31 tc, trials, or nothing policy options in democratic societies

8/20/2019 31 TC, Trials, Or Nothing Policy Options in Democratic Societies

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Third World Quarterly, Vol 20, No 6, pp 1109±1128, 1999

Truth commissions, trialsÐ or

nothing? Policy options in democratic transitions

ELIN SKAAR

ABSTRACT Gross human rights violations have constituted a hotly contested

national issue in many recent transitions from authoritarianism to democracy.This article analyses how newly elected democratic governments have dealt with

violations committed by of®cials of previous authoritarian regimes. Empirical

evidence from around 30 (mainly) Latin American and African countries

undergoing democratic transition after the mid-1970s shows that the govern-

ment’s choice of human rights policy largely depends on the relative strength of

the public’s demand for truth and justice and the outgoing regime’s demand for

amnesty and impunity. Policy choice will tend towards trials as the outgoing

regime becomes weaker and away from trials as the outgoing regime becomes

stronger. Truth commissions are the most likely outcome when the relativestrength of the con¯icting demands is roughly equal. Where human rights policy

deviates from predictions, the government always does less than expected. These

a rg um en ts h old true b ot h a t the ti me of reg im e ch ang e a nd d uri ng the

consolidation phase, as power dynamics often change over time.

The lea st unsatisf act ory cou rs e may we ll be:Do not prosecute,

Do not punish,

Do not forgive,

And above all,

Do not forget 1

The dilemma: to punish or to pardon?

In his guidelines for democratisers, Huntington aptly sums up the centraldilemma that many political leaders have been confronted with in transitions

from authoritarian to democratic rule. In situations where state of®cials of the

prev ious regim e hav e been re spon sibl e fo r m urdering, im prison ing , to rt urin g an d

`disappearing’ its citizens, should the new government listen to public demand

for disclosure of the truth and prosecution of the guilty? Or should it give in to

the outgoin g re gim e’ s dem an d for im pun it y fo r past crim es? By neglecting the

Elin Skaar is at the Department of Political Science, University of California, Los Angeles, Box 951472, Los

Angeles, CA 90095-1472, USA.

ISSN 0143-6597 Print; 1360-2241 Online/99/061109-20 ÓThird World Quarterly 1109


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ELIN SKAAR

former, the new democratic government may risk losing popular support and

legitimacy, as well as risk failing to build respect for the rule of law and

democratic institutions. By neglecting the latter, the government m ay run the risk

of provoking a violent military reaction and hence putting the fragile democracy

in potential danger. How, then, do political leaders respond to such con¯icting

demands?

Given past gross human rights violations, a democratic transition govern-

me nt’s thre e c ho ic es in th e ® eld o f h uma n rig hts are tru th co mmission s

(disclosing the facts about human rights violations), trials (prosecuting and

punishing the guilty), or nothing . This pape r tests the foll owing hyp oth esis:

The gover nm en t’s ch oic e of pol ic y dep en ds on the re la tive stre ng th of dem an ds

from the public and the outgoing regime, the choice tending towards trials as the

outgoing regime becomes weaker and towards nothing as the outgoing regime

becomes stronger, with truth comm issions being the most likely outcome when the

relative strength of the demands is roughly equal.

T his argum en t is in li ne with scholars on democratisation who argu e that the

typ e of reg im e tr an sition has an im pact on policy ch oi ce an d hence also on

democratic consolidation.2

Arguments such as that trials can only occur where

there has been total re gim e co llapse, or that truth co mm ission s are co mpro mise

solutions are common.

3

Yet these and similar rather intuitive statements have, tomy knowledge, not been rigorously tested. Samuel Huntington’s comprehensive

comparative study of how different countries have contended with the problem

of gross human rights violations offers valuable insight about individual cases,4

but no scholar has systematically tested common explanations for choice of

polic y across co untries. Sim ilar ly, th e literature on th e in te rim of®cial fact-

®nding bodies called truth commissions is also predominantly descriptive.

Pricilla Hayner and Daan Bronkhorst have documented the existence and work

of a large number of such truth commissions, but they offer no good analytical

explanation for their occurrence.5 This pap er seek s to ®ll th ese gaps. I investigate the ex isting univ erse of tr uth co mm ission s an d trials af te r the onset of th e th ird

wave of democratisation starting in the mid-1970s and offer arguments for when

we may expect one or both or none of these solutions as a government response

to past gro ss human ri ghts vio la tions.

Con¯icting demands and their solutions: a balance-of-power argument

Con¯icting demands

T ransitio n fr om au tho ritarian to dem ocratic ru le is ch aracterised by a hig h degree

of uncertainty, as the rules of the democratic `game’ are not yet ®xed.6

Elites

contend for power and in¯uence over the democratic rules, as well as for control

over policy making during the transition process and after the regime change.7

One particularly controversial policy issue in democratic transition has been how

to deal with gro ss hum an rights vio la tions comm itte d by the outgoin g au th ori-

taria n regime, be it a milita ry or perso nal dic ta tor sh ip, a one-pa rty reg im e (i e

comm unist regime), or a settler oligarchy. The intensity of the human rights

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TR UTH CO MM ISSI ON S, TRIALSÐOR NOTHING?

issue depends on several factors, including the scope and nature of the abuses,

who the targeted victims were, and how well their interests are represented

organisationally.8

More important than the absolute numbers of victims (which

is always a matter of contention, as ®gures on human rights abuses are invariably

either in¯ated or de¯ated, depending on the interests of those counting),9 is the

typ e of respon se th at th e vio la tio ns pro voke. Human rig hts vio lations te nd to

mobilise different sectors of society with strong con¯icting interests, to which

the dem ocratic governm ent must respon d. T he governmen t’s an sw ers to

con¯icting demands may have a signi®cant impact on political stability, the

process of dem ocratisation, and, linked to th e la tte r, national reconcili ati on . T he

preferences of th e outgoin g re gim e, the pu bli c an d th e dem ocratic governm en t 10

may be summed up as follows:

1. All outgoing regimes responsible for gross human rights abuses have one

main interest in common: avoid prosecution of their of®cers and of®cials at

all costs and, if possible, avoid being given public blame for the violations.

2. The victims of human rights violations, their relatives and supporters, by

contrast, want retribution for the violations that have taken place under the

o ut goi ng reg im e. A t a m inim um , they wan t to ® nd out wh at actually

hap pen ed, that is, to establi sh th e facts regarding th e nature an d extent of the

violations. If possible, they would also like to have the perpetrators named

and, as a third step, to have the guilty put on trial and convicted. This maybe summed up as a public demand for `truth’ and `justice’, respectively.

11

3. The transitional democratic government’s primary interest is staying in

power; th at m eans surv iving the ®rst electoral perio d by crea ting an en viron -

ment of political stability. Second, the government must try to achieve the

long-term goals of democratic consolidation through establishing respect for

th e ru le of la w (hence dem onstrating th e willingne ss to bre ak with a

dictatorial past), building legitimacy and strengthening faith in the new

democratic institutions.12

Achieving national reconciliation is also an import-

ant long-term political objective.

We may further assume that all three actors want to preserve democracy.

Although democratically elected governments may be motivated to confront the

armed forces over hum an rights abuses and to reduce their power and privilege,

they are not wil ling to risk a co up to ac hiev e the se goals.13 The m ilit ary will only

take the co st of staging a co up if its reputa tion is severely at stake, tha t is, wh en

being threatened by trials. The worst possible scenario for the public is the

breakdown of democracy and a reversion to authoritarianism.

Policy options

T he dem ocratic governm en t has three pri ncipal policy ch oice s in dea ling with

con¯icting demands from the public and the outgoing regime.14

It may simply

do nothing (option 1). Second, it can establish a truth commission (option 2),

whose prime mandate is to give a comprehensive account of certain past gross

hum an rig hts violations, or vio lati ons of interna tion al human ita rian law, co mm it-

ted over a speci®c period of tim e. In retu rn fo r the ex ch an ge of in fo rm ation, tr uth

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ELIN SKAAR

commissions often offer a promise of partial or blanket amnesty.15

Since truth

comm issions have, with few exceptions, not had the judicial right to try the

culprits, the government’s third strategy is to instigate legal redress by prosecut-

ing individual people and meting out punishment (option 3).

T he democratic governm ent’s op ti mal choice would be one tha t allows it to

achieve both its short-term and long-term goals. However, where there is a

potential co n¯ict between the two, it has to priori tise political surv iva l. T he

possibi lity of rem aining in po wer dep en ds on whether the dem ocratic govern-

ment sides with the outgoing regime or the public in the contest over options 1,

2 and 3 and what reactions this may provoke. When deciding whom to side with,

the governm en t m ust assess the cred ibil ity of the dem an ds . The ab ility of either

the outg oing reg im e or th e public to impose sanctions on th e governmen t fo r not

complying with its demands is linked to the relative strength and unity of eachactor. To illustrate this intuitive point, a weak and disarrayed outgoing military

regime may be vehemently opposed to prosecution of its of®cers, but it may not

be in a position to impose any sanctions on the new government for instigating

tri als. Simil arly, if the outgo in g reg im e is non -m ilita ry an d it no lo nger wie lds

control over the military forces, it cannot threaten the new government with

force.

T he gov ernmen t m ust also co nte nd with what I here call `public opinion ’.

Public discontent does not pose an immediate direct threat to political stability

in the way that a coup does, but it may have serious effects on a government’s

long-term goals of building legitimacy and support for its policies. First, the

general public may punish the government electorally if discontented with its

polic ie s. Secon d, sp ecia l-in te re st org an isations, such as human rights gro ups,

may be small in numbers but high in leverage if they are able to draw unwanted

international attention to the human rights cause. Since most new democratic

governments are eager to send signals to the international community of

complying with `good governance’ procedures, a poor human rights record left

unattended may harm their reputation. In addition to moral condemnation, theinternational community m ay also pose threats of boycotts or economic sanc-

tions, such as the withd ra wal of lo an s or aid. The intensity of th e dem an ds from

these different public in tere st gro up s is therefor e im porta nt.

T o sum up th e policy pre ferences discu ssed ab ove, th e outgo ing regime will

always want inaction, will grudgingly accept truth commissions, and will accept

tri als only if it is too weak to resist. The pu bli c, by co ntrast, will always wa nt

tri als, wi ll grud ging ly accept tr uth co mm issions, but will acce pt in acti on to av oid

a military coup. The government is an autonomous actor which preserves itself

by responding to demands from the military and the public. However, the

government also has its own agenda, depending on its bias, which will make it

choose either inaction or an active human rights policy in the cases where it can

act autonomously. We expect the government to act autonomously only when

the m ilitary is weak, sinc e it alway s has to take th e po te ntial th reat of a co up

seriously. Based on these assumptions, we expect the policy outcomes presented

in Table 1.

In the rest of the paper, I present three arguments: ®rst, government policy is

made primarily in response to joint demands from the public and the outgoing

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T ABLE 1

Expected policy outcomes

Outgoing regime

St rong W eak

Public Strong T ru th co mm issio ns T rials

demand W eak Nothing Unresolved

regime. Because the outgoing regime can only threaten the new government

when it wields control over the military forces, I shall henceforth refer to the

outgoing regime as `the military’. The most interesting situations occur where public dem an d for truth an d justic e is strong and th e m il itary’s dem an d for

impunity is strong. Assuming that both actors will back down on their claims in

o rd er to p re se rv e d emo crac y, we e xpe ct th e g ov ernme nt to p rese nt tru th

commissions as a compromise solution whereby both get a bit of what they

want. If public demand is strong and the military is weak, we expect trials.

Conversely, in the case of weak public demand and strong military demand, we

expect nothing, since the military can impose sanctions in the form of a coup.

In si tu ation s wh ere the go ve rn men t d oes n ot h av e to resp on d to ex te rn aldemands (the weak±weak scenario), the government is free to implement

whatever policy it wants. Since implementing an active policy of any kind is

always more costly to the government than following a nothing-policy option,

we would expect the government to do nothing also in this case.

My second argument is that the democratic government is more likely to err

on the side of overestimating rather than underestimating the claims of the

military relative to those of the public at the time of transition, since its own

survival is at stake if it makes the wrong assessment. This could happen if the

government challenges the outgoing regime with prosecution where the militaryis both willing and powerful enough to retaliate with a coup.

Fin ally, I argue th at power dynam ics may ch an ge over ti me an d op en up for

possibl e policy rev ersals. If we assume that th e co st of staging a co up inc reases

as democracy consolidates, we would expect to get the `nothing’ option early in

the tran sition pro cess and `truth co mmissio ns’ or `t rials’ la te r, gran ted th at public

demand remains constant or increases.

A cross-country analysis of human rights policies

In the following, I carry out a cross-country analysis aimed at testing the

arguments developed in the previous section. I ®rst give my criteria for case

selection, then proceed to classify the demands of the public and the outgoing

regime in each country as `strong’ or `weak’. Finally, I present empirical

evidence in support of my argument that the democratic government’s policy

choice depends on the relative strength of these demands.

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ELIN SKAAR

Case selection

About 50 countries have undergone democratic transition over the past three

decades, but only a third have dealt actively with the legacy of human rights

violations.16

Narrowing the focus of the analysis to democratic transition after the m id -19 70s pla ces the fo llowin g re stri ctions on m y crit eria for ca se sele ction.

First, only tru th co mm issions set up to inv estigate ab uses carried out by the

previou s autho ritarian regime are included. Hence, committees set up by a

government to investigate human rights abuses undertaken by or under its own

regimeÐso-called investigatory bodies or committeesÐare excluded. This is an

important distinction that both Hayner and Bronkhorst failed to make in their

broad com parative studies of truth commissions.17

Second, I do not address trials

during transitions instigated for purposes other than that of prosecuting people

for gross human rights violations. Hence, I exclude from my analysis the

so-called Iustration processes (also called `cleansing’, meaning purging from the

public sector th ose who served in re pressive regimes) in stig ated in E aste rn

European countries after the demise of communism in the late 1980s and, very

recently, in South K orea.18

I also exclude the trials of those plotting to overthrow

Gorbachev in 1994. Table 2 displays an exhaustive list of the policy choices of

tra nsition al governmen ts that hav e either set up truth co mmissio ns or held trials

®tting my working de®nitions.19

As `negative’ or `control’ cases I have included

a selection of countries where either (i) there has been a demand for truth and justi ce but the governm ent has re sp onded neg atively, or (ii) th e tra nsition al

context would have led us to expect public demand for dealing with the past but

this has not happe ne d. Note that most co untries pursuin g an activ e human ri ghts

polic y have been either L atin American or Afr ican Ð reasons for which I will not

discuss in this paper. Both national governments and national or international

non-g overnmen ta l org an isations hav e insti gated truth co mmissio ns or trials.

De®ning and classifying the actors and their choices

T o what ex te nt ca n th e polic y ch oic es outlined in T able 2 be ac coun te d for as

a government response to the relative credibility of con¯icting demands from the

public an d th e outgo ing re gim e? And how are the se co n¯ic ting dem ands

registered and measured? Early transition theory, based primarily on the Latin

American experiences, argued that the slower and more controlled the transition,

the stro nger th e barg aining power of th e outgoing regime vis-aÁ-vis the incoming

regime.20

T he recen t tran sition al ex perie nces of Eastern E uro pe an d Afric a hav e

led scholars to focus more on the distinction between a `top-down’ versus a

`bottom-up’ approach.21

The ce ntral poin t is to what ex tent th e outg oing regime

is in control of the transition process and hence can dictate terms to prevent

prosecu tion for hum an rig hts violations.

Based on the arguments of this literature, I have broadly ordered the types of

tra nsition in to co llapse, pacte d, an d peace ag re em ents, dep en ding on (i ) the

extent of negotiation that took place and (ii) whether international actors

b ro ke red the p ea ce o r n ot.22

I h av e u sed information a bo ut wh at typ e o f

tra nsition th e coun tr ies in T ab le 2 hav e un dergone as a basis fo r classify in g the

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T ABLE 2

Truth commissions, trials, both, or nothing?

Sp on sor

Truth

Trials Both Nothing commissions

N ati on al P hi lli pp in es (1 98 6) G ree ce ( 19 7 5± 76 ) B ol iv ia ( 19 82 )/ (1 98 6± 93 ) S ou th Ko re a*

g ove rn men t Ugan da ( 19 86 ) R wa nd a ( 19 94 ±) A rgen tin a ( 19 83 )/(1 98 5) Co lom bia*

Chad (1990) Malawi (1995) E ast Germ any (1992±)/ Indonesia*

Chile (1990) (1992±) Namibia*

Haiti (1995) Ethiopia (1992)/(1997±) Angola**

South Africa (1995) Mozambique**

Eastern European

countries**

Non-gov t Brazil (1985) Yugoslav (1994±) Rwanda (1993 )/(199 4±) Cam bo dia*or Uruguay (1985)

international El Salvador (1991)

Guatemala (1996)

Notes: The y ear refers to when the truth commission was established or when trials were held. A dash me ans that

the pr ocess is on go ing. Rw anda appe ars t wi ce in th e tabl e b ecause tr ials have been in sti ga ted bo th by the na tio nal

government and the international war crimes tribunal set up by the UN. The ®rst convictions in both Rwandan

trib unals to ok pl ace in 19 98. Many more are expected.

*There have been calls for truth commissions in South Korea and Honduras (see PB Hayner, `Fifteen truth

commissionsÐ1974 to 1994; a comparative study’, Human Rights Quarterly, 16(4), 1994, p 605); Rwanda (seeA Froyland, AC Nilsson & A Suhrke, `Rwanda: neither justice nor peace’, in BA Andreassen & E Skaar (eds),

Reconciliation or Justice? Protecting Human Rights Through Truth Commissions and Trials (in Norwegian),Oslo:

Cappelen Akademisk Forlag, 1998, p 302); Namibia (see N Kritz (ed), Transitional Justice. How Emerging

Democracies Reckon With Former Regimes, Vol II, Washington, DC: United States Institute of Peace Press, 1995,

p xi ); Indo ne sia (The Economist , 6±12 June 1998), and Cambodia (New York Times, 13 January 1999). The

governments of these countries have either not yet of®cially responded or have responded negatively.

**No formal claims for truth commissions or trials have been made by the public in these countries.

So urces: D Bronkhorst, Truth and Reconciliation. Obstacles and Opportunities for Human Rights, Amsterdam:

Amn esty International Dutch Section, 1995; PB Hayner, `Fifteen truth commissions±1974 to 1994: a com parative

study’, Human Rights Quarterly, 16(4), 1994, pp 597± 655; M Kaye, `The role of truth commissions in the search

for justice, reconciliation and democratisation: the Salvadoran and Honduran cases’, Journal of Latin American

St ud ies, 29(3), 1997, pp 693±716; N Kritz (ed), Transitional Justice. How Emerging Democracies Reckon With

Former R egimes, Vols I±III, Washington, DC: United States Institute of Peace Press, 1995; JA McAdams (ed),

Transitional Justice and the R ule of Law in New Democracies, N otre Dame, IN: University of Notre Dame Press,

1997.

outgoing regime as `defeated’, `weak’ or `strong’. I have classi®ed the outgoing

regime as `defeated’ (D) in transitions by collapse, that is where the outgoing

regime has suffered defeat in war (in the case of military regimes), or been

forced to ¯ee the country (in the case of civilian dictatorships), or has been

severely discredited for other reasons. In the rare cases of transition by `collapse’

where the outgoing regime is reported in the literature to have remained party

to the bargaini ng pro ce ss, in spite of ha ving lost m uch of it s le gitimacy, I hav e

classi®ed it as `weak’ (W). Note that a defeated military poses no initial threat

to the new dem ocratic gove rn men t, whereas a weak mili ta ry may reg ain stre ngth

over time.

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ELIN SKAAR

I ha ve g iv en the o utgo ing reg ime the lab el `stro ng ’ (S ) in two ty pe s o f

scenarios: ®rst, in transitions that have been gradual, controlled, and authori-

taria n-init iated, th at is, tran sitio ns where there has been a relatively fa ir power

balance between the incoming and the outgoing regime. In these so-called pacted

tra nsition s, the outg oing reg im e is ex pected to be co herent, relatively uni® ed ,

and thus have a substantial say in the proceedings of the transition process.

Second, I have classi®ed the outgoing regime as `strong’ (S) in cases where an

international broker has negotiated a peace settlement after a prolonged civil war

and the outgoing regime has been party to the bargaining process.

T he rela tive strength or weakn ess of `p ublic dem an d’ for tru th an d ju stice is

tri ckier to assess, as it is not nec essaril y link ed to the typ e of tran sition .

Moreover, the `public’ encompasses a wide array of individual actors who are

quite likely to have internally con¯icting interests. The part of the population supporting the outgoing regime most probably prefers no action to be taken in

the ®eld of human righ ts. Specia l inte re st gro ups, such as non-governm ental

hum an ri gh ts or gan isations or oth er civil society org an isations pushi ng fo r either

a truth commission or legal redress, or both, often represent the interests of the

victims. The relative strength of these con¯icting demands forms a continuum

and is obviously hard to quantify. Based on the reading of various secondary

sources and other scholars’ assessments of each of the countries in Table 2, I

hav e classi®ed `p ubli c dem an d’ as `stro ng’ (S) if th e literatu re re po rt s it as

hav in g pla ced su bsta ntial pressu re on th e go vernmen t to in it iate hum an ri ghts

polic ie s. T his is m ost typic ally record ed with reference to the acti viti es of human

rights organisations (often with reported links to the international community, or

to domestic institutio ns su ch as the Catho lic Church or polit ical parties), but also

to ralli es, new sp aper writing s, dem onstrati on s an d public opinion poll s (p re-

sumably re¯ecting the preferences of the voters).

Conversely, public demand is recorded as `weak’ (W) if no apparent credible

pressu re fo r truth an d/o r justice has be en placed on the governm en t. T his may

be because (i) the public simply does not want such policies to be enacted, or (ii) the public wants such policies, but fails to put pressure on the government

out of fear of retribution, or (iii) the public is too disorganised to make its

demands effective. The (largely subjective) assessment of this kind of infor-

mation is presented in Table 3.23

Linking strength to strategy

I have next used the information of the relativeÐcredibleÐstrength of public

demand and that of the outgoing regime reported in Table 3 to determine to what

extent actual policy choices concur with predictions made in Table 1 earlier in

this pap er. Based on th e rela tive stre ngth of public versu s m ilita ry dem and alon e,

T ab le 4 sh ow s that our model co rrectly pre dicts polic y outcomes fo r a large

num ber of coun tries that hav e ch osen truth co m missions, trials or no th ing in an

attempt to deal with the legacy of gross human rights violations. Deviant cases

are noted in italics.

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Evidence con®rming predictions

In line with our predictions, Uruguay, Brazil, Chile, South Africa, El Salvador,

Guatemala and Haiti chose truth commissions as a compromise solution. The

®rst ® ve countries had elite-initiated transitions where the outgoing regimes w ere

in a position to dictate the terms of their departure by insisting on amnesty laws.

T he tran siti ons in El Salva do r an d Guatem ala were facilitated by UN pe ace

agreements after prolonged civil war. As part of the peace accords, the new

democratic governments agreed to set up truth commissions, accompanied by

amnesty laws, in response to vocal demand from both human rights groups and

the publ ic writ large.24

The tran sition in Haiti resulted fro m a ne go tia te d pe ace

settlement combined with US military intervention, where the Haitian outgoing

regime’s demand for impunity was secured through an amnesty law.25

Correct predictions were also made for several countries staging trials, either

separately (Greece, Yugoslavia and Malawi), or in combination with truth

comm issions (Bolivia, Argentina, East Germany, Ethiopia and Rwanda). All

these co untries had ou tg oin g regimes th at were either defeated in in terna l or

external war (Yugoslavia, Argentina, Ethiopia and Rwanda) or that were

severely discredited for other reasons (Greece, Malawi, Bolivia and East Ger-

many). This supports conventional wisdom that trials are only likely to be held

in cases of transition by collapse.

Fin ally, co rrect predic ti ons were mad e reg arding noth in g-policy optio ns in

Angola and Mozambique, on the one hand, and the Eastern European countries

(except East Germany), on the other hand. Angola and Mozambique illustrate

the spec ia l nature of interna ti onally brokered peace sett lem ents after pro longed

civil war. The outgoing regimes in both countries maintained a high degree of

control in the negotiation process and, importantly, control over the military

forces. The public has been too exhausted after years of civil war (newly

erupted again in Angola) to place any credible demands for truth and justice on

the cu rr ent governmen ts.26

T he United Nations has not insisted on tr uth comm is-sions or trials, fearing that this would upset the fragile political balance. This

contrasts with the previously mentioned UN negotiated settlements in El

Salvador and Guatemala, where the bargaining parties agreed to set up truth

commissions.

T he Eastern Europ ean co untrie s (a gain wit h the ex ception of East Germ any)

presen t a different an d interesting gro up of cases. T he y had relatively stro ng

outgoing regimes, as a result of controlled transitions from communism, com-

bined with weak public demand (save Romania, where the Ceausescus were

forced from power and summarily executed after ad hoc trials). As expected in

a weak±strong scenario, the new democratic governments did nothing. However,

an intriguing question presents itself: why have these countries, with histories

tainted by m assive an d sy stematic hum an rights violations an d organised civil

societies, not had a substantial public demand for truth and justice? Several

scholars have convincingly argued that this may be because a sizeable proportion

of citizens in these countries has been directly or indirectly associated with the

outgoing communist regimes, and therefore has had its own interests to protect.

T he issue of co lla bo ratio n may thu s offer at le ast a partial ex pla nation fo r why

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ELIN SKAAR

1118

T A B L E 3

P o l i c y o p t i o n s i n a t r a n s i t i o n a l s e t t i n g : l o

o k i n g f o r s y s t e m a t i c p a t t e r n s

C o u n t r y

Y e a r

T y p e o f

O u t g o i n g

P u b l i c

S p o n s o r

P o l i c y

F i t m o d e l

t r a n s i t i o n

r

e g i m e

d e m a n d

S

W D

S

W

N a

I n t

T

T C

N

Y e s

N o

G r e e c e

1 9 7 4

C o l l a p s e ( r p )

D

X

X

X

X

M a l a w i

1 9 9 4

C o l l a p s e ( R E )

D

X

X

X

X

Y u g o s l a v i a

1 9 9 4

C o l l a p s e

D

X

X

X

X

B o l i v i a

1 9 8 2

C o l l a p s e ( t p )

W

X

X

X

N R

X

A r g e n t i n a

1 9 8 3


D

X

X

X

X

X

E G e r m a n y

1 9 9 0


W

X

X

X

X

X

E t h i o p i a

1 9 9 1

C o l l a p s e ( N C )

D

X

X

X

X

X

R w a n d a

1 9 9 4

C o l l a p s e ( R E )

D

X

X

X

X

X

X

P h i l i p p

1 9 8 6


W

X

X

N R

X

U g a n d a

1 9 8 6


D

X

X

X

X

C h a d

1 9 9 0


D

X

X

X

X

U r u g u a y

1 9 8 4

P a c t e d ( t p )

X

X

X

X

X

B r a z i l

1 9 8 5

P a c t e d ( t f )

X

X

X

X

X

C h i l e

1 9 9 0

P a c t e d ( t f )

X

X

X

X

X

S A f r i c a

1 9 9 4

P a c t e d ( t p )

X

X

X

X

X

E l S a l v

1 9 9 2

P e a c e a g r ( t p )

X

X

X

X

X

G u a t e m a l a

1 9 9 6

P e a c e a g r ( t f )

X

X

X

X

X

H a i t i

1 9 9 4

P e a c e a g r

X

X

X

N R

X

N a m i b i a

1 9 9 0

P e a c e a g r ( P A )

X

X

X

X

X

C a m b o d i a

1 9 9 1

P e a c e a g r

X

X

X

X

X

A n g o l a

1 9 9 2


X

X

X

X

X

M o z a m b

1 9 9 2


X

X

X

X

X

S K o r e a

1 9 9 2

P a c t e d ( t p )

X

X

X

X

X

I n d o n e s i a

1 9 9 8

P a c t e d

X

X

X

X

X

B u l g a r i a

1 9 8 9

P a c t e d ( t f )

X

X

X

X

X


11/20


1119

C z e c h o s l

1 9 8 9

P a c t e d ( t p )

X

X

X

X

X

P o l a n d

1 9 8 9

P a c t e d ( t p )

X

X

X

X

X

H u n g a r y

1 9 9 0

P a c t e d ( t f )

X

X

X

X

X

R o m a n i a

1 9 8 9


W

X

X

X

X

N o t e s : T h e d a t e s r e f e r t o t h e t i m e o f r e g i m e c h a n g e . S 5

s t r o n g , W 5

w e a k , D 5

d e f e a t e d , N a 5

n a t i o n a l , I n t 5 i n t e r n a t i o n a l T 5

t r i a l s , T C 5

t r u t h c o m m

i s s i o n ,

N 5

n o t h i n g .

I h a v e b r o a d l y c l a s s i ® e d t h e t y p e s o f t r a n s i t i o n i n t o c o l l a p s e , p a c t e d a n d p e a c e a g r e e m e n t s , d e p e n d i n g o n ( i ) t h e e x t e n t o f n e g o t i a t i o n t h a t t o o k p l a c e a n d ( i i )

w h e t h e r i n t e r n a t i o n a l a

c t o r s b r o k e r e d t h e p e a c e o r n o t . W h e r e a v a i l a b l e , H u n t i n g t o n ’ s ( 1 9 9 1 ) c l a s s i ® c a t i o n s ( t r a n s f o r m a t i o n ( t f ) , t r a n s p l a c e m e n t ( t p ) a n d

r e p l a c e m e n t ( r p ) ) a r e n o t e d i n p a r e n t h e s e s . F o r t h e A f r i c a n c a s e s , B r a t t o n a n d v a n d e

W a l l e ’ s ( 1 9 9 8 ) c l a s s i ® c a t i o n s ( r a p i d e l e c t i o n ( R E ) , n a t i o n a l c o

n g r e s s

( N C ) a n d p a c t ( P A ) ) a r

e n o t e d i n p a r e n t h e s e s , w h e r e a v a i l a b l e .

S o u r c e : C A l d e n & M S i m p s o n , ` M o z a m b i q u e : a d e l i c

a t e p e a c e ’ , J o u r n a l o f M o d e r n A f r i c a n S t u d i e s , 3 1 ( 1 ) , 1 9 9 3 , p p

1 0 9 ± 1 3 0 ; B A A n d r e a s s e n & E

S k a a r

( e d s ) ,

R e c o n c i l i a t i o n o r

J u s t i c e ? P r o t e c t i n g H u m a n R i g

h t s T h r o u g h T r u t h C o m m i s s i o n s a n d T r i a l s ( i n N o r w e g i a n ) , O s l o : C a p p e l e n A k a d e m i s k F o r l a g

, 1 9 9 8 ;

M B r a t t o n & N v a n d e W a l l e ,

D e m o c r a t i c E x p e r i m e n t s

i n A f r i c a : R e g i m e T r a n s i t i o n s i n C o m p a r a t i v e P e r s p e c t i v e , C a

m b r i d g e : C a m b r i d g e U n i v e r s i t y

P r e s s ,

1 9 9 7 ; D B r o n k h o r s t , T r u t h a n d R e c o n c i l i a t i o n .

O b s t a c l

e s a n d O p p o r t u n i t i e s f o r H u m a n R i g h t s , A m s t e r d a m : A m n e s t y

I n t e r n a t i o n a l D u t c h S e c t i o n , 1 9

9 5 ; P B

H a y n e r , ` F i f t e e n t r u t h c o m m i s s i o n s Ð 1 9 7 4 t o 1 9 9 4 : a c o

m p a r a t i v e s t u d y ’ , H u m a n R i g h t s Q u a r t e r l y , 1 6 ( 4 ) , 1 9 9 4 , p p 5 9 7

± 6 5 5 ; S P H u n t i n g t o n , T

h e T h i r d

W a v e :

D e m o c r a t i z a t i o n i n t h e L a t e T w e n t i e t h C e n t u r y , N o r m a n & L o n d o n : C a m b r i d g e U n i v e r s i t y P r e s s , 1 9 9 1 ; T L K a r l & P C S

c h m i t t e r , ` M o d e s o f t r a n s i t i o n i n L a t i n

A m e r i c a , S o u t h e r n a n d

E a s t e r n E u r o p e ’ , I n t e r n a t i o n a l S o c i a l S c i e n c e J o u r n a l , 1 2 8 , 1 9 9 1 , p p 2 6 9 ± 2 8 9 ; M K a y e , ` T h e r o l e o f t r u t h c o m m i s s i o n s i n t h e

s e a r c h

f o r j u s t i c e , r e c o n c i l i a t i o n a n d d e m o c r a t i s a t i o n : t h e S a l v a d o r a n a n d H o n d u r a n c a s e s ’ , J o u r n a l o f L a t i n A m e r i c a n S t u d i e s , 2 9 ( 3 ) , 1 9 9 7 , p p 6 9 3 ± 7 1 6 ; R L e M a r c h a n d ,

` M a n a g i n g t r a n s i t i o n a n

a r c h i e s : R w a n d a , B u r u n d i , a n d S o u t h A f r i c a i n c o m p a r a t i v e p e r s p e c t i v e ’ , J o u r n a l o f M o d e r n A f r

i c a n S t u d i e s , 3 2 ( 4 ) , 1 9 9 4 , p p 5 8

1 ± 6 0 4 ;

J A M c A d a m s ( e d ) , T r a n

s i t i o n a l J u s t i c e a n d t h e R u l e o f L a w i n N e w D e m o c r a c i e s , N o t r e

D a m e , I N : U n i v e r s i t y o f N o t r e D a m e P r e s s , 1 9 9 7 ; W F S M i l e s , ` T r a g i c

t r a d e o f f s : d e m o c r a c y a n

d s e c u r i t y i n C h a d ’ , J o u r n a l o f

M o d e r n A f r i c a n S t u d i e s , 3 3 ( 1 ) ,

1 9 9 5 , p p 5 3 ± 6 5 ; I P S t o t z k y , S i l e n c i n g t h e G u n s i n H a i t i ,

T h e P

r o m i s e

o f D e l i b e r a t i v e D e m o c r a c y , C h i c a g o . U n i v e r s i t y o f C h i c a g o P r e s s , 1 9 9 7 ; J Z a l a q u e t t , ` B

a l a n c i n g t h e e t h i c a l i m p e r a t i v e s a n d p o l i t i c a l c o n s t r a i n t s : t h e d i l e m m a

o f n e w d e m o c r a c i e s c o n f r o n t i n g p a s t h u m a n r i g h t s ’ , H

a s t i n g s L a w J o u r n a l , 4 3 ( 6 ) , 1 9

9 2 , p p 1 4 2 6 ± 1 4 3 2 .


12/20

ELIN SKAAR

T ABLE 4

Actual policy outcomes

Military demand

St ron g W eak

Strong T rut h c om m issi on s T ri al s

Ur ug uay (T C) Greece (T )

Brazil (TC) Yugoslavia (T)

Chile (TC) Malawi (T)

So uth A fri ca (T C) Bol iv ia (T1 TC )

E l Salvador (T C) Argentina (T1 TC )

Guatemala (T C) E ast Germ any (T1 TC)

Haiti (TC) Ethiopia (T1 TC)

Rw anda (T 1 TC )

Namibia (N)

Cambodia (N) The Philippines (TC)

So uth Korea (N) Ugan da (TC)

Indonesia (N) Chad (TC)

Weak Nothing Nothing

Angola (N) Romania (N)

Mozambique (N)

Bulgaria (N)

Czechoslovakia (N)

Poland (N)

Hungary (N)

Notes: T 5 tr ials, TC5 trut h commissi ons, N 5 no th ing. Countr ies in italic s are `d eviant’

cases.

Sourc e: Information synthesised from Table 3.

justi ce in E astern Euro pe has been sought th ro ugh th e pro cess of lu stration rather

than th rou gh pro secu ti on fo r hum an rights violation s.27

Deviant cases and systematic patterns

Although there is a strong link between the relative strength of con¯icting

demands and policy outcomes, there are several cases that don’t ®t our model.

T wo groups of co untrie s have done less in the ®eld of human rights than our

model predicts: those that did nothing, where truth commissions were expected

(Namibia, Cambodia, South Korea and Indonesia) and those that only estab-

lished truth commissions where trials were expected (the Philippines, Uganda

and Chad). What may account for this? As always, the devil is in the details. By

takin g a closer look at the se tr an siti ons, th ree broad alternative explan atio ns

presen t them selves. T he ®rst is th e lack of ex ecutive co m m itmen t to the process

of human rights. In Uganda, Namibia, South Korea and Indonesia, the demo-

cratic governments have continued to court strong ties to the outgoing regime or

the mil it ary afte r th e tr an siti on . Afte r oustin g his milita ry predecesso r, Pre sident

Museveni of Uganda established a truth commission, reportedly primarily in

response to donors pressuring him to address the human rights situation in the

country. The commission released its report only eight years later, in spite of

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hea vy public dem an d. Tri als were nev er on Museven i’s poli tical agenda.28

President Nujoma of Namibia is known to have strong af®liations with the South

West African People’s Organisation (SWAPO), which has been accused of many

of the atrocities committed during the civil war with the South African army.

T his may ex pla in Nu jo m a’s relu ctance to respo nd fav ourably to pub li c dem an d

for truth and justice.29

The election of civilian pre siden t Kim You ng Sam in 1992

marked an important democratic turning point in Korean politics but there was

no ap paren t in iti ative on the part of th e ne w dem ocratic gover nmen t to inv esti-

gate human rights abuses or instigate trials. Finally, the stepping down of

long-term dictator Suharto in Indonesia after sustained public pressure in 1998

marked an important democratic opening in Indonesian politics. However, his

appointed successor, President Habibie, has strong interests in preserving his

links to the military. In sum, the executives in these four countries have had a perso nal interest in favouring th e mili ta ry’s dem an d fo r impunity over the

public’s dem an d fo r truth an d justice.

A second potential explanation for the apparent lack of government initiative

in the human rights ®eld is the continued threat of military opposition to the

democratic government after the transition. For instance, in Cambodia the

Khmer Rouge (allegedly responsible for killing more then two million Cambodi-

ans between 1975±78) was included in the peace negotiations brokered by the

UN in 1992, an d man ag ed to secure th eir im punity.30

The su rv ival of the Kh m er

Rouge leadership until 1998 has pre sented a dorman t, th oug h co ns tant, th re at to

the new gov ernmen t. T he situation in the Philippines was differen t, yet some-

what similar. The Aquino government taking over after the collapse of the

Marcos regime in 1986 was initially openly in favour of dealing with the legacy

of gross human rights violations. The government appointed a truth commission,

but it abandoned its work halfway through and never issued a report. The

Aquino government faced severe opposition and three successive tentative

military coups right after coming to power and judged it as politically unfeasible

to push an y further fo r tru th or tria ls.31

T hese tw o ex am ples suggest th at, where the m ilita ry reta in s a strong presence in politic s, the democratic governm en t

must tread carefully.

A third and ®nal explanation for why some democratic governments have

done less than expected to resolve the legacy of past human rights violations is

simply a lack of functioning political institutions. Chad after the overthrow of

HabreÂ’s regime in 1990 is a good example. T he democratic government set up

a truth co mm ission to inv estigate abuses carried out under H abreÂ’s despotic thr ee

decade-long rulership, and the new president formally pledged to respect

democracy and human rights. However, human rights violations have continued

on a large scale after the return to electoral democracy. Given the lack of

presiden tial co ntrol over the arm y, co mbined with a poor ju dic ia ry, the ab sence

of the rule of law, internal factions and ethnic con¯ict, it is hardly surprising that

tri als have not been held in Ch ad .32

T o su m up, there are a number of cases wh ere the governmen t did less than

expected in a given balance-of-power context, for reasons such as strong

executive ties to the outgoing regime, a continued looming military presence, or

polit ical ch ao s. On e im porta nt thin g to note is that no country did more in the

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ELIN SKAAR

®eld of human rights than predicted. There are, in fact, no empirical examples

of truth commissions or trials in countries where public demand for truth and

justi ce has bee n wea k, ev en where th e out go in g re gime had been defeated. T his

systematic pattern displayed by the deviant cases supports my second argument

that a dem ocratic governm en t is more likely to err on th e sid e of doing to o litt le

rather than too much with respect to the politically contested issue of past human

rights violations.

May human rights policies change over time?

So far I have dealt with the policy options chosen by democratic governments

at the time of regime transition, assuming that the power balance is static. In the

following I argue that negotiation or bargaining between the government and theoutgoing regime, on the one hand, and between the government and the public,

on the other, may usefully be thought of as taking place in three distinct phases

of the democratisation process: the liberalisation/democratisation phase (t 2 1),

the tim e of re gime ch an ge (t 1 1), and the democratic consolidation phase

(t 1 2). We may expect policy reversals where the relative balance of con¯icting

demands from the public and the outgoing regime changes over time. Table 5

shows when the main bargaining over human rights policies took place in each

country. Countries that either have had, or are expected to have, policy reversals

in the ®eld of human rights are indicated in bold type.

T hree patterns are worth no ting . First, no trials were initially held in co untries

where the transition process included heavy elements of negotiation and bargain-

ing in the period before the actual regime change (t 2 1), de®ned as gradual or

pacted transitions. This is in accordance with our prediction that trials are held

only in situations of a collapsed or weak outgoing regime. Truth commissions,

by contrast, appear most frequently as sole solutions precisely in the cases where

there is a heavy elem ent of pre -reg im e tran sition bar gaining . He nce the y are

appropriately considered a `compromise solution’. Second, where the main bargaining takes place at the time of regime change (t 1 1), the range of policy

solutions is m uch w ider. Third, we note that to date at least four countries (Chile,

Bolivia, Argentina and South Africa) have had policy reversals in the ®eld of

hum an rights in the co nsoli dation phase (t 1 2) .

Argentina is the only case where the government initiated a human rights

polic y it was forc ed to back down on. Alf onsin’s fam ous tria ls an d conv ic ti on

of seven Argentinean generals in 1985 were reversed when Menem came to

power in 1990 an d issued sw eeping pardonsÐ afte r th re e unsuccessful milita ry

revolts. Thus, the military junta, initially emerging weak and discredited after its

defeat in the Falklands War, was able to close ranks, regain strength and present

a real threat to the government. This eventually led to a policy reversal in favour

of the military.

For Bolivia an d Chile, th e situati on has been ex actly the oppo site. In Bo li via,

the initi al am nesty law passed on tran siti on wh ich prote cted the outg oing

military regime from prosecution was set aside when the new democratic

government instigated a series of trials in 1985Ðthe most wide-reaching process

of legal justice in any Latin American country. In Chile, ex-dictator Augusto

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T ABLE 5

Bargaining over human rights in transitions to democracy

t 2 1 t 1 1 t 1 2

Country Policy Country Policy Country Policy

Ur ugua y 19 85 TC Greece 19 75 T

Brazil 1985 TC Yugoslavia 1992 T

Chile 1990 TC Malawi 1995 T Chile 1995/1999 T/T?

El Salvador 1992 TC Bolivia 1982 T 1 TC Bolivia 1989/1999 T/T?

HaiÂtiÂ 1995 TC Argentina 1983 T 1 TC Argent 1989/1999 No T/T?

S Africa 1995 TC Ethiopia 92/97 T 1 TC S Africa 1998/1999 T/T?

Guatemala 1996 TC East Germ 92/98 T 1 TC

Rwanda 94 /98 T 1 TC

Phillipp 1986 TC

Uganda 19 86 TC

Chad 1990 TC

Namibia 1990 N

Cambodia 1991 N Cambodia 1999 TC/T?

Angola 1992 N

Mozamb 1992 N

S Korea 1992 N

Indonesia 1998 N Indonesia 1999 TC/T?

Bulgaria 1989 N

Czechosl 1989 N

Poland 1989 N

Hungary 1989 N

Romania 1989 N

Notes: T he dates refer to when a truth commission was established or trials held. For the countries with no p olicy,

the da tes refer to wh en regi me change came abou t.

So urces: Information synthesised from other tables in this paper.

Pinochet initially succeeded in securing guarantees for upholding his 1978

Amnesty Law during negotiations with the incoming Aylwin government in 1989. However, after years of public pressure on the democratic government, the

amnesty law was put to shame with the trials of retired general Manuel Contreras

and former chief of the secret police and second in command, General Pedro

Espinoza, in 1995. A public opinion survey taken in July of the same year

showed that 65.8% of Chileans polled agreed that the generals should serve

tim e.33

More cases are currently under investigation in Chile. This indicates that

the pow er balance has shifte d in fa vour of the public , an d th at the mili tary no

longer considers the protection of its interests dear enough to threaten the

government.

Recen t dev elopm en t ind icates fu rt her ch an ges in fav our of incre ase d ju stic e in

these th ree co untrie s. If Pinoch et is asked to stan d trial on ch arges of murder an d

genocide while heading the military junta before 1989, it will be the ®rst time

in history that a former dictator has been arrested outside his country to account

for past misdeeds. This will set a new precedent in international human rights

law. Partly encouraged by Pinochet’s arrest in England in October 1998, there

has been a recen t push fo r opening tr ials ag ainst fo rm er generals fo r the

abduction and kidnapping of babies during the `dirty war’ in Argentina. This

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ELIN SKAAR

new init ia tive on th e part of th e Arg en ti nean co urtsÐ rep orted ly in re sp onse to

sustained public pressureÐindicates yet another shift in the human rights policy.

Similarly, in Bolivia, there have been threats of opening up trials against former

army general and dictator and present head of state, President Hugo Banzer.34

Note also that the amnesty law in South Africa, which is based on individual

rather than blanket amnesty, will not cover all cases of human rights violations.

Several trials have already been held, and many more are expected to take place

in the near future.

Other democratic governments that have thus far been reluctant to embark on

a quest for truth and justice are currently in the process of considering possible

action in the ®eld of human rights. Recent public demand for truth and justice

in Indonesia, particularly manifested through student demonstrations, and in-

tensi®ed after the June 199 9 elec tio ns, mig ht open up the possibility of a tr uthcommission or trials or both. In Cambodia, the death of Khmer Rouge’s prime

and feared leader, Pol P ot, in 1998 has encouraged public pressure for trials, thus

forcing the present democratic government to deal with the past many years into

the process of de mocratic co nsolidation.35

T he governmen t re cently asked the

UN fo r help in drafting a la w th at would allow a tribunal to be set up

domestically, with foreign judges and lawyers working alongside their Cambo-

dian counterparts to prosecute the remaining Khmer Rouge leaders. 36

All this shows that the power dynamics set at the time of transition are not

perm anently ®xed . Su stained or in creased dem an d fo r tr uth an d ju stice from

e ither the p ub lic a nd/o r fro m a relativ ely sma ll n umbe r o f h uma n rig hts

organisations and lawyers groups, may successfully draw unwanted international

attention and threats of sanctions, which may encourage or pressure an initially

unwilling democratic government to implement more pro-human rights policies.

Conclusions and suggestions for future research

In this paper I have presented three arguments to account for the policy choicesmade by democratic governments in an effort to deal with the legacy of gross

hum an rig hts violations after th e transitio n to dem ocracy. First, I hav e argued

that th e go vernmen t’ s choice of polic y depends on th e rela tive stre ngth of

credible demand for truth and justice from the public and the demand for

amnesty and impunity from the outgoing regime. Second, I have argued that,

because the newly elected democratic government is primarily concerned with

polit ical su rv ival, it is pruden t in its policy ch oic es an d will do le ss rathe r th an

more to resolve the problem of human rights violations. A worst-case scenario

for b oth the d emocratic g ov ern men t a nd th e p ub lic wo uld b e d emo cratic

breakdown in form of a coup. Hence both sides may be willing to back down

on their demands in order to preserve democracy. Third, I have argued that, as

democracy solidi®es over time, the democratic government may gradually

become willing to implement stronger measures in the human rights ®eld. This,

howev er, is only ex pecte d if public dem an d fo r truth an d ju stice re mains

constant or increases, and if the military is perceived as suf®ciently weak or

unwilling to impose sanctions on the government.

My e mp iric al a na ly sis o f ab ou t 3 0 ma inly L a tin America n an d African

1124


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countries undergoing democratic transition after the mid-1970s lends substantial

support to all three arguments. An exhaustive analysis of those governments that

chose truth commissions or trials in response to con¯icting demands from the

public an d th e outg oing re gim e showed th at ch oic es te nd ed towards tri als as the

military was weaker and towards nothing as the military was stronger. Truth

comm issions emerged as a compromise solution when claims from both the

public an d th e mili tary were strong an d cred ib le . The dem oc ra tic governm en t in

this situat io n di d not ex pect the milita ry to take on the co sts of staging a co up,

especially since amnesty laws that exempt the military from prosecution have

usually accompanied truth commissions. Since the government wanted to please

the electorate an d give a favoura ble im pre ssio n to the in te rn atio nal co mm unity,

it established a truth commission as a ®rst step in the quest for truth and justice.

T he cases th at dev iate fro m our model display tw o notice able tre nds. First, public dem and seem s to be a necessary , th ou gh not suf® cient co nd it ion, fo r a

democratic government to establish truth commissions or hold trials. Second,

there is no em pirical ev iden ce of gov ernmen ts hav in g im plem en ted stronger

measures to resolve the human rights question than our model predicts. These

two ®ndings jo intly dem onstr ate that dem ocr atic gove rn m ents hav e freq uen tly

tended to accom plish le ss in th e ®eld of hum an rights than the balance-o f-powe r

argument would suggest, thus supporting my second argument regarding pru-

dence on the government’s side. Alternative explanations brie¯y suggested are

the lack of executive will to im ple men t human rig ht s poli cies (o ft en becau se of

strong links to the outgoing regime or the military), or continued threat from the

military or outgoing authoritarian leadership.

Fin ally, I hav e pre sente d em piri cal ev id ence sh owing that go vernmen t polic y

making in the human rights ®eld is not static. Negotiation and bargaining may

continue into the consolidation phase and lead to policy reversals. As the

development of several countries indicates, the human rights issue may gain new

salience with domestic changes in power balances. With the sole exception of

Argentina, policy reversals have been in favour of the public as democracybecomes consolidated.

In sum, the parsimonious approach employed in this paper has been useful in

explaining variation in human rights policies both across countries and across

tim e. There is a relatively strong patte rn in th e co nnections between tra nsition al

power an d th e ch oic e of truth co mmissio ns, tr ia ls or nothing , an d dev iant cases

tend in the same direction. Howev er, bec ause of th e relatively sm all number of

cases, we should be cautious when interpreting these results.

T here are at le ast th ree way s of expandin g or im pro vin g th is analysis: by

adding more cases; by re®ning the existing balance-of-power approach; or by

searching for alternative explanations. In the ®rst case, we need to wait for

history to unfo ld to see if new governm en ts undergoin g tr an sitions from

authoritarianism to democracy will choose policies that fall into line with the

pattern displayed in this analysis. L ikely te st cases to occur in th e nea r fu tu re are

South Africa (where trials have already started), Indonesia (where elections were

held June 1999), Nigeria (where dem ocratic elections we re held in Fe bruary

1999 for the ®rst time in 16 years), and Cambodia (where the UN is pressing for

tri als and dom estic dem an d fo r justice is becom ing m ore vocal). L ater, perhaps,

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war-torn countries such as Somalia, Sierra Leone and Colombia, should they one

day come to peace, may be added to the list. Second, a more integrated approach

using a formal nested games model could re®ne the balance-of-power argument

by allowing us to re¯ect the preferences of the executive where these deviate

from what the balance-of-power argument predicts. Such an approach may

further allow us to include other actors that potentially m ay in¯uence policy

making in the human rights ®eld, such as the judiciary.37

Finally, it migh t also

be useful to analyse to what degree institutional factors in¯uence policy

outcomes. More speci®cally, we could examine the power and autonomy of the

executive relative to that of the legislature and the judiciary and link our ®ndings

to variation in poli cy outc om es.38

If these arguments were formalised and tested in a large-n analysis setting,

they m ig ht shed new ligh t on im porta nt aspects of polic y mak in g in the ®eld of hum an righ ts, an d th us en hance our understandin g of whe n an d wh y de mocratic

governments frequently opt for a strategy of forgive and forget, rather than

seeking justice through prosecution and punishment of human rights violators.

Notes

I would like to thank the following for helpful comments and suggestions during various stages in writing thisarticle: Richard Anderson, W endy Be lcher, Barbara Geddes, E dmond Keller, IlguÈ O È zler, Daniel Posner, George

Tseb elis and Bria n Wal ker.1

SP Huntington, The Third Wave: Democratization in the Late Twentieth Century , Cambridge: Cambridge

Univ ersit y Press, 19 91 , p 23 1.2

See TL Karl & Schmitter, `Modes of transition in Latin America, Southern and Eastern Europe’,

International Social Science Journal , 128, 1991, pp 269±289; and G O’Donnell, Ìntroduction to the Latin

American cases’ in G O’Donnell, PC Schmitter & L Whitehead (eds), Transitions From Authoritarian Rule:

Latin America, Vol 2, Baltimore, MA: John Hopkins University Press, 1986.3

RA Mayorg a, `Dem oc rac y dig ni ®ed an d an end to im pu ni ty: Boli vi a’s mil it ary di ctat orsh ip on tr ial’, and JC

Sutil, ` ªNo victorious army has ever been prosecuted ¼º the unsettled story of transitional justice’, both

in JA McAdams (ed), Transitional Justice and the Rule of Law in New Democracies , Notre Dame, IN:

Univ ersit y of No tre Da me Press, 1997, pp 61±92, 12 3±154, respectively; and B Walsh, `Reso lving th e

hum an righ ts vi ola ti ons of a pr evio us regi me ’, World Affairs, 158(3), 1996, pp 111±135.4

Huntington, The Third Wave.5

See PB Hayner, `Fifteen truth commissionsÐ1974 to 1994: a comparative study’, Human Rights Quarterly,

16(4), 1994, pp 597±655; and D Bronkhorst, Truth and Reconciliation, Obstacles and Opportunities for

Human Rights, Amsterdam: Amnesty International Dutch Section, 1995.6

For a th orou gh di scu ssio n, see A Przewo rski, Democracy and the Market: Political and Economic Reform

in Eastern Europe and Latin America, Cambridge: Cambridge University Press, 1991.7

For di fferent vi ews on elite -focused transition theo ry, see W Hu nt er, `Negot iati ng civil Ðm il itary relati ons

in post-authoritarian Argentina and Chile’, International Studies Quarterly, 42(2), 1998, pp 295±317; Karl

& Schmitter, `Modes of transition in Latin America, Southern and Eastern Europe’; O’Donnell, Ìntroduc-

tio n to the La ti n Am erican Cases’ ; and Przewo rsk i, Democracy and the Market .8

It is a sad fact that the disappearance or murder of individual prominent left-wing politicians or foreigners

has frequent ly sol icit ed a great de al m ore nation al and in tern ation al at tent ion th an have the massa cres of

hund reds of po or indi genous peasan ts in remot e rural areas.9

See, for example, A Brysk, `The politics of measurement: the contested count of the disappeared in

Argentina’, Human Rights Quarterly , 16(4), 1994, pp 676±692.10

A natural objection could be made against treating the outgoing regime, the public and the incoming regime

as ùnitary actors’. In real life, of course, there will be internal splits, con¯icting demands and opposing

poli cy pr eferences with in each of th ese ùni tar y actors’. Fo r in stance, there may be tensi on betw een

hard-l iners an d sof t-l iners wi th in the mil it ary; tensi on be tw een those am on g the pu bl ic who supported th e

outgoing regime and those who favour the new democratic government; or tension between the executive,

legislative and judicial branches of the government. Yet the government (ie the executive) will have to make

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an assessment of the intensity and credibility of all these con¯icting demands and the potential costs

involved in not complying with them. Although policy preferences exist on a continuum, I argue that it is

still analytically useful to distinguish between a strong and a weak military, a strong or a weak human rights

movement, or an executive which supports or opposes a given human rights policy.11

Note the potential con¯ict between the aims of truth, justice and reconciliation. Establishing the `truth’ may

require offering amnesty to the violators in exchange for information, which precludes justice in the form of prosecution. Some scholars believe that reconciliation is best achieved through amnesty and truth

commissions whereas justice is best achieved through reparations and prosecution. Yet these relationships

have been ho tly cont est ed. It is in evit able th at so cie ty m ay not alwa ys de mand bo th truth and ju sti ce .

However, I assume that the demand for justice is a politically more sensitive claim than the demand for truth

because the risk involved in the prosecution of perpetrators (that is sanctions in form of a coup) is arguably

hi gher tha n di sclosi ng th e facts abou t the vi olat ions. For a de bate on ho w tru th and justice may affect th e

prosp ects for reco nc iliat ion, see D Bron kh orst, Truth and Reconciliation; N Kritz (ed), Transitional Justice.

How Emerging Democracies Reckon With Former Regimes, Vols I±III, Washington, DC: United States

Institute of Peace Press, 1995; and J Zalaquett, `Balancing the ethical imperatives and political constraints:

th e di lemm a of new democraci es co nf

31 tc, trials, or nothing policy options in democratic societies

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