Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (59 page)

Ellen Lutz

Tufts University's Fletcher School

The cases in this volume, which cover a broader spectrum of post‐atrocity “accountability” scenarios than any previous study, offer an opportunity to think afresh about what is needed to achieve justice in the aftermath of massive, deliberately inflicted human suffering. All entail deliberate and institutionalized efforts to achieve justice. All were designed and implemented in preparation for, or in the aftermath of, a political transition. All involve some degree of negotiation among parties who were involved in causing abuses and parties who suffered as a result of the crimes. All have both domestic and international components. Moreover, all of the proposed accountability measures were justified in relation to two central, inter‐related goals: (1) to respond to the suffering from past abuses; and (2) to prevent similar suffering from happening in the future.

Opportunities for victims and others to tell their stories, and for public acknowledgment of wrongs, accurately told – the most common objectives of truth commissions – are usually justified as measures to ease past suffering.
Reparations processes, to the extent that they aim to remedy past harms, are also past‐focused. In addition, trials of perpetrators, justified as vehicles for quelling individual or societal needs for justice, fall within the response to past violations goal.

Preventive goals are more numerous. Some, such as preventing past perpetrators from reasserting power or discouraging future perpetrators, are deterrence‐driven. Others, such as building a justice system so that people will have a legitimate alternative to violence to which they can bring complaints when abuses occur, are aimed at reconstructing civil society in a form that is more likely to prevent future violations. Still others are aimed at preventing particular types of conduct that could contribute to reopening old wounds or igniting new animosities. These include preventing stigmatization by holding trials that personalize blame and preventing vigilantism through publicly legitimized prosecution and punishment. Steps taken to involve all members of society, regardless of their ethnicity or past affiliations, in the design
of accountability processes, the writing of history books that accurately portray the past, or the construction of memorials to victims or courageous leaders who refused to engage in atrocities, are usually justified as efforts to contribute to the goal of future reconciliation.

But while they share the accountability goals of earlier transitional justice efforts, the cases in this volume differ in significant respects. Whereas the first generation transitional justice literature focused on cases involving transitions from military dictatorships, or discriminatory or authoritarian regimes, to democratically elected civilian governments, many of the cases in this volume involve transitions from armed conflict to uneasy peace. In addition, for all their complexity and variability, decision‐makers in the early cases had less opportunity to observe how other states managed similar processes over time or garner “best practices” from other states' experiences. Furthermore, decision‐makers in the early cases did not have the benefit of the jurisprudence that emerged in the 1990s from the Inter‐American Court of Human Rights and the ad hoc Criminal Tribunals for the former Yugoslavia and Rwanda. The early cases also predated the interactive inter‐state process of negotiating the norms and procedures for an International
Criminal Court (ICC), and the further legitimization of those norms that resulted three years later when the sixtieth nation ratified the ICC statute making the ICC a reality.

More importantly, few of the early cases involved political transitions in the aftermath of civil wars in which large numbers of civilians on both sides were the deliberate victims of war crimes, crimes against humanity, or genocide, and the societal and institutional infra‐structure was destroyed. Civilian governments in many first generation transitions had some semblance of a judicial system that could be activated to try cases, and the support of moral leaders who could be enlisted to head up truth commissions. They did not have to contend with circumstances in which those judges and moral leaders present beforehand were casualties of the conflict, or in which a functioning judiciary never existed. Nor did they have to detain thousands of alleged perpetrators of atrocities without adequate penal facilities, courtrooms, lawyers, or capacity to gather evidence. Moreover, in early transitional justice efforts state repression was almost always the main source of violations, and human rights law the explanatory paradigm; in the newer cases, war crimes by organized non‐state forces are much more prevalent, and international humanitarian law is increasingly the language in which accountability demands are framed.

Finally, most of the early cases did not involve the kinds of extreme intervention by other states or inter‐governmental organizations that
characterize many of the cases in this volume. Even where international observers or monitors were present, as was the case in Central America, they were nowhere near as ubiquitous, nor was there as dominant a military or political presence as that of the US forces in Iraq and Afghanistan.

The cases in this volume reveal some basic truths about transitional justice that were far less evident a decade ago. In an earlier era, scholars and activists debated which was more important: Truth or Justice? Justice or Peace? These cases show the fallacy of such dichotomies. Today, decision‐makers designing transitional justice processes increasingly understand that they cannot afford to isolate such fundamental, inter‐dependent interests, and that, in the aftermath of conflict or widespread atrocities, all of the accountability goals must be met. While transitional governments may have some latitude in deciding in what order, when, and how to implement processes to achieve those goals, ignoring any of them risks destabilizing both those governments and the sustainability of peace. Even under the best of circumstances, as the chapters on Argentina and Mexico demonstrate, unmet transitional justice goals will cast a long shadow across the political landscape that will not go away until they are realized.

Grouping transitional justice processes into those involving “truth‐telling” and those involving “trials,” oversimplifies the complex calculus that states and their international partners must apply to achieve transitional justice objectives. Thus, in some cases decision‐makers have afforded victims the opportunity to tell their stories to “truth and reconciliation commissions,” while in others they limited them to doing so only in the context of providing evidence for a judicial proceeding. In some cases states have used trials to prevent former perpetrators from reasserting power; in others they achieved that goal by allowing them to “retire” abroad. The cases in this volume, particularly those that examine transitional justice process for atrocities committed many years ago, demonstrate that the most important indicator of the success of transitional justice measures is not
how
they achieve the above goals, but
whether
they do so.

Of course, all transitional justice processes must address multiple goals. Thus to be effective, the process of crafting each transitional justice mechanism must consider and balance all of those goals. In addition, the process must make provision for making adjustments over time to incorporate, adapt, or remove elements to improve its effectiveness
and to ensure that whatever product results is actually put into practice. Moreover, transitional justice goals are not the only items on the post‐transition agenda. Transitional governments must also address a host of non‐transitional justice matters, including security, consolidating democratic practices and institutions, rebuilding neglected or damaged infrastructure, invigorating the economy, reinserting former soldiers into civilian life, and the return or resettlement of refugees or internally displaced persons. In many cases transitional leaders will face challenges from political opponents, including “spoilers” who oppose the transition or felt excluded from negotiations that led to it. Thus, in any transition, those holding power, even when they genuinely want to redress past violations, will feel pressure to balance transitional justice goals with the other urgent societal and political concerns. At the same time, these multiple concerns need at least enough coordination so that they do not run at cross‐purposes.

Different post‐transition governments have different degrees of interest in realizing transitional justice goals. But unlike two decades ago, they have more constraints operating against them if they lack the political will to undertake meaningful transitional justice measures. International political interest in transitional justice has now solidified, so that simply “brushing the past under the rug” is under most circumstances no longer an option. In part this transformation is the result of the international human rights movement's dogged interest in the issue which began with the trials of the nine Junta members in Argentina in 1985. Over time achieving justice for past violations of human rights assumed a prominent place on the agenda of the leading international human rights organizations, and the foundations that supported their work. Today new pressures, such as the existence of the
ICC or the possibility that other states will exercise “universal jurisdiction” over their citizens, are motivating states to strengthen their domestic laws and procedures to ensure that their citizens, no matter how serious their crimes, can be tried at home rather than in an international forum.

But even more interesting, these combined events, along with the continued prodding of the international human rights movement, have led to a degree of international normative consensus that states must hold accountable those responsible for atrocious violations of human rights that approaches the level of consensus that states must respect human rights. As Kathryn Sikkink underscores in her article, the political and legal opportunity structure for accountability has changed. The international justice movement, operating in a dynamic partnership with domestic demands for accountability, has created a new multi‐layered political and legal opportunity structure that makes it difficult for states
to dismiss demands for accountability for widespread and systematic heinous human rights violations.

Beginning in the 1980s, civil lawsuits in United States courts and criminal indictments in European countries against perpetrators of human rights violations that were the subject of the first generation transitional justice literature (e.g., Argentina, El Salvador, Guatemala, the Philippines) began to limit the freedom of movement of perpetrators responsible for massive violations of human rights. But the indictment of Augusto Pinochet, former military strongman of Chile, in Spain, and the British House of Lords' subsequent holding that he could be extradited from the United Kingdom to Spain to stand trial for human rights abuses committed in Chile, undermined the long‐standing assumption that post‐transition, democratically elected governments controlled the transitional justice processes for human rights abuses committed in their territory. The Pinochet case was not the result of UN Security Council decision‐making about how to respond to massive atrocities committed in war‐torn, failed states. Rather, it was the result of a transnational social movement, backed by international law and other states committed to upholding the rule of law, to fulfill the transitional justice goals that post‐Pinochet democratic Chile had failed to perform. Despite their best efforts, governments cannot decree the end of a transition.

The “Pinochet Effect,” as Naomi Roht‐Arriaza has called it, has made it increasingly difficult for perpetrators of human rights violations to evade accountability measures.
[1]
Whereas a generation ago, a domestic amnesty pretty well assured any high‐level official responsible for massive human rights violations a comfortable retirement anywhere in the world, today travel abroad poses the hazard of arrest, trial, and punishment far from home. The possibility that their citizens might be tried abroad, coupled with establishment of the International Criminal Court, has led some states to sacrifice domestic immunity from prosecution if the alternative is an infringement of sovereignty resulting from having their former political leaders tried elsewhere. As Kathryn Sikkink and I have previously written, governments, and even the armed forces, of countries committed to consolidating democracy, want to foster the perception that their courts possess the competence, capacity, and independence to effectively try their own nationals.
[2]

International human rights courts are increasingly declaring that amnesty provisions violate international law. In 1998, an
ICTY trial chamber noted that a domestic amnesty covering crimes such as torture that
have attained
jus cogens
status “would not be accorded international legal recognition.”
[3]
In the Americas, the Inter‐American Court of Human Rights has declared that amnesty measures, to the extent that “they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non‐derogable rights recognized by international human rights law,” violate the American Convention on Human Rights.
[4]

These courts do not base their findings on explicit “no amnesty” provisions in international human rights treaties. Indeed, some international law treaties explicitly require states to grant “the broadest possible amnesty to persons who have participated in armed conflict.”
[5]
Rather, the courts imply a duty not to grant amnesty from more general international norms requiring states to provide victims with remedies for human rights violations, or to prosecute perpetrators, as well as from specific provisions in treaties on torture, forced disappearances, genocide and certain war crimes.
[6]