Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (3 page)

Criminal prosecution was seen as essential in these cases in part because the killings had been massive, open and notorious (indeed, broadcast on Rwandan radio) and so a “truth commission,” by itself, was thought both inadequate and unnecessary.
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Moreover, these were not cases where a rigid security force hierarchy under state control attacked perceived enemies of the state. Rather, they were much murkier, involving ethnic and resource‐based conflict and looser chains of command. Often, ethnically based conflicts set community against community, neighbor against neighbor. Only trials could provide for the confrontation of evidence and witnesses that would create an unimpeachable factual record, Moreover, only trials could adequately individualize responsibility, holding the guilty parties liable without stigmatizing entire ethnic or religious groups. This was important to avoid continuing bouts of violence as well as the temptation of private revenge.

The Tribunals were praised for reaffirming the principle that accountability was an important international concern. Their statutes, rules of evidence and procedure, and rulings were milestones in the development of international criminal law, and they served as training grounds for a corps of international investigators, lawyers and judges. They developed important jurisprudence on genocide, crimes against humanity and war crimes, among other issues. They contributed to creating an authoritative record of the origins and nature of the violence, incapacitated a number of offenders, allowed some victims to tell their story, and limited the ability of some local authorities to do further mischief. They established that heads of state were not immune from trial before an
international tribunal, and pioneered techniques like the use of sealed indictments and plea bargains in the international criminal context. As of February 2006, the Yugoslav Tribunal has indicted almost 100 individuals, including former president Slobodan Milosevic. The Rwandan Tribunal has tried or is currently trying 52 leaders of the Rwandan genocide, including the former army Chief‐of‐Staff, and another 17 detainees are awaiting trial.
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And yet, by the start of the new decade criticism mounted as well. The Tribunals were enormously expensive and time‐consuming, and critics noted that the same resources might have been better spent on rebuilding the national legal systems. Their very distance, both literal and figurative, made them seem remote from the “target” societies, and it was doubtful whether the populations of the Balkans or Rwanda accepted the facts established in their rulings as authoritative or even knew of their work.
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It was unclear what their long‐term legacy would be, as domestic courts seemed woefully unprepared to take up the cases the Tribunals lacked resources to pursue even as the Tribunals faced deadlines to wrap up their activities.
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Two other events at the end of the 1990s raised the profile of international justice efforts: the creation of the International Criminal Court and the arrest of Augusto Pinochet. After a number of preparatory meetings, a conference convened in 1998 to create a permanent International Criminal Court.
The ICC has jurisdiction over genocide, crimes against humanity, and war crimes taking place after July 1, 2002. (A fourth crime, aggression, will be added once defined.) Unlike the Yugoslav and Rwanda Tribunals, the ICC's jurisdiction is complementary to that of national courts: it can only prosecute when local courts prove unable or unwilling to do so. As of 2006, some 100 countries are parties to the
ICC Statute. The prosecutor has announced his first investigations, but few indictments have been forthcoming as yet. In March 2005, the Security Council sent its first referral to the Office of the Prosecutor.

Scarcely three months after the signing of the Rome Statute, the former head of Chile's military government, Augusto Pinochet, was arrested in London under a provision of Spanish law providing jurisdiction in local courts for cases of genocide, terrorism and other international crimes under ratified treaties. The British House of Lords found that he had no immunity as a former head of state from charges of torture, and that torture constituted an “extradition crime.” The highest Spanish criminal appeals court also upheld the prosecution under Spain's universal jurisdiction law. Eventually, Pinochet was found unfit for trial and sent home, but by that time the taboo on complaints against him had been broken. He was soon charged in a number of cases, his
parliamentary immunity stripped, and as of this writing he is awaiting trial in both human rights and tax evasion cases; many of his closest associates are in prison. Transnational prosecutions seemed a viable option as a complement to national or international ones, or at least as a way to avoid creating safe‐havens for traveling dictators. A rash of other transnational prosecutions followed.

These two major trends – the increasing use of investigative or “truth and reconciliation” commissions and the use of international and transnational trials – came together by the beginning of the new millennium. The debate about truth versus justice seemed to be resolving in favor of an approach that recognized them as complementary. Even those who had argued strenuously in favor of a non‐prosecutorial, “truth‐centered” approach recognized exceptions for crimes against humanity, while advocates of prosecution recognized that a truth‐seeking and truth‐telling exercise could serve as a valuable precursor or complement, even if not a substitute, for prosecutions. This mutual recognition combined with increasing attention at the international level to issues of reparations and structural reform. Practitioners and scholars began to speak of a “package” of measures, of an intertwined set of obligations arising in cases of massive or systematic violations, composed of truth, justice, reparation and guarantees of non‐repetition.

Moreover, each element affected the shape and possibilities of the others, in an “ecological model”
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of social reconstruction or reclamation. “Truth‐telling” followed by neither reparations nor prosecutions seemed to make victims' accounts meaningless, while reparations without public acknowledgment of the facts looked to many victims like “blood money” paid for their silence. Prosecutions without a forum where a larger narrative could emerge created a partial, fortuitous view of history (dependent on evidence and the ability to apprehend defendants), while a truth commission without a tie to judicial actions against perpetrators begged the question of what the consequences of truth should be. Only by interweaving, sequencing and accommodating multiple pathways to justice could some kind of larger justice in fact emerge.

As the new millennium began, there was an increasing consensus that in the wake of massive human rights and humanitarian law violations some kind of transitional justice measures were needed. The consensus was never absolute: Mozambique, for example, decided against officially confronting its past. However, by and large, for successor governments the no‐action option was no longer either desirable or viable. For
one thing, national and international human rights groups saw ending impunity as a key part of their agenda, and were quite capable of exerting pressure. Many of these governments, moreover, had international observers, missions, administrators or advisors present, and these people generally urged attention to transitional justice issues. Their concerns dovetailed with those of international banks and aid agencies, which had discovered that increased attention to the rule of law was a likely prerequisite to economic development.

One major strand of this new phenomenon is the simultaneous existence of a number of different mechanisms aimed at transitional justice. Truth commissions are now often seen as complements to criminal processes, and a number of them have coexisted with ongoing criminal investigations or have been explicitly designed to feed into such investigations. In other emerging proposals, prosecutions, amnesty, fact‐finding and reparations to victims are all bound up together in a single multifaceted process. The creation of multiple institutions or multiple functions in a single institution results in both synergies and tensions, duplications and gaps. The relationships between these institutions necessarily become complicated, as they must navigate issues of evidence‐ and witness‐sharing, division of labors, sequencing, and the similarities and differences in the narratives they produce.

Thus, Sierra Leone has had both a Truth Commission and a Special Court, and East Timor has had both a Commission for Truth, Reception and Reconciliation and Special Panels for Serious Crimes. The timing of these various efforts has varied: in some cases, the two mechanisms have operated simultaneously, while in others, including Argentina and Chad, a truth commission has preceded prosecutions, either deliberately or because conditions for prosecution have only opened up years after the commission finished its work. In a few cases, like the former Yugoslavia (and perhaps Mexico or Iraq), prosecutions came first, and only later did the value of a complementary truth commission become apparent.

Beyond the truth commission/court bifurcation a whole array of methods for combining truth‐seeking and prosecutorial functions developed. Thus, for example, the Peruvian Truth and Reconciliation Commission contained a special unit whose job was to cumulate and organize evidence of crimes (and criminals) that could be presented to prosecutors. The Mexican Special Prosecutor, in contrast, has a citizen advisory committee that sees its job as compiling a historical record, and the current Colombian proposal envisions a Commission with the same job. Increasingly, the issue is simply one of carrying out multiple functions: compiling a factual record of the conflict, listening to and recording victims' stories, recommending changes to avoid repetition,
imposing sanctions against at least the top perpetrators of serious crimes, and some method for both sanctioning and rehabilitating other perpetrators. The exact shape and timing of the mechanisms and institutions for carrying out these functions are more and more diverse, tailored to national conditions and constraints within a broad framework of international legal and political exigencies. As this flowering of approaches progresses, new questions arise, and some old ones are replayed.

Along another dimension, this new multilayered reality exhibits an increasingly complex set of relationships among the local, national and international planes. Early experiences with truth commissions and courts were almost completely national, as in South Africa or Chile (with some international funding), or completely international, like El Salvador.
The ad hoc Criminal Tribunals were deliberately placed outside the country where the crimes took place. The Guatemalan Historical Clarification Commission and the Haitian Truth and Reconciliation Commission pioneered the use of a “hybrid” institution composed of both national and international commissioners and staff; a subsequent commission in Sierra Leone followed a variant of that model. “Hybrid” courts in East Timor, Sierra Leone, Kosovo, Cambodia and elsewhere also combine international and national authority and staffing in various ways.
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In theory, these hybrid institutions can combine the independence, impartiality and resources of an international institution with the grounding in national law, realities and culture, the reduced costs, and the continuity and sustainability of a national effort. Or they can create orphan institutions fully owned by neither their international nor national progenitors.

Hybrid institutions are not the only possible intersection of the national and the international dimensions of transitional justice. International criminal tribunals – either ad hoc or, more recently, the permanent International Criminal Court – coexist with national courts. An emerging division of labor holds that international courts should focus on leaders and organizers of mass crimes, especially those where formal or informal immunities might bar national prosecutions, while national courts deal with the rest.
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Indeed, the idea of
complementarity
is the cornerstone of the International Criminal Court, and variations on this idea are increasingly found in national legislation and jurisprudence as well. Exactly where those lines are, however, and whether such a two‐track strategy responds to the needs of victims as well as to the realities of limited resources, are open questions. Prosecutions by international tribunals will always be limited, but often, as several cases in this book show, transnational investigations, extradition requests and prosecutions by national courts in countries other than
those where the crimes took place may fill the gap. Such transnational procedures, like those involving Chile, Argentina or Chad, may under certain circumstances catalyze, jump‐start or support domestic investigations or prosecutions. Human rights institutions, especially regional courts like the Inter‐American Court of Human Rights, can play a similar role in developing legal standards and backstopping or opening up national efforts. Emerging national transitional justices strategies, like those of Colombia, must mold themselves around these new realities. Together, these developments create an increasingly porous legal fabric, where promises of amnesty or immunity made at the national level cannot be airtight and are subject to both international revision and domestic reevaluation.

However, international influence can also overwhelm and deform national processes. In places like Afghanistan and Iraq, the “transitional moment” is the result of violent external occupation. In those circumstances, the priorities of the occupying power may twist the available options and resources for transitional justice, raising questions of political legitimacy and civil engagement. The need for military stability may make transitional justice initiatives more difficult, and any action a government takes while the country is occupied may lack sufficient legitimacy to be successful. In a world where a single hegemonic power, the United States, is increasingly willing to use force to create political change in the name of democracy and human rights, an insistence on a modicum of both broad‐based international cooperation and domestic support for specific initiatives may be imperative if such processes are to be successful and sustainable.