States emerging from a period of conflict or repression often adopt one or some combination of transitional justice (TJ) mechanisms in an attempt to maintain peace while addressing abuses perpetrated in the past. Protagonists from the previous period must find a way to co-exist in the new order. TJ is an increasingly relied upon means to facilitate that process (Sikkink 2011; Ben-Josef Hirsch 2014). The adoption, study, and advocacy for TJ has, however, been based in idealistic aspirations more than observable outcomes, necessitating a fact-based, rather than faith-based, approach to understanding the causal process behind truth commissions (TC) and other forms of TJ (Thoms et al. 2010).
The initial aspirations of TJ mechanisms were grandiose; in reality, mechanisms of TJ are political institutions. As such, they are subject to imperfection, misuse, and failure. Therefore, it is important to identify the particular characteristics that enable these institutions to create a political space in which compromises and discussions about the past can be carried out without further destabilizing the often-fragile environment in which they operate. Mechanisms of TJ are tools used by leaders, governments, societies, and the international community to accomplish a variety of goals, and thus, they are not all alike. In a perfect world, these institutions would be created based on an assessment of what elements would best accomplish a particular institution’s goals. In reality, however, their structure is usually the outcome of a political bargain, and the actors who negotiate these terms are to varying degrees seeking their own protection. Despite these limitations, some TJ institutions are able to create space and therefore an opportunity in which domestic processes begin to change.
This project examines the characteristics that may allow TCs—one mechanism of TJ—to create this space. I focus on TCs alone namely because existing work provides inconsistent findings regarding their impact—quantitative work has found that TCs do not have much effect on the societies in which they exist, while qualitative work presents TCs in a more idealistic light. I posit that this is the result of a failure to consider the wide variety of TCs that exist and the various characteristics that they possess. In this project, I compare TCs against one another hoping to reveal what separates those TCs that are able to have an impact on society from those that are not. One potentially limiting consequence of this is that it leaves out an exploration of the combinations of TJ institutions that exist, as they rarely occur in a vacuum. Instead, countries often adopt more than one mechanism of TJ. Future iterations of this work will broaden the theorized relationships to include trials, amnesties, and lustration processes.
TCs are not simply truth-seeking bodies, but also political tools (Grodsky 2008; Loyle and Davenport 2016; Vinjamuri and Snyder 2015). Although truth-seeking is a crucial aspect of the TC process, it is not the only or a strictly pure goal; the extent to which truth-seeking is the focus of TCs varies. In fact, the truth-seeking capabilities of TCs are constrained by the investigative power or reach determined by a mandate. Additionally, TCs occur in the most tenuous post-conflict environments. Often, they are the result of a political compromise made by warring parties who seek to avoid prosecution, but preserve a negative peace (no war)—another constraint on truth-seeking. Scarce resources in the post-conflict environment are yet another important constraint that impacts the truth-seeking capabilities of TCs.1 Further still, TCs may assist with criminal prosecutions by serving an intermediate role until states can set up trials. They help expedite trials by collecting evidence and testimony that can later be used in prosecutions (Scharf 1996). Frequently, TCs go beyond the mere recovery of facts in pursuit of political objectives by offering “a new official version of a nation’s history during a specific period as the basis for a shared national identity and political culture” (Van der Merwe et al. 2009, 109). These competing objectives and constraining factors limit the truth-seeking abilities of TCs. The characteristics of the TCs must then have some bearing on whether or not the TC is useful in effecting any change in the societies where they exist.
This book centers around the question: What impact do TCs have on human rights and violence in the aftermath of conflict or mass abuse? The World Bank identifies TJ institutions as core program tools for societies attempting to overcome cycles of violence. The performance of TCs, however, varies significantly during the last 40 years. The South African Truth and Reconciliation Commission (SATRC, 1995–2002), for example, held public hearings, awarded individual amnesty in exchange for truth telling, was championed by the unprecedented leadership of Nelson Mandela and Desmond Tutu, and is touted by policy makers and scholars alike as one of the most effective TJ institutions to date (Gibson 2006, 2009). Conversely, the first Ugandan TC (1974) is widely accepted as a mere posturing by the commission’s creator, then Ugandan President Amin, and a failure in its declared mission to end brutality committed by Amin’s government (Hayner 1994). The remaining dozens of TCs fall somewhere between these two extremes, calling attention to the vast differences among these institutions and, further, the inconsistent findings within the TJ scholarship.
I argue TCs are most likely to impact society when they possess certain institutional characteristics—characteristics that send important political signals to the state and broader society alike. If these signals suggest (1) some degree of authority (e.g. independence of the government); (2) a break with the past or regime change; and (3) transparency in both its investigations and findings, then the TC enjoys a social and political legitimacy that enables it to impact society. In particular, I examine whether or not TCs with these characteristics are more likely to respect human rights and exhibit lower levels of violence.
1.1 Scholarly Motivation
Theoretical issues coupled with methodological challenges have kept the TJ scholarship moving at a slow, albeit steady, pace. Despite recent advancements, unanswered research questions abound. I identify three key issues with the current literature. First, at its inception, TJ was saturated with legal and theoretical discussions which placed an emphasis on conceptual and definitional issues (Van der Merwe et al. 2009). While these are important foundational inquiries, the scholarship has moved beyond these conversations. In other words, initial work was normative, and—while important and valuable—that approach has limited this work’s ability to assess TJ institutions as the political tools that they are. Understanding how these mechanisms function politically as institutions is important for observing the impacts they have on the societies where they exist, which is a key contribution this project makes to the literature.
Second, scholars have been ad hoc in their selection of cases, resulting in a segmented field. There is a great deal of inconsistency in the cases selected by various authors (Stewart and Wiebelhaus-Brahm 2017). Some focus on one mechanism: Hayner (2010), Gibson (2004), and Wiebelhaus-Brahm (2010) examine TCs; Meernik (2003, 2005), Meernik et al. (2010), and Kim and Sikkink (2007) consider only criminal prosecutions or trials. Others like Olsen et al. (2010a) take a holistic approach and consider all mechanisms. Still others use some other method of determining cases. Vinjamuri and Snyder (2015) assert that the entire TJ literature has done little to “differentiate hard from easy cases, an underappreciated distinction that is essential to account for variation in the type of transitional justice strategies adopted or in the success of these strategies.” Understanding the differences among TCs is another contribution of the research presented in this book.
Finally, extant research fails to reach consensus regarding the effects of TJ processes (Quinn and Freeman 2003; Freeman 2006; Olsen et al. 2010a; Van der Merwe et al. 2009). Although a growing and vibrant body of research explores the efficacy of TJ (Sikkink 2011; Hayner 2010; Kim and Sikkink 2010; Sikkink and Walling 2007; Roht-Arriaza and Mariezcurrena 2006; Teitel 2000; Taylor and Dukalskis 2012; Olsen et al. 2010a; Wiebelhaus-Brahm 2010; Meernik et al. 2010; Meernik 2003, 2005), there is little consensus on the impact(s) these bodies yield (Thoms et al. 2010). “In essence, a great deal is known about the literal mechanics of transitional justice processes, but far less is understood about the resulting implications” (Van der Merwe et al. 2009, 51). For example, some like Akhavan (2001) conclude that TJ institutions have a positive effect on transitioning societies (Wiebelhaus-Brahm 2010; Olsen et al. 2010a; Kim and Sikkink 2007) while others are more apprehensive (Mendeloff 2004; Snyder and Vinjamuri 2004; Meernik et al. 2010; Loyle and Davenport 2016). I elaborate these inconsistencies in the following paragraphs, but first note that I develop and test a comprehensive theory of TJ success that begins to fill these methodological and theoretical holes by stepping away from the add TJ and stir approach by arguing that political legitimacy must be achieved before any impact can be observed.
Some are hopeful, but apprehensive, about the real impact that TJ institutions such as trials and TCs yield (Mendeloff 2004). This is exemplified by Wiebelhaus-Brahm’s (2010) puzzling and contradictory findings. His qualitative evidence, like others’ (Hayner 1994, 2010), supports the argument that TCs improve respect for human rights. His quantitative work, on the other hand, suggests that in the aggregate this relationship does not hold. Wiebelhaus-Brahm (2010, 141) offers two complementary explanations for these findings. First, improvements in human rights did occur in the case studies, but may not do so in a manner that is reflected in the generalizable quantitative measures available (The Cingranelli-Richards (CIRI) Human Rights Data Project and Political Terror Scale (PTS )). Second, the case studies chosen are the most prominent TC cases (El Salvador, Chile, South Africa, and Uganda) and as a result may be the “best” of these institutions to date and therefore not reflective of a gener...