy meant that the new government needed to decide how to deal with the tyrants, and it is certainly possible to argue that the mixture of retribution, forgiveness and reconciliation that they instituted foreshadowed late twentieth-century practices. Yet it seems anachronistic to suggest that TJ existed in the distant past, when it emerged as a self-conscious idea and set of values and goals so recently.

A more influential notion has been to argue that the first generation of TJ, or Phase I (Teitel 2003), was established in the aftermath of the Second World War, most notably in the Nuremberg and Tokyo trials. These international trials incorporated the notion of responsibility by German and Japanese individuals for the mass abuses and atrocities, retrospectively deeming them to be war crimes, crimes against humanity and genocide. Such principles would reappear in the canon of TJ at the end of the century, implying continuity with Nuremberg and Tokyo. This was reinforced with the establishment of the International Criminal Tribunal for the former Yugoslavia and that for Rwanda following the mass violations perpetrated in these countries in the 1990s and, still further, with the establishment of the International Criminal Court (ICC) in 2002, with its mandate to prosecute cases of war crimes, crimes against humanity and genocide.

Yet there are also good reasons for questioning the strength of the links between Phase I and a second generation, or Phase II, associated with the 1980s and 1990s. Firstly, despite the importance of the principles set out at Nuremberg, the primary rationale of these trials was for the victors to prosecute the vanquished, while most proponents of TJ have sought to justify it through a more elevated set of principles. Secondly, the claim is rather dubious in historical terms, as there were also many discontinuities in the intervening period, with highly repressive regimes often overthrown or falling without any kind of accountability for the abuses that they had perpetrated. Thirdly, the emphasis on continuity through international criminal law serves to uphold a particular interpretation of TJ in which legal institutions and the notion of individual responsibility are accorded particular significance. However, there is considerable agreement about the timing and initial location of ‘second-generation’ TJ: Latin America in the 1980s and early 1990s, followed quickly by internationalisation, with South Africa playing a pivotal role in this process. But this does not mean that there was any consensus in identifying the most important elements within TJ. This may be illustrated with particular reference to Argentina, which was significant in the origins of this second phase.

Between March 1976 and December 1983, successive military dictators in Argentina sought to eliminate the left through a so-called Dirty War against the social base of two revolutionary guerrilla groups – the Montoneros, an urban group, and the Revolutionary People’s Army, which operated mainly in the countryside. In April 1977, a group of fourteen mothers (subsequently known as the Madres de Plaza de Mayo), who had met in police stations while trying to find out what had happened to their children, organised the first of a continuing series of weekly demonstrations in this plaza in Buenos Aires, demanding to know the fate of the victims. This was courageous, and some of the members of the movement, including its first president, themselves ‘disappeared’. In spite of this, their numbers grew to several thousands by 1982–3, with a national network, including human rights activists and lawyers, and they also secured international support through such organisations as Amnesty International and the UN Human Rights Commission. One important strand of opinion suggests that this kind of grassroots movement, calling for action against impunity, constitutes the core of TJ (Nesiah 2016). But by 1983 the activists and campaigners were also demanding legal action, and following the fall of the Junta they participated actively in the electoral campaigns of various candidates and parties, staging large demonstrations to repudiate the military’s proposal for an amnesty law. In December 1983, the new president, Raúl Alfonsín, signed a decree initiating legal proceedings against nine military officers. A second strand of opinion, which would soon become dominant, has viewed trials and prosecutions as the key element in TJ (Sikkink 2011).

Simultaneously, though, Argentina contributed to the emergence of the truth commission (TC) as a further major component within TJ, because Alfonsín also established a Commission on the Disappeared (Comisión Nacional sobre la Desaparición de Personas, CONADEP) to collect testimonies about the human rights violations. This was incorporated within the ‘Never Again’ report, which had an enormous public impact. The following September, the commission presented nearly 9,000 such cases to the president and documented the disappearance and probable deaths at the hands of the military regime of about 11,000 people, very few of whom were likely to have been cadres of the guerrilla movements. Yet CONADEP was not primarily concerned with themes that later became associated with TCs, such as truth-telling or reconciliation. Rather it was established largely to help make a case for prosecutions, and it identified 1,500 cases where there seemed to be sufficient evidence to indict military leaders. It was, therefore a quasi-legal tool.

The prosecution subsequently focused on just over 700 cases of murder, kidnapping and abuse involving those responsible at high levels. This paved the way to the opening of the Trial of the Juntas, which began in April 1985 and culminated in significant prison sentences for three generals and two admirals. However, the opening of the trials precipitated a reaction which was also of relevance to the subsequent evolution of TJ and schools of thought within it. For the prosecutions led to intense opposition by the military and other sympathisers of the dictatorship and threats to destabilise the new regime. This brought about the so-called Full Stop Law of 1986, which limited the possibility of further indictments, followed by the Law of Due Obedience of 1987, which halted most of the remaining trials. Finally, between 1989 and 1990, President Carlos Menem pardoned those who had been sentenced or court-martialled. Many in social movements demanding the end of impunity, and others who regarded trials as of central importance in bringing about accountability, saw this as a negation of justice and felt that their views no longer had influence on the transition. But another important strand of opinion in the emerging TJ field believed that such compromises were necessary and that pragmatism in the face of power realities was essential for successful transitions.

Two other highly significant changes of regime contained similar tensions but also reflected a further evolution within TJ. In neighbouring Chile in 1973, General Augusto Pinochet had carried out a violent coup against the democratically elected socialist government of Salvador Allende, which was followed by torture, mass imprisonments, disappearances and forced exiles. He had then instituted a highly repressive regime until he was finally replaced by a democratically elected government in 1990. However, this was markedly constrained by the enduring power of Pinochet himself, partly because twelve years earlier, in the aftermath of the most extreme period of brutality, he had passed a decree to ensure that agents of his state could never be tried for their human rights violations. There were protests against this amnesty at the end of the dictatorship, but Pinochet insisted on its maintenance and retained such extensive powers over the new regime that it feared destabilisation or even a new coup if there was any attempt to curtail his power or to undertake trials or purges.

Under these conflicting pressures, the transition regime established a National Commission on Truth and Reconciliation, known as the Rettig Commission, which subsequently reported that agents of the state had carried out the overwhelming majority of human rights violations and that the judiciary had been complicit in these crimes. But this TC differed from the one in Argentina, since it had no powers to indict the past perpetrators of human rights violations. Instead it recommended forms of commemoration of the ‘disappeared’, those executed for political reasons or tortured to death, and envisaged other attempts to bring about reconciliation, with material and welfare reparations. This was an important step in abandoning an insistence on judicial processes as the only legitimate approach to bring about accountability for past human rights violations. The incorporation of non-legal approaches inevitably shifted the emphasis in the emerging idea of TJ. Yet developments in Argentina and Chile, which stemmed largely from recognition of the continuing power of the former regimes, also demonstrated the fact that TJ practices would be influenced by pragmatism as well as normative ideals. Many of the underlying assumptions in the ideas and practices of what now became mainstream TJ were also shaped by the political orthodoxy of the era.

With the collapse of communism in the Soviet Union and Eastern Europe between 1989 and 1991, the West was now dominant and promoted a liberal ideological framework. Certainly, there were important differences within this outlook, particularly between advocates of a welfare state and those who favoured minimal regulation of the market, but the mainstream consensus favoured elections, multi-party political systems, the rule of law and capitalist economies. Dictatorships, whether of the right or the left, were condemned, and there was an implicit assumption that the universal road to peace and prosperity was through liberal democracy. The transitions from repressive states in Latin America thus took place in this wider context of epochal change, which shaped the development of TJ as a concept and practice.

Some of the important international conferences in which the new doctrine emerged constituted a microcosm of broader international processes. These reflected the way in which a notion of transition from ‘dictatorship’ to ‘democracy’ replaced and precluded other possible types of transition – particularly those of transition to socialism, modernisation or development (Arthur 2009: 337–43). The dominant assumption was now that the only relevant type of transition was one that set a given country on a path towards liberal democracy. This influenced the way in which those who helped to devise the conventional notion of TJ viewed the situations in Argentina and Chile, where attempts were simultaneously made to induce elements within the former regime to make their peace with a new order while satisfying their opponents and victims and survivors that a fundamental change was taking place. It was in this context that non-judicial processes, and particularly TCs, became increasingly prominent within TJ. However, these achieved their subsequent status primarily because of the importance of the Truth and Reconciliation Commission within the momentous transition in South Africa.

The ending of the Cold War, the release of Nelson Mandela from jail in 1990, and prolonged negotiations in a climate of continuing violence culminated in the first democratic elections in South Africa in April 1994, which formally ended apartheid. This was widely viewed as an event of major historical importance for the world as a whole, as well as for South Africa, both because apartheid was an outrage and because most observers had believed that it would survive much longer and would eventually be brought down only by a violent revolution. That the transition to black majority rule took place largely through a negotiated transfer of power was therefore remarkable, and the fact that the Truth and Reconciliation Commission was seen to play a pivotal role in this process meant that it acquired international prominence. Many criticisms may be made both of the limitations in the transfer of power and of the commission itself, some of which will be discussed later, but here we are focusing on its role in the development of TJ.

In many respects, South Africa fitted the framework of transition from dictatorship to liberal democracy. It was also conditioned by some similar constraints to those in Argentina and Chile, for the repressive agents of the apartheid state, particularly in the security sector, made it quite clear that any attempt to institute criminal trials would jeopardise the possibility of establishing a democratic system based on majority rule. Since it was equally unthinkable for the African National Congress (ANC) to countenance the blanket amnesty sought by the security sector, the initiative to establish the Truth and Reconciliation Commission was devised as an alternative that might reconcile these contradictory positions. But it transcended the conditions of its birth. This was partly because it was far more extensive in terms of personnel, research and range of activity than previous TCs, but still more because Nelson Mandela accorded it a central role in the project to build a ‘rainbow nation’. Various features of the commission contributed to this aspiration, including the fact that it was led by Archbishop Desmond Tutu. His emphasis on forgiveness, accompanied by live television broadcasts of testimonies from survivors of repressive state brutality, communicated a compelling message of peace and reconciliation.

The Truth and Reconciliation Commission was therefore pivotal in enhancing the credibility and status of TJ – particularly internationally. For it seemed to be far more elevated in ethical terms than a mere compromise between the ANC and the current holders of power. Many saw it, and TCs more generally, as offering an alternative form of justice. TCs were held to be a better way of contending with the past than trials and retribution, since they involve alternative methods of truth-seeking and a partial move away from a focus on individual accountability to a more communitarian notion. As Ruti Teitel has suggested, this emphasis on truth and reconciliation also incorporated much of its normative discourse from other fields, such as ethics, medicine and theology. This meant that the relevant actors changed from the judicial and political spheres to those with moral authority, including churches, NGOs and human rights groups (Teitel 2003: 77–84). Because apartheid had appeared so likely to lead to a violent conflagration, and the Truth and Reconciliation Commission was so visible in the predominantly peaceful transfer of power, South Africa also played a particularly significant part in helping to turn TJ into a key component in international peacebuilding. To appreciate the significance of this, it is necessary to recall a further feature of the post-Cold War era.

While the main peacekeeping role for the UN had been relatively non-interventionist during the Cold War years, there was now a new confidence in the possibility of reconstructing states so as to overcome any propensity to internal violence. Following civil wars and, in some cases, external military intervention, the primary policy prescription was that the road to peace was through the construction of liberal democratic institutions and market economies. In 1992, in An Agenda for Peace, the then Secretary-General of the UN, Boutros Boutros-Ghali, inaugurated the new doctrine of externally driven peacebuilding as a means of ensuring stabilisation in countries emerging from violence. TJ soon became one of the tools of this new practice, and this was made explicit in two subsequent reports by the UN Secretary-General (UN 2004, 2011).

Ruti Teitel termed this as Phase III TJ, in which it was now applied to a situation of ‘political fragmentation, weak states, small wars and steady conflict’ (Teitel 2003: 90). The main ideological basis for TJ as part of the package of peacebuilding measures was very similar to that underpinning its perceived role in the transition from dictatorship to democracy (Sharp 2015), but it now also became one of the methods through which governments, the UN, international agencies and NGOs sought to reconstruct the systems of relatively poor countries. This reinforced some trends that were already present within TJ, such as the growth of international ‘expertise’ at the expense of voices from the areas of conflict. Critical analysts have therefore viewed this third phase of TJ, which also coincided with the era of 9/11 and the inauguration of the ICC, as a period in which the field became anchored in the Global North (Nesiah 2016: 10).

From the start, there had been an incipient professionalism in the circles that were developing the idea of TJ. As time went on, some key individuals became increasingly convinced that they were now acquiring expertise through analysis and experience. ...

Table of contents

• Cover
• Contents
• Preface
• Acknowledgements
• 1 Introducing Transitional Justice
• 2 Mechanisms and Approaches
• 3 Does it Work? Evaluating Transitional Justice
• 4 Specific Perspectives on Transitional Justice
• 5 Transitional Justice Today and Tomorrow
• References
• Index
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