Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (60 page)

There are plausible arguments for amnesties. The Sierra Leone Truth and Reconciliation Commission's Report, for example, cautions that, “those who argue that peace cannot be bartered in exchange for justice, under any circumstances, must be prepared to justify the likely prolongation of an armed conflict.”
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In that case, the Truth and Reconciliation Commission found itself “unable to declare that it considers amnesty too high a price to pay for the delivery of peace to Sierra Leone.”
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Jack Snyder and Leslie Vinjamuri argue elsewhere that amnesties can help entrench the
rule of law in a fledgling democracy. They maintain that “norm‐governed political order must be based on a political bargain among contending groups and on the creation of robust administrative institutions that can predictably enforce the law.” Thus, where restoring peace, security, and order are the paramount concerns, granting amnesties can help accomplish that goal. Once granted, Snyder and Vinjamuri maintain, amnesties must be respected to shore up fragile political and judicial institutions that, in turn, are the best insurance policy against violence breaking out anew. In their view, institution‐building is a pragmatic domestic process that is prerequisite to the embedding of norms. Once securely in place, those institutions can help to create a climate of normative consensus for the just norms expressed in international law treaties, but this process never works the other way around.

Both of these arguments are undermined by research conducted by Christine Bell who found that most peace agreements do not deal with past abuses of human rights.
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Instead, accountability issues are left to
the implementation stage. Moreover, when they do appear in the text of settlement agreements, they are vulnerable to post‐settlement revision. Thus, in Sierra Leone, both the Truth and Reconciliation Commission and the Special Court's hybrid national‐international trials, described in detail in this volume, have been instituted. The government has begun the long, slow process of institution‐building necessary to consolidate democratic legitimacy and the rule of law. Neither the offer of amnesty nor the UN caveat of non‐support for amnesty had much influence over RUF behavior. Rather, it was the disingenuousness of their leader, who cared more about his own hide and future wealth than peace or prosperity for the country that undermined the Lomé Agreement.

A similar scenario is now being played out in Afghanistan where, instead of being disarmed, former warlords have been selectively welcomed at both the negotiation table and into the transitional government to reduce the likelihood that violence continues. The result is a government that is dominated by heavily armed faction leaders whose power comes from the implied threat of renewed violence rather than true leadership or democratic legitimacy. If there is any lesson to be drawn from these two cases, it is that criminals make untrustworthy negotiating partners, and their inclusion in democratic institution‐building is likely to prolong and de‐legitimize those processes.

The cases in this volume teach another lesson about amnesties: that no promises to perpetrators of serious human rights and humanitarian law crimes are likely to withstand the test of time. Peru's amnesty laws were overturned as a result of an Inter‐American Court decision, and despite problems some prosecutions are going forward.

The indictment in 2004 of former President Luis Echeverría and other Mexican officials on charges of genocide for the massacre of at least 25 student protesters in 1971 is another example. The indictment was brought by the Special Prosecutor named by President Vicente Fox to “discover and reveal past abuses, determine personal and institutional responsibility, and systematize and disseminate the truth about Mexico's dirty war.” The hunger for justice for this crime, which human rights activists claim resulted in the deaths of as many as 300 protesters, survived 33 years of tacit agreement among PRI presidents to protect their predecessors from charges for human rights‐related crimes.

Argentina is engaged in a similar process of re‐examining its amnesty laws. Political interests in Argentina have undergone a sea change between 1987, when President Alfonsín pushed amnesty measures through the Congress, and 2003, when the Argentine Congress, with the support of the newly elected President Néstor Kirchner, passed a law that declared the amnesty laws void. The Supreme Court in June 2005
confirmed this result, and cases against former perpetrators are moving forward in Argentina's courts.

All these developments mean that the political calculus for governments, and for powerful perpetrators of atrocities, has changed. Thus, in Colombia, President Uribe has not granted amnesty to the paramilitary forces with which it is negotiating. Instead, his government has negotiated a nuanced scheme that skirts an outright amnesty but also protects demobilizing paramilitaries from serious penal consequences for past crimes. This suggests that states and perpetrators of atrocities are adapting their behavior to cope with the new normative milieu, and that those who seek to bolster the no‐amnesty norm must be vigilant to ensure that negotiated agreements or other processes that pay lip service to accountability are not, in fact, smoke and mirrors tricks.

External intervention has both exacerbated the underlying atrocities that lead to the need for transitional justice, and contributed to the process of achieving that justice. Both such effects occurred in many of the early cases, particularly those in Central America where conservative governments received huge infusions of US military assistance to combat guerrilla movements, but used that aid to commit egregious human rights and humanitarian law crimes. On the other hand, these countries were aided by UN mediators, peacekeeping monitors, and/or international participation in truth and reconciliation activities. In Bosnia and Rwanda, a similar phenomenon occurred, although in those cases it was US, European, and international community inaction that raised the confidence of the parties engaged in genocide, ethnic cleansing, holding siege to civilian strongholds, and committing war crimes and other atrocities.

But nothing from these earlier cases matches the degree to which external intervention skewed transitional justice initiatives in Iraq. No matter when it fell, Saddam Hussein's regime destined itself to leave behind a traumatized and insecure population, aching to know what had happened to hundreds of thousands of disappeared loved ones, and hungering for revenge for ruthless murders and poisonous gassing of thousands of political opponents and genocide victims. But, as the Iraq case study demonstrates, rather than quickly implementing consultation, careful planning, and collaboration with the world's most experienced transitional justice experts, the Bush administration compounded the suffering of the Iraqi people by blindly barreling ahead with its own paradigm of transitional justice. One of the gravest errors made by the United States in Iraq was not planning for meaningful ways to include a
broad cross‐section of the Iraqi people in decision‐making about what transitional justice mechanisms should look like. Instead, determined for its own purposes to capture and condemn Saddam Hussein and his close allies, the United States leaped into action on the accountability front in the same manner that it had proceeded on the liberation front: it ignored local interests and talent, failed to collaborate with its allies and international experts, and, instead of pursuing a carefully mapped‐out course, put itself in the position of having constantly to react to ever more severe problems.

Afghanistan is a similar story. While not technically occupied, the US invasion unseated a regime that oppressed an ethnically and politically divided state with few functioning democratic institutions. Civil society efforts to even contemplate transitional justice have been trumped by measures to keep the peace in the most heavily armed country in the world.
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Both the United States and the United Nations supported including factional leaders responsible for war crimes and worse in positions of power, thereby undermining accountability and putting at risk those who called for those factional leaders to be brought to justice. On the other hand, perhaps because outside interveners have not been all‐pervasive in the reconstruction process, national civil‐society organizations have found political space in which to become involved.

External intervention has contributed to the standardization of transitional justice goals and methods. As an understanding of what it takes to achieve accountability for past violations permeates the international community, this understanding is transferred to the state domain when international intervention takes place. This is both deliberate and ad hoc. On the one hand, Special Representatives of the UN Secretary‐General are now sent on missions with guidelines that prohibit them from sanctioning amnesties and other impediments to the achievement of accountability. On the other, the cadre of civil servants sent by the United Nations from one crisis spot to the next is made up of legal technocrats with shared knowledge, experience, and values who believe that accountability for past violations is an essential component of a transition process. With the support of the UN Office of the High Commissioner for Human Rights, these international agents support and assist local political actors to implement transitional justice mechanisms.

The cases in this book also demonstrate that to be effective, transitional justice mechanisms must be both contextually and culturally appropriate. While diffusion from prior experiences of ideas and examples creates
the range of examples and potential strategies, each place adapts, develops, and shapes its own transitional justice experience in light of its own context and culture. There are no “off‐the‐shelf” answers.

There are some essential prerequisites to any accountability process. As the authors of the chapters on Iraq and Afghanistan show, “without some level of security, transitional justice processes are doomed to fail.”
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Moreover, an infrastructure and the requisite political will to create the conditions in which genuine accountability can take place must precede any such measures. There can be no public acknowledgement of wrongs committed in the past if there is no legitimate representative political body able to listen to and acknowledge them. There can be no truth‐telling without protection from retaliation for those who desire to do so. There can be no trials without laws, and judges, and lawyers, and courthouses, and the means to gather and protect evidence.

Sometimes justice has to wait. That does not mean it will not happen eventually, or that immediately realizing other goals, such as preventing perpetrators from reasserting power or terrorizing the population, are not essential. One of the lessons of these cases is that even if justice waits, eventually its time will come. Thus immediate action on all aspects of the transitional justice front is not always essential.

Sometimes measures to achieve accountability will conflict with other human rights principles. In such cases, competing rights must be balanced against one another. In Rwanda, for example, the government had to balance the need to detain participants in the genocide so that they could both be held accountable and also prevented from joining anti‐government Hutu militias, with the human rights duty to try criminal defendants within a reasonable time. In that case, while the international community had legitimate concerns about the length and conditions of their detention, the Rwandan government could not be faulted for concluding that “a reasonable time” was many years, or even decades.

Sometimes justice has to come in creative forms. When the Rwandan
gacaca
system was first considered, the international human rights community balked. As the chapter on Rwanda demonstrates, the idea of accused
genocidaires
“sitting on the grass” before elders and other community leaders, facing accusations and defending their conduct in settings other than regularly constituted courts in which the rules of due process applied, did not comport with their understanding of the provisions of international human rights instruments. On the other hand, Rwandans did not see much justice in a dual system in which the planners and promoters of the genocide would be tried under genteel, due process‐protecting conditions by well‐paid judges, and sentenced to prison terms in comfortable foreign jails, while their followers who did
the dirty work faced years in primitive detention centers, because the Rwandan government lacked the resources to bring them to trial, and the death penalty if convicted.

The
gacaca
process was created by Rwandans who looked to their own history and culture to find a culturally acceptable solution to an overwhelming problem. Designed as both a justice and a reconciliation process,
gacaca
trials were meant to overcome inherent problems of the Rwandan justice system, which was widely perceived as detached from the people who suffered and the communities they were meant to influence. Moreover, those who developed the
gacaca
system were mindful of and influenced by international human rights law standards. While some due process problems are of serious human rights concern, such as the failure to provide defendants with adequate mechanisms to assist them in their defense, Rwanda has found alternative ways of satisfying other underlying human rights principles.

In East Timor, local communities increased the level of participation and legitimacy in the Community Reconciliation Process (CRP) by incorporating attributes of the traditional dispute‐resolution process of
nahe biti bot
or “unrolling of the mat” into hearings. The cultural and spiritual underpinnings of
nahe biti bot
had sustained the people of East Timor for thousands of years, including throughout the epoch of Portuguese and Indonesian rule when the national justice system was corrupt and lacked independence from political powers. While the international community intended traditional and spiritual practices to be elements in the community reconciliation process, Patrick Burgess credits them with heightening CRP success through their incorporation of collective norms that bind communities, and by permitting the conduct of community members to be adjudicated by traditional leaders whose role it is to pronounce on community norms and execute justice.