Transitional Justice after Oppression: Complexity and Effectiveness

  • 2012•05•08

    Vesselin Popovski

    Transitional justice after oppression: Complexity and effectiveness

    Photo: UN Photo/Frank van Beek

    Dr. Vesselin Popovski (UNU-ISP) initiated and recently completed a collaborative project with Oxford, resulting in the forthcoming edited book After Oppression: Transitional Justice in Latin America and Eastern Europe (UNU Press). The volume contains fourteen stories — seven each from Latin America and Eastern Europe — of unique experiences of justice and reconciliation following the fall of authoritarian regimes. In this article, Dr. Popovski elucidates some of the complexities of the transitions in the two continents and of assessing the effectiveness of the various justice initiatives and mechanisms.

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    The gross violations of human rights in Latin America and Eastern Europe under authoritarian regimes created growing popular anger that finally exploded in mass revolts and demands for change, bringing the regimes to an end. It was a bottom-up process: a gradually rising discontent of ordinary people, who in the aftermath of the changes, made continuous calls for justice and accountability for the perpetrators of human rights violations, and simultaneous calls for compensation for the victims of these violations. The demands for justice and compensation faced initial reluctance, partly because political forces connected to previous regimes remained powerful and influential.

    The processes of transitional justice have been controversial and complex, zigzagging from extreme demands for severe punishment to similarly unacceptable calls for blanket unqualified forgiveness. Transitional justice has had to perform a balancing act: paying full respect to grievances — traumatic, deeply emotional and divisive — while also taking into consideration strategies for societal reconciliation and future stability.

    Complex transitions

    One inherent complexity of transitional justice is the blurred demarcation between victims and perpetrators. In armed conflicts, the evolution of international humanitarian law crystallized a distinction between combatants and non-combatants, between victims and perpetrators, between individual and collective responsibilities, and between the architects of violations, the commanders and rank-and-file executioners. In post-authoritarian transitions, however, there is no such clear distinction — almost everybody suffered from authoritarian regimes, but not many can point a finger and establish the guilt of a particular state official.

    Ironically, the same individuals may simultaneously be identified as “silent supporters” and as “hidden victims” of the same regime. In Eastern Europe, many talented workers were accepted as members of the Communist Party as a kind of “reward” for their good work, but remained hidden dissidents. In 1989, such people became “ex-Communists” overnight, facing potential stigmatization even without having being privileged in any sense by the Communist regime. In contrast, people who were not Communist Party members prior to 1989 could suddenly think of themselves as “heroes”, pretending they were “victims” and demanding unwarranted privileges.

    Another difficulty in assessing transitional justice arises because the highly sensitive and emotional nature of mass crimes has to be “de-emotionalized” when parties enter into legal proceedings. Justice means dealing with evil in a civil way, and facing inhumane acts with a humane approach. Judgments in courtrooms need to be reached through undisputed evidence and respect for the rights of the defendants. For victims and relatives who have experienced deep trauma in the past, these legal niceties might look cold, impartial and indifferent to their suffering. However, justice and accountability mechanisms are guided by broader societal needs in addition to the need to redress the suffering of the victims.

    To add another layer of complexity, the processes of transitional justice often involved investigating and prosecuting not only former junta or ex-Communist leaders, but also, paradoxically, democratically elected officials who came to power after the transitions started. The first Slovak Prime Minister, Vladimír Mečiar, was investigated for destroying secret documents. Andrei Lukanov (ex-Prime Minister of Bulgaria) was arrested for embezzlement; the charges were later dropped, but, in a sad irony, he would have been safer in prison. Instead, he was murdered outside his house.

    The first democratically elected President of Brazil, Fernando Collor de Mello, was forced to resign because of corruption charges and impeachment threats from the Senate. Carlos Menem, ex-President of Argentina, was arrested on charges of arms-trafficking; he was exiled to Chile and investigated later on embezzlement charges. Gonzalo Sánchez de Lozada (twice President of Bolivia) was forced to resign and is facing charges for extrajudicial killings and crimes against humanity. In what is probably the most notorious case, Alberto Fujimori (ex-President of Peru), after extradition from Japan and a landmark trial, received the maximum 25-year sentence for grave human rights violations committed during his term in office.

    Democratically elected leaders in Eastern Europe have also received prison sentences. Yulia Tymoshenko (ex-Prime Minister of Ukraine) received a seven-year sentence for abusing her powers of office in a gas deal with Russia, a sentence that provoked widespread suspicions of political bias. Adrian Năstase (ex-Prime Minister of Romania) received a two-year sentence for corruption; his defense also appealed against the sentence, claiming this was an act of revenge by a political rival.

    A major lesson derived from the Eastern European and Latin American experiences is the importance of detaching the justice process from the battle between political parties at elections. If political parties use power for revenge or as a tool to win elections, the justice process becomes distorted. Transitional justice needs to remain neutral; if left in the hands of politicians, it may be exposed to political manipulations. Even when exercised by the judiciary, justice may still be influenced by a post-authoritarian over-emphasis on the condemnation of dictatorial regimes and fall short of offering compensation, particularly in poorer countries.

    Another lesson is that the collective memory of the past may never be fixed or frozen forever, contrary to what has often been believed. History can be re-investigated and even rewritten, but it is necessary to avoid doing this on the basis of political or nationalistic interests. In this context, the past can be understood as a social schism between victims, who suffered, and perpetrators, who enforced authoritarian ideologies. Interestingly, however, the majority of people are situated in between. In many states this large group — neither victims nor perpetrators — was influential in balancing the historical claims.

    Assessing effectiveness

    Another complexity lies in analysing the effectiveness of transitional justice and establishing benchmarks to evaluate its success. One can think of three parameters to judge effectiveness: comparison with the ideal; counter-factual comparison (Would an alternative mechanism have served justice better?); and empirical comparisons (Were people satisfied?). This is a good start for thinking about effectiveness, because various elements of justice are difficult to quantify: forgiveness, reconciliation and apology are abstract notions that cannot be easily assessed.

    The book After Oppression: Transitional Justice in Latin America and Eastern Europe measures effectiveness — the extent to which justice mechanisms contribute to the broader satisfaction of goals, rather than to whether or not countries have been effective in setting up various mechanisms. Even if all possible mechanisms are initiated, justice might not be properly served. Effectiveness is highly dependent on the agents of implementation — whether society has made collective demands for justice, and to what extent the newly elected authorities have agreed to address the legacy of the past regime.

    Time and cost considerations are also part of the effectiveness evaluation. Generally, the ability to derive maximum gain in the shortest possible time and at minimal expense defines effectiveness in any enterprise. For the analysis of transitional justice, however, time and cost are more complex categories.

    The time factor

    Time is a critical element, particularly in the case of trials, where both the evidence and the availability of witnesses are crucial. Human rights abuses require proper and impartial investigation, but this often takes time. The challenge is to find the best balance between “not too fast” and “not too late”. One has to avoid overly expeditious processes and harsh sentences that deviate from the rule of law, fair trial and due process.

    However, unnecessary delays may result in obsolete or destroyed evidence, which is impossible to reconstruct. Windows of opportunity could be short and should not be missed; soon after a regime change the justice initiatives are likely to be better supported and effective.

    Time may work against transitional justice if victims do not see the perpetrators investigated and prosecuted, when perpetrators are deceased or unfit to stand trial, or when the cases against them have exceeded the statute of limitations. Experience (for example, in Chile) suggests that the pursuit of justice can be deferred and may mature when political circumstances are more favourable. Time can also play different roles for different mechanisms. For example, truth commissions, memorials and historical records are necessarily less time sensitive than trials and can have an effective role even decades after the transition.

    The cost factor

    As with time, the cost factor when applied to transitional justice does not operate in the same way as in the business world. The high costs of justice may add to victims’ feelings of bitterness — tribunals have been criticized for being expensive, and suggestions were made to distribute funds as additional compensation instead.

    Cost-effectiveness can be improved by greater efforts to strengthen domestic justice reforms. Countries with a strong rule of law are more likely to provide an environment conducive to cost-effective justice initiatives. However, there are difficulties. Often, new governments are unwilling to accept far-reaching mechanisms that might jeopardize their legitimacy or stability. Or, even if political will exists, there may not be sufficient funds and capacity.

    This highlights yet another shortcoming: even if perpetrators end up in jail, victims may remain dissatisfied if governments or courts fail to offer reasonable compensation. Truth and reconciliation commissions may serve as a better model for compensating victims. However, compensation for large numbers of victims may exceed the capacity of transition economies.

    Interestingly, it is often ignored that compensation may be measured in ways other than money, for example by the therapeutic element of non-material fact-finding and forgiveness. Addressing the cost factor also necessitates a consideration of the high cost of alternative impunity and the consequences of failing to punish atrocious crimes committed by a previous regime; the duty of governments is also to invest against future violations.

    The local context

    The justice mechanisms should be transparent, credible and locally owned. They should investigate past violations, reconcile divided communities through restorative techniques and attempt to establish a common narrative of the past.

    The experiences in Eastern Europe and Latin America help to contextualize transitional justice both as a duty and as a results-based exercise, providing empirical, regional and local background to compare and judge effectiveness. Not only is there a need for justice, but there is a need for justice to promote peace, reconciliation, human rights protection, accountability and the establishment of social trust.

    In Latin America there have been more cases of truth commissions, trials and amnesties, whereas in Eastern Europe purge laws, the opening of secret files and property restitution prevailed. High-profile prosecutions in one country have had an impact on neighbouring countries.

    Although there is no standardized approach to transitional justice, generally neighbours can develop similar affinities with justice mechanisms. Nonetheless, transitional justice processes still have to be contextually appropriate and tailored to the specific needs of each society.