Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (2 page)

This volume has been a collaborative effort from the beginning. The project originated as part of a larger Transitional Justice project at the Center for Civil and Human Rights at the University of Notre Dame. That project also includes a number of other publications, a documentation center, and a fellowship program. Many thanks are owed to the Center and its staff for conceiving of the project and making it happen. Thanks especially to Juan Méndez, then‐Director of the Center, for his support, help and inspiration, and to the Ford Foundation, and especially Larry Cox, for funding support. Thanks also to the Center's Advisory Board for convincing the editors to take on this book, and especially to Eric Stover of the Human Rights Center at the University of California, Berkeley for his suggestions.

The authors met for a conference in May 2004 to discuss drafts of their papers. We are deeply indebted to all the authors (every one of whom came through with a paper) as well as to several people who participated in the conference and made wise and helpful contributions: Priscilla Hayner of the International Center for Transitional Justice, and Professors Dinah Shelton and Garth Meintjes, both then of Notre Dame Law School. Many thanks as well to Darina Mackova, JSD Candidate at the Center, who transcribed the proceedings.

Javier Mariezcurrena also thanks Silvia Méndez and Laurel Cochrane, and dedicates this book to María Eugenia Roma.

Naomi Roht‐Arriaza also thanks Faiz Ahmed and John Dermody for research assistance, and Hastings College of the Law for summer research support. For inspiration, she thanks Laura Arriaza for her enthusiasm and questions, Rafael Arriaza for his patience, and Gilberto Arriaza for his love and support (siempre!). She dedicates the book to Helen Geffen Roht, internationalist and early believer in a just world order, who started her down this road in the first place.

Naomi Roht‐Arriaza

University of California

Darfur, Guantánamo, Iraq, Haiti. As this book goes to press, they are the headlines, today's sites of killing and mistreatment of civilians and torture of prisoners. Abuses during conflict are not new. Nor is the demand, in many parts of the world, that something be done in their aftermath, that there be justice. But there is a growing sense that something
can
and
must
be done, not only to stop the atrocities but also to bring those responsible to account, to make the facts known, and to succor the victims. The Security Council refers the situation in Darfur to the International Criminal Court. In 2005, Spanish courts sentence an Argentine naval officer to 640 years in a Spanish jail for throwing prisoners, alive but drugged, from airplanes into the sea a quarter‐century before. Slowly, often after years have passed and sometimes in venues far from the scene of the crimes, demands for justice emerge. The past, unaccounted for, does not lie quiet.

The study of how societies emerging from periods of civil war or dictatorship deal with the legacies of the past became a full‐fledged subject of academic inquiry and human rights activism during the 1990s. The term itself is a bit slippery: transitional justice can be defined as the “conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.”
[1]
That definition is somewhat problematic, in that it implies a defined period of flux after which a post‐transitional state sets in, whereas in practice “transition” may cover many decades, and may last longer for some issues than for others. It also does not articulate what the state is “transitioning”
to
. Moreover, the same governments that carried out repression or war sometimes institute transitional measures: are those truly “transitional”? Finally, by privileging the
legal
aspects of coming to terms with the past, it overvalues the role of law and legislation, and may give short shrift to the roles of education and culture and of distributional justice.
[2]

For these reasons, some people prefer to talk about “post‐conflict” justice, but that label has its own problems, especially where what is at
issue was not primarily a conflict between two or more armed factions but massive repression by a government against its own unarmed people. In any case, for our purposes transitional justice includes that set of practices, mechanisms and concerns that arise following a period of conflict, civil strife or repression, and that are aimed directly at confronting and dealing with past violations of human rights and humanitarian law.

The universe of transitional justice can be broadly or narrowly defined. At its broadest, it involves anything that a society devises to deal with a legacy of conflict and/or widespread human rights violations, from changes in criminal codes to those in high school textbooks, from creation of memorials, museums and days of mourning, to police and court reform, to tackling the distributional inequities that underlie conflict. A narrow view can be criticized for ignoring root causes and privileging civil and political rights over economic, social and cultural rights,
[3]
and by so doing marginalizing the needs of women and the poor. On the other hand, broadening the scope of what we mean by transitional justice to encompass the building of a just as well as peaceful society may make the effort so broad as to become meaningless.

This book takes a narrower view, centered on the two central aspects of truth and justice. We focus on a few methods and techniques: prosecutions and criminal investigations, truth commissions, vetting or cleansing of security forces, and, to some extent, formal reparations programs.
[4]

Post‐conflict attempts at justice are not new: war crimes trials go back at least to the fourteenth century. In the wake of both World Wars there were trials, successful and not. Torturers were tried after the fall of the Greek dictatorship of the 1970s, while a consensus among elites postponed questions of justice and reparations in post‐Franco Spain and in post‐Salazar Portugal.
[5]
The decade that concluded with the fall of the Berlin Wall coincided with a wave of changes, negotiated or compelled, from military dictatorships to civilian governments in the Southern Cone of South America, the Philippines and in a number of African countries. The negotiated end of South Africa's apartheid regime, and ends to the civil wars of Central America, soon followed.

These events raised a lively debate regarding the proper strategy after a dictatorship falls or a civil conflict ends. Much of the debate was framed by the conditions of transition in Latin America and Eastern Europe. In the former, the prior dictators and their military and civilian supporters still wielded a good deal of power, and could credibly threaten mayhem if their interests were not respected. Moreover, these transitions were largely negotiated between elites, not compelled by the military defeat of one side in a civil conflict or by popular uprising. Under these
circumstances, diplomats, political scientists and also some human rights activists argued that it was shortsighted to overwhelm newly installed, fragile civilian governments with demands for criminal prosecutions. Thus, amnesties were an inevitable concession, trading justice for the past in exchange for justice in the future.

In Argentina and later in
Chile, incoming civilian governments commissioned broad‐based commissions of notables to investigate and document the human rights violations of the prior regime. While both the Argentine Sábato Commission and Chile's Truth and Reconciliation Commission actually turned their findings over to the courts (and, in Argentina, members of the ruling juntas were prosecuted), the model of a “truth commission” gained force as a “second‐best” option where trials were deemed too destabilizing. Truth commissions seemed less confrontational while still not ignoring the violations and doing something for victims. Such commissions focus on a defined period in the past, exist for a limited period, are official, and are tasked with, at a minimum, compiling a narrative of the past violations and recommending ways to repair the damage and prevent its repetition.
[6]

The emphasis on “truth” required a theory of why the truth was so important. In Latin America, the rationale was tied to the nature of the repression. For the most part, the military governments did not openly kill their opponents. Rather, large numbers of people were disappeared, picked up by official or unofficial security forces that then refused to acknowledge the detention. Almost all were killed, often after extended torture, and in many cases the bodies were never found. Unofficial death squads wore civilian clothes and provided a measure of deniability. The families of those who disappeared were ostracized as a climate of generalized terror set in.

In Eastern Europe, the period of massive killings had usually passed long before, but there was a pervasive sense of constant surveillance and arbitrary punishment handed down by a state that hid its true face. Opening up of state archives and historical commissions, and efforts to remove the offenders from public office, were the principal Eastern European responses. Truth was needed to reverse the silence and denial of the dictatorship years, to establish the extent, origin and nature of the crimes, which were not well‐known, and to know who had collaborated in an effort to limit their future influence. Even though the human rights violations in both places were usually common knowledge, there was a huge gap between knowledge and acknowledgment.
[7]
And the end of the Cold War meant that investigation of the past would not necessarily entail alignment with one superpower, or aid and comfort to the other.

Psychological research, especially with torture survivors, reinforced the notion that truth was important in itself. Survivors seemed to be helped by telling their story to a sympathetic listener and by setting it within a larger social context. It seemed reasonable that, just as individuals need “closure” to leave trauma behind, whole traumatized societies would benefit from a public airing leading to closure. Religious leaders chimed in, arguing that knowing the truth would allow the victims to forgive without forgetting and the perpetrators to confess and atone, thus setting the stage for former enemies to live together. Human rights lawyers began to argue for a “right to truth” independent of criminal prosecution.
[8]

The
South African experience became the best known of these experiments. An amnesty law was required in the country's interim constitution, but the Parliament decided to tie amnesty to full disclosure of the crimes by any individual seeking amnesty. They grafted this amnesty‐for‐truth process onto a Truth and Reconciliation Commission (TRC) aimed at hearing victims' stories, documenting the violations, and providing recommendations for change.

The backers of the South African TRC did not argue merely that a truth commission was a second‐best alternative where trials were unavailable. Rather, they insisted, a well‐run commission could accomplish things no trial could provide. It could focus on the overall pattern of violations, rather than zeroing in on just those cases that happened to be brought to trial. It could keep the focus of testimony and discussion on the victims rather than the perpetrators, and allow victims to testify in a supportive setting more conducive to healing than the sometimes brutal cross‐examination of a criminal or civil trial. By offering amnesty in exchange for confession, it could elicit information from perpetrators that would be unlikely to emerge in a criminal trial where the burden of proof remained on the state. Moreover, non‐judicial methods were better at dealing with the many shades of gray that characterize most conflicts. Trials divided the universe into a small group of guilty parties and an innocent majority, which was thereby cleansed of wrongdoing. In reality, however, large numbers of people supported those who committed the actual violations, and even larger numbers turned their faces away and were silent. Trials could not adequately engage with those nuances.
[9]
A restorative justice approach, focusing on the victims and on reintegration of offenders rather than the retributive justice ascribed to the criminal law, was preferable.

Truth commissions became a staple of the transitional justice menu. Over time, critiques arose. Such commissions assumed there was a single “
truth” to be molded from the disparate strands of interests and experience. They could contribute to a compiling of “factual” truth, but not necessarily to the creation of a common narrative or common understanding. They frustrated and at times even retraumatized victims who, having unearthed their pain, were left wondering to what end. The model of short‐term catharsis as a basis for healing was disputed by therapists, and the empirical evidence showed that testifying in public was beneficial for some victims, but not others. They did nothing to affect local power relationships.
[10]

Moreover, the South African example, widely praised internationally, received a more critical reception at home. While it had many positive aspects, the TRC did not lead automatically to reconciliation either between blacks and whites or among blacks (“revealing is healing” turned out only to be true sometimes), almost no high‐ranking officials of the apartheid government came forward to ask for amnesty, and the courts were largely unwilling to pursue cases, even well‐founded ones, against those who disdained the offer of amnesty for truth. Although other countries emerging from conflict adapted parts of the South African scheme, none adopted it wholesale.

From country to country as well, a process of diffusion of experiences and ideas followed. Chileans advised the South Africans on their TRC; the South Africans inspired the idea of confession in exchange for amnesty or leniency in a number of places. Forensic scientists multiplied exhumation and forensics teams, using newly minted techniques around the world. The peace agreement drafters designed the Guatemalan Historical Clarification Commission to
not
mimic aspects of the earlier Salvadoran Truth Commission. But each place was also unique, influenced not only by international advisors and funders but by the strength of its own human rights movement, of opposing political forces and the nature and extent of the conflict.

While truth commissions became widely known, other elements of the transitional justice “toolbox” where used far less frequently. Vetting or cleansing of political leaders and security forces was a major component of efforts in the Czech Republic and elsewhere in Eastern and Central Europe, but was criticized for being overbroad and based on unreliable secret police records. Army officers were vetted in El Salvador; in Argentina, military promotions were contingent on
human rights screening. Reparations programs were implemented in Argentina, Brazil, Chile, and (eventually, on a scaled‐down basis) South Africa, and are just now being carried out in Guatemala and Peru. Beyond these, reparations programs are scarce, although they are a frequent TC recommendation.

By the time of the South African TRC in 1995, a further set of considerations had to be added to the mix. In the early 1990s, a bloody ethnic conflict in the former Yugoslavia left 200,000 dead. Western powers dithered, but eventually agreed to try to deter ongoing atrocities by setting up an international criminal tribunal. In addition to deterrence, the tribunal was supposed to contribute to reconciliation through justice, to create a historical record, and to remove some of the worst offenders from positions of power. It was set up via Security Council resolution, which in theory at least ensured the cooperation of all UN members. A year later, in 1994, the slaughter of over three quarters of a million people during three months in Rwanda, prompted the creation of a similar international criminal tribunal for Rwanda. Both tribunals were set up outside the situs of the conflicts, both because of security concerns and because it was felt that an outside court, staffed largely by outsiders, would have the advantages of impartiality, credibility and expertise that would be lacking in compromised or decimated national legal systems.