CIAO DATE: 6/00
Models of Transitional Justice - A Comparative Analysis
International Studies Association
41st Annual Convention
Los Angeles, CA
March 14-18, 2000
"History says, Don't hope
On this side of the grave
But then once in a lifetime
The longed-for tidal wave
Of justice can rise up
And hope and history rhyme."
In recent years there has been a steadily increasing focus by human rights scholars and activists on the issue of what is generally called "transitional justice". As a distinct topic for analysis and discussion, transitional justice has to do with situations in which a previously authoritarian regime has given way to a democratic one, and the new democracy is faced with the problem of how to address the human rights abuses of its predecessor. At its core, transitional justice might be said to be concerned above all with the politics and principles of memory. For a new democratic government, and equally, if not more so, for its citizenry, the essential questions are what to remember of the past, how to define the past, what to "do" about the past, and how may (or will) all these matters affect both the present and the future of society?
The salience of the debate over transitional justice is undoubtedly a result of the unusually potent democratization process that has been observable in various regions of the world over the last decade or so (from 1987 to 1997 the number of new democracies expanded from 69 to 118). Latin America and Eastern Europe have clearly led the way in this regard, but the transition from authoritarian government has hardly been confined only to these two areas: South Korea and South Africa are only two of the more prominent examples of the democratizing trend in other parts of the world, and in both of these instances the challenge of transitional justice has been a matter of particular moment.
Lawrence Weschler, author of one of the earlier (and best) studies of transitional justice, mainly in Uruguay and Brazil, commented recently that interest in this topic has been such over the last ten years that "one might say that an entire new academic discipline--comparative studies in transitional justice--has taken place." 1 Weschler was certainly on target in pointing out the growing interest in the issue of transitional justice, but whether there has actually developed a coherent field of "comparative studies" in this area is more open to question. A review of the literature indeed suggests that most writing on transitional justice falls into one of two categories: general discussions of the philosophical and practical issues attendant on attempts to achieve justice in evolving societies, and single-country case studies about the struggle for justice within a particular political and social environment. This work has certainly been of great value, even if it does feature a fair amount of repetition, particularly in the first category. At the same time, genuinely comparative analyses of the process of transitional justice have been relatively rare. It is against this background that the present essay is offered.
What I attempt to do here is, first, to offer a range of "models" or paradigms of differing approaches to transitional justice and to illustrate each of these by reference to specific historical cases. I then present a comparative analysis of these various models in terms of both ethical and empirical considerations. The basic idea here is to offer a tentative example of how we can combine theory and practice in the field of transitional justice by considering a relatively diffuse set of examples within a coherent framework of common principles and concepts.
As a general matter, the four models of transitional justice to be presented here occupy points along a spectrum at one end of which lies "retribution" and at the other "reconciliation". There are undoubtedly a variety of mixes that are conceivable among and within these various models, but we focus on four "ideal types" here for the sake of clarity of discussion in dissecting the basic issues.
The Balm of Forgetfulness: the Amnesia Model
In this instance, a newly emergent democracy makes a conscious decision not only to avoid prosecutions of past human rights offenders, but even shuns widespread public discussion about their having taking place in the first place. To style this as the "amnesia model" is not to suggest that there won't be many individuals who will continue to remember the past in all its traumatic detail and to insist that great crimes were committed. The point here is that these personal tragedies tend to remain in the private domain and don't become the object of widespread attention in the press, the political process, or even the judiciary. The best example of this approach to transitional justice is probably that of Spain in the years following the death of Generalissimo Francisco Franco in 1975. Some twenty years after his death, an official in the then-ruling Spanish Socialist Party touched on the key themes here when she commented that "it seems like a century ago that he died. Nobody discusses that past much. We never even really faced that past." 2
By any reasonable accounting, there was plenty to face about the Franco past, particularly in terms of its abysmal human rights record, especially during the earlier period of the Franco regime. The list of its violations of basic democratic and humanitarian norms makes depressing reading indeed. Once Franco took power in 1939, unions and political parties were banned, and anyone who tried his or her hand at some semblance of organized dissent was subject to arrest, torture and summary execution or a long term of imprisonment. 3 One estimate is that around 200,000 people died either through execution or disease in the prison camps that Franco established after seizing power. Even after the war ended, and the oppression by the regime began to moderate somewhat, there continued to be three concentration camps and 137 work camps for political prisoners. 4 Spanish jails continued to hold political prisoners right through to the very end of the Franco regime, with some 1500 still languishing behind bars even after the dictator's death.
As democratic institutions began to establish themselves in Spain in the period after Franco's demise, there was little public pressure for trials of the principal figures involved in human rights abuses of the past, nor was there even much of a call for some type of "truth commission" to examine the full extent of these abuses. A number of factors are commonly cited to explain what seems at first glance to be a quite astonishing willingness to draw a veil of silence over the past thirty-five years of Spanish history. One important consideration was that Spain by 1975 was facing a severe economic crisis due to the incompetency of the Franco regime. Moreover, there was a rising tide of terrorism in the country, notably from the Basque liberation movement, ETA. Under the circumstances, it seemed that the vast majority of Spaniards felt it necessary to focus all the country's energies on dealing with the twin challenges of the economy and terrorism, and to eschew steps to deal with the past as essentially unnecessary diversions from this task. 5
Equally important to the situation here was that the Spanish transition to democracy was at least an approximate example of what Samuel Huntington calls a "transformation" scenario. In this case, the elites in power take the lead in producing democratization, even though this is often accompanied by tacit or open negotiations with important opposition groups. 6 In the Spanish case, there had been a growing conviction on the part of important members of the Franco regime that a gradual transition to an open polity was critical to solving Spain's problems. Within the military, for example, the Union Militar Democrática (UMD) had been formed in 1974 and strove to organize large numbers of officers throughout the army to resist "any possible moves by the high command against democratization in the aftermath of Franco's anticipated death." 7 A number of figures in the post-Franco democratic government were themselves veterans of the earlier regime.
A special characteristic of the transformation process is that since members of the old authoritarian regime are principal players in the transition to a new democracy, the fervor for punishment of this regime is typically less intense than in situations where its resistance to change has continued to the last moment. As a practical matter, moreover, agents of the former regime typically insist on guarantees of immunity in return for their acquiescence to a new political order. Although there was never any explicit "grand deal" between the Francoists and the new democratic regime on the question of immunity, the implicit understanding that reconciliation rather than retribution would be the order of the day can be seen in the series of amnesties that first King Carlos and later the Parliament issued in the immediate years after Franco's death. These acts applied both to former government figures and to the opposition, and as Prime Minister Adolpho Suárez said, were based on the premise that "the question is not to ask people where they are coming from, but where they are going to." 8
Yet another factor in the Spanish decision to turn a blind eye to the crimes of the past was that the worst of these had taken place a good many years ago during and immediately after the Civil War. Some thirty years had passed since then, and by the time of the transition around two-thirds of the population had not even been born at the time of the Civil War, and these were the people playing the leading roles in the new democracy. 9 The military in Spain, in particular, "did not feel especially pressed to seek protection from potential attempts at retribution for past crimes. Much time had passed since the Civil War and human-rights problems were not an issue." 10
All in all, then, the Spanish transition stands out as almost an ideal model of the "determination to forget". A Communist legislator in Parliament commented at the time of the debate over the 1977 amnesty law that "amnesty must be the cornerstone of this policy of national reconciliation. How can we be capable of reconciliation after years of killing each other if we don't have the capacity to forget our past forever?" 11 Supporters of this strategy could perhaps take particular satisfaction in the role that it evidently played in rallying the country against the attempted military coup of General Alfonso Armada in 1981, which marked the last truly serious attempt to reimpose Francoist authoritarianism in Spain. 12
A Settling of (Some) Accounts: the Selective Punishment Model
A second form of transitional justice that lies at the opposite end from the Spanish case in terms of the reconciliation-retribution spectrum may be styled as the "selective punishment" paradigm. In this instance, the principal political figures from the previous regime, as well as prominent members of the security forces identified with torture and similar conduct, are subject to formal legal action and sanction. This doesn't just involve loss of civil or political rights (such as holding governmental office) but actual trial and incarceration and--in the most extreme cases--even execution. Ethiopia has recently stood out as a particular example of this approach in operation. Following the overthrow of the hated Mengistu regime in1991, the new government indicted over 3,000 members of that regime for criminal acts and instituted what was sometimes described as the "Nuremberg trials of Africa." although subsequent judicial proceedings have slowed to a snail's pace. 13 An earlier example of this retribution model that deserves close attention involves the actions taken by the new democratic government in Greece following the collapse of the military dictatorship in that country in 1974.
On April 21, 1967, a group of mid-level officers in the Greek military staged a coup against the civilian government of Prime Minister George Papandreou. Over the next seven years, this "regime of the colonels" attempted a fundamental restructuring of Greek politics and society designed to root out all manifestations of leftist thinking and "decadent" culture. There was widespread press censorship, the dismissal of numerous officials in the government and army, a close monitoring of the universities in order to purge "Marxist" professors, and even the banning of some 800 books (including works by Sophocles and Shakespeare). Thousands of people were imprisoned under this regime, and torture was commonly practiced against the detainees. In response to the Council of Europe's denunciation of human rights violations in Greece, Colonel Papadopoulos--the principal figure in the military regime--withdrew Greece from that organization. 14 Perhaps the most dramatic symbol of the character of the Papadopoulos government was its repression of a student protest at the Athens Polytechnic in November, 1973. Troops and tanks were used to evict students occupying the campus, and scores were killed, hundreds wounded, and almost a thousand arrested. 15
The perennial issue of Cyprus eventually led to the downfall of the military dictatorship. Under Papadopoulos's successor, General Demetrious Ioannides, an ill-fated coup was sponsored on the island in July, 1974 to remove the independent government of Archbishop Makarios, and in response Turkey invaded and occupied the northern half of Cyprus. Given this catastrophe--and the looming threat of an all-out war with Turkey--a group of high-ranking Greek officers overthrew Ioannides and began negotiations with civilian politicians for a return to democratic rule. Former Prime Minister Constantine Karmanlis, a well-known figure from the right of the Greek political spectrum, subsequently was appointed to head a Government of National Unity. 16
The Karamanlis regime immediately began a program of "dejuntafication," and in the process replaced more than 100,000 people in the military and in central and local government. 17 Some months later criminal proceedings were begun against more than one hundred top officials for having organized the original coup, for having participated in the Polytechnic affair, and for the torture of detainees over the period of the Colonels' regime. The courts actually handed down death sentences for three of the main regime figures, including Papadopoulos himself, but this was later commuted to life imprisonment. Lengthy prison sentences were also conferred on others involved in the crimes of the junta.
Perhaps the most dramatic and emotional of the legal proceedings taken at this time involved the so-called "torture trials" of figures from the Military Police (ESA) As Amnesty International commented in a report at the time, "From the first day of the Junta's rule, torture was an integral part of the state machinery for suppressing opposition." 18 The torture trials documented how there were twenty-two different methods of torture employed, including the use of electric shocks and sexual abuse. As of December, 1976, around 400 trials had taken place of former members of the ESA. Prison sentences of varying lengths were handed down following these proceedings, although some defendants were acquitted, and there was widespread criticism that the Karamanlis government should have taken the lead itself in organizing the trials rather than relying on individual complaints to generate the hearings.
Several factors provided a supportive environment in which Karamanlis could move against representatives of the previous government. Elections in November, 1974 had provided him with a parliamentary majority of more than two-thirds of all seats. Moreover, a failed military coup attempt in February, 1975 convinced most Greeks that it was necessary now to deal directly with the continued threats to democracy after the demise of the Colonels. Still more senior and mid-ranking officers from the army and the security services were forcibly retired, and prosecutions were also now initiated against a number of these. 19 There was also the matter of Karamanlis's own political background. A leader of the anti-Communist right during the 1950's, he was nevertheless untarnished by any connection to the 1967 coup. He was acceptable to the Greek military because of his anti-Communist record, but the still-powerful monarchist forces in Greece also saw him as preferable to any of the other possible candidates for power. Large segments of the traditional Center gave him their support as well. In short, as in the case of President Nixon's opening to China, his conservative credentials gave him unusual latitude in dealing with pressures from the Greek right that extended even to his confronting the crimes of the previous regime. 20
Perhaps as important as anything else in establishing the vulnerability of that regime to prosecution was its total discreditation as an institution. Certainly the Cyprus fiasco played a key role here, but also important was the failure of the Papadopolous/Ioannides government ever "to consolidate, to institutionalize and to legitimate itself." 21 Some earlier economic successes after the 1967 coup had given it at least some support, but once the Greek economy began to turn sour, the regime's attempts to exploit a primitive Greek nationalism and to trumpet themselves as protectors against the triumph of communism became increasing objects of ridicule. Moreover, the colonels never came close to receiving united support from the Greek political right, especially in Parliament and even within the military itself. In truth, by 1974--even absent the Cyprus affair--the regime had essentially become a hollow shell, and thus ripe for replacement.Remembering Is Enough: The Historical Clarification Model
There are two other major paradigms of transitional justice that can be identified, and each of these occupy distinct intermediate points along the line of the retribution-reconciliation spectrum. The first of these to be considered is what might be called the "historical clarification model". In this instance, there is some attempt to confront and document the abuses of the past (unlike Spain), but at the same time the identification of specific individuals responsible for such abuses is eschewed and, it follows logically, no formal legal proceedings are instituted against those responsible for human rights violations (unlike Greece). Perhaps the best contemporary example of this model is that of Guatemala.
After the overthrow of the leftist government of Jacobo Arbenz in 1954 (aided and abetted by the Central Intelligence Agency), Guatemala evolved into a society in which social stratification was as pronounced as anywhere in Central America or indeed in Latin America as a whole. As of the early 1990's, according to a report from the Organization of American States, 77% of Guatemalan families lived below the poverty level, health programs covered only 14% of the population and a third of the Guatemalan people suffered from malnutrition. Illiteracy rates approached 50%. Underlying all these elements was a grossly inequitable distribution of income and resources: some 2.1% of landowners commanded about 72% of farmland and received 90% of farm credit. 22
A culture of violence became pervasive in Guatemala as the political and economic elite sought to maintain the privileges of its position. In 1960 a broad-based leftist insurgency began in an effort to topple the rightist military-controlled government and to bring at least some measure of social justice to the country. The response by the authorities was such that over the course of the civil war, lasting some thirty-five years, an estimated 200,000 Guatemalans succumbed to the violence. The indigenous Mayan Indian population was a particular target of the government's efforts to repress the rebellion, since the authorities assumed that the Mayans were largely sympathetic to the guerrillas, providing them with shelter, food, and intelligence. Entire Mayan villages were razed to the ground and their inhabitants systematically massacred. The character of Guatemalan governmental policy during this period was summarized by the comment of former President Carlos Arana in 1971 that "if it is necessary to turn the country into a cemetary to pacify it, I will not hesitate to do so." 23
Under the auspices of the United Nations, negotiations between the Guatemalan government and the Guatemalan National Revolutionary Unity (URNG) guerrillas eventually resulted in a 1996 peace accord, and as part of this agreement, both sides agreed to the formation of the so-called "Historical Clarification Commission," which was charged with examining the abuses that had taken place during the civil war without "individualizing responsibilities." 24 This seemed to be an ornate, or at least roundabout, way of saying that no names of the guilty would be offered in the final report. The Clarification Commission, initially established in June, 1994, issued its final report on February 25, 1999, styled as "Guatemala: Memory of Silence." The document ran some 3400 pages, with about 2000 pages devoted to individual cases, and the remaining text offering a general analysis of the conflict. 25
The report was unsparing in its overall assessment. Christian Tomuschat, its coordinator and a German jurist, said that while the guerrilla groups had been guilty of their own atrocities, government forces had been responsible for the vast majority of the killed or missing (including 626 outright massacres). "Believing that the ends justified everything, the military and the state security forces blindly pursued the anti-Communist struggle, without respect for any legal principles or the most elemental ethical and religious values, and in this way completely lost any semblance of human morals." 26 The main objective of successive Guatemalan governments, according to the report, was to crush dissent from the deprived elements of Guatemalan society, and in particular the Mayan Indian population. The term "genocide" was used to describe these measures, and the Commission called for the institution of legal proceedings against those responsible for such outrages. 27
The government to date has ignored this recommendation, and there seems little reason to assume that it will change its position any time soon, particularly given the continuing heavy influence of the military and the security forces in Guatemalan society and their disinclination to accept any responsibility for past abuses. Former Guatemalan President Efrain Rios Mott, for example, whose government was responsible for some of the worst of the atrocities in the early 1980's, intoned that while in office he "never was informed" of any acts of torture or massacre and that he personally "had never fired a shot." 28 In contrast to other countries in which formal amnesties have been established, the Guatemalan government has followed what might be called a policy of "tacit impunity" for past crimes. Its public rhetoric suggests that it is not necessarily in favor of such impunity and that it is interested in promoting human rights and the reforms outlined in the peace accords. At the same time, the government's failure to move forward on any of the recommendations of the Historical Clarification Commission is far more indicative of its real stance . Past President Alvaro Arzú let the cat out of the bag in this regard when he simply asked the Guatemalan people to grant forgiveness for the state's "actions or omissions, for what we did or what we didn't do." 29
That past agents of repression in Guatemala were prepared to take the most extreme measures to prevent prosecutions of those responsible was suggested by the fate of Bishop Juan Gerardi on April 26, 1998. Bishop Gerardi was the founder of Guatemala's Archdiocesan Human Rights Office, and the director of an investigation parallel to the Historical Clarification Commission established by the Guatemalan Catholic Church entitled the "Recovery of Historical Memory (REMHI)." This work focused particularly on uncovering the facts about some of the worst massacres committed during the civil war. The results of its investigations were presented on April 24, and not surprisingly they placed the blame for most of the human rights atrocities in recent Guatemalan history squarely at the feet of government forces. Two days later, Bishop Gerardi was brutally murdered in a case that is under investigation but seems to be going nowhere. The original prosecutor in the case, one Otto Ardon, resigned in December, 1998, after having accused another priest of the murder and even implicating the priest's dog because Gerardi's body supposedly showed signs of dog bites. 30 Guatemalan Bishop Alvaro Ramazzini spoke for many when he said that "I, personally, feel this crime will never be cleared up. There is no political will to resolve it." 31
It seems that the lack of "political will" to punish past human rights abuses in Guatemala, or at least to move aggressively to establish institutions and norms that will prevent their reoccurrence, goes beyond simply the government itself and indeed extends deep into Guatemalan society. In May, 1999, a referendum was put to the Guatemalan people that would have given indigenous people in the country fully equal rights under the Constitution, constrained the power of the military and the Presidency, and provided for greatly increased resources to the judiciary. The referendum was defeated by a 55% to 45% vote, and especially telling was that only 18% of registered voters even bothered to cast their ballots. 32 Given this degree of public apathy, and the continued power of the military and security services in Guatemalan life, the prospects for a more humane Guatemalan society seem highly uncertain at present. 33
Truthtelling With a Bite: the Mixed Memory and Punishment Model
If Guatemala represents "the historical clarification" approach in transitional justice, South Africa is perhaps the best example of a fourth paradigm that we can term "the mixed memory and punishment model". In this instance, there is a combination of truth-telling as well as (potential) prosecution of selected individuals involved in past abuses. Blanket or general amnesties to members of political, military, or security organizations are specifically eschewed. The standard for pursuing such prosecutions as are undertaken often revolves around the abusers' willingness to admit their crimes and in the process plead for an individual grant of amnesty. Failure to do so lays the person open to criminal procedures. The central ethical dilemma in this scenario is, of course, whether even those who are guilty of particularly brutal crimes should be allowed to go free simply because they offer a potentially hypocritical and false contrition for past wrongs.
Some fifteen months after South Africa held its first genuinely free elections in April, 1994, the Promotion of National Unity and Reconciliation Act was passed establishing the Truth and Reconciliation Commission (TRC). Headed by Nobel laureate Bishop Desmond Tutu, the Commission was eventually given leave to examine all putative cases of human rights violations committed during the period from March 1, 1960 through May 10, 1994 (the date of Nelson Mandela's inauguration as South African President). The TRC was composed of three separate committees, one dealing with human rights violations, another with amnesty, and a final one concerned with reparations and rehabilitation. The committee on amnesty came to be the focal point of public attention with respect to the TRC, since it was authorized to consider amnesty for those who committed abuses "associated with political objectives." Essentially this meant that the individual involved had to be a member of an acknowledged public institution (such as the security forces) or a recognized liberation group (such as the African National Congress). The acts in question had to have been committed in furtherance of the person's "official" duties and not for essentially private or arbitrary reasons. 34
The amnesty provisions in the TRC's charter represented essentially a compromise between the demands of the old regime for a blanket amnesty for all those charged with human rights abuses and the equally strong insistence of many in the anti-Apartheid movement that just punishment had to be meted out to the miscreants. The decision to proceed on a course that represented a middle ground between "Nuremberg and amnesia" was dictated by the fact that the transition to the new South Africa was the result of a negotiated settlement between the old regime and the liberation forces. Absent the possibility of at least selected amnesties for past crimes, it is virtually certain that the government of President F.W. de Klerk would simply have refused to proceed with the dismantling of Apartheid and to allow the African National Congress to come into power. 35 In the event, fears that the TRC would be unduly generous in forgiving the crimes of the past proved to be exaggerated. As of the end of 1998, the Commission had received about 7,000 applications for amnesty and had granted only 216 of these. Of the remainder, 160 individual applicants were rejected because they insisted on denying their guilt, some 3,000 claims were disallowed because they did not involve "political objectives" or were assessed as being for personal gain, and a further 864 applications were set aside because the abuses involved had been committed after the cut-off date of the TRC's jurisdiction or were for other reasons not within the mandate of the TRC. 36
Aside from the issue of amnesty, the other main purpose of the TRC's deliberations was to establish an agreed-on historical record of the nature of the human rights abuses committed during the Apartheid period in South Africa, and in so doing promote a process of healing between white and black. The assumption here was that given an acceptance of responsibility, an admission of guilt, on the part of the those involved in various crimes, the process of forgiveness and ultimately reconciliation would be significantly advanced. One striking aspect of the TRC's final report in this regard--issued at the end of October, 1998 and comprising a million words divided into five volumes--was the way in which it addressed not just the iniquities of the pro-Apartheid forces but of the liberation movement as well.
The report detailed actions of the African National Congress as well as the Zulu-based Inkatha organization that involved attacks on civilian targets, killing of suspected informers, often by the dreaded "necklace" method (a car tire placed around the victim's neck filled with gasoline and set alight), and other abuses. This attempt at even-handedness outraged many in the ANC, including current South African President Thabo Mbeki, who denounced the TRC's findings as "inaccurate" and contrary to international law. It was further suggested that whatever abuses the liberation forces had committed were "unauthorized" or the result of poor communication with forces in the field. Interestingly enough, however, Nelson Mandela supported the TRC's position: "The ANC was fighting a just war, but in the course of the fighting the just war, it committed gross violations of human rights." 37
As to the former Apartheid regime itself, one issue that dogged the TRC's deliberations was the question of responsibility. Many lower-ranking police officers offered the predictable defense that even if they had done wrong, they had done so at the specific command of their superiors. The farther up the chain of command the TRC went, however, the more their difficulties increased. In the last months of the de Klerk government, a massive pruning of government documents was undertaken and millions of pieces of evidence were either burned or consigned to the paper shredders. This allowed former top figures in the government to argue that they had never directly ordered any atrocities and to challenge the TRC to find actual evidence that they had ever done so. This stance was rejected in the course of the TRC's hearings, but the lack of a tangible paper trail of responsibility made it easier for critics of the TRC to question the Commission's final findings. 38 As it was, President de Klerk himself was able to persuade a court to black out a part of the final TRC report that implicated him in human rights abuses.
An Analytical Overview
The four models of transitional justice outlined here are obviously only a starting point in developing a broader schematic of possible responses by new democracies to the human rights abuses of a previous regime. In developing such a schematic, the first task is to identify the full range of specific options theoretically open to transitioning societies along the retribution-reconciliation spectrum, and then through comparative case analysis establish how these options have been combined in particular instances to form an identifiable paradigm of transitional justice. Limitations of space have precluded our doing justice to this rather daunting task, but we might suggest at least a couple of other models of transitional justice beyond those presented here.
There is, for example, the case of Uruguay, in which a fairly wide-spread discussion of past human rights violations was followed by a decision to grant full amnesty both to the agents of the previous regime and to its opponents. The conscious attempt to address the crimes of the past included an extensive study entitled Uruguay: Nunca Mas by a private Uruguayan human rights group In the end, however, calls for retribution were set aside and impunity embraced. What was particularly interesting in this instance was that the Uruguayan amnesty wasn't just a regime decision, but was actually approved in a national referendum by a free vote of the Uruguayan people. 39 Argentina after the fall of the military junta in 1983 provides yet another paradigm of transitional justice, combining as it did a government-sponsored Truth Commission, an early series of prosecutions of top junta leaders, but eventually under the so-called "full-stop" law a grant of immunity to all those who had not yet been subject to legal action. 40
Even limiting ourselves to the four ideal types of transitional justice discussed here, however, there are several "lessons" as well as ambiguities that can at least be tentatively identified from our cases and that may cast light on some of the broader dilemmas inherent in the whole process of transitional justice.
The Value of Knowing
The Bible enjoins us that "you shall know the truth and the truth shall set you free." Does this homily actually seem to be borne out in the instances of countries who are intent on establishing a historical record of who did what to whom (even if they downplay or set aside actual prosecutions of human rights offenders)? Guatemalan Bishop Juan Gerardi, for one, argued for the basic proposition: "Knowing the truth may be painful, but it is without any doubt highly healthy and liberating." 41 The notion that learning about what actually happened to one's loved ones during a period of dictatorship--the circumstances of their incarceration, their place of burial, even the actual details of their demise--somehow has a cleansing effect and can help to bring closure to grief, however, has to be accepted more as an article of faith than of demonstrable reality. Indeed the effect of "truth-seeking" may sometimes reasonably be said to have an opposite effect. Some of the testimony delivered to the South African Truth and Reconciliation Commission, for example, was so horrific in its depiction of the cruelties visited on opponents to Apartheid that the Commission took pains to provide professional psychological help to victims appearing before it. 42
One of the further premises behind truth-seeking is that it is a necessary prerequisite to a general social "forgiving" that in turn may (hopefully) lead to the establishment of an enduring democratic culture. The whole concept of forgiveness within transitional justice situations has in fact emerged as a major item of discussion in its own right. As a distinct type of social interaction, the process of forgiveness involves an admission of culpability on the part of a wrongdoer and an offer of restitution while at the same time the victim rejects the taking of vengeance and instead works for a restoration of relations. The ultimate goal is reconciliation and a new moral relationship. 43 Hannah Arendt was a particularly notable defender of the notion of forgiveness (which she seemed to regard as Jesus's greatest contribution to political thought), arguing that the only way to deal with past wrongs and with the "predicament of irreversibility" was through such forgiveness. 44 More recently, Nobel Peace Prize winner Jose Ramos-Horta, one of the leading figures in the fight for independence for East Timor, echoed the same thoughts upon his return to his homeland after twenty-four years of exile. Ramos-Horta lost three brothers and a sister during the Indonesian occupation of East Timor, but nevertheless argued that "if East Timor wants to prosper, to survive, it must forgive" her former oppressors. "You cannot live and thrive on hatred, on revenge." 45
The same query about the contribution of truth-telling to individual healing may be raised as well with respect to the process of collective forgiveness. Does the frank recitation of terrible crimes, even an admission of guilt on the part of those responsible for such crimes, move a society toward a new understanding and cohesion? One may exercise unusual restraint in setting aside the thirst for retribution, but this doesn't necessarily spill over into a willingness to embrace one's past tormentors in a new social compact. One important study of the impact of the South African Truth and Reconciliation Commission on public opinion in that country, for example, is quite gloomy in this regard: "The odds against the bet that truth will beget reconciliation today or in the near future seem to be very substantial indeed." 46 Having said this, there are two strong arguments to be made for truth-telling as a welcome form of transitional justice.
On the individual level, the spectacle of one's tormentor not just being allowed to move about freely but also to maintain an insouciant air of innocence in the bargain is indeed a case of adding insult to injury. In this sense, there is at least some satisfaction in gaining an admission that not only have you done wrong but that you admit to having done so. Except for the genuine psychopath without any conscience, there has to be at least some residual mental anguish in owning up to what one has been capable of. Being identified as a torturer also carries the burden of potential or real social ostracism, a real enough punishment in itself, which is a major reason why many past dictatorships facing an imminent demise are hasty to destroy tangible records of their brutality. 47 At the more general societal level, truth-telling also may serve a significant prophylactic function, in the sense of developing a sense of shame concerning the abuses in which that society was (at least indirectly) complicit and a determination to see that the honor of the country is not similarly besmirched in the future. As the Chilean human rights activist José Zalaquett has commented, "the truth in itself is both reparation and prevention." 48
For those inclined toward retributive justice, the evidence presented here--and to be found in numerous other cases in transitional justice--is hardly encouraging. Two conclusions may be offered in this regard. First, actual prosecutions of human rights abusers typically takes place only in the most unusual of situations, and these normally result from the total collapse of the abusive regime's authority and credibility. Ironically, then, the possibility of prosecutions depends on previous officials displaying a really unusual level of incompetence and stupidity. Certainly this can be seen in the Greek case in 1974. The Ioannides regime evidently felt that it could foster a right-wing coup on Cyprus that would threaten the local Turkish population and yet not invoke a decisive reaction from the Turkish government itself. Similarly, in Argentina, the junta assumed that it could simply occupy the Falklands without a strong response from so assertive a leader as British Prime Minister Margaret Thatcher. This blunder paved the way for subsequent trials and imprisonment of some of the top military leaders from the "dirty war" period.
A second conclusion to be drawn here is that even when prosecutions are undertaken, they are likely to be highly selective and thus frustrating to those seeking a wider regime of justice. Thus there were many in Greece in the middle-1970's whose calls for retribution were hardly slaked by the trials of junta leaders and members of the security forces. Particular outrage was expressed at the number of individuals who managed to escape punishment for their crimes merely because they were willing to turn "state's evidence." 49 The lingering resentment at this "partial justice" was so strong that as late as 1990, when an amnesty was proposed for those convicted in the earlier trials, the public reaction was such that the amnesty proposal was dropped. The decision by the Karamanlis government to limit prosecutions, however, was based on direct prudential considerations: attempting a large number of trials ran the risk of furthering fracturing the Greek polity and thus endangering the consolidation of democracy. In the event, of the more than one thousand individuals initially charged in the "torture trials", only a relative handful ever faced formal court proceedings. 50 This same pattern can also be seen in the case of South Africa. As noted earlier, prosecutions of individuals involved in human rights abuses under the Apartheid regime are theoretically open if those involved refuse to apply for amnesty from the Truth and Reconciliation Commission or are denied such amnesty by the Commission. Aside from the trials of former Minister of Defence Magnus Malan (along with other high-ranking members of the South African Defence Force) and the former police colonel Eugene de Kock for involvement in the killing of Apartheid opponents, however, exceedingly few cases have been placed before the courts. Moreover, all seventeen defendants in the Malan indictment were eventually acquitted. 51
Aside from the political factors involved, there are additional reasons that a wide-scale regime of prosecutions is almost never attempted in transitional justice situations. The most important of these has to do simply with resources. In newly emerging democracies, it is a commonplace that the judicial system may be either truncated or even barely functioning, and to expect it suddenly to take on a large load of human rights cases may be asking for the impossible. Perhaps Greece was better off in this regard than some others, but the current status of the court system in South Africa perhaps is a more typical example. Only four percent of those committing serious felonies spend more than two years in jail. A general lack of investigatory capabilities, competent prosecutors and judges lie behind this situation, and if numerous human rights cases were now brought before the South African court system, the strain on resources--not to mention the diversion from efforts to deal with common crime--would seem insurmountable. 52 It goes without saying that the judiciary in a country such as Guatemala is even more debilitated. Only ten percent of homicide cases in that country currently go to trial (with very few resulting in conviction), and a recent Human Rights Watch report identifies the main features of that judiciary as being "corruption, influence peddling, lack of resources, and threats and intimidation to lawyers and judges." 53
There are contemporary examples of countries where a wide scale regime of prosecutions of human rights offenders is being attempted, but the results so far are not especially encouraging, particularly in terms of the maintenance of standards of due process. An adherence to such standards is particularly crucial given the presumed importance (both symbolic and real) of establishing a clear distinction between the abuses of a past regime and the more humane practices of the new one. Rwanda is one case in point. To date its courts have tried more than 1,500 people connected with the horrific genocide of 1994, and sentenced to death some 300 of these (22 of these sentences having being carried out). These trials were notable, however, for the absence of effective defense counsel--it is estimated that Rwanda currently has only forty-four experienced defense lawyers--and rights of cross-examination and inspection of evidence. Moreover, some 130,000 suspects remain in jail awaiting formal legal proceedings, and in conditions which have rightly been described as appalling. 54 The other forum handing out transitional justice for the Rwandan massacres is the International Criminal Tribunal for Rwanda (ICTR), created under United Nations auspices late in 1994. In this instance, legal rights of due process have been adhered to, even to a fault. Thus the tribunal's appellate judges in the Hague freed a top genocide suspect, Jean-Bosco Barayagwiza, in November, 1999 on essentially technical grounds (Barayagwiza supposedly wasn't informed of the full details of his indictment and his trial violated the court's statute of limitations). The cliché that the wheels of justice grind exceedingly slow, however, seems particularly apt in the workings of the ICTR. Since it began hearing cases in 1996, the ICTR has convicted a grand total of six people, with thirty-four suspects awaiting trial. 55
The Case for Forgetting
The adoption of a policy of "amnesia" as a form of transitional justice--or as some critics would say, non-justice--at first glance violates our most basic intuitions about the need not to avert our eyes from evil and, more than this, to impose just punishment for terrible crimes. From a deontological viewpoint, certain moral principles are to be upheld at all costs, and certainly a calculated program of forgetting hardly meets such a standard. In defending amnesia, then, we have to rely on essentially consequentialist reasoning and in particular the utilitarian credo that an action must be judged in terms of its net benefit to society as a whole. Put another way, the anguish and legitimate demands of the abused for a reckoning with their abusers can (perhaps) be set aside if in so doing the great majority of society will somehow benefit from such a course of action. Such a course of action may be particularly defensible in situations where the political-historical fault lines run deep, and where an open attempt to establish the "truth" of the past is unlikely to establish any consensus and may, in fact, sharpen the divisions that already exist. 56
The definition of "benefit" is of course crucial to the argument here. As a general matter, it might be said to include a firm consolidation of the democratic process and the elements of a civil society. as well as progress toward higher standards of social and economic welfare. From this perspective, the Spanish decision to avoid detailed recriminations about the Francoist era was arguably a morally defensible position. Since Franco's death in 1974, Spain has established itself as an integral part of the European Union with effective democratic institutions and steadily expanding material benefits to its citizenry. The question that lingers here, of course, is whether at least some selective punishment of human rights abusers from the Franco regime would really have derailed this whole process. Particularly after the failed coup of 1981, which effectively discredited the hard-line forces left over from the Francoist period, it might have been possible to take a firmer stance. Moreover, the definition of "benefit" again lingers. A nation's strength lies not just in its economic status or its clout in international affairs but in its own sense of moral self-worth, which may require at times coming to a frank reckoning with its past. In these terms, the Spanish model may be somewhat more problematical as a guide.
The case of Poland represents an interesting variation of the amnesia paradigm. When Tadeusz Mazowiecki was selected in 1989 to lead the first non-communist regime in that country since World War II, he ostentatiously drew a "thick line" between present and past, which essentially meant that his government gave low priority to addressing cases of abuses inflicted on individuals by the former communist authorities as well as the quite different matter of those who "collaborated:" with that regime. Mazowiecki's argument was that if Poland was to progress toward stable democracy and economic development, it had to avoid a debilitating round of recriminations and attempted punishment of wrong-doers. 57 This wasn't necessarily a call for forgetting, but at the very least it was a suggestion that the Polish people should concentrate their attentions elsewhere. More recently, however, there has been at least a modest turn toward more retributive policies in Poland. A law providing for the dismissal of judges who handed down politically-motivated sentences under the Communist regime has been enacted. A "vetting" statute requires some 20,000 public figures to state whether they ever cooperated with the secret police. Perhaps most telling is the work of the Main Commission on Investigating Crimes Against the Polish Nation, which has recommended prosecution of some 200 individuals for particularly onerous crimes. Twenty-one people had already been convicted by Polish courts for "using torture and inhuman methods during investigations." 58 The premise here seems to be that with Polish democracy now firmly established, and with its economy thriving, it is now possible to revisit the question of who should be punished for past sins.
The ongoing issue of transitional justice is a compelling one because it touches on some of the most basic aspects of our moral universe, and the possibilities and difficulties of achieving ethical outcomes in a world fraught with violence and injustice. Perhaps the fundamental question here is whether we do (or potentially can) live in such a universe, in which right conduct is rewarded, or at least recognized, or whether evil can take place with impunity.
The challenge of transitional justice also cuts deep because it requires the societies involved to engage in a process of self-examination and moral assessment that may prove distinctly uncomfortable. One is struck by the fact that a population that may have been relatively passive in the face of a past dictatorship's misdeeds sometimes are particularly forceful in their demands for retributive action. One can wash away a sense of guilt at not standing up to evil by now--in safer circumstances--rediscovering a taste for justice. Carl Jung made the point some years ago. In his "Archetypes of the Collective Unconscious", he observed "with what pleasure we read newspaper reports of crime! A true criminal becomes a popular figure because he unburdens in no small degree the conscience of his fellow men, for now they know once more where evil is to be found." 59 In other words, by "identifying" the true villains, we implicitly exonerate ourselves.
Yet there is also the complicating fact of what Hannah Arendt called the "banality of evil", which is to say that wrong-doers rarely satisfy our expectation that they be in some sense "unusual" or patent moral degenerates. 60 The famous British essayist William Hazlitt once observed that "a wonder is often expressed that the greatest criminals look like other men. The reason is that they are like other men in many respects." In condemning past (or present) wrong-doers, therefore, we are in a curious way offering an implicit suggestion that there but for the grace of God goes myself. It seems likely that the reason so many new democratic societies have found it difficult to confront the crimes of their old authoritarian governments is that in discovering them, they are also discovering themselves.
All this being said, it still remains that the greatest evil of all is to stand silent in the face of wrong-doing. Prosecutions of past human rights abusers may be difficult in the best of circumstances, and not only because of the practical difficulties in doing so. It is indeed tempting to suggest that a policy of forgetfulness is an attractive one for all concerned. Yet a transitional justice policy that combines both pragmatic and ethical concerns is surely not beyond reach. This would involve at a minimum an avowed program of truth-telling, at least some (perhaps) symbolic retributive measures against the worst of the past offenders, and a program of compensation and rehabilitation to the victims. In this way, transitional societies can move toward democratic stability, social and economic progress and a civic culture without ignoring the perennial injunction that in all human affairs the past is prologue.
Note 5: José María Maravall and Julián Santamaría, "Political Change in Spain and the Prospects for Democracy," in Transitions from Authoritarian Rule: Southern Europe, eds. Guillermo O'Donnell, Philippe C. Schmiter and Laurence Whitehead (Baltimore: Johns Hopkins University Press, 1986), 80. Back.
Note 12: Not everyone in Spain was content simply to forget the abuses of the past. As late as 1990, a group called the "Association of Former Political Prisoners" pressured the government to pay monetary compensation to those who had served time in Franco's jails for political offences, and, more than this, to publically recognize the valiant role these individuals had played in opposing the Francoist oppression. Alan Riding, "Veterans of Franco's Jails Want Spain to Pay," New York Times (June 20, 1990). Back.
Note 16: P. Nikiforos Diamandouros, "Transition To, and Consolidation Of, Democratic Politics in Greece, 1974-1983: A Tentative Assessment," in The New Mediterranean Democracies, ed. Geoffrey Pridham (London: Frank Cass, 1984), 53-5. Back.
Note 22: Organization of American States, Inter-American Commission on Human Rights, Fourth Report on the Situation of Human Rights in Guatemala (Organization of American States: Washington, D.C., 1993), 5-6. Back.
Note 23: Amnesty International, Guatemala: All the Truth, Justice for All (New York: Amnesty International, May 13, 1998), 6; Mireya Navarro, "Guatamalan Army Waged 'Genocide,' New Report Finds," New York Times (February 26, 1999). Back.
Note 31: Stephanie Salter, "In Guatamala, a Bishop is Martyred--But His Research Survives," San Francisco Examiner (June 21, 1998), A27. As it happens, there has been some recent movement on the Gerardi case that is more promising. Three army officers were arrested in late January of this year for being involved in the Bishop's murder, and their trial is pending. "Third Suspect Arrested in Bishop's Death," Washington Post (January 23, 2000), A26. Back.
Note 33: A further troubling development to human rights activists in Guatemala was the election of Alfonso Portillo to the Presidency at the end of 1999. Portillo, a protege of former military dictator Efrain Rios Montt and member of the right-wing Guatemalan Republican Front, garnered 68% of the vote. Montt himself became president of the Guatemalan Congress. For the public record, however, Portillo has offered some strong criticism of the state's past human rights abuses and has promised, as earlier noted, to resolve the Bishop Gerardi case as soon as possible. Associated Press, "Populist Becomes Guatemala President," (January14, 2000). Back.
Note 35: James L. Gibson and Amanda Gouws, "Truth and Reconciliation in South Africa: Attributions of Blame and the Struggle Over Apartheid," American Political Science Review 93 (September, 1999), 502. Back.
Note 37: Ken Owen, "The Truth Hurts," New Republic (November 23, 1998), 21. Mandela has not always been a model of consistency on this question, however. In a speech to Parliament in February, 1999, he accused the TRC of an "artificial even-handedness and for failing to make a moral distinction between those fighting an evil system and those defending it." These comments probably reflected the deep divisions within the ANC that the TRC's final report had occasioned. Back.
Note 40: More recently, however, there has been a renewed wave of actual or potential prosecutions of those involved in the Argentine "dirty war". The legal theory behind these efforts has focused on the "disappeared," and on the notion that "forced kidnapping is a continuing offense since the victims have never been found." Under these circumstances, it is argued, the granting of pardons to those involved in the disappearances has no legal foundation. Jack Epstein, "Argentine Officers May Face Justice for Killings of 'Dirty War"," San Francisco Chronicle (January 1, 1998), A1. Back.
Note 43: Mark Amstutz, International Ethics (Lanham, MD: Rowman and Littlefield, 1999). 20. On the modalities of forgiveness, see also David Little, "A Different Kind of Justice," Ethics and International Affairs 13 (1999), and perhaps especially Donald Shriver, An Ethic for Enemies: Forgiveness in Politics (New York: Oxford University Press, 1995). Back.
Note 47: The South African Truth and Reconciliation Commission, for example, took pains to point out how "the former government deliberately and systematically destroyed a huge body of state records and documentation in an attempt to remove incriminating evidence and thereby sanitise the history of oppressive rule." Truth and Reconciliation Commission, "The Destruction of Records," Truth and Reconciliation Commission of South Africa Final Report (Cape Town: Juta, October 29, 1998). Volume One, Chapter Eight. Back.
Note 50: Nicos C. Alivizatos and P. Nikiforos Diamandouros, "Politics and the Judiciary in the Greek Transition to Democracy," in Transitional Justice and the Rule of Law in New Democracies, ed. A. James McAdams (Notre Dame, IN: University of Notre Dame Press, 1997), 37. Back.
Note 55: "Justice, Blinded," The Economist (November 27, 1999), 44. For two general (and excellent) assessments of the workings of the ICTR, see Michael P. Scharf, "Responding to Rwanda: Accountability Mechanisms in the Aftermath of Genocide," and Brenda Sue Thornton, "An International Criminal Tribunal for Rwanda: A Report from the Field," Journal of International Affairs 52 (Spring, 1999), 621-46. Back.
Note 56: This observation perhaps has application to the efforts of the United States Institute of Peace to establish a joint Bosniak-Croat-Serb Truth and Reconciliation Commission to develop a "consensus on abuses suffered by victims from all ethnic groups in the recent [Bosnian] war." Such a Commission was provided for as a side-letter to the Dayton Accords, but to date has faced considerable obstacles in implementation. See United States Institute for Peace, "Bosnia to Form a Single Truth Commission," (Washington: USIP, February, 1998). Back.