Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (61 page)

While these local‐level initiatives show great promise as an aspect of transitional justice, caution is in order. Traditional dispute resolution practices may reflect the exclusion of women or other groups, and may privilege the communal over the individual to the degree that they obstruct goals of victim empowerment. They also, by definition, must arise from each society (or even local area), and thus cannot be easily transposed from one place to another. On the other hand, local‐level initiatives force international advocates and funders to think in a more nuanced way about the role of formal courts and Western‐style legal systems, and to incorporate that new understanding into work at the intersection of transitional justice and rule of law.

Creativity can come in forms other than allowing for adequate expression of cultural traditions or community values. In more legalized
societies it can come in the form of identifying novel legal theories that enable justice to take place when more familiar legal theories or procedural barriers appear to block it. In Mexico, Special Prosecutor Carrillo Prieto pressed charges of genocide against former President Luis Echeverria and his co‐defendants for the 1968 massacre in Tlatelolco because, under existing laws, there apparently was no other way around the statute of limitations. In Argentina, lawyers for the Grandmothers of the Plaza de Mayo successfully used the innovative legal arguments on the kidnapping of children to persuade that country's courts to find that amnesty provisions did not apply to senior government officials. Creativity can also come in the choice of forum, for example the decision to bring charges against Hissène Habré in Senegal.

If multiple forms of accountability processes are to be undertaken, forethought is needed regarding how to balance and sequence them. Horovitz identifies some of the problems that can arise when that planning is lacking. She concludes that in Sierra Leone it would have been better if the Truth and Reconciliation Commission had finished its operations before the commencement of the Special Court's process. Doing so would have reduced public confusion about the respective roles of the two institutions, and possibly increased public cooperation with the TRC. It would also have enabled the Special Court to make use of the TRC's report to shore up its legitimacy and as a source of evidence. The tensions between truth commission and trial processes recur in many other cases. And the order of sequencing is not foreordained: Burgess suggests that one advantage of setting up the Timorese CAVR after the establishment of a prosecutors' office was that the CAVR could be consciously designed to fill the holes left by the limited mandate of the Special Crimes Unit.

Part of the tension lies in the unique constraints of criminal trials which depend on credible testimony, the presupposition that a defendant is innocent until proven guilty, due process protections that entitle defendants to cross‐examine and impeach witnesses, including victims who testify against them, and the possibility that a person that everyone “knows” is responsible for atrocities will be acquitted on account of lack of adequate legally acceptable evidence or procedural error. Truth commissions, which do not have to conform to rules of evidence or worry about the due process rights of perpetrators, are freer to create opportunities for large numbers of survivors to tell their stories without being cross‐examined, and to address their reports to posterity rather than to
judges or juries. This may explain why Schabas is more encouraging about the simultaneous use of both mechanisms.

Even when truth commissions are designed to contribute to the prosecutorial process, lack of coordination between them and other government agencies can undermine good intentions. In Peru the lack of an agreed strategy by the Truth and Reconciliation Commission and the
Ministerio Público
about how to address the complexities of systemic crimes led to confusion and competition among investigators of the respective institutions. This was aggravated by a disparity of resources in favor of the TRC. The antagonism between the agencies manifested itself in refusals by the
Ministerio Público
to accept into evidence some of the research of the TRC for reasons as absurd as failing to number pages with numbers instead of letters, and even to frivolous, politically motivated criminal indictments against TRC investigators. But the worst consequence was the diminishment of the accountability process as a result of duplicative efforts and the inability to cooperate.

Other cases in this volume also illustrate the importance of careful planning over how to allocate resources among multiple transitional justice processes. For example, in East Timor, the community reconciliation process was predicated on the existence of the Special Panels to try the most serious offenders. But because the Special Crimes Unit had few resources to investigate alleged perpetrators, community reconciliation processes may have been compromised. As was noted earlier, the disparity of resources among the various transitional justice processes for Rwanda, undermined the legitimacy of all of those processes.

When outsiders intervene, whether to encourage or to undermine accountability measures, there is an inherent tension over who has ownership of the process. Processes that are largely insider designed and managed, and that are politically popular, such as those that occurred in Argentina and Peru, have the highest levels of legitimacy. Indeed, in Peru the Truth Commission had such high levels of political and popular support that it became politically costly to oppose it or to appear to be obstructing its tasks. On the other extreme, outsider‐driven processes like that of Iraq are likely to face significant problems ensuring both continuity and legitimacy.

Even in internally driven processes, insufficient support from both the government and civil society may hamper efforts at accountability. In Mexico, inadequate political support, notwithstanding popular interest in coming to terms with the past, undermined the Special Prosecutor's
efforts to move beyond the goal of publicly acknowledging the truth to prosecuting those responsible. The fact that the Special Prosecutor was hindered from operating in an independent and transparent manner undermined his legitimacy and ultimately the legitimacy of the entire accountability endeavor. The lesson seems to be that civil society can keep the issue of accountability alive, but it takes a certain level of government political will to decisively move forward, as the examples of Argentina with the ascent of President Kirchner, Chad, and East Timor illustrate. Furthermore, if the transformation of society is limited, as Schabas points out, transitional justice will also be limited.

Outsider‐run processes tend to have less internal legitimacy than those designed and run by insiders, even though they may satisfy the interests of interveners or international human rights advocates to ensure that justice is done. This was apparent in the first generation of transitional justice cases after the Salvadoran Congress immediately negated the efforts of an internationally mandated, funded, and conducted Truth Commission by granting amnesty to those named in the Commission's report. In Sierra Leone, the Truth and Reconciliation Commission encountered some legitimacy problems that arose from its partially external character. In particular, the lack of domestic funding negatively impacted any sense of local ownership. The clear lesson is that even when outsiders intervene, they need to take the necessary steps to ensure that civil society has a genuine sense of ownership of the process, which includes being involved in its design and implementation, and may require that domestic resources be expended in order for it to happen at all.

On the other hand, justice requires that a careful balance be struck between ensuring that a process is “legitimate” in the eyes of internal political elites, or even the populace at large, and that it is “legitimate” to the victims. Transitional justice processes everywhere are plagued by funding shortages, politically mandated short timetables, statutes of limitation, and competing interests that limit their reach and overall effectiveness. Even with such limitations, however, they can achieve justice if they create enough space for those who suffered to feel as though they had a meaningful opportunity to take part in the process.

All of the cases in this volume reveal the influence of resources on decision‐making about transitional justice, and ultimately on the legitimacy of transitional justice processes. In addition to the disparity of resources between international and domestic processes for Rwanda, disparities can occur between different domestic processes. Sometimes the decision to provide greater resources for, say, a truth and reconciliation process and be stingy with a prosecution process is made to
appease powerful political opponents who might otherwise face trial or other political reasons. But often resource disparities are the result of poor planning or lack of coordination, with different initiatives funded piecemeal rather than as a package. In East Timor, criminal prosecutions were hampered by successive transfers of investigative responsibility from one international agency to another, and by the fact that, for international political reasons unrelated to events in East Timor, none of the international judges participating in the process had any prior experience or training in international criminal law. In Sierra Leone, the mandate of the Special Court had to be scaled back when the international community provided only $56 million to a Voluntary Fund for a process that was originally expected to cost $100 million, and the TRC was similarly scaled back due to funding shortfalls. The disparity in resources between the two institutions also created tensions and resentment.

Since its inception, the transitional justice movement has operated on the principle that transitional justice, and the goals that underlie it, are by definition a good thing. While this may be apparent in the abstract, these cases show how muddy the reality on the ground can be. Comparative case studies, like these, help us to better understand the problems in anecdotal ways, but they are no substitute for more comprehensive evaluation processes designed to measure the effectiveness of accountability mechanisms over time.

Obviously, this is easier to assert than to do. Justice does not lend itself to measurement of improvements in the way that efforts to eradicate disease or improve literacy or increase per capita income do. While we can count the number of alleged perpetrators who are tried or found guilty, it is much harder to calculate victim or societal satisfaction with the process. While we can claim that deterrence is an important transitional justice rationale, where abuses or other violence do not break out anew, it is hard to determine in what way transitional justice processes contributed to non‐recurrence. While we might believe that transitional justice processes contribute to the solidification of democratic civil society institutions, there are so many other independent variables that are part of any transition process that it is hard to isolate what role accountability measures played.

Notwithstanding the challenges of measurement, these cases underscore the critical importance of evaluation. As long as we continue to develop transitional justice mechanisms in a reactive, ad hoc, politically
biased manner, we will continue to make the mistakes that permeate these cases. Qualitative evaluation processes need to be designed and funded to be carried out not just on a one‐time basis or mid‐way through or at the end of a particular process, but over a period of many years, even decades. They need to take into account and balance the assessment of a cross‐section of stakeholders in accountability processes including victims, perpetrators, participants in the processes, political actors who put the processes in place, a wide sampling of society at large, domestic and international human rights champions, and other relevant international actors. They need to be responsive to all the goals that transitional justice mechanisms purport to achieve. They need to examine the extent of diffusion from one transitional justice process to others.

On the other hand, these cases shed light on some of the problems that arise when the international actors intervened in places where transitional justice measures are needed. Extensive additional evaluation is not needed to begin to craft a set of guidelines that should guide international interveners under such circumstances. Such guidelines should address the importance of creating conditions that allow maximal local control over decision‐making about the process, including what mechanisms are established; who can participate; who gets tried; how long the processes should last; and what cultural or contextual factors need to be incorporated. They should address what qualifications international interveners, particularly international investigators, judges, and other participants in the process, should possess, and they should address the urgent need for financial commitments to be clearly made up‐front and to be honored once committed. Finally, they should address the question of what legacy international interveners should leave behind. This might include the physical infrastructure of national institutions such as courts, prosecutors' offices, or police departments. It might include leaving behind not only nationals trained to do the jobs required by those institutions, but also the educational systems capable of teaching the next generation of professionals to do those jobs. It might include measures to ensure that other states accurately reflect the outcomes of genuine transitional justice processes in their accounts of history.

As the world relearned when the Berlin wall fell and again on September 11, 2001, seemingly stable political orders can be transformed overnight. The United States' hostility to the International Criminal Court, its post‐September 11 acceptance of torture as a means to interrogate or discipline captives, coupled with its single super‐power, anti‐international law arrogance, has been a blow to the international justice movement. It is too soon to tell how deeply that blow has struck or how
long‐lasting the consequences will be, but it cannot be ignored. On the other hand, there is reason to hope. In spite of US bombast, 100 nations are now members of the International Criminal Court. Indeed, as Sikkink points out in connection to Argentina, active US hegemonic opposition to the expansion of international human rights law, along with the United States' record in Abu Graib and Guantánamo, may spur worldwide advancement of norms and institutions that strengthen protection for human rights and ensure even greater accountability.